Lee v. State

877 So. 2d 543, 2004 Miss. App. LEXIS 589, 2004 WL 1382278
Procedural entryThis page is a short order in Lee v. State. Read the opinion of the Court — 910 So. 2d 1123
Court of Appeals of Mississippi·Decided June 22, 2004·No. No. 2003-KA-00379-COA·Published

Opinion

SOUTHWICK, P.J., for the Court.

¶ 1. A Harrison County Circuit Court jury convicted John Curtis Lee of robbery. On appeal he claims error from the State’s introduction of color photographs, the failure to grant certain jury instructions, and the absence of sufficient evidence. We disagree and therefore affirm.

¶ 2. On November 9, 2001, William Bryant had just gotten paid three hundred dollars in cash as wages for his work. [544]*544Bryant had worked for a landscaping company for twelve years. The employer had a practice of paying his twelve to fourteen member crew in cash from his apartment, a practice that might have been known by others. The work crew waited in the parking lot outside the employer’s apartment and were individually called to receive their pay. On this particular day, Bryant noticed some men who were not crew members waiting in the parking lot as well. He recognized one of them as a young man that he knew by the name of John. He did not know his last name. After getting paid, Bryant decided to walk to a local bar. John offered to walk with him.

¶ 3. As the two men walked towards the bar, John asked Bryant for a cigarette. As Bryant was getting the cigarette, John hit him in the face with a metal object. A scuffle ensued and Bryant was pushed into a ditch. John placed his knee in Bryant’s back, said “give it up,” reached into Bryant’s pocket and took the cash. After he took the money, two other men who knew Bryant came up and caused John to run away. He dropped the money, returned for it, then ran again.

¶ 4. Bryant walked one block to the police department to report the attack. An ambulance took Bryant to the hospital. There, a detective questioned Bryant and took pictures of his injuries. Bryant was able to tell the detective that his attacker was named John. The officer compiled a six-person photo line-up. Bryant identified John Curtis Lee.

¶ 5. At a January 2003 trial, Lee was convicted of robbery and given a seven year sentence.

DISCUSSION

1. Photographs

¶ 6. Lee claims that the lower court erred in allowing the admission of two photographs. First, Lee argues that the trial judge erred in allowing the introduction of a color photographic line-up. During discovery, black and white copies of the photographic line-up had been furnished to the defense. Lee states that the “colored photo of the lineup left no question that Mr. Bryant had circled the picture of the Defendant, John Lee Curtis, while the black and white photo was barely visible and left the issue in grave doubt.” He further argues that because the prosecution was allowed to supplement the photos on the morning of trial, over his objection, he was subjected to “unfair surprise and trial by ambush.”

¶ 7. At the hospital, the color photographs were shown to Bryant. After Bryant identified the robber, the detective made a black and white copy of the photographs so that Bryant could circle, date, and initial the Lee’s picture. The detective did not want writing to appear on the only color copy that was available. The black and white copy with Bryant’s circle, date, and initial was presented during discovery. The color photograph was presented on the morning of trial. At trial, Lee’s counsel was given the opportunity to compare this photograph with the black and white one that was produced during discovery. He had the option of requesting a continuance in order to avoid the consequences of “unfair surprise and trial by ambush.” The record reveals that he objected on the basis of a discovery violation, but there is no recorded request for a continuance. We find nothing for which a continuance would have been needed. The victim testified that he already knew Lee before the incident, and the identification was therefore not a meaningful issue.

¶ 8. Second, Lee claims that the judge erred in allowing the admission of photographs, presented on the morning of [545]*545trial, depicting the injuries suffered by Bryant. The photographs were taken in the hospital emergency room as Bryant was receiving medical attention. For some reason, the color photographs were not discovered by the prosecutor until the day before trial. The photographs were admissible to show the extent of the victim’s injuries. One of the reasons the injuries were relevant was that the indictment charged that Lee had taken Bryant’s money “by violence to his person.” The photographs are not gruesome, as they show Bryant with a swollen eye, and blood and perhaps swelling on one side of his face. They pictorially confirmed Bryant’s testimony about his injuries. Lee did not on the record request a continuance because of the late discovery of the color photographs. There was a bench conference regarding counsel’s objections, and we do not know what was said. No abuse of discretion occurred in allowing the admission of the photographs depicting the injuries.

2. Jury Instructions

¶ 9. Lee claims that the lower court erred in failing to grant two jury instructions, D-3 and D-8.

¶ 10. Instruction D-3, the reasonable juror instruction, was presented by Lee as follows:

The Court instructs the Jury that a reasonable doubt may arise from the whole of the evidence, the conflict of the evidence, the lack of the evidence, or the insufficiency of the evidence; but however it arises, if it arises, it is your sworn duty to find the Defendant “Not Guilty.”

¶ 11. The State objected that D-3 was similar to instruction D-Ah

The Court instructs the Jury that under the law you do not have the right to convict John Curtis Lee upon mere suspicion. You may not convict John Curtis Lee just because there may be a preponderance of evidence against him or just because there may be a reason to suspect that he is guilty.
Suspicion, no matter how strong never rises to the dignity of proof beyond a reasonable doubt. Before you can find John Curtis Lee guilty you must be convinced solely upon the evidence presented during this trial that he is guilty beyond a reasonable doubt.

¶ 12. The judge provided an opportunity for Lee to choose between the two similar instructions. Lee chose instruction D-4 for presentation to the jury. Refusal to include a repetitive jury instruction is not error. Jackson v. Daley, 739 So.2d 1031,1037 (Miss.1999).

¶ 13. Lee fortifies his argument for inclusion of instruction D-3 by relying upon caselaw from Wilcher v. State, 455 So.2d 727 (Miss.1984). Lee argues that this Court has previously condoned a similar instruction in Wilcher. All Wilcher means is that either instruction might have been an adequate presentation of the issue. There was no need for both, however.

¶ 14. 'Next, Lee argues that the trial court erred in denying instruction D-8. He argues that this instruction was critical to his defense:

The Court instructs the Jury that each one of you has a duty in this case to decide the issues for yourself. If, after considering all the evidence, the instructions of the court, and after free consultation with your fellow jurors, you continue to have any reasonable doubt, then you must vote NOT GUILTY on each and every ballot of the Jury.

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Lee v. State, 877 So. 2d 543, 2004 Miss. App. LEXIS 589, 2004 WL 1382278 (Mich. Ct. App. 2004).

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Related

McClain v. State
625 So. 2d 774 (Mississippi Supreme Court, 1993)
Jackson v. Daley
739 So. 2d 1031 (Mississippi Supreme Court, 1999)
Wilcher v. State
455 So. 2d 727 (Mississippi Supreme Court, 1984)
Holmes v. State
660 So. 2d 1225 (Mississippi Supreme Court, 1995)