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Smith v. State

Court of Appeals of Mississippi

July 24, 2018

STATE OF MISSISSIPPI APPELLEE Juror Number State's reason(s) for exercising peremptory strike Exhibit description Notation description Juror # State Defense

          DATE OF JUDGMENT: 08/14/2015






          CARLTON, JUDGE

         ¶1. On October 16, 2013, Tameka Smith was indicted by a Forrest County grand jury on one count of armed robbery of a Dollar General store on June 5, 2013. The case proceeded to trial on March 18, 2015, and the jury found Smith guilty of armed robbery. Smith was sentenced to serve twenty years in the custody of the Mississippi Department of Corrections (MDOC), with twelve years to serve, eight years suspended, and five years of post-release supervision.

         ¶2. On appeal, Smith asserts that (i) the trial court erred in overruling Smith's Batson objection; (ii) prosecutorial misconduct during closing arguments violated Smith's right to a fair trial; (iii) testimony from the State's witness, Detective Casey Sims, violated Smith's Sixth Amendment Confrontation Clause right to confront adverse witnesses; (iv) the trial court erred in refusing Smith's requested jury instruction on the defense's theory of misidentification; and (v) the trial court erred in allowing the State to introduce CD exhibits in envelopes containing written notations. Finding no error, we affirm.


         ¶3. This case concerns an armed robbery of a Dollar General store near Hattiesburg, Mississippi, on June 5, 2013, at around 8 p.m. Store manager Paige Arnold and cashier Kelly James were working at the Dollar General that night. Arnold was the State's first witness. She testified that she was on the toothpaste aisle when a woman in a gray hoodie with a white towel over her face approached her and said she had a toothache. Arnold testified that she was 5' 9½" tall, and she guessed that the woman was around 5' 6" tall. Arnold showed the woman where the oral pain medications were, then resumed straightening up the toothpaste aisle. Later, the cashier, Kelly James, accompanied the same woman to the toothpaste aisle, and showed her the same medicine Arnold had shown her. Kelly returned to her register at the front of the store.

         ¶4. About ten minutes later, a customer approached Arnold and said she was needed up front. Arnold testified that she walked to the front of the store, and the female customer from the toothpaste aisle told her she did not have the money to buy the medicine and needed Arnold to cancel the transaction, which Arnold did. The customer was standing off to the side when Arnold opened the cash register. Arnold testified that the female customer ran between her and James (the cashier) and started grabbing money out of the cash register. Arnold testified that she jumped on the woman's back and started taking the money back from her, and James also started grabbing the money back from the woman.

         ¶5. According to Arnold, the woman dragged Arnold and James outside, and Arnold pulled off the woman's jacket and towel and looked at the woman. The woman got in a car, and Arnold got a description of the vehicle and the vehicle's tag number. Arnold recalled she watched the woman for about a minute while she was in her car because there was another car entering the parking lot, so the woman had to wait to leave. Arnold testified that she and the woman made eye contact as the woman drove away. Arnold called 911 and gave a description of the woman and the car and gave the tag number of the vehicle.[1] Arnold then waited for the police to arrive.

         ¶6. The State showed Arnold several photographs, including a photo of the vehicle driven by the woman and the vehicle's license plate (JDM 592). Arnold identified the vehicle and the license plate as the ones involved in the armed robbery. A copy of the Dollar General surveillance video of the crime was presented, as was a recording of Arnold's 911 call; both were played for the jury.

         ¶7. Arnold testified that she was shown a photo lineup three days after the robbery and she was 80 percent sure when she identified Smith. She explained in her trial testimony that "I told Detective Sims, my gut instinct is 80 percent sure it was the defendant; 20 percent sure it was the other person." According to Arnold, the reason she did an eighty percent identification was that "[t]here was . . . another person in the lineup that had been in my store earlier that day that I went and did the police lineup. She's a regular customer, and . . . it threw me a little bit." At trial, Arnold identified Smith as the person who committed the armed robbery.

         ¶8. James, the store cashier, also testified for the State. She corroborated Arnold's testimony about the woman looking for toothache medicine. James then testified that when the woman reached her cash register to check out, James rang up the medicine and told the woman her total. At that point, James said the woman came around the cash register and got behind her and said, "I have a gun. I have my kids in the car. Just give me a little bit of the money." James then testified that the woman also grabbed a pair of scissors from the counter and put them against James's back. At one point in the surveillance video, a pair of scissors can be seen hanging out of the woman's pocket. James told the woman that because she had already rung up the sale, the cash register could not be opened without the manager using her key to void the sale. The woman repeatedly told James to just hit the "enter" or "total" buttons to open the cash register; James hit the buttons, and the woman hit buttons herself, but the cash register would not open.

         ¶9. In the meantime, other customers were waiting at the register to check out, and the woman walked from behind the counter and stood nearby. Arnold arrived and voided the sale, and James began ringing up the next customer. According to James, when the cash register opened, the woman stuck her hand in the cash register drawer and said, "I'm sorry. Thank you." James said that the woman grabbed "a whole bunch of money, and we just started wrestling with her - me and my manager - out the door." At that point James's boyfriend emerged and assisted.

