Kendrick Darnell Conner v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-KA-00293-COA
KENDRICK DARNELL CONNER A/K/A RUDY
TALLEY
APPELLANT
v.
APPELLEE
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
5/24/2007
HON. JAMES T. KITCHENS, JR.
LOWNDES COUNTY CIRCUIT COURT
LESLIE S. LEE
ERIN ELIZABETH PRIDGEN
OFFICE OF THE ATTORNEY GENERAL
BY: STEPHANIE BRELAND WOOD
FORREST ALLGOOD
CRIMINAL - FELONY
CONVICTED OF COUNT I, ARMED
ROBBERY, AND COUNT II, ARMED
ROBBERY, AND SENTENCED TO
THIRTY-FIVE YEARS AS A HABITUAL
OFFENDER FOR BOTH COUNTS I AND II,
WITH THE SENTENCES TO RUN
CONCURRENTLY IN THE CUSTODY OF
THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS
AFFIRMED - 6/16/2009
BEFORE KING, C.J., BARNES AND ISHEE, JJ.
BARNES, J., FOR THE COURT:
¶1.
On May 23, 2007, a jury sitting before the Lowndes County Circuit Court convicted
Kendrick Darnell Conner of two counts of armed robbery. The circuit court sentenced
Conner as a habitual offender to two concurrent sentences of thirty-five years each in the
custody of the Mississippi Department of Corrections (MDOC). Following unsuccessful
post-trial motions for a judgment notwithstanding the verdict (JNOV) and for a new trial,
Conner now appeals. Finding no error, we affirm.
SUMMARY OF FACTS AND PROCEDURAL HISTORY
¶2.
On May 21, 2006, Stacie Schaffer (Stacie) and her daughter, Melissa Herrion-Schaffer
(Melissa), were working at the Family Market in Columbus, Mississippi when a robber
entered the store wearing a “do-rag” that covered only the left half of his face. As he entered
the store, a customer who was leaving the store acknowledged him and referred to him as
“Booty.” Stacie testified that the robber wore a ripped, orange and white plaid shirt, while
Melissa testified that he wore an orange and white striped shirt. He approached Stacie first,
pulled out a gun, and demanded that she give him the money from her register. While Stacie
was emptying her register, the store’s air conditioner turned on, creating a gust of air which
lifted the “do-rag,” causing the robber’s face to be exposed. He next turned his gun on
Melissa, also forcing her to give him the money from her register. He put the money in one
of the store’s paper sacks, warned the women not to call the police, and then exited the store.
After the robber left, Stacie locked the front door and told Melissa to get her things. Stacie
then took Melissa home and walked to the corner store next to their house to call the police.
¶3.
After calling the police, Stacie returned to the store to meet the officers. There, Stacie
gave a description of the robber and a statement of what had transpired to Officer Bill Smith
of the Columbus Police Department. However, Melissa did not give a statement to the police
until the following day.
On May 24, 2006, Stacie and Melissa were given separate
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photographic lineups and asked to point out the robber if they saw his photograph among the
group. When presented with the photographic lineup, which consisted of the booking photos
of the six different men, Stacie pointed out Conner as the robber. When Melissa was asked
to identify the robber using the same set of pictures, she used a small piece of paper to cover
the left side of Conner’s face in the photograph. Melissa also identified Conner as the
robber. Conner is known to answer to his alias, Rudy Talley. Stacie testified that it was
possible that the name she heard the customer call Conner was “Rudy” and not “Booty.”
¶4.
Conner was indicted for armed robbery on August 23, 2006. He pleaded not guilty,
and a three-day trial began on May 21, 2007. At trial, Conner took the stand in his own
defense. He unequivocally stated that he did not rob Stacie and Melissa at the Family
Market. He claimed that, while he had been at the Family Market on the day of the robbery,
he was not at the store at the time the robbery occurred. He testified that on that day he was
wearing pajama pants, a t-shirt, and a tie around his neck. The jury found Conner guilty of
both counts of armed robbery. The circuit court sentenced Conner to two concurrent thirtyfive-year sentences, as a habitual offender, in the custody of the MDOC. Conner filed
unsuccessful motions for a JNOV and, alternatively, for a new trial.
I.
¶5.
INEFFECTIVE ASSISTANCE OF COUNSEL
Conner claims that his trial counsel should not have introduced the photographic
lineup into evidence; therefore, he contends that his counsel’s representation was ineffective.
