
    STATE of Louisiana v. Bryan Anthony GOLDEN
    NO. 2016 KA 1659
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: JUNE 02, 2017
    
      Allen J. Myles, Plaquemine, LA, Attorney for Defendant-Appellant, Bryan Anthony Golden
    Ricky L. Babin, District Attorney, Donald D. Candell, Assistant District Attorney, Gonzales, LA, Attorneys for Appellee, State of Louisiana
    BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
   HIGGINBOTHAM, J.'

^Defendant, Bryan Anthony Golden, was charged on two counts by bill of information with armed robbery involving the use of a firearm, violations of La. R.S. 14:64 (count one) and 14:64.3 (count two). He pled not guilty. Defendant waived, his right to a jury trial, and this matter was tried as a bench trial. Defendant was found guilty as charged. Defendant filed a motion for new trial, which the trial court denied. Thereafter, the trial court sentenced defendant on the armed robbery conviction (count one) to fifteen years at hard labor, without the benefit of parole, probation, or suspension of sentence. For the use of a firearm during the armed robbery (count two), the trial court imposed an additional five years at hard labor, without the benefit of parole, probation, or suspension of sentence. The sentences imposed were ordered to be served consecutively. Defendant now appeals, alleging two assignments of error.

FACTS

Around 12:30 p.m. on February 19, 2014, a subject wearing a motorcycle helmet and brandishing a handgun entered the Red River Bank on La. Hwy. 73 in Geismar. The individual, who tellers could identify only as a black male, jumped the teller line counter and began to pull cash from the bank’s drawers. Because the bank had recently received a cash delivery, the subject eventually fled with almost fifty thousand dollars. Witnesses outside the bank described seeing a gold, four-j ¡floor vehicle fleeing the área at a high rate of speed. One of the witnesses described seeing a helmeted person sitting inside the passenger’s side of the vehicle.

Following the robbery, another witness observed an abandoned vehicle on Coco Road and informed the police about the car. Lieutenant Aaron Hooper, from Hunt Correctional Center, assisted the Ascension Parish Sheriffs Office by utilizing one of his tracking dogs in the area of the abandoned vehicle, a stolen gold Chevrolet Malibu. Lieutenant Hooper’s dog established a track which led to a trailer located at 36695 River Oaks Road, where an individual named Travis West lived. Lieutenant Hooper and his dog then backtracked to the vehicle. In traversing through the woods, Lieutenant Hooper located sweatpants, a t-shirt, and a pair of shoes neatly stacked along the trail. A subsequent search of the vehicle revealed a cardboard money divider used by one of the bank’s tellers.

In their investigation, the police spoke with West several times. As a result of these interviews, the police developed as suspects Emerson and defendant. Emerson is West’s cousin, and subsequent DNA testing could not exclude him as a contributor to a profile discovered on some of the clothing recovered from the woods. West later pled guilty to accessory after the fact to- armed robbery, and Emerson and defendant were tried together in the instant matter.

SUFFICIENCY OF THE EVIDENCE

In his first assignment of error, defendant contends that the evidence presented at trial was insufficient to support his convictions. In particular, he argues that the state’s evidence regarding his identity as the perpetrator who entered the bank was purely circumstantial and failed to exclude every reasonable hypothesis of innocence,

14A conviction based on insufficient' evidence cannot stand, as it violates due process. See U.S. Const, amend. XIV; La. Const, art. I, § 2. In reviewing claims challenging the sufficiency of the evidence, this court must consider whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See also La. Code Crim. P. art. 821(B); State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 660; State v. Mussall, 523 So.2d 1305, 1308-09 (La. 1988). The Jackson standard of review, incorporated in Article 821(B), is an objective standard for testing the overall evidence, ..both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the fact finder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. State v. Patorno, 2001-2585 (La.App. 1 Cir. 6/21/02), 822 So.2d 141, 144.

When a conviction is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Wright, 98-0601 (La.App. 1 Cir. 2/19/99), 730 So.2d 485, 487, writs denied, 99-0802 (La. 10/29/99), 748 So.2d 1157, and 2000-0895 (La. 11/17/00), 773 So.2d 732.

