IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
MARKEITH WILLIAMS A/K/A MARKEITH
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
MOTION FOR REHEARING FILED:
HON. C.E. MORGAN III
GRENADA COUNTY CIRCUIT COURT
JANE E. TUCKER
JAMES W. CRAIG
OFFICE OF ATTORNEY GENERAL
BY: W. GLENN WATTS
CRIMINAL - FELONY
CONVICTED OF ARMED ROBBERY AND
SENTENCED TO FORTY YEARS IN THE
CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, WITH
TWENTY-FIVE YEARS TO SERVE,
FIFTEEN YEARS SUSPENDED, AND
FIFTEEN YEARS OF POST-RELEASE
SUPERVISION, WITH FIVE YEARS
SUPERVISED AND TEN YEARS
AFFIRMED – 02/21/2012
BEFORE IRVING, P.J., BARNES, AND ROBERTS, JJ.
IRVING, P.J., FOR THE COURT:
On August 10, 2010, a jury convicted Markeith Williams of armed robbery. The
Grenada County Circuit Court sentenced him to forty years in the custody of the Mississippi
Department of Corrections with twenty-five years to serve, fifteen years suspended, and
fifteen years of post-release supervision, with five years supervised and ten years
Feeling aggrieved, Williams appeals and argues that: (1) the circuit court erred in
admitting improper identification evidence; (2) he was prejudiced by improper character
evidence presented at trial; (3) the circuit court erred in granting a jury instruction on flight;
(4) he received ineffective assistance of counsel; and (5) the cumulative effect of the above
errors deprived him of his right to a fair trial.
Finding no error, we affirm.
On October 7, 2009, Tim Arora was working at the Race Way convenience
store/service station in Grenada, Mississippi. At approximately 7:30 p.m., a tall, well-built
man with “braids” in his hair entered the store and walked into the store’s restroom. When
he came out of the restroom, he displayed a handgun and shoved Arora to the floor. A
second man then entered the store. The man with braids in his hair went behind the counter,
opened the cash register, and removed money from it. He also allegedly took envelopes
containing large sums of money from the top of the store’s safe. The two men then left the
store. Customers entered the store soon afterward, and Arora told them that the store had just
been robbed. Arora called the police, and they arrived moments later.
Arora testified that the next day, the police asked him to look at a photographic lineup
of eight individuals. He further testified that a police officer asked him if the first person
pictured in the lineup was the first man that he had encountered during the robbery and
explained: “[T]hat’s the guy we got [sic].” Arora recalled telling the officer that the
individual in the photograph could have been the person who had robbed the store but that
he was not certain. Arora testified that he told the officer that he did not get a good look at
the man’s face because he had his head down on the floor during the robbery. Arora could
only remember that the man was tall, had braids in his hair, wore dark clothing, and had a
bandana around his neck.
During Arora’s testimony, the State showed him a photographic lineup and asked him
if he remembered signing his name anywhere on the lineup sheet. Arora replied, “No, sir.
I might have; I’m not sure.” The photographs were not entered into evidence, and the State
did not ask Arora to identify Williams in court.
Next, the State presented testimony from Jeremy Ward and Cherrelle White, both of
whom were at the Race Way near the time of the robbery. Ward testified that, on October
7, sometime between 7:00 p.m and 8:00 p.m., he and White drove to the Race Way to buy
cigarettes. Ward testified that he parked his vehicle approximately ten to twelve feet from
the store’s front door. Ward stated that it was almost dark outside when he arrived at the
store, but the area where he parked his vehicle was “lit up.” Shortly after parking his car,
Ward saw two men exit the store and start running. He recalled that both men were wearing
dark clothes. According to Ward, one of the men was wearing a hat, and the other was
wearing a dark, hooded sweatshirt partly over his head, and a bandana around his neck.
Ward testified that the man wearing the sweatshirt was taller than the other man, had a
birthmark on the left side of his face, and had “dreads” in his hair. Ward testified that the
taller man, with the birthmark, looked like Williams.
After the two men disappeared behind the store, Ward and White got out of their
vehicle and entered the store. The clerk inside was on the phone and told them that the store
had just been robbed. Ward and White then left the store.
