Reese v. State, 2002-KA-00966-COA.
| Decision Date | 06 April 2004 |
| Docket Number | No. 2002-KA-00966-COA.,2002-KA-00966-COA. |
| Citation | 879 So.2d 505 |
| Parties | Christopher Brian REESE, Appellant v. STATE of Mississippi, Appellee. |
| Court | Mississippi Court of Appeals |
Ross Parker Simons, attorney for appellant.
Office of the Attorney General by Scott Stuart, attorney for appellee.
Before KING, P.J., LEE and CHANDLER, JJ.
CHANDLER, J., for the Court.
¶ 1. Christopher Reese was convicted in the Circuit Court of Jackson County for sexual battery of a child under the age of fourteen years. Reese was sentenced to serve twenty years in the custody of the Mississippi Department of Corrections. Feeling aggrieved, Reese appeals and cites the following errors:
¶ 2. Finding no merit in Reese's assertions, we affirm the ruling of the trial court.
FACTS
¶ 3. A.M.1 met Reese in the neighborhood where her father lived and conversations ensued between the two. Reese obtained A.M.'s telephone number from a friend and began to call A.M., who was eleven years of age at the time. On or about April 17, 2000, Reese called A.M. at her grandmother's home and invited A.M. to come over to his house, claiming that he had something to tell her. When A.M. arrived at Reese's home, they sat on the couch in the living room talking for awhile before Reese told A.M. to go to his bedroom. In the bedroom, Reese began kissing A.M. and removing her clothes. Reese then proceeded to have sexual intercourse with A.M.
¶ 4. Approximately a month later, A.M. discussed the sexual encounter with a friend at school. A teacher overheard the conversation and reported the incident to the principal who immediately notified A.M.'s parents. A parent consultation was held at school where A.M. informed her parents that she had engaged in sexual intercourse with a person nicknamed "T."
¶ 5. A.M.'s father, John, became very angry and immediately left the meeting to search the neighborhood for the offender. After the parent consultation ended, A.M.'s mother, Jane, ordered A.M. to direct her to the home of the sex offender. John arrived at Reese's house shortly before Jane and A.M. and confronted Reese. Reese initially denied that he had sexual intercourse with A.M. However, after A.M. arrived and identified Reese as the culprit, Reese admitted they had sex but claimed that he did not know A.M. was only eleven years old.
¶ 6. On May 2, 2002, Reese was tried and convicted in the Circuit Court of Jackson County for sexual battery of a minor under the age of fourteen years.
¶ 7. It is well-settled law that the standard of review for evaluating the admissibility of evidence at suppression hearings in pretrial identification cases is whether substantial credible evidence supports the trial court's findings that, considering the totality of the circumstances, the in-court identification testimony was not impermissibly tainted. Ellis v. State, 667 So.2d 599, 605 (Miss.1995). Reese argues the pretrial photo identification of him by A.M. was suggestive to the point of creating an unreasonable risk of misidentification. Reese's photograph was placed in the upper left hand corner of the photo array. Reese alleges he was prejudiced by the placement of his picture in this position because all viewers begin to read or view a document from this position. The photo of Reese was the only one in the array which showed a person with no hairline.
¶ 8. Reese filed a motion to suppress the photo identification at a pretrial hearing held on May 1, 2002. The trial court denied the motion.
¶ 9. At trial, A.M. was allowed to make an in-court identification of Reese. Detective Lawson also testified that A.M. identified Reese as her assailant from a photographic line-up.
¶ 10. To determine whether the trial court's findings were supported by substantial evidence, a discussion of the law governing pretrial and post trial identification is required. A photographic lineup is impermissibly suggestive when the accused is "conspicuously singled out in some manner from others." York v. State, 413 So.2d 1372, 1383 (Miss.1982). In Thompson v. State, 483 So.2d 690, 692 (Miss.1986), the court stated:
An impermissibly suggestive pretrial identification does not preclude in-court identification by an eye witness who viewed the suspect at the procedure, unless: (1) from the totality of the circumstances surrounding it, (2) the identification was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.