Defendant does not dispute that an armed robbery took place at the Red River Bank on February 19, 2014. Rather, he argues that the state failed to prove his identity as the perpetrator. When the key issue is the defendant’s identity as the perpetrator, rather than whether the crime was committed, the state is required to negate any reasonable probability of misidentification. Positive identification by Lonly one witness is sufficient to support a conviction. It is the factfinder who weighs the respective credibilities of the witnesses, and this Court will generally not second-guess those determinations. State v. Hughes, 2005-0992 (La. 11/29/06), 943 So.2d 1047, 1051; State v. Davis, 2001-3033 (La.App. 1 Cir. 6/21/02), 822 So.2d 161, 163-64.

None of the tellers who witnessed the robbery or external witnesses who witnessed the flight could identify any of the perpetrators. Further, the only significant DNA evidence introduced at trial linked co-defendant Emerson to some of the clothing recovered along the scent trail from the gold Chevrolet Malibu to West’s trailer. Neither the weapon nor the motorcycle helmet used by the perpetrator were ever recovered.

Defendant turned himself in to the police on February 21, 2014. After being Mirandized, he gave an unrecorded statement. In the statement, defendant described that he was napping during the time of the robbery. Defendant said that when he woke up around 2:00 or 3:00 p.m., he had a friend bring him to Gonzales Motors, where he bought a blue Mercury Sable for $3,300 in cash. He then went to Best Buy in. Baton Rouge, where he spent another $1,000 in cash. Defendant told the detectives that he then partied because his birthday was the week before. Defendant explained that he had gotten some money from an insurance settlement in the fall of 2013 and another $1,000 for driving trucks. Defendant advised that he had a bank account with United Community Bank (UCB).

The state called a UCB employee to testify at trial. The employee assisted in reviewing defendant’s bank records. According to the employee, defendant made a $10,000 deposit on November 18, 2013, but his balance was just under $600 on December 31, 2013. In addition, defendant made a $1,000 cash deposit after 4:00 p.m. on the •date of the armed robbery. The UCB employee recalled defendant’s deposit on this day and testified that the bills deposited were new $100 bills that stuck together. A .manager at Gonzales Motors also testified at trial regarding | defendant’s purchase of the Mercury Sable. The manager described that defendant paid in cash with new $ 100 bills that stuck together.

At the time of the robbery, defendant lived at Twin Lakes Mobile Home Park. The park’s office manager testified at trial that defendant routinely had trouble paying his rent on time from the time he began living there in March or April of 2013.

Detective Brad Gomez of the Ascension Parish Sheriffs Office was the lead investigator in the armed robbery. He participated in executing a search warrant of defendant’s trailer. During a search of the trailer, the police recovered numerous items with defendant’s name on them. Also recovered from defendant’s trailer were three Best Buy receipts from the evening of February 19, 2014, totaling approximately $1,000 in cash expenditures. The search also revealed an empty motorcycle helmet bag, as well as a large, zippered black bag.

West testified at trial. He described that on the day of the incident, he was riding around the area of his home with friends when he saw his cousin, co-defendant Emerson, walking on La. Hwy. 73. West described that he picked up Emerson and began to drive him in the direction of Emerson Road when he noticed defendant walking out of the woods carrying a large bag or shirt. According to West, defendant got into the car and said to Emerson that he thought he had left DNA behind. West stated that he drove defendant and Emerson to Emerson Road, where he let them out of the vehicle. West admitted to pleading guilty to accessory after the fact, though he stated he did so on the advice of counsel.

On March 11, 2014, Marcus Sterling wrote a letter addressed to Ascension Parish Sheriff Jeff Wiley. Sterling was being jailed with defendant and indicated in the letter that defendant had told him some of the details of the bank robbery. Detective Gomez received the letter as part of his investigation and found it to contain details of the offense that were not released in a Crime Stoppers bulletin. Among these details were: the “black teller” had fallen during the robbery, the | .¿fleeing subject dropped some money outside the bank, the subject wore a mask under his helmet, a different teller helped the suspect retrieve the money, guns found in defendant’s home did not include the gun used in the robbery, the suspect received a ride from West in a gold car (West owned a gold Nissan Altima), the tellers were two white women and a black woman, and defendant purchased a new cell phone after the robbery. Sterling later met with Detective Gomez and made a statement concerning his knowledge reflected in the letter.

