Smith v. State

• Decision Date: 24 July 2018
• Docket Number: NO. 2015-KA-01375-COA,2015-KA-01375-COA
• Citation: 258 So.3d 292
• Court: Mississippi Court of Appeals
• Parties: Tameka SMITH a/k/a Tameka Marquieta Smith a/k/a Tameka M. Smith, Appellant v. STATE of Mississippi, Appellee

258 So.3d 292

Tameka SMITH a/k/a Tameka Marquieta Smith a/k/a Tameka M. Smith, Appellant

v.STATE of Mississippi, Appellee

NO. 2015-KA-01375-COA

Court of Appeals of Mississippi.

July 24, 2018

Rehearing Denied December 4, 2018

ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER NOLAN AIKENS

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA MCCLINTON, JACKSON

DISTRICT ATTORNEY: PATRICIA A. THOMAS BURCHELL

BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.

CARLTON, J., FOR THE COURT:

¶ 1. On October 16, 2013, Tameka Smith was indicted by a Forrest County grand jury on one count of armed robbery of a Dollar General store on June 5, 2013. The case proceeded to trial on March 18, 2015, and the jury found Smith guilty of armed robbery. Smith was sentenced to serve twenty years in the custody of the Mississippi Department of Corrections (MDOC), with twelve years to serve, eight years suspended, and five years of post-release supervision.

¶ 2. On appeal, Smith asserts that (i) the trial court erred in overruling Smith's Batson objection; (ii) prosecutorial misconduct during closing arguments violated Smith's right to a fair trial; (iii) testimony from the State's witness, Detective Casey Sims, violated Smith's Sixth Amendment Confrontation Clause right to confront adverse witnesses; (iv) the trial court erred in refusing Smith's requested jury instruction on the defense's theory of misidentification; and (v) the trial court erred in allowing the State to introduce CD exhibits in envelopes containing written notations. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. This case concerns an armed robbery of a Dollar General store near Hattiesburg, Mississippi, on June 5, 2013, at around 8 p.m. Store manager Paige Arnold and cashier Kelly James were working at the Dollar General that night. Arnold was the State's first witness. She testified that she was on the toothpaste aisle when a woman in a gray hoodie with a white towel over her face approached her and said she had a toothache. Arnold testified that she was 5' 9½? tall, and she guessed that the woman was around 5' 6? tall. Arnold showed the woman where the oral pain medications were, then resumed straightening up the toothpaste aisle. Later, the cashier, Kelly James, accompanied the same woman to the toothpaste aisle, and showed her the same medicine Arnold had shown her. Kelly returned to her register at the front of the store.

¶ 4. About ten minutes later, a customer approached Arnold and said she was needed up front. Arnold testified that she walked to the front of the store, and the female customer from the toothpaste aisle told her she did not have the money to buy the medicine and needed Arnold to cancel the transaction, which Arnold did. The customer was standing off to the side when Arnold opened the cash register. Arnold testified that the female customer ran between her and James (the cashier) and started grabbing money out of the cash register. Arnold testified that she jumped on the woman's back and started taking the money back from her, and James also started grabbing the money back from the woman.

¶ 5. According to Arnold, the woman dragged Arnold and James outside, and Arnold pulled off the woman's jacket and towel and looked at the woman. The woman got in a car, and Arnold got a descriptionof the vehicle and the vehicle's tag number. Arnold recalled she watched the woman for about a minute while she was in her car because there was another car entering the parking lot, so the woman had to wait to leave. Arnold testified that she and the woman made eye contact as the woman drove away. Arnold called 911 and gave a description of the woman and the car and gave the tag number of the vehicle.¹ Arnold then waited for the police to arrive.

¶ 6. The State showed Arnold several photographs, including a photo of the vehicle driven by the woman and the vehicle's license plate (JDM 592). Arnold identified the vehicle and the license plate as the ones involved in the armed robbery. A copy of the Dollar General surveillance video of the crime was presented, as was a recording of Arnold's 911 call; both were played for the jury.

¶ 7. Arnold testified that she was shown a photo lineup three days after the robbery and she was 80 percent sure when she identified Smith. She explained in her trial testimony that "I told Detective Sims, my gut instinct is 80 percent sure it was the defendant; 20 percent sure it was the other person." According to Arnold, the reason she did an eighty percent identification was that "[t]here was ... another person in the lineup that had been in my store earlier that day that I went and did the police lineup. She's a regular customer, and ... it threw me a little bit." At trial, Arnold identified Smith as the person who committed the armed robbery.

