BEFORE ROY NOBLE LEE, P. J., PRATHER AND GRIFFIN, JJ.
PRATHER, J., FOR THE COURT:
The grand jury of Lauderdale County Circuit Court returned an indictment charging Jose Arteigapiloto, Johnny Shields, Lisa Michelle Jones, and Curtis Way with armed robbery of the Toomsuba Shell station. The cases against Jones and Shields were severed, leaving Arteigapiloto and Way to be tried together.
At trial, both Jones and Shields testified against defendants Arteigapiloto and Way. Defendant Arteigapiloto was found guilty of armed robbery and was sentenced to life in prison, giving rise to this appeal.
Should the trial judge have suppressed Mrs. Joan Bartlett's in-court identification of the appellant?
Some six months after the armed robbery Mrs. Joan Bartlett, the robbery victim, was shown a series of five 3 "X 4" photographs of various men. Mrs. Bartlett selected the photograph of the defendant and identified him as the man who robbed her.
Arteigapiloto subsequently filed a motion to suppress any in-court identification of him, claiming the photographic line-up had been unnecessarily suggestive. An evidentiary hearing was held February 6, 1985 and appellant's motion was overruled. The trial judge stated, "It appears to me to be good photographs. There is one in there I can hardly differentiate myself."
During the trial of this case on the merits, Mrs. Bartlett made a positive in-court identification of the defendant as the man who robbed her. Appellant assigns on appeal that Mrs. Bartlett's in-court identification was tainted, and should have been suppressed, because the photographic lineup was unnecessarily suggestive.
"A lineup or series of photographs in which the accused, when compared with the others, is conspicuously singled out in some manner from the others, either from appearance or statements by an officer, is impermissibly suggestive." York v. State, 413 So.2d 1372, 1383 (Miss.1982); Foster v. California, 394 U.S. 440, 89 S. Ct. 1127, 22 L.Ed.2d 402 (1969); Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L.Ed.2d 1247 (1968).
Having examined the photographic array, the Court finds the appellant was in no manner conspicuously singled out. Therefore, the Court holds the photographic lineup was not unnecessarily suggestive.
Was appellant properly denied discovery of the statement of witness Shields and was appellant denied his right to confront and cross-examine witnesses?
During appellant's trial, the state called as a witness codefendant Shields. Appellant objected to Shields' testimony because a written statement given by Shields to Lauderdale County authorities had not been revealed during discovery. The trial judge halted the trial until Shields' prior statement was produced for the court's inspection.
Shields subsequently testified to facts materially consistent to the prior statement. The cross-examination of
Shields was conducted by appellant himself with assistance from a language interpreter. *fn1 During this cross-examination, appellant pursued a line of questioning implying that Shields had given additional statements to Pearl River County authorities when Shields was arrested for a robbery that occurred shortly after the Toomsuba robbery and involved the same four defendants.
The record reflects that at the time appellant was cross-examining Shields, appellant was clutching a piece of paper that was never introduced into evidence and has never been identified. The prosecutor stated repeatedly that he had no objection to the paper being introduced, however, it never was introduced into evidence.
Throughout his cross-examination by appellant, Shields denied giving more than one written statement. Also during appellant's cross-examination of Shields, the trial judge encouraged appellant to limit his cross-examination to facts relevant to the Lauderdale County charges.
Under his second assignment of error, appellant raises three issues.
SHOULD APPELLANT HAVE BEEN PERMITTED TO CROSS-EXAMINE SHIELDS WITH THE BENEFIT OF THE WRITTEN ...