Guerrero v. State

943 So. 2d 774, 2006 WL 3490909
CourtCourt of Appeals of Mississippi
DecidedDecember 5, 2006
Docket2005-KA-01971-COA
StatusPublished
Cited by1 cases

This text of 943 So. 2d 774 (Guerrero 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
Guerrero v. State, 943 So. 2d 774, 2006 WL 3490909 (Mich. Ct. App. 2006).

Opinion

943 So.2d 774 (2006)

Jose Luis Rivera GUERRERO a/k/a Jose Louis Reivera Gurrero, Appellant
v.
STATE of Mississippi, Appellee.

No. 2005-KA-01971-COA.

Court of Appeals of Mississippi.

December 5, 2006.

*775 Raymond M. Baum, Winona, attorney for appellant.

Office of the Attorney General by Deshun T. Martin, attorney for appellee.

Before MYERS, P.J., SOUTHWICK and GRIFFIS, JJ.

MYERS, P.J., for the Court.

¶ 1. Before this Court is an appeal filed on behalf of Jose Luis Rivera Guerrero, in forma pauperis, from his conviction in the Circuit Court of Attala County of aggravated assault under Mississippi Code Annotated section 97-3-7(2). On September 13, 2005, the jury returned a guilty verdict against Guerrero, finding that on or about *776 June 25, 2004, Guerrero feloniously and purposefully caused serious bodily harm to Raul Olmeda by shooting Olmeda in the chest during a barroom brawl at the Pop-A-Top Cantina, located on Highway 43 North in Attala County. The trial judge sentenced Guerrero to a term of fifteen years under the supervision of the Mississippi Department of Corrections. Guerrero's appeal presents the following issues:

I. WHETHER THE TRIAL COURT ERRED IN FAILING TO GRANT GUERRERO'S MOTION TO SUPPRESS IN-COURT IDENTIFICATION TESTIMONY BASED UPON "UNDULY SUGGESTIVE" PRE-TRIAL SHOW-UP AND PHOTOGRAPHIC LINEUPS?
II. WHETHER THE TRIAL COURT ERRED IN FAILING TO GRANT GUERRERO'S MOTION FOR A NEW TRIAL WHERE THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

¶ 2. Finding no error, we affirm Guerrero's conviction.

STATEMENT OF THE FACTS

¶ 3. On Friday, June 25, 2005, Raul Olmeda, his girlfriend Vicky Edwards, and several friends drove from their home in Carthage, Mississippi to the Pop-a-Top Cantina. The Pop-a-Top Cantina, located one mile north of Kosciusko in Attala County, is an establishment frequented by Hispanic Americans and Mexican nationals. Olmeda and his companions arrived at the Pop-a-Top around 7:30 p.m. and spent the next several hours dancing, shooting pool, socializing, and drinking beer. Around 11:30 p.m., Olmeda and another member of his party became involved in an altercation with two other patrons. A fight broke out among the four men and an all-out barroom brawl ensued, eventually involving more than thirty men. At some point in the melee, two shots were fired and Olmeda fell to the ground with a bullet wound to the chest. The shooter left the scene and Olmeda was rushed to a local hospital. Olmeda was then airlifted to the University of Mississippi Medical Center in Jackson, where he remained in a coma for nearly three weeks before regaining consciousness and beginning the recovery process.

¶ 4. On the night of the shooting, Edwards provided Attala County Sheriff William Lee with a description of the shooter. Edwards stated that she observed the incident from a distance of less than five feet, and that the shooter was a tall, long-haired Hispanic with bad acne, wearing a blue hat and a blue or gray shirt. The next morning, Sheriff Lee relayed Edwards' description to Deputy Robert Riley. Based on Edwards' description, and after ascertaining the identities of several persons who were involved in the altercation from the bartender who had been working at the Pop-a-Top when the shooting occurred, Deputy Reilly picked up Guerrero and his brother, Eric. The two men were brought to the Attala County Jail and placed in the day room. The day room is an area immediately outside the cell block, where inmates, arrestees, and detainees are allowed to congregate during certain hours of the day. Deputy Riley then contacted Edwards, who had accompanied Olmeda to the hospital in Jackson, and informed her that three suspects were in custody. Deputy Riley requested that Edwards come to the Attala County Jail as soon as possible to see if she could identify any of the suspects as the shooter.

