DATE OF JUDGMENT: 8/12/96 TRIAL JUDGE: HON. MARCUS D. GORDON COURT FROM WHICH APPEALED: NEWTON COUNTY CIRCUIT COURT
Before Prather, C.j., Roberts And Mills, JJ.
The opinion of the court was delivered by: Prather, Chief Justice, For The Court:
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION REVERSED AND APPELLANT DISCHARGED
¶1. On January 30, 1996, Verda Bryan was robbed at gunpoint while working at the Mississippi Regional Housing Authority. While Bryan was working in a bathroom, a black male put a gun to his side and robbed him of his wallet and his watch. The robber ordered Bryan to drop his pants, after which the robber escaped. Officer Harvey Curry of the Newton Police Department responded quickly to Bryan's 911 call, and he immediately took Bryan for a ride in his police car in an attempt to locate the robber.
¶2. Officer Curry later testified at trial that Bryan failed to identify defendant Chapman on at least three occasions within an hour of the shooting. Officer Curry testified that the first failed identification occurred while Chapman was observed walking down the street mere minutes after the robbery:
We were stopping people, and, you know, trying to see whether or not was this the person that robbed you, and at the time we ran into Davie Lee Chapman coming down Third Street. He was heading north on Third when he ran into him, and I said, "Is this the one that robbed you?" He said, "No."
The second failed identification occurred a bit further down the street, in front of Christy Foster's home. Officer Curry testified that:
About that time, Davie Lee Chapman again came down Ora Street heading east right beside the patrol car. Still, he didn't say whether or not that was him. I didn't ask him, because I had already asked him at one time.
The third failed identification occurred at the same time that Bryan had tentatively identified Larry Joe Robinson as the man who had robbed him. Officer Curry testified that:
A: Okay. We went on to begin to patrol again to see if we could find the person that was responsible for robbing him. We got back. Mr. Bryan pointed out Larry Joe Robinson as the person that looked like the one that robbed him.
Q: Mr. Bryan pointed out Larry Joe Robinson ?
A: Yes, Sir. Okay. I stopped here at William Payne's residence, and I had Larry Joe to come over to the car, and I asked Mr. Bryan, I said, "Is this the one that robbed you?" He said, "No, it looked like him, but it's not him." Again, Davie Lee Chapman was behind him. I said, "What about him?" Again, he said, "No."
Bryan did not identify Chapman as the robber until the day after the robbery, when Bryan saw Chapman in the police station. Chapman had been detained by the police on an unrelated matter, and, upon seeing Bryan staring at him, Chapman told Bryan that he was not the one who had robbed him. After this statement, Bryan identified Chapman as the robber for the first time. Chapman was charged and convicted of the robbery of Bryan and was sentenced to 25 years imprisonment. Chapman timely appealed to this Court.
A. The Trial Court Erred in Failing to Sustain the Appellant's Motion for a Directed Verdict and not Granting the Peremptory Instruction and the Verdict was ...