Jerome Lateek Barber v. State ( 2006 )

Opinion to: SJR TGT SN TJ EVK ERA GCH LCH JB

Opinion Issued March 9, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00462-CR

JEROME LATEEK BARBER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court

Harris County, Texas

Trial Court Cause No. 959899

MEMORANDUM OPINION

          Appellant Jerome Lateek Barber pleaded not guilty to a charge of robbery.  A jury found him guilty and, having found true two enhancement convictions, sentenced him to sixty years’ imprisonment.  In three issues, Barber contends the trial court erred in denying his motion to suppress an overly suggestive pretrial identification, and the evidence is legally and factually insufficient to support his conviction. We affirm.

Facts

          In August 2003, as Saroj Patel walked her groceries to her car in a Kroger parking lot, a white Volvo pulled in front of her, blocking her path to her vehicle.  A man emerged from the passenger side of the car, and walked to the back of the car apparently to see if something was wrong with the rear end. The man then grabbed Patel’s purse from the cart, wrestled it from her as she fell on top of the cart, and jumped back in the Volvo as it drove away. 

          Sylvia Roberts witnessed the incident and went over to help Patel.  Roberts’s husband followed the Volvo and retrieved the license plate number. Police arrived a few minutes after the incident and immediately sent a description of the vehicle and the suspects out to officers in the area.  Within minutes, police pulled over Barber and his friend, Howard Murray, in a white Volvo about a mile from the scene of the incident.  Officer Anthony Kent accompanied Roberts and Patel to the location where police had detained Barber and Murray, informing them that police had stopped a vehicle they believed was involved.  Roberts and Patel viewed Barber and Murray, who were seated together in the back of a police car, at the same time and in the presence of Officer Kent and several other officers.  Roberts identified both men, and Patel identified Murray.  Officer Kent then informed Patel that police had found her purse in the back of Barber’s vehicle.

          At trial, Barber moved to suppress Roberts’s identifications of him both in-and out-of-court.  After hearing the testimony of Roberts and Officer Kent, the court denied the motion, finding the pretrial identification procedure was not impermissibly suggestive based on the Biggers factors.[1]  Roberts testified before the jury that she saw Barber and Murray in the checkout line at Kroger, and that she recognized them in the white Volvo in the parking lot. She testified that the parking lot was well lit and she had a clear view of Barber through the windows of the car, but the car was blocking her view of Murray and Patel, so she did not see Patel fall. Patel testified that Murray took her purse and pushed her on top of the shopping cart, and that she did not see Barber at all and was unable to identify him.  Murray testified that Barber did not know about the robbery until after they left the scene.  The State impeached this testimony with a recorded confession Murray gave police the night of the incident in which he claimed the robbery was Barber’s idea.

Motion to Suppress

          In his first issue, Barber contends the trial court erred in denying his motion to suppress both the pretrial and in-court identifications of him by Roberts because the near-the-scene confrontation at which she first identified him was impermissibly suggestive.  Specifically, Barber contends the pretrial identification was impermissibly suggestive because (1) the witnesses were transported a mile from the crime scene by a police officer who informed them two men had been pulled over in a car matching their description, (2) the witnesses viewed the suspects at the same time and in the presence of several police officers, (3) the suspects were seated together in the back of a police car when they were identified, (4) Barber did not exactly match the description given by one of the witnesses, and (5) the witnesses did not view Barber for a sufficient time or under sufficient conditions to be able to accurately identify him.

When challenging the admissibility of a pretrial identification, a defendant has the burden to show, by clear and convincing evidence based on the totality of the circumstances, that the pretrial identification procedure was impermissibly suggestive, and that it created a substantial likelihood of irreparable misidentification.  Barley v. State, 906 S.W.2d 27, 33–34 (Tex. Crim. App. 1995).  If a court finds that a pretrial identification procedure was impermissibly suggestive, it must then consider the factors enumerated in Neil v. Biggers to determine whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification.  409 U.S. 188, 199, 93 S. Ct. 375, 382 (1972).  These non-exclusive factors are (1) the witness’s opportunity to view the offender, (2) the witness’s degree of attention, (3) the accuracy of the witness’s description of the offender, (4) the level of certainty at the time of confrontation, and (5) the time between the crime and confrontation.  Id. at 199–200, 93 S. Ct. at 382.

The suggestiveness of the pretrial identification procedure in this case is a mixed question of law and fact that does not turn on the evaluation of the credibility and demeanor of the witnesses, so we apply a de novo standard of review to this issue.  Loserth v. State, 963 S.W.2d 770, 772–73 (Tex. Crim. App. 1998); Burkett v. State, 127 S.W.3d 83, 86 (Tex. App.—Houston [1st Dist.] 2003, no pet.).  The Biggers factors are treated as issues of fact and are viewed in the light most favorable to the trial court’s ruling.  Ibarra v. State, 11 S.W.3d 189, 195 (Tex. Crim. App. 1999). The five factors are then reviewed de novo against “the corrupting effect” of the suggestive pretrial identification procedure.  Id. at 195–96; Loserth, 963 S.W.2d at 773–74.  Reliability is the “linchpin” in determining admissibility of such identification testimony.  Barley, 906 S.W.2d at 34. Testimony is reliable, and therefore admissible, if the circumstances reveal no substantial likelihood of misidentification despite a suggestive pretrial procedure.  See Ibarra, 11 S.W.3d at 195. 

