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STATE OF LOUISIANA NO. 09-KA-232
VERSUS COURTOFAPPEAL FIFTH CIRCUIT
ADOUPHUS DUNCAN FIETN CIRCUIT COURT OF APPEAL RED li0V 1 6 2003
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 07-5290, DIVISION "I"
HONORABLE JO ELLEN V. GRANT, JUDGE PRESIDING

NOVEMBER 10, 2009

WALTER J. ROTHSCHILD
JUDGE

Panel composed of Judges Marion F. Edwards, Susan M. Chehardy, and Walter J. Rothschild
PAUL D. CONNICK, JR. DISTRICT ATTORNEY Twenty-Fourth Judicial District Parish of Jefferson
TERRY M. BOUDREAUX ANNE WALLIS CHURITA HANSELL
ASSISTANT DISTRICT ATTORNEYS
200 Derbigny Street
Gretna, Louisiana 70053
COUNSEL FOR PLAINTIFF/APPELLEE

JANE L. BEEBE Attorney at Law Louisiana Appellate Project
P. O. Box 6351
New Orleans, LA 70174
COUNSEL FOR DEFENDANT/APPELLANT

CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED FOR RESENTENCING
Defendant, Adouphus Duncan, was charged by bill of information with two counts of armed robbery with a firearm, violations of LSA-R.S. 14:64 and LSA-
R.S. 14:64.3. At his arraignment, defendant pled not guilty. The defendant filed an omnibus motion that included a motion to suppress the identification which was denied. After a one-day trial, the 12-memberjury found the defendant guilty as charged on both counts. Defendant filed a motion for new trial which was denied. On the same day, after sentencing delays were waived, the trial court sentenced the defendant to 40 years at hard labor on each count to be concurrently served without benefit of parole, probation, or suspension of sentence. The defendant filed a written motion to reconsider sentence, which the trial court also denied. The defendant now brings this timely appeal.
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FACTS
Ahmad Collins testified that on May 1, 2007 at approximately 4:00 p.m., he and his pregnant wife, Laminda Jefferson, were robbed at the McDonald's in Gretna located on the West Bank Expressway. Collins testified that he was returning to the parking lot when he heard the defendant approach him from behind. The defendant said, "Give it up." Jefferson testified that she observed the defendant approach Collins while she was seated in the front passenger seat ofher vehicle and looking backwards. Both Collins and Jefferson testified that they saw that the defendant had a black semi-automatic firearm in his hand. According to Collins, the defendant demanded the keys to the vehicle, a red 2006 Dodge Charger. However, the keys were in the vehicle's ignition. Jefferson testified that Collins told her to get out because they were letting the defendant take the vehicle. According to Jefferson, she felt threatened and intimidated by the defendant.
Collins testified that, after he got his wife out ofthe vehicle, the defendant told him to empty his pockets and he complied. Collins testified that he had a cell phone and a wallet containing approximately $100 in his pockets. Then, according to both Collins and Jefferson, the defendant told them the direction in which to walk away, and then the defendant left in the vehicle. Collins testified that, even though the defendant did not point the gun at him or Jefferson, he was intimidated and feared for his life and that of his family during the armed robbery. According to Jefferson, she and Collins then went into the McDonald's, called the police, and gave the police a description of the defendant.
Collins and Jefferson described the defendant as a young black male with a medium complexion wearing all black apparel including a baseball cap, a shirt, a bandanna, shoes, and pants. Jefferson testified that the defendant had a slim build. Both Collins and Jefferson testified that there was nothing obstructing their view of
the defendant's face. They both testified that the bandanna was around the

