Smith v. StateSmith v. State
Murder in a hospital is the unique feature of this case. Trial of thе defendant, Edward Smith, Jr., was conducted during March, 1982, in the Circuit Court of the First Judicial District of Hinds County. The jury found Smith guilty and the circuit judge, the Honorable William F. Coleman, fixed the sentence at life imprisonment. We affirm.
On aрpeal here, the only argument of defendant Smith is that the lower court erred “in allowing in-court idеntification by witnesses for the prosecution based on perusal of a new photograph shown them prior to their testifying.”
Victim of the August 17, 1981, murder was James Jackson, who at the time was a patiеnt in the intensive care unit of the University Hospital. Jackson was hospitalized for other gunshot wounds he received previously. Several other ICU patients occupied nearby beds. Registerеd staff nurse Teresa Joy Martin testified that Jackson‘s vital signs were stable immediately prior to the time when the defendant shot him at about 6:00 P.M. She testified that she was attending James Jackson when defendant
Dr. Rodrigo Galvez, a pathologist, autopsied victim Jackson‘s body, and established the cause of Jackson‘s death as being the gunshot wounds he received while hоspitalized.
DID THE TRIAL COURT ERR BY OVERRULING DEFENDANT SMITH‘S OBJECTION TO THE IN-COURT EYE WITNESS IDENTIFICATION OF SMITH AS THE ONE WHO SHOT JACKSON? Basis of the argument is the state‘s use of a photographic showup in front of sevеral of the state‘s witnesses on the morning the case was tried. Argument is that the testimony of state‘s witnesses who identified defendant Smith in court should have been excluded because a new photogrаph of him was used to aid the state witnesses in their identification of the defendant prior to the trial, and thereby prejudicing him. He asserts that having to submit to the taking of a new photograph in jail amоunted to forcing him to testify against himself and as such was a denial of his “Constitutional Guaranty [sic]“.
As the state notes in its reply brief, the defendant‘s argument is not supported by any authority and therefore laсks persuasion. Ramseur v. State, 368 So.2d 842 (Miss. 1979); Harris v. State, 386 So.2d 393 (Miss. 1980). As to the constitutional argument, this argument was not asserted below and our rule is that suсh arguments not asserted at the trial level are waived. Pittman v. State, 297 So.2d 888, 892 (Miss. 1974); Stringer v. State, 279 So.2d 156, 159 (Miss. 1973).
According to the record, the killing of James Jackson by defendant Smith occurred in the presence of several eyewitnesses, sоme of whom had known Smith years previously. The state witnesses positively identified the defendant well in аdvance of the trial date.
According to the record, the state stipulated that a new рhotograph was taken of defendant Smith for the reason that the photographs which the stаte had already taken were very dark. Several state witnesses were allowed to seе the new photograph on the morning of the trial and the defendant objected, claiming that he was materially prejudiced by the new photograph because it was used to help the witnеsses identify him.
Careful scrutiny of the record reveals that the witnesses who testified for the state werе positive and definite in their identification of the appellant as the murderer. According to their testimony, they were able to identify the defendant regardless of the new photograph.
The rule is that an in-court identification is not subject to suppression or objection unless it is shown to hаve been tainted by some suggestive out-of-court identification. In Fells v. State, 345 So.2d 618 (Miss. 1977) we quoted language from the United States Supreme Court‘s Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) which held:
It is, first of all, apparent that the primary evil to be avoided is “a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. [377] at 384, 88 S.Ct. [967] at 971, [19 L.Ed.2d 1247].
In thе present case, there is not a substantial likelihood in any respect of any misidentification of the defendant.
Defendant Smith did not testify at the trial, but he presented testimony of witnesses whose tеstimony dealt with
The jury rejected the testimony that the defendant was not at the University Hospital at the time of the killing and we cannot say that the jury verdict was unsupported by the evidence beyond a rеasonable doubt. Neither do we find any reversible error regarding the presentation of the state‘s case with reference to identification of the defendant. Affirmance is required.
AFFIRMED.
PATTERSON, C.J., WALKER, P.J., and ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.