Gilmore v. State

772 So. 2d 1095, 2000 WL 1811582
CourtCourt of Appeals of Mississippi
DecidedDecember 12, 2000
Docket1999-KA-01996-COA
StatusPublished
Cited by10 cases

This text of 772 So. 2d 1095 (Gilmore 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
Gilmore v. State, 772 So. 2d 1095, 2000 WL 1811582 (Mich. Ct. App. 2000).

Opinion

772 So.2d 1095 (2000)

Brian GILMORE a/k/a `Boo Boo', Appellant,
v.
STATE of Mississippi, Appellee.

No. 1999-KA-01996-COA.

Court of Appeals of Mississippi.

December 12, 2000.

*1096 Thomas H. Pearson, Clarksdale, Attorney for Appellant.

Office of the Attorney General by Billy L. Gore, Attorney for Appellee.

Before McMILLIN, C.J., IRVING, and MOORE, JJ.

McMILLIN, C.J., for the Court:

¶ 1. Brian Gilmore, convicted of armed robbery, has appealed his conviction to this Court. He presents three issues which he claims would entitle him to relief. First, he claims that the alleged victim's in-court identification of him should not have been allowed because the victim's ability to identify his assailant was hopelessly tainted *1097 by certain pre-trial events. Secondly, Gilmore claims that the State's evidence was insufficient, as a matter of law, to prove the use of any instrumentality that would support the proposition that the assailant was armed. Thirdly, Gilmore suggests that the court erred in refusing to instruct the jury as to the legal effect of the victim's prior statements regarding his ability to identify Gilmore as the assailant, which statements were inconsistent with the victim's testimony at trial. Finally, Gilmore claims that he was denied a fundamentally fair trial when the prosecuting attorney purported to excuse two alibi witnesses summoned by Gilmore, the result being that these witnesses were unavailable when the defense began its presentation.

¶ 2. For reasons we will proceed to explain, we find the first, third and fourth issues to be without merit. However, we conclude that the second issue has merit, and we reverse and remand for re-sentencing on the charge of simple robbery.

I.

Facts

¶ 3. Perhaps imprudently, Leon Sacks— ultimately to be the victim of the crime now under consideration—withdrew $3,000 in cash from his savings, thinking to use the money to buy gifts in anticipation of the upcoming holidays. However, in advance of any anticipated shopping excursion, Sacks purchased and drank a few beers in celebration of the end of the work week. He thereafter accepted what he thought to be a ride home in an automobile with three other men although, according to his testimony, he only knew the driver as being a former classmate of his brother and did not know the other two men at all. Rather than taking Sacks home, the men drove him down a dark road, stopped on the pretext of having to relieve themselves, and proceeded to beat and kick Sacks. According to Sacks, the three then absconded with $2,800, being that part of the original $3,000 Sacks still had in his possession. During the course of these events, Sacks received a puncture wound to his leg for which he received medical treatment at a local hospital. Sacks claimed that he thought he had been shot, but there was no evidence presented, other than Sacks's own unsupported speculation, to suggest that the puncture wound was the result of a gunshot.

¶ 4. Sacks, on meeting with law enforcement officials the morning after the occurrence, offered a physical description of the driver of the car. Upon hearing the description, the local chief of police spontaneously offered the opinion that Sacks had described Brian Gilmore, and ultimately Gilmore was arrested, indicted, and tried as a principal in the robbery of Sacks.

II.

The First Issue: Identification of Gilmore at Trial

¶ 5. Sacks, during his testimony at trial, pointed out Brian Gilmore as being the driver of the car on the night he was beaten and robbed of his money. No objection to this in-court identification was offered by the defense. However, later in the trial it was brought out that an investigating officer had supplied the defendant's name in Sacks's presence after hearing Sacks give a description of the driver and his vehicle.

¶ 6. Now on appeal, Gilmore raises for the first time the issue of whether Sacks's in-court identification was so hopelessly tainted by the suggestive nature of the investigating officer's comments that it would not support Gilmore's conviction. We note at the outset that there was no attempt to suppress Sacks's in-court identification by a pre-trial motion, and no contemporaneous objection was offered to the identification. Thus, procedurally, the only possible error that could be preserved for appellate review is an attack on the sufficiency of the evidence. The thrust of the argument would have to be that the in-court *1098 identification was the only evidence linking Gilmore to the crime and that, under the circumstances, Sacks's in-court identification was so doubtful as to lack any probative value. The argument would then necessarily proceed along the line that, because of the failure of the State to otherwise link Gilmore to the crime, the evidence was insufficient as a matter of law to support his conviction.

¶ 7. The evident problem with this argument is a procedural one. In order to preserve a challenge to the sufficiency of the evidence for appellate review, the defendant is required first to present the matter to the trial court for consideration through an appropriate and timely motion. Normally, this challenge to the sufficiency of the evidence comes as a motion for directed verdict at the close of the evidence or as a motion for JNOV after the jury has returned a verdict unfavorable to the defendant. Bingham v. State, 723 So.2d 1193 (¶ 6) (Miss.Ct.App.1998). Gilmore did not advance the proposition that Sacks's in-court identification was so defective as a matter of law that it was insufficient to implicate him in the crime by way of a motion for directed verdict at the close of the evidence. Rather, the record shows that the only issue raised in Gilmore's directed verdict motion was that the State failed as a matter of law to prove the use of a deadly or dangerous instrumentality that would support an armed robbery conviction. Neither did Gilmore specifically raise the issue of the lack of probative value of Sacks's in-court identification in his JNOV motion. Instead, he only raised a generic challenge that "[t]he evidence does not support a verdict of guilty." There is no record of a post-verdict hearing on the JNOV motion at which Gilmore sharpened that rather generic and largely meaningless assertion to specifically attack Sacks's in-court identification.

¶ 8. On those facts, we find that Gilmore is procedurally barred from arguing, for the first time on appeal, that the evidence linking him to the robbery of Sacks was insufficient as a matter of law to support his conviction. Martin v. State, 749 So.2d 375 (¶ 10) (Miss.Ct.App.1999).

III.

The Second Issue: Evidence that Sacks's Assailants Were Armed

¶ 9. Gilmore points out that, in order to be convicted of armed robbery on the theory advanced by the prosecution, the State had to prove beyond a reasonable doubt that the robbery was accomplished by "putting [Sacks] in fear of immediate injury to his person by the exhibition of a deadly weapon...." The only evidence on this point was Sacks's own testimony that, at some point during the time he was being assaulted, he felt a sharp pain in his leg that made him think he had been shot or possibly stabbed. At that point, he claimed that he "played possum" to avoid further injury, the result being that his assailants were able to obtain the money from his pocket and abscond.

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Cite This Page — Counsel Stack

Bluebook (online)
772 So. 2d 1095, 2000 WL 1811582, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gilmore-v-state-missctapp-2000.