State of Louisiana Versus Felton Thompson

STATE OF LOUISIANA NO. 22-K-497
VERSUS FIFTH CIRCUIT
FELTON THOMPSON COURT OF APPEAL
STATE OF LOUISIANA
ON APPLICATION FOR SUPERVISORY REVIEW FROM THE
TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 19-534, DIVISION "N"
HONORABLE STEPHEN D. ENRIGHT, JR., JUDGE PRESIDING
January 18, 2023
STEPHEN J. WINDHORST
JUDGE
Panel composed of Judges Stephen J. Windhorst,
Hans J. Liljeberg, and John J. Molaison, Jr.
AFFIRMED
SJW
HJL
JJM
COUNSEL FOR PLAINTIFF/RESPONDENT,
STATE OF LOUISIANA
Thomas J. Butler
COUNSEL FOR DEFENDANT/RELATOR,
FELTON THOMPSON
Richard J. Bourke
Russell D. Barksdale
WINDHORST, J.
Defendant, Felton Thompson, seeks supervisory review of the trial court’s
denial of his motion to suppress the identification and granting of the State’s motion
to exclude the expert from testimony at the suppression hearing. For the following
reasons, we affirm the trial court’s rulings.
FACTS and PROCEDURAL HISTORY
On October 7, 2016, an unknown black male forced his way into the victim’s
apartment at gunpoint, physically assaulted her, and covered her face before sexually
assaulting her. The victim described her assailant as a black male, 5’10” to 6’ tall,
age 35 to 40, and 160 to 170 pounds. The victim stated that the assailant had a lazy
eye. On October 13, 2016, the victim provided an audiotaped statement to police in
which she described her assailant as “cross-eyed in one eye on the right side.”
On October 19, 2016, the victim viewed a six-man lineup, not including
defendant, and did not identify anyone as her assailant. On December 22, 2016, the
victim assisted the police in completing a sketch of her assailant, and a wanted flyer
was prepared with the sketch. On September 28, 2017, the victim viewed a second
six-man lineup, which included five-filler photographs and a photograph of
defendant. The victim picked defendant out of the lineup, after which defendant was
arrested.
On January 28, 2019, the District Attorney charged defendant with the
aggravated burglary and sexual battery. On March 8, 2019, defendant filed omnibus
motions, including a motion to suppress the identification. After a hearing on
November 14, 2019, the trial court denied the motion to suppress the identification.
On June 6, 2022, defendant re-urged his motion to suppress the eyewitness
identification, asserting that the nature of the identification process was suggestive.
Defendant argued that the identification process was suggestive because the
photograph of defendant was the only photograph depicting a man with a right eye
22-K-497 1
crossed to the inside. The State objected to reopening the trial court’s consideration
of the motion to suppress the identification, but the trial court allowed it to be
reopened. On August 29, 2022, the State filed a motion in limine to exclude
defendant’s offered expert testimony on memory and eyewitness identifications.
After a hearing on August 30, 2022, the trial court denied the motion to
suppress the identification and granted the State’s motion to exclude the expert from
testifying at the hearing on the motion to suppress the identification.
In his writ application, defendant argues that the trial court erred by denying
the motion to suppress the identification and granting the State’s motion to exclude
the expert from testifying at the suppression hearing. Defendant raises five
assignments of error, including: (1) the district court erred in applying the incorrect
legal standard when determining whether the “6-pack” was suggestive; (2) the
district court abused its discretion in holding that the “6-pack” lineup was not
suggestive; (3) the district court erred in failing to have regard to relevant
considerations in determining whether there was a risk of misidentification; (4) the
district court abused its discretion in finding that there was not a risk of
misidentification; and (5) the district court erred when it refused to allow the defense
to present relevant evidence, thereby denying the defendant a fair opportunity to be
heard.
LAW and ANALYSIS
The Motion to Suppress
Defendant argues that the trial court erred in denying the motion to suppress
because it applied the incorrect standard to both prongs of the suppression test,
namely, the suggestiveness of the identification procedure and the likelihood of
misidentification. He further argues that the trial court failed to consider evidence
of the risk of misidentification as required by the Manson1 factors and that it did not
properly weigh the corrupting effect of the suggestive identification procedure.
