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SHERMAN TOBIAS v. STATE OF MISSISSIPPI

JUNE 05, 1985

SHERMAN TOBIAS
v.
STATE OF MISSISSIPPI



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:

 [4] 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.

 432 U.S. at 110-14, 97 S. Ct. at 2250-53, 53 L.Ed.2d at 151, 153, 154.

 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 ...


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