A certain amount of suggestiveness is inherent in any “on-the-scene” confrontation in the presence of police officers.  See Stovall v. Denno, 388 U.S. 293, 302, 87 S. Ct. 1967, 1972 (1967); Garza v. State, 633 S.W.2d 508, 512 (Tex. Crim. App. 1982).  Though Barber is correct that one-man showups have been widely criticized as suggestive, their suggestiveness does not necessarily render an in-court identification inadmissible.  See Stovall, 388 U.S. at 302, 87 S. Ct. at 1972; Barley, 906 S.W.2d at 34; Garza, 633 S.W.2d at 512.  Identification at or near the scene of an offense, shortly after its occurrence, may be appropriate because the witnesses’ memories are still fresh and accurate.  Garza, 633 S.W.2d at 512; Powell v. State, 837 S.W.2d 809, 811 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d).  Such a procedure also allows the police to release innocent suspects after exoneration and continue the search while the perpetrator may still be in the area.  Powell, 837 S.W.2d at 811–12.  Thus, we turn to the Biggers factors to determine if, based on the totality of the circumstances, the identification was reliable and therefore admissible.

Roberts testified that she first saw Barber in line inside the store.  When she went to the parking lot, she again saw Barber in his vehicle about ten to fifteen feet away through the open driver’s side window.  After Murray took Patel’s purse and jumped into the car, Barber drove toward Roberts, swerving around her, and Roberts saw him again through the windshield of his vehicle.  Though the incident occurred around nine o’clock at night, Roberts and Officer Kent both testified that the parking lot was well lit.  Not long after the incident, Officer Kent took Patel and Roberts to the location where Barber and Murray had been detained, which was about a mile from the scene of the incident.  Though Roberts and Patel viewed the suspects at the same time, Roberts identified Barber and Murray first, while Patel was unable to identify Barber—thus, Roberts’s identification of Barber was not affected by Patel’s presence. In addition, Roberts and Officer Kent both testified that Roberts was confident in her identification at the scene of the detention. 

Though Barber argues the identification is unreliable because Officer Kent told Roberts and Patel that police had pulled over the car they believed was involved in the robbery, a pretrial identification procedure is not impermissibly suggestive merely because a witness may have believed one of the individuals was a suspect.  Harris v. State, 827 S.W.2d 949, 959 (Tex. Crim. App. 1992); Abney v. State, 1 S.W.3d 271, 275 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d).  Barber also argues the identification was unreliable because Roberts described the assailants as being in their late teens or early twenties, yet Barber and Murray were both thirty-seven at the time of the incident.  However, the fact that Roberts misjudged the ages of the suspects does not render the identification unreliable in light of her several opportunities to view the suspects, her ability to identify them shortly after the incident, and her level of certainty that Barber and Murray were the men involved in the robbery.  Considering the totality of the circumstances, we hold the identification procedure did not give rise to a substantial likelihood of irreparable misidentification.

Furthermore, if an in-court identification is based upon knowledge independent from the allegedly improper pretrial procedure, it is admissible.  See Buxton v. State, 699 S.W.2d 212, 216 (Tex. Crim. App. 1985); Rojas v. State, 171 S.W.3d 442, 449 (Tex. App.—Houston [14th Dist.] 2005, no pet.).  Here, Roberts testified that she saw Barber inside the store, and that she recognized him when she later saw him in the parking lot.  Thus, Roberts’s ability to identify Barber had a source independent of the suggestive identification procedure.  Accordingly, we hold the trial court did not err in denying Barber’s motion to suppress.

Legal and Factual Sufficiency

In his second and third issues, Barber argues the evidence is legally and factually insufficient to support his conviction because no evidence supports the jury’s finding that Barber intended to assist Murray commit a robbery, or even that he knew a robbery was taking place. 

When evaluating the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005).  When evaluating factual sufficiency, we consider all the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt.  Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004).  Evidence may be insufficient if, considered by itself, it is too weak to support the verdict, or if, weighing all the evidence, the contrary evidence is strong enough that the beyond-a-reasonable-doubt standard could not have been met.  Id. at 484–85.  Under either review, the fact-finder is the exclusive judge of the witnesses’ credibility and the weight to be given to their testimony.  Jones v. State, 944 S.W.2d 642, 647–48 (Tex. Crim. App. 1996).

A person is guilty of robbery if, in the course of committing a theft, and with intent to obtain or maintain control of the property, he intentionally, knowingly, or recklessly causes bodily injury to another.  Tex. Pen. Code Ann. § 29.02 (Vernon 2003).  Theft is the unlawful appropriation of another’s property with intent to deprive the owner of the property.  Id. § 31.03 (Vernon Supp. 2005).  The State charged Barber as a party to the offense, so he could be found guilty if, acting with intent to promote or assist the commission of the robbery, he solicited, encouraged, directed, aided, or attempted to aid Murray in the commission of the robbery.  Id. §§ 7.01(a), 7.02(a) (Vernon 2003). Direct evidence of culpability is not necessary to support a conviction; intent or knowledge may be inferred from the acts and circumstances surrounding a crime.  See Guevara v. State, 152 S.W.3d 45, 49–50 (Tex. Crim. App. 2004).