22-K-497 2
In order to suppress an identification, a defendant has the burden of first
proving that the identification procedure was suggestive. State v. Higgins, 03-1980
(La. 4/1/05), 898 So.2d 1219, 1232, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163
L.Ed.2d 187 (2005). A photographic lineup is suggestive if the photographs display
the defendant in such a manner that the witness’ attention is unduly focused on the
defendant or if the individuals in the lineup lack a sufficient resemblance of
characteristics and features. State v. Grimes, 09-2 (La. App. 5 Cir. 5/26/09), 16
So.3d 418, 429, writ denied, 09-1517 (La. 3/12/10), 28 So.3d 1023. A strict identity
of physical characteristics among the persons depicted in the photographic array is
not required; all that is required is a sufficient resemblance to reasonably test the
identification. Id. Courts make this determination by examining articulable features
of the persons’ pictures such as height, weight, build, hair color, facial hair, skin
color and complexion, and the shape and size of the nose, eyes, and lips. State v.
Bradley, 11-1060 (La. App. 5 Cir. 9/25/12), 99 So.3d 1099, 1105-1106, writ denied,
12-2441 (La. 5/3/13), 113 So.3d 208.
Even if an identification process is suggestive, the defendant must also show
there was a substantial likelihood of misidentification based on the identification
procedure. Id. at 1106. Courts examine various factors to determine, from the
totality of the circumstances, whether the suggestiveness presents a substantial
likelihood of misidentification including: (1) the witness’ opportunity to view the
criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy
of his prior description of the criminal; (4) the level of certainty demonstrated at the
confrontation; and (5) the time between the crime and the confrontation. State v.
Honore, 09-313 (La. App. 5 Cir. 1/12/10), 31 So.3d 485, 497.
A trial court’s determination of the admissibility of an identification should
be accorded great weight and will not be disturbed on appeal unless the evidence
reveals an abuse of discretion. Id.22-K-497 3
In denying the motion to suppress identification in the present case, the trial
court found that it was not suggestive because the six individuals were all the same
size, looked similar to one another, and all had a lazy eye. The trial court also found
that the significant similarities between the composite sketch prepared with the
victim’s input and defendant’s photograph supported finding the chance of
misidentification was slight.
In State v. Brown, the defendant claimed that the photographic lineup shown to
the victim was impermissibly suggestive because he was the only subject in the lineup
missing an eye. State v. Brown, 03-897 (La. 4/12/05), 907 So.2d 1, cert. denied, 547
U.S. 1022, 126 S.Ct. 1569, 164 L.Ed.2d 305 (2006). In that case, the victim gave the
police a detailed description of his attacker immediately following his ordeal. Id. at
17. The police subsequently showed the victim a six-person photographic lineup
containing the defendant’s picture, and the victim selected the defendant’s photo from
the lineup very quickly. Id. The victim testified that he had good eyesight and that he
obtained a good look at the defendant during the attack. Id.
In Brown, the Louisiana Supreme Court found that the photographic lineup
was fair because the State provided fill-in subjects with similar hair, skin tone, facial
hair, and some distinguishing eye feature that would be reasonably comparable to
that of the defendant’s missing eye. Id. Specifically, the upreme court noted that
the photographic lineup included one subject whose left eye was clouded white, one
who appeared to be blind, one who appeared to have a lazy eye, two subjects who
appeared to be droopy-eyed as though under the influence of drugs or alcohol, and
only one subject with no apparent ocular difficulties.
Although, in Brown, the Supreme Court found the lineup fair, it proceeded to
consider whether there was a substantial likelihood of misidentification if the lineup
was considered suggestive. Based on the totality of the circumstances, the Supreme
Court found that no substantial likelihood of misidentification was present. The
22-K-497 4
victim gave a detailed description of his attacker that included distinguishing features
in addition to the defendant’s missing eye, and that the victim was unwavering in his
positive identification. Thus, the Supreme Court found that the trial court did not err
in denying the defense motion to suppress identification. Id. at 17-18.
Taking into consideration the pertinent factors and the specifics facts of this
case, we do not find the lineup at issue suggestive. Based on the victim’s detailed
description of her attacker shortly after her ordeal, including that he had a lazy eye,
the photographic lineup was set up by entering the different features of defendant to
match his height, weight, and other characteristics. Similar to Brown, supra, the
photographic lineup shows that the fill-in subjects had some sort of distinguishing
eye feature, such has a lazy or crossed eye. In addition, the other suspects in the
line-up had similar hair, skin tone, and facial features. We therefore cannot find that
the trial court abused its discretion in ruling that photographic lineup was fair and
not unduly suggestive. To require that the Jefferson Parish Sheriff’s Office find
multiple suspects with features similar to defendant and a crossed right eye would
be unreasonable. See, State v. Roussell, 12-1792 (La. App. 1 Cir. 7/25/13), writ
denied, 13-2047 (La. 3/14/14), 134 So.3d 1193, and writ denied, 13-2070 (La.
