Roche v. State

913 So. 2d 306, 2005 WL 851347
CourtMississippi Supreme Court
DecidedApril 14, 2005
Docket2004-KA-00383-SCT
StatusPublished
Cited by33 cases

This text of 913 So. 2d 306 (Roche v. State) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Roche v. State, 913 So. 2d 306, 2005 WL 851347 (Mich. 2005).

Opinion

913 So.2d 306 (2005)

James T. ROCHE
v.
STATE of Mississippi.

No. 2004-KA-00383-SCT.

Supreme Court of Mississippi.

April 14, 2005.

*308 John A. Howell, Meridian, attorney for appellant.

Office of the Attorney General by Jeffrey A. Klingfuss, attorneys for appellee.

Before WALLER, P.J., GRAVES and RANDOLPH, JJ.

WALLER, Presiding Justice, for the Court.

¶ 1. A Pearl River County Circuit Court jury convicted James T. Roche of commercial burglary. The trial court subsequently sentenced Roche, per Mississippi's habitual offender statute, Miss.Code Ann. § 99-19-81 (Rev.2000), to seven years in prison without eligibility for parole. Roche now appeals the conviction which we affirm.

FACTS

¶ 2. In the early morning hours of November 12, 2002, Officer Raymond Rickoll, an off-duty police officer, sat on his front porch smoking a cigarette when he noticed a two-toned, gold or champagne-colored Lexus pass by his home in Picayune two or three times. Officer Rickoll said he was intentionally keeping an eye on the Sunflower *309 grocery store, about 100 yards away, because his training officer had advised him that drug activity had been going on near the store at night.

¶ 3. At 1:57 a.m., he saw a black male get out of the Lexus, carry a black jacket in his hand, and approach the Sunflower.[1] Officer Rickoll then heard banging sounds coming from the store but was unable to discern the source of the noise. He called the police, describing the driver as a 195-pound black male, five feet, nine inches tall, wearing a black hat and black pants, and carrying a black jacket in his hands. The man subsequently drove away before Officer Rickoll could reach him.

¶ 4. Shortly thereafter, Officer Charles Esque, Jr. arrived at the Sunflower after hearing Officer Rickoll's message over the radio. After the store's owner arrived and opened the door, he and Officer Rickoll investigated the scene and discovered the window had been broken and two black cash till drawers were missing as well as the change that had been left inside them.[2] A third till drawer had been emptied of its change and left in the Sunflower parking lot. The officers discovered nothing else missing and later found the other two drawers discarded on different streets in Picayune.

¶ 5. Officer Chad Dorn said that after receiving a call from dispatch conveying Officer Rickoll's description of the perpetrator, he noticed a "gold or brownish," two-toned Lexus traveling through east Picayune. He followed the vehicle until it stopped at the local Texaco station. James T. Roche, the driver, got out of the vehicle and started walking toward Officer Dorn. The passenger, Joseph Parkman, exited the vehicle and entered the store. After Roche asked what was going on, Officer Dorn informed him he was driving a vehicle believed to be involved in a local burglary. At that point, Officer Dorn placed Roche in investigative custody.

¶ 6. At 3:20 a.m., Officer Rickoll received a call from the police department summoning him to the Texaco station. When he arrived, he recognized the Lexus as being the one he had seen about an hour and a half earlier. The driver of the car, Roche, who is a black male, was wearing a black hat and dark clothing. Officer Rickoll also noticed a black jacket in the back seat of the car. Although he could not identify Roche's face, he testified that Roche was the same height and build of the man he saw in the Sunflower parking lot. Slightly contrary to Officer Rickoll's initial description of the perpetrator was Roche's testimony that he is five feet, eleven inches tall (as opposed to five feet, nine inches tall) and weighs 220 pounds (rather than 195 pounds).

¶ 7. Officer Esque looked through the window of the vehicle and saw two paper bags. On one of the bags someone had written "Nickles-$7.00" and on the other bag someone had written "Dimes-$8.00."[3] Roche later stated he had hand-written the *310 totals on the bags. Officer Esque also saw a black jacket in the back seat.

¶ 8. The officers searched the vehicle and, in addition to the bagged change, found $11.50 in quarters, $0.20 in nickels, and $0.03 in pennies in the console. After examining the jacket in the back seat, Officer Esque said he noticed it was glittering with tiny pieces of glass.[4] The officers also found a car jack in the trunk. Finally, the officers confiscated three rolls of pennies Parkman used to pay for a pack of cigarettes.[5]

¶ 9. At trial, Roche testified he and Joseph Parkman had been watching movies together, listening to music, and drinking alcohol that night. Both men testified that around midnight, Roche left the house and said he was going back to his house to rob his piggy bank.[6] He stated he drove home, took a jug full of change, emptied it, counted it all out, placed the nickels and dimes in separate bags, and returned by 12:30 a.m.[7] He testified that he and Parkman left sometime later to purchase cigarettes and liquor, and were confronted by police after stopping at the Texaco. Furthermore, on the stand, Roche contemporaneously estimated he "had about $10 or $11 worth of quarters" in the console, but stated that the large amount of quarters in his console was the result of dropping extra change in there over time.

ANALYSIS

¶ 10. On appeal, Roche raises five grounds of error: (1) the trial court erred in overruling Roche's objection to Officer Rickoll's identification of him as the perpetrator; (2) the trial court erred in failing to suppress evidence collected during the search of Roche's vehicle; (3) the trial court erred in refusing to strike the entire jury panel and declare a mistrial; (4) the verdict was against the overwhelming weight of the evidence; and (5) the evidence was insufficient to sustain the verdict.

A. Identification

¶ 11. Roche contends he was impermissibly identified by Officer Rickoll in a "show-up" procedure at the Texaco and argues the trial court's failure to sustain his objection to the identification violated his constitutional right to due process. The standard of review for trial court decisions regarding pretrial identification is "whether or not substantial credible evidence supports the trial court's findings that, considering the totality of the circumstances, in-court identification testimony was not impermissibly tainted." Ellis v. State, 667 So.2d 599, 605 (Miss.1995) (citing Magee v. State, 542 So.2d 228, 231 (Miss.1989); Nicholson v. State, 523 So.2d 68, 71 (Miss.1988); Ray v. State, 503 So.2d 222, 224 (Miss.1986)). We will only disturb the order of the trial court "where there is an absence of substantial credible evidence supporting it." Id. (citing Ray, 503 So.2d at 224).

¶ 12. We have previously held that "pretrial identifications which are suggestive, without necessity for conducting them in such manner, are proscribed." York v. State, 413 So.2d 1372, 1383 (Miss.1982). The United States Supreme Court has also stated, "[t]he practice of showing suspects *311 singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned." Foster v. California, 394 U.S. 440, 443, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969) (quoting Stovall v. Denno,

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Cite This Page — Counsel Stack

Bluebook (online)
913 So. 2d 306, 2005 WL 851347, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roche-v-state-miss-2005.