¶ 11. Reese's argument that the trial judge erred because he failed to balance the suggestiveness of A.M.'s identification against the finding of whether there was a substantial likelihood of misidentification is without merit. The Mississippi Supreme Court in Jones v. State, 504 So.2d 1196, 1198 (Miss.1987), addressed the issue of whether minor differences in a photograph array would create an impermissible suggestion. In Jones, the defendant was the only person in an array of seven photographs that was wearing a cap. Id. at 1199. His photograph was also slightly larger than the other six photographs. Id. The supreme court held these minor differences did not constitute an "impermissible suggestion." Id.
¶ 12. In Brooks v. State, 748 So.2d 736, 742(¶ 27) (Miss.1999), the defendant's picture in the photographic line up was the only picture in the lineup of a person with long hair. The court held that "although there might be a slight suggestion of impermissibility in the use of the photograph of the defendant in which his hair is longer than the others depicted, nonetheless, nothing about the photographic array nor the procedure used, gives rise to a substantial likelihood of misidentification." Id.
¶ 13. A.M.'s in-court identification of Reese is sufficient to overcome any prejudice that may have been caused by the photo lineup. The Mississippi Supreme Court held the Biggers factors, established in Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), are to be evaluated in order "to determine whether the in-court identification is `sufficiently reliable to overcome the taint of the prior improperly attained identification.'" Ellis v. State, 667 So.2d 599, 605 (Miss.1995) (quoting Gayten v. State, 595 So.2d 409, 418 (Miss.1992)). The Biggers factors are:
¶ 14. These factors apply to the present case as follows. A.M. had ample opportunity to view Reese at the time of the crime. A.M. was acquainted with Reese and talked to him on several occasions. Reese lived in A.M.'s neighborhood and called A.M. on the telephone numerous times. During the criminal act, A.M. observed Reese's facial features and was confident that Reese was the person with whom she had engaged in sexual intercourse. She identified him in court as that person.
¶ 15. A.M.'s level of certainty that Reese was the person with whom she had engaged in sexual intercourse was unwavering at the pretrial and at trial. Detective Lawson testified that A.M. identified the man in the first photograph, Reese, as the person with whom she had engaged in sexual intercourse. A.M. directed her parents to Reese's home where the sexual act occurred and gave an accurate description of the interior of Reese's bedroom.
¶ 16. Although A.M. could not identify Reese by his real name, she did state that she knew him by the nicknames of "T" and "Nokia". Reese has a Nokia tattoo on his arm and is known by many in the neighborhood as "Nokia". Although a month had transpired since Reese and A.M. had engaged in sexual intercourse, considering the intimate nature of the encounter between Reese and A.M., a month does not diminish the accuracy of A.M.'s identification of Reese.
¶ 17. Based on the Biggers factors, the in-court identification of Reese is sufficiently reliable to overcome any possible taint of the prior photo identification. Reese's argument is without merit.
¶ 18. Evidentiary rulings are within the broad discretion of the trial court and will not be reversed absent an abuse of discretion. Coleman v. State, 697 So.2d 777, 784 (Miss.1997). Rule 9.04 of the Uniform Circuit and County Court Rules sets forth the appropriate procedure and remedies for the trial court to consider in resolving discovery violations. URCCC 9.07.
¶ 19. In the case sub judice, the State attempted to introduce testimony from A.M. about an apology Reese purportedly made to A.M.'s father. Reese's counsel objected to the testimony on the basis that it was a discovery violation. This apology was contained in a medical report from Dr. Nunez, which included statements A.M. and her family attributed to Reese. This medical report was provided to the defense during discovery. The statement in Dr. Nunez's notes stated, ...
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Wilson v. State
...13) (Miss.Ct.App.2007). Aside from the procedural bar, C.B.L.'s age at the time of the crime was sufficiently established. See Reese v. State, 879 So.2d 505, 510(¶ 22) (Miss.Ct.App.2004). This issue is without V. DID THE TRIAL COURT ERR IN EXCLUDING EVIDENCE OF A VOICE-STRESS-ANALYSIS TEST?......