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Stewart v. State

Supreme Court of Mississippi

February 6, 2014

Justin STEWART
v.
STATE of Mississippi.

Page 570

[Copyrighted Material Omitted]

Page 571

Office of State Public Defender by W. Daniel Hinchcliff, attorney for appellant.

Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.

Before RANDOLPH, P.J., PIERCE and KING, JJ.

RANDOLPH, Presiding Justice.

¶ 1. Justin Stewart appeals his convictions of armed robbery and felon in possession of a firearm. Stewart argues that the trial court improperly enhanced his sentence, in violation of his rights against double jeopardy, and erred in denying his motion to suppress out-of-court and in-court identifications. Finding no error, we affirm.

FACTUAL BACKGROUND

¶ 2. On July 23, 2010, Stewart and an accomplice [1] went to a Fred's store on North State Street in Jackson, Mississippi. Stewart purchased a pair of Hanes undergarments with cash. When the clerk, LaQuinta Nelson, opened the cash register to give Stewart his change, Stewart attempted to grab the money in the register. Nelson quickly closed the cash drawer. Stewart then pointed a gun at Nelson and demanded she reopen the cash drawer. Nelson complied. While Stewart was grabbing money out of the drawer, Nelson attracted the attention of Darryl Crumpton, the store manager. Crumpton approached and was ordered to get on the ground. Stewart demanded that Crumpton give him all of the money from the store's office. Instead, Crumpton took Stewart to another cash register. Stewart removed its contents. Crumpton informed Stewart that there was no more money in the store. Stewart fled the store with cash and credit-card receipts from the two registers. The police were informed that the robber was a black male wearing a pink and brown multi-colored hat. The police also were informed that the robber had sped away in a gold or tan car, which had struck a curb exiting the parking lot, causing the right front tire to rupture.

¶ 3. Moments later, an officer observed two black males changing the right front tire of a tan car in a driveway a few blocks from Fred's. As the officer approached the suspects, they fled. Several officers canvassed the area, searching for the suspects. After finding his accomplice, the police found Stewart hiding between a shed and a house. After arresting Stewart, officers retrieved a pink multicolored hat, $1,494 in cash, a revolver, and two Fred's receipts near Stewart's hiding spot. A Fred's shopping bag with a package of Hanes undergarments was found in the car.

¶ 4. On July 29, 2010, Nelson and Crumpton each were asked to review a photo lineup. Both identified Stewart without hesitation. No mention of facial tattoos appeared in the police reports. Nelson testified at trial that she mentioned facial tattoos to the police shortly after the crime. Crumpton testified that he did not.

¶ 5. On October 10, 2012, Justin Stewart was convicted of the crimes of armed robbery and felon in possession of a firearm. On October 22, 2012, he was sentenced to a

Page 572

total of thirty years, twenty years for armed robbery, with an additional five-year gun-enhancement sentence, and ten years for felon in possession of a firearm, with five years suspended. After Stewart's motion for judgment notwithstanding the verdict (JNOV) was denied, he timely appealed.

ISSUES

¶ 6. The following two issues are raised for review:

I. Whether the trial court erred in failing to suppress the photographic lineups where appellant's photograph was the only one with the facial tattoos.
II. Whether the trial court's sentence of Stewart to five years under the firearm-enhancement statute constituted double jeopardy, where he was already being sentenced under the ...

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