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NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA                                                            *   NO. 2007-KA-0203
VERSUS                                                                        *   COURT OF APPEAL
FATEL PERRY                                                                   *   FOURTH CIRCUIT
                                                                              *   STATE OF LOUISIANA
*
APPEAL FROM
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 456-709, SECTION “G”
Honorable Julian A. Parker, Judge
CHIEF JUDGE JOAN BERNARD ARMSTRONG
(Court composed of Chief Judge Joan Bernard Armstrong, Judge Patricia Rivet
Murray and Judge Terri F. Love)
EDDIE J. JORDAN, JR., DISTRICT ATTORNEY
ALYSON GRAUGNARD, ASSISTANT DISTRICT ATTORNEY
BATTLE BELL IV, ASSISTANT DISTRICT ATTORNEY
1340 POYDRAS STREET
SUITE 700
NEW ORLEANS, LA   70112-1221
COUNSEL FOR PLAINTIFF/APPELLEE
MARY CONSTANCE HANES
LOUISIANA APPELLATE PROJECT
P. O. BOX 4015
NEW ORLEANS, LA   70178-4015
COUNSEL FOR DEFENDANT/APPELLANT
AFFIRMED.




STATEMENT OF CASE
On February 28, 2005, the State charged the defendant, Fatel Perry,
with  one  count  of  simple  burglary  of  an  inhabited  dwelling.    At  his
arraignment on March 16, he pled not guilty.   The court heard and denied his
motion to suppress the identification on April  6,  2005.    On August  8, a
twelve-person jury found him guilty of unauthorized entry of an inhabited
dwelling.   The State filed a multiple bill against the defendant, charging him
as a fourth offender, and on August 11, 2005, he pled not guilty to the bill.
The multiple bill hearing was reset, and on May 18, 2006, after a hearing,
the  court  found  the  defendant  to  be  a  fourth  offender  and  ordered  a
presentence  investigation.    On  October                                        2,   2006,  the  court  denied  the
defendant’s motions for new trial and for post-verdict judgment of acquittal.
The defendant announced his readiness for sentence, and the court sentenced
him to  life  imprisonment  without  benefit  of  probation  or  suspension  of
sentence.   The court denied the defendant’s motion to reconsider sentence
but granted his motion for appeal.
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The record reflects that on January 2, 2005, Patricia Claiborne lived at
2536 Alvar Street with her son Reynard and a daughter.    Early on that
morning, Ms. Claiborne was awakened by her son’s voice asking for help.
Ms. Claiborne testified that she walked out of her bedroom and into her
kitchen, where she found her back door wide open.   She testified that she
could hear her son calling to her from outside, and she said she ran down the
stairs of the apartment building and saw her son struggling with a man
without  a  shirt.    She  testified  that  she  recognized  the  man  from  the
neighborhood, but she only knew him by his nickname “Mini.”   She stated
that the man broke away and ran from the scene, and her son told her that the
man had taken money from him.    Ms. Claiborne testified that she later
visited the man’s sister, who lived in the neighborhood, and learned that
“Mini’s”  full  name  was  Fatel  Perry.     She  stated  that  she  gave  this
information to the police.   Ms. Claiborne positively identified the defendant
in court as the man she saw struggling with her son outside her apartment
that night.   She also testified that she did not give the defendant permission
to be in her apartment that night.
On cross-examination, Ms. Claiborne testified that the apartment was
located in a housing project, and she moved from the apartment the next day.
She  testified  that  the  defendant  entered  the  apartment  through  an  open
window.   She described the area where she saw the defendant and her son
struggling as being a grassy area next to the project building.   She testified
that her son was holding the defendant down as she came upon the struggle,
and she stated that she was close enough to the defendant to touch him and
that there was enough light in the area for her to recognize him.   She stated
that she had seen the defendant in the project for years.   On redirect, she
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estimated that defendant’s family lived in the project for three years, and she
had seen him numerous times.
