Hackett v. State

822 So. 2d 1078, 2002 Miss. App. LEXIS 183, 2002 WL 524577
CourtCourt of Appeals of Mississippi
DecidedApril 9, 2002
DocketNo. 2001-KA-00082-COA
StatusPublished
Cited by1 cases

This text of 822 So. 2d 1078 (Hackett 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
Hackett v. State, 822 So. 2d 1078, 2002 Miss. App. LEXIS 183, 2002 WL 524577 (Mich. Ct. App. 2002).

Opinion

BRIDGES, J.,

for the Court.

¶ 1. The grand jury of Hinds County indicted James Hackett and Frederick Perry on five counts of aimed robbery. Hackett went to trial on August 4, 1998, without Perry, who was tried separately. Hackett’s trial continued on August 5, without Hackett, as he fled the court’s jurisdiction. The jury convicted him in absentia on all five counts.

¶ 2. Almost two years later, Hackett returned to the court’s jurisdiction for sentencing following his arrest in Memphis. The court sentenced Hackett to forty years imprisonment on each count, to run concurrently. Between conviction and sentencing, Hackett, through his attorney, had filed a motion for JNOV and a new trial, which was denied. Appeal was denied on those motions until sentencing and a final judgment had been entered. Hack-ett perfected his appeal following sentencing.

STATEMENT OF ISSUES

I. DID THE COURT ERR IN DENYING HACKETT’S MOTION TO SUPPRESS IDENTIFICATION EVIDENCE ARISING FROM A SHOW-UP?

II. DID THE COURT ERR IN ADMITTING OFFICER BUTLER’S TESTIMONY CONCERNING IDENTIFICATION OF HACK-ETT BY THE ROBBERY VICTIMS DURING THE SHOW-UP?

III. DID THE COURT ERR IN DENYING HACKETT A PARTIAL DIRECTED VERDICT FOR [1081]*1081THE ROBBERY OF KATHERINE AND TIM HARRELL?

IV. DID THE COURT ERR IN OVERRULING HACKETT’S OBJECTION TO THE STATE’S CLOSING ARGUMENT?

FACTS

¶ 3. On October 24, 1996, between 7:00 and 7:30 p.m., three armed men entered the Hairstyles Unlimited Salon and robbed all inside at gunpoint. At least one of the gunmen wore a mask. One of the robbers wore a striped shirt, jacket, and dark pants.

¶ 4. About thirty minutes later, James Hackett and Frederick Perry were pulled over for speeding several blocks away. The car fit the description of the getaway car. As they stopped, a third person jumped out of the car and escaped the police. The police found property reported stolen during the robbery in the car, and arrested Hackett and Perry.

¶ 5. The police brought Hackett and Perry to the salon in the backseat of a patrol car, handcuffed. Several of the victims, including Johnny Taylor, the proprietor, and James McNair, his employee, identified Hackett and Perry as two of the robbers, based largely on their clothes. The witnesses identified Hackett from his striped shirt, jacket, and dark pants. Both Hackett and Perry were indicted for armed robbery.

ANALYSIS

I.DID THE COURT ERR IN DENYING HACKETT’S MOTION TO SUPPRESS IDENTIFICATION EVIDENCE ARISING FROM A SHOW-UP?

¶ 6. Even impermissibly suggestive pre-trial identification does not preclude an in-court identification by an eyewitness who viewed the suspect at the procedure “unless: (1) from the totality of the circumstances surrounding it, (2) the identification was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Buggs v. State, 754 So.2d 569, 574 (¶ 22) (Miss.Ct.App.2000) (citations omitted). There are five factors we examine to find whether these standards have been met:

1. 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’s 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.

Id.

¶ 7. Treating the factors individually:

1. The salon was well lit at the time of the crime, and the robbery took about five minutes.
2. The witnesses testified that they were individually confronted by two of the robbers, and spent most of their time observing them.
3. Johnny Taylor identified Hackett primarily from clothes he wore during the robbery, as his face was covered.
4. The witnesses exhibited absolute certainty that the two suspects were two of the robbers.
5. Less than an hour elapsed between the crime and the confrontation.

These factors are to be weighed on a case by case basis; this Court should determine whether taken as a whole these factors “give rise to a very substantial likelihood of misidentification.” York v. State, 413 So.2d 1372, 1383 (Miss.1982).

[1082]*1082¶ 8. The show-up was highly suggestive; Haekett and Perry were cuffed and seated in the back of a police cruiser when the witnesses identified them. Yet there are sufficient indicia of reliability to withstand any suggestion of impropriety: the personal property stolen at the hair salon, including the billfolds of Taylor and Harrell, was recovered from the car in which Haekett and Perry were stopped. A third man fled the car after it stopped, but before the police approached. And, Haekett and Perry met the description the police had for the robbery suspects.

¶ 9. For these reasons, we find that the show-up, although highly suggestive, was not impermissibly suggestive enough to present a substantial likelihood of irreparable misidentification, and we affirm.

II. DID THE COURT ERR IN ADMITTING OFFICER BUTLER’S TESTIMONY CONCERNING IDENTIFICATION OF HACK-ETT BY THE ROBBERY VICTIMS DURING THE SHOW-UP?

¶ 10. Hearsay is an oral or written assertion or assertive act, other than one by the declarant while testifying, offered in evidence to prove the truth of the matter asserted. M. R E. 801. Hearsay is generally not admissible. M.R.E. 802. The Mississippi Supreme Court has consistently held that the testimony of officers concerning the results of their investigation is inadmissible hearsay, which upon admission, constitutes reversible error. Bridgeforth v. State, 498 So.2d 796, 800 (Miss.1986).

¶ 11. Officer Stanley Butler, one of the two officers who arrested Haekett and Perry, brought Haekett and Perry back to the Hairstyles Unlimited Salon to perform a show-up. Butler testified that Haekett was identified by Johnny Taylor, whom the State had called earlier, and by Tim Harrell, who did not testify, at the show-up. Butler’s testimony was hearsay, and since it does not fall under any hearsay exceptions, should not have been admitted.

¶ 12. The court erred by admitting Butler’s hearsay testimony; because the defendant was not prejudiced by the admission of the hearsay, reversal of the conviction and sentence is unwarranted. The Mississippi Supreme Court has held that no grounds for reversal are presented by the admission of hearsay testimony which is merely cumulative. Jones v. State, 606 So.2d 1051, 1057 (Miss.1992). Butler testified as the final State witness, and his testimony served a merely cumulative purpose to Taylor’s identification. Butler’s testimony compares favorably with the testimony of Dr. Hampton in Jones, where Hampton’s testimony, confirming the identification of the defendant, was erroneously admitted:

The record shows that M.J. identified Jones as the perpetrator and that Kathy Booth testified, without objection, that M.J. identified Jones to her as the perpetrator.

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Bluebook (online)
822 So. 2d 1078, 2002 Miss. App. LEXIS 183, 2002 WL 524577, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hackett-v-state-missctapp-2002.