Law School Case Brief
State v. Johnson - 598 So. 2d 1152 (La. Ct. App. 1992)
A pre-trial identification is not a prerequisite to in-court identification. It is established in the jurisprudence of Louisiana that a witness' failure to identify an accused at a pretrial lineup does not render a later in-court identification inadmissible and that failure to identify a suspect at a pretrial lineup is a matter which addresses itself to the weight of the witness' testimony rather than its admissibility. The defendant's attack on the in-court identification of the defendant by the victim addresses itself to the credibility of his testimony rather than to the admissibility of his in-court identification. The weight to be given a witness' testimony is an issue which must be determined by the finder of fact.
Richard Barrios was working as cashier at a convenience store when a suspect entered the store, stabbed Barrios in the right hand with a red ink pen, took the money from the cash register and then ran out of the store. Defendant Fred Johnson, Jr., who matched the physical and clothing description given by Barrios to responding police officers by Barrios, was arrested a few hours after the robbery. During the subsequent investigation, the police gave Barrios a book of pictures to view and told him that a picture of the suspect was contained in the book. Barrios was unable to pick out the assailant. Sometime later Barrios was given a photographic lineup to view that contained only five photographs. Barrios was again told by the police that one of the photographs was that of the suspect. Barrios was unable to pick out the assailant. Subsequently, Barrios was given the opportunity to view a live lineup; Johnson was one of five people in the lineup. Barrios identified another person in the lineup as the assailant, not Johnson. At trial in Louisiana state court, and over Johnson's objection, the trial court permitted Barrios to identify Johnson as the assailant in court. A jury found Johnson guilty of armed robbery, and was sentenced to 15 years' hard labor. Johnson appealed, arguing that after three unsuccessful attempts at identification, the only way Barrios would have been able to identify his assailant in court was to deduce that the assailant must be the defendant seated with the defense attorney.
(a) Did the trial court err in allowing Barrios to make an in-court identification of Johnson? (b) Was the use of a pen a dangerous weapon?
(a) No; (b) Yes.
The court affirmed Johnson's conviction, however the court, sua sponte, ordered that Johnson's sentence be amended to give him credit for time served prior to the execution of his sentence. The court ruled: (a) A pre-trial identification was not a prerequisite to an in-court identification. Louisiana jurisprudence established that a witness' failure to identify an accused at a pretrial lineup did not render a later in-court identification inadmissible. As noted by the trial court, cross-examination could cure any possible fatal defect, and in Johnson's case, his defense attorney did an excellent job on cross-examination and cured any defect that may have existed as to the in-court identification. (b) Although Johnson argued that the ink pen was not a dangerous weapon for purposed of the armed robbery statute, the evidence presented by the State supported the opposite conclusion. Barrios testified that Johnson stabbed him in the hand with the ink pen; the evidence showed that the stabbing was done to facilitate the robbery. The pen broke Barrios' skin, was stuck about one-quarter of an inch into his hand and caused him to bleed. The court found that the pen in the manner used, i.e., stabbing, could readily be described as an instrumentality calculated or likely to produce great bodily harm.
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