Reynard Claiborne testified that he was living with his mother on
Alvar at the time of the burglary. He testified that on the night of the break-
in he slept in the living room, and although it was January, it was hot in the
apartment and he had left the window open.   He testified that he awakened
when a man climbed through the window.   He stated that he pretended to be
asleep, but he could see the man pick up shorts that Claiborne had left lying
on the floor.   Claiborne testified that the man left the room and walked into
the kitchen.   Claiborne testified that he had approximately $150, some in
change, in the pocket of his shorts, and he heard change jingling after the
man took the shorts into the kitchen.   Claiborne testified that he followed the
man into the kitchen, and the man tried to leave through the back door.   He
stated that he grabbed the man’s jacket, but the jacket came loose and the
man ran out the back door.   Claiborne testified he ran down the stairs after
the man, and he and the man wrestled on the ground.   He testified that he
called for help from his mother, and after she came downstairs, the man
escaped.    Claiborne stated that his mother recognized the man from the
neighborhood, and although he could not see the man’s face in the darkened
apartment, he clearly saw the man’s face when they were struggling outside
under the lights.   He stated that when he retrieved his shorts, his money was
gone.
Claiborne testified that his mother later learned the man’s name, and
he relayed this information to the police.   He also testified that the afternoon
before the burglary, he was looking out the same window that the man
entered, and he saw the man outside, looking toward the window.   Claiborne
testified that he later viewed a photograph that he identified as depicting the
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man who entered the apartment and with whom he struggled.   Claiborne
positively identified in court the defendant as that man.
On cross-examination, Claiborne testified that by the time of trial, the
apartment  building  had  been  torn  down.    He  insisted  he  could  see  the
defendant’s face when they were struggling outside the apartment.   He stated
that his mother was not with him when he viewed the photograph.
Det. Kevin Guidry testified that he investigated the burglary, and a
few days after the burglary, he showed a single photograph to Claiborne,
who positively identified the defendant as the person who broke into his
apartment.   Det. Guidry testified that after obtaining this identification, he
obtained  a  warrant  for  the  defendant’s  arrest.    The  defendant  was  later
arrested.
Off. Jerry Baldwin testified that on January 25, 2005, he stopped the
defendant on an unrelated matter, and pursuant to the existing warrant, he
arrested the defendant.
Errors Patent
A review of the record reveals there are none.
Assignment of Error By Counsel
By counsel’s assignment of error, the defendant contends that the
court imposed an excessive sentence - life imprisonment without benefits as
a fourth felony offender based on a conviction for of unauthorized entry of
an inhabited dwelling, the maximum sentence the court could have imposed.
See La. R.S. 14:62.3; La. R.S. 15:529.1A(1)(c)(i).
In State v. Smith, 2001-2574, p. 7 (La. 1/14/03), 839 So. 2d 1, 4, the
Court set forth the standard for evaluating a claim of excessive sentence:
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Louisiana  Constitution  of                                                   1974,  art.  I,           §      20
provides,  in  pertinent  part,  that                                         “[n]o  law  shall
subject any person to ··· excessive··· punishment.”
(Emphasis added.) Although a sentence is within
statutory   limits,   it   can   be   reviewed   for
constitutional  excessiveness.  State  v.  Sepulvado,
367  So.2d                                                                    762,                      767    (La.1979).  A  sentence  is
unconstitutionally   excessive   when   it   imposes
punishment grossly disproportionate to the severity
of  the  offense  or  constitutes  nothing  more  than
needless infliction of pain and suffering. State v.
Bonanno,  384 So.2d  355,  357  (La.1980). A trial
judge  has  broad  discretion  when  imposing  a
sentence  and  a  reviewing  court  may  not  set  a
sentence   aside   absent   a   manifest   abuse   of
discretion.  State  v.  Cann,                                                 471  So.2d                701,   703
(La.1985). On appellate review of a sentence, the
relevant question is not whether another sentence
might have been more appropriate but whether the
trial court abused its broad sentencing discretion.