¶ 8. James, the store cashier, also testified for the State. She corroborated Arnold's testimony about the woman looking for toothache medicine. James then testified that when the woman reached her cash register to check out, James rang up the medicine and told the woman her total. At that point, James said the woman came around the cash register and got behind her and said, "I have a gun. I have my kids in the car. Just give me a little bit of the money." James then testified that the woman also grabbed a pair of scissors from the counter and put them against James's back. At one point in the surveillance video, a pair of scissors can be seen hanging out of the woman's pocket. James told the woman that because she had already rung up the sale, the cash register could not be opened without the manager using her key to void the sale. The woman repeatedly told James to just hit the "enter" or "total" buttons to open the cash register; James hit the buttons, and the woman hit buttons herself, but the cash register would not open.

¶ 9. In the meantime, other customers were waiting at the register to check out, and the woman walked from behind the counter and stood nearby. Arnold arrived and voided the sale, and James began ringing up the next customer. According to James, when the cash register opened, the woman stuck her hand in the cash register drawer and said, "I'm sorry. Thank you." James said that the woman grabbed "a whole bunch of money, and we just started wrestling with her – me and my manager – out the door." At that point James's boyfriend emerged and assisted.

¶ 10. James positively identified Smith as the robber in a photo lineup three days after the robbery. James also identified Smith as the robber in court. James gave police a description of the woman and said the woman was around 5' 2? tall, because she was taller than James, who is 4' 11? tall.

¶ 11. Officer Eric Prouix testified that he was working on patrol for the Hattiesburg Police Department on June 5, 2013. He was dispatched to the Dollar General and preserved the register/counter area for potential fingerprints, if any could be found. He also helped secure the scene. Officer Prouix testified that no fingerprints were found.

¶ 12. Officer Tammy Hoadley of the Hattiesburg Police Department testified that she was also working on patrol on the evening of June 5, 2013. She responded to a dispatch call around 8 p.m. regarding an armed robbery and reported to the Dollar General. When she got there, she helped secure the area and spoke with the victims, Arnold and James. Officer Hoadley testified that she did not collect any fingerprints and she did not transport anything to the crime lab for DNA analysis.²

¶ 13. Detective Casey Sims worked for the Hattiesburg Police Department and investigated the armed robbery at Dollar General that took place on June 5, 2013. Detective Sims testified that he ran the tag numbers that were reported, and he determined that the vehicle belonged to an elderly woman who lived out of town, a Ms. Bobbie Fairley. He testified that he asked Ms. Fairley to come to Hattiesburg on a pretense. He met with her, seized her vehicle, and processed the vehicle as a crime scene. Detective Sims further testified that during the course of his investigation he was able to determine the names of the people who were at Ms. Fairley's house on the evening of the robbery, which included Tameka Smith, who was Ms. Fairley's grandson's girlfriend. Detective Sims said he was informed that on June 5, 2013, Ms. Fairley's grandson took Smith's vehicle and left Smith and her two children with Ms. Fairley. Once Detective Sims ascertained that Smith had been at Ms. Fairley's home on the evening of the robbery, he brought Smith in for questioning.

¶ 14. Detective Sims testified that about three days after the robbery, he presented photo lineups to James and Arnold. Detective Sims corroborated Arnold's testimony that she circled Smith and another person; and Detective Sims likewise confirmed that James positively identified Smith in the photo lineup. Both Arnold and James identified Smith in court as the robber.

¶ 15. Detective Sims testified that he arrested Smith for armed robbery and that Smith's booking information reflects that she is 5' 7? tall and weighed 235 pounds. Detective Sims also obtained Smith's cell phone records, which were admitted as an exhibit at trial. The records showed that Smith made a call from around Prentiss, Mississippi, at 7 p.m. that lasted 582 seconds (9 minutes and 41 seconds). The records also reflected that Smith made a call from around Prentiss at 8:43 p.m., which lasted 252 seconds (4 minutes and 12 seconds). Detective Sims testified that the call reporting the robbery came out "around 2000 hours, which is 8 p.m." The time stamp on the store's surveillance video indicates that the robbery occurred at about 7 p.m., or 19:00 hours. Arnold, the store manager, testified that the time on the surveillance video was an hour behind because the district manager was the only one who could adjust the system, and the district manager was on sick leave when the time changed, so the...