In order to succeed on a claim of ineffective assistance of counsel, Conner must prove, using
the two-part test articulated in Strickland v. Washington, 466 U.S. 668, 687 (1984), that
counsel’s overall performance was deficient and that this deficiency prejudiced his defense.
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McCarty v. State, 752 So. 2d 414, 415 (¶4) (Miss. Ct. App. 1999). “To show prejudice, the
claimant must demonstrate that, but for his attorney’s errors, there is a reasonable probability
that a different result would have occurred.” Id. There is, however, a presumption that a trial
attorney’s performance is competent. Edwards v. State, 615 So. 2d 590, 596 (Miss. 1993).
¶6.
Conner’s only contention that his trial counsel was ineffective is that she introduced
the photographic lineup into evidence. In Mississippi, however, there is a presumption that
decisions made by trial counsel are strategic. Edwards, 615 So. 2d at 596. Therefore,
conscious decisions by counsel to try a case in a certain manner “‘fall within the ambit of
trial strategy’ and do not give rise to an ineffective assistance of counsel claim.” Pruitt v.
State, 807 So. 2d 1236, 1240 (¶8) (Miss. 2002) (citing Cole v. State, 666 So. 2d 767, 777
(Miss. 1995)). Upon review, we find that Conner’s defense counsel definitely submitted the
photographic lineup into evidence for strategic purposes. Stacie testified that the robber had
a “full scraggy beard.” The booking photograph, which was apparently taken the day after
the robbery, showed Conner with a goatee. Defense counsel stated in closing arguments:
“[T]hat’s why I put this in. . . . I submit to you that this booking photo submitted does not
match the description that they gave.” The photograph used in the photographic lineup was,
thus, submitted in an attempt to establish that Conner could not have been the man who had
robbed the store. While Conner’s appellate counsel disagrees with the trial counsel’s
strategy, that does not mean that trial counsel’s performance was ineffective.
¶7.
Conner further contends that he was unduly prejudiced by the photographic lineup
because it was impermissibly suggestive. Conner asserts that, of the six men pictured in the
photo array, his picture was distinguishable because he was the only man with a bald head.
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In Dennis v. State, 904 So. 2d 1134, 1135 (¶8) (Miss. Ct. App. 2004), this Court
acknowledged that “[a] photographic lineup is impermissibly suggestive when the accused
is ‘conspicuously singled out in some manner from others . . . .’” (citing York v. State, 413
So. 2d 1372, 1383 (Miss. 1982)).
¶8.
Upon review of the photographs used in this case, we do not find that the minor
differences in hair length among the photographs are so distinctive as to improperly
distinguish Conner or single him out from the group. All of the men pictured have almost
shaven hair. All pictures in the lineup have the same format. The men in the photographs
seem to be of similar complexion. Consequently, we do not find that the photographic lineup
in this case was impermissibly suggestive. Moreover, the testimony and evidence before the
jury, as laid out above, shows that the two victims identified Conner outside of court from
a photographic lineup, and they also made in-court identifications of Conner as the man who
had robbed them at gunpoint. Given the amount of evidence against Conner and the
photographic identification by the two victims, we find no reasonable possibility that a
different result would have occurred. Accordingly, Conner has not met either of the required
prongs of the Strickland test outlined above. The alleged deficient performance by Conner’s
attorney does not rise to the level required for a finding of ineffective assistance of counsel.
This assertion of error is without merit.
II.
¶9.
Whether the evidence was legally sufficient to support the verdict.
Conner also asserts that the evidence presented at trial was legally insufficient to
support the jury’s guilty verdict. When reviewing a challenge to the sufficiency of the
evidence, this Court will reverse and render only if the facts and inferences “point in favor
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of the defendant on any element of the offense with sufficient force that reasonable men
could not have found beyond a reasonable doubt that the defendant was guilty[.]” Brown v.
State, 965 So. 2d 1023, 1030 (¶25) (Miss. 2007) (quoting Bush v. State, 895 So. 2d 836, 843
(¶16) (Miss. 2005)). The evidence will be deemed sufficient if “having in mind the beyond
a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of
impartial judgment might reach different conclusions on every element of the offense[.]” Id.
Thus, “the relevant question is whether ‘any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’” Id. at (¶26) (quoting Bush, 895
So. 2d at 843 (¶16)).