State v. Walker, 00-3200, p. 2 (La.10/12/01), 799
So.2d 461, 462; cf. State v. Phillips, 02-0737, p. 1
(La.11/15/02), 831 So.2d 905, 906.
See also State v. Johnson, 97-1906 (La. 3/4/98), 709 So. 2d 672; State v.
Baxley, 94-2982 (La. 5/22/95), 656 So. 2d 973; State v. Batiste, 2006-0875
(La. App. 4 Cir. 12/20/06), 947 So. 2d 810; State v. Landry, 2003-1671 (La.
App. 4 Cir. 3/31/04), 871 So. 2d 1235.
In Batiste, supra, at    p.  18,  947 So.  2d at                              820, this court further
explained:
An appellate court reviewing a claim of excessive
sentence  must  determine  whether  the  trial  court
adequately complied with the statutory guidelines
in La. C.Cr.P. art.  894.1, as well as whether the
facts  of  the  case  warrant  the  sentence  imposed.
State v. Landry, supra; State v. Trepagnier,  97-
2427  (La. App.  4 Cir.  9/15/99),  744 So.2d  181.
However, as noted in State v. Major, 96-1214, p.
10 (La. App. 4 Cir. 3/4/98), 708 So.2d 813:
The  articulation  of  the  factual  basis
for  a  sentence  is  the  goal  of  Art.
894.1,   not   rigid   or   mechanical
compliance   with   its   provisions.
Where  the  record  clearly  shows  an
adequate factual basis for the sentence
imposed, resentencing is unnecessary
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even  when  there  has  not  been  full
compliance with Art. 894.1.   State v.
Lanclos,                                                                         419  So.2d                                                          475  (La.1982).
The  reviewing  court  shall  not  set
aside a sentence for excessiveness if
the   record   supports   the   sentence
imposed.  La.C.Cr.P. art. 881.4(D).
If the reviewing court finds adequate compliance
with art. 894.1, it must then determine whether the
sentence the trial court imposed is too severe in
light  of  the  particular  defendant  as  well  as  the
circumstances of the case,  “keeping in mind that
maximum  sentences  should  be  reserved  for  the
most   egregious   violators   of   the   offense   so
charged.”   State v. Landry, 2003-1671 at p. 8, 871
So.2d at  1239.    See also State v. Bonicard,  98-
0665   (La. App. 4 Cir. 8/4/99), 752 So.2d 184.
Here, the trial court more than adequately complied with art. 894.1.
The court stated that it had read the presentence investigation report, and in
the  report  the  defendant  denied  breaking  into  the  victims’  apartment,
insisting that he and Claiborne had gotten into a fight because Claiborne had
failed to pay for some marijuana.   The court then listed at great length the
fifty-five-year-old defendant’s extensive criminal history, which included
not only the three prior convictions listed in the multiple bill (for simple
burglary of an inhabited dwelling, being a convicted felon in possession of a
firearm, and armed robbery), but also earlier convictions not listed in the
multiple  bill                                                                   (including  simple  burglary,  resisting  arrest,  possession  of
marijuana) and many more arrests that did not lead to convictions.   At the
time of sentencing, the defendant had two pending cases, one for first degree
robbery and another for possession of stolen property.   The court noted that
although the defendant grew up in poverty, both parents were present during
his childhood.   However, several of the defendant’s siblings were deceased.