Sterling also testified at trial and reiterated some of the details included in the letter; he claimed not to remember other details. Sterling indicated that defendant told him he stole over $40,000, splitting half with co-defendant Emerson. Defendant told Sterling that he gave his money to “his baby mamma,” and Emerson buried his share. A search of defendant’s girlfriend’s residence, conducted three months after the robbery, did not reveal any evidence. Defendant did not testify at trial. To impugn Sterling’s credibility, defendant called Sterling’s ex-girlfriend, who stated that Sterling was not truthful and would make up stories to get out of jail. Co-defendant Emerson called two witnesses who presented alibi evidence on his behalf.

Following the presentation of evidence, the trial court orally set forth the reasons for its verdict. The trial court first noted that defendant shared some of the physical characteristics of the suspect who went inside the bank, presumably his skin color and height. The trial court noted that a helmet bag was found in defendant’s home, and defendant spent over $4,000 on the day of the robbery and also deposited $1,000 in new $100 bills. The court highlighted defendant’s statement that he left his DNA and credited West’s testimony-regarding witnessing defendant carry. a black sack.

The trial court then turned to the Sterling evidence. While the trial court found Sterling’s credibility to leave “a lot to be desired,” it noted the ability to believe some testimony while disbelieving other statements. The trial court found that Sterling’s | «letter to the sheriff contained statements of fact that he otherwise could not have known, and it chose to credit his recitation of those facts.

In his brief, defendant seizes upon a statement by the trial court that the'evidence does not exclude every reasonable hypothesis of innocence. However, a review of the context of this statement indicates it to be a simple misstatement rather than a finding. The trial court stated;

And basically, when we look at all the circumstantial evidence in order to convict, the Court must exclude every reasonable hypothesis of innocence. In this case the circumstantial evidence when taken as a whole does not exclude every reasonable hypothesis of innocence and the Court finds Bryan Golden guilty of armed robbery and that the robbery was committed with a firearm.

(Emphasis added). The trial court clearly recited the proper applicable law and then determined defendant to be guilty as charged, indicating that the emphasized “not” was unintended.

The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. The trier of fact’s determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a factfinder’s determination of guilt. State v. Taylor, 97-2261 (La.App. 1 Cir. 9/25/98), 721 So.2d 929, 932. We-are constitutionally precluded from acting as a “thirteenth juror” in assessing what weight to give evidence in criminal cases. See State v. Mitchell, 99-3342 (La. 10/17/00), 772 So.2d 78, 83.

Viewed in the light most favorable to the state, the evidence establishes that on February 19, 2014, defendant was in possession of a substantial amount—at least $5,000—of new $100 bills. He possessed and spent this cash despite apparently |shaving no stable job or other source of income. On this date, West saw defendant holding a large black bag, similar to one which was later recovered from defendant’s home. Additionally, a search of defendant’s home led the police to discover a bag for a motorcycle helmet, and the evidence indicates that the suspect in the bank robbery wore a motorcycle helmet. In addition, upon entering West’s vehicle, defendant expressed his concern about leaving behind his DNA. Finally, Sterling informed the police of information that defendant told him- regarding .the robbery, and this information was of the-kind not released by the detectives to the public. The trial court’s ultimate verdicts largely reflect credibility determinations, which are entitled to great deference on appeal.

When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Moten, 510 So.2d 55, 61 (La. App. 1st Cir.), writ denied, 514 So.2d 126 (La. 1987). The trial court’s verdict in this case reflected the reasonable conclusion that defendant was the individual who conducted the robbery of the Red River Bank. In finding defendant guilty, the trial court rejected the theory of defendant’s complete non-involvement. See Id. In accepting a hypothesis of innocence that was not unreasonably rejected by the factfinder, a court of appeal impinges on a factfinder’s discretion beyond the extent necessary to guarantee the fundamental protection of due process of law, See State v. Mire, 2014-2295 (La. 1/27/16), — So.3d -, -, 2016 WL 314814, *4 (per curiam).