The police located Ward and White later that evening and asked them to come to the
police station and give a statement. At the police station, officers showed Ward and White
a photograph of Williams and asked them if it depicted the man they had seen at the Race
Way. Ward and White answered in the affirmative. Several days later, an officer brought
a photographic lineup to White’s job. White picked Williams’s picture out of the eight
individuals depicted in the lineup, and she signed her name above Williams’s photograph.
White testified that she did so without assistance from the officer. The State introduced into
evidence the photographic lineup containing White’s signature.
White testified that she was certain that Williams was the person she saw leaving the
store on the night of the robbery. White explained that she knew Williams through her
cousin but that she had not seen him in seven or eight years. Additionally, White testified
that she could not remember Williams’s name when she saw him on the night of the robbery,
but she recognized him by the birthmark on the left side of his face.
The State also presented testimony from Grenada Police Officer Doug Evans, who
assisted in the investigation of the matter. Officer Evans testified that, on the evening of the
robbery, he obtained a description of one of the suspects from Ward and White at the police
station. Officer Evans recalled having had prior contact with an individual fitting that
description, but he was unable to remember his name. Officer Evans contacted Officer
Octavious Watt and provided him with a description of the suspect. Officer Watt knew an
individual who matched the description and gave Williams’s name to Officer Evans.
According to Officer Evans, he then “went to the jail and pulled up pictures on the computer”
and later obtained a warrant for Williams’s arrest.
Officer Evans and another officer drove to Williams’s home to arrest him. However,
as Officer Evans got out of the vehicle, he saw Williams and another individual running
away. Other officers apprehended Williams approximately twenty minutes later. Officer
Evans testified that when he asked Williams why he ran, Williams said that he “didn’t want
to get caught.”
Additional facts, as necessary, will be related during our analysis and discussion of
ANALYSIS AND DISCUSSION OF THE ISSUES
1. Identification Evidence
Williams argues that the circuit court erred in denying his pretrial motion to suppress
all pretrial identifications. Specifically, Williams maintains that the photographic lineup was
impermissibly suggestive because his photograph clearly differed from the other individuals
pictured in the lineup and that White’s and Ward’s in-court identifications were tainted by
their initial identification of Williams by way of a single photograph.
Our standard of review for a circuit court’s decision regarding pretrial identification
is “whether or not substantial credible evidence supports the [circuit] court’s findings that,
considering the totality of the circumstances, [the] in-court[-]identification testimony was not
impermissibly tainted.” Roche v. State, 913 So. 2d 306, 310 (¶11) (Miss. 2005) (quoting
Ellis v. State, 667 So. 2d 599, 605 (Miss. 1995)). The circuit court’s decision generally will
not be disturbed when it is supported by substantial, credible evidence supporting it. Id.
The Mississippi Supreme Court has held:
Only pretrial identifications which are suggestive, without necessity for
conducting them in such a manner, are proscribed. A lineup or series of
photographs in which the accused, when compared with the others, is
conspicuously singled out in some manner from the others, either from
appearance or statements by an officer, is impermissibly suggestive.
An impermissibly suggestive pretrial identification[, however,] does not
preclude in-court identification by an eyewitness who viewed the suspect at
the procedure, unless: (1) from the totality of the circumstances surrounding
it (2) the identification was so impermissibly suggestive as to give rise to a
very substantial likelihood of irreparable misidentification.
York v. State, 413 So. 2d 1372, 1383 (Miss. 1982) (internal citations and footnotes omitted).
While, our supreme court has held that an initial identification by means of a single
photograph is impermissibly suggestive, the inquiry does not end there. Christmas v. State,
10 So. 3d 413, 419 (¶¶24-25) (Miss. 2009).
We must then “determine whether the
identification was nonetheless reliable” after considering the Biggers factors. Id. at 419 (¶25)
(citing Neil v. Biggers, 409 U.S. 188, 199-200 (1972)). The factors include: “the opportunity
of the witness to view the criminal at the time of the crime, the witness’s degree of attention,
the accuracy of the witness’s prior description of the criminal, the level of certainty
demonstrated by the witness at the confrontation, and the length of time between the crime
and the confrontation.” Id. (quoting Roche, 913 So. 2d at 311 (¶14)).
