Garner v. State

856 So. 2d 729, 2003 WL 22332119
CourtCourt of Appeals of Mississippi
DecidedOctober 14, 2003
Docket2002-KA-00391-COA
StatusPublished
Cited by7 cases

This text of 856 So. 2d 729 (Garner 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
Garner v. State, 856 So. 2d 729, 2003 WL 22332119 (Mich. Ct. App. 2003).

Opinion

856 So.2d 729 (2003)

C.K. GARNER, Appellant,
v.
STATE of MISSISSIPPI, Appellee.

No. 2002-KA-00391-COA.

Court of Appeals of Mississippi.

October 14, 2003.

*730 George T. Kelly, Marie Wilson, attorneys for appellant.

Office of the Attorney General by: Billy Gore, attorney for appellee.

Before McMILLIN, C.J., MYERS and GRIFFIS, JJ.

McMILLIN, C.J., for the court.

¶ 1. C.K. Garner, having been convicted in Sunflower County Circuit Court of the armed robbery of Ora Smith, has appealed that conviction to this Court. The appeal presents the following issues: (a) whether the trial court erred in excluding evidence of the acquittal of Garner's co-indictee in an earlier trial, (b) whether the trial court erred in refusing to suppress the victim's in-court identification of the defendant as her assailant because it was based on an impermissibly suggestive show-up, (c) whether the trial court should have allowed a pre-trial lineup on the defendant's motion, and (d) whether the indictment was fatally defective for failure to properly *731 charge venue. Garner also makes an attack on the State's evidence, although it is unclear whether he contends that the evidence was insufficient as a matter of law to sustain a guilty verdict or that the verdict was against the weight of the evidence. Finally, Garner suggests the need to overturn his conviction based on the cumulative weight of the various errors alleged in his appeal.

¶ 2. We find none of Garner's issues to have merit and, as a result, affirm his conviction and resulting judgment of sentence.

I.

Facts

¶ 3. Smith testified to being accosted in the parking lot of a grocery store in Sunflower County by two black males. One struck her in the head with a hard object and the other threatened her with a firearm. The two assailants took from her a sum of money she had been carrying in her hand, after which they were picked up by a third individual driving an older model light blue vehicle.

¶ 4. Based on Smith's description of her assailants and the get-away vehicle, Garner became a suspect and investigating officers brought him to the police station as a part of their inquiry. Smith was still in the station when Garner was brought in. Smith observed Garner in the hall and identified him as one of the robbers. He was subsequently required to remove an outer pair of camouflage-patterned trousers, which revealed that he was wearing a pair of black "windbreaker" shorts underneath. Smith had previously reported that her assailant had worn a pair of black windbreaker pants.

¶ 5. Garner was indicted along with Frederick Washington for the crime. The trials of the two defendants were severed on Garner's motion, and Washington was tried first. The record of that trial is not before us, but Garner contended at his trial that Smith testified for the prosecution at Washington's trial and positively identified Washington as one of the two assailants. Further, according to Garner's representations, Washington presented some form of alibi evidence in his defense and was ultimately acquitted by the jury in that case. The trial court refused to permit evidence of these facts to be presented to the jury trying Garner.

II.

Evidence of Washington's Acquittal in a Separate Trial

¶ 6. The State successfully pursued a motion in limine to exclude any evidence that Washington had been acquitted in an earlier trial. On appeal, Garner contends that the exclusion of this evidence was prejudicial to the defense since it tended to impeach the credibility of Smith's claim that she could identify her assailants.

¶ 7. Evidence is generally admissible if it is relevant. M.R.E. 402. Mississippi's Rules of Evidence set out the test for determining relevancy as follows:

"Relevant Evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

M.R.E. 401.

¶ 8. The issue before this Court is whether a prior jury's acquittal of a co-defendant, in the situation where an eyewitness testified to having identified that defendant as one of the perpetrators, is relevant to that witness's ability to identify the defendant on trial. In the opposite situation, where the co-defendant was convicted, the law is clear.

*732 The law is well settled in this state that where two or more persons are jointly indicted for the same offense but are separately tried, a judgment of conviction against one of them is not competent evidence on the trial of the other because such ... conviction is no evidence of the guilt of the party being tried.

Buckley v. State, 223 So.2d 524, 528 (Miss. 1969). Certainly, had Washington been convicted in his separate trial, it would have been reversible error for the State to inject proof of that conviction in Garner's trial in order to bolster its case. We see no principled reason to apply a different rule when, as here, the result of the earlier trial is favorable, rather than prejudicial, to the defense.

¶ 9. Garner attempts to narrow the purpose of the evidence to say that the verdict of acquittal bears at least indirectly on the victim's credibility. The jury charged with trying a particular case, sitting as finder of fact, is the sole judge of the credibility of the witnesses presented at trial. Barnett v. State, 757 So.2d 323, 331(¶ 25) (Miss.Ct.App.2000) (citing Harris v. State, 527 So.2d 647, 649 (Miss.1988)). A jury trying a criminal case normally must sort through substantial amounts of evidence, some portions tending to indicate guilt and other portions tending to exonerate the defendant. In that situation, it would be essentially impossible to draw a direct link between the verdict of acquittal and any particular aspect of the proof. Even if it is assumed that the prior verdict speaks, in some indirect way, to that jury's assessment of the victim's credibility, it would be improper to afford the subsequent jury that information. To do that would, in effect, install the earlier jury as an advisory body offering its own view as to Smith's credibility and would tend to usurp, or at the very least, improperly influence the deliberations of the jury on issues that are solely within the province of the finders of fact. The trial court did not err in excluding this evidence.

III.

Show-up Identification and In-court Identification

¶ 10. Garner sought to suppress any identification of him by the victim based on the assertion that he was initially identified as the assailant through an impermissibly suggestive show-up and that this rendered untrustworthy both Smith's initial identification and her subsequent in-court identification. The trial court refused to suppress that testimony. As a result, at trial, Smith was permitted to testify that, shortly after she arrived at the police station where she had gone to report the crime, she saw Garner in the hall. Garner, who resided near the police station, had been brought in for questioning soon after Smith's initial report because one of the investigating officers felt, based on his personal familiarity with Garner, that Smith's description of one of the assailants and her description of the vehicle used by the robbers had implicated Garner as a suspect in the crime.

¶ 11.

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Bluebook (online)
856 So. 2d 729, 2003 WL 22332119, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garner-v-state-missctapp-2003.