BEFORE DAN LEE, P.J., PRATHER AND ROBERTSON, JJ.
PRATHER, JUSTICE, FOR THE COURT:
A post-arrest lineup, held in the absence of a defense counsel, is the focal point of this appeal. Finding that the lineup evidence was harmless beyond a reasonable doubt, this Court affirms the conviction. Defendant Clim Jimpson was tried and convicted in the Circuit Court of Hinds County, sitting on change of venue in Jackson County, Mississippi for aggravated assault against Linda Grantham. He was sentenced to life imprisonment as a habitual offender, pursuant to 99-19-83, Miss. Code Ann. (1987 Supp.) From this conviction, the defendant perfects this appeal and assigns as error the following:
(1) THE TRIAL COURT ERRED IN ALLOWING WITNESSES KIRKLAND AND ROGERS TO TESTIFY THAT THEY PREVIOUSLY IDENTIFIED APPELLANT IN PRETRIAL LINEUPS BECAUSE: (A) THE LINEUPS WERE CONDUCTED SUBSEQUENT TO THE COMMENCEMENT OF PROSECUTION AGAINST APPELLANT WITHOUT THE ASSISTANCE OF COUNSEL AND IN THE ABSENCE OF AN EXPRESS WAIVER THEREOF; AND
(B) SUCH TESTIMONY WAS INADMISSIBLE HEARSAY WHICH BOLSTERED THE TRIAL TESTIMONY OF THE SAID WITNESSES.
(2) THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF FLIGHT.
(3) THE TRIAL COURT ERRED IN OVERRULING DEFENSE COUNSEL'S OBJECTION TO THE COMMENT OF THE DISTRICT ATTORNEY, IN CLOSING ARGUMENT, ON THE APPELLANT'S FAILURE TO TESTIFY.
(4) THE TRIAL COURT ERRED IN CONSIDERING EVIDENCE NOT PROPERLY BEFORE IT AT THE SENTENCING PHASE OF THIS TRIAL.
(5) THE CUMULATIVE EFFECT OF THE AFORESAID ERRORS WAS TO DEPRIVE CLIM JIMPSON OF HIS FUNDAMENTAL RIGHT TO A FAIR TRIAL.
On February 12, 1985, at about 2:00 p.m., Linda Grantham, a senior lending officer at the Raymond/Terry Road Branch of Deposit Guaranty National Bank returned to the bank from lunch. She parked her 1983 Celica in the parking lot behind the bank and got out of the car, with keys and purse in her hand. A man identified by Mrs. Grantham as the appellant then asked her the time.
When she looked up from her watch, she saw the appellant coming at her with a silver-colored handgun in his hand. She testified that the appellant wore glasses and a hat and a green outfit. Other witnesses testified that the appellant was not wearing a cap and that his outfit was brown, not green.
When the appellant told Mrs. Grantham that she was going to take him" somewhere, "she began screaming, and the appellant struck her in the mouth. At this point the appellant had his arms wrapped around Mrs. Grantham's head. In the ensuing struggle, the appellant shot Mrs. Grantham in the back of the neck; the bullet severed her spinal cord completely, leaving her totally and permanently paralyzed below the neck level. After being shot, Mrs. Grantham fell in the parking lot, but did not lose consciousness. The appellant dragged her to her car and threw her into it, her head coming to rest in the driver's seat. Mrs. Grantham kept her eyes nearly closed so that the appellant would believe she was dead. Mrs. Grantham testified that two to four minutes passed between the time she was asked what time it was by the appellant and the time that he shot her. Mrs. Grantham was unable to move; she heard the branch reopen at
2:30 and tried to yell in order to get someone's attention. At about 3:20 she was found by Willie Ginn, another member of the branch staff.
Based on Mrs. Grantham's tentative description and the description given by a Mr. Smith, of a man seen on the morning of February 12, in a trailer park next to the bank, Jackson police officers began looking for the appellant. On February 14, Officer Miles Floyd of the Jackson Police Department was working a funeral service at the intersection of Collier and Fontaine Streets in Jackson. He observed a black male subsequently identified by him at trial as the appellant running in the areas of Bailey and Collier. Floyd proceeded onward and again noticed the appellant standing at the corner of a house at Douglas and Rockdale. The appellant ran across the street to another house and went behind it. A gate to the fence at this house was left open and Floyd entered it in an effort to find the appellant. Floyd noticed a shed behind the house; he looked into it and saw the appellant standing in a corner, breathing hard. Floyd realized that the man in the shed resembled the appellant from posters released by police and called for assistance. On duty officers arrived and took the appellant into custody.
