Lattimore v. State

• Citation: 958 So.2d 192
• Decision Date: 26 April 2007
• Docket Number: No. 2002-KA-01853-SCT.,2002-KA-01853-SCT.
• Parties: Terry Lee LATTIMORE a/k/a Terry L. Lattimore, Sr. v. STATE of Mississippi.
• Court: Mississippi Supreme Court

958 So.2d 192

Terry Lee LATTIMORE a/k/a Terry L. Lattimore, Sr. v. STATE of Mississippi.

No. 2002-KA-01853-SCT.

Supreme Court of Mississippi.

April 26, 2007.

Rehearing Denied June 28, 2007.

Whitman D. Mounger, Greenwood, Attorney for Appellant.

Office of the Attorney General, by Deshun Terrell Martin, Attorney for Appellee.

EN BANC.

COBB, Presiding Justice, for the Court.

¶ 1. This case is before the Court on appeal from the judgment of the Washington County Circuit Court which sentenced Terry L. Lattimore to life in prison without parole for capital murder. Lattimore raises issues regarding pre-trial and in-court identification; ineffective assistance of counsel; improper juror communication; prosecutorial misconduct during closing argument; the jury's verdict being against the overwhelming weight of the evidence; and cumulative error. Finding no reversible error, we affirm the trial court's conviction and sentence.

FACTS

¶ 2. On the morning of July 16, 2000, James Dycus responded to a knock at his front door. His wife, Virgie, still in bed, heard a "blundering" noise, and then her dog barked, so she went to the front door, which was ajar. Seeing nothing amiss, she went into the kitchen where she could see through the window that her husband was in the yard, talking to a black man. Sensing that something was not right, Virgie Dycus dialed 911 just as a second black man rounded the corner and struck her husband's head from behind with a pipe-like object. The second man continued to beat Dycus, and then took his wallet.

¶ 3. While on the phone with the dispatcher, Virgie Dycus continued to described the scene as she saw it. She reported that the two men had driven away in a white car. A few minutes later, a neighbor reported a white car traveling at a high rate of speed away from the area. The police found the abandoned getaway vehicle a short distance away, and the vehicle identification number (VIN) showed that it was registered to Terry Lattimore. Dycus died approximately one hour after the assault, and the coroner reported that the cause of death was blunt force trauma to the head.

¶ 4. Gary Brown and Terry Lattimore were both arrested for capital murder.¹ Although they admitted to being at the scene, each implicated the other for the actual killing and claimed to know nothing of the impending crime before it occurred. In Virgie Dycus's initial statement to the deputy sheriff, she described the assailant as being a light skinned, slender black man. She said he was not wearing a shirt and was in his late twenties or early thirties. She identified the other man as merely a tall black man.

¶ 5. Washington County Public Defender William R. LaBarre, was appointed to represent both Lattimore and Brown, even though the case could potentially impose the death penalty and each had already blamed the other for the murder. Eight days after Dycus's death, a physical lineup was set to be conducted by the Washington County Sheriff's office. The Sheriff's investigator called LaBarre's office and spoke with his assistant, Barbara Ballard,² who explained that LaBarre was not available, but she would come over for the lineup. In her presence, and the presence of several others, all of whom were observing through a mirrored window, the officers went forward with the identification process. No counsel was present at this time. Virgie Dycus had no trouble identifying Brown, but "had a little problem picking [Lattimore] out at first because his hair was different." However, once he stepped forward and looked directly toward her, she said unequivocally "that's him," and did not waiver thereafter. The following day, the trial court granted LaBarre's motion to withdraw as Brown's attorney due to a conflict of interest between the two defendants.

¶ 6. At Lattimore's trial, the state called various witnesses to the stand, including Virgie Dycus, who was the only eyewitness to the murder. When asked whether the man who beat her husband was present in the courtroom, she scanned the audience carefully.³ Looking methodically around the courtroom, she hesitantly considered one, or possibly two, different bystanders, before ultimately identifying Lattimore, who was sitting at the defense table.

¶ 7. Johnnie Brimmage, a neighbor of the Dycuses, was also called to testify. He had seen the two men driving down the road toward the Dycus residence prior to the incident, and said that the second man to get out of the car retrieved an object from the trunk which he carried around to the front of the house. Brimmage said he watched for a few minutes and saw the two men leaving the scene. They waved to him casually as they passed. Neither Lattimore's attorney nor the prosecutor pressed Brimmage about the identity of the second man.

