ROBERTSON, JUSTICE, FOR THE COURT:
ON PETITION FOR REHEARING
At its core this appeal of an armed robbery conviction asks that we consider whether a pre-trial notice of alibi filed by defense counsel may be employed by the prosecution as substantive evidence. We hold that it may not. The notice of alibi is merely a notice that the defendant may assert an alibi defense at trial. It is required under a procedural rule designed to minimize the practice of trial by ambush.
Because the Circuit Court allowed the notice of alibi, over defense objections, to be considered by the jury as evidence against the accused, we reverse and remand for a new trial.
Shortly before 5:00 o'clock on the afternoon of October 13, 1984, a man, said to be Lewis Brooks Ray, Defendant below and Appellant here, entered the premises of Clarksdale Beauty Supply Company and at gunpoint robbed its proprietor, Fred M. Dawson, of approximately $1,555.00. Shortly thereafter Ray was arrested and on January 2, 1985, he was formally charged in an indictment returned by the Coahoma County Grand Jury with the crime of armed robbery. Miss. Code Ann. 97-3-79 (Supp.1985). The matter was called for trial in the Circuit Court of Coahoma County, Mississippi, on February 7, 1985, at the conclusion of which the jury found Ray guilty of armed robbery. The Circuit Court thereupon sentenced Ray to a term of forty years imprisonment, the jury having failed to reach an agreement regarding the penalty to be imposed. Following the usual post-trial motions, this appeal has been perfected.
Ray presents six assignments of error, one of which will require reversal. Two of the assignments of error relate to issues almost certain to arise upon remand, and in the interest of judicial efficiency, we will address them. The other three assignments of error relate to issues which seem unlikely to recur and with respect to which, in any event, our
law is reasonably well settled. Those issues will not be addressed.
Ray's first assignment of error, if we understand it correctly, is that the Circuit Court erred in overruling his motion to suppress the testimony of Fred W. Dawson insofar as Dawson identified Ray as the perpetrator of the armed robbery. Ray argues that a show-up conducted by law enforcement officers shortly after his arrest had such an impact upon Dawson that Dawson's identification testimony at trial was more likely the product of his observations of Ray at the show-up than his memory of the appearance of the armed robber on the afternoon of October 13. Put otherwise, Ray argues that under the totality of the circumstances there was a substantial probability that Dawson misidentified Ray as the man who entered his place of business on the 13th of October, 1984. Ray complains both of the show-up where Dawson identified him at the police station and of a previous procedure whereby Dawson identified a photograph of Ray in police files.
Disposition of this point is controlled by the pattern of analysis emanating from the familiar case of Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L.Ed.2d 401 (1972), where the Court identified five factors to be considered by the trial court in determining whether the witness' in court testimony had been impermissibly tainted by his participation in law enforcement investigatory identification procedures. Those factors are:
(1) the opportunity of the witness to view the accuse at the time of the crime;
(2) the degree of attention exhibited by the witness;
(3) the accuracy of the witness' prior description of the criminal;
(4) the level of certainty exhibited by the witness at the ...