Detective C. M. Crisco of the Jackson Police Department interrogated the appellant on the 14th of February subsequent to the appellant's arrest. Present with Crisco were Detectives J. W. Monroe and R. Jordan. The appellant was advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966) and the appellant agreed to waive those rights. The appellant signed a waiver form, and his written and signed confession was introduced into evidence. After initially denying his involvement in the crime, the appellant admitted that he shot Mrs. Grantham and that he acted alone. He stated that after shooting her he ran behind Mart 51, took Mrs. Grantham's billfold from her purse and threw the purse into a dumpster located behind Mart 51. The appellant took the detectives to the dumpster, one of about ten in the area, where the purse was found in the southwest corner at approximately 5:15 p.m. It was identified by Mrs. Grantham as being her purse.
The appellant told the detectives that he accosted Mrs. Grantham to get some money, but that she refused to give him her purse, at which point he shot her. Appellant stated that he put Mrs. Grantham's billfold in the back of a truck driven by Woodrow Rogers after retrieving a five dollar bill from it. The billfold (pocketbook) was found by Woodrow Rogers when he was unloading the truck. Rogers gave the billfold and its contents to Charles Brewer. This billfold
was identified by Mrs. Grantham as being hers. The billfold contained credit cards, checks and deposit slips, all in Mrs. Grantham's name, along with her bank employee identification card.
Rogers testified that on February 12, 1985, he picked the appellant up at some point in time before 3:00 p.m. off Winter Street, which is less than a mile from the Raymond/Terry Road branch of the bank. Rogers testified that he was flagged down by the appellant, and drove him to Great Southern Industries, a 15 minute trip from where the appellant was picked up. Rogers was employed by Great Southern to haul scrap paper. When Rogers arrived at the paper plant he went in to talk to Brewer, and the appellant disappeared. Rogers identified the appellant at trial as the man who flagged him down and whom he drove to Great Southern on February 12, 1985.
The appellant was convicted of the offense charged in the indictment. At a separate sentencing hearing the appellant was sentenced as an habitual offender pursuant to 99-19-83 of the Miss. Code. Ann. (Supp. 1987).
DID THE TRIAL COURT ERR IN ALLOWING WITNESSES KIRKLAND AND ROGERS TO TESTIFY THAT THEY HAD PREVIOUSLY IDENTIFIED THE APPELLANT IN PRE-TRIAL LINEUPS BECAUSE: (A) THE LINEUPS WERE CONDUCTED SUBSEQUENT TO THE COMMENCEMENT OF PROSECUTION AGAINST APPELLANT WITHOUT ALLOWING ASSISTANCE OF COUNSEL AND IN THE ABSENCE OF AN EXPRESS WAIVER THEREOF; AND (B) SUCH TESTIMONY WAS INADMISSIBLE HEARSAY WHICH BOLSTERED THE TRIAL TESTIMONY OF THE SAID WITNESSES.
A. Were the lineups conducted improperly?
Among the rights guaranteed under both the United States and Mississippi Constitutions is the right to counsel. This right to counsel in the U.S. Constitution is found in the Sixth Amendment:" In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense. "The parallel provision in the Mississippi Constitution reads as follows:" In all criminal prosecutions the accused shall have a right to be heard by himself or counsel. . . "Miss. Const., Art. III. 26 (1890). Page v. State, 495 So.2d 436, 439 (Miss. 1986); Cannaday v. State, 455 So.2d 713, 722 (Miss. 1984); Patterson v. Illinois,___, U.S.___, 108 S. Ct. 2389, 2393,___ L.Ed.2d ___ (1988).
The United States Supreme Court has held that the Sixth
Amendment right to counsel attaches once adversarial" judicial proceedings "have been initiated. Kirby v. Illinois, 406 U.S. 682, 92 S. Ct. 1877, 32 L.Ed.2d 411 (1972). Kirby, supra, held that these proceedings may take the form of an indictment, information, arraignment or preliminary hearing. See also. Brewer v. Williams, 430 U.S. 387,___ S. Ct.___, ___ L.Ed.2d ___ (1977). These cases suggest that ...