¶ 8. Although the purported murder weapon was never positively associated with the murder through forensic investigation, the prosecution brought out a metal pipe during closing argument and referred to it as he argued. During the special hearing, several witnesses testified that the prosecutor proceeded to swing the pipe around and drop it loudly on the table.

¶ 9. The jury (which had been sequestered during trial) returned a verdict of guilty, and sentenced Lattimore to life in prison without parole. The day before the sentencing phase ended, a maintenance person came forward, stating that she had a conversation with a juror's boyfriend in which he admitted he had been discussing aspects of the case with the juror at night on a cell phone that she had secreted into the hotel. The boyfriend denied these allegations, stating that he had been overheard talking about a movie called "The Juror" and that it was a misunderstanding. He said that he knew he was going to be questioned by the court because someone warned him that morning. After questioning, the juror's hotel room was searched, but no phone was found. Although the court conducted a hearing on the matter, counsel for the defense did not move for a mistrial.

ANALYSIS

I. Motion to suppress evidence of the pre-trial identification

¶ 10. When reviewing a trial court's ruling on the admission or suppression of evidence, this Court must assess whether there was substantial credible evidence to support the trial court's findings. Culp v. State, 933 So.2d 264, 274 (Miss. 2005). The admission of evidence lies within the discretion of the trial court and will be reversed only if that discretion is abused. Id.

¶ 11. There is no question that under the Sixth Amendment, a defendant is entitled to counsel at all proceedings after adversarial proceedings have been initiated against him. Brooks v. State, 903 So.2d 691, 694 (Miss.2005). Adversarial proceedings are held to have been initiated when a defendant is arrested pursuant to a warrant. Nicholson v. State, 523 So.2d 68, 74 (Miss.1988).

¶ 12. In the present case, the lineup was conducted eight days after Lattimore was arrested pursuant to a warrant. The law enforcement officers should not have conducted the identification proceeding knowing that Lattimore's counsel could not be present. In Jimpson v. State, 532 So.2d 985, 988 (Miss.1988), a lineup was conducted in order to identify a man accused of armed robbery. Because his counsel was not present at the proceeding, this Court concluded that constitutional error had occurred. Id. at 989. This was not the end of the analysis, however. Under the doctrine of harmless constitutional error, the majority opined that: ". . . there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the federal constitution, be deemed harmless, not requiring the automatic reversal of the conviction." Id. (quoting Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). The Court went on to say that "[a]lthough Jimpson's right to counsel had attached at the lineup, thereby constituting a technical violation of his Sixth Amendment right to counsel, the record is clear that . . . their identification was based on their view of the defendant at [the scene of the crime] and not based on the lineup identification." Id.

¶ 13. The reasoning utilized in Jimpson is likewise applicable to the present case. The lineup itself was constitutional error but not fatal to this case. Lattimore's right to counsel had attached before the lineup was conducted, and thus proceeding with the lineup without his counsel was error. However, it is clear that Virgie Dycus's in-court identification was based upon her view of the defendant at the scene of the crime and not based upon the lineup. Under the standard set forth by the United States Supreme Court in Chapman, and followed in Jimpson, the conviction was not obtained based upon the lineup, but instead was a result of the in-court identification coupled with other evidence.

¶ 14. In ruling on the defendant's motion to suppress, the trial court correctly held that according to the Jimpson case, "the Court must still look at the specific circumstances of this case and of the lineup and the identification . . . [t]he Court is going to deny the motion and allow the identification, finding that the identification of this witness is not based on the lineup, and she will be allowed to make the identification in Court." There is no merit to Lattimore's first issue.

II. In-court identification

¶ 15. Where constitutional error in pre-trial identification has occurred, the state must show by clear and convincing evidence that subsequent in-court identifications are not based upon the offensive lineup, but instead have an independent origin. Gilbert, 388 U.S. at 271, 87 S.Ct. 1951; York v. State, 413 So.2d 1372, 1375 (Miss.1982). In Neil v. Biggers, the U.S. Supreme Court laid out several guiding factors to be used in determining whether the in-court identification is free from the taint of the impermissible lineup. The factors include: the...