¶10.
This Court considers the evidence in the light most favorable to the State. Bush, 895
So. 2d at 843 (¶16). The State also receives the benefit of all favorable inferences that may
reasonably be drawn from the evidence. Wilson v. State, 936 So. 2d 357, 363 (¶16) (Miss.
2006) (citing Hawthorne v. State, 835 So. 2d 14, 22 (¶32) (Miss. 2003)).
¶11.
Conner was indicted and convicted under Mississippi Code Annotated section 97-3-79
(Rev. 2006), which directs that an individual is guilty of armed robbery if he “take[s] or
attempt[s] to take from the person or from the presence the personal property of another and
against his will by violence to his person or by putting such person in fear of immediate
injury to his person by the exhibition of a deadly weapon[.]” Conner claims that, under these
guidelines, the State failed to prove beyond a reasonable doubt that he was guilty of two
counts of armed robbery.
¶12.
To substantiate his claim, Conner asserts that the two victims’ eyewitness testimonies
were insufficient to support the jury’s guilty verdict. Specifically, he argues that the time in
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between the robbery and the photographic lineup identifications was long enough for Stacie
and Melissa to misidentify him as the robber. As discussed above, he also argues that the
photographic lineup itself was unduly prejudicial because his photograph was distinguishable
from the other photographs because of his bald head.
¶13.
We find, however, that the evidence in this case, when viewed in the light most
favorable to the State, was legally sufficient. We have repeatedly stated, “[C]onvictions
based on eyewitness identifications at trial following a pretrial identification by photographs
will be set aside ‘only if the photographic procedure is so impermissibly suggestive as to give
rise to a very substantial likelihood of irreparable misidentification.’” Purnell v. State, 878
So. 2d 124, 127 (¶7) (Miss. Ct. App. 2004) (citation omitted). In accordance with the
analysis above, the photographic procedure used to identify Conner was not impermissibly
suggestive. Further, both Stacie and Melissa were placed in fear of immediate injury as the
gun was pointed at each woman to induce her to hand over the money from her cash register.
In Towner v. State, 812 So. 2d 1109, 1114 (¶23) (Miss. Ct. App. 2002), this Court found that
the robbery of two restaurant employees of one sum of money constituted two robberies.1
“This is because . . . robbery is a crime against persons[,]” not a crime against property. Id.
Thus, two counts of armed robbery were justified in this case.
¶14.
We find that the evidence in the instant case was legally sufficient. This assignment
1
The dissent in Towner argued that there should have been only one count of armed
robbery due to the fact that the indictments attributed the same sum of money to both
victims. Id. at 1117 (¶¶36-38) (King, P.J., dissenting). However, the dissent’s argument in
Towner is not applicable here as both victims, Stacie and Melissa, were deprived of money
from their individual cash registers. Therefore, there were two separate sums of money
involved for the two separate counts.
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of error is without merit.
III.
¶15.
Whether the verdict was against the overwhelming weight of the
evidence.
On a question of overwhelming weight of the evidence, this Court has stated the
standard of review is as follows:
[T]his Court must accept as true the evidence which supports the verdict and
will reverse only when convinced that the circuit court has abused its
discretion in failing to grant a new trial. Only when the verdict of the jury is
so contrary to the overwhelming weight of the evidence that to allow it to
stand would sanction an unconscionable injustice will we disturb that verdict
on appeal.
Montgomery v. State, 830 So. 2d 1269, 1273 (¶16) (Miss. Ct. App. 2002) (citation omitted).
¶16.
Based upon the facts previously discussed, we find that Conner’s guilty verdict is not
so contrary to the evidence as to constitute an unconscionable injustice. Furthermore, the
evidence does not weigh heavily against the jury’s verdict. Accordingly, we find that
Conner’s conviction was not against the overwhelming weight of the evidence.
CONCLUSION
¶17.
Based on the foregoing, we find no error and affirm.
¶18. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY OF
CONVICTION OF COUNT I, ARMED ROBBERY, AND COUNT II, ARMED
ROBBERY, AND SENTENCE OF THIRTY-FIVE YEARS AS A HABITUAL
OFFENDER FOR BOTH COUNTS I AND II, WITH THE SENTENCES TO RUN
CONCURRENTLY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED
TO THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
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