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Williams v State of Mississippi

Case No. 2010-KA-01522-COA (MS Ct. App., Feb. 21, 2012)

On August 10, 2010, a jury convicted Markeith Williams of armed robbery. The Grenada County Circuit Court sentenced him to forty years in the custody of the Mississippi Department of Corrections with twenty-five years to serve, fifteen years suspended, and fifteen years of post-release supervision, with five years supervised and ten years unsupervised.

Feeling aggrieved, Williams appeals and argues that: (1) the circuit court erred in admitting improper identification evidence; (2) he was prejudiced by improper character evidence presented at trial; (3) the circuit court erred in granting a jury instruction on flight; (4) he received ineffective assistance of counsel; and (5) the cumulative effect of the above errors deprived him of his right to a fair trial.

FACTS



On October 7, 2009, Tim Arora was working at the Race Way convenience store/service station in Grenada, Mississippi. At approximately 7:30 p.m., a tall, well-built man with “braids” in his hair entered the store and walked into the store’s restroom. When he came out of the restroom, he displayed a handgun and shoved Arora to the floor. A second man then entered the store. The man with braids in his hair went behind the counter, opened the cash register, and removed money from it. He also allegedly took envelopes containing large sums of money from the top of the store’s safe. The two men then left the store. Customers entered the store soon afterward, and Arora told them that the store had just been robbed. Arora called the police, and they arrived moments later.
 

 

Judge(s): Tyree Irving
Jurisdiction: Mississippi Court of Appeals
Trial Court Judge(s)
C.E. Morgan, III

 
Court of Appeals Judge(s)
Donna Barnes
Virginia Carlton
Eugene Fair, Jr.
Kenneth Griffis
Tyree Irving
David Ishee
Joseph Lee
Jimmy Maxwell
Larry Roberts
Ermea Russell

 
Appellant Lawyer(s) Appellant Law Firm(s)
James Craig
Jane Tucker

 
Appellee Lawyer(s) Appellee Law Firm(s)
Doug Evans Office of the Grenada County District Attorney
Glenn Watts Office of the Mississippi Attorney General

 

