Williams v. State

98 So.3d 468

Markeith WILLIAMS a/k/a Markeith Deantwon Williams, Appellant

v.STATE of Mississippi, Appellee.

No. 2010–KA–01522–COA.

Court of Appeals of Mississippi.

Feb. 21, 2012.

Rehearing Denied June 26, 2012.

Certiorari Denied Sept. 27, 2012.

Jane E. Tucker, James W. Craig, attorneys for appellant.

Office of Attorney General, by W. Glenn Watts, attorney for appellee.

Before IRVING, P.J., BARNES, and ROBERTS, JJ.

IRVING, P.J., for the Court:

¶ 1. On August 10, 2010, a jury convicted Markeith Williams of armed robbery. The Grenada County Circuit Court sentenced him to forty years in the custody of the Mississippi Department of Corrections with twenty-five years to serve, fifteen years suspended, and fifteen years of post-release supervision, with five years supervised and ten years unsupervised.

¶ 2. Feeling aggrieved, Williams appeals and argues that: (1) the circuit court erred in admitting improper identification evidence; (2) he was prejudiced by improper character evidence presented at trial; (3) the circuit court erred in granting a jury instruction on flight; (4) he received ineffective assistance of counsel; and (5) the cumulative effect of the above errors deprived him of his right to a fair trial.

¶ 3. Finding no error, we affirm.

FACTS

¶ 4. On October 7, 2009, Tim Arora was working at the Race Way convenience store/service station in Grenada, Mississippi. At approximately 7:30 p.m., a tall, well-built man with “braids” in his hair entered the store and walked into the store's restroom. When he came out of the restroom, he displayed a handgun and shoved Arora to the floor. A second man then entered the store. The man with braids in his hair went behind the counter, opened the cash register, and removed money from it. He also allegedly took envelopes containing large sums of money from the top of the store's safe. The two men then left the store. Customers entered the store soon afterward, and Arora told them that the store had just been robbed. Arora called the police, and they arrived moments later.

¶ 5. Arora testified that the next day, the police asked him to look at a photographic lineup of eight individuals. He further testified that a police officer asked him if the first person pictured in the lineup was the first man that he had encountered during the robbery and explained: “[T]hat's the guy we got [sic].” Arora recalled telling the officer that the individual in the photograph could have been the person who had robbed the store but that he was not certain. Arora testified that he told the officer that he did not get a good look at the man's face because he had his head down on the floor during the robbery. Arora could only remember that the man was tall, had braids in his hair, wore dark clothing, and had a bandana around his neck.

¶ 6. During Arora's testimony, the State showed him a photographic lineup and asked him if he remembered signing his name anywhere on the lineup sheet. Arora replied, “No, sir. I might have; I'm not sure.” The photographs were not entered into evidence, and the State did not ask Arora to identify Williams in court.

¶ 7. Next, the State presented testimony from Jeremy Ward and Cherrelle White, both of whom were at the Race Way near the time of the robbery. Ward testified that, on October 7, sometime between 7:00 p.m and 8:00 p.m., he and White drove to the Race Way to buy cigarettes. Ward testified that he parked his vehicle approximately ten to twelve feet from the store's front door. Ward stated that it was almost dark outside when he arrived at the store, but the area where he parked his vehicle was “lit up.” Shortly after parking his car, Ward saw two men exit the store and start running. He recalled that both men were wearing dark clothes. According to Ward, one of the men was wearing a hat, and the other was wearing a dark, hooded sweatshirt partly over his head, and a bandana around his neck. Ward testified that the man wearing the sweatshirt was taller than the other man, had a birthmark on the left side of his face, and had “dreads” in his hair. Ward testified that the taller man, with the birthmark, looked like Williams.

¶ 8. After the two men disappeared behind the store, Ward and White got out of their vehicle and entered the store. The clerk inside was on the phone and told them that the store had just been robbed. Ward and White then left the store.