After a thorough review of the record, we find that the evidence supports the trial court’s verdict finding defendant guilty of armed robbery involving the use of a firearm. We are convinced that viewing the evidence in the light most favorable to the prosecution, and to the exclusion of every reasonable hypothesis of innocence, any rational trier of fact could have found beyond a reasonable doubt that defendant 11ltwas guilty of these offenses. See State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 422 (per curiam).

This assignment of error is without merit.

FAILURE TO DISCLOSE BRADY INFORMATION

In his second and final assignment of error, defendant argues that the state failed to disclose information regarding any leniency given to the informant, Sterling, in exchange for his'testimony.

The rule established in Brady v. Maryland is that upon request, the state must produce evidence that is favorable to the accused where it is material to guilt or punishment. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963). See also State v. Bright, 2002-2793 (La. 5/25/04), 875 So.2d 37, 41. Failure to do so violates a defendant’s due process rights. Bright, 875 So.2d at 41. The Brady rule applies to both exculpatory and impeachment evidence, including evidence that impeaches the testimony of a witness when the reliability or credibility of that witness may determine guilt or innocence. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985); Bright, 876 So.2d at 41; State v. Knapper, 579 So.2d 956, 959 (La. 1991). A Brady violation occurs when the “evidentiary suppression undermines confidence in the outcome of the trial.” State v. Garcia, 2009-1578 (La. 11/16/12), 108 So.3d 1, 37, cert. denied, — U.S. -, 133 S.Ct. 2863, 186 L.Ed.2d 926 (2013) (quoting Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995)).

Defendant argues that he was not informed in a timely manner that the state agreed to nolle-prosse an armed robbery charge pending against Sterling on the date he made his statement to the police, resulting in his release from jail. However, contrary to defendant’s assertion, the record does not establish that the state made a deal with Sterling to obtain his testimony.

On the morning that trial began, defense counsel requested any Brady maternal that had not yet been given. The state responded that the only deal made In was one with West, who had already pled guilty. The state noted that a charge against Sterling had been nolle-prossed but indicated that it was not in exchange for his testimony. At that time, the state informed .defense counsel and the court that Sterling still had an outstanding charge for attempted possession of drugs.

During the trial testimony of Detective Gomez, defense counsel again raised the Brady issue with respect to Sterling’s involvement in the case. While the prosecutor admitted that Sterling’s armed robbery charge was nolle-prossed on May 12, 2014, when he made a statement to the police, the prosecutor indicated that it was not done in exchange for Sterling’s statements or testimony. Rather, the prosecutor explained that similar charges had been nolle-prossed for three of Sterling’s co-defendants in exchange for their pleas to drug offenses. The prosecutor was clear that Sterling was never told that his robbery charge would be dismissed in exchange for his statement or testimony. Because the decision . to nolle-prosse the armed robbery charge led to a bond reduction, Sterling was eventually released from jail on May 20, 2014. In his own testimony, Sterling testified that he received no promises or deals for his statement or testimony. Sterling noted that he still had a pending drug charge, and in the interim since his release, he had served more jail time -as a result of a domestic' abuse charge.

In sum, there is no indication that Sterling’s letter,- statement, or testimony were the result of any deal entered into between him and the state. Therefore, there was nothing for the state to disclose pursuant to defendant’s Brady request. Further, to the extent that the state’s decision to nolle-prosse the armed robbery charge might be considered a “deal,” that information was revealed on the morning of trial, and the issue would become one of late disclosure, not non-disclosure. Defense counsel fully cross-examined Sterling about his “hope” of the outcome of his pending charges, and the trial court was undoubtedly aware of all of the relevant facts concerning Sterling’s involvement in the instant matter. There is no evidence in the record of any prejudice to defendant.

haThis assignment of error is without merit,

CONCLUSION

For the stated reasons, we find no merit to defendant’s assignments of error and, therefore, we affirm the convictions and sentences.

CONVICTIONS AND SENTENCES AFFIRMED.

Theriot, J., dissents with reasons.

