Before Bridges, C.j., Hinkebein, And King, JJ.
The opinion of the court was delivered by: Hinkebein, J.
DATE OF JUDGMENT: 08/04/97
TRIAL JUDGE: HON. BILLY JOE LANDRUM
COURT FROM WHICH APPEALED: JONES COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CT I AGGRAVATED ASSAULT: CT II SIMPLE ASSAULT: CT I SENTENCED TO SERVE A TERM OF 20 YRS IN THE MDOC WITH 10 YRS SUSPENDED, 10 YRS TO SERVE, TO RUN CONSECUTIVE TO ANY & ALL PREVIOUS SENTENCES; CT II SERVE 6 MONTHS & PAY $500 FINE
DISPOSITION: AFFIRMED - 12/18/98
¶1. Steven Harrison (Harrison) was convicted August 4, 1997 in the Circuit Court of Jones County on one count of aggravated assault and one count of simple assault. On Count One of aggravated assault he was sentenced to serve twenty years in the custody of the Mississippi Department of Corrections, with ten years suspended. On Count Two of simple assault, he was sentenced to six months imprisonment and ordered to pay a fine of $500. These sentences were to run consecutively to any other prior sentences imposed upon Harrison. Aggrieved by his conviction, he appeals to this court on the following grounds:
I. THE COURT ERRED IN NOT STRIKING FOR CAUSE A JUROR WHO WAS A COUSIN OF THE DISTRICT ATTORNEY'S CHIEF INVESTIGATOR.
II. THE TRIAL COURT ERRED IN OVERRULING DEFENDANT'S MOTION TO EXCLUDE THE IN-COURT IDENTIFICATION OF THE DEFENDANT, IN THAT IT WAS NOT ESTABLISHED THAT THE IN-COURT IDENTIFICATION HAD AN INDEPENDENT ORIGIN FROM THE PRIOR LINE-UP IDENTIFICATION WHICH HAD THE POTENTIAL FOR IMPROPER INFLUENCE AND SUGGESTIVENESS AND, THEREFORE, THE DEFENDANT WAS DENIED A FAIR AND IMPARTIAL TRIAL UNDER DUE PROCESS PROVISIONS AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND BY MISSISSIPPI CONSTITUTION ARTICLE III SECTION 14.
III. THE COURT ERRED IN ALLOWING THE VICTIM TO TESTIFY WHAT THE DOCTOR TOLD HIM WAS WRONG WITH HIS JAW, AS SUCH TESTIMONY WAS HEARSAY, AND VIOLATED THE DEFENDANT'S RIGHT TO CONFRONT THE DOCTOR.
IV. IN COUNT ONE, THE TRIAL COURT IMPROPERLY REFUSED A PEREMPTORY INSTRUCTION FOR THE DEFENDANT AS TO THE CHARGE OF GUILTY OF AGGRAVATED ASSAULT AND WAS CONTRARY TO THE LAW AND AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.
¶2. Holding these assignments of error to be without merit, we affirm the judgment of the circuit court.
¶3. On the night of October 25, 1996, sixty-seven-year-old Robert Cochran ( Robert) and his wife Eleanor Cochran (Eleanor) were watching television in their Ellisville home. At about nine o'clock, there was a knock at the back door. Eleanor testified at trial that she peered through the window of the door and saw a young man that she initially mistook for her grandson. When she opened the door, the man told her his car had broken down, and he needed to use the phone. Eleanor testified that after the man pretended to make a call on her cordless phone, he pushed his way into the house, slamming the door against her and knocking her to the floor. Robert testified he was sitting in his recliner when he heard his wife yell and saw her knocked down. The man then struck Robert in the face, knocking him out of the chair and onto the hearth of the fireplace. The man then struck Robert again in the face. The record does not reflect that anything was taken from the Cochran home, although the facts suggest this was a botched robbery. As the man fled out the back door, he told the couple he had a gun in his car, but no weapon was ever actually seen. The last the couple saw of the fleeing assailant and a possible accomplice were the taillights of a car heading out of their driveway.
¶4. Robert suffered a split lip and bruises from the blows to his face, and he testified at trial that a dentist later told him that some of his teeth were loosened and his jaw had been dislocated. There is no evidence that Eleanor suffered any injuries aside from skinned elbows. Both Robert and Eleanor testified they had a good opportunity to see the intruder's face during the incident. Both also testified they identified Harrison as their assailant from a sheriff's department line- up. Prior to Eleanor's in-court identification of Harrison, defense counsel requested voir dire of the witness. Outside the presence of the jury, Eleanor further testified that she received a call from her nephew the night of the attack, who suggested to her that Harrison was the person who had assaulted the couple. The record does not reflect the basis of the nephews' statement. She also testified that on that same night, her grandson showed her a picture of a tuxedo-clad Harrison in a 1995 South Jones County High School yearbook. Both Eleanor and later her husband testified that the yearbook picture did not look like the sweatshirt clad intruder. She viewed the picture in the yearbook prior to identifying Harrison in the line-up. Harrison moved for the trial court to exclude ...