MALCOLM WARD A/K/A MALCOLM JAMAL WARD A/K/A MALCOLM J. WARD APPELLANT
STATE OF MISSISSIPPI APPELLEE
OF JUDGMENT: 03/19/2018
FORREST COUNTY CIRCUIT COURT HON. ROBERT B. HELFRICH TRIAL
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY:
GEORGE T. HOLMES
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
LAURA HOGAN TEDDER
DISTRICT ATTORNEY: PATRICIA A. THOMAS BURCHELL
Malcolm Ward challenges his convictions for armed robbery and
possession of a firearm by a felon. The Forrest County
Circuit Court sentenced him to twenty years' imprisonment
with five years suspended for armed robbery and ten
years' imprisonment for possession of a firearm by a
felon, all in the custody of the Mississippi Department of
Corrections (MDOC). His sentences are to run concurrently. He
argues that: (1) the trial court erred in striking two
prospective jurors for cause; and (2) the out-of-court and
in-court identifications were inadmissible. We affirm the
circuit court's judgment.
AND PROCEDURAL HISTORY
Kerin pulled into the carport of her Hattiesburg home late
one summer evening. She sat inside her car for several
minutes because she was exhausted from the workday. After
this brief moment of peace, she stepped out of the car to
walk inside and greet her family. But as she exited, she
heard the bushes in her neighbor's yard rustling and
footsteps quickly approaching her.
A short man wearing a white bucket hat, a dark shirt, and
light-colored shorts stepped into the light of the carport.
He showed Kerin the gun that he held in his hand and
commanded her, "Don't resist; give me your purse;
don't resist; give me your purse." Kerin collapsed
in front of the car, let her purse slide from her arm, and
screamed, "Take it, take it[!]" The man took the
purse and ran. Hearing her screams, Kerin's husband
emerged from the home to help her, and they immediately
called the police.
Officer Thomas Robinson answered the dispatch and drove to
Kerin's house. She described the man who robbed her to
Officer Robinson, and he called in the description. Within
several minutes, Officer Denton Sorrell had located a man
matching Kerin's description walking on a nearby road. He
approached the man-Malcolm Ward-and placed him in handcuffs.
Officer Sorrell asked Ward if he carried any weapons, Ward
said he did, and Officer Sorrell found a loaded silver
handgun inside of Ward's backpack. Officer Sorrell did
not, however, locate Kerin's stolen purse on Ward. In
fact, the police later searched the surrounding area and
never found it.
Officer Sorrell took a picture of Ward with his cell phone
and sent it to Officer Robinson, who showed it to Kerin and
her husband. Kerin identified the picture of Ward as the man
who had robbed her, and her husband said that he had seen
Ward walking down the street earlier that evening.
A Forrest County grand jury indicted Ward for one count of
armed robbery and one count of possession of a firearm by a
felon. The parties stipulated that Ward had a prior felony
conviction. Ward moved to suppress any identifications
because the "activity on the part of the [p]olice is
suggestive and should not be allowed." The circuit court
denied the motion.
Ward was convicted on both counts. The circuit court
sentenced him to twenty years' imprisonment with five
years suspended for armed robbery and ten years'
imprisonment for unlawful possession, all in MDOC custody
with the sentences to run concurrently. Ward moved for a
judgment notwithstanding the verdict (JNOV) or, in the
alternative, a new trial, which the circuit court denied. He
appeals, arguing that (1) the circuit court erred when it
struck two prospective jurors for cause; and (2) the
out-of-court and in-court identifications were inadmissible.
A juror who may be removed on a challenge for cause "is
one against whom a cause for challenge exists such that the
juror's impartiality at trial is likely affected."
Langston v. State, 791 So.2d 273, 281 (¶17)
(Miss. Ct. App. 2001). Whether a potential juror can be fair
and impartial is a judicial question reserved for the trial
judge and will not be disturbed unless clearly wrong.
Dendy v. State, 931 So.2d 608, 611 (¶7) (Miss.
Ct. App. 2005).
Additionally, "[t]he standard of review for suppression
hearing findings in pretrial identification cases is whether
or not substantial credible evidence supports the trial
court's findings that, considering the totality of the
circumstances, in-court identification testimony was not
impermissibly tainted." Stewart v. State, 131
So.3d 569, 572 (¶7) (Miss. 2014) (quoting Butler v.
State, 102 So.3d 260, 264 (¶8) (Miss. 2012)). This
Court "will not disturb a [trial] court's decision
on the suppression of evidence unless there is an absence of
substantial credible evidence supporting it."
Id. "For an identification (made out ...