Bankston v. State, No. 52316

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtSMITH; PATTERSON
Citation391 So.2d 1005
PartiesL. B. BANKSTON v. STATE of Mississippi.
Docket NumberNo. 52316
Decision Date17 December 1980

Page 1005

391 So.2d 1005
L. B. BANKSTON
v.
STATE of Mississippi.
No. 52316.
Supreme Court of Mississippi.
Dec. 17, 1980.

Stephen S. Cooke, Grenada, for appellant.

Page 1006

Bill Allain, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before SMITH, SUGG and LEE, JJ.

SMITH, Presiding Justice:

L. B. Bankston was indicted for the crime of armed robbery. He was tried on that charge in the Circuit Court of Grenada County, convicted, and sentenced to serve a term of thirty years imprisonment.

On appeal he has assigned the following grounds for reversal:

(1) Failure of the trial court to sustain appellant's motion to suppress his identification by the victim;

(2) Allowing testimony on redirect examination of a witness upon a matter not brought out on cross-examination;

(3) The evidence was insufficient to support the verdict of the jury and appellant's motion for a directed verdict should have been granted; and

(4) The sentence of thirty years imprisonment, without parole, was excessive, arbitrary, capricious and violative of the Constitution of the United States and the law of the State of Mississippi.

At about 1:30 in the morning of January 9, 1980, Dhirubha Desai, desk clerk of the Parkview Motel in Grenada, was on duty. A man entered the motel and inquired of Desai whether the driver of a white pickup truck which was parked outside had checked into the motel. As Desai moved to check the register a second man entered, approximately a minute after the first. This second man had a mask over his face and was carrying a shotgun. At this time the man who had first entered pulled his cap down into a face mask, took the gun and led Desai into another room while the second man took the money from the cash box. This man also took Desai's wallet. The amount taken from the cash box was $258.00 and that in Desai's wallet was $25.00.

Desai described the man who had entered the motel first as having worn a light brown jacket, cream colored pants and as having a mustache. Afterward, Desai identified Bankston as this man who had held the gun on him during the robbery.

The robbery completed, the robbers fled on foot. The police were summoned and when they arrived found a ski mask and a loaded sawed-off shotgun near the motel. Approximately an hour after the robbery, a Grenada policeman saw Bankston at a taxicab stand about three blocks from the motel. This policeman had seen Bankston two days earlier and at that time, the policeman said, Bankston was wearing his customary mustache. However, when seen by the policeman the morning after the robbery Bankston no longer had the mustache but the policeman observed that Bankston's skin was light around his mouth and under his chin as if it had been fresh shaven. A taxicab driver also had seen Bankston earlier in the day which preceded the robbery and at that time Bankston had his mustache. The cab driver testified that when he saw Bankston after the time of the robbery the mustache had been shaved off.

The day after the robbery, the chief of police presented four photographs (including a photograph of Bankston) to Desai for possible identification of the robber. Although there were four photographs, only three people were depicted. The third and fourth photographs were of the same person which was not Bankston. Immediately upon seeing the photograph of Bankston, Desai identified him as the robber.

About a week after the robbery, Desai was asked to inspect a lineup for possible identification of the robbers and at this time Desai again identified Bankston as the robber who had held the shotgun on him while the robbery was being committed. Bankston was arrested on January 10, 1980.

Bankston was indicted for the crime and prior to trial there was an evidentiary hearing on Bankston's motion to suppress certain evidence. Bankston contended that he had not been afforded counsel prior to the lineup, that the method of identification from photographs was unnecessarily suggestive and that the lineup had been unconstitutionally conducted. At the conclusion

Page 1007

of the hearing on the motion it was denied by the trial judge.

Under the proposition presented on appeal it is Bankston's contention that his right to counsel under the sixth amendment to the United States Constitution was violated at the lineup conducted by the police department, and, therefore, his in-court identification by Desai should have been suppressed. In the case of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and its companion case, Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) the United States Supreme Court held that a pretrial corporeal identification conducted after a suspect was indicted was a critical stage in a criminal prosecution to which the sixth amendment right to counsel applied. In Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), the Court made it clear that the right to counsel attaches only "at or after the initiation of adversary judicial criminal proceedings, whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." Appellant cites Moore v. Illinois, 434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977), as supporting his contention that he should have been afforded counsel in his preindictment lineup. Moore, however, applied the Wade-Kirby standards and held that the defendant should have been afforded counsel at a preliminary hearing where he was identified by the victim. Moore made no change in the previously announced rule that representation by counsel is not required at a preindictment investigatory lineup.