         ¶10. James positively identified Smith as the robber in a photo lineup three days after the robbery. James also identified Smith as the robber in court. James gave police a description of the woman and said the woman was around 5' 2" tall, because she was taller than James, who is 4' 11" tall.

         ¶11. Officer Eric Prouix testified that he was working on patrol for the Hattiesburg Police Department on June 5, 2013. He was dispatched to the Dollar General and preserved the register/counter area for potential fingerprints, if any could be found. He also helped secure the scene. Officer Prouix testified that no fingerprints were found.

         ¶12. Officer Tammy Hoadley of the Hattiesburg Police Department testified that she was also working on patrol on the evening of June 5, 2013. She responded to a dispatch call around 8 p.m. regarding an armed robbery and reported to the Dollar General. When she got there, she helped secure the area and spoke with the victims, Arnold and James. Officer Hoadley testified that she did not collect any fingerprints and she did not transport anything to the crime lab for DNA analysis.[2]

         ¶13. Detective Casey Sims worked for the Hattiesburg Police Department and investigated the armed robbery at Dollar General that took place on June 5, 2013. Detective Sims testified that he ran the tag numbers that were reported, and he determined that the vehicle belonged to an elderly woman who lived out of town, a Ms. Bobbie Fairley. He testified that he asked Ms. Fairley to come to Hattiesburg on a pretense. He met with her, seized her vehicle, and processed the vehicle as a crime scene. Detective Sims further testified that during the course of his investigation he was able to determine the names of the people who were at Ms. Fairley's house on the evening of the robbery, which included Tameka Smith, who was Ms. Fairley's grandson's girlfriend. Detective Sims said he was informed that on June 5, 2013, Ms. Fairley's grandson took Smith's vehicle and left Smith and her two children with Ms. Fairley. Once Detective Sims ascertained that Smith had been at Ms. Fairley's home on the evening of the robbery, he brought Smith in for questioning.

         ¶14. Detective Sims testified that about three days after the robbery, he presented photo lineups to James and Arnold. Detective Sims corroborated Arnold's testimony that she circled Smith and another person; and Detective Sims likewise confirmed that James positively identified Smith in the photo lineup. Both Arnold and James identified Smith in court as the robber.

         ¶15. Detective Sims testified that he arrested Smith for armed robbery and that Smith's booking information reflects that she is 5' 7" tall and weighed 235 pounds. Detective Sims also obtained Smith's cell phone records, which were admitted as an exhibit at trial. The records showed that Smith made a call from around Prentiss, Mississippi, at 7 p.m. that lasted 582 seconds (9 minutes and 41 seconds). The records also reflected that Smith made a call from around Prentiss at 8:43 p.m., which lasted 252 seconds (4 minutes and 12 seconds). Detective Sims testified that the call reporting the robbery came out "around 2000 hours, which is 8 p.m." The time stamp on the store's surveillance video indicates that the robbery occurred at about 7 p.m., or 19:00 hours. Arnold, the store manager, testified that the time on the surveillance video was an hour behind because the district manager was the only one who could adjust the system, and the district manager was on sick leave when the time changed, so the time had not been set forward. Detective Sims testified that the Prentiss area is about forty minutes from the Dollar General store.

         ¶16. Steve Pazos, an investigator with the District Attorney's office, testified that he conducted a follow-up investigation into the case. Specifically, Investigator Pazos testified that he interviewed Smith's mother and alibi witness, Jennifer Smith. According to Investigator Pazos, Jennifer said she was on the phone with her daughter during the time that the robbery took place because they spoke from 7:00 p.m. to 7:09 p.m. Investigator Pazos testified that his phone conversation with Jennifer discredited Smith's alibi that she was on the phone with her mother when the robbery took place because the actual call for service came in through the police department's line at 7:54 p.m. A recording of Investigator Pazos's interview with Jennifer was played for the jury and admitted into evidence.

         ¶17. Jennifer Smith testified for the defense. She testified that the suspect in the surveillance video was not her daughter because Smith was pigeon-toed, but the suspect was not; Smith's legs are straight, but the suspect's legs "bowed back"; the suspect was much wider than Smith; and the suspect's skin was darker than Smith's skin. Jennifer testified that she was at her home in Pattison, Mississippi, on the night of the robbery, and she talked to Smith on the phone about a business-plan homework assignment from about 7:00 p.m. to 7:10 p.m. On cross-examination, Jennifer acknowledged that Smith was staying at Ms. Fairley's house in June 2013.

         ¶18. Smith testified in her own defense at trial. Smith testified that she was not the person in the surveillance video and that she never went to the Dollar General on the night in question. She said she got to Prentiss (Ms. Fairley's home) at about four o'clock that evening with her children, and immediately began to work on homework. She made a five-minute trip to a corner store right down the street just outside of Prentiss sometime between 7:30 p.m. and 8:30 p.m., and she left the house a second time with her boyfriend at about 10 p.m. They went to the Junior Food Mart in Prentiss. Smith denied ever going to Forrest County on the night in question. Smith testified that she is about 5' 7" tall and, under cross-examination, Smith testified that she weighed 205 pounds at trial, which was about thirty pounds less than she weighed in June 2013. At trial, Smith stood up and showed the jury that she was pigeon-toed. She denied that she was guilty of the robbery.