¶ 9. The police located Ward and White later that evening and asked them to come to the police station and give a statement. At the police station, officers showed Ward and White a photograph of Williams and asked them if it depicted the man they had seen at the Race Way. Ward and White answered in the affirmative. Several days later, an officer brought a photographic lineup to White's job. White picked Williams's picture out of the eight individuals depicted in the lineup, and she signed her name above Williams's photograph. White testified that she did so without assistance from the officer. The State introduced into evidence the photographic lineup containing White's signature.

¶ 10. White testified that she was certain that Williams was the person she saw leaving the store on the night of the robbery. White explained that she knew Williams through her cousin but that she had not seen him in seven or eight years. Additionally, White testified that she could not remember Williams's name when she saw him on the night of the robbery, but she recognized him by the birthmark on the left side of his face.

¶ 11. The State also presented testimony from Grenada Police Officer Doug Evans, who assisted in the investigation of the matter. Officer Evans testified that, on the evening of the robbery, he obtained a description of one of the suspects from Ward and White at the police station. Officer Evans recalled having had prior contact with an individual fitting that description, but he was unable to remember his name. Officer Evans contacted Officer Octavious Watt and provided him with a description of the suspect. Officer Watt knew an individual who matched the description and gave Williams's name to Officer Evans. According to Officer Evans, he then “went to the jail and pulled up pictures on the computer” and later obtained a warrant for Williams's arrest.

¶ 12. Officer Evans and another officer drove to Williams's home to arrest him. However, as Officer Evans got out of the vehicle, he saw Williams and another individual running away. Other officers apprehended Williams approximately twenty minutes later. Officer Evans testified that when he asked Williams why he ran, Williams said that he “didn't want to get caught.”

¶ 13. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Identification Evidence

¶ 14. Williams argues that the circuit court erred in denying his pretrial motion to suppress all pretrial identifications. Specifically, Williams maintains that the photographic lineup was impermissibly suggestive because his photograph clearly differed from the other individuals picturedin the lineup and that White's and Ward's in-court identifications were tainted by their initial identification of Williams by way of a single photograph.

¶ 15. Our standard of review for a circuit court's decision regarding pretrial identification is “whether or not substantial credible evidence supports the [circuit] court's findings that, considering the totality of the circumstances, [the] in-court[-]identification testimony was not impermissibly tainted.” Roche v. State, 913 So.2d 306, 310 (¶ 11) (Miss.2005) (quoting Ellis v. State, 667 So.2d 599, 605 (Miss.1995)). The circuit court's decision generally will not be disturbed when it is supported by substantial, credible evidence supporting it. Id.

¶ 16. The Mississippi Supreme Court has held:

Only pretrial identifications which are suggestive, without necessity for conducting them in such a manner, are proscribed. A lineup or series of photographs in which the accused, when compared with the others, is conspicuously singled out in some manner from the others, either from appearance or statements by an officer, is impermissibly suggestive.

* * *

An impermissibly suggestive pretrial identification[, however,] does not preclude in-court identification by an eyewitness who viewed the suspect at the procedure, unless: (1) from the totality of the circumstances surrounding it (2) the identification was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

York v. State, 413 So.2d 1372, 1383 (Miss.1982) (internal citations and footnotes omitted). While, our supreme court has held that an initial identification by means of a single photograph is impermissibly suggestive, the inquiry does not end there. Christmas v. State, 10 So.3d 413, 419 (¶¶ 24–25) (Miss.2009). We must then “determine whether the identification was nonetheless reliable” after considering the Biggers factors. Id. at 419 (¶ 25) (citing Neil v. Biggers, 409 U.S. 188, 199–200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972)). The factors include: “the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of the witness's prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” Id. (quoting Roche, 913 So.2d at 311 (¶ 14)).

¶ 17. Williams's motion to suppress claimed that he was “conspicuously singled out” in the photographic lineup used by law-enforcement officers. Williams explained that the lineup contained eight photographs, only four of which “could possibly fit” his general description. According to Williams's motion, of these four photographs, only Williams's photograph depicted an individual with his particular hair style and no facial hair.

¶ 18. Review of the photographic lineup...