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FRANK HANNER, JR. v. STATE OF MISSISSIPPI

FEBRUARY 27, 1985

FRANK HANNER, JR.
v.
STATE OF MISSISSIPPI



BEFORE ROY NOBLE LEE, DAN LEE AND PRATHER

PRATHER, JUSTICE, FOR THE COURT:

Defendant/appellant, Frank Hanner, Jr. was convicted in the Circuit Court of the First Judicial District of Hinds County of grand larcency of an automobile and sentenced to a term in the Mississippi Department of Corrections of five years. From this conviction, Hanner appeals, assigning as error the following:

(1) The trial court erred in refusing to grant appellant a hearing on his motion to suppress identification testimony;

 (2) The trial court erred in overruling defendant's motion to suppress evidence;

 (3) The court erred in allowing the district attorney to improperly cross-examine a defense witness on an irrelevant and inflammatory matter, denying appellant a fair and impartial trial;

 (4) The court erred in allowing the district attorney to make improper remarks during closing arguments;

 (5) The verdict is against the overwhelming weight of the evidence and contrary to law.

 We affirm the conviction.

 I.

 The grand larceny in question occurred April 25, 1983 of a white over red 1975 Monte Carlo automobile belonging to Ms. Willie Annette Keys. Keys had driven her car to the Wasco Town Coin Laundry in Jackson, Mississippi. Upon entering the washateria, Keys passed two black males who allegedly initiated conversation with her. Keys ignored the men and proceeded to find her sister who was inside the washateria. Within minutes, Keys saw two black males driving her car out of the parking lot and unsuccessfully attempted to give chase in her sister's car. Within the stolen car was Ms. Keys' purse containing her personalized checkbook and identification cards including driver's license. Keys was unable to give the police a detailed identification of the two men at the time, but later identified Hanner in a photographic lineup.

 The night after the automobile was taken from the washateria, Officer Stanley Wright, a policeman with the City of Jackson, stopped an automobile matching the description of Keys' stolen vehicle. The driver presented Officer Wright with a driver's license with the name Willie A. Keys. The sex on the license was illegibile. Officer Wright did not take the defendant into custody for the theft of the automobile, because he believed appellant's story that he was in fact Willie A. Keys, and that he had mistakenly reported his car stolen when it was borrowed by his brother-in-law. Officer Wright subsequently identified Hanner as the driver of the stolen automobile in a photographic lineup.

 On May 4, 1983, Cleveland Police Officer Serio picked up two checks from a Cleveland grocery store drawn on the account of Willie Keys at a Jackson bank. The checks were unpaid to the grocer because they were reportedly stolen. Officer Serio contacted the Jackson Police Department, learned of the larceny of the Keys' car, and secured a description of the vehicle. A black male seen with the vehicle was reported to have walked with a limp. A notice of the stolen vehicle with description of the car and occupants and of the stolen checks was posted on the Cleveland Police bulletin board. Since the checks were negotiated in Cleveland, it was believed that the vehicle might also be in the vicinity. Acting on this information, Officer White located the stolen vehicle at the Delta Motel. He learned from the manager that the room near the car was registered to a "Willie Keys" , a black male who

 was crippled. The officers gathered around the outside of the room to insure that the occupants did not leave the room. A black male subject exited the motel room and unlocked the trunk of the stolen car. The officers arrested him. This subject left the door to the motel room open. Cleveland Police Officer White asked the two individuals in sight within the motel room to come out of the room. One came out immediately, and the other, the appellant, advised the officer that he was a cripple and that it would take him longer. When Frank Hanner came out of the room, he too was arrested. Officer White then entered the room to look for other subjects. He found a checkbook in plain view lying on the bed where Hanner was sitting. The checkbook clearly had stamped on it the name of Willie A. Keys. He also found a driver's license belonging to Willie A. Keys and registration cards. No arrest or search warrants were obtained prior to making these arrests.

 At trial, Hanner's brother, Terry Hanner, testified that he was the one who had stolen the car from the washateria. He described the automobile, discussed passing by Keys at the washateria, told of being stopped by an officer on the night after taking the car, and stated that he drove the car to Cleveland where it was taken from him by a friend.

 However, Frank Hanner's fingerprints were discovered inside the stolen automobile. It is not stated in the record whether or not Terry Hanner's fingerprints were also discovered.

 Other witnesses supplied an alibi for the appellant Hanner. Royalton placed Terry Hanner in the stolen automobile and Frank Hanner at a party. Mitchell stated she was with Frank Hanner from 4:00 p.m. April 26 until dark on the 27th. Brinson testified that he took Frank Hanner to the motel in Cleveland on the third or fourth day of May. Frank Hanner's girlfriend, Sandra Soya testified that she was with Hanner on the 24th and 25th of April. Soya also placed Terry Hanner in the stolen automobile.

 II.

 Did the trial court commit reversible error by refusing to grant appellant a hearing on his motion to suppress indentification testimony?

 At a pretrial hearing, the court called up appellant's motion to suppress identification testimony. The motion asserted essentially that the identifications by Willie A. Keys and Officer Stanley Wright and J. P. Patel were

 contaminated because all three witnesses were shown photo spreads in lieu of an actual lineup, even though the defendant had already been arrested and was in custody. The trial judge stated that he had reviewed the motion and found that it did not state sufficient grounds on its face to suppress any identification testimony. The motion was overruled. At trial, only Officer Wright testified as to identification of appellant from the photographic spread. Keys did not identify the defendant.

 The trial judge does not have to grant a hearing outside the presence of the jury on a motion to suppress identification testimony. In Watkins v. Sowders, 449 U.S. 341, 101 S. Ct. 654, 66 L.Ed.2d 549, the United States Supreme Court stated:

 A judicial determination outside the presence of the jury of the admissibility of identification evidence may often be advisable. In some circumstances, not presented here, such a determination may be constitutionally necessary. But it does not follow that the constitution requires a per se rule compelling such a procedure in every case.

 449 U.S. ___, 101 S. Ct. ___, 66 L.Ed.2d 556, (1981). See also Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L.Ed.2d 401 (1972), York v. State, 413 So. 2d 1372 (Miss. 1982), Bankston v. State, 391 So. 2d 1005 (Miss. 1980) From the record, it appears that there was nothing impermissibly suggestive about the pretrial identification procedures.

 Appellant also asserts that an attorney must be present during a photographic lineup, United States v. Ash, 413 U.S. 300, 93 S. Ct. 2568, 37 L.Ed.2d 619 (1973); Clubb v. State, 350 So. 2d 693 (Miss. 1977), Stevenson v. State, 244 So. 2d 30 (1971), In Clubb, supra, this Court held that there is no absolute right to have an attorney present at a post indictment photographic lineup. See also Johnson v. State, 359 So. 2d 1371 (Miss. 1978), Allen v. State, 274 So. 2d 136 (Miss. 1973), United States v. Ballard, 423 F.2d 127 (1970). Thus the absence of counsel at the photographic lineup in the case sub judice does not render the identification testimony inadmissible.

 While in most cases a hearing on a motion to suppress identification testimony is the preferred procedure, it is not mandated. There is no merit in appellant's contention that the denial of an identification suppression hearing on appellant's motion was reversible error.

 III.

 Did the court err in overruling defendant's motion to suppress evidence?

 Appellant argues that the State proved no exception to the requirement of an arrest warrant to enter the motel room, arrest the defendant, and collect evidence in plain view. Appellant therefore argues that (A) the arrest was ...


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