There  was  no  indication  in  the  report  of  any  mental  illness  on  the
defendant’s part, and he had completed the ninth grade.   The court cited the
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defendant’s extensive criminal history, dating back to 1974, and his lack of
remorse.   The court recounted the facts of the present offense and noted that
the defendant was on parole from his armed robbery conviction at the time
he committed the present offense.   The court stated that there was an undue
risk he would commit another felony if he was placed on probation  (for
which he was not eligible in any event), that he was in need of correctional
treatment in a custodial environment, and that a lesser sentence would not be
commensurate with the serious nature of the defendant’s crimes; indeed, two
of his prior convictions involved weapons.    The court stated that it had
considered the mitigating factors of art. 894.1, and most of them either did
not apply or did not carry much weight in comparison to the crime and the
defendant’s criminal history.   The court then sentenced the defendant to life
imprisonment.   The defendant filed a motion to reconsider sentence, which
apparently  alleged  that  the  trial  court  failed  to  consider  mitigating
circumstances.   Citing its prior comments on this matter, the court denied the
motion to reconsider.
The defendant takes exception to some of the comments the trial court
made when imposing sentence.   He first points out that the court said that he
had been released on his last sentence only a few months before the present
offense, while a document in the record shows that he was released on
parole in 1995, over nine years prior to the present offense.   However, he
apparently still was under supervision at the time of the offense, having
received a thirty-year sentence in 1982.   The defendant also contends that
the trial court placed too much emphasis on arrests he had the year before
the present offense which were refused by the district attorney’s office, as
well as charges still pending against him at the time of sentencing.   With
respect to the former, he notes that there is no way to tell why these charges
7




were refused, while with respect to the latter he might be found not guilty.
A check of the docket masters of the pending cases shows that on February
12, 2007, the defendant pled guilty to possession of stolen property in one
case and received a six-month sentence1, while the State nolle prosequied
the first degree robbery case2.
A sentencing court is entitled to consider a defendant’s entire criminal
history, including arrests that relate to unadjudicated crimes, when imposing
sentence.   See State v. Washington, 414 So.2d 313 (La.1982).   Thus, the trial
court did not abuse its discretion by considering the defendant’s pending
charges and his arrest record.
The  defendant  received  the  maximum  sentence  as  a  quadruple
offender.   This Court found no other cases where a defendant received a life
sentence for unauthorized entry of an inhabited dwelling as a quadruple
offender.   In most of the cases where the trial court imposed the maximum
sentence and the appellate court upheld the sentence, the defendant was
sentenced only as a first offender.   See State v. Jupiter, 06-93 (La. App. 5
Cir. 6/28/06), 934 So. 2d 884 (a domestic case involving a battery); State v.
Gatti, 39,833 (La. App. 2 Cir. 10/13/05), 914 So. 2d 743 (in connection with
the robbery of an armored car); State v. Gibson, 591 So. 2d 416 (La. App. 4
Cir. 1991) (entry of the defendant’s aunt’s house); State v. Williams, 532 So.
2d  843  (La. App.  4 Cir.  1988)  (property was also taken).   In two cases,
courts upheld the maximum sentence of twelve years as a second offender.
State v. Perkins, 99-1084 (La. App. 5 Cir. 1/25/00), 751 So. 2d 403 (the
defendant was armed during the offense); State v. Segue, 92-2426 (La. App.
4  Cir.  5/17/94),                                                                637  So.  2d  1173  (the  defendant  ransacked  the  elderly
1 Case #456-727.
2 Case #456-708.
3 Writ denied,   2005-2394 (La. 4/17/06), 926 So.2d 511.
8




victim’s house, destroying some property and taking other property).    In
State v. Armstrong, 99-925 (La. App. 5 Cir. 2/16/00), 756 So. 2d 533, the
court  upheld  the  defendant’s  sentence  of  life  imprisonment  as  a  third
offender, but the life sentence was mandatory at the time of the offense due
to the nature of the defendant’s prior convictions.
