Bogan v. StateBogan v. State
¶ 1. Jerry Bogan was convicted of robbery with a deadly weapon and depraved heart murder in the Desoto County Circuit Court. He was sentenced to serve a term of thirty years on the robbery charge and a consecutive term of life on the murder charge in the custody of the Mississippi Department of Corrections. Aggrieved by his convictions and sentences, Bogan has appealed and assigned three points of error: 1) whether the pre-trial identification procedures were so highly prejudicial that the in-court identification was tainted, 2) whether the circuit court erred in admitting hearsay statements under M.R.E. 403 and 803, and 3) whether the circuit court erred in allowing expert testimony that was confusing to the trier of fact.
¶ 2. Finding no error, this Court affirms.
FACTS
¶ 3. On the morning of June 16, 1997 at approximately 4:00 a.m., Michael Johnson informed his girlfriend, Renota Lewis, of his intent to pick “Jerry” up on his way to work. He promised to leave work and return the car by 9:00 a.m. for Lewis‘s
¶ 4. Kimberly Ward and Danielle Bain, the only eyewitnesses to the crimes, were working the early morning shift at Mrs. Winner‘s restaurant on June 16, 1997. Ward and Bain arrived together at about 4:45 a.m. for the 5:00 a.m. shift. Ward, as team leader, prepared the store for its patrons while Bain assisted her. Bain testified that Johnson, who worked as the breakfast cook until 10:30 a.m., reported to work soon after she and Ward arrived. The store had not opened for business when Johnson arrived, so Bain unlocked the door and let him in. Immediately behind Johnson, a man with a gun entered the store. While pointing the gun at Bain, the gunman asked if she was the manager. She said no and called Ward several times. Ward, who was working in the back of the store, walked to the front where Bain was. The gunman, later identified as Anthony Bogan, demanded money, and Ward complied. Bogan then directed Johnson to tie both women with tape and lay them on the floor. Bogan repeatedly asked if Johnson recognized him as a former high school classmate. Johnson never responded. Ward and Bain testified that Bogan fired at Johnson at least twice, took his car keys, and fled the scene.
¶ 5. Immediately after Bogan fled, Ward called the police. The police arrived within minutes and proceeded with an investigation of the crime scene. Sergeant Frank Smith investigated the crime scene and found three shell casings from a .38 caliber weapon lying on a counter, a strip of tape, a red cap and shirt on the floor. On the tape used to restrain Johnson and the women, police found carpet fibers consistent with carpet fibers from Bogan‘s van. No other physical evidence was recovered from the crime scene. During the trial, Charles Peters, an expert in the field of comparative bullet lead analysis, testified that the bullet retrieved from the victim and one of the bullets found inside the victim‘s car were produced from the same batch of lead and were manufactured within days of each other.
¶ 6. Sergeant Billy Lantrip interviewed the witnesses on the day of the incident. When interviewed, Bain described the gunman as a tall black male with a heavy build. Ward‘s description was consistent with Bain‘s description. However, Ward described the gunman as skinny with short hair. At trial, both women indicated that the gunman wore dirty clothes, dark shades, a baseball cap, and a red bandanna around his neck. On cross, Ward denied having described the gunman as skinny, but admitted to saying that he had short hair. In an attempt to prove that Bogan was not the perpetrator, defense counsel called Rebecca Maguire, Bogan‘s mother. Mrs. Maguire testified on direct that Bogan had suffered from alopecia totalis since the age of nine, which prevented him from growing facial hair.
¶ 7. Because the gunman identified himself as a former classmate of the victim, both women had viewed pictures from Johnson‘s Whitehaven High School annual. They identified Kevin Fleming as someone who looked similar to the gunman. However, Kevin Fleming was not positively identified as the gunman. Police investigated Fleming and excluded him as a possible suspect.
¶ 8. On June 17, 1997, Ward and Bain provided a description of the gunman for a composite computer sketch. This computer sketch was distributed by police to the media. Subsequent to the distribution of the computer sketch, Ward and Bain positively identified Bogan as the gunman in a June 18th photo line-up. Both women also identified Bogan in a physical line-up conducted on June 30, 1997. The defense argued that the identification procedures
¶ 9. Bogan was charged with robbery with a deadly weapon and with the depraved heart murder of Michael Johnson. Bogan offered the alibi that he was at home in bed asleep with his wife when the shooting took place. Rebecca Bogan, Bogan‘s wife, and Michael Irving, his brother-in-law, corroborated this alibi. Despite his alibi, the jury convicted Bogan of the charges. He was sentenced to serve thirty years on the robbery charge, and a consecutive term of life on the murder charge. Bogan‘s motion for judgment notwithstanding the verdict or, in the alternative, a new trial having been denied, he now appeals his convictions and sentences.
ANALYSIS AND DISCUSSION OF THE LAW
I
Whether the pre-trial identification procedures were so highly suggestive that the in-court identification was tainted.
