Weaver v. State


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Docket Number: 2007-KA-01423-COA
Linked Case(s): 2007-KA-01423-COA

Court of Appeals: Opinion Link
Opinion Date: 09-23-2008
Opinion Author: Lee, P.J.
Holding: Affirmed

Additional Case Information: Topic: Possession of firearm by convicted felon & Armed robbery - Identification evidence - Right to counsel - Prosecutorial misconduct - Ineffective assistance of counsel
Judge(s) Concurring: King, C.J., Myers, P.J., Irving, Chandler, Griffis, Barnes, Ishee, Roberts, and Carlton, JJ.
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY

Trial Court: Date of Trial Judgment: 07-18-2006
Appealed from: Hinds County Circuit Court
Judge: William Gowan, Jr.
Disposition: CONVICTED OF COUNT I, POSSESSION OF A FIREARM BY A CONVICTED FELON, AND COUNT II, ARMED ROBBERY, AND SENTENCED AS A HABITUAL OFFENDER TO LIFE IMPRISONMENT FOR EACH COUNT WITH SENTENCES TO RUN CONCURRENTLY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE, PROBATION, REDUCTION OR SUSPENSION OF SENTENCE
District Attorney: Eleanor Faye Peterson
Case Number: 06-0-071

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: OCTZAVIUS NEKEITH WEAVER




JUSTIN TAYLOR COOK



 
  • Appellant #1 Brief

  • Appellee: STATE OF MISSISSIPPI OFFICE OF THE ATTORNEY GENERAL BY: W. GLENN WATTS  

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    Topic: Possession of firearm by convicted felon & Armed robbery - Identification evidence - Right to counsel - Prosecutorial misconduct - Ineffective assistance of counsel

    Summary of the Facts: Octzavius Weaver was convicted of one count of possession of a firearm by a convicted felon and one count of armed robbery. Weaver was sentenced as a habitual offender to life imprisonment on each count and ordered to serve the sentences concurrently. He appeals.

    Summary of Opinion Analysis: Issue 1: Identification evidence Weaver argues the show-up identification procedure used to identify him as the assailant was faulty. In assessing the validity of identification testimony, the court considers 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. Weaver was apprehended within a few feet of a weapon resembling the one used in the crime, within a few feet of the getaway vehicle used in the crime, and with the victim’s personal belongings in the getaway vehicle. There was also testimony that Weaver had control and custody of the vehicle during the time of the robbery. The victim identified his assailant two hours after seeing him for a few seconds in broad daylight. Thus, this issue is without merit. Issue 2: Right to counsel Weaver argues the trial court erred in admitting evidence that should have been ruled inadmissible because he was exposed to the show-up identification procedure after invoking his right to counsel and before counsel was provided. A participant in a lineup has a right to have a lawyer present only if criminal proceedings have been instituted against him. Weaver was not “the accused,” and criminal proceedings had not yet been initiated against him at the time of the identification procedure. Weaver was merely a suspect. Issue 3: Prosecutorial misconduct Weaver argues the State made two improper statements about his post-Miranda choice to remain silent. With regard to the first statement, the defendant brought this evidence out himself and cannot now complain. With regard to the second statement, the question was withdrawn after objection. Any deductions that the jurors may have drawn as a result of the unspoken comments are considered harmless in light of the overwhelming weight of evidence of Weaver’s guilt. Issue 4: Ineffective assistance of counsel Weaver argues his trial counsel was ineffective. Weaver’s first instance of his counsel’s ineffectiveness was Weaver’s appearance on the first day of trial in prison attire. During pretrial motions, the trial court gave Weaver the opportunity to object to wearing prison attire, and he chose not to. After the first day of trial, clothing was found for Weaver. A defendant appearing in a prisoner’s uniform or clothing is not necessarily reversible error. Weaver’s second instance of the alleged ineffectiveness of his trial counsel concerns his trial counsel’s failure to request a suppression hearing for any pretrial identification. The overwhelming evidence against Weaver is indicative that even if the prior identifications were stricken, there would be no alteration of the outcome of the trial. Weaver’s final instance of the alleged ineffectiveness of his trial counsel was his trial counsel’s failure to file a motion for a new trial or a judgment notwithstanding the verdict. Even if Weaver’s trial counsel was deficient for failing to file post-trial motions, Weaver has not shown how that deficiency resulted in prejudice to his defense since his issues on appeal were included in the record.


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