3/14/14), 134 So.3d 1193 (“To require that the photographic display include other
persons who look similar to the defendant and have a “teardrop tattoo” is
unreasonable.”)
Furthermore, even if the photographic lineup constituted a suggestive
procedure with only one person having a right crossed eye, based on a totality of the
circumstances, the facts do not show that there was a substantial likelihood of
misidentification. The victim had a clear opportunity to view defendant as he
approached her, when he followed her up the stairs, and when he attacked her. The
police report shows that the victim provided a detailed description of her perpetrator
to the police. The victim was also able to provide the police enough information for
22-K-497 5
them to create a composite sketch of the perpetrator, which the trial judge found very
similar to defendant. In addition, although approximately one year passed between
the crime and the confrontation, the victim was very certain that defendant was the
perpetrator.
For the above reasons, we find that the trial court did not abuse its discretion
by denying the motion to suppress the identification in the photographic lineup.
Motion to Exclude Expert Testimony
Defendant also argues that the trial court erred when it excluded the expert
testimony of Dr. Nancy Franklin regarding memory and eyewitness identification.
The trial judge excluded Dr. Franklin’s testimony, reasoning that Dr. Franklin could
not offer him anything that would be in any way meaningfully helpful.
La. C.E. art. 702 provides the law regarding testimony by experts as follows:
A. A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(1) The expert’s scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or to
determine a fact in issue;
(2) The testimony is based on sufficient facts or data;
(3) The testimony is the product of reliable principles and
methods; and
(4) The expert has reliably applied the principles and methods to
the facts of the case.
B. This Article shall also govern expert witnesses on the issue of
memory and eyewitness identification. In a criminal case, if a party
seeks to offer the testimony of a memory and eyewitness
identification expert under this Article, such expert testimony may
be considered for admission only if all provisions of Paragraph A of
this Article are satisfied. A memory and eyewitness identification
expert’s testimony may not be admitted under this Article if there is
physical or scientific evidence that corroborates the eyewitness
identification of the defendant. An expert’s testimony admitted
under this Paragraph shall not offer an opinion as to whether a
witness’s memory or eyewitness identification is accurate.
The trial court’s decision to admit or exclude expert testimony is subject to
the “abuse of discretion” standard. State v. Johnson, 10-209 (La. App. 5 Cir.
22-K-497 6
10/12/10), 52 So.3d 110, 121, writ denied, 10-2546 (La. 4/1/11), 60 So.3d 1248.
Although La. C.E. art. 702 was amended relative to the consideration of expert
testimony on memory and eyewitness identification, the Louisiana Supreme Court
has held that it:
has long been reluctant to allow experts to offer opinions on the
credibility of another witness for fear of the expert invading what is
considered the exclusive province of the jury. Moreover, the concept
of promoting battles of experts over whether the testimony of every
witness is truthful and reliable is not desirable. These considerations
are especially compelling in cases involving eyewitness
identifications where any alleged deficiencies could easily be
highlighted through effective cross-examination and artfully crafted
jury instructions.
State v. Young, 09-1177 (La. 4/5/10), 35 So.3d 1042, 1050.
In this case, the trial court granted the State’s motion to exclude the
expert’s testimony at the suppression hearing, concluding that Dr. Franklin
could not offer it any information of which he was not already aware or which
would be meaningfully helpful. Upon review, we cannot find the trial court
abused its discretion in granting the motion to exclude the expert’s testimony.
The trial court made it clear that the expert’s testimony would not be helpful
to the court in ruling on the motion to suppress. Further, the trial court
indicated that if Dr. Franklin had been present at the hearing, it would have
conducted a Daubert hearing regarding her ability to testify before the jury.
Thus, it appears that consideration of whether to allow Dr. Franklin to testify
at trial before the jury is still open for consideration.
Accordingly, for the reasons stated, trial court’s rulings denying
defendant’s motion to suppress identification and granting the State’s motion
to exclude the expert from testimony are affirmed.
AFFIRMED
1
Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).
22-K-497 7
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
INTERIM CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
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www.fifthcircuit.org
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I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
JANUARY 18, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
22-K-497
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE STEPHEN D. ENRIGHT, JR. (DISTRICT JUDGE)
THOMAS J. BUTLER (RESPONDENT) RICHARD J. BOURKE (RELATOR) RUSSELL D. BARKSDALE (RELATOR)
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