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January 01, 1989




Johnny Ray Magee, defendant below, was convicted in the Circuit Court of Marion County on robbery charges. This conviction constituted Magee's third felony offense, and he was sentenced as a habitual offender pursuant to 99-19-83 Miss. Code Ann. (1972, as amended), to a term of life imprisonment without parole. He now perfects his appeal to this Court and assigns as error the following:

(1) Was it error for the trial court to allow identification testimony of the appellant by the State's witnesses where the identification procedures used by law enforcement were allegedly tainted?

 (2) Was it error for the trial court to allow lineup identification testimony where the appellant's sixth amendment right to counsel was allegedly violated?

 (3) Was it error for the trial court to allow the district attorney to peremptorily strike twelve black jurors without showing sufficient cause to overcome Batson standards?

 (4) Was the jury's verdict supported by the evidence?

 (5) Was it error for the trial court to reduce the armed robbery indictment to robbery instead of dismissing the indictment?

 (6) Was it error for the trial court to instruct the jury on accomplices, where no accomplice testimony was presented?

 (7) Was it error for the trial court, in the bifurcated hearing to determine sentence, to rule that concurrent sentences meet the requirements of the habitual offender's statute, as" separate terms served "?

 (8) Was it error for the trial court to find that the appellant had one crime of violence in his past in the

 hearing to determine sentence?

 (9) Does the enhanced punishment of the habitual offender's statute (99-19-83 of Miss. Code 1972, as amended) constitute cruel and unusual punishment as prohibited in the eighth amendment of the U. S. and Mississippi Constitutions?


 Brenda Simmons, and her husband owned Northside Package Store on Hwy. 13 in Columbia, Mississippi. On September 24, 1986, at approximately 12:30 p. m., Brenda was working inside her store when two black men walked into the store. Mrs. Simmons asked if there was anything she could do to help them and one of them asked her if the store accepted food stamps. She replied that they did not. The two men then walked to a cooler located inside the store and conversed for a moment. One of the two men turned as if to leave the building; the other man lagged behind him. The store was located in a rather small building and there were no other customers inside at the time.

 The man who lagged behind suddenly slapped his hands on the counter, hollered" Now "and jumped over the counter, knocking Mrs. Simmons to the floor. She started to scream but the man stuck his hand in her mouth and said" Shut up, bitch. I'll kill you. "When she tried to stand up, he knocked her down again. At this point, Mrs. Simmons was lying face down on a rug behind the counter. Mrs. Simmons heard the cash register ring, and the man holding her down told the other man to" Get it all. Get it all. "Mrs. Simmons felt a hard item against her neck, which she assumed to be a gun. The man threatened her again at this point, saying" I'll kill you, white bitch. "

 Mrs. Simmons testified that she did not see the two men enter the store with a weapon in their hands, but that when they left the store her gun that normally was under the counter beneath the cash register was no longer there. After emptying the cash register, and grabbing other items located on the counter beneath the register, the man who had grabbed the money said" Let's go, man. Let's go. Leave her alone. "The man who had held her to the ground said" I'm going to kill you anyway. "At that point Mrs. Simmons testified that she braced herself for the shot. However, no bullet was ever fired, and soon thereafter she heard her front door open. Realizing that the robbers had left, she called the police, who arrived soon thereafter.

 Reported stolen in the incident were Mrs. Simmons' billfold, containing several credit cards, $400 contained in a bank bag beneath the counter, a pistol which had been located underneath the counter, and approximately $275 to $335 in cash, taken from the cash register. Except for the bruises caused by being hit and shoved around, Mrs. Simmons was unharmed.

 Johnny Ray Magee was indicted, and charged with armed robbery. His trial was held on February 27, 1987. Mrs. Simmons made an in-court identification of the defendant. At the conclusion of the State's case, the defense made a motion for dismissal of the armed robbery on the basis that the State had failed to prove an armed robbery. The trial judge sustained the motion as to the armed robbery charge, but ruled that the lesser included offense of robbery would withstand a motion for peremptory instruction. The defendant was directed to proceed to defend a robbery charge. The defendant did not testify, but family members presented alibi testimony.

 Magee was found guilty of robbery. He was then sentenced to life without parole as a habitual offender, pursuant to 99-19-83 of Miss. Code Ann. (1972, as amended).



 Under this first assignment of error, the appellant contends that the procedures used by the police in conducting the lineups at which he was identified by the victim were tainted, thus rendering the identification testimony improper.

 The robbery of Mrs. Simmons' store took place on September 24, 1986. Based on a description given the police by Mrs. Simmons, the appellant was picked up by the police at approximately 6:00 p. m. that same day. The record makes no reference whatsoever as to whether or not the appellant was ever given his Miranda rights. The next day, on September 25, at approximately 4:00 p. m. in the afternoon, the victim viewed a lineup at the Marion County jail; in this lineup was the appellant Johnny Ray Magee. The victim viewed the lineup through a glass panel in a door that was covered with a piece of paper, with a peep hole cut in the piece of paper.

 While at the jail, Mrs. Simmons viewed the lineup on two occasions. She was not able to positively pick the appellant

 out of the lineup. She did state at the time that one of the men in the lineup looked similar to one of the robbers. The victim did not identify the appellant in any way at this time.

 On the following day, September 26, several police officers went to the Northside Package Store where Mrs. Simmons was working, and showed her five photographs. Among these photographs was a picture of the Johnny Ray Magee. After examining the photographs, Mrs. Simmons picked out the appellant without any hesitation whatsoever. It is uncontradicted that the only person who appeared in both the lineup and the photographic display was Johnny Ray Magee.

 Magee contends that Mrs. Simmons' in-court identification testimony was impermissibly tainted by the lineup and the photographic display by singling him out in such a manner. It is worth noting that the main focus of the appellant's challenge to the lineups is the fact that he was the only person to appear in both the lineup and the photographs; he does not appear to challenge the actual physical composition of the lineup and/or the photographs. Before the trial began, the appellant's counsel made a motion to suppress the identification testimony of Mrs. Simmons. After hearing testimony on the motion to suppress, the trial judge overruled the appellant's motion. The court found that using the" totality of the circumstances "test, there was no danger of" irreparable misidentification. "The court further found that Mrs. Simmons had testified that she could identify the appellant as the person who robbed her on September 24, 1986," based on her independent recollection of the robbery and the person who perpetrated it without any aid from lineups, pictures, etc. "

 This Court's scope of review for suppression hearing findings in pretrial identification cases is as follows:

 The combined effect of the circuit court's pretrial and trial rulings is that of a finding of fact that, under the totality of the circumstances . . . in-court identification testimony had not been impermissibly tainted. We may, of course, disturb such a finding only where there is an absence of substantial credible evidence supporting it.

 Nicholson v. State, 523 So. 2d 68, 71 (Miss. 1988) [quoting Ray v. State, 503 So. 2d 222, 224 (Miss. 1986)]. Therefore," this Court must determine if, in this case, there is substantial credible evidence supporting the trial judge's findings. "Nicholson. supra, at 71.

 The most well-known set of standards for judging the reliability of lineup identification procedures is found in the U. S. Supreme Court case of Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L.Ed.2d 401 (1972). In that case, the Supreme Court noted the necessity for determining whether" under the `totality of the circumstances' the identification was reliable even though the confrontation procedure was suggestive. "409 U.S. at 199, 93 S. Ct. at 382, 34 L.Ed.2d at ...

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