THERIOT, J.,

dissenting and assigning reasons.

hi respectfully disagree with the majority’s analysis and conclusion regarding the defendant’s second assignment of error, wherein the defendant contends that the state failed to disclose exculpatory information to him regarding leniency given to one of the state’s key witnesses, Marcus Sterling, in contravention of the rule established by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), along with its progeny. I believe the record establishes that the' state failed to timely disclose material impeachment evidence about Mr. Sterling to the defendant, and find that the state’s failure to timely disclose such evidence denied the defendant of his constitutional right to a fair trial. Thus, for the reasons set forth more fully below, I would reverse the defendant’s conviction and sentence, and would grant the defendant a new trial.

It is well-settled that the state’s suppression of evidence which is favorable to the defendant violates the defendant’s due process rights if the evidence is material either to guilt or punishment, without regard to the good or bad faith of the prosecuting attorney. See Brady, 373 U.S. at 86-87, 83 S.Ct. 1194. The state’s duty to disclose evidence which is favorable to the defendant includes both exculpatory evidence and impeachment evidence. See State v. Kemp, 00-2228 (La. 10/15/02), 828 So.2d 540, 545 (per curiam). The Brady rule encompasses evidence that impeaches the testimony of a witness when the reliability or credibility of that witness may determine the defendant’s guilt or innocence. State v. Bright, 02-2793 (La. 5/25/04), 875 So.2d 37, 41 (citing United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). The state must timely disclose the favorable evidence to the defendant so as to provide the defense with an adequate opportunity to present the material effectively in its case. See Kemp, 828 So.2d at 545.

In order to prove a Brady violation oh appeal, the defendant must first establish that the evidence at issue was, in fact, exculpatory or impeaching. See State v. Eley, 15-1925 (La.App. 1 Cir. 9/16/16), 203 So.3d 462, 472. If the defendant proves that the state failed to disclose Brady material, the conviction must be reversed, and a new trial must be granted, if the omission was of sufficient significance to result in the denial of the defendant’s right to a fair trial. See United States v. Agurs, 427 U.S. 97, 108, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); State v. Brown, 15-2001 (La. 2/19/16), 184 So.3d 1265, 1266. Notably, both the late disclosure, as well as the nondisclosure, of exculpatory evidence may deprive the defendant of a fair trial. See Kemp, 828 So.2d at 545; State v. Williams, 448 So.2d 659, 665 (La. 1984). The impáct of either the late disclosure or the complete suppression of exculpatory evidence must be evaluated in the context of the entire record. Kemp, 828 So.2d at 545.

The jurisprudence clearly recognizes the breadth of the state’s duty to disclose Brady material. See e.g., Cone v. Bell, 556 U.S. 449, 470, 129 S.Ct. 1769, 173 L.Ed.2d 701 (2009) (explaining that favorable evidence is subject to constitutionally mandated disclosure if it could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict). Thus, for example, in State v. Lindsey, 621 So.2d 618 (La. App. 2 Cir.), writ denied, 629 So.2d 417 (La. 1993), the appellate court found that the state had a duty to disclose evidence of an understanding between the state and a witness, even though the state had not reached a consummated plea agreement with the witness; In that case, the prosecuting attorney did not make any explicit promises of leniency to the witness, but promised the witness’ attorney that he would take the witness’ testimony into consideration when entering a plea bargain. The appellate court recognized that there was no binding agreement between the state and the witness, but held that the state was required to turn over any evidence of an understanding between the state and the witness regarding the expectation of favorable consideration, thereby acknowledging that the state’s constitutional duty to disclose material evidence which is favorable to the defendant is not limited to formal, consummated, binding agreements exacted between the state and a witness. See Lindsey, 621 So.2d at 624-28.

In today’s opinion, the majority finds no merit to the defendant’s second assignment of error, reasoning that the state did not have & duty to disclose Brady material to the defendant, and concluding there is “no indication” that Mr. Sterling’s letter, statement, or testimony were the result of any deal entered between him and the state. In support of its finding, the majority primarily relies upon the fact that both the prosecuting attorney and Mr. Sterling denied he was induced to testify against the defendant. To this point, the record does reflect that, on the morning of trial, defense counsel asked the prosecuting attorney for any Brady material that had not yet beén turned over. The prosecuting attornéy responded by informing defense counsel—for the first time—that certain criminal |4charges had been dismissed against Mr. Sterling. The prosecuting attorney stressed that she “wouldn’t call it a deal,” and averred that the charges had not been dropped 'in exchange for Mr. Sterling’s testimony against the defendant. Thereafter, during cross-examination by defense counsel, Mr. Sterling likewise stated he had not been made any promises by the state in exchange for his testimony at trial.

