State v. Mosby

Citations: 581 So. 2d 1060; 1991 WL 91066Docket: KA 90 0920, KA 90 0921

Court: Louisiana Court of Appeal; May 16, 1991; Louisiana; State Appellate Court

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James Kevin Mosby was charged with simple robbery under La.R.S. 14:65 and found guilty by a jury. He was subsequently adjudicated a second felony habitual offender and sentenced to fourteen years at hard labor without the possibility of parole, probation, suspension of sentence, or good time. The incident occurred on March 9, 1987, when the victim, Guy McFarland, was robbed at the Louisiana National Bank, where he intended to make a deposit of approximately $4,000. After briefly encountering Mosby outside the bank, McFarland was approached from behind as he stood in line, and his bank bag was forcibly taken. McFarland pursued the robber, who fled the scene after breaking a glass door and escaping in a maroon Chevy Nova. 

McFarland provided a partial license plate number to the police and described the suspect. Initially, he could not identify anyone from a photographic lineup. However, after being informed by Mosby's former girlfriend that he was the robber, another lineup was prepared, in which McFarland positively identified Mosby. Following his arrest, Mosby attempted to evade capture by hiding in an attic. At trial, McFarland testified about the robbery and his identifications of Mosby in both lineups, as well as making an in-court identification. Detective Greg Phares corroborated the investigation and identifications, while a witness, Lisa Lusk, observed a chase outside the bank but could not identify the perpetrator.

Diane Johnson, the defendant's former girlfriend, testified at trial and was initially a State witness. The prosecutor requested her designation as a hostile witness due to inconsistencies in her testimony compared to prior statements. The court granted this request. Johnson admitted during her testimony that the defendant confessed to her about committing a robbery, specifying it occurred at an LNB bank on Airline Highway. This admission was made during a phone call while he was incarcerated. 

The prosecutor aimed to highlight discrepancies in Johnson's testimony regarding details of the robbery, including the source of her information and specifics about the crime scene. To support this, the prosecution introduced a letter from the defendant to Johnson, urging her to state that she had only heard about the robbery, asserting that such hearsay could not be used against him. Despite this pressure, Johnson claimed the defendant merely suggested she tell the truth.

Two family members of the defendant testified he lived with them at the time of the robbery but could not provide a solid alibi for him. The defense argued that someone else committed the robbery. Additionally, the defense sought to introduce evidence of similar robberies by another individual occurring shortly before the incident in question.

The defendant claimed the trial court erred in denying his motion to suppress photographic and physical identifications, arguing the photographic lineup was suggestive, potentially leading to misidentification. To succeed in suppressing an identification, the defendant must demonstrate suggestiveness in the procedure and a likelihood of misidentification. The court must assess the circumstances surrounding the identification, ensuring that the lineup does not unduly focus attention on the defendant.

A sufficient resemblance among identifying characteristics is required for the reliability of photographic identifications, rather than a strict identity. Key features examined include physical attributes such as height, weight, build, hair color, facial hair, and other distinguishing traits. In reviewing a photo lineup containing six young black males, the court found no undue suggestion, noting that the lineup was diverse in appearance despite one stocky individual. The defendant argued that his picture stood out due to his slim build and lack of a shirt, but this claim was dismissed.

The U.S. Supreme Court's ruling in Manson v. Brathwaite established five factors for assessing the reliability of a photographic identification: the witness's viewing opportunity during the crime, attention level during the event, accuracy of prior descriptions, certainty of identification, and the time between the crime and identification. The court concluded that the victim's identification of the defendant was reliable, given the close proximity during the robbery and a prolonged chase that kept the victim focused on the defendant. Despite a twelve-week gap before the identification, the victim remained confident in his choice. Consequently, the trial court properly denied the defendant's motion to suppress the identification evidence.

Furthermore, the defendant claimed error in the trial court's refusal to admit evidence of similar offenses committed by another individual to support his defense theory that someone else was responsible for the robbery. The defense sought to introduce evidence of Michael Jackson, a similarly built man arrested for two comparable bank robberies nearby, occurring shortly before the incident in question.

A defendant in a criminal case holds a constitutional right to present a defense, which includes the ability to testify and introduce evidence on matters that are material to the case. A "material issue" is defined as one of significant consequence or importance. Relevant evidence is that which demonstrates either the commission of the offense and intent or negates them. The relevance of evidence is determined by its intended purpose, and any evidence, whether direct or circumstantial, is relevant if it can prove or disprove a material fact.

In instances where mistaken identity is claimed as a defense, the defense may seek to introduce evidence of similar offenses. Challenges similarly arise when self-defense is at issue, prompting the introduction of the victim's prior violent acts. In the case referenced, the defendant cited State v. Patch, where evidence of a similar obscenity offense was deemed relevant and admissible to support a mistaken identification defense. The court in Patch ruled that excluding such evidence constituted reversible error.

