Ray v. State, No. 56589

CourtMississippi Supreme Court
Writing for the CourtROBERTSON; WALKER; WALKER
Citation503 So.2d 222
Docket NumberNo. 56589
Decision Date05 November 1986
PartiesLewis Brooks RAY v. STATE of Mississippi.

Page 222

503 So.2d 222
Lewis Brooks RAY
v.
STATE of Mississippi.
No. 56589.
Supreme Court of Mississippi.
Nov. 5, 1986.
As Modified on Denial of Rehearing
Feb. 25, 1987.

Tom T. Ross, Jr., Ross & Ross, Clarksdale, for appellant.

Edwin Lloyd Pittman, Atty. Gen. by Jack B. Lacy, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

En Banc.

ON PETITION FOR REHEARING

ROBERTSON, Justice, for the Court:

I.

At its core this appeal of an armed robbery conviction asks that we consider whether a pre-trial notice of alibi filed by defense counsel may be employed by the prosecution as substantive evidence. We hold that it may not. The notice of alibi is merely a notice that the defendant may assert an alibi defense at trial. It is required under a procedural rule designed to minimize the practice of trial by ambush.

Because the Circuit Court allowed the notice of alibi, over defense objections, to be considered by the jury as evidence against the accused, we reverse and remand for a new trial.

II.

Shortly before 5:00 o'clock on the afternoon of October 13, 1984, a man, said to be Lewis Brooks Ray, Defendant below and Appellant here, entered the premises of Clarksdale Beauty Supply Company and at gunpoint robbed its proprietor, Fred M. Dawson, of approximately $1,555.00. Shortly thereafter Ray was arrested and on January 2, 1985, he was formally charged in an indictment returned by the Coahoma County Grand Jury with the crime of armed

Page 223

robbery. Miss.Code Ann. Sec. 97-3-79 (Supp.1985). The matter was called for trial in the Circuit Court of Coahoma County, Mississippi, on February 7, 1985, at the conclusion of which the jury found Ray guilty of armed robbery. The Circuit Court thereupon sentenced Ray to a term of forty years imprisonment, the jury having failed to reach an agreement regarding the penalty to be imposed. Following the usual post-trial motions, this appeal has been perfected.

Ray presents six assignments of error, one of which will require reversal. Two of the assignments of error relate to issues almost certain to arise upon remand, and in the interest of judicial efficiency, we will address them. The other three assignments of error relate to issues which seem unlikely to recur and with respect to which, in any event, our law is reasonably well settled. Those issues will not be addressed.

III.

Ray's first assignment of error, if we understand it correctly, is that the Circuit Court erred in overruling his motion to suppress the testimony of Fred W. Dawson insofar as Dawson identified Ray as the perpetrator of the armed robbery. Ray argues that a show-up conducted by law enforcement officers shortly after his arrest had such an impact upon Dawson that Dawson's identification testimony at trial was more likely the product of his observations of Ray at the show-up than his memory of the appearance of the armed robber on the afternoon of October 13. Put otherwise, Ray argues that under the totality of the circumstances there was a substantial probability that Dawson misidentified Ray as the man who entered his place of business on the 13th of October, 1984. Ray complains both of the show-up where Dawson identified him at the police station and of a previous procedure whereby Dawson identified a photograph of Ray in police files.

Disposition of this point is controlled by the pattern of analysis emanating from the familiar case of Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), where the Court identified five factors to be considered by the trial court in determining whether the witness' in court testimony had been impermissibly tainted by his participation in law enforcement investigatory identification procedures. Those factors are:

(1) the opportunity of the witness to view the accused at the time of the crime;

(2) the degree of attention exhibited by the witness;

(3) the accuracy of the witness' prior description of the criminal;

(4) the level of certainty exhibited by the witness at the confrontation; and

(5) the length of time between the crime and the confrontation.

409 U.S. at 199, 93 S.Ct. at 382, 34 L.Ed.2d at 411.

We have followed the Neil v. Biggers standards on numerous occasions. Thompson v. State, 483 So.2d 690, 692 (Miss.1986); Johnson v. State, 476 So.2d 1195, 1205 (Miss.1985); Robinson v. State, 473 So.2d 957, 959-61 (Miss.1985); Tobias v. State, 472 So.2d 398, 399 (Miss.1985).

The record reflects that Dawson was face to face with his armed robber on October 13, 1984, for approximately one minute. Consideration of none of the Neil factors suggests on these facts no substantial possibility of misidentification. At the conclusion of the hearing on the pre-trial motion to suppress, the Circuit Court stated its opinion that Dawson's "identification [of Ray] was reliable enough not to be tainted by some suggestion" but reserved final ruling on the point until Dawson testified at trial. When that point was reached, defense counsel objected to Dawson's in court identification testimony and the Circuit Court overruled the objection. Quite clearly, the combined effect of the Circuit Court's pre-trial and trial rulings is that of a finding of fact that, under the totality of the circumstances, Dawson's in court identification testimony had not been impermissibly tainted. We may, of course, disturb such a finding only where there is an absence

Page 224

of substantial credible evidence supporting it. See Watts v. State, 492 So.2d 1281, 1289 (Miss.1986). Here there is no such absence. Ray's Assignment of Error No. 1 is denied.

