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Ward v. State

Court of Appeals of Mississippi

September 3, 2019

MALCOLM WARD A/K/A MALCOLM JAMAL WARD A/K/A MALCOLM J. WARD APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 03/19/2018

          FORREST COUNTY CIRCUIT COURT HON. ROBERT B. HELFRICH TRIAL JUDGE:

          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

         EN BANC.

          GREENLEE, J.

         ¶1. 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.

         FACTS AND PROCEDURAL HISTORY

         ¶2. 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.

         ¶3. 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.

         ¶4. 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.

         ¶5. 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.

         ¶6. 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.

         ¶7. 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.

         STANDARD OF REVIEW

         ¶8. 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).

         ¶9. 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 ...


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