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Click the maroon box above for a formatted PDF of the decision.
octavious watt and provided him with a description of the suspect. officer watt knew an store, but the area where he parked his vehicle was "lit up." shortly after parking his car, 25. as our supreme court has stated many times, "[a]ny claim is waived for failure to raise individual who matched the description and gave williams's name to officer evans. evidence 404(b). williams contends that officer evans's testimony--that he was familiar1 lee, c.j., griffis, p.j., barnes, ishee, roberts, carlton, this case, beyond a reasonable doubt, that the defendant, markeith williams, dark clothes. according to ward, one of the men was wearing a hat, and the other was to officer evans's testimony at trial, this issue is procedurally barred. 32. procedural bar notwithstanding, we find no error in giving a flight instruction. 5. arora testified that the next day, the police asked him to look at a photographic lineup trial judge: hon. c.e. morgan iii anderson's flight was never fully explained. . . . anderson has failed to constitute a sufficient independent reason for fleeing and is probative of guilty knowledge. individual in the photograph could have been the person who had robbed the store but that christmas, police officers showed a single photograph of chancellor christmas to a witness that no one else depicted in the lineup had facial hair similar to his, three other individuals 15. our standard of review for a circuit court's decision regarding pretrial identification 26. procedural bar notwithstanding, the circuit court did not err in admitting officer to have recognized williams by his birthmark, which was not clearly depicted in his the jury. williams acknowledges that he did not object to this testimony at trial. reliable based on the biggers factors. id. at 420 (29). 14 as officer evans got out of the vehicle, he saw williams and another individual running 2 individuals depicted in the lineup, and she signed her name above williams's photograph. look at his face. additionally, both ward and white claimed to have recognized williams c. failure to object to jury instruction on flight 1. on august 10, 2010, a jury convicted markeith williams of armed robbery. the of error is without merit. considering the totality of the circumstances, [the] in-court[-]identification testimony was not maxwell, russell and fair, jj., concur. irving, p.j., for the court: pictured in the lineup and that white's and ward's in-court identifications were tainted by taller man, with the birthmark, looked like williams. motion for rehearing filed: sentenced to forty years in the impermissibly suggestive because his photograph clearly differed from the other individuals she saw leaving the race way, ward went only so far as to say that the man looked like robbery. the circuit court found that, while ward's and white's initial identifications by only remember that the man was tall, had braids in his hair, wore dark clothing, and had a were nonetheless reliable based on the biggers factors. we agree. 5 very substantial likelihood of irreparable misidentification. contained eight photographs, only four of which "could possibly fit" his general description. store on the night of the robbery. white explained that she knew williams through her different." id. at 603 (20) (citing strickland v. washington, 466 u.s. 668, 688 (1984)). conspicuously singled out. furthermore, the circuit court noted that both witnesses claimed with williams and had obtained a photograph of him from the "jail's computer"-- prejudiced disposition: affirmed 02/21/2012 rule 404(b) states:1 an impermissibly suggestive pretrial identification[, however,] does not provide an independent explanation for why he was hiding under his house on christmas, 10 so. 3d at 419 (22) (quoting roche, 913 so. 2d at 310-11 (12)). in containing large sums of money from the top of the store's safe. the two men then left the as such, the circuit court did not err in giving a flight instruction. this assignment of error but she recognized him by the birthmark on the left side of his face. (4) he received ineffective assistance of counsel; and (5) the cumulative effect of the above going back to jail. whom were at the race way near the time of the robbery. ward testified that, on october away. other officers apprehended williams approximately twenty minutes later. officer photographic lineup used by law-enforcement officers. williams explained that the lineup by: w. glenn watts for hiding under the house was that he was a convicted felon and afraid of flight is unexplained and somehow probative of guilt or guilty knowledge." id. (quoting cigarettes. ward testified that he parked his vehicle approximately ten to twelve feet from 11 identification of christmas was impermissibly suggestive, the identification was nonetheless sufficiently egregious to require reversal, the cumulation of errors in this case is cause for [christmas]" because he was "within only a few feet of [christmas] for a significant period prejudicial impact. id. at 798 (18). a photograph of williams and asked them if it depicted the man they had seen at the race defense] such that, but for counsel's deficient performance, the result would have been has consistently held that "[t]he practice of showing suspects singly to persons for the evans's testimony, and for failing to object to the flight instruction. generally, we do not unsupervised. weight as you think it is entitled to in determining the guilt or innocence of should have granted his motion for a mistrial following officer bryan bailey's testimony that ward testified that the man wearing the sweatshirt was taller than the other man, had a fifteen years of post-release supervision, with five years fifteen years of post-release 40. williams argues that, assuming this court does not find any individual error (118) (miss. 2005). district attorney: doug evans he had facial hair or not. based on our review of the photographic lineup, williams was not b. failure to object to officer evans's testimony admissible and not prejudicial, williams's claim that his trial counsel was ineffective for man with "braids" in his hair entered the store and walked into the store's restroom. when 797 (11). finally, this court determined that the circuit court properly found that the exited the race way, the area was well lit and both ward and white were able to get a good suggestive as to make the identification evidence unreliable. consequently, there was no explained: "[t]hat's the guy we got [sic]." arora recalled telling the officer that the 33. in anderson v. state, 1 so. 3d 905, 916 (34) (miss. ct. app. 2008), this court found evidence presented at trial; (3) the circuit court erred in granting a jury instruction on flight; store. customers entered the store soon afterward, and arora told them that the store had just v. a. failure to object to identification evidence way. ward and white answered in the affirmative. several days later, an officer brought favor, the additional biggers factors weighed in favor of admitting the identification consider claims of ineffective assistance of counsel on direct appeal unless there is sufficient it may, however, be admissible for other purposes such as proof of motive, purpose of identification, and not as part of a lineup has been widely condemned." 2. admission of 404(b) evidence of this appeal are assessed to the appellant. demonstrated by the witness at the confrontation, and the length of time between the crime analysis and discussion of the issues conscious sense of guilt or whether other things caused it, and give it such second man then entered the store. the man with braids in his hair went behind the counter, 6. during arora's testimony, the state showed him a photographic lineup and asked him support the circuit court's admission of the identification evidence at trial. this assignment williams must overcome the "strong but rebuttable presumption . . . that counsel's decisions 24. williams argues that officer evans's testimony ran afoul of mississippi rule of violate rule 404(b). guilty knowledge and fear may be inferred. if you find from the evidence in mistake or accident. to get caught." generally, "flight is admissible as evidence of consciousness of guilt." fuselier v. state, 702 evans's testimony. this court has previously considered this issue in brooks v. state, 788 3. finding no error, we affirm. department of corrections with twenty-five years to serve, fifteen years suspended, and pictured in the lineup was the first man that he had encountered during the robbery and williams, 667 so. 2d at 23). evening of october 7 because he "didn't want to get caught." the statement does not prejudicial effect must still be measured against its probative value to determine admissibility williams's physical characteristics provided a degree of accuracy that permitted the of the witness to view the criminal at the time of the crime, the witness's degree of attention, constituted reasonable trial strategy within `the wide range of reasonable professional birthmark on the left side of his face, and had "dreads" in his hair. ward testified that the 30. williams argues that the circuit court erred in giving a flight instruction. the state a contemporaneous objection." wells v. state, 903 so. 2d 739, 742 (6) (miss. 2005) (citing 16. the mississippi supreme court has held: 4 opportunity, intent, preparation, plan, knowledge, identity, or absence of and white identified williams from a single photograph. however, the circuit court found the custody of the mississippi department of corrections, with (citing neil v. biggers, 409 u.s. 188, 199-200 (1972)). the factors include: "the opportunity according to officer evans, he then "went to the jail and pulled up pictures on the computer" store/service station in grenada, mississippi. at approximately 7:30 p.m., a tall, well-built probative value of officer bailey's statement outweighed the statement's potentially the police went to arrest him, they found him hiding under a house. id. anderson stated that impermissibly tainted." roche v. state, 913 so. 2d 306, 310 (11) (miss. 2005) (quoting he was hiding underneath the house because he was "afraid of going back to jail." id. at 916 in the court of appeals of the state of mississippi character of a person in order to show that he acted in conformity therewith. the accuracy of the witness's prior description of the criminal, the level of certainty record to support this argument. the only reason that anderson gave at trial a photographic lineup to white's job. white picked williams's picture out of the eight date of judgment: 08/10/2010 explained to the jury because of its prejudicial effect upon the defendant." id. (quoting 10. white testified that she was certain that williams was the person she saw leaving the before irving, p.j., barnes, and roberts, jj. photo" was not introduced into evidence, was not repeatedly referred to, and was used only admitting improper identification evidence; (2) he was prejudiced by improper character 21. in this case, both ward and white testified at the suppression hearing that they identified williams from a single photograph shown to them by police on the night of the was no reason for williams's trial counsel to object. accordingly, this issue is without merit. under rule 403 of the mississippi rules of evidence. brooks, 788 so. 2d at 798 (13). had facial hair similar to williams's, and it is unclear from williams's photograph whether description, but he was unable to remember his name. officer evans contacted officer 3 9 according to williams's motion, of these four photographs, only williams's photograph not be disturbed when it is supported by substantial, credible evidence supporting it. id. assistance.'" id. (quoting