Before Thomas, P.j., Diaz, And Southwick, JJ.
The opinion of the court was delivered by: Thomas, P.j.
DATE OF JUDGMENT: 05/28/97
TRIAL JUDGE: HON. THOMAS J. GARDNER III
COURT FROM WHICH APPEALED: LEE COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CT I BURGLARY: CT II ARMED ROBBERY: CT III AGGRAVATED ASSAULT: CT I 7 YRS CONSECUTIVE CT II & CT III; CT II 20 YRS CONSECUTIVE CT I & CT III; CT III 20 YRS CONSECUTIVE CT II & CT I; SENTENCE NOT REDUCED, SUSPENDED NOR PAROLED.
DISPOSITION: AFFIRMED - 12/18/98
¶1. Richard Black appeals his conviction of burglary, count one; armed robbery, count two; and aggravated assault, count three. Black was sentenced as an habitual offender to the custody of the Mississippi Department of Corrections to serve a term of seven years on count one, twenty years on count two, and twenty years on count three, with all three sentences to run consecutively. Feeling aggrieved, Black appeals on the following issues of error:
I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING DEFENDANT'S MOTION TO DISMISS FOR VIOLATION OF HIS RIGHT TO SPEEDY TRIAL
II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR, IN REFUSING DEFENDANT'S CIRCUMSTANTIAL EVIDENCE INSTRUCTION
III. THE TRIAL COURT ERRED IN SENTENCING THE DEFENDANT PURSUANT TO MISSISSIPPI CODE ANNOTATED, § 99-19-81
Finding no error, we affirm.
¶2. During the evening hours of January 20, 1995, the Marshall Durbin, Inc. processing plant in Tupelo, Mississippi was burglarized. While making his normal rounds, John Anderson, a security guard with Marshall Durbin, discovered an intruder in the business office. Anderson was searching for a light switch when he was struck in the face with some type of heavy rod or stick with such force as to render Anderson temporarily unconscious. As a result of the blow, considerable damage was inflicted to the bone structure of Anderson's face. Anderson regained consciousness sometime later and managed to make his way back outside where an employee aided him and called the police. He was treated in the emergency room for a long laceration to his face and hospitalized that night for observation. Anderson later underwent reconstructive surgery to repair both the ceiling and the floor of his orbid, the area surrounding the eye socket. Dr. Duong testified that in order to repair Anderson's orbid, bone was taken from Anderson's hip and transplanted to his damaged orbid.
¶3. At trial Anderson testified to the events of January 20, 1995. Anderson testified that he was on duty at the entrance gate to the Marshall Durbin plant checking in the night shift employees when a man approached the plant entrance at around 7:25 p.m. and identified himself as Richard Black. Anderson testified that Black looked familiar but that he did not know his name. Anderson questioned Black. Black produced a Marshall Durbin I.D. and stated that he had been transferred from the day shift to the night shift. After producing proper I.D., Black was allowed to enter the plant.
¶4. At around 7:30 p.m., Anderson began his security checks at the plant and noticed some suspicious activity in the business office. Anderson testified that the main door was unlocked and had signs of forced entry. He entered the office and spotted another open office door at the end of the hallway. Anderson testified he heard some noise down the hallway and called out, "Who's back there?" A man answered and said, "It's me Richard Black, I've caught a drunk that was breaking in the office." Anderson called out, "Where is he?" and Black answered, "I've got him back here." As Anderson was looking for a light switch, Black approached him. Anderson testified a light was shining from the hallway and that he could identify the man as Richard Black. Anderson further testified that as he turned back around, Black struck him in the face with some object and that he fell to the floor and lost consciousness. Anderson later discover that his wallet was missing and that approximately $60 was in the wallet.
¶5. Anderson testified that while he was in the hospital, he was asked to view a photo lineup and to try to identify his assailant. Anderson declined to make an identification at that time due to the swelling in his eyes. He further testified that a few weeks later he did view a photo lineup and that by that time the swelling had subsided and he was able to identify the person who had hit him on January 20, 1995. Anderson identified Richard Black from the lineup. Anderson also positively identified Richard Black at trial as the person who had assaulted him.