Before McMILLIN, P.j., Herring, And King, JJ.
The opinion of the court was delivered by: Herring, J.
DATE OF JUDGMENT: 12/04/1997
TRIAL JUDGE: HON. MARCUS D. GORDON
COURT FROM WHICH APPEALED: NEWTON COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: AGGRAVATED ASSAULT SENTENCED TO TWENTY YEARS
DISPOSITION: AFFIRMED - 12/18/1998
¶1. Allen Duane Harvey was indicted for aggravated assault and armed robbery in the Circuit Court of Newton County, Mississippi. He appeals to this Court from his conviction of aggravated assault. Harvey challenges his conviction on the grounds that: (1) the trial court erred in considering jury instructions before the defense rested its case; and (2) the trial court erred in overruling his objection to the State's closing argument. We find that these assignments of error are without merit, and therefore, we affirm.
¶2. Between 12:15 and 12:30 p.m. on January 22, 1997, seventy-two-year- old Zara Ricketts was working alone in her Union, Mississippi business, Zara's Trash and Treasures. A man, later identified by Ricketts as Harvey, the appellant, entered the business and stated that he wanted to buy a bedroom suite. The two walked to where the bedroom suites were displayed, and the man showed Ricketts which bedroom suite he wanted to purchase. Ricketts asked the man how he wanted to pay for the furniture, and he stated that he wanted to make the purchase on a "lay away" plan. Ricketts went to the register to get a contract to complete the purchase. After she started filling out the contract, she heard a noise behind her. When she looked up, the man was pointing scissors in her chest. She asked him what he wanted, and he stated that he wanted money. The man grabbed her by the throat, started choking her, and hit her in the mouth. Ricketts ran toward an office door, but just as she reached the door knob the man grabbed her by the arm tearing her skin. The assailant then hit her on the ear, threw her against the wall, and kicked her in the chest and rib area. Ricketts testified that as a result of Harvey's assault on her, she has a scar on her arm, her hearing is permanently damaged, her eye was damaged, her glasses were broken, some of her ribs were broken, and some of her teeth were knocked out. After the beating, Ricketts passed out. When she awoke, she crawled to the telephone and notified the police. Ricketts was taken to the hospital where she spent five days in the intensive care unit.
¶3. Ricketts testified that her cash register was not broken into, but eighty dollars in cash and two thousand dollars worth of checks were taken from her purse.
¶4. During the trial, Harvey vigorously argued that the trial court should not allow Ricketts's courtroom identification. He based his argument on the fact that during an interview which Ricketts gave after her beating, she stated that her attacker was clean shaven. Harvey had a mustache at the time of his arrest and during the trial. Defense counsel also objected to the courtroom identification on the grounds (1) that since Harvey was the only black man in the courtroom the in-court identification was suspect; (2) that the photographic lineup, conducted by Mike Gunter, with the Union Police Department, and Tommy Waddell, with the Philadelphia Police Department, during which Harvey was identified by Ricketts was unduly suggestive; and (3) since it had been more than ten months since she had seen her assailant, Ricketts's memory would have surely dimmed. The trial court held extensive conferences, outside the presence of the jury, to decide whether or not to allow Ricketts's courtroom identification to be heard by the jury. Ultimately, the trial court determined that Ricketts's in-court identification of Harvey was a credibility issue and a matter for the jury to resolve. When the trial court seated the jury, Ricketts testified that she had a good view of the man who beat her. She stated that the man was not wearing anything over his face and that the attack took place during daylight hours. Ricketts identified the defendant, Harvey, as her assailant.
¶5. Carla Alderson was parked in front of Zara's Trash and Treasures between 12:15 and 12:30 p.m. on January 22, 1997. The only other automobile in the lot was a navy blue Toyota Camry. The Camry had no hubcaps on the driver's side, and the gas tank was taped with duct tape in a backwards "L." Alderson saw Harvey exit Zara's Trash and Treasures, drive away in the Camry, and later identified him at the trial.
¶6. Harvey also vigorously objected to Alderson's in-court identification of Harvey on the grounds that (1) Harvey was the only black man in the courtroom; (2) the photographic lineup was extremely suggestive; and (3) that it had been more than ten months since Alderson had seen the man leave Zara's Trash and Treasures. The trial court allowed both the prosecutor and defense counsel to question Alderson outside the presence of the jury prior to ruling on the admissibility of her identification. Thereafter, the trial court allowed Alderson's in- court identification to be considered by the jury.
¶7. Alderson identified the blue Camry from photographs which the prosecution showed her. She then made an in-court identification of Harvey as the man she saw coming from Zara's Trash and ...