Holloway v. State, 243

Decision Date08 May 1972
Docket NumberNo. 243,243
Citation261 So.2d 799
PartiesLouis HOLLOWAY v. STATE of Mississippi. Misc.
CourtMississippi Supreme Court

David M. Lipman, Oxford, Johnnie E. Walls, Jr., Greenwood, for appellant.

A. F. Summer, Atty. Gen., by James W. Haddock, Sp. Asst. Atty. Gen., Jackson, for appellee.

SMITH, Justice.

ON APPLICATION FOR LEAVE TO FILE PETITION FOR WRIT OF ERROR

CORAM NOBIS

This case is now before us on an application for leave to file a petition for writ of error coram nobis. Petitioner's conviction of armed robbery was affirmed by this Court on December 21, 1970, in accordance with the Court's opinion reported in 242 So.2d 454 (Miss. 1970).

The basis assigned in the application for granting leave to file the petition is, in short, that petitioner was subjected to an impermissibly suggestive 'show up' and 'line up' following his arrest, at a time when he was not represented by counsel. It is conceded that petitioner was never at any time, either at the 'show up' or 'line up' or in the course of his trial, recognized or identified as having been one of the men who committed the robbery. No reference, either to the 'show up' or the 'line up', appears anywhere in the trial record except in petitioner's own testimony given on direct examination by his own counsel as a witness in his own behalf. His statement was '. . . about 1:00 o'clock, they took us down for a lineup. . . . After this lineup they took us back upstairs. . . .' No other information about either the show up or line up appears.

The proprietor of the establishment robbed was asked repeatedly by petitioner's counsel if he could identify petitioner as having been one of the men who had robbed him. Each time his answer emphatically was that he could not. He did identify, as having been one of those who had participated in the robbery, one Sanders. It appears that he recognized Sanders because he, Sanders, had not worn a mask. Unquestionably, the witness had ample opportunity upon the occasion of the robbery to see Sanders and to remember his appearance. This identification was in no way related to the 'show up' or 'line up.'

Obviously, since petitioner referred to it himself in his own direct testimony given at his trial, he and his counsel knew of the 'show up' or 'line up.' However, it was never brought to the attention of the trial court, and no question was raised at the trial level that the circumstances had been prejudicially suggestive. Nothing related to it formed any part of the evidence upon which the jury acted in convicting petitioner. There was nothing about it among the several grounds assigned in petitioner's motion for a new trial nor was it assigned or argued as error in petitioner's appeal to this Court. The trial record reflects that petitioner was fairly tried and convicted upon sufficient evidence of guilt.

Petitioner's present position seems to be predicated upon Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Long v. United States, 137 U.S.App.D.C. 311, 424 F.2d 799 (1969); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); United States v. Clark, 289 F.Supp. 610 (D.C.Pa.1968); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).

However, in the case now under consideration, petitioner was never identified at any pretrial 'show up' or 'line up.' On the contrary, it was unequivocably stated that he...

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6 cases
  • Pruett v. Thigpen, 54000
    • United States
    • Mississippi Supreme Court
    • January 11, 1984
    ...433 So.2d 906 (Miss.1983); Wheat v. Thigpen, 431 So.2d 486 (Miss.1983); Callahan v. State, 419 So.2d 165 (Miss.1982); Holloway v. State, 261 So.2d 799 (Miss.1972); Botts v. State, 210 So.2d 777 (Miss.1968); and Corry v. Buddendorf, 98 Miss. 98, 54 So. 84 In Callahan, supra, we adopted the l......
  • Smith v. State, 53564
    • United States
    • Mississippi Supreme Court
    • June 1, 1983
    ...first time in post-conviction relief proceedings. Wheat v. Thigpen, supra; Edwards v. Thigpen, supra. See particularly, Holloway v. State, 261 So.2d 799, 800 (Miss.1972). Fourth alleged ground for relief relates to his claim that the in-court identification of Smith by witnesses Thomas and ......
  • Gilliard v. State
    • United States
    • Mississippi Supreme Court
    • February 22, 1984
    ...claims found in his federal habeas petition. The Fifth Circuit commented as follows: It is far from certain, however, that Holloway [261 So.2d 799 (Miss.1972) ] and Auman [285 So.2d 146 (Miss.1973) ] stand for the proposition that the petitioner is barred from presently raising his federal ......
  • Callahan v. State, 1445
    • United States
    • Mississippi Supreme Court
    • February 16, 1983
    ...the affirmance of his conviction and then, for the first time, use them to begin the whole process all over again." Holloway v. State, 261 So.2d 799, 800 (Miss.1972). IIA. The petitioners' first assignment of error concerns the failure of the trial court judge to grant certain jury instruct......
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