¶ 10. In his first assignment of error, Bogan contends that the pretrial identification procedures were suggestive, which caused a substantial likelihood of irreparable misidentification at the in-court identification. Simmons v. United States, 390 U.S. 377, 383, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Ward and Bain identified Bogan in open court as the gunman who robbed Mrs. Winners and killed Johnson. Bogan contends on appeal that the in-court identification was tainted by impropriety present in Ward and Bain‘s prior identification of Bogan from the photo and physical line-ups. According to Bogan, the photo and physical line-ups were highly suggestive since he was the only individual who appeared in both line-ups. Bogan also charges that these procedures focused on him while deflecting attention from other similar looking suspects such as Kevin Fleming.
¶ 11. Bogan asserts that the in-court identification failed the totality of circumstances test set out in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). Under this test, the Court evaluates an in-court identification based on the following factors: “(1)[t]he opportunity of the witness to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation.” Id. at 199-200, 93 S.Ct. 375. Bogan argues that the witnesses did not have sufficient opportunity to identify him at the crime scene since they were ordered to lie on the floor. Additionally, Bogan emphasizes the inconsistencies present in Ward and Bain‘s description and pretrial identification. Bogan also states that the length of time between the crime and the pretrial identification was too remote.
¶ 12. Because he did not object to the in-court identification, Bogan‘s argument fails. The Mississippi Supreme court has held that a failure to object is fatal for purposes of preserving error. Fleming v. State, 604 So.2d 280, 302 (Miss. 1992). See Smith v. State, 530 So.2d 155, 161-62 (Miss.1988); Williams v. State, 512 So.2d 666, 672 (Miss.1987); Johnson v. State, 477 So.2d 196, 214 (Miss.1985); Singleton v. State, 518 So.2d 653, 655 (Miss. 1988); Crawford v. State, 515 So.2d 936, 938 (Miss.1987); Tubbs v. State, 402 So.2d 830, 835 (Miss.1981). Accordingly, Bogan has waived his objection to Ward and Bain‘s in-court identification. Having failed to object to the in-court identification, Bogan is barred from raising this issue for the first time on appeal.
¶ 13. This assignment of error is without merit.
Whether the circuit court erred in admitting the hearsay statements under M.R.E. 803 and 403.
¶ 14. In his second assignment of error, Bogan contends that Johnson‘s statement to his girlfriend was erroneously admitted by the trial court pursuant to
¶ 15. Bogan argues that the circuit court erred by relying upon Martin v. State, 609 So.2d 435 (Miss.1992), when it admitted Johnson‘s statement to Lewis. See Parker v. State, 606 So.2d 1132, 1139 (Miss.1992). Bogan argues that the statements in Martin were made by conspirators as they planned and executed a murder scheme. The State correctly points out that the conspirator‘s statement involved a plan to stalk and kill the intended victim. The court found the statements “[a]dmissible as exceptions to the rule prohibiting hearsay pursuant to
¶ 16. Additionally, Bogan asserts that the circuit court erred in admitting the statement under
III
Whether the circuit court erred in allowing expert testimony that was confusing to the trier of fact?
¶ 17. In his last assignment of error, Bogan contends that the expert testimony offered by the prosecution did not aid the trier of fact in understanding the evidence. Bogan argues that the testimony confused the jury and generated speculation. Charles Peters, qualified as an expert in the field of comparative bullet lead analysis without objection from the defense, testified that the bullet retrieved from the victim and one of the bullets found inside the victim‘s car were produced from the same batch of lead and manufactured within days of each other.
¶ 18. The supreme court has held that expert evidence will only be admitted when the trial judge can affirmatively answer the following questions: “1) Is the field of expertise one in which it has been scientifically established that due investigation and study in conformity with techniques and practices generally accepted within the field will produce a valid opinion?; 2) Will the proposed testimony assist the trier of fact?” Hosford v. State, 560 So.2d 163, 168 (Miss.1990). Since the qualifying questions were answered affirmatively, the trial judge correctly allowed the expert testimony. During the trial, the defense never objected to Peters’ credentials as an expert or to the substance of his testimony.
¶ 19. Bogan did not object to the expert testimony during trial nor was it included as grounds in his motion for a new trial or judgement notwithstanding the verdict. If Bogan considered this testimony confusing or imprecise, he was obligated to object. Typically, if a defendant fails to timely object to an issue at trial, the issue is waived for purposes of appeal. Cavett v. State, 717 So.2d 722 (¶ 21) (Miss. 1998); Hall v. State, 691 So.2d 415, 418 (Miss.1997); McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). The trial court will not be held in error on a matter that was never presented for its consideration. Chase v. State, 645 So.2d 829, 846 (Miss. 1994); Parker v. Mississippi Game and Fish Com‘n, 555 So.2d 725, 730 (Miss. 1989). Having failed to object to the expert testimony, Bogan is procedurally barred from raising this issue on appeal.
¶ 20. THE JUDGMENT OF THE DESOTO COUNTY CIRCUIT COURT OF CONVICTIONS OF ROBBERY WITH A DEADLY WEAPON AND DEPRAVED HEART MURDER AND SENTENCES OF THIRTY YEARS AND LIFE IMPRISONMENT, TO BE SERVED CONSECUTIVELY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS ARE AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.
McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, DIAZ, IRVING, LEE, MOORE, PAYNE, AND THOMAS, JJ