Powell v. State

878 So. 2d 144, 2004 WL 77874
CourtCourt of Appeals of Mississippi
DecidedJanuary 20, 2004
Docket2002-KA-01071-COA
StatusPublished
Cited by2 cases

This text of 878 So. 2d 144 (Powell 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
Powell v. State, 878 So. 2d 144, 2004 WL 77874 (Mich. Ct. App. 2004).

Opinion

878 So.2d 144 (2004)

Broderick Barshawn POWELL and Markieves Raymond McAffee, a/k/a Markives Raymond McAfee, Appellants
v.
STATE of Mississippi, Appellee.

No. 2002-KA-01071-COA.

Court of Appeals of Mississippi.

January 20, 2004.
Rehearing Denied May 4, 2004.
Certiorari Denied July 29, 2004.

*146 James A. Williams, Meridian, attorney for appellants.

Office of the Attorney General by Scott Stuart, attorney for appellee.

Before KING, P.J., IRVING and GRIFFIS, JJ.

*147 GRIFFIS, J., for the Court.

¶ 1. Broderick Barshawn Powell and Markieves Raymond McAffee appeal their conviction for robbery by use of a deadly weapon. They were sentenced to serve twenty-five years in the custody of the Mississippi Department of Corrections and pay restitution of $2,400. In their appeal, Powell and McAffee contend that (1) jury instruction C-9 was improper and warrants a new trial, (2) in-court identifications by Boyd were inadmissable, (3) the trial judge erred when he admitted evidence that McAffee participated in an attempted robbery at a Popeye's restaurant, (4) Powell and McAffee were denied a fair trial because the State was allowed to put on evidence of a prior inconsistent statement, (5) the verdict was against the overwhelming weight of the evidence, and (6) Powell and McAffee were denied effective assistance of counsel. We find no error and affirm.

FACTS

¶ 2. On June 22, 2001, Joseph Boyd and Cora Brown were robbed as they closed the Ryan's Restaurant in Meridian. Boyd was the assistant manager, and Brown was an employee. Around midnight, as Boyd was locking the door, two men appeared and told them to get down and give them their money. The two men were wearing bandanas partially covering their faces and each man had a gun.

¶ 3. One of the men told Boyd and Brown to go back inside and open the safe. All four went inside. Boyd turned off the alarm, but activated the ambush code. The code alerted the alarm company that a robbery was in progress. Boyd opened the door to the office, and the men told him to open the safe. One of the men took all the money from the safe. The two men then left the restaurant. An officer from the Meridian Police Department arrived approximately five minutes later.

¶ 4. The grand jury indicted Broderick Barshawn Powell and Markieves Raymond McAfee for robbery by the exhibition of a deadly weapon. At trial, Boyd testified that one of the men was around six feet tall and weighed approximately three hundred pounds. The other man was shorter, around five foot six inches and weighed approximately one hundred and twenty five pounds. Boyd testified that the taller man had a rifle, and the shorter man carried a revolver.

¶ 5. Three days after the robbery, the police brought Boyd twelve photographs of potential suspects. Boyd was not able to identify the robbers from the photographs. Boyd testified that he was concerned that he might not be able to make a positive identification because the two men were wearing bandanas covering their mouth and nose.

¶ 6. Later, Boyd was shown photographs again at the police station. This time he was able to identify one of the men. Boyd testified that the second time he looked at the photos, he concentrated on the upper portion of the men's faces. He testified that he could identify the shorter man because this man had really thick dark eyebrows and short hair. Boyd testified that he was sure he identified the shorter man, which he later discovered was McAffee. At trial, Boyd identified McAffee as the shorter man.

¶ 7. Boyd also testified that he recognized Powell from the pictures shown to him by the police, but not from his own recollection. Boyd testified that Powell had the same build as the taller man who robbed him.

¶ 8. Helen Earl was McAffee's girlfriend. She testified that, on the afternoon before the robbery, McAffee told her *148 he needed money and did not have a job. Earl testified that McAffee later told her that he had money. Earl testified that over the next several days McAffee purchased a car stereo and an outfit.

¶ 9. Rhonda Toole was Helen Earl's sister. She testified that she was at home in her room the night before the robbery. She heard McAffee tell Dennis Earl that he and his cousin[1] where going to rob Popeye's. Toole also testified that, on the night after the robbery, Powell and McAffee were bragging about robbing Ryan's Restaurant. During their comments about the robbery, Powell and McAffee did not say how much money they stole, but they were showing jewelry, clothing and shoes that they had purchased. According to Toole, Powell and McAffee said that they parked their car at K-Mart, walked to Ryan's, and waited for "the man to come out." Toole testified that Powell and McAffee claimed that they pulled a gun on the man and told him to go back inside.

¶ 10. Yolanda Easley was a friend of Powell and McAffee. She testified that, on the night of the robbery, about 10:00 p.m., she and Powell were going to the store. McAffee drove up and asked Powell if they were "going to do that thing." Powell told Easley that he would be back and left with McAffee.

¶ 11. A few nights later, Easley saw Powell at a club. Easley testified that Powell had a new watch and bracelet. Easley testified that she heard Powell tell Toreno Griffen that he and McAffee took $2,700 at the robbery at Ryan's.

¶ 12. The jury found Powell and McAffee guilty of robbery by use of a deadly weapon. Powell and McAffee were sentenced to twenty-five years in the custody of the MDOC and to pay restitution of $2,700.

ANALYSIS

I. Whether the trial judge erred in giving jury instructionC — 9.

¶ 13. Powell and McAffee claim the trial judge erred when he charged the jury with instruction C-9. This instruction stated that the jury could find McAffee guilty if it found he acted alone or with another when he robbed Ryan's.

¶ 14. At trial, Powell and McAffee failed to object to this instruction. If no contemporaneous objection is made, the error, if any, is waived. Walker v. State, 671 So.2d 581, 597 (Miss.1995). Accordingly, we find that Powell and McAffee failed to preserve this issue on appeal.

¶ 15. Notwithstanding the procedural bar, this issue is without merit. Instruction C-10 is worded in a manner similar to C-9. The only difference is that C-10 allowed the jury to find Powell guilty if he acted alone or with another. There was no prejudice in the use of these instructions. The instructions correctly told the jury what it must find when it evaluated the evidence before it. We find no error and affirm.

II. Whether the defendants were denied a fair trial when an in-court identification is allowed where no valid out of court identification has been made of either defendant.

A. Whether Boyd's in-court identification of Powell denied him a fair trial.

¶ 16. Powell and McAffee argue the trial judge erred when Boyd was allowed *149 to identify Powell during the trial. The basis for this claim is Boyd's inability to identify Powell in the photographic lineup. Powell and McAffee argue the court should have held a hearing outside the presence of the jury to determine the admissibility of Boyd's identification of Powell.

¶ 17. At trial, Boyd admitted that he did not identify Powell from the photographs shown to him by the police. The prosecutor then asked Boyd if Powell appeared to have the same build as the large man who robbed him. Defense counsel objected to the speculative nature of this question.

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Related

Pritchett v. State
32 So. 3d 545 (Court of Appeals of Mississippi, 2010)
Bennett v. State
18 So. 3d 272 (Court of Appeals of Mississippi, 2009)

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Bluebook (online)
878 So. 2d 144, 2004 WL 77874, Counsel Stack Legal Research, https://law.counselstack.com/opinion/powell-v-state-missctapp-2004.