Tobias v. State, 54708

• Decision Date: 05 June 1985
• Docket Number: No. 54708,54708
• Parties: Sherman TOBIAS v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 398

472 So.2d 398

Sherman TOBIAS v. STATE of Mississippi.

No. 54708.

Supreme Court of Mississippi.

June 5, 1985.

Rehearing Denied July 17, 1985.

J. Cliff Thomas, Jr., Crystal Springs, for appellant.

Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.

En Banc.

PRATHER, Justice, for the Court:

This is an appeal from a criminal conviction in the Circuit Court of Copiah County. Sherman Tobias was convicted of uttering a forgery as an habitual criminal and sentenced to serve fifteen years in the custody of the Mississippi Department of Corrections without eligibility for probation or parole.

Tobias appeals assigning as error:

(1) The trial court erred in allowing the state to introduce evidence of another and separate offense;

(2) The trial court erred in allowing an in-court identification of the appellant which was based upon an improper prior out-of-court identification;

(3) The trial court erred in not directing a verdict for the defendant;

(4) The verdict of the jury is contrary to the law and unsupported by the weight of credible evidence;

(5) The sentence of the trial court constitutes cruel and unusual punishment.

I.

On the evening of October 24, 1982, a male customer cashed a check at a convenience store in Crystal Springs, Mississippi. The check was a counter check drawn on the Bank Of The South in the amount of $24.00, made out to a "Charlie Jones" and signed "Charlie Jones". The check was returned by the bank unpaid. According to a representative of the bank, the account number given on the check did not exist and there was no account in the name of Charlie Jones. Jack Heard, the owner of the convenience store, was on duty at the time of the incident. Mr. Heard identified appellant Tobias as the man who cashed the check.

Appellant presented an alibi. Tobias testified that he went fishing with his father until approximately 3:00 p.m. on October 24, 1982. According to the appellant, he then returned home and watched television until about 8:00 or 8:30 p.m. Appellant stated that he then walked to his sister's home and visited with her for approximately 45 minutes, returning to his home and going to bed at 10:00 p.m. Appellant's version of his whereabouts is corroborated by the testimony of his mother, father, sister and brother-in-law.

II.

Did the trial court err in allowing an in-court identification of the appellant which was based upon a prior out-of-court identification?

At trial, convenience store owner Jake Heard positively identified the appellant as the person who gave him the bad check. Defense counsel objected to this in-court identification on the ground that it was tainted by a prior improper out-of-court identification of the appellant. The trial court overruled the objection and this ruling is now assigned as error.

The record reflects that the prior identification took place at the police station two days after the commission of the crime. Police officers told Mr. Heard that they believed they had found the man who had given him the check and that his name was Sherman Tobias. A lineup was arranged consisting of three black males of approximately the same height and age. Mr. Heard identified Tobias from the lineup as the man who passed the check.

In Bankston v. State, 391 So.2d 1005 (Miss.1980), this Court stated:

In Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the United States Supreme Court held that even if the pretrial identification procedure had been unnecessarily suggestive the identification did not have to be excluded if upon consideration of the totality of the circumstances there was no substantial likelihood of misidentification. The Court set out five factors to be used in analyzing the totality of circumstances. These factors include:

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

(2) The witness's degree of attention;

(3) The accuracy of his prior description of the criminal;

(4) The level of certainty demonstrated at the confrontation; and

(5) The time between the crime and the confrontation.

[Manson v. Brathwaite ] 432 U.S. at 110-14, 97 S.Ct. [2243] at 2250-53, 53 L.Ed.2d at 151, 153, 154 [ (1977) ].

391 So.2d at 1008. In the case sub judice, Mr. Heard testified with certainty that it was the appellant who gave him the check. Additionally, only two days passed between the crime and the pretrial identification. Moreover, Mr. Heard testified that Tobias was a light complexed black male whom he recognized as someone who had been in his store before. Finally, Mr. Heard testified that his in-court identification was based upon his observation of Tobias in the store and not upon the pretrial lineup.

Based upon the above circumstances, there was little, if any, likelihood that Mr. Heard's identification of the appellant was mistaken. Accordingly, even if the pretrial lineup was unnecessarily suggestive, the subsequent in-court identification of the witness was not thereby tainted. This assignment of error is without merit.

III.

Did the trial court err in allowing the state to introduce evidence of another separate offense by the appellant?

