Houston v. State

887 So. 2d 808, 2004 WL 1098951
CourtCourt of Appeals of Mississippi
DecidedMay 18, 2004
Docket2002-KA-01475-COA
StatusPublished
Cited by13 cases

This text of 887 So. 2d 808 (Houston 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
Houston v. State, 887 So. 2d 808, 2004 WL 1098951 (Mich. Ct. App. 2004).

Opinion

887 So.2d 808 (2004)

Derrick L. HOUSTON a/k/a Derrick Lashaun Houston, Appellant,
v.
STATE of Mississippi, Appellee.

No. 2002-KA-01475-COA.

Court of Appeals of Mississippi.

May 18, 2004.
Rehearing Denied August 10, 2004.
Certiorari Denied December 2, 2004.

*810 James A. Williams, Brookhaven, attorney for appellant.

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

Before KING, C.J., THOMAS and MYERS, JJ.

KING, C.J., for the Court.

¶ 1. Derrick L. Houston was convicted of robbery with the use of a deadly weapon and aggravated assault in the Lauderdale County Circuit Court. Houston was sentenced to a term of twenty years on each offense, in the custody of the Mississippi Department of Corrections, with the sentences to run concurrently. Aggrieved, Houston appeals raising the following issues which we quote verbatim:

I. Whether a defendant is denied a fair trial by jury, fundamental fairness and due process of law, when a suggestive out-of-court identification has tainted the in-court identification and the conviction should be reversed and remanded for a new trial.
II. Whether the closing argument by the State contemptuously attacked the credibility of the defense counsel and commented upon the defendant's failure to testify and shifted the burden of proof and thus so prejudiced the jury that defendant was denied a fair trial, fundamental fairness and due process of law and a new trial is required.
III. Whether a defendant convicted of both armed robbery and aggravated assault where the assault is an integral part of the armed robbery is denied his right against double jeopardy and the conviction and sentence on the aggravated assault must be vacated to avoid double punishment for the same crime.
*811 IV. Whether defendant is denied effective assistance of counsel when trial counsel does not object to hearsay from the victim about display by a defendant's father of his photograph and the victim's remarks to the father and about display by the district attorney's office of another photograph she said wasn't the robber and repeated opinions by the detective that the identification was sound because he believed the victim's [sic] and is ineffective by voir dire that speaks of the indictment as "probable cause" and then a comparison of the indictment in his closing argument to the State's burden of proof and fails to pursue a pre-trial motion to suppress any identification by the victim.
V. Whether the weight and sufficiency of the evidence do not support a guilty verdict because the identification is too suspect defendant is entitled to a new trial.

FACTS

¶ 2. Marlene Hester testified that on the evening of February 19, 2001, she was working alone as a clerk at Little Joe's Package Store on Highway 19 North in Meridian. At approximately 9:30 p.m., a black male entered the store, pulled a small silver-plated handgun out of his pants, pointed the gun at her, and demanded money.

¶ 3. Hester indicated that the male appeared to be in his early 20s, had a lot of gold in his mouth, wore jeans, a dark blue shirt, and a bandana around his head.

¶ 4. The robber stooped behind the counter to avoid being seen and demanded that Hester place all of the money from the cash register in a bag. Hester complied, but the robber insisted that there was more money in the store. The robber asked whether there was a safe in the store. When Hester said no, he hit her with the gun. The robber took Hester to the stock room at the rear of the store. In the stock room, the robber pulled the telephone cord out of the wall, struck Hester in the head with the gun, and threatened to kill her if she did not tell him where more money was located. Hester stated that the robber hit her on the head once with the gun and four or five times on the arms.

¶ 5. Hester informed the robber that there was a box in the room which contained $250. The robber kept insisting that this was not all of the money and that he was going to kill Hester.

¶ 6. After taking possession of the money, the robber made Hester lie down behind some boxes in the stock room and left through the front door. After Hester heard the bell jingle on the front door, she used the telephone at the front of the store to report the incident. Hester also testified that there was a surveillance camera in the store but she told the robber that it did not work.

¶ 7. Following treatment at the emergency room for her injuries, Hester went to the police station where she looked at several books containing photographs of potential suspects. She did not see the robber in any of the books.

¶ 8. Later, Hester looked at a second set of between fifteen and twenty photographs that Officer Tim Eldridge of the Meridian Police Department brought to her job for viewing. Eldridge had called and advised Hester that someone that he thought fit her description of the robber had been picked up by the police. When Hester viewed these photographs, she immediately picked out Derrick Houston.

¶ 9. Hester testified that approximately one or two weeks after identifying Houston from the second set of photographs, Houston's father came into the store. He *812 suggested that she may have confused his son with a person of similar appearance, and asked that she view some photos, which he brought with him. Hester identified Houston and stated that the picture showed him wearing the same bandana he wore on the night of the robbery.

¶ 10. Houston raised an objection to the admission of a black and white copy of the photographs as opposed to the actual color photographs used in the line- up. However, there was no objection to the in-court identification made by Hester.

¶ 11. Houston was convicted of robbery by use of a deadly weapon and aggravated assault.

ISSUES AND ANALYSIS

I.

Whether the out-of-court identification procedures were so highly suggestive that the in-court identification was tainted.

¶ 12. Houston asks this Court to reverse and remand this matter arguing that the admission of the out-of-court identification procedures and the in-court identification were plain error. Plain error requires that there be an error which was (1) readily apparent, (2) not presented to the trial court for disposition, and (3) which results in a manifest miscarriage of justice. Sanchez v. State, 792 So.2d 286(¶ 16) (Miss.Ct.App.2001). "The plain error doctrine has been construed to include anything that `seriously affects the fairness, integrity or public reputation of judicial proceedings.'" Dobbins v. State, 766 So.2d 29(¶ 5) (Miss.Ct.App.2000).

¶ 13. Houston argues that both the in-court and out-of-court identification affected his substantive rights. Houston claims that the original six-photograph line-up sheet (exhibits S-8 and S-9) shown to Hester was suggestive in (1) that all photos save his had dates of arrest that were before February 19, 2001, thereby causing his photo to stand out, (2) that he was the only person not in the formal photograph room, and (3) that in the photos only two individuals, including himself, had "raised eyebrows."

¶ 14. While there is no question but what these issues are a matter of concern to Houston, they are not under these facts, matters to address as plain error. Accordingly, this Court declines to note them as plain error.

¶ 15. An appellant is obligated to present to the trial court for disposition each matter which he claims to be error.

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Cite This Page — Counsel Stack

Bluebook (online)
887 So. 2d 808, 2004 WL 1098951, Counsel Stack Legal Research, https://law.counselstack.com/opinion/houston-v-state-missctapp-2004.