In the current case, the trial court incorrectly distinguished it from Patch, asserting that the defendant could not introduce evidence of two similar robberies allegedly committed by Michael Jackson without providing alibi evidence. This ruling was erroneous as the evidence regarding Jackson's alleged similar robberies was relevant to the defense’s theory of mistaken identification. The court clarified that while an alibi defense was present in Patch, it was not a prerequisite for introducing evidence of a similar offense in support of mistaken identification. The trial court is tasked with determining the admissibility of evidence concerning relevancy and collateral impeachment.

If a trial court commits an error but an appellate court concludes that the error was harmless beyond a reasonable doubt, the conviction will stand. However, if the appellate court finds that the defendant was improperly barred from presenting critical evidence supporting his theory of the case, the conviction must be reversed, as the error is not considered harmless.

The trial court's exclusion of evidence regarding Michael Jackson's alleged similar robberies was deemed an error, but this error was considered harmless beyond a reasonable doubt. The defense aimed to suggest that Jackson had committed the current robbery based on these similar offenses. However, the identification of Jackson by witness McFarland was supported by a photo lineup, where McFarland subsequently identified Jackson in a physical lineup and in court. Although there was a suggestion of mistaken identification, the defense's cross-examination did not significantly challenge McFarland’s identifications. Importantly, McFarland did not identify Jackson in an earlier photo lineup shortly after the robbery, which weakened the circumstantial evidence against Jackson.

Regarding the sufficiency of the evidence, the defendant argued that the evidence was inadequate to sustain the conviction. The applicable standard requires that evidence be viewed favorably to the prosecution, allowing a rational jury to conclude that the essential elements of the crime were proven beyond a reasonable doubt. The definition of simple robbery under Louisiana law was satisfied, as a young male committed the robbery by taking a bank bag from the victim. The sole issue was the identity of the perpetrator, with McFarland providing positive identifications. Even though McFarland did not identify Jackson in an initial lineup, overall evidence was deemed sufficient to support the conviction.

Lastly, concerning the legality of the sentence, the defendant contended that the sentence was excessive and that the trial court failed to adhere to sentencing guidelines outlined in La.C.Cr.P. art. 894.1. While the trial court is not required to recite every guideline, it must demonstrate that it considered the relevant factors before imposing a sentence. The review of sentence excessiveness should take into account the crime's circumstances and the trial court's justifications for its sentencing decision.

The trial court possesses broad discretion in sentencing within statutory limits, and a sentence will only be overturned for being excessive if there is a clear abuse of discretion. Prior to sentencing, the court reviewed a presentence investigation report and considered the defendant's extensive criminal history, including a prior felony conviction for theft and eleven arrests between 1981 and 1987. The defendant was adjudicated a second felony habitual offender and had multiple misdemeanor convictions. While serving a fourteen-month sentence for misdemeanors, he was arrested for attempted first-degree murder and attempted aggravated rape. The trial court identified the defendant's age (25) as the only mitigating factor and determined that he required correctional treatment due to the risk of reoffending if not imprisoned for a significant period. The defendant received the maximum sentence of fourteen years at hard labor, which is appropriate for serious offenses and offenders. The court found no abuse of discretion given the circumstances and the defendant's criminal background.

The defendant challenged the sentence's terms, arguing against the lack of eligibility for parole, probation, and good time. Due to his two felony convictions, he was ineligible for a suspended sentence or probation, and his felony theft conviction disqualified him from good time. However, the court mistakenly imposed a sentence without parole eligibility. The defendant should be eligible for parole after serving half of his sentence. The sentence was amended accordingly, but resentencing was not necessary. The case was remanded for corrections to the sentencing minutes and commitment order. The conviction was affirmed, and the sentence was amended to allow for parole eligibility after serving half. The overall decree affirmed the conviction, amended the sentence, and remanded for administrative corrections.

The defendant raised an argument regarding a bank video that contained a picture of the alleged perpetrator of a robbery, which was subsequently taped over and not assigned as error. Following established Louisiana Supreme Court jurisprudence, the court will not consider arguments that are neither assigned as error nor related to evident errors in the record. A proffer hearing was held after the trial to present evidence of two similar offenses allegedly committed by Michael Jackson, during which the defense introduced testimony from police detectives involved in those investigations and the preliminary hearing transcript related to Jackson's prosecution for those offenses. Additionally, certain Louisiana Revised Statutes concerning evidence were in effect during the trial but were later repealed by the new Code of Evidence effective January 1, 1989.