Ferguson v. State

856 So. 2d 334, 2003 WL 722779
CourtCourt of Appeals of Mississippi
DecidedMarch 4, 2003
Docket2001-KA-00120-COA
StatusPublished
Cited by5 cases

This text of 856 So. 2d 334 (Ferguson 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
Ferguson v. State, 856 So. 2d 334, 2003 WL 722779 (Mich. Ct. App. 2003).

Opinion

856 So.2d 334 (2003)

Maurice FERGUSON, a/k/a Edward Hunter, a/k/a Michael Ferguson, a/k/a Lee Tollfree, a/k/a Arthur Ferguson, a/k/a MIchael Lewis, Appellant,
v.
STATE of Mississippi, Appellee.

No. 2001-KA-00120-COA.

Court of Appeals of Mississippi.

March 4, 2003.
Rehearing Denied May 6, 2003.

*336 Carol L. White-Richard, attorney for appellant.

Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.

EN BANC.

KING, P.J., for the court.

¶ 1. Maurice Ferguson was found guilty in the Circuit Court of Washington County, Mississippi of armed robbery and possession of a firearm by a convicted felon. He was sentenced to serve a term of life imprisonment, as an habitual offender in the custody of the Mississippi Department of Corrections. Aggrieved by his conviction, *337 Ferguson has appealed and raised the following issues:

I. Whether the trial court erred when it denied his motion to suppress the photo line-up shown to the victim.

II. Whether the trial court erred by failing to issue a limiting instruction, sua sponte, regarding Ferguson's prior felony convictions.

III. Whether the trial court erred when it denied his motion for a directed verdict and whether the verdict was against the overwhelming weight of the evidence.

FACTS

¶ 2. On the afternoon of October 18, 1999, a man (later identified as Maurice Ferguson) walked into the Check Into Cash business in Greenville, Mississippi. Mrs. Shawna Tillis stated that the man, who was unknown to her, approached the counter and inquired about getting a cash advance. Tillis talked to this man for approximately five minutes regarding the information required to obtain a cash advance loan. Tillis stated that the man indicated that he did not have the information at hand to complete the forms and would return later.

¶ 3. Within a few moments, Tillis heard the door open again. Ferguson, the same individual, was standing in front of her with a gun pointed directly at her. Ferguson demanded that Tillis give him the money in the cash register and the vault. Tillis gave Ferguson the cash located in the cash register and told him that the store did not have a vault. Ferguson instructed her to get on the floor and not say anything. Ferguson then took the cash and fled the scene.

¶ 4. Shortly after the robber left, Tillis called the police and gave a description of his appearance. Officer Brian Williams of the Greenville Police Department received the description and searched the area looking for the suspect. The police were not able to locate the suspect on the day of the robbery.

¶ 5. On October 23, 1999, while driving down Washington Avenue in Greenville with her husband, Tillis noticed a man that looked similar to the person who had robbed her. Her husband stopped the car, approached the man and questioned him about the robbery. According to Tillis, the man acted as though he knew nothing about the incident and did not know Shawna Tillis.

¶ 6. Afterwards, Tillis and her husband drove to a furniture store and called the police. The police searched the area but were unable to locate the suspect. Subsequently, Tillis was asked to view a photographic line-up in an effort to identify the robber. Ferguson's photograph was not among those viewed by Tillis.

¶ 7. On October 27, 1999, Officer Jeffrey Wilson of the Greenville Police Department indicated that the investigation had focused on a suspect and asked Tillis to view another photographic line-up. Officer Wilson testified that he composed the photographic line-up by considering the "average height, that it be similar, skin color, weight, hair cuts, facial hair." Ferguson's picture, which had been taken on the same date as the line-up, was included among the pictures shown to Tillis. After viewing all of the pictures, Tillis immediately identified Ferguson as the man who had robbed her at gunpoint.

¶ 8. On January 24, 2000, Ferguson was indicted on the charges of armed robbery and possession of a firearm by a convicted felon. Ferguson was found guilty of these charges, and sentenced as an habitual offender to two consecutive life sentences without parole.

*338 ISSUES AND ANALYSIS

I.

Whether the trial court erred when it denied his motion to suppress the photo line-up shown to the victim.

¶ 9. Ferguson contends that the failure of the trial court to suppress evidence of the photographic line-up identification was prejudicial error. Ferguson claims that after being informed that the investigation had focused on a suspect, Tillis was asked to view a photographic line-up to identify the robber. Ferguson maintains that the nine photographs included in the line-up each contained a date at the bottom. The dates on eight of the photographs were from three to nine years previous. The date on Ferguson's photo was the date of the line-up. He contends that this caused him to be conspicuously singled out, and tainted the identification.

¶ 10. Ferguson suggests that the recent date on his photograph and the officer's comment that the investigation had focused on a suspect rendered the identification so impermissibly suggestive that it should have been suppressed. This Court reviews a question of improper pre-trial identification in the following manner:

Regarding an improperly suggestive pre-trial identification tainting subsequent identification at trial, this Court evaluates the factors enumerated in Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972), to determine whether the in-court identification is "sufficiently reliable to overcome the taint of the prior improperly attained identification." Gayten v. State, 595 So.2d 409, 418 (Miss.1992). The Biggers factors are:
(1) the opportunity of the witness to view the accused at the time of the crime;
(2) the degree of attention exhibited by the witness;
(3) the accuracy of the witness' prior description of the criminal;
(4) the level of certainty exhibited by the witness at the confrontation;
(5) the length of time between the crime and the confrontation.
Fleming v. State, 604 So.2d 280, 302 (Miss.1992).

Ellis v. State, 667 So.2d 599, 605 (Miss. 1995).

¶ 11. An application of the Biggers factors to this case establishes: (1) Tillis had ample opportunity to observe Ferguson. She talked with him for approximately five minutes shortly before the robbery. She also talked with him again when he returned a few moments later to rob the business; (2) While Ferguson was present, there was nothing to distract Tillis' attention from him; (3) Tillis phoned a description of the robber to the police department immediately after the robbery. That description was accurate except as to Ferguson's height and age; (4) The record in no way indicates that Tillis expressed any uncertainty about her identification of Ferguson; (5) The time between the robbery was short. The robbery occurred on Monday, October 18, 1999. Tillis saw Ferguson again on Saturday, October 23, 1999. Tillis identified Ferguson in a photo line-up on October 27, 1999.

¶ 12. The application of the Biggers factors caused the trial court, and this Court, to conclude that there was sufficient indicia of reliability to allow the identification.

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Bluebook (online)
856 So. 2d 334, 2003 WL 722779, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ferguson-v-state-missctapp-2003.