Williams’s motion to suppress claimed that he was “conspicuously singled out” in the
photographic lineup used by law-enforcement officers. Williams explained that the lineup
contained eight photographs, only four of which “could possibly fit” his general description.
According to Williams’s motion, of these four photographs, only Williams’s photograph
depicted an individual with his particular hair style and no facial hair.
Review of the photographic lineup shows that three other individuals had hairstyles
similar to Williams’s, though in varying lengths. Additionally, even though Williams claims
that no one else depicted in the lineup had facial hair similar to his, three other individuals
had facial hair similar to Williams’s, and it is unclear from Williams’s photograph whether
he had facial hair or not. Based on our review of the photographic lineup, Williams was not
conspicuously singled out. Furthermore, the circuit court noted that both witnesses claimed
to have recognized Williams by his birthmark, which was not clearly depicted in his
Williams also argues that Ward’s and White’s in-court identifications were tainted by
their initial identifications of Williams by way of a single photograph. Our supreme court
has consistently held that “[t]he practice of showing suspects singly to persons for the
purpose of identification, and not as part of a lineup has been widely condemned.”
Christmas, 10 So. 3d at 419 (¶22) (quoting Roche, 913 So. 2d at 310-11 (¶12)). In
Christmas, police officers showed a single photograph of Chancellor Christmas to a witness
who was also a co-defendant. Id. at 418 (¶19). The witness identified Christmas as “the man
with the gun” at the scene of the crime. Id. Our supreme court held that while the initial
identification of Christmas was impermissibly suggestive, the identification was nonetheless
reliable based on the Biggers factors. Id. at 420 (¶29).
Even though the lapse of time between the crime and the identification of Christmas
as the suspect and the accuracy of the witness’s prior description weighed in Christmas’s
favor, the additional Biggers factors weighed in favor of admitting the identification
testimony. Id. at 419 (¶27). The Court held that the witness “had ample opportunity to view
[Christmas]” because he was “within only a few feet of [Christmas] for a significant period
of time.” Id. at (¶28). Additionally, the witness’s testimony did not indicate hesitation when
identifying Christmas as the suspect. Id.
In this case, both Ward and White testified at the suppression hearing that they
identified Williams from a single photograph shown to them by police on the night of the
robbery. The circuit court found that, while Ward’s and White’s initial identifications by
way of a single photograph were impermissibly suggestive, their identifications of Williams
were nonetheless reliable based on the Biggers factors. We agree.
Ward and White testified that while they only saw Williams for a brief moment as he
exited the Race Way, the area was well lit and both Ward and White were able to get a good
look at his face. Additionally, both Ward and White claimed to have recognized Williams
from previous encounters. While White stated with certainty that Williams was the man that
she saw leaving the Race Way, Ward went only so far as to say that the man looked like
Williams. However, “[a] witness does not have to be positive in his identification for his
testimony to be competent before a jury.” York, 413 So. 2d at 1373 n.2 (citing Little v. State,
357 So. 2d 379, 383 (Ala. Crim. App. 1978)).
Ward’s and White’s descriptions of
Williams’s physical characteristics provided a degree of accuracy that permitted the
authorities to find a suspect with the same characteristics within a few hours of the robbery.
Finally, White identified Williams in a photographic lineup a few days after the robbery.
Based on the Biggers factors, we find that substantial, credible evidence exists to
support the circuit court’s admission of the identification evidence at trial. This assignment
of error is without merit.
2. Admission of 404(b) Evidence
Williams argues that Officer Evans’s testimony ran afoul of Mississippi Rule of
Evidence 404(b).1 Williams contends that Officer Evans’s testimony—that he was familiar
with Williams and had obtained a photograph of him from the “jail’s computer”— prejudiced
the jury. Williams acknowledges that he did not object to this testimony at trial.
