Houston v. State
| Docket Number: | 2002-KA-01475-COA Linked Case(s): 2002-CT-01475-SCT ; 2002-KA-01475-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 05-18-2004 Opinion Author: King, C.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Robbery with deadly weapon & Aggravated assault - Identification - Closing argument - Double jeopardy - Ineffective assistance of counsel - Sufficiency of evidence Judge(s) Concurring: Bridges and Southwick, P.JJ., Thomas, Lee, Myers, Chandler and Griffis, JJ. Concurs in Result Only: Irving, J. Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 06-20-2002 Appealed from: Lauderdale County Circuit Court Judge: Larry Eugene Roberts Disposition: COUNT I- ROBBERY WITH THE USE OF A DEADLY WEAPON- TWENTY YEARS. COUNT II- AGGRAVATED ASSAULT- TWENTY YEARS. THE SENTENCES ARE TO RUN CONCURRENTLY TO EACH OTHER. Case Number: 449-01 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Derrick L. Houston a/k/a Derrick Lashaun Houston |
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| Appellee: | State of Mississippi |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Robbery with deadly weapon & Aggravated assault - Identification - Closing argument - Double jeopardy - Ineffective assistance of counsel - Sufficiency of evidence |
| Summary of the Facts: | Derrick Houston was convicted of robbery with the use of a deadly weapon and aggravated assault. He was sentenced to a term of twenty years on each offense. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Identification Houston argues that both the in-court and out-of-court identification affected his substantive rights and constituted plain error. Houston claims that the original six-photograph line-up sheet shown to the victim was suggestive. Slight or minor differences in the photographs do not necessarily constitute an impermissible suggestion. Houston’s claim is without merit. Issue 2: Closing argument Houston argues that the State made prejudicial comments during closing argument by implicitly commenting on Houston's remaining silent. The test for lawyer misconduct during closing argument is whether the natural and probable effect of the improper argument is to create unjust prejudice against the accused so as to result in a decision influenced by the prejudice so created. The remark in this case is harmless since the jury was instructed to disregard the remark. Issue 3: Double jeopardy Houston argues that he was subjected to double jeopardy because the victim's testimony indicated that the armed robbery was still in progress when Houston struck her over the head with the pistol. A criminal defendant may be prosecuted for more than one statutory offense arising out of a basic set of facts where each offense charged requires proof of a different element. While the charges of armed robbery and aggravated assault arose out of the same set of facts, the elements of each offense are separate and distinct. Issue 4: Ineffective assistance of counsel Houston argues that he received ineffective assistance because his attorney failed to object to the out-of-court identification and her subsequent in-court identification, failed to object to the victim's testimony that Houston's father had shown her a photograph of Houston and another person, failed to object to the victim's testimony about being shown a photograph at the district attorney's office, should not have asked an officer questions on re-cross examination which allowed him to express his opinion that the victim was correct in her identification of Houston, and compared probable cause to the burden of proof of beyond a reasonable doubt during voir dire and during the closing argument. Complaints concerning counsel's failure to file certain motions, call certain witnesses, ask certain questions, and make certain objections fall within the ambit of trial strategy. Houston's complaints fall within this general principle. Issue 5: Sufficiency of evidence Houston argues that both the weight and sufficiency of the evidence do not support the verdict, because the victim’s identification was tainted by the officer's comment to her prior to viewing the photographs. The State's identification of Houston consisted of the victim's eyewitness identification and a videotape of the robbery which showed the robber. The court in this case properly instructed the jury to determine whether the identification made by the victim was credible and reliable. The jury resolved the issue of credibility in favor of the State's witnesses. |
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