Davis v. State, No. 57051

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtPRATHER; WALKER; SULLIVAN
Citation510 So.2d 794
PartiesJohnny DAVIS a/k/a Johnny Luckett v. STATE of Mississippi.
Decision Date22 July 1987
Docket NumberNo. 57051

Page 794

510 So.2d 794
Johnny DAVIS a/k/a Johnny Luckett
v.
STATE of Mississippi.
No. 57051.
Supreme Court of Mississippi.
July 22, 1987.

Page 795

Merrida P. Coxwell, Jr., Jackson, for appellant.

Edwin Lloyd Pittman, Atty. Gen. by H.M. Ray, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before DAN M. LEE, PRATHER and ROBERTSON, JJ.

PRATHER, Justice, for the Court:

In the Circuit Court of Hinds County, Johnny Davis a/k/a Johnny Luckett was found guilty of sexual battery and was sentenced as a recidivist to thirty years without probation or parole in the custody of the Mississippi Department of Corrections. From that conviction and sentence, Davis appeals assigning as error:

(1) The trial court erred in refusing to suppress the in-court identification of the appellant by the victim.

(2) The verdict is against the overwhelming weight of the evidence.

(3) The sentence of thirty years in prison without chance for probation or parole is violative of the United States and Mississippi Constitutions.

I.

At approximately 1:00 a.m., October 28, 1984, at her home in Jackson, Mississippi, 42 year-old Delia Smith awoke to a "creeping noise" in the hall outside her bedroom. Upon investigation, Ms. Smith encountered Johnny Davis a/k/a Johnny Luckett who indicated he wanted to perform an act of oral sex. A struggle ensued landing Smith and Davis on the living room couch.

After completing an act of oral sex on Mrs. Smith, Davis allegedly penetrated Smith's vagina with his penis. During the course of this penetration, Ms. Smith procured a brass bird statue with which she beaned Davis on the head numerous times. These blows caused Davis to leave a trail of blood beginning with Ms. Smith's gown and ending at the window he used as an exit. Ms. Smith went next door and called the police.

When the police arrived, they found Ms. Smith in her front yard wearing her night gown. After questioning, Ms. Smith was taken to the Mississippi Baptist Medical Center where she was examined by Dr. Charles E. Grissom.

Before taking Ms. Smith to the hospital to be examined, the accompanying police officers became aware that a man fitting the description of Ms. Smith's attacker was being treated in the Mississippi Baptist Medical Center emergency room for head wounds. After Ms. Smith was examined in the same emergency room, the officers escorted Ms. Smith to the area where the suspect was being treated. Ms. Smith positively identified the suspect, Johnny Davis, as her attacker.

Davis was subsequently arrested and charged with sexual battery in violation of Miss.Code Ann. Sec. 97-3-95. Davis was indicted as a recidivist under Miss.Code Ann. Sec. 99-19-81 and was tried November 6, 1985.

During his trial, Davis was identified in court by Ms. Smith. In addition, a seriological fluid expert testified Davis' blood type matched the blood found on Ms. Smith's gown, but did not match Ms. Smith's blood type. The jury returned a unanimous verdict of guilty, and Davis was sentenced to serve a term of thirty years without probation or parole in the custody of the Mississippi Department of Corrections.

II.

Did the trial court err by refusing to suppress Smith's in-court identification?

Appellant contends Delia Smith's in-court identification was the result of an unnecessarily suggestive viewing by the victim while appellant was being treated at the hospital.

An impermissibly suggestive pretrial identification does not preclude an in-court identification by an eyewitness who viewed the suspect unless from the totality of the circumstances the identification was

Page 796

so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. York v. State, 413 So.2d 1372, 1383 (Miss.1982); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).

The current guidelines for judging the admissibility of identification testimony are found in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). In Manson, the United States Supreme Court concluded:

[R]eliability is the linchpin in determining the admissibility of identification testimony for [allegedly improper suggestive] confrontations. The factors to be considered ... include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.

Manson, 432 U.S. at 114, 97 S.Ct. at 2253, 53 L.Ed.2d at 154. See also, Jones v. State, 504 So.2d 1196 (Miss.1987); Ray v. State, 503 So.2d 222 (Miss.1986); Thompson v....