strickland, 466 u.s. at 688). he identified williams as the robbery suspect. thus, officer evans's testimony did not 9. the police located ward and white later that evening and asked them to come to the 10 36. to succeed in a challenge to the effectiveness of counsel, williams must show that 20. even though the lapse of time between the crime and the identification of christmas 8 markeith williams. reynolds v. state, 658 so. 2d 852, 856 (miss. 1995)). "evidence of flight is inadmissable their initial identification of williams by way of a single photograph. wearing a dark, hooded sweatshirt partly over his head, and a bandana around his neck. the procedure, unless: (1) from the totality of the circumstances surrounding cousin but that she had not seen him in seven or eight years. additionally, white testified white testified that she did so without assistance from the officer. the state introduced into so. 2d 794 (miss. ct. app. 2001). in brooks, lennis brooks argued that the circuit court depicted an individual with his particular hair style and no facial hair. 14. williams argues that the circuit court erred in denying his pretrial motion to suppress way of a single photograph were impermissibly suggestive, their identifications of williams photograph is impermissibly suggestive, the inquiry does not end there. christmas v. state, 11. the state also presented testimony from grenada police officer doug evans, who 12 did flee from the law[-]enforcement officers, then the flight of the defendant who was also a co-defendant. id. at 418 (19). the witness identified christmas as "the man opened the cash register, and removed money from it. he also allegedly took envelopes the store's front door. ward stated that it was almost dark outside when he arrived at the photograph. appearance or statements by an officer, is impermissibly suggestive. 13. additional facts, as necessary, will be related during our analysis and discussion of and later obtained a warrant for williams's arrest. reversal. having found no individual errors in this case, there can be no cumulative error. been robbed. arora called the police, and they arrived moments later. that she could not remember williams's name when she saw him on the night of the robbery, evidence of other crimes, wrongs, or acts is not admissible to prove the james w. craig supervision, with five years 19. williams also argues that ward's and white's in-court identifications were tainted by 28. in this case, officer evans's testimony was substantially similar to officer bailey's because the state did not admit any identification evidence through arora's testimony, there state of mississippi appellee received a confidential-informant tip that reginald anderson had fled to tennessee after grenada county circuit court sentenced him to forty years in the custody of the mississippi williams. however, "[a] witness does not have to be positive in his identification for his their initial identifications of williams by way of a single photograph. our supreme court testimony outweighed its potential prejudicial effect--especially where williams's "jail testimony in brooks. officer evans referenced williams's "jail photo" only to describe how photographs in which the accused, when compared with the others, is custody of the mississippi 29. however, even if evidence of prior bad acts falls within a 404(b) exception, its 3. flight jury instruction trial court disposition: convicted of armed robbery and conspicuously singled out in some manner from the others, either from department of corrections, with argued that such testimony constituted evidence of his prior bad acts. id. attorney for appellee: office of attorney general ellis v. state, 667 so. 2d 599, 605 (miss. 1995)). the circuit court's decision generally will where there is an independent reason for [the] flight known by the court which cannot be failing to object to said testimony is without merit. deantwon williams 7, sometime between 7:00 p.m and 8:00 p.m., he and white drove to the race way to buy based on our holding in brooks, we find that the probative value of officer evans's similar to williams's, though in varying lengths. additionally, even though williams claims he came out of the restroom, he displayed a handgun and shoved arora to the floor. a vehicle and entered the store. the clerk inside was on the phone and told them that the store 2. feeling aggrieved, williams appeals and argues that: (1) the circuit court erred in mandate issued: the court instructs the [j]ury that flight is a circumstance from which he is procedurally barred from raising this issue on appeal. goff v. state, 14 so. 3d 625, 655 is without merit. fifteen years of post-release supervision, with five years supervised and ten years supervised and ten years he "went into our jail photos and pulled up a photo of brooks." id. at 796 (8). brooks 1. identification evidence nature of the case: criminal - felony 4. ineffective assistance of counsel you will determine from all of the facts whether the flight was from a of time." id. at (28). additionally, the witness's testimony did not indicate hesitation when giving the flight instruction to the jury, williams's claim that his trial counsel was ineffective no. 2010-ka-01522-coa 6 because he feared he was being "set up." however, there is nothing in the is to be considered with all other evidence in this case. it (2) the identification was so impermissibly suggestive as to give rise to a only pretrial identifications which are suggestive, without necessity for conducting them in such a manner, are proscribed. a lineup or series of evidence within the record to evaluate the claim. harden v. state, 59 so. 3d 594, 603-04 york v. state, 413 so. 2d 1372, 1383 (miss. 1982) (internal citations and footnotes omitted). is "whether or not substantial credible evidence supports the [circuit] court's findings that, he was not certain. arora testified that he told the officer that he did not get a good look at 8. after the two men disappeared behind the store, ward and white got out of their unsupervised identifying christmas as the suspect. id. preclude in-court identification by an eyewitness who viewed the suspect at 5. cumulative error (21) (miss. 2011). however, we find such evidence in the record before us. station. officer evans recalled having had prior contact with an individual fitting that submitted jury instruction s-5, which reads: with the gun" at the scene of the crime. id. our supreme court held that while the initial testimony. id. at 419 (27). the court held that the witness "had ample opportunity to view i might have; i'm not sure." the photographs were not entered into evidence, and the state as the suspect and the accuracy of the witness's prior description weighed in christmas's attorneys for appellant: jane e. tucker finally, white identified williams in a photographic lineup a few days after the robbery. to identify williams. id. this issue is without merit. police station and give a statement. at the police station, officers showed ward and white 17. williams's motion to suppress claimed that he was "conspicuously singled out" in the 18. review of the photographic lineup shows that three other individuals had hairstyles the day of his arrest. anderson attempts to argue on appeal that he was hiding from previous encounters. while white stated with certainty that williams was the man that id. 35. williams argues that his trial counsel was ineffective for failing to renew objections 34. here, officer evans testified that williams stated that he ran from the police on the did not ask arora to identify williams in court. evidence, and the state did not seek an in-court identification of williams from arora. thus, no error with the circuit court's decision to give a flight instruction. in anderson, the police court from which appealed: grenada county circuit court identification was nonetheless reliable" after considering the biggers factors. id. at 419 (25) 7. next, the state presented testimony from jeremy ward and cherrelle white, both of evans testified that when he asked williams why he ran, williams said that he "didn't want and the confrontation." id. (quoting roche, 913 so. 2d at 311 (14)). photo" was used to identify brooks, not to prove his character. id. at 796-97 (9). appellant 4. on october 7, 2009, tim arora was working at the race way convenience that based on the biggers factors, the identification procedures were not so impermissibly facts so. 2d 388, 390 (4) (miss. 1997) (citing williams v. state, 667 so. 2d 15, 23 (miss. 1996) 23. based on the biggers factors, we find that substantial, credible evidence exists to testimony to be competent before a jury." york, 413 so. 2d at 1373 n.2 (citing little v. state, for failing to object to the instruction is without merit. supervised and ten years unsupervised, is affirmed. all costs 41. the judgment of the grenada county circuit court of accordingly, the testimony fell within the proof-of-identify exception to rule 404(b). id. at conviction of armed robbery and sentence of forty years in the man's face because he had his head down on the floor during the robbery. arora could assisted in the investigation of the matter. officer evans testified that, on the evening of the twenty-five years to serve, (overruled on other grounds)). however, a flight instruction "is appropriate only where that robbery, he obtained a description of one of the suspects from ward and white at the police 37. williams's trial counsel raised an objection at the suppression hearing because ward arora's pretrial identification of williams via the photographic lineup was not entered into markeith williams a/k/a markeith errors deprived him of his right to a fair trial. * * * * bandana around his neck. osborne v. state, 54 so. 3d 841, 848 (27) (miss. 2011). thus, this issue is without merit. 27. this court agreed with the circuit court's determination that the reference to the "jail 357 so. 2d 379, 383 (ala. crim. app. 1978)). ward's and white's descriptions of reason for trial counsel to make an additional objection to the identification evidence at trial. 39. based on our previous discussion and conclusion that the circuit court did not err in 38. based on our previous discussion and conclusion that officer evans's testimony was all pretrial identifications. specifically, williams maintains that the photographic lineup was authorities to find a suspect with the same characteristics within a few hours of the robbery. (33). we reasoned: had just been robbed. ward and white then left the store. while, our supreme court has held that an initial identification by means of a single 7 to ward's, white's, and arora's pretrial identifications of him, for failing to object to officer fifteen years suspended, and if he remembered signing his name anywhere on the lineup sheet. arora replied, "no, sir. ward saw two men exit the store and start running. he recalled that both men were wearing his "counsel's performance was deficient, and . . . the deficient performance prejudiced [his evidence the photographic lineup containing white's signature. 10 so. 3d 413, 419 (24-25) (miss. 2009). we must then "determine whether the ballenger v. state, 667 so. 2d 1242, 1272 (miss. 1995)). because williams failed to object the issues. twenty-five years to serve, fifteen years suspended, and 31. at the outset, we note that williams did not object to this instruction at trial; therefore, 22. ward and white testified that while they only saw williams for a brief moment as he 12. officer evans and another officer drove to williams's home to arrest him. however, of eight individuals. he further testified that a police officer asked him if the first person 13 committing aggravated assault. id. at 909 (4). when anderson returned to mississippi, and


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