BEFORE DAN LEE, P.J., PRATHER AND GRIFFIN, JJ.
Joe Milton Wash was indicted by the grand jury of Newton County, Mississippi, on March 25, 1986, for armed robbery and convicted by a jury of the Circuit Court of Newton County on April 14, 1986. On April 16, 1986, he was sentenced by the Hon. Marcus D. Gordon to a prison term of 30 years. On April 18, 1986, a hearing was held on his motion for new trial and the motion was overruled. From this conviction and sentence he appeals, assigning the following errors:
I. The Court Erred in Failing to Grant Appellant's Motion for Change of Venue and in Failing to Permit Testimony in Behalf of Said Motion.
II. The Court Erred in Failing to Suppress the In-Court Identification of the Appellant by Wilson Blalock and the Testimony that Wilson Blalock Identified Appellant's Photograph as That of His Assailant and Identified Appellant as His Assailant in the Show-up.
III. The Verdict is Against the Overwhelming Weight of the Evidence.
IV. The Court Erred in Denying Appellant's Motion to Set Aside the Verdict of Jury and Grant New Trial on the Grounds that a Juror Took with Her into the Jury Room Handwritten Notes Taken by Her During the Trial.
For reasons stated hereinafter, we affirm.
On October 16, 1985, Wilson Blalock, age 67, returned to his trailer with a friend, Freeman Irving, age 85, who was staying with him until his upcoming eye surgery. Mr. Irving was blind at the time. Mr. Blalock left his trailer at around 4:00 p. m. and returned about 6:00 p. m. Upon his return Mr. Blalock started to repair a broken shelf in the kitchen and then headed for his bedroom to look for a hammer. He was met in the hallway by a man who came out of the bedroom with a claw hammer belonging to Mr. Blalock; the man began hitting him. The two of them scuffled around; the man then called for" Joe "to come help, specifically to bring a blanket to put over Blalock's head. The other man had a paper bag on his head, but Mr. Blalock got a good look at the man who was hitting him. The wounds to Mr. Blalock's head required 26 stitches.
After his assailants left, Mr. Blalock went to the sheriff's office to report the incident. The deputy sheriff brought out a stack of photographs and Blalock picked up the top one and immediately identified it as that of his assailant. The photograph was of Joe Wash. Blalock refused to look at any other pictures. Later, while Mr. Blalock was still at the police station waiting for the doctor, officers brought in two young black males. Mr. Blalock picked out Joe Wash as his assailant.
At trial Mr. Blalock identified Wash in court as his assailant. Mr. Blalock testified that his wallet was taken with his credit cards and drivers license. He identified his wallet in court and also identified the dark corduroy pants and blue
shirt of his assailant. Mr. Blalock then testified as to the photo identification and the show-up identification of Wash, stating that he was able to identify Wash's picture and later Wash himself, based on what he saw during the incident at his trailer. He stated he never could identify the man with the paper bag over his head.
R. V. (Butch) Williams testified that Joe Wash and two of his friends had come by his grandfather's house, where he was staying, on October 15, around 3:30 p. m. Wash asked him at that time where Wilson Blalock lived. Blalock lived a quarter mile from Williams' grandfather's house. On Thursday, October 17, Wilson Blalock picked up Williams up as he was walking to town and told him about the robbery. He told Butch that it was too dark for him to see anything.
Sandra Brown saw Joe Wash on October 16 between 4:30 and 5:00 p. m. She identified the pants, shirt, and tennis shoes presented to her in court as those Wash wore when she saw him. She also testified that on March 31, at another hearing in connection with this case, she was sitting by Wilson Blalock in a courtroom. Wash was sitting in front of them. Blalock asked her who the black man was. She said he acted like he did not recognize him. She told him that it was Wash," the man you said hit you. "Mr. Blalock stated that Mr. Wash's sideburns were shorter now.
Ron Davis, deputy sheriff of Newton County, testified about the photo identification and the show-up. He also testified that on Thursday morning, October 17, he drove out to Blalock's home. On a dirt road north of Blalock's trailer, he found tennis shoes and pants. On Highway 494, just off the dirt road, he found a shirt. Davis also found Blalock's wallet on the paved road in front of Blalock's home. He also testified that Wash has changed his hairdo since the night of the incident, and that Wash is cleaner shaven now than he was at that time. Davis stated that he took no fingerprints at the trailer.
Oliver Larkin was the state's key witness. He testified that he was with Wash and Ricky Glenn on October 15 when they went to see Butch Williams. He was also with Wash on October 16 when they went to see Sandra Brown. After leaving Ms. Brown's house, Wash asked Larkin to drop Glenn and him off about a quarter mile from Blalock's trailer. At trial Larkin identified the shirt, pants and tennis shoes that the defendant was wearing. He returned to the same area around 6:30 that evening and picked up Wash and Ricky Glenn. At the request of Wash, he threw Wash's tennis shoes, pants and shirt out the car window. After he was arrested Glenn took the police out and showed them where they were thrown. He also testified that Wash's hair was
shorter now than it was then. Larkin was found not guilty on the Blalock robbery. The district attorney told him he would not prosecute him as an accessory after the fact if he testified at Wash's trial.
Sheriff Bud Miles established the chain of custody of the pants, the shirt, the shoes and the wallet. He also testified that he found the claw hammer on the paved road by Blalock's house. The shirt and shoes had blood stains on them when he first received them, as did the hammer.
The defense offered the testimony of Josephine Wash, defendant's mother. She said her son was on the corner by their house at 5:30 p. m. on October 16. He then passed by the house walking with his friends. She then heard and saw him shooting at some dogs in a ditch by their house. After that he came into the house until almost 7:00 and visited with his sister. She could not identify the pants and shirt and tennis shoes as belonging to Joe Wash.
Juanita Merle, Wash's aunt, lives next door to Wash's mother. She saw Wash just before 6:00 p. m. on October 16 walking past her house from the corner to the ditch. She then saw him come back by and go into his mother's house about 6:00 p. m. Ricky Glenn and Oliver Larkin were with him. Joe Wash did not testify in his own defense.
The Court Erred in Failing to Grant Appellant's Motion for a Change of Venue and in Failing to Permit Testimony in Behalf of Said Motion.
Wash filed a motion for change of venue, but did not call the motion to the trial court's attention and did not request a hearing on the motion until after completion of voir dire, after selection of the jury, and after both sides had announced" ready for trial. "The trial judge declined to consider the motion because Wash" didn't give the court and state an opportunity to pursue that in its voir dire. "He did allow Wash to make a proffer of the testimony of five people who would testify as to public sentiment against Wash due to a newspaper article which appeared in the Newton Record, a local paper with a circulation of 3800-4000. Wash also wished to offer the ...