BEFORE ROY NOBLE LEE, BOWLING and DAN LEE
ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:
Kenny Blanks and Paul Robinson were jointly indicted, tried and convicted in the Circuit Court of Newton County, Mississippi, Honorable Marcus D. Gordon, presiding, on a charge of armed robbery. The jury was unable to agree upon a sentence and the lower court sentenced each of them to thirty (30) years with the Mississippi Department of Corrections. They have appealed, and Blanks has assigned six (6) errors and Robinson has assigned three (3) errors in the trial below.
The lower court erred in denying Blanks and Robinson a severance for separate trials.
Both appellants contend that the court erred in refusing to grant them a severance. Neither Blanks nor Robinson testified at the trial. Blanks introduced three (3) witnesses, all of whom testified concerning an alibi for him. Robinson offered no evidence in his own behalf.
The appellants argue that it was anticipated Kenneth Robinson, a brother of Paul Robinson and an unindicted accomplice, would testify on behalf of the State. Also, Blanks contended that Paul Robinson had given a confession to the officers and that the confession would be highly prejudicial to him. At trial, the lower court conducted a hearing on an objection to the confession of Paul Robinson, sustained the objection, and did not permit the introduction of the confession.
Kenneth Robinson testified implicating both appellants equally in the planning and commission of the alleged crime, as well as himself. There was no prejudice sustained by either appellant for the failure of the court to grant a severance, since all evidence introduced at trial went to the guilt of both appellants and not to one more than the other. The granting of a severance is discretionary with the judge and, in our opinion, the lower court did not abuse its discretion in declining to grant the severance. Fairley v. State, 349 So.2d 1050 (Miss. 1977); Price v. State, 336 So.2d 1311 (Miss. 1976).
The lower court erred in permitting the jury to consider the identification testimony of Gatha Lackey.
At approximately 3:30 or 4 p.m. on the afternoon of October 30, 1982, Gatha Lackey was standing in her driveway about 20 to 25 feet from the public road when a light beige old model car, either a Pontiac or Oldsmobile, passed her, traveling very slowly. She observed two black men on the front seat and obtained a good view of them, although she could not see their bodies below the shoulders. The robbery had occurred along the road only about 100 yards away, and, within a matter of minutes, the victim came to her house and reported the incident.
A preliminary hearing was held for the appellants in the town of Union after their arrest and Mrs. Lackey attended that hearing. She saw one of the black men at the hearing who looked exactly like Blanks. Mrs. Lackey testified that nobody pointed the man out to her nor did anyone say who the man was. She did not speak with any law enforcement officers about the identification. Subsequent to the preliminary hearing, a deputy sheriff contacted Mrs. Lackey and showed her two photographs. Mrs. Lackey said that the deputy sheriff placed the photographs on a table; that she looked at them; and that he didn't ask her about the identity of the men or comment as to who they were. At the trial, Mrs. Lackey made a positive, unequivocal in-court identification of both appellants. *fn1
Robinson contends the fact that Mrs. Lackey went to the
preliminary hearing and subsequently saw two photographs of a black man, rendered the identification impermissibly suggestive and that her testimony should have been excluded. However, she stated that she identified the appellants from her observation and view of them in the automobile, which passed her house shortly after the robbery, and she postively and unequivocally identified them in the courtroom. After carefully considering the testimony of Mrs. Lackey, we are convinced that, under the totality of the circumstances, her identification of the appellants was not so suggestive as to give rise to a substantial ...