IV.

Ray argues that the Circuit Court erred in refusing to require the prosecution to disclose the name of a confidential informant who first supplied Ray's name as the perpetrator of the robbery. Fred M. Dawson, the prosecuting witness, testified that he had received a phone call the night of the robbery stating that Lewis Brooks Ray was the man who had committed the robbery. This information, we are told, led to Ray's arrest and prosecution.

Our law is familiar and well settled on this point. If the informant is a person who participated in the criminal activity or who is a material witness to facts of substantial relevance to the matter of whether the accused is guilty, his name ordinarily must be disclosed to the defense. On the other hand, a confidential informant who neither participated in the crime nor witnessed it ordinarily may remain undisclosed. See, e.g., Garvis v. State, 483 So.2d 312, 316 (Miss.1986); Breckenridge v. State, 472 So.2d 373, 377 (Miss.1985); Wilson v. State, 433 So.2d 1142, 1145 (Miss.1983); Young v. State, 245 So.2d 26, 27 (Miss.1971).

The present record fails to reflect that the person who called Dawson on the night of October 13 had either witnessed the armed robbery or participated in it. Indeed, Dawson's testimony that he was robbed by a lone assailant would seem to negative any suggestion that another individual--the confidential informant--was either present as a witness or a participant in the robbery. Under these circumstances the Circuit Court committed no error in refusing to require the prosecution to disclose the name of the individual who called Dawson on the night of the robbery.

V.

The dispositive assignment of error concerns the prosecution's use of the contents of the Notice of Alibi filed on behalf of Defendant Ray prior to trial. The record reflects that on February 4, 1985, pursuant to Rule 4.07, Miss.Unif.Crim.R.Cir.Ct.Prac., a Notice of Alibi was filed which reads as follows:

COMES NOW the Defendant, by and through his attorney of record, Tom T. Ross, Jr., and hereby notifies the State of his intention to offer the following amended alibi for October 13, 1984:

1) TIME: 3:55--4:30 p.m.

PLACE: At step-sister's house

WITNESSES: None

2) TIME: 4:30--4:50 p.m.

PLACE: Walked to campus of...

To continue reading

Request your trial
45 practice notes
  • Conner v. State, No. 90-DP-927
    • United States
    • United States State Supreme Court of Mississippi
    • December 2, 1993
    ...trial court erred in allowing the prosecution to use the statement as a tool to impeach his alibi witnesses. Conner cites Ray v. State, 503 So.2d 222 (Miss.1986), a case in which the State used the defendant's notice of alibi to impeach a defense witness. This Court Page 1262 Where no predi......
  • Brooks v. State, No. 98-KA-00322-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • October 7, 1999
    ...the findings only if there is no substantial, credible evidence supporting the findings. Ellis, 667 So.2d at 605 (citing Ray v. State, 503 So.2d 222, 223-24 ¶ 27. In his order dated January 8, 1992, the trial judge found that the photo identification by Ashley Smith was not impermissibly su......
  • Nixon v. State, No. DP-65
    • United States
    • United States State Supreme Court of Mississippi
    • November 25, 1987
    ...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. State, 483 So.2d 690 In Manson, the United States Supreme Court reaffirmed the pattern of analysis emanating from N......
  • Nicholson v. State, No. 57471
    • United States
    • United States State Supreme Court of Mississippi
    • March 16, 1988
    ...disturb such a finding only where there is an absence of substantial credible evidence supporting it. [emphasis added] Ray v. State, 503 So.2d 222, 224 (Miss.1986). Therefore, this Court must determine if, in this case, there is substantial credible evidence supporting the trial judge's B. ......
  • Request a trial to view additional results
45 cases
  • Conner v. State, No. 90-DP-927
    • United States
    • United States State Supreme Court of Mississippi
    • December 2, 1993
    ...trial court erred in allowing the prosecution to use the statement as a tool to impeach his alibi witnesses. Conner cites Ray v. State, 503 So.2d 222 (Miss.1986), a case in which the State used the defendant's notice of alibi to impeach a defense witness. This Court Page 1262 Where no predi......
  • Brooks v. State, No. 98-KA-00322-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • October 7, 1999
    ...the findings only if there is no substantial, credible evidence supporting the findings. Ellis, 667 So.2d at 605 (citing Ray v. State, 503 So.2d 222, 223-24 ¶ 27. In his order dated January 8, 1992, the trial judge found that the photo identification by Ashley Smith was not impermissibly su......
  • Nixon v. State, No. DP-65
    • United States
    • United States State Supreme Court of Mississippi
    • November 25, 1987
    ...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. State, 483 So.2d 690 In Manson, the United States Supreme Court reaffirmed the pattern of analysis emanating from N......
  • Nicholson v. State, No. 57471
    • United States
    • United States State Supreme Court of Mississippi
    • March 16, 1988
    ...disturb such a finding only where there is an absence of substantial credible evidence supporting it. [emphasis added] Ray v. State, 503 So.2d 222, 224 (Miss.1986). Therefore, this Court must determine if, in this case, there is substantial credible evidence supporting the trial judge's B. ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT