Before McMILLIN, P.j., Herring, And King, JJ.
The opinion of the court was delivered by: Herring, J., For The Court:
DATE OF JUDGMENT: DECEMBER 16, 1997
TRIAL JUDGE: HONORABLE ROBERT WALTER BAILEY
COURT FROM WHICH APPEALED: LAUDERDALE COUNTY CIRCUIT COURT
DISTRICT ATTORNEY: BILBO MITCHELL
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: ATTEMPTED ARMED CAR JACKING: (HABITUAL OFFENDER) SENTENCED TO SERVE 30 YRS IN THE CUSTODY OF THE MDOC WITHOUT SUSPENSION, REDUCTION, PROBATION, PAROLE OR EARLY RELEASE & ORDERED TO PAY COST OF COURT OF $245.50
¶1. Farikas Thompson was convicted by a jury in the Circuit Court of Lauderdale County, Mississippi, of attempted armed carjacking and was sentenced as an habitual offender to serve a term of thirty years in the custody of the Mississippi Department of Corrections. Thompson challenges his conviction on the basis that the trial court erred in: (1) denying a motion to suppress a pre-trial identification; (2) failing to properly instruct the jury on the crime of attempted armed carjacking; and (3) refusing to grant his motions for a judgment notwithstanding the verdict and new trial. We find that the jury received a deficient instruction on the offense of attempted armed carjacking, and therefore, we reverse and remand for a new trial.
¶2. On July 22, 1996, Sherry Steele departed from her place of employment and drove to the local FoodMax grocery store in Meridian, Mississippi, to purchase a meal from the store's delicatessen. Steele bought a plate lunch, along with several other small items, from the store and returned to her automobile. After Steele entered the vehicle, she placed the grocery items on the floorboard and started the automobile. As she proceeded to close the driver's side door, she was confronted with an individual standing in the doorway of her vehicle. According to Steele, the individual "crouched down low" and prevented her from closing the door. He then pressed a small caliber weapon into her rib cage and ordered her to "shut up and get out." Although Steele attempted to move away, the individual pressed the weapon further into her side. Obviously terrified, she started to scream, and the individual looked over both of his shoulders, apparently to determine whether anyone had noticed what he was doing. At that point, Steele reached for the door and "slammed it."
¶3. Steele then in her vehicle fled from her parking space, circled the parking lot, and called for assistance on her cellular telephone. She vividly described the attacker to the 911 operator as a young, clean shaven black male, dressed in long, baggy denim shorts with a large patch on the rear seat pocket, and also dressed in a white t-shirt and denim vest. Steele also noticed a tattoo on her assailant's arm and some other markings on his hand. Furthermore, she also informed the telephone operator that her assailant was slowly walking toward the entrance of the grocery store.
¶4. Shortly thereafter, law enforcement authorities from the Meridian Police Department arrived on the scene and questioned Steele. Detective Ryan Castle obtained a description of the suspect from her, and several officers searched the inside of the grocery store. The search of the store failed to uncover the suspect, and therefore, the officers expanded the area of their search. Within thirty minutes after receiving the initial telephone call from Steele, the officers located an individual who matched the description of the suspect in a nearby Hardee's restaurant. They also discovered a small caliber weapon in the restaurant booth where the assailant was sitting at the time the officers located him.
¶5. The officers transported the suspect to a gas station and parked behind Steele's automobile. The officers directed the suspect to stand behind her vehicle so that Steele could observe the suspect through her rearview mirror. When asked if the suspect was the individual who accosted her a short while earlier, Steele responded, "That's him." The officers then transported the suspect to the police station, and the suspect informed them that his name was Larry Tyrone Wislon. However, after a computer check failed to reveal an individual by that name, Detective Castle obtained the suspect's fingerprints and faxed them to the Federal Bureau of Investigation. He was subsequently identified as Farikas Traeche Thompson. Several fingerprints discovered on Steele's automobile matched Thompson's fingerprints.
¶6. Following a trial in the Circuit Court of Lauderdale County, Mississippi, Thompson was convicted of attempted armed carjacking. The trial court Judge sentenced Thompson as an habitual offender to a term of thirty years ...