         ¶19. In response to questions by the prosecutor, Smith denied that she lived with her boyfriend's grandmother (Ms. Bobbie Fairley) in 2013, but she acknowledged that she visited for a couple of days and was staying the night at Bobbie Fairley's home on June 5, 2013. Smith acknowledged that Bobbie Fairley lived in Jefferson Davis County, and that Bobbie Fairley's car was the car police tracked down using the tag number at issue. Smith testified that Bobbie Fairley lay down in bed about 7 p.m. or 7:30 p.m. on the night in question, but Smith testified that Bobbie Fairley was not asleep at that time. Smith also testified that Bobbie Fairley's car was not accessible to her because Bobbie Fairley kept her keys in her purse in the bedroom and usually locked the bedroom door. Smith acknowledged that Arnold reported the vehicle being driven by a person matching her general description, but she maintained that she never drove the vehicle that night or left Prentiss to go to Hattiesburg.

         ¶20. The jury was instructed on the offense of armed robbery, the lesser-included offense of simple robbery, and the alibi defense. The trial court denied Smith's requested instruction on misidentification. After retiring for deliberations, the jury returned a verdict, finding Smith guilty of armed robbery. Smith was sentenced to serve twenty years in MDOC custody, with twelve years to serve, eight years suspended, and five years of post-release supervision. Smith was also ordered to pay a $2, 500 fine, $100 to the victim compensation fund, and all court costs. The sentencing order was entered August 13, 2015. Smith's trial counsel filed no post-trial motions. On September 3, 2015, Smith filed a notice of appeal, pro se. Smith was subsequently appointed appellate counsel through the Office of State Public Defender, Indigent Appeals Division, and an amended notice of appeal was filed on March 14, 2017.


         I. Batson Challenge

         ¶21. Smith asserts that the State's use of three of five peremptory challenges against African American jurors constitutes a violation of Batson v. Kentucky[3] because these jurors were not struck for race-neutral reasons. As addressed in more detail below, the trial court found that Smith did not meet her burden to go forward with a Batson challenge, and even if she had, the trial court found that the three African American jurors were struck for race-neutral reasons. Finding no error, we affirm the trial court's ruling on this issue.

         ¶22. The Mississippi Supreme Court has directed this Court to "'give great deference to a trial court's determinations under Batson because they are based largely on credibility.'" Williams v. State, 126 So.3d 85, 94 (¶37) (Miss. Ct. App. 2013) (quoting Flowers v. State, 947 So.2d 910, 917 (¶8) (Miss. 2007)). A Batson ruling may not be overturned unless the record indicates that the ruling "was clearly erroneous or against the overwhelming weight of the evidence." Id. (internal quotation mark omitted) (quoting Thorson v. State, 721 So.2d 590, 593 (¶4) (Miss. 1998)).

         ¶23. As the Mississippi Supreme Court has explained, a Batson challenge should proceed as follows:

First, the defendant must establish a prima facie case of discrimination in the selection of jury members. The prosecution then has the burden of stating a racially neutral reason for the challenged strike. If the State gives a racially neutral explanation, the defendant can rebut the explanation. Finally, the trial court must make a factual finding to determine if the prosecution engaged in purposeful discrimination. If the defendant fails to rebut, the trial judge must base his decision on the reasons given by the State.

Berry v. State, 802 So.2d 1033, 1037 (¶11) (Miss. 2001).

         ¶24. In this case, after the trial court allowed two jurors to be struck for cause (Jurors 11 and 19), the State submitted its first twelve jurors, going up through, and including, Juror 20. Juror 17 was absent. Out of the remaining seventeen panel members, the record reflects that the State exercised the first five of its six peremptory challenges, striking three African Americans and two Caucasians. At this point the defense raised its Batson challenge. Smith's initial Batson challenge was based on her trial counsel's mistaken belief that the State had used four (not three) of its peremptory challenges to strike African Americans, namely Jurors 9, 10, 12, and 13. The trial court corrected Smith's counsel, noting on the record that Juror 12 was a Caucasian female.

         ¶25. In response to Smith's Batson challenge, the trial court judge stated that he did not know whether Smith had met her burden of showing a prima facie case of discrimination in the selection process, given that three of the State's peremptory strikes were against African Americans, and two were against Caucasians. The trial court, however, allowed the State to go forward and provide its race-neutral reasons for its strikes.

         ¶26. The State provided the following explanations:

Juror Number
State's reason(s) for exercising peremptory strike

Juror 9

“[W]e observed that she seemed to be disinterested, was not making eye contact.”

Juror 10

“[I]t was our observation that she frowned a lot during our voir dire and gave us the impression that she just didn't want to be here.”

Juror 13

“[S]he also seemed to be disinterested and not really engaged in the voir dire process.”

         The State also provided the reason it struck Juror 12 (a Caucasian female): "As to [Juror] number 12, she seemed not only disinterested, but also aggravated, at times with the entire voir dire process." Lastly, the State pointed out that of the twelve jurors ...

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