Johnson v. State

• Decision Date: 31 May 1978
• Docket Number: No. 50474,50474
• Citation: 359 So.2d 1371
• Parties: Travis JOHNSON v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1371

359 So.2d 1371

Travis JOHNSON v. STATE of Mississippi.

No. 50474.

Supreme Court of Mississippi.

May 31, 1978.

Rehearing Denied July 12, 1978.

Cumbest & Cumbest, Fielding L. Wright, Jr., James H. Heidelberg, Pascagoula, for appellant.

A. F. Summer, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before ROBERTSON, LEE and BOWLING, JJ.

LEE, Justice, for the Court:

Travis Johnson was convicted of armed robbery in the Circuit Court of Jackson County and was sentenced to fifteen (15) years in custody of the Mississippi State Department of Corrections. He appeals and assigns the following errors in the trial below:

(1) The verdict of the jury was against the overwhelming weight of the evidence.

(2) The trial court erred in overruling a motion for new trial.

(3) The court erred in allowing the in-courtroom identification of the defendant by the prosecuting witness over objection.

(4) Appellant's Fifth, Sixth and Fourteenth Amendment rights were violated by the prosecution's post-indictment photographic lineup.

(5) The trial court erred in denying the writ of error coram nobis.

On January 3, 1974, Faye's Grocery in Moss Point, Mississippi was robbed of approximately five hundred dollars ($500.00). Mrs. Kim Stone, the clerk on duty, testified that, at approximately 6:45 a.m., appellant came into the store and ordered soap powder, bleach and beer. After she rang up the bill for the items, appellant pointed a gun at her and said, "Give me all your money." She then complied with his order to follow him out of the store and "round back," but, at the first opportunity, she ran to a nearby trailer.

Detective Barry Jones investigated the robbery and developed a suspect. On January 9, six days after the robbery, he showed Mrs. Stone a series of photographs. She identified one photograph as appellant. Mrs. Stone was shown other photographs on January 25, 1977, approximately two weeks before the trial, and she again picked out a photograph of appellant. During the trial of the case, she made an in-court identification of the appellant as the person who committed the robbery.

Appellant's defense was an alibi. He testified that during Christmas, 1973, he lived in Nashville, Tennessee, and he went to Jackson County for a visit during the Christmas holidays. He arrived in Jackson County Saturday, December 29, where he stayed with his mother. He further testified that on January 2, 1974, he went to Columbus, Georgia with his cousin, Willie James Riley, accompanied by Angela Johnson, Raymond Simmons, and Lonnie Johnson, that he decided to go back to Nashville, Tennessee, and he left Columbus by bus en route to Nashville in the early morning hours of January 3, 1974. Angela Johnson, her mother, Mrs. Barbara Johnson, and father, Willie James Johnson (whose home they visited in Columbus) corroborated appellant's alibi in part. However, they were unable to testify that appellant boarded the bus and went to Nashville. Raymond Simmons and Willie James Riley were not called as witnesses, although they lived in Moss Point, Mississippi, and their addresses were known to appellant.

I.

Was the verdict of the jury against the overwhelming weight of the evidence?

II.

Did the court err in overruling a motion for new trial?

Lonnie Johnson was called to the stand as a rebuttal witness for the State. No objection was made to any of his testimony. He was asked three different times who returned with him from Columbus, Georgia to Moss Point and his response to each question was that he did not remember. He was excused and Detective Barry Jones was called as a rebuttal witness. No objection was made to the testimony offered by him. He testified that he took a written statement from Lonnie Johnson (See Appendix) and, among other things, Lonnie Johnson told him that appellant returned with him to Moss Point, that they got back to Moss Point about 6:00 a.m., Thursday, January 3, 1974, and that Travis Johnson got out of the automobile near Bill Johnson's grocery on Frederick Street.

Mrs. Stone positively identified appellant as the person who committed the robbery. It is well settled that such testimony, when unimpeached, is sufficient to sustain a verdict of guilty. Contrary to Mrs. Stone's positive identification, appellant testified that he was in Nashville, Tennessee when the crime was committed. The fact that he actually caught a bus to Nashville and was in Nashville is not corroborated. The jury was not under a duty to accept the alibi of appellant (Spikes v. State, 302 So.2d 250 (Miss.1974)) and, viewing the evidence as a whole, we are of the opinion that the verdict of the jury was not against the overwhelming weight of the evidence, and that the motion for new trial was correctly overruled by the court. Murphree v. State, 228 So.2d 599 (Miss.1969); Ivey v. State, 206 Miss. 734, 40 So.2d 609 (1949).

III.

Did the court err in allowing the in-court identification of appellant by the prosecuting witness over objection of counsel?

Improper use of photographs by police officers may cause witnesses to be mistaken in identifying criminals. The danger increases, if a witness is shown pictures of several persons and among them is a photograph of a single individual which is emphasized or is shown in some particular manner. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Appellant contends that Mrs. Stone could not identify him at trial as the person who robbed her three years earlier and that her memory was refreshed by viewing the photographs two weeks before trial. However, Mrs. Stone testified that she could identify appellant without having seen the pictures and there was no doubt in her mind that appellant was the robber. She went through the photographs at the police station and chose appellant's picture; no suggestion was made as to who the suspect was at the time the photographs were seen by her. Mrs. Stone testified she was only two feet away from appellant when the robbery occurred, and she could not forget him. There is ample evidence that Mrs. Stone's in-court identification was based upon independent facts and, under the totality of circumstances surrounding the confrontation, there was no error in permitting the in-court identification. Clubb v. State, 350 So.2d 693 (Miss.1977); Stevenson v. State, 244 So.2d 30 (Miss.1971).

IV.

Were appellant's Fifth, Sixth and Fourteenth Amendment rights violated by the prosecution's post-indictment photographic lineup?

Appellant contends that the photographic lineup was not permissible because counsel was not present at the time Mrs. Stone viewed the photographs. In United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), it was held that a post-indictment lineup reaches the critical stage of the prosecution which requires presence of counsel. Appellant argues that this rule should apply where a witness views a photographic lineup.

The ...