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07/29/94 CLIFTON JEROME EPPS v. STATE MISSISSIPPI

July 29, 1994

CLIFTON JEROME EPPS, APPELLANT
v.
STATE OF MISSISSIPPI, APPELLEE



Before Thomas, P.j., Coleman, And Hinkebein, JJ.

The opinion of the court was delivered by: Coleman, J., For The Court:

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. ROBERT LOUIS GOZA, JR.

COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT

BY: DEWITT ALLRED, III

DISTRICT ATTORNEY: JOHN KITCHENS

NATURE OF THE CASE: CRIMINAL - FELONY

TRIAL COURT DISPOSITION: GUILTY--BURGLARY OF AN OCCUPIED DWELLING AS A HABITUAL OFFENDER: SENTENCED TO SERVE A TERM OF 15 YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS & PAY COURT COSTS, STATUTORY FEES & ASSESSMENTS

DISPOSITION AFFIRMED - 5/5/98

Pursuant to Clifton Jerome Epps's waiver of a trial by jury, the Judge of the Madison County Circuit Court in a bench trial found Epps guilty of burglary of an occupied dwelling and sentenced him as a habitual offender to serve a term of fifteen years in the custody of the Mississippi Department of Corrections without parole and ordered him to pay court costs, statutory fees and assessments. Epps appeals to argue one issue, which is that the trial court committed reversible error by permitting a witness's in-court identification of him, which he claims was tainted by a pretrial photographic line-up. Nevertheless, we affirm.

I. FACTS

At approximately nine o'clock on the morning of June 29, 1993, Leon Washington, Jr., a sixteen-year-old soon-to-be senior in Madison Central High School, was asleep in his bedroom in the home located in Ridgeland which his father and he occupied. He was alone in the home because his father had left earlier that morning to go to work. Two loud noises, which he described in his trial testimony as "boom, boom," awakened him. He realized that the sounds had come from the back door of the home. After he heard these noises, Washington got out of bed and tiptoed down the hall toward the den. He peeked around the corner of the hall and saw the appellant, Clifton Jerome Epps, standing near the television set in the den. After a period which Washington described as "about five seconds," Epps turned, discovered Washington standing in the hall, and, according to Washington's testimony, the two maintained "eye-contact" for another period of about five seconds.

Epps then fled through the back door, which he had kicked down to enter the Washingtons' house. Washington quietly followed Epps out the back door and to the garage where he saw Epps get into a cream-colored, flatbed pickup truck with boards on each side of its bed. As Epps drove away, Washington saw a green tiller in the bed of the truck. He also observed that the handle on the exterior of the back door, which had been locked while Washington slept, was "busted out" of the back door. Washington immediately called the Ridgeland police. Officer Revell Dixon with the Ridgeland Police Department was the first officer to arrive at the Washington home. After Officer Dixon arrived at the Washingtons' home at 9:15 A.M., Washington told him that he had interrupted someone "robbing his home." Washington further informed the officer that a tiller, fishing rod, tool box, and some bikes were missing from the house. Later, it was determined that a power saw was also missing.

Two days later, on July 1, 1993, Detective Gary Davis of the Ridgeland Police Department brought a photographic line-up to the Washingtons' home and asked Leon Washington, Jr., if any of the pictures were of the person he had seen two days earlier in his home. According to ...


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