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17 practice notes
  • Handley v. State, No. 07-KA-58858
    • United States
    • Mississippi Supreme Court
    • December 27, 1990
    ...cert. den. 479 U.S. 936, 107 S.Ct. 414, 93 L.Ed.2d 366 (5th Cir.1986); Sutherland v. State, 537 So.2d 1360 (Miss.1989); Davis v. State, 510 So.2d 794 (Miss.1987); Bandy v. State, 495 So.2d 486 (Miss.1986); Jackson v. State, 483 So.2d 1353 (Miss.1986); Jenkins v. State, 483 So.2d 1330 (Miss.......
  • Nicholson v. State, No. 57471
    • United States
    • United States State Supreme Court of Mississippi
    • March 16, 1988
    ...is the leading case in Mississippi on this issue and has been followed by this Court on numerous occasions. See e.g., Davis v. State, 510 So.2d 794 (Miss.1987); White v. State, 507 So.2d 98 (Miss.1987); Jones v. State, 504 So.2d 1196 (Miss.1987); Smith v. State, 492 So.2d 260 (Miss.1986). A......
  • Hoops v. State, No. 93-KA-00530-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • August 22, 1996
    ...proportionality of certain sentences. See Fleming, 604 So.2d at 302-03; Clowers v. State, 522 So.2d 762, 764 (Miss.1988); Davis v. State, 510 So.2d 794, 797 (Miss.1987); Presley v. State, 474 So.2d 612, 618 (Miss.1985). Solem, however, was overruled in Harmelin v. Michigan, 501 U.S. 957, 96......
  • Minnick v. State, No. DP-79
    • United States
    • United States State Supreme Court of Mississippi
    • December 14, 1988
    ...is the leading case in Mississippi on this issue and has been followed by this Court on numerous occasions. See, e.g., Davis v. State, 510 So.2d 794 (Miss.1987); White v. State, 507 So.2d 98 (Miss.1987); Jones v. State, 504 So.2d 1196 (Miss.1987); Smith v. State, 492 So.2d 260 (Miss.1986). ......
  • Request a trial to view additional results
17 cases
  • Handley v. State, No. 07-KA-58858
    • United States
    • Mississippi Supreme Court
    • December 27, 1990
    ...cert. den. 479 U.S. 936, 107 S.Ct. 414, 93 L.Ed.2d 366 (5th Cir.1986); Sutherland v. State, 537 So.2d 1360 (Miss.1989); Davis v. State, 510 So.2d 794 (Miss.1987); Bandy v. State, 495 So.2d 486 (Miss.1986); Jackson v. State, 483 So.2d 1353 (Miss.1986); Jenkins v. State, 483 So.2d 1330 (Miss.......
  • Nicholson v. State, No. 57471
    • United States
    • United States State Supreme Court of Mississippi
    • March 16, 1988
    ...is the leading case in Mississippi on this issue and has been followed by this Court on numerous occasions. See e.g., Davis v. State, 510 So.2d 794 (Miss.1987); White v. State, 507 So.2d 98 (Miss.1987); Jones v. State, 504 So.2d 1196 (Miss.1987); Smith v. State, 492 So.2d 260 (Miss.1986). A......
  • Hoops v. State, No. 93-KA-00530-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • August 22, 1996
    ...proportionality of certain sentences. See Fleming, 604 So.2d at 302-03; Clowers v. State, 522 So.2d 762, 764 (Miss.1988); Davis v. State, 510 So.2d 794, 797 (Miss.1987); Presley v. State, 474 So.2d 612, 618 (Miss.1985). Solem, however, was overruled in Harmelin v. Michigan, 501 U.S. 957, 96......
  • Minnick v. State, No. DP-79
    • United States
    • United States State Supreme Court of Mississippi
    • December 14, 1988
    ...is the leading case in Mississippi on this issue and has been followed by this Court on numerous occasions. See, e.g., Davis v. State, 510 So.2d 794 (Miss.1987); White v. State, 507 So.2d 98 (Miss.1987); Jones v. State, 504 So.2d 1196 (Miss.1987); Smith v. State, 492 So.2d 260 (Miss.1986). ......
  • Request a trial to view additional results

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