¶ 5. The record indicates that, after having spoken with Deputy Riley, Edwards left the hospital and proceeded to the Attala County Jail. Upon arriving at the jail, Edwards entered the door to the jailer's *777 office and immediately recognized Guerrero, whom she could see through a window separating the office and the day room. Edwards exclaimed that Guerrero was the shooter, and the identification was overheard by Deputy Riley as he entered the door behind her. Edwards testified both in a suppression hearing and at trial that she had not met Deputy Riley and did not know he was entering the building behind her until after she had identified Guerrero as the shooter. Deputy Riley testified that, prior to Edward's identification of Guerreo, there had been no indication made to Edwards that Guerrero was a suspect in the shooting, and that Guerreo had not been intentionally singled out or separated from other suspects in any way. Edwards testified that she recognized Guerrero primarily because he was wearing the same clothes he had been wearing the night before and because his severe facial acne was a distinguishing feature.

¶ 6. On June 29, 2005, Edwards again identified Guerrero as the shooter by picking him out of a photographic lineup. The photographic lineup contained black and white pictures of six Hispanic suspects bearing the numbers one through six next to each photograph. Raul Olmeda, the victim, identified Guerrero as the person who shot him after review of a similar photographic lineup. Olmeda's identification was made approximately six weeks after the shooting, once he had regained consciousness and use of his faculties.

¶ 7. Guerrero filed a pretrial motion in which he sought to prohibit any in-court identification of him made by Edwards on the basis that the identification made at the jail was an impermissible show-up lineup. He also asserted that the photographic lineup was tainted because a photograph, later admitted into evidence at trial as Exhibit "S-1" bore the inscription "shooter." However, the trial judge determined that the testimony was admissible and the State was allowed to introduce the evidence at trial.

¶ 8. During the State's case-in-chief, Edwards was asked to make an in-court identification of Guerrero as the shooter; she could not. Edwards testified that she could not identify the defendant, Guerrero, as the shooter because over the two years between the shooting and the trial Guerreo's complexion had cleared up, his hair had been cut, and he had aged. However, Edwards testified that she was "one-hundred percent" certain that the person in the photograph admitted into evidence as Exhibit "S-1" was the person who shot Olmeda. Deputy Riley testified that the person pictured in Exhibit "S-1" was Guerrero and identified him as the defendant. Deputy Riley further testified that Exhibit "S-1," the photograph bearing the inscription "shooter," was not a part of the photographic lineup from which Edwards and Olmeda identified Guerreo, and that neither Edwards nor Olmeda were shown the photograph until the State was preparing for trial. Furthermore, Olmeda made an in-court identification of Guerrero as the man who shot him and this identification is unchallenged on appeal.

LEGAL ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN FAILING TO GRANT GUERRERO'S MOTION TO SUPPRESS IN-COURT IDENTIFICATION TESTIMONY BASED UPON "UNDULY SUGGESTIVE" PRE-TRIAL SHOW-UP AND PHOTOGRAPHIC LINEUPS?

STANDARD OF REVIEW

¶ 9. The standard of review for suppression hearings on matters of pre-trial identification is "whether or not substantial credible evidence supports the trial *778

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Related

Young v. State
962 So. 2d 110 (Court of Appeals of Mississippi, 2007)

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Bluebook (online)
943 So. 2d 774, 2006 WL 3490909, Counsel Stack Legal Research, https://law.counselstack.com/opinion/guerrero-v-state-missctapp-2006.