Armstead v. State

869 So. 2d 1052, 2004 Miss. App. LEXIS 68, 2004 WL 193195
CourtCourt of Appeals of Mississippi
DecidedFebruary 3, 2004
DocketNo. 2002-KA-00402-COA
StatusPublished

This text of 869 So. 2d 1052 (Armstead v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Armstead v. State, 869 So. 2d 1052, 2004 Miss. App. LEXIS 68, 2004 WL 193195 (Mich. Ct. App. 2004).

Opinion

BRIDGES, J., for the Court.

¶ 1. Roosevelt Armstead was indicted by the grand jury of the Circuit Court of Washington County and charged with robbery of Danielle Bew and as an habitual offender under Mississippi Code sections 97-3-73 and 99-19-83 respectively. In a jury trial presided over by Circuit Judge W. Ashley Hines, on February 6, 2002, Armstead was found guilty and sentenced to life in prison. His motion for judgment notwithstanding the jury verdict or, in the alternative, for a new trial was timely filed and denied. Armstead appeals on the following issues:

STATEMENT OF THE ISSUES
I. WAS THE EVIDENCE PRESENTED INSUFFICIENT TO SUSTAIN ARMSTEAD’S CONVICTION?
[1054]*1054II. DID THE STATE FAIL TO PROVE THE ESSENTIAL ELEMENTS OF ROBBERY?
III. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN DENYING ARMSTEAD HIS RIGHT TO PARTICIPATE IN JURY SELECTION?
IV. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY COMMENTING IN FRONT OF THE JURY AND BY ALLOWING THE PROSECUTOR TO COMMENT IN FRONT OF THE JURY ABOUT ARM-STEAD’S DECISION NOT TO TESTIFY?
V. DID DEFENSE COUNSEL RENDERED INEFFECTIVE ASSISTANCE IN PUTTING UP NO DEFENSE DURING CLOSING ARGUMENT?
VI. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN OVERRULING ARMSTEAD’S OBJECTION TO THE STATE’S DISCOVERY VIOLATION?

FACTS

¶ 2. One Friday night Patrolman Williams of the Greenville Police Department was dispatched to a complaint of robbery from the Exxon gas station on the corner of Alexander Street and Dr. Martin Luther King Drive. Upon arriving in the area, he began looking for a black man wearing dark clothing, a hat and a red jacket but was unable to locate anyone. Danielle Bew was the clerk who reported the incident and gave the description. Once Williams went into the store to meet with Ms. Bew, he reviewed the surveillance tape showing the robbery but was unable to identify the suspect.

¶3. In Ms. Bew’s testimony regarding the robbery, she claims that on that night at approximately nine o’clock she came out of the cooler to find a man standing at the counter trying to open the cash register. When he saw her he told her to “come and open it now; he wasn’t playing, and [to] come and open it now before he killed [her].” She was terrified that he would harm her so she went to the register, opened it and the suspect took the money and left the store. She stated that she was in very close proximity to him as she opened the register and actually looked at him as he was getting the money out and leaving the store.

¶ 4. Detective Crockett also reviewed the tape, interviewed Ms. Bew and dusted for fingerprints, including inside the cash register. The next day Ms. Bew went to the police station and looked through a book of pictures and selected some pictures that she said could possibly be of the suspect. Mr. Armstead’s picture was one of the ones she selected but in the photo he was younger and more clean cut. The police retrieved more current photos of Armstead and the other potential suspects she selected. When she saw a more current photo of Armstead, she identified him as the man who robbed the store without hesitation.

¶ 5. Ms. Bew claims she recognized Mr. Armstead again when he came in the store a few days after the robbery prior to her photo identification. That visit he asked to use the restroom. After he left, she pressed the panic button and when Patrolman Williams arrived she told him the man who robbed her had come back into the store.

ANALYSIS

¶ 6. The State in its brief addresses the issue of the supreme court’s allowing Arm-stead to file a pro se ancillary brief to amend the prior brief filed by his attorney. In their objection the State practically cop[1055]*1055ied the entire opinion of Johnson v. State, 449 So.2d 225 (Miss.1984), into its brief. In Johnson, the court held that someone represented by an attorney should rely on his attorney to raise all credible issues for appeal. Id. Since there was no constitutional duty to allow these ancillary briefs, the court chose not to grant them to prevent the court from “wad[ing] off into a swamp of pro se ancillary briefs,” and to prevent attorneys general from having to respond to myriad of issues “dreamed up by an incarcerated individual.” Id.

¶7. In the case at bar the Supreme Court of Mississippi allowed Armstead’s pro se brief. This Court cannot reverse or alter the decisions handed down in its motions and orders. We merely make note of the attorney general’s objection.

I. WAS THE EVIDENCE PRESENTED INSUFFICIENT TO SUSTAIN ARMSTEAD’S CONVICTION?

¶ 8. The court’s authority to alter a jury’s verdict is limited. Naylor v. State, 780 So.2d 561, 565(¶ 25)(Miss.1999). On appeal appellate courts review all evidence “in the light most consistent with the verdict” and give the “prosecution the benefit of all favorable inferences that may reasonably be drawn from the evidence.” Id. It is the responsibility of the jury to resolve conflicting evidence and determine the credibility of witnesses. Harris v. State, 527 So.2d 647, 649 (Miss.1988). If after this review it is determined that no reasonable man could have found beyond a reasonable doubt that the defendant was guilty the conviction will be reversed. Naylor, 730 So.2d at 565. However, if after review it is determined that reasonable minds could have reached differing conclusions in light of the reasonable doubt burden then the conviction cannot be disturbed. Id.

¶ 9. Armstead charges that the State depended on the photo lineup from which Ms. Dew picked his photo and her in-court identification of him for its conviction of him. He points to her testimony that while looking at the photos at the police station she was primarily looking for facial hair on the individuals but that in the photo she selected of Mr. Armstead he was clean shaven. Another problem Arm-stead has with the second group of photos Ms. Dew reviewed was that each listed the name of the individual at the bottom.

¶ 10. In attacking the credibility of the surveillance video reviewed by police and Ms. Dew then shown to the jury, Arm-stead highlights that the video did not show the person robbing the store well enough for anyone to identify him as the perpetrator. Armstead also argues that he was never found with the spoils of the crime and that the prosecution never established that he was in the area at the time the incident occurred or that his fingerprints were found at the scene.

¶ 11. The State offered testimony from Ms. Dew in which she conclusively identified Mr. Armstead from the second photo she saw. Ms. Dew also testified that she recognized him in the courtroom based on her seeing him the night of the robbery. There was testimony that she recognized him when he came into the store another day and that that identification was based on her seeing him the night of the robbery.

¶ 12. The prosecution did offer sufficient evidence to sustain a conviction of Mr. Armstead. This issue has no merit.

II. DID THE STATE FAIL TO PROVE THE ESSENTIAL ELEMENTS OF ROBBERY?

¶ 13. In proving the crime of robbery the prosecution must show that Mr.

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Bluebook (online)
869 So. 2d 1052, 2004 Miss. App. LEXIS 68, 2004 WL 193195, Counsel Stack Legal Research, https://law.counselstack.com/opinion/armstead-v-state-missctapp-2004.