defendant's neck, not covering his face. Jefferson testified that the defendant had a mustache and a beard.
Collins testified that he and Jefferson saw the vehicle leave the parking lot. Later, they saw their vehicle pass back on Newton and travel westbound up the expressway. Both Collins and Jefferson testified that they saw two individuals in their vehicle. According to Jefferson, the defendant was one ofthe individuals in the vehicle. According to Collins, the vehicle was still being chased by the police when an officer arrived at the scene. Approximately two minutes later, they were informed that the car had crashed.
Officer Corey Newby with the City of Gretna testified that he responded to the McDonald's call. On his way to the scene to meet the victims, Officer Newby testified that a description ofthe vehicle and the perpetrator were broadcast. Based upon his memory, Officer Newby testified that the vehicle was described as a red Dodge Charger and the perpetrator was described as a black male who robbed the victims at gunpoint. Later while still traveling to the scene ofthe robbery, Officer Newby was informed that Officer Gegenheimer had attempted to stop a vehicle that fit the description. According to Officer Newby, the vehicle was being followed because the driver of the vehicle refused to stop and fled at a high rate of speed on the elevated expressway into Marrero.
Upon arriving at the scene ofthe robbery, Officer Newby testified that he interviewed both victims. Officer Newby testified that Collins informed him that he went into the McDonald's while his wife remained in the vehicle. Collins informed him that while he was returning to the vehicle, he was approached from the rear by a person he described as a black male of average build with a gun. That person was wearing all black clothing including pants, as well as a baseball cap and sunglasses. According to Officer Newby, Jefferson also provided him with a
description ofthe defendant. Officer Newby testified that he called in the

description ofthe perpetrator after he received it. Officer Newby also testified that both victims told him that the Dodge Charger registered to Jefferson was taken.
After calling in the description ofthe defendant he received from the victims, Officer Newby testified that he learned that the stolen vehicle came to a stop in Marrero after the driver crashed it into some poles. Two people exited but only one ofthem subsequently was apprehended. Officer Newby testified that he transferred Collins and Jefferson to the scene ofthe crash for identification purposes. Officer Newby testified that both victims were positive that the apprehended person was not the same one that robbed them. At trial, Collins and Jefferson both testified that the apprehended suspect was not the person who stole the vehicle. Both Collins and Jefferson identified their damaged vehicle at the scene.
Officer Newby testified that the only identifiable fingerprints recovered from the Charger belonged to Collins. In addition, according to Officer Newby, the surveillance recording from the McDonald's showed a black male wearing all black and a baseball cap, and the vehicle being driven away. According to Officer Newby, the recording did not show a crime and, therefore, he opined that it was of no evidentiary value.
Officer Newby testified that the defendant was developed as a suspect on the same day. He compiled a photographic lineup that included the defendant's photograph. Later, on the same night, Officer Newby met with Collins and Jefferson to show them the photographic lineup. According to Officer Newby, both Jefferson and Collins individually identified the defendant on separate copies of the same photographic lineup, which they signed. Both Collins and Jefferson told him that they were sure that the person they identified in the photographic lineups, i.e., the defendant, was the person who stole the vehicle. According to
Officer Newby, the defendant was subsequently taken into custody in August,

several months after the incident.
Both Collins and Jefferson testified that they were positive oftheir identifications ofthe defendant in the photographic lineup and at trial as the person who robbed them. Collins testified that he had initially focused on the defendant's face prior to seeing the gun. According to Collins, he only took his eyes offthe defendant temporarily when he told Jefferson to get out of the vehicle. Jefferson testified that her eyes were on the defendant during the entire robbery. DISCUSSION
The defendant first claims that the evidence presented at trial was insufficient to convict him ofthe charged offenses. He argues that the jury could not have found that the State proved all the elements ofthe offense beyond a reasonable doubt and, therefore, the trial court erred in denying his motion for a new trial. Specifically, the defendant claims that the State failed to prove the element of identity through the testimony of its witnesses. The defendant asserts that there were many inconsistencies in the testimony of the witnesses, such as the failure ofthe eyewitnesses to mention the defendant's mustache. In addition, the defendant claims that there was also no corroborating evidence. Therefore, the defendant asserts that the trial judge erred in denying his motion for new trial and his conviction should be reversed.
The State claims that the jury could have found that the defendant was the person who committed the crime based on both victims' positive identifications of the defendant in both the photographic lineup and in court. The State notes that both victims got a good unobstructed view ofthe defendant.
The motion for a new trial is based on the supposition that injustice has been done the def

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