In State v. Brisco, 33,179 (La. App. 2 Cir. 4/5/00), 756 So. 2d 644, the
defendant was warned to stay away from the victim’s house.   One night
while the victim’s daughters were home alone, the defendant tried to get in
the house, but one daughter told him to leave.   The daughter soon heard
noises and found the defendant in her handicapped sister’s bedroom.   The
defendant then fled.   The court found the defendant to be a fourth offender
and sentenced him to serve forty years at hard labor.   The court noted the
defendant’s  extensive  criminal  history  that  included  multiple  counts  of
simple burglary and a conviction for being a convicted felon in possession of
a firearm.   The court noted that the defendant had been incarcerated most of
his life since he had turned twelve years old.   On appeal, the court upheld
this sentence.   The appellate court did not conduct a comparison of other
cases in so finding.
Here, the defendant was exposed to a sentence of twenty years to life,
and  the  court  imposed  the  maximum  sentence.    The  court  gave  ample
justification for imposing the maximum sentence.    The defendant has an
extensive  criminal  history,  and  he  had  pending  cases  at  the  time  of
sentencing.   The evidence produced at trial showed that the defendant broke
into the victim’s house, took his shorts from the floor where they lay, and
then scuffled with the victim when the victim confronted him.   In addition,
money the victim had in his pocket was missing after the victim retrieved the
shorts from the kitchen floor, where the defendant dropped them.    The
9




defendant was charged with simple burglary of an inhabited dwelling, and
the evidence adduced at trial would have supported a conviction as charged.
Indeed, had the defendant been convicted as charged, a life sentence would
have  been  mandatory  under  La.  R.S.  15:529.1A(1)(c)(ii)  because  of  the
nature of the present offense and two of his underlying offenses.   Given
these circumstances and the comparison to Brisco and the cases cited above,
we find that the trial court did not abuse its discretion by imposing a life
sentence.  This assignment has no merit.
Pro Se Assignment of Error
In addition to the assignment of error by counsel, the defendant raises
one assignment of error pro se:  the trial court erred by denying his motion to
suppress the identification.   Specifically, he contends that the identification
was suspect because the victim was shown only one photograph, that of him.
In State v. Holmes, 2005-1248, pp. 6-7 (La. App. 4 Cir. 5/10/06), 931
So. 2d 1157, 1161, this court set forth the standard for determining whether
an identification should be suppressed:
La.  Code  of  Criminal  Procedure  art.                                           703(D)
provides that the defendant has the burden of proof
on a motion to suppress an out of court statement.
To  suppress  an  identification,  a  defendant  must
first  prove  that  the  identification  procedure  was
suggestive.   State v. Prudholm, 446 So.2d 729, 738
(La.                                                                               1984).       An  identification  procedure  is
suggestive if, during the procedure, the witness'
attention is unduly focused on the defendant.   State
v.  Robinson,  386  So.2d  1374,  1377  (La.  1980).
Moreover, a defendant who seeks to suppress an
identification   must   prove   both   that   the
identification  itself  was  suggestive  and  that  a
likelihood of misidentification existed as a result
of   the   identification   procedure.                                             State   v.
Valentine, 570 So.2d 533 (La. App. 4 Cir.1990).
The  Supreme  Court  has  held  that  even  if  the
identification could be considered suggestive, it is
10




the likelihood of misidentification that violates due
process, not merely the suggestive identification
                                                                                      procedure.    State  v.  Thibodeaux,                                              98-1673                     (La.
9/8/99);                                                                              750  So.2d                                   916,                                 932.    Fairness  is  the
standard of review for identification procedures,
and reliability is the linchpin in determining the
admissibility of identification testimony.   Manson
v. Brathwaite,  432 U.S.  98,  97 S.Ct.  2243,  2253
(1977).                                                                               Even   a   suggestive,   out-of-court
identification will be admissible if it is found
reliable  under  the  totality  of  circumstances.
State v. Guy,  95-0899  (La. App.  4 Cir.  1/31/96),
669  So.2d                                                                            517.                                         If  a  suggestive  identification
procedure has been proved, a reviewing court must
look  to  several  factors  to  determine,  from  the
totality   of   the   circumstances,   whether   the
suggestive  identification  presents  a  substantial
likelihood  of  misidentification  at  trial.    State  v.
