BEFORE ROY NOBLE LEE, P.J., DAN LEE AND ROBERTSON, JJ.
ROBERTSON, JUSTICE, FOR THE COURT:
This armed robbery case presents us with a fervent challenge to the eyesight and memory of sight impressions gained thereby, of the robbery victim, a Gulf Coast lawyer. Regarding the human memory as not nearly so frail as defense counsel would have us believe, we think the victim's in-court identification of the accused sufficiently reliable that it be both admissible and sufficient to undergird a conviction. For these and other reasons noted below, we affirm the judgment of conviction entered below and twenty years sentence imposed thereupon.
About 11:00 o'clock p. m. on December 22, 1982, Norman Breland, a Gulfport attorney, drove his companion home after a dinner date. After seeing her to the door, Breland returned to his car which was parked on the street. At that point two individuals later identified as Freddie Williams and Joseph Lee Robinson, Defendant below and Appellant here, emerged from the bushes. Williams put a gun to Breland's head and Robinson took Breland's arm and directed him to get in the car. Williams and Robinson rifled Breland's jacket and took approximately $112.00 and some credit cards. Breland was again ordered to get in the car and he refused, at which point the two assailants ran.
On January 6, 1983, Williams was arrested and pled guilty to the armed robbery of Breland and several others. Williams named Robinson as his compatriot on the evening of December 22, 1982, and thereafter on March 11, 1983, Robinson was charged with armed robbery in an indictment returned by the Harrison County Grand Jury. Miss. Code Ann. 97-3-79 (Supp. 1984). Robinson entered a plea of not guilty and on June 14, 1983, his case was called for trial in the Circuit Court of the First Judicial District of Harrison County, Mississippi.
At trial Breland testified that he saw both assailants" face-on ", that he looked at photographs at the police department on the evening of the robbery but did not recognize his assailants, that on or about January 10th he again viewed photographs at the Gulfport Police Department and positively identified his two assailants. At trial over defense counsel's objection Breland made an in-court identification of Joseph Robinson as one of the men who robbed him on the evening of December 22, 1982.
Robinson offered an alibi defense. His father testified that he was at home in the next room on the night of the robbery.
Freddie Williams was called as a witness by the State but to the apparent surprise of all testified that a cousin, Daryl Williams, and not Robinson, was with him on December 22 during the Breland robbery. Williams explained that he had named Joseph Lee Robinson as a part of a lie to protect Daryl Williams. The State pled surprise and was permitted to cross-examine and brought out that Williams had previously identified Robinson as his partner in crime in the Breland armed robbery on the evening of December 22, 1982.
In due course thereafter, the jury found Robinson guilty of the crime of armed robbery whereupon, on June 14, 1983, the Circuit Court sentenced Robinson to the custody of the Mississippi Department of Corrections for a period of twenty (20) years.
Robinson thereafter timely filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial challenging both the weight and sufficiency of the evidence. This motion was overruled and Robinson now appeals to this Court.
Robinson's principal point on appeal is his assertion that the trial judge committed error in allowing the victim, Norman Breland, to make an in-court identification of him as one of the robbers. This error, we are told, is two-fold: First, the in-court identification testimony is said to have been impermissibly tainted by prior observations by the victim of Robinson at a preliminary hearing and otherwise in violation of the principles announced in Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 382, 34 L.Ed.2d 401, 411 (1972). Second, Robinson relies on a suggestion made in Watkins v. Sowders, 449 U.S. 341, 349, 101 S. Ct. 654, 66 L.Ed.2d 549, 556 (1981) and argues that the out of the presence of the jury hearing held on his motion to suppress the in court identification testimony of the victim was constitutionally inadequate.
On May 13, 1983, a month before trial, Robinson filed a formal written pretrial motion to suppress Breland's identification testimony. The grounds stated in the motion were twofold: That Breland for a variety of reasons had no independent memory of the identity and appearance of his assailant and, second, that Breland had been allowed to view Robinson at a preliminary hearing on January 18 under circumstances that were unnecessarily suggestive.
The motion was called up and presented to the trial judge prior to the impaneling of the jury on June 13, 1983. At that time, defense counsel offered to show that the victim was unable to identify Robinson on the evening of the offense, December 22, 1982, that he was shown police photographs of the defendant along with many others and was unable to identify Robinson, that at the preliminary hearing on January 18 the defendant was brought into court in an orange jumpsuit and in handcuffs and that the opportunity Breland had to observe
Robinson on that occasion was unduly suggestive and substantially infected any subsequent in-court identification. The trial judge denied the motion stating
I believe all that goes, Mr. Robinson, [name of defense counsel] to the credibility that the jury's going to give to it rather than anything we can suppress.
The problem presented by this assignment of error is familiar. The victim, Breland, saw his assailants on the evening of December 22, 1982. He also saw Robinson clothed in a prisoner's jumpsuit at the preliminary hearing held January 18, 1983. The trial was not held until June 13, 1983. Robinson's quite legitimate interest is in assuring that the in-court identification Breland made at trial was the product of his memory of Robinson's ...