Grayer v. State

928 So. 2d 905, 2006 Miss. App. LEXIS 83, 2006 WL 225255
CourtCourt of Appeals of Mississippi
DecidedJanuary 31, 2006
DocketNo. 2004-KA-01728-COA
StatusPublished
Cited by2 cases

This text of 928 So. 2d 905 (Grayer 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
Grayer v. State, 928 So. 2d 905, 2006 Miss. App. LEXIS 83, 2006 WL 225255 (Mich. Ct. App. 2006).

Opinion

BARNES, J.,

for the Court.

¶ 1. David Antonio Grayer was convicted of burglary of a dwelling by a Harrison County jury. He was sentenced as a habitual offender to twenty-five years in the custody of the Mississippi Department of Corrections. Grayer perfected this appeal following the denial of his post-trial motions for new trial and reconsideration of sentence. Grayer alleges that the trial court erred in the following particulars: (1) the denial of his pre-trial motion to suppress the identification evidence as unduly prejudicial; (2) the refusal to grant his identity jury instruction; and (3) in granting the State’s motion to amend the indictment. Finding no reversible error, this Court affirms his conviction and sentence.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. Alfred Mack Demás returned home in the early morning hours of April 4, 2003, to find a broken window in the front [907]*907portion of his Gulfport home. Demás testified that he noticed the broken window even before he entered his driveway. When he entered the driveway he saw an individual in the process of leaving the back yard of the home. Demás testified that he opened the door to his vehicle and yelled to the individual to stop; however, the individual ran into a nearby alleyway. Demás testified that he then pursued the individual in his car.

¶ 3. When Demás next caught sight of the individual, the individual was riding a bicycle. Demás testified that his automobile’s high-beam headlights were illuminated while he followed the suspect, and that he was able to get a good look at the side of the man’s face as he looked back several times to see how closely he was being followed. Demás also testified that upon arriving at his home, he was able to get a good look at the individual’s face with the aid of illumination from his home’s floodlights and his automobile’s headlights. The fleeing individual was able to elude Demás by going between two houses. While in pursuit of the suspect, Demás placed a 911 call for assistance on his cellular telephone and offered this testimony regarding the contents of the call: “When I called on the cell phone, I told them my house had been broken into and it was a n. on a bike with a black jogging suit. The exact words that I said.”

¶ 4. After losing sight of the suspect, Demás returned home where he was met by Fred Gaston of the Gulfport Police Department, who had responded to the 911 call. Gaston testified that one of the first things he noticed was that the glass was broken out of the front window of the home. Inside the house, items such as televisions and VCRs were stacked in a room at the very back of the house next to the open back door. Numerous other items had been removed from the house and placed in the back yard. The interior of the house had been ransacked and a number of old coins and several watches were missing. Gaston testified that while he was still conducting his investigation of the crime scene he received a dispatch notification over his radio that another officer had made contact with a suspect matching the description that Demás had given.

¶ 5. Wayne H. Payne II of the Gulfport Police Department testified that on the morning in question he was on K9 patrol when he received the call about a burglary in process with the victim chasing the suspect, who was described as a black male wearing dark gray or black clothing. The call also reported that some' coins and watches were missing from the crime scene. Payne testified that he drove to the area and rode around looking for anyone who fit the description. Two blocks from the crime scene he saw a black male on foot who fit the description. Payne testified that the call about the burglary had come in at 1:56 a.m. and that it was approximately 2:10 a.m. when he saw this individual. Payne testified that he exited his patrol car and spoke with the individual, who appeared highly intoxicated and identified himself as David Grayer. Grayer had several watches in his hands and coins in his pocket. Payne testified that he asked Gaston to have Demas come to the location for a positive identification. Payne’s testimony regarding what transpired upon Demas’s arrival at the location was as follows:

We were standing next to my patrol vehicle. The victim drives up, exited his vehicle. He walked up. He says, “[Y]eah, that’s the guy broke into my house.” The victim was pretty angry. He begins yelling. We get them separated again. As the victim is walking [908]*908away, Mr. Grayer says, “I’m sorry,” and some more yelling goes on, and then, “I was wrong for what I did.”

¶ 6. Demás testified that he was allowed to examine a brown bag containing the items that were taken from Grayer at the scene, and that one of the items was a retirement pin that Demás had received upon his retirement from a local bank. Additionally, Demás identified all of the other items from the bag as his personal belongings. Grayer rested without putting on a defense.

ANALYSIS

1. Motion to suppress the eyewitness . identification

¶ 7. Grayer contends that the show-up identification was suggestive and that the lower court erred in refusing to grant his motion to suppress the identification testimony at trial. In support of his contention, Grayer directs this Court’s attention to the landmark United States Supreme Court case of Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). Biggers holds that the following factors are to be considered in determining whether, under the totality of circumstances, a show-up identification was reliable even though the confrontation procedure was suggestive: (1) the opportunity of the witness to view the accused at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the witness’ prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation. Biggers, 409 U.S. at 199— 200, 93 S.Ct. 375; Nicholson v. State, 523 So.2d 68, 72 (Miss.1988).

¶ 8. In his analysis of the Biggers factors, Grayer argues that the show-up identification was unreliable under the totality of the circumstances in that: (1) Demás only saw the face of the perpetrator for between two and five seconds; (2) Demás was a sixty-seven-year-old man who had not had his eyesight checked in twenty years, who viewed the perpetrator from inside his vehicle from ten to fifteen yards away, after having a few cocktails; (3) the prior description provided by Demás only made a pejorative reference to the perpetrator’s race and gave a vague description of his clothing; and (4) no doubt was expressed as to the certainty of the identification; and (5) the length of time between the crime and confrontation was approximately fourteen minutes. Grayer sums up his argument by contending that since De-mas was unable to describe anything other than the race and attire of the perpetrator, the show-up identification was unduly suggestive and the lower court erred in not suppressing it.

¶ 9. The trial court found that the show-up identification was suggestive only in that Grayer was the only individual present for viewing at the time. Otherwise, the court found that the totality of the circumstances surrounding the identification rendered the identification rehable.

¶ 10. The Mississippi Supreme Court held in Magee v. State,

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83 So. 3d 370 (Mississippi Supreme Court, 2012)
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Bluebook (online)
928 So. 2d 905, 2006 Miss. App. LEXIS 83, 2006 WL 225255, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grayer-v-state-missctapp-2006.