Martin, 595 So.2d 592, 595 (La. 1992).   The U.S.
Supreme Court has set forth a five-factor test to
determine  whether  a  suggestive  identification  is
reliable:                                                                             (1) the opportunity of the witness to view
the  assailant  at  the  time  of  the  crime;                                        (2)  the
witness’s degree of attention; (3) the accuracy of
the witness’s prior description of the assailant; (4)
the level of certainty demonstrated by the witness;
and (5) the length of time between the crime and
the confrontation.   Manson v. Brathwaite, Id.   The
corrupting  effect  of  the  suggestive  identification
itself  must  be  weighed  against  these  factors.
Martin, 595 So.2d at 595.
In   evaluating   the   defendant's   argument,   the
reviewing   court   may   consider   all   pertinent
evidence  adduced  at  the  trial,  as  well  as  at  the
hearing   on   the   motion   to   suppress   the
identification.   State v. Lewis, 2004-0227 (La. App.
4  Cir.                                                                               9/29/04);                                    885  So.2d  641,  652.    A  trial
court’s  determination  on  the  admissibility  of
identification evidence is entitled to great weight
and will not be disturbed on appeal in the absence
of an abuse of discretion.   State v. Offray, 2000-
0959  (La. App.  4 Cir.  9/26/01);  797 So.2d  764.
(emphasis added)
See also State v. Lagarde, 2003-0606 (La. App. 4 Cir. 12/10/03), 861 So. 2d
871; and see State v. Simmons, 99-1154 (La. App. 4 Cir. 12/6/00), 779 So.2d
856,  where  this  court  reiterated  that  a  defendant  must  establish  that  an
11




identification procedure was suggestive before the court looks to the Manson
factors to determine whether to suppress an identification.
Here, the defendant argues that the identification procedure used in
this case was suggestive in that the victim was shown only one photograph.
This court has upheld one-photograph identifications where the victims have
known their assailants.    See State v. Weber,  2002-0618  (La. App.  4 Cir.
12/4/02),                                                                            834  So.  2d  540;  State  v.  Salone,   93-1635  (La.  App.   4  Cir.
12/28/94), 648 So. 2d 494; State v. Evans, 463 So. 2d 673 (La. App. 4 Cir.
1985).   While the victim here did not testify that he knew the defendant, his
mother testified that she recognized the defendant from the neighborhood
and knew his sister.   She went to the sister and learned the defendant’s full
name, and she disclosed this information to the victim, who then told the
police.   The victim, not his mother, was then shown the one photograph of
the defendant, which he chose as depicting the person who broke into the
apartment.
In any event, to the extent that this one-photo identification could
arguably   be   considered   suggestive,   this   suggestiveness   would   not
automatically render the identification inadmissible.   Rather, this court must
then look to Manson’s five factors to see if this suggestiveness resulted in a
likelihood of misidentification.   The victim had ample opportunity to view
his assailant.    Although it was too dark inside the apartment to see the
assailant clearly, the victim testified that he got a good look at the burglar
once they struggled outside under the lights.   The victim had a concentrated
degree of attention on the burglar in that he struggled with him both inside
and  outside  the  apartment.    There  is  no  indication  in  the  record  of  a
description given by the victim.   He was certain, however, when he saw the
defendant’s  photograph  that  it  depicted  the  man  he  chased  out  of  the
12




apartment and with whom he struggled.   Only three days elapsed between
the crime and his identification of the defendant’s photograph.   Given these
circumstances, it does not appear that the use of one photograph resulted in a
likelihood  of  misidentification.    As  such,  the  trial  court  did  not  err  by
denying the defendant’s motion to suppress the identification.   This claim
has no merit.
For the foregoing reasons, the defendant’s conviction and sentence are
affirmed.
AFFIRMED.
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