Johnson v. State

872 So. 2d 65, 2004 WL 77892
CourtCourt of Appeals of Mississippi
DecidedJanuary 20, 2004
Docket2002-KA-01406-COA, 2002-KA-01409-COA
StatusPublished
Cited by2 cases

This text of 872 So. 2d 65 (Johnson 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
Johnson v. State, 872 So. 2d 65, 2004 WL 77892 (Mich. Ct. App. 2004).

Opinion

872 So.2d 65 (2004)

Arnold Jeffrey JOHNSON, Appellant
v.
STATE of Mississippi, Appellee.
Lester Bledsoe, Appellant
v.
State of Mississippi, Appellee.

Nos. 2002-KA-01406-COA, 2002-KA-01409-COA.

Court of Appeals of Mississippi.

January 20, 2004.
Rehearing Denied April 27, 2004.

*67 James P. Vance, B. Leon Johnson, attorneys for appellant.

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

Before McMILLIN, C.J., BRIDGES and THOMAS, JJ.

THOMAS, J., for the Court.

¶ 1. Lester Bledsoe and Arnold Johnson were convicted of armed robbery by a Calhoun County jury. Both were sentenced to thirty-five years' imprisonment as habitual offenders. Both have appealed and the cases have been consolidated for our review.

¶ 2. Bledsoe and Johnson both allege the eyewitness identifications of them by the victims should have been suppressed, and the verdict was against the overwhelming weight of the evidence. Johnson also argues the trial court erred in refusing to grant a requested continuance and by excluding certain testimony. For the reasons discussed below, we affirm.

FACTS

¶ 3. Around 9:00 p.m. on June 15, 2001, a man knocked on the door of the home of Wayne and Nona Faye Clark, claiming he wished to make a payment on the Steen account. The Clarks own and operate a furniture store and sometimes finance purchases for customers. On occasion, customers would come by the house after business hours to make payments.

¶ 4. Wayne Clark allowed the caller into the house. Very shortly afterwards, a second man entered the house. Mr. Clark, sensing trouble, attempted to draw a pistol from his pocket but the weapon snagged on his clothing. The second intruder seized the gun and turned it on Mr. Clark. This same individual tied up Mr. Clark while the other tied up Mrs. Clark and pushed her to the floor behind a couch. A third man entered the house and rifled through the rooms. Mr. Clark's wallet and some jewelry were taken and the men left together.

¶ 5. The Clarks freed themselves and proceeded to a neighbor's home to contact police. At the time, they gave the following descriptions of the robbers:

(1) Black male, second to enter, big man, 240-50 pounds, 5'9" or 10" with dark skin, a big round face and wearing a faded blue bandana.

(2) Black male, third to enter, 150-160 pounds, slim face, dark skin.

(3) Black male, first to enter, 160-170 pounds, neat hair, dressed casually.

¶ 6. No suspects were apprehended until October 2001. In the interim, the Clarks had attended a live line-up which did not include any of the appellants and they did not identify anyone at that time. In October, Mrs. Clark saw photographs in the newspaper of three individuals accused of robbing a bank in another town and immediately recognized two of them as the men who had robbed the Clarks in June. Mrs. Clark showed the photos to her husband, who recognized all three men. Authorities *68 were notified and a photo array was brought for the Clarks to view. Mr. Clark identified all three men—Arnold Jeffrey Johnson, Lester Bledsoe and Jeffrey Hubbard, a/k/a Jeffrey Sally. Mrs. Clark identified Johnson and Hubbard but not Bledsoe.

¶ 7. Johnson, Bledsoe and Hubbard were jointly indicted but the court granted a motion to sever Hubbard's case and the trial proceeded with Johnson and Bledsoe only. The jury found both men guilty and this appeal followed.

ANALYSIS

1. Eye witness identifications

¶ 8. Both appellants argue the identification of them should have been suppressed because the photo array shown to the Clarks was unduly suggestive. The same photographs used in the newspaper bank robbery article were also used in the photo array. Bledsoe and Johnson's photos were inverted but otherwise the three pictures appeared side by side much as the newspaper had printed. The appellants also argue that contradictions between the Clarks' original statements and those made at a suppression hearing rendered the identification too unreliable to have been presented to the jury. Bledsoe adds the claim that law enforcement drew an "X" beneath his photo, conspicuously singling him out for misidentification.

¶ 9. Constitutional law dictates that identification procedures comport with due process requirements. Neil v. Biggers, 409 U.S. 188, 196, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). What is proscribed are unnecessarily suggestive pretrial identification procedures where a substantial likelihood of misidentification exists. York v. State, 413 So.2d 1372, 1380-81 (Miss. 1982). Due process requires that police say or do nothing which would prompt a witness to identify a particular individual. Coleman v. Alabama, 399 U.S. 1, 5-6, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970). However, even an identification resulting from an unnecessarily suggestive identification procedure is not automatically to be excluded. York, 413 So.2d at 1381. If, under the totality of the circumstances, the identification is reliable, evidence concerning the out-of-court identification would still be admissible. Id.

¶ 10. As a preliminary matter, we note that Mrs. Clark never identified Bledsoe, only Mr. Clark. As Mrs. Clark explained, she was shoved behind the couch by the time the third intruder entered the home and she never saw him but for the briefest of glimpses through the front door. The third individual was identified by Mr. Clark as Bledsoe. Testimony as to when the officer placed an "X" beneath Bledsoe's photo differed. It was drawn either after Mr. Clark had identified all three men and before Mrs. Clark was shown the photo array, or after the array was shown to Mrs. Clark and the officer marked the individual photo to denote that Mrs. Clark did not identify Bledsoe.

¶ 11. Whichever version of the timing is correct, the mark clearly played no part in the identification of Bledsoe. All witnesses who testified stated that the "X" was not present when Mr. Clark identified Bledsoe. The mark therefore could not have persuaded Mr. Clark to make the choice he did. Even had the mark been present when Mrs. Clark viewed the photos, she never identified Bledsoe. She cannot have been led to make a misidentification through a suggestive procedure when she made no identification at all.

¶ 12. As to the remainder of the argument, the first step must be to determine whether or not the State engaged in an unnecessarily suggestive identification procedure. We cannot find that it did. *69 The photographs used were mug shots, a common practice in putting together photo arrays for identification procedures and, in and of itself, does not equal a suggestive procedure.

¶ 13. The Clarks identified the suspects from the newspaper. They were quite certain of their identification and notified the police. It is this identification which must be reviewed for possible taint as a result of improper State conduct. We cannot find that the identifications were in any fashion connected with State activity. Had the Clarks been unable to identify Johnson and Bledsoe before the photo array was presented to them but after the photos appeared in the newspaper, the answer to this question would be different. Under those circumstances, there would be a strong argument that the Clarks were recalling the men from their appearance in the newspaper rather than from the crime committed in their home.

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Bluebook (online)
872 So. 2d 65, 2004 WL 77892, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-state-missctapp-2004.