Wingate v. State

794 So. 2d 1039, 2001 WL 151704
CourtCourt of Appeals of Mississippi
DecidedFebruary 20, 2001
Docket1999-KA-00608-COA
StatusPublished
Cited by6 cases

This text of 794 So. 2d 1039 (Wingate 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
Wingate v. State, 794 So. 2d 1039, 2001 WL 151704 (Mich. Ct. App. 2001).

Opinion

794 So.2d 1039 (2001)

Garth WINGATE, Jr., Appellant,
v.
STATE of Mississippi, Appellee.

No. 1999-KA-00608-COA.

Court of Appeals of Mississippi.

February 20, 2001.
Rehearing Denied June 19, 2001.
Certiorari Denied September 20, 2001.

*1040 Dan W. Duggan, Jr., Brandon, Vicki Lachney Gilliam, Jackson, Attorneys for Appellant.

Office of the Attorney General by Billy L. Gore, Attorneys for Appellee.

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

BRIDGES, J., for the Court:

¶ 1. Garth Allen Wingate, Jr. was convicted on one count of robbery and one count of aggravated assault in the Rankin County Circuit Court. Wingate appeals, alleging the following errors in the court below:

*1041 I. THE TRIAL COURT ERRED BY FAILING TO SUPPRESS BOTH THE OUT-OF-COURT IDENTIFICATION OF WINGATE BY STEVERSON AND THE SUBSEQUENT IN COURT IDENTIFICATION BECAUSE THE PRIOR SUGGESTIVE AND IMPROPER PHOTO LINE-UP WAS SO IMPERMISSIBLY SUGGESTIVE THAT IT GAVE RISE TO A VERY SUBSTANTIAL LIKELIHOOD OF IRREPARABLE MISIDENTIFICATION; AND
II. THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

Finding no error, we affirm.

FACTS

¶ 2. Seventy-five year old Laurine Steverson admitted a wet, muddy, and shivering Garth Allen Wingate, Jr. into her home between 7:00 a.m. and 8:00 a.m. on January 18, 1995. Steverson knew Wingate because his father helped her do odd jobs around her home and his aunt lived two doors down from her. Wingate told Steverson that he had fallen in a ditch, and he asked if he could come in and dry off. Steverson invited Wingate inside and allowed him to dry off by her heater. Wingate left when Steverson's home health aide, who was present during this early morning visit, told Wingate it was time for Steverson's bath. Steverson lived alone, but she had a home health aide over every morning to check on her.

¶ 3. At around lunch time on the same day, Steverson was physically assaulted and robbed in her home. Her home health aide had gone by that time, so Steverson was alone. Her assailant punched her in the nose, bound her hands, knees, and ankles with duct tape, gagged her with a sock secured by duct tape, and dragged her from the living room to the bedroom. Steverson was discovered at about 5:00 p.m. by neighbors. Steverson suffered a broken shoulder, broken ribs, and various abrasions and bruises which required her hospitalization for eight days. Steverson identified her assailant as "Garth Allen Wingate, Jr." to the police officer who arrived on the scene.

¶ 4. Steverson testified that she allowed Wingate into her home the second time because he told her that he had been locked out of his mother's and father's home. He asked Steverson if he could come in and sit by her fire. When asked why he did not go to his aunt's home just two doors down, Wingate told Steverson that his aunt talked too much. Steverson admitted Wingate into her home and went to get him a glass of water which he requested. After Wingate drank half of the glass of water, he punched Steverson in the nose and began gagging her and taping her.

¶ 5. When Steverson returned home after her hospitalization, she discovered that $360 was missing from a Sunburst Bank envelope which she kept under her mattress. Also, $40 was missing from her wallet. Steverson was the only one who knew that she kept a bank envelope containing cash under her mattress. A fingerprint analysis of the bank envelope, performed by a scientist at the Mississippi Crime Lab, revealed two fingerprints matching Wingate's left ring-finger. Steverson testified that Wingate had never been in her bedroom before the day he assaulted her and did not previously have access to the envelope.

¶ 6. About three weeks after the assault and robbery, Don Manning, a detective at the Pearl Police Department, showed Steverson a page containing six photographs. The photographic line-up included a photograph of Wingate along with photographs of five other white males. Detective Manning *1042 instructed Steverson to study the photographs and determine which, if any, was her assailant. After about two or three minutes, Steverson selected Wingate's photograph from the line-up. Wingate was arrested shortly thereafter.

¶ 7. Wingate admitted to the police that he had visited Steverson on the morning of the day that she was assaulted. Afterwards, Wingate claimed that he walked to his father's house. Discovering that his father was not home, Wingate walked ten miles to Capital Beer Service, a bar on Porter Street, near Gallatin Street, in Jackson. Wingate told Detective Manning that he arrived at the bar at around 10:00 a.m. and remained there all day. He further claimed that he spent the night in a friend's car in the bar's back parking lot. Wingate did not testify at trial.

LAW AND ANALYSIS

I. DID THE TRIAL COURT ERR BY FAILING TO SUPPRESS BOTH THE OUT OF COURT IDENTIFICATION OF WINGATE AND THE IN COURT IDENTIFICATION?

¶ 8. The standard of review for suppression hearing findings in pre-trial identification cases follows:

The combined effect of the circuit court's pre-trial and trial rulings is that of a finding of fact that, under the totality of the circumstances ... in-court identification testimony had not been impermissibly tainted. We may, of course, disturb such a finding only where there is an absence of substantial credible evidence supporting it.

Magee v. State, 542 So.2d 228, 231 (Miss. 1989).

¶ 9. Wingate believes that the photographic line-up was impermissibly suggestive and that it tainted Steverson's in-court identification of him as the perpetrator of the crimes against her. He argues that he was the only person in the line-up whose height was clearly depicted at over six feet and the only one with blond hair. Further, Wingate claims he looks heavier and older than the others. The trial court denied Wingate's motion to suppress the line-up and allowed Steverson to make an in-court identification of Wingate. The trial court further allowed Detective Manning to testify that after Steverson viewed the photographic line-up, she identified Wingate as her assailant. To determine whether the trial court's findings were supported by substantial evidence, we turn to a discussion of the law which governs pre-trial and post-trial identifications.

¶ 10. A photographic line-up is impermissibly suggestive when the accused is "conspicuously singled out in some manner from others...." York v. State, 413 So.2d 1372, 1383 (Miss.1982). "An impermissibly suggestive pre-trial identification does not preclude an in-court identification by an eye-witness who viewed the suspect at the procedure, unless: (1) from the totality of the circumstances surrounding it (2) the identification was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Id. The standard is the same, with the omission of the word "irreparable," even where testimony regarding the out-of-court identification itself is proffered. Id.

¶ 11. Since testimony was elicited regarding Steverson's out-of-court identification, the trial court was charged with determining whether from the totality of the circumstances surrounding the photographic line-up, the identification was so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification. To determine whether this standard was fulfilled, the we consider the *1043 factors enumerated in Neil v. Biggers,

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Cite This Page — Counsel Stack

Bluebook (online)
794 So. 2d 1039, 2001 WL 151704, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wingate-v-state-missctapp-2001.