This Court has held consistently that the right to counsel does not extend to preindictment lineups. Scott v. State, 359 So.2d 1355 (Miss.1978); Fells v. State, 345 So.2d 618 (Miss.1977); Cox v. State, 326 So.2d 794 (Miss.1976).

Based upon the above authorities we have concluded that Bankston was not entitled to representation by counsel at the preindictment lineup in this case.

It is next argued by appellant that the procedure at both the photograph identification and at the lineup was so impermissibly suggestive that it violated Bankston's...

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21 practice notes
  • Nixon v. State, No. DP-65
    • United States
    • United States State Supreme Court of Mississippi
    • 25 Noviembre 1987
    ...lineups. See e.g., Lannom v. State, 464 So.2d 492, 495 (Miss.1985); Wilson v. State, 451 So.2d 718, 722 (Miss.1984); Bankston v. State, 391 So.2d 1005, 1007 (Miss.1980) and cases cited However, in Page v. State, 495 So.2d 436 (Miss.1986) this Court, applying Miss. Const. Art. 3, Sec. 26, he......
  • Nicholson v. State, No. 57471
    • United States
    • United States State Supreme Court of Mississippi
    • 16 Marzo 1988
    ...a characteristic described to police by Ms. McKinion. Such is undeniably a suggestive photographic display. See Bankston v. State, 391 So.2d 1005, 1008 (Miss.1980) (holding that showing the victim only one photograph of a man with a mustache was impermissibly suggestive). A series of photog......
  • Howell v. State, No. 2013–CA–01027–SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • 9 Octubre 2014
    ...proceedings, whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.’ ” Bankston v. State, 391 So.2d 1005, 1007 (Miss.1980) (quoting Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972) ).¶ 38. The Court has held that “[a]dversari......
  • York v. State, No. 53048
    • United States
    • United States State Supreme Court of Mississippi
    • 12 Mayo 1982
    ...decisions by this Court: Chambers v. State, 402 So.2d 344 (Miss.1981); Miller v. State, 399 So.2d 1338 (Miss.1981); Bankston v. State, 391 So.2d 1005 (Miss.1980); and Scott v. State, 359 So.2d 1355 (Miss.1978). Under our holding in the cases of Porter v. State, 339 So.2d 564 (Miss.1976); Bu......
  • Request a trial to view additional results
22 cases
  • Nixon v. State, No. DP-65
    • United States
    • United States State Supreme Court of Mississippi
    • 25 Noviembre 1987
    ...lineups. See e.g., Lannom v. State, 464 So.2d 492, 495 (Miss.1985); Wilson v. State, 451 So.2d 718, 722 (Miss.1984); Bankston v. State, 391 So.2d 1005, 1007 (Miss.1980) and cases cited However, in Page v. State, 495 So.2d 436 (Miss.1986) this Court, applying Miss. Const. Art. 3, Sec. 26, he......
  • Nicholson v. State, No. 57471
    • United States
    • United States State Supreme Court of Mississippi
    • 16 Marzo 1988
    ...a characteristic described to police by Ms. McKinion. Such is undeniably a suggestive photographic display. See Bankston v. State, 391 So.2d 1005, 1008 (Miss.1980) (holding that showing the victim only one photograph of a man with a mustache was impermissibly suggestive). A series of photog......
  • Howell v. State, No. 2013–CA–01027–SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • 9 Octubre 2014
    ...proceedings, whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.’ ” Bankston v. State, 391 So.2d 1005, 1007 (Miss.1980) (quoting Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972) ).¶ 38. The Court has held that “[a]dversari......
  • York v. State, No. 53048
    • United States
    • United States State Supreme Court of Mississippi
    • 12 Mayo 1982
    ...decisions by this Court: Chambers v. State, 402 So.2d 344 (Miss.1981); Miller v. State, 399 So.2d 1338 (Miss.1981); Bankston v. State, 391 So.2d 1005 (Miss.1980); and Scott v. State, 359 So.2d 1355 (Miss.1978). Under our holding in the cases of Porter v. State, 339 So.2d 564 (Miss.1976); Bu......
  • Request a trial to view additional results

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