The State of Louisiana charged defendant, Shawn J. Becnel, by amended bill of information, with two counts of indecent behavior with a juvenile victim under the age of thirteen, violations of La. R.S. 14:81(H)(2) (counts one and two),
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to which he initially pled not guilty. Defendant filed a motion to suppress identification, upon which the trial court deferred ruling. Defendant subsequently withdrew his not guilty pleas, and pled guilty as charged on both counts pursuant to State v. Crosby, 338 So.2d 584, 591 (La. 1976).
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The trial court sentenced defendant to seven years imprisonment at hard labor on each count, to run concurrently, with two years to be served without the benefit of probation, parole, or suspension of sentence.
Defendant appealed. This court remanded the matter for a ruling on the motion to suppress identification. State v. Becnel, 2020-0587 (La. App. 1st Cir. 4/16/21), 323 So.3d 408, 413-14. On remand, the trial court then denied defendants motion to suppress identification. Defendant then filed the instant appeal, assigning error to the trial courts ruling. For the following reasons, we affirm his convictions and sentences.
STATEMENT OF FACTS 5
Because defendant pled guilty as charged on both counts, the facts were not fully developed in this case. At the Boykin
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hearing, all parties agreed to adopt the facts adduced at the motion to suppress hearing as a factual basis. Accordingly, the following facts are derived from the initial motion to suppress hearing, as well as the motion to suppress identification hearing on remand. On April 26, 2014, officers with the Bogalusa Police Department responded to a report of a man exposing himself to four children in front of a church in Bogalusa, Louisiana. The children described the individual as a white male wearing a backpack and a knit cap, riding a dark bicycle, and accompanied by a small brown and black dog on a leash. Approximately one week later, officers observed an individual matching the childrens description, who was later identified as the defendant, and brought him in for questioning.
During defendants interview, Captain David Miller with the Bogalusa Police Department compiled a photographic lineup of six photographs of white male subjects, including defendant. Captain Miller emailed the lineup to the parents of the four children and instructed them to show the lineup to the children. S.R. and G.W.
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positively identified the defendant as the perpetrator, while the other two children, unidentified males, did not identify anyone. S.R. and G.W. again identified defendant from the photographic lineup in the presence of a detective.
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MOTION TO SUPPRESS IDENTIFICATION
In his sole assignment of error, defendant argues that the trial court erred in denying his motion to suppress identification because the officers employed a suggestive identification procedure. Specifically, he contends that the identifications made in this case are unreliable, as they were sent to the parents of the child victims, who defendant argues may have inadvertently pressured their children to select a person from the lineup. Finally, defendant argues that because Captain Miller only prepared one lineup without rearranging the photos, the parents could have collaborated in choosing defendant as the perpetrator.
Generally, the defendant has the burden of proof on a motion to suppress an out-of-court identification. See La. Code Crim. P. art. 703(D). To suppress an identification, a defendant must first prove that the identification procedure was suggestive. An identification procedure is suggestive if, during the procedure, the witnesss attention is unduly focused on the defendant. Even when suggestiveness of the identification process is proven by the defendant or presumed by the court, the defendant must also show there was a substantial likelihood of misidentification as a result of the identification procedure. State v. Higgins, 2003-1980 (La. 4/1/05), 898 So.2d 1219, 1232-33, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005); State v. Barnett, 2014-1458 (La. App. 1st Cir. 4/24/15), 2015 WL 1884351, *1-2 (unpublished), writ denied, 2015-0985 (La. App. 1st Cir. 4/15/16), 191 So.3d 1033.
Courts look to several factors to determine, from the totality of the circumstances, if the suggestive identification presents a substantial likelihood of misidentification. These factors include: (1) the opportunity of the witness to view the defendant at the time of the crime; (2) the witnesss degree of attention; (3) the accuracy of the witnesss prior description of the defendant; (4) the level of certainty demonstrated at the confrontation; and (5) the time between the crime and the confrontation, Barnett, 2015 WL 1884351 at *2. See also Manson v. Brathwaite, 432 U.S. 98, 114-15, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977).
Trial courts are vested with great discretion when ruling on a motion to suppress. When a trial court denies a motion to suppress, factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial courts discretion, i.e., unless such ruling is not supported by the evidence. However, a trial courts legal findings are subject to a de novo standard of review. In determining whether the ruling on the defendants motion to suppress was correct, we are not limited to the evidence adduced at the hearing on the motion. We may consider all pertinent evidence given at the trial of the case. Barnett, 2015 WL 1884351 at *2.
At the hearing on the motion to suppress identification, Captain Miller testified that he constructed a lineup consisting of six photographs, including defendants drivers license photograph, on a single page. Using a pool of drivers license photographs maintained in the police departments computer database, Captain Miller retrieved the photographs of five individuals who matched defendants appearance, background, and age. While defendant was still being interviewed, Captain Miller emailed the lineup to the parents of G.W. and the two boys and asked them to show the lineup to the children. He then sent a copy of the email to S.R.’s father, whom he knew personally, via text message. In the text message, he advised S.R.’s father that it was urgent for S.R. to look at the lineup and see if she recognized anyone, as he had “the guy” in the interrogation room. For each lineup he sent to the parents, Captain Miller did not advise the parents of who defendant was or where defendant was positioned in the lineup. Finally, Captain Miller explained that the parents would have no reason to know who defendant was when they viewed the lineup, as he was not under arrest, and neither his name nor his picture were on the news.