Standing alone, proof that an accused was present at the scene of the crime or assisted the primary actor in making his getaway is insufficient to convict under the law of parties.  Beardsley v. State, 738 S.W.2d 681, 685 (Tex. Crim. App. 1987); Wooden v. State, 101 S.W.3d 542, 546 (Tex. App.—Fort Worth 2003, pet. ref’d).  However, evidence that the defendant was physically present and encouraged commission of the offense by acts, words, or other agreement is sufficient.  Becker v. State, 840 S.W.2d 743, 746 (Tex. App.—Houston [1st Dist.] 1992, no pet.). The evidence must show that, at the time of the offense, the parties acted together, each contributing some part toward the execution of a common purpose.  Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994).  A jury may properly consider the events occurring before, during, and after the commission of the offense, and may rely on a defendant’s actions and other circumstantial evidence demonstrating an understanding and common scheme to commit the offense.  See Salinas v. State, 163 S.W.3d 734, 739–40 (Tex. Crim. App. 2005).  For example, a jury may infer guilt if a defendant flees the scene.  Bigby v. State, 892 S.W.2d 864, 883 (Tex. Crim. App. 1994).  If the record supports conflicting inferences, we presume that the trier of fact resolved any conflict in favor of the prosecution, and we defer to that resolution.  Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).

Here, it is undisputed that Murray committed a robbery.  Murray testified that he grabbed Patel’s purse and struggled to free it from her grip.  Patel and Roberts both identified Murray as the man who took Patel’s purse.  Patel testified that Murray pushed her on top of the cart while taking her purse, and Roberts testified that she saw Patel lying under the cart after the incident yelling “my purse, my purse.”  Roberts testified that, immediately after the incident, Patel’s leg and arm were red from falling, and Patel testified that she suffered bruising from the incident.  Murray, Roberts, and Patel testified that after taking the purse, Murray jumped in a white car, and the car drove away.  Patel, Roberts, and Officer Kent testified that the police found Patel’s purse in the back of Barber’s car. 

Thus, the question before this court is whether the State presented sufficient evidence that Barber intended to assist in the commission of a robbery.  Murray and Roberts both testified that Barber sat in the driver’s seat of the car while Murray took Patel’s purse.  Murray testified that he threw the purse in the car, jumped in the back seat, and told Barber to take off.  Roberts testified that Barber had to swerve around her to exit the parking lot.  Roberts further testified that her husband followed Barber and Murray out of the parking lot to obtain the license plate number, and Murray testified that he told Barber they were being followed.  Roberts testified that Barber’s window was down, and Roberts and Patel both testified that immediately after Murray took her purse, Patel yelled “my purse, my purse.” The jury could infer from this evidence that Barber knew Murray was committing a robbery, and was complicit in Murray’s request to flee the scene.

Barber contends Murray’s testimony at trial that Barber did not know a robbery was being committed until after they fled demonstrates that Barber lacked the requisite intent.  Murray testified that the robbery was his idea, and that he asked Barber to drive him to the store.  When they arrived, Murray exited the car to purchase items he needed while Barber found a place to park.  Murray decided to grab the purse, jumped in the back seat, and told Barber in a “real anxious” tone to take off. 

The State impeached Murray by playing for the jury segments of Murray’s videotaped statement taken immediately after his arrest, wherein he told police that the robbery had been Barber’s idea.[2]  Based on this impeachment evidence, the jury could have disbelieved Murray’s testimony that Barber was not involved.  In addition, Murray’s testimony that he jumped into the back seat of the car shortly after exiting to go shopping, and that Barber complied with Murray’s request that Barber “take off,” both support an inference that Barber knew a robbery was taking place, and intended to assist in the getaway.  Viewed in a light most favorable to the verdict, a rational jury could have found Barber guilty as a party to the robbery.  Moreover, viewed in a neutral light, the jury was rationally justified in finding Barber guilty.  Accordingly, we hold the evidence is legally and factually sufficient to support Barber’s conviction.

Conclusion

We hold the trial court did not err in denying Barber’s motion to suppress the pretrial identification, and the evidence is legally and factually sufficient to support the jury’s verdict.  We therefore affirm the judgment of the trial court.

                                                          Jane Bland

                                                          Justice

Panel consists of Justices Taft, Higley, and Bland.

Do not publish.  Tex. R. App. P. 47.2(b).

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[1] See Neil v. Biggers, 409 U.S. 188, 93 S. Ct 375 (1972).

[2] The State refers to Murray’s statement on the tape that the robbery was Barber’s idea as substantive evidence of intent.  However, the State offered the tape for impeachment purposes only, so the jury could not have considered the substance of the tape as evidence of any elements of the charged offense—nor may we do so on appeal.