At the time of the trial, appellant faced another charge arising out of an incident which occurred on October 23, 1982 involving a "no account" check which was cashed at another local convenience store. On cross-examination, the prosecutor questioned the appellant generally regarding his whereabouts on the date of the previous incident and specifically asked the appellant if he had written any checks to a convenience store on Saturday, October 23. Appellant denied having done so. On rebuttal, Ms. Wanda Shields, a local convenience store employee, testified for the state. Ms. Shields identified a counter check which she had cashed on October 23. Ms. Shields stated that the check was returned unpaid and she identified appellant as the man who had cashed the check. Defense counsel objected to this testimony on the grounds that it was evidence of another crime. The trial court held the testimony admissible on the grounds that it was introduced for the purpose of impeachment.

The well settled rule in this state is that proof of a crime distinct from that alleged in an indictment is not admissible against an accused. Mason v. State, 429 So.2d 569 (Miss.1983); Tucker v. State, 403 So.2d 1274 (Miss.1981); Allison v. State, 274 So.2d 678 (Miss.1973); 48 Miss.L.J. 1059, 1078 (1977). Our cases recognize certain limited exceptions to the rule.

Proof of another crime is admissible where the offense charged and that offered to be proved are so connected as to constitute one transaction, where it is necessary to identify the defendant, where it is material to prove motive and there is an apparent relation or connection between the act proposed to be proved and that charged, where the accusation involves a series of criminal acts which must be proved to make out the offense, or where it is necessary to prove scienter or guilty knowledge. See, Smith v. State, 223 So.2d 657 (Miss.1969), cert. denied, 397 U.S. 1030, 90 S.Ct. 1274, 25 L.Ed.2d 542 (1970); Cummings v. State, 219 So.2d 673 (Miss.1969), cert. den. 397 U.S. 942, 90 S.Ct. 954, 25 L.Ed.2d 122 (1970). ( [Gray v. State ], 351 So.2d [1342] at 1345 [Miss. (1977) ] ).

Tucker v. State, 403 So.2d at 1276. Evidence that appellant cashed a bad check on the day before the incident charged in the indictment does not fall within any of these recognized exceptions to the general rule.

The state's contention that the testimony was admissible for impeachment purposes is without merit. The testimony sought to be impeached was elicited by the prosecution with questions regarding prior conduct of the accused which had not resulted in a conviction. This line of questioning by the prosecution was itself impermissible. Gallion v. State, 469 So.2d 1247 (1985). We conclude that the admission of this evidence regarding a separate and distinct offense which had not resulted in a conviction requires a reversal of this case.

This case is reversed and remanded for retrial due to the improper introduction of inadmissible evidence. We deem it unnecessary to discuss appellant's remaining assignments of error involving matters unlikely to recur upon retrial.

REVERSED AND REMANDED.

PATTERSON, C.J., and HAWKINS, DAN M. LEE, ROBERTSON, SULLIVAN and ANDERSON, JJ., concur.

ROY NOBLE LEE and WALKER, P.JJ., dissent.

ROY NOBLE LEE, Presiding Justice, dissenting:

In my view, the majority opinion has departed from established law and has overruled numerous cases upholding the principle that evidence of other crimes, in a proper factual situation, is admissible to identify the defendant. Therefore, I dissent.

The appellant, Sherman Tobias, testified in his own behalf at the trial. In response to questions from his attorney, he denied that handwriting either on the front or back of the October 24, 1982, check, passed to Jake Heard at the Sak-N-Pak Store on Newton Street in Crystal Springs was his handwriting and denied that he passed the check or had been in the Sak-N-Pak Store at any time on the day of October 24, 1982. On cross-examination, he denied over and over that he passed the check, thereupon, he was asked by the prosecuting attorney whether or not on October 23, 1982, he passed a check anywhere, which he denied. Appellant further denied that he had gone in any convenience store in Crystal Springs either on Saturday or Sunday, October 23 and 24. No objection was made to those questions of the prosecuting attorney.

On redirect examination, appellant's attorney went into the matter of the Saturday, October 23, check, and, in connection therewith, the following transpired:

BY MR. THOMAS:

Q. The check that the District Attorney showed you, the second check that's marked for identification only, you testified you have never seen this check?

A. No, sir, never seen that check.

Q. You also testified...