In my opinion, the majority’s decision is erroneous, since, even if there was no express agreement between Mr. Sterling and the state, the record contains significant contrary circumstantial, evidence indicating, at a minimum, the reasonable impression that Mr. Sterling may have been afforded leniency in return for his statement against the defendant. For example, in the letter Mr. Sterling wrote to Ascension Parish Sheriff Jeffrey Wiley, dated March 11, 2014, Mr. Sterling himself indicated that he was willing to testify against the defendant in exchange for leniency. Mr. Sterling stated that he was in jaü on criminal charges and was willing to testify against the defendant as follows: “I would take 5 years probation do [ (sic) ] to me doing something [illegible], I would testify and do a statement.” Mr. Sterling also expressed a willingness to testify about the criminal acts of another individual, and framed his ability to provide the police with information about this individual in concomitant terms with his imprisonment and punishment, noting, in an addendum to the letter, “Oh yeah I could take down the man that[’]s getting a hundred kilos of heroin a month in this parish that[’s] a promise!;] if not yall [ (sic) ] can give me life.”

More importantly, the record establishes that, during the middle of the trial, the defendant learned of additional information about Mr. Sterling that raises reasonable doubt as to the credibility and reliability of his testimony, which information had not previously been disclosed to the defendant. Specifically, upon Indirect examination, one of the state’s witnesses, Detective Gomez, testified that Mr. Sterling’s attorney had provided him with Mr., Sterling’s “rap sheet.” Defense counsel immediately objected to Detective Gomez’s statement, arguing that the testimony concerned information about Mr. Sterling that had not been disclosed in accordance with Brady. This objection set off lengthy arguments concerning potential Brady violations by the state. The defendant learned by , and through these arguments that Mr. Sterling had provided a recorded statement to the police concerning his knowledge about the bank robbery allegedly perpetrated by the defendant on May 12, 2014; that the armed robbery charges against Mr. Sterling had been nolle prossed on this same date; and that the prosecuting attorney in the case against the defendant had entered the nolle prosse dismissing the charges against Mr. Sterling.

Notably, although the prosecuting attorney maintained that there was no explicit agreement between the state and Mr. Sterling, she did not dispute the underlying facts that call into question the credibility of Mr.- Sterling’s testimony. Thus, for example, while the prosecuting attorney pointed out that the armed robbery charges against Mr. Sterling’s several co-defendants had also been dismissed, she admitted the charges, had been dropped on different dates, and she acknowledged that Mr. Sterling’s co-defendants all 'pled guilty to other charges, whereas the state simply dropped the armed robbery charges against Mr. Sterling on,the same date he gave a recorded statement to the police. In addition, the prosecuting attorney admitted on at least two separate occasions that there may have been some tacit connection between the state’s decision to dismiss the | (jCi-iminal charges against Mr. Sterling and Mr. Sterling’s cooperation with the police, as shown in the following colloquy;