As our supreme court has stated many times, “[a]ny claim is waived for failure to raise
a contemporaneous objection.” Wells v. State, 903 So. 2d 739, 742 (¶6) (Miss. 2005) (citing
Ballenger v. State, 667 So. 2d 1242, 1272 (Miss. 1995)). Because Williams failed to object
Rule 404(b) states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show that he acted in conformity therewith.
It may, however, be admissible for other purposes such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.
to Officer Evans’s testimony at trial, this issue is procedurally barred.
Procedural bar notwithstanding, the circuit court did not err in admitting Officer
Evans’s testimony. This Court has previously considered this issue in Brooks v. State, 788
So. 2d 794 (Miss. Ct. App. 2001). In Brooks, Lennis Brooks argued that the circuit court
should have granted his motion for a mistrial following Officer Bryan Bailey’s testimony that
he “went into our jail photos and pulled up a photo of Brooks.” Id. at 796 (¶8). Brooks
argued that such testimony constituted evidence of his prior bad acts. Id.
This Court agreed with the circuit court’s determination that the reference to the “jail
photo” was used to identify Brooks, not to prove his character.
Id. at 796-97 (¶9).
Accordingly, the testimony fell within the proof-of-identify exception to Rule 404(b). Id. at
797 (¶11). Finally, this Court determined that the circuit court properly found that the
probative value of Officer Bailey’s statement outweighed the statement’s potentially
prejudicial impact. Id. at 798 (¶18).
In this case, Officer Evans’s testimony was substantially similar to Officer Bailey’s
testimony in Brooks. Officer Evans referenced Williams’s “jail photo” only to describe how
he identified Williams as the robbery suspect. Thus, Officer Evans’s testimony did not
violate Rule 404(b).
However, even if evidence of prior bad acts falls within a 404(b) exception, its
prejudicial effect must still be measured against its probative value to determine admissibility
under Rule 403 of the Mississippi Rules of Evidence. Brooks, 788 So. 2d at 798 (¶13).
Based on our holding in Brooks, we find that the probative value of Officer Evans’s
testimony outweighed its potential prejudicial effect—especially where Williams’s “jail
photo” was not introduced into evidence, was not repeatedly referred to, and was used only
to identify Williams. Id. This issue is without merit.
3. Flight Jury Instruction
Williams argues that the circuit court erred in giving a flight instruction. The State
submitted jury instruction S-5, which reads:
The Court instructs the [j]ury that flight is a circumstance from which
guilty knowledge and fear may be inferred. If you find from the evidence in
this case, beyond a reasonable doubt, that the defendant, Markeith Williams,
did flee from the law[-]enforcement officers, then the flight of the Defendant
is to be considered with all other evidence in this case.
You will determine from all of the facts whether the flight was from a
conscious sense of guilt or whether other things caused it, and give it such
weight as you think it is entitled to in determining the guilt or innocence of
At the outset, we note that Williams did not object to this instruction at trial; therefore,
he is procedurally barred from raising this issue on appeal. Goff v. State, 14 So. 3d 625, 655
(¶118) (Miss. 2005).
Procedural bar notwithstanding, we find no error in giving a flight instruction.
Generally, “flight is admissible as evidence of consciousness of guilt.” Fuselier v. State, 702
So. 2d 388, 390 (¶4) (Miss. 1997) (citing Williams v. State, 667 So. 2d 15, 23 (Miss. 1996)
(overruled on other grounds)). However, a flight instruction “is appropriate only where that
flight is unexplained and somehow probative of guilt or guilty knowledge.” Id. (quoting
Reynolds v. State, 658 So. 2d 852, 856 (Miss. 1995)). “Evidence of flight is inadmissable
where there is an independent reason for [the] flight known by the court which cannot be
explained to the jury because of its prejudicial effect upon the defendant.” Id. (quoting
Williams, 667 So. 2d at 23).