After both G.W. and S.R. positively identified the defendant, Captain Miller asked their parents to bring them to their local police station to make an additional identification in the presence of a detective. S.R., who was local to Bogalusa, met with Captain Miller at the Bogalusa Police Department, where she again positively identified defendant from the lineup without any hesitation. G.W. met with a detective at the Meridian Police Department, where she likewise identified the defendant from the lineup.
Strict identity of physical characteristics among the persons depicted in a photographic array is not required; however, there must be sufficient resemblance to reasonably test the identification. State v. Bright, 98-0398 (La. 4/11/00), 776 So.2d 1134, 1145; Barnett, 2015 WL 1884351 at *3. This determination is made by examining articulable features of the persons pictured such as height, weight, build, hair color, facial hair, skin color and complexion, and the shape and size of the nose, eyes, and lips. Barnett, 2015 WL 1884351 at *3. Herein, a review of the lineup itself reveals that all of the individuals appear to have short hair, the same hair color, and similar complexion and body type. Additionally, the background of each picture is the same color, as the photographs are standard drivers license photographs. Further, no individual appears to be wearing any item of clothing that would draw undue attention to that person. A fair viewing of the photographic lineup does not support a conclusion that the lineup unduly focuses attention on the defendant. See Bright, 776 So.2d at 1145. Accordingly, the identification procedure used in the instant case was not suggestive.
Moreover, even assuming arguendo that the photographic lineup was suggestive, defendant failed to show that there was a substantial likelihood of misidentification as a result of the identification procedure. At the time of the incident, the children had an opportunity to observe defendants features well enough to provide a detailed description. Defendant was present for some time, as he not only exposed himself, but he also began to masturbate and make lewd comments before the children ran away. Due to defendants alarming behavior, the children watched defendant with a high degree of attention, noting details concerning his clothing, mode of transportation, and the dog he had with him. Furthermore, the childrens initial description of the perpetrator was in fact reliable, as it led officers to question defendant, who matched the description. Finally, the identifications took place approximately one week after the incident, and both S.R. and G.W. identified defendant immediately, without hesitation and without guidance. Therefore, even if we were to assume that the lineup was suggestive, the identification of defendant was reliable. See State in the Interest of D.B., 2022-0028 (La. App. 1st Cir. 7/29/22), 2022 WL 3010210, *5 (unpublished); Barnett, 2015 WL 1884351 at *3.
Based on the totality of the individuals’ characteristics in the photographic lineup and Captain Millers testimony, we find no abuse of discretion in the trial courts determination that the identification procedure was not suggestive and did not present a substantial likelihood of misidentification. See Barnett, 2015 WL 1884351 at *3, Although the initial identifications of defendant occurred outside the presence of a detective, Captain Miller testified that he did not suggest that defendant was the perpetrator in any way. Moreover, the trial court specifically found that the procedure used was reasonable and that the evidence presented failed to establish that the procedure used was suggestive or that it increased the possibility of a misidentification. Given the above, the trial court made a finding of fact based on testimony and an evaluation of credibility. Consequently, we find that the trial court did not abuse its discretion in denying defendants motion to suppress identification. See Higgins, 898 So.2d at 1233; Barnett, 2015 WL 1884351 at *3. This assignment of error is without merit.
CONVICTIONS AND SENTENCES AFFIRMED.
FOOTNOTES
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. The State of Louisiana also charged defendant, by amended bill of information, with one count of possession of pornography involving juveniles, a violation of La. R.S. 14:81.1(A)(1) (count three). The State of Louisiana severed count three from counts one and two. After a trial, the jury found defendant guilty of the lesser offense of attempted possession of pornography involving juveniles, a violation of La. R.S. 14:81,1(A)(1) and La. R.S. 14:27. Defendant appealed, and this court affirmed his conviction and sentence. State v. Becnel, 2016-1297 (La. App. 1st Cir. 4/20/17), 220 So.3d 27, writ denied, 2017-1023 (La. 3/9/18), 238 So.3d 451.
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. While a plea of guilty normally waives all non-jurisdictional defects in the proceedings prior to the plea, a plea under Crosby allows appellate review if, at the time the plea is entered, the defendant expressly reserves his right to appeal a specific adverse ruling in the case. Crosby, 338 So.2d at 591.
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. In Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969), the United States Supreme Court emphasized three federal constitutional rights that are waived by a guilty plea: the privilege against self-incrimination, the right to a trial by jury, and the right to confront ones accusers. Because a plea of guilty waives these three fundamental rights of an accused, due process requires that the plea be a voluntary and intelligent waiver of these rights in order to be valid. See also State v. Galliano, 396 So.2d 1288, 1290 (La. 1981).
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. The transcript of the Boykin hearing refers to G.W. as “B.W.” Herein, however, we will refer to G.W. by the initials as reflected in the amended bill of information.
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. While S.R. lives in Bogalusa and made this identification in front of Captain Miller, G.W. lives in Meridian, Mississippi. Captain Miller emailed the lineup to a detective in Meridian, who showed the lineup to G.W.
WELCH, J.
Holdridge, J., concurs without reasons.