THE COURT: Here’s the problem. I’m just—and take your time because it may very well have an explanation. But now what you’re saying is they have four people charged; three of them in return for pleading guilty to drug charges, you dismissed the armed robbery, but [Mr. Sterling] didn’t plead to anything and it still got dismissed.
[THE PROSECUTING ATTORNEY]: That is correct, but at that point ... Mr. Sterling had been in jail for quite some time, I don’t know the dates, and everyone else had long since been released from jail, pled to probation. I mean by that point he had served enough time that -1 believe he, you know, if he pled guilty tomorrow.... .1 mean the max was like 2 ½ years and I mean he was in jail a substantial amount of time before that to where even if he pled, I don’t, think that would have' changed anything. ... I mean, I don’t—I never told him I’m going to do this if you go make a statement., However, I mean he did make a statement and I mean I’m going to presume that my feeling at that point was that it was the right thing to do,
THE COURT: The only thing different is he gives a statement and the armed robbery gets dismissed. So what [the defendant is] entitled to know is did that statement influence that dismissal of that armed robbery charge because [Mr. Sterling] didn’t plead guilty to the drugs.:.,
[THE PROSECUTING ATTORNEY]: It didn’t have any influence. I can tell you I never communicated anything to Mr. Sterling.
THE COURT: All right, so in other words, he never—as far as you’re aware of—
[THE PROSECUTING ATTORNEY]: I never told him—
THE COURT: —Mr. Sterling was never conveyed if you—that’s what [the defendant] needs to know.
[THE PROSECUTING ATTORNEY]: Correct. And if we could get ... those minutes I could tell you a little more accurately what all happened in that case because obviously it’s been a little while. But in my opinion ... I did not think it was a good case for armed robbery just as I did not think it was a good case against the shooter for murder. And I acted accordingly and pled those cases down accordingly....
|7[DEFENSE COUNSEL]: Your Hon- or, it’s quite a coincidence—
THE COURT: I got all that, but I’m going to let her—you know, she can print her minutes and then you just got to find out from Mr. Sterling what his impression was, you know, and whether or not that was conveyed to him. I mean I take her for her word.
[THE PROSECUTING ATTORNEY]: I never spoke to Mr. Sterling until after he was out of jail. Now I had talked to his attorney and I don’t know if his attorney said, look, I think maybe she’ll do this, you know. And I’m not going to say it’s not related—
THE COURT: No, I’m not—I understand.
[THE PROSECUTING ATTORNEY]: —because I think I probably felt like if this guy is going to help us out he shouldn’t still be sitting in jail when everybody else is home. But I mean like I said, it’s attempted possession is the charge, 2 ½ year max, and he was in jail a good bit. Again, I—
THE COURT: No, the charge y’all dismissed was robbery; it was armed robbery.
[THE PROSECUTING ATTORNEY]: Right, but that was never going anywhere .... I did not think there was sufficient evidence on the armed robbery which is why I let every single person plead to the drug charge except—
[DEFENSE COUNSEL]: See, that’s what—Judge. They don’t produce any of this stuff. They don’t produce anything on armed robbery. We’re hearing it right now. You’re hearing it for the first time.... It was good enough to hold them in jail for 6-6-7 months but it ain’t [ (sic) ] good when he’s going to ... tell these things that I think I need to say and I’m letting him out of jail coincidentally on the day he gives me the statement. I mean I should have had all of that. I should have been able to investigate that so I could adequately defend my [client]—that’s clear Brady to me.

(emphasis added).

In sum, the totality of the record evidence proves that the state failed to timely acknowledge the existence of the reasonable impression of an understanding between the state and Mr. Sterling to the defendant. Like in Lindsey, supra, the state’s failure to appropriately disclose material impeachment evidence to the defendant prevented defense counsel from making the best use of |sthe information through, inter alia, effective and vigorous cross-examination. Thus, turning to the remaining question of materiality and prejudice, it merits emphasizing that this determination must be made reflective of the “overriding concern with the justice of the finding of guilt.” Agurs, 427 U.S. at 112, 96 S.Ct. 2392. The finding of guilt is permissible only if supported by evidence establish-mg guilt beyond a reasonable doubt; hence, if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has occurred, and the defendant is entitled to a new trial. If there is no reasonable doubt as to the defendant’s guilt whether or not the evidence at issue is considered, there is no justification for a new trial. Conversely, if the verdict is already of “questionable validity,” additional evidence of relatively minor importance might be sufficient to create reasonable doubt. Agurs, 427 U.S. at 112-13, 96 S.Ct. 2392.