In Anderson v. State, 1 So. 3d 905, 916 (¶34) (Miss. Ct. App. 2008), this Court found
no error with the circuit court’s decision to give a flight instruction. In Anderson, the police
received a confidential-informant tip that Reginald Anderson had fled to Tennessee after
committing aggravated assault. Id. at 909 (¶4). When Anderson returned to Mississippi, and
the police went to arrest him, they found him hiding under a house. Id. Anderson stated that
he was hiding underneath the house because he was “afraid of going back to jail.” Id. at 916
(¶33). We reasoned:
Anderson’s flight was never fully explained. . . . Anderson has failed to
provide an independent explanation for why he was hiding under his house on
the day of his arrest. Anderson attempts to argue on appeal that he was hiding
because he feared he was being “set up.” However, there is nothing in the
record to support this argument. The only reason that Anderson gave at trial
for hiding under the house was that he was a convicted felon and afraid of
going back to jail.
Here, Officer Evans testified that Williams stated that he ran from the police on the
evening of October 7 because he “didn’t want to get caught.” The statement does not
constitute a sufficient independent reason for fleeing and is probative of guilty knowledge.
As such, the circuit court did not err in giving a flight instruction. This assignment of error
is without merit.
4. Ineffective Assistance of Counsel
Williams argues that his trial counsel was ineffective for failing to renew objections
to Ward’s, White’s, and Arora’s pretrial identifications of him, for failing to object to Officer
Evans’s testimony, and for failing to object to the flight instruction. Generally, we do not
consider claims of ineffective assistance of counsel on direct appeal unless there is sufficient
evidence within the record to evaluate the claim. Harden v. State, 59 So. 3d 594, 603-04
(¶21) (Miss. 2011). However, we find such evidence in the record before us.
To succeed in a challenge to the effectiveness of counsel, Williams must show that
his “counsel’s performance was deficient, and . . . the deficient performance prejudiced [his
defense] such that, but for counsel’s deficient performance, the result would have been
different.” Id. at 603 (¶20) (citing Strickland v. Washington, 466 U.S. 668, 688 (1984)).
Williams must overcome the “strong but rebuttable presumption . . . that counsel’s decisions
constituted reasonable trial strategy within ‘the wide range of reasonable professional
assistance.’” Id. (quoting Strickland, 466 U.S. at 688).
A. Failure to Object to Identification Evidence
Williams’s trial counsel raised an objection at the suppression hearing because Ward
and White identified Williams from a single photograph. However, the circuit court found
that based on the Biggers factors, the identification procedures were not so impermissibly
suggestive as to make the identification evidence unreliable. Consequently, there was no
reason for trial counsel to make an additional objection to the identification evidence at trial.
Arora’s pretrial identification of Williams via the photographic lineup was not entered into
evidence, and the State did not seek an in-court identification of Williams from Arora. Thus,
because the State did not admit any identification evidence through Arora’s testimony, there
was no reason for Williams’s trial counsel to object. Accordingly, this issue is without merit.
B. Failure to Object to Officer Evans’s Testimony
Based on our previous discussion and conclusion that Officer Evans’s testimony was
admissible and not prejudicial, Williams’s claim that his trial counsel was ineffective for
failing to object to said testimony is without merit.
C. Failure to Object to Jury Instruction on Flight
Based on our previous discussion and conclusion that the circuit court did not err in
giving the flight instruction to the jury, Williams’s claim that his trial counsel was ineffective
for failing to object to the instruction is without merit.
5. Cumulative Error
Williams argues that, assuming this Court does not find any individual error
sufficiently egregious to require reversal, the cumulation of errors in this case is cause for
reversal. Having found no individual errors in this case, there can be no cumulative error.
Osborne v. State, 54 So. 3d 841, 848 (¶27) (Miss. 2011). Thus, this issue is without merit.
¶41. THE JUDGMENT OF THE GRENADA COUNTY CIRCUIT COURT OF
CONVICTION OF ARMED ROBBERY AND SENTENCE OF FORTY YEARS IN
THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH
TWENTY-FIVE YEARS TO SERVE, FIFTEEN YEARS SUSPENDED, AND
FIFTEEN YEARS OF POST-RELEASE SUPERVISION, WITH FIVE YEARS
SUPERVISED AND TEN YEARS UNSUPERVISED, IS AFFIRMED. ALL COSTS
OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON,
MAXWELL, RUSSELL AND FAIR, JJ., CONCUR.