Clubb v. State, 49836
| Decision Date | 28 September 1977 |
| Docket Number | No. 49836,49836 |
| Citation | 350 So.2d 693 |
| Court | Mississippi Supreme Court |
| Parties | William Mansker CLUBB v. STATE of Mississippi. |
Johnston, Wright & Steinberger, Fielding L. Wright, Jr., Pascagoula, for appellant.
A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before INZER, ROBERTSON and BOWLING, JJ.
William Mansker Clubb was indicted, tried and convicted in the Circuit Court of Jackson County for the crime of armed robbery. He was sentenced to serve fifty years in the State Penitentiary, from which he appeals.
On the night of July 25, 1974, a gambling party was in progress in a boat house owned by Robert Vance and located over the water on Corwell Drive in Gulf Hills. Approximately twenty men and women were in attendance. About 9:30 p. m. a knock was heard at the door. Thinking it was someone else seeking to join in the gambling game and being unaware of what was about to happen, one of the occupants opened the door. Three men armed with hand guns burst into the room. The intruders wore stocking masks over their heads. This intrusion brought the games of chance to an unexpected conclusion. The three men required all persons present to place their hands on the dice table and told them not to look up. One by one the men were taken into the hallway where they were forced to give up all their valuables. They were then ordered to strip to their underwear and were taken into a backroom where their hands and feet were bound. After the men were stripped of their valuables and clothing, the women were forced to hand over their valuables and they, too, were bound. Although searched, the women were not required to shed their clothing.
The robbers were in no hurry to complete their job; hence, the proceedings took well over an hour. While they were busily engaged with those already present, other people arrived to join the party. To their utter amazement, they too were confronted by the armed men and forced to join in the hands on the table game. They, too, were robbed and firmly bound. After the robbers had relieved those present of all their valuables (it is estimated that approximately $16,000 was taken) the robbers departed.
After their departure the Jackson County Sheriff's department was notified of the robbery. The crime was investigated by Jerry Quave and after obtaining a description of the robbers from Claudine Hans, who was present during the robbery, he sent out an inquiry to the law enforcement agencies in the area for aid in identifying the robbers. The sheriff's department in Jefferson Parish, Louisiana, sent Quave ten photographs of people, who in their opinion, were capable of committing the crime. Quave showed the photographs to four persons who had knowledge of the robbery. Mrs. Hans identified the photograph of appellant as being one of the robbers. J. B. Richmond, Sr. identified the appellant as being one of the three men he had seen near the boat house on the day before the robbery. Two other persons robbed were shown the photographs, but they were unable to identify the appellant as one of the robbers.
Appellant, along with two other persons, was indicted in September 1973 and charged with armed robbery. A motion was filed to suppress the evidence relative to the identification and it was overruled. Due to a technical defect in the indictment, the original indictment was quashed, and appellant was reindicted in September 1975 by the April 1975 grand jury. Another motion was filed to suppress the identification evidence, and it was likewise overruled. In preparation of the trial of the case, the assistant district attorney, in interviewing people who were present when the robbery occurred, would lay the photographs furnished Quave out on a table and ask the person being interviewed, "Do you recognize any of these people?" Four people interviewed separately identified the picture of appellant as being one of the men who robbed them. The assistant district attorney knew that appellant was represented by counsel, but he never notified the attorney that he was conducting the photographic lineups.
At the trial of the case, the state produced five witnesses who were robbed and each of them made an in-court identification of appellant as being one of the robbers. The defendant called five other persons who were victims of the robbery, and each of them testified that they could not identify appellant as being one of the robbers. The defendant also called Assistant District Attorney Colingo and questioned him relative to the method used in interviewing the witnesses.
In rebuttal the state called as a witness J. B. Richmond, Sr. who testified that on the day before the robbery he saw appellant and two other men having a discussion of some nature near the boat house where the robbery occurred. After both sides rested, appellant made a motion for a directed verdict, alleging several grounds therefor, including that the photographic lineup conducted by the assistant district attorney in the absence of counsel for the defendant so tainted the identification to the extent that the evidence should be excluded. This motion was overruled and the jury found the defendant guilty as charged.
On appeal it is contended that the trial court was in error in overruling defendant's motion to suppress the photographic identification for the reason that such identification was totally tainted in the light of the surrounding circumstances. In this connection, appellant raises the question of whether he had a right to have counsel present on post-indictment pretrial photographic identification.
Both appellant and the state agree that the issue is whether the photographic lineup or array offended against the Constitution. Both also agree that the proper test to be applied is the question of whether the conduct of the confrontation violates due process in light of the totality of circumstances surrounding the confrontation.
We see nothing unduly suggestive about the first use of the ten photographs received from Louisiana authorities. All that the investigating officers had was a description of the three men who committed the robbery. After receiving these photographs, the officers naturally called in some persons who were present to see if they could identify any of the people as being the ones who committed the robbery. As a result of the use of the photographs, appellant and two other men were identified and indicted. There is no indication that the officer influenced the witnesses to identify any person in the photographs included in this group.
The only serious question relative to the identification concerns the use of the photographs by the assistant district attorney in his preparation for trial. At that time appellant was indicted and had counsel representing him. The testimony of the assistant district attorney establishes that he had been appointed after the appellant was indicted due to the district attorney being indisposed. In reviewing the file he found the photographs, and interviewed the witnesses, not in a group, but individually. He spread the photographs to ascertain whether the witness could then identify anyone in the group as being one of the robbers.
The first question is whether this photographic...
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Hansen v. State, 89-DP-0823
...on the point expressly hold that such an instruction should not be given. Hines v. State, 339 So.2d 56, 58 (Miss.1976); Clubb v. State, 350 So.2d 693, 697 (Miss.1977); Ragan v. State, 318 So.2d 879, 882 (Miss.1975) (emphasis in Again, the jury was instructed generally on its duty to scrutin......
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York v. State, 53048
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Corrothers v. State
...on the point expressly hold that such an instruction should not be given. Hines v. State, 339 So.2d 56, 58 (Miss.1976) ; Clubb v. State, 350 So.2d 693, 697 (Miss.1977) ; Ragan v. State, 318 So.2d 879, 882 (Miss.1975) (emphasis in original).Again, the jury was instructed generally on its dut......
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