Here, it seems clear that the state would not have had sufficient evidence to convict the defendant of armed robbery without Mr. Sterling’s testimony. Mr. Sterling testified at trial that the defendant revealed confidential information about the details of the bank robbery that had not been revealed to the public and which only the perpetrator of the robbery could have known. The state did present other evidence against the defendant, including, for example, through the testimony of Travis West, which appears sufficient to tangentially link the defendant to the overall conspiracy. However, as the majority recognizes, none of the witnesses to the armed robbery identified Mr. Sterling as the perpetrator of the crime, and the only DNA evidence introduced at trial linked another individual to the clothing found along the scent trail leading from the scene of the crime. Accordingly, the remaining record evidence does not dimmish the importance of Mr. Sterling’s testimony, especially since where the key issue in a case is the defendant’s identity as the perpetrator,, rather than whether the crime was committed, the state is required to negate any reasonable probability of misidentifieation. See State v. Neal, 00-0674 (La. 6/29/01), 796 So.2d 649, 658, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002). Therefore, I find the defendant’s second assignment of error has merit. The state’s failure to timely disclose Brady material deprived the defendant of his constitutional right to a fair trial. The defendant is entitled to a new trial.

I respectfully dissent. 
      
      . Charged'in the same bill of information was co-defendant Cedric D, Emerson, who' was found not guilty after these proceedings.
     
      
      . The minute entry from defendant’s sentencing indicates that , these sentences have been enhanced pursuant to La. R.S. 15:529.1, but the state did not file a habitual offender bill of information, and the trial court made, no habitual offender finding at the time of sentencing. This "enhancement” is not reflected in the sentencing transcript and appears to be a simple clerical error that tracks what appear to be standardized written reasons for sentencing filed by the trial court. Where there is a discrepancy between the transcript and the minutes, the transcript must prevail. See State v. Lynch, 441 So.2d 732, 734 (La. 1983), The trial court mentioned at the sentencing that defendant was classified as a "first felony offender.” Therefore, there is no habitual offender adjudication in the instant case, and the sentences imposed are legal under the applicable sentencing provisions. See La. R.S. 14:64(B) and 14:64.3(A).
     
      
      . We note that in order to challenge the conviction on the basis of insufficiency of the evidence, defendant should have proceeded by way of a motion for postverdict judgment of acquittal rather than a motion for new trial. See La. Code Crim. P. arts, 821, 851, and 858. In the instant case, defendant filed only a motion for new trial, alleging newly discovered evidence. Nevertheless, we will consider a claim of insufficiency of the evidence that has been briefed pursuant to a formal assignment of error. See State v. Dugas, 96-1006 (La.App. 1 Cir. 2/14/97), 691 So.2d 197, 201; State v. Tate, 506 So.2d 546, 551 (La. App. 1st Cir.), writ denied, 511 So.2d 1152 (La. 1987).
     
      
      . While the trial court did not note it in the reasons for its verdict, Sterling was incarcerated on the date of the robbery, so he had no personal knowledge of the offense.
     
      
      . In Lindsey, 621 So.2d at 626-28, the defendant was permitted to cross-examine the witness about the existence of an actual agreement between her and the state, whereupon the witness attested that she had not been made any promises in exchange for her testimony. In assessing whether the defendant was prejudiced by the failure of the state to disclose impeachment evidence, the court specifically noted that the defendant had been deprived of his confrontation clause rights. The court explained that the failure of the state to disclose the impression of an agreement between the witness and the state limited the defendant’s ability to effectively and vigorously cross-examine the witness—whose credibility was essential to the verdict—and that there was a reasonable likelihood that the verdict would have been different but for the ■ suppressed evidence. Id.
     
      
      . Mr. Sterling incorrectly stated in the letter that he was in jail on "principle to first degree murder” charges.
     
      
      . Furthermore, the prosecuting attorney in the case against the defendant was not originally assigned to the charges against Mr. Sterling. The trial court recognized this fact after examining the paperwork concerning the charges filed against Mr. Sterling in open court, noting that Mr. Sterling had been charged with armed robbery by bill of information signed by a different Assistant District Attorney with the 23rd Judicial District Attorney’s Office, The trial court asked the prosecuting attorney about this issue, whereupon, the prosecuting attorney acknowledged that the charges against' Mr. Sterling were originally assigned to a different division, but averred that the charges had been transferred to.Jher division after Mr. Sterling’s indictment. The prosecuting attorney explained that she believed the matter had been transferred to her division because of a “co-defendant issue.”
     