Owen v. State


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Docket Number: 2008-KA-01469-COA
Linked Case(s): 2008-KA-01469-COA ; 2008-CT-01469-SCT

Court of Appeals: Opinion Link
Opinion Date: 01-05-2010
Opinion Author: Irving, J.
Holding: Affirmed

Additional Case Information: Topic: Armed robbery - Motion to suppress - Confrontation Clause - M.R.E. 804(a)(4)
Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Griffis, Barnes, Ishee, Roberts, Carlton and Maxwell, JJ.
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY

Trial Court: Date of Trial Judgment: 07-28-2008
Appealed from: Forrest County Circuit Court
Judge: Robert Helfrich
Disposition: CONVICTED OF ARMED ROBBERY AND SENTENCED TO TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS
District Attorney: Jon Mark Weathers
Case Number: 07-334CR

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: KEVIN EUGENE OWEN




ERIN ELIZABETH PRIDGEN



 
  • Appellant #1 Brief
  • Appellant #1 Reply Brief

  • Appellee: STATE OF MISSISSIPPI OFFICE OF THE ATTORNEY GENERAL: JEFFREY A. KLINGFUSS  

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    Topic: Armed robbery - Motion to suppress - Confrontation Clause - M.R.E. 804(a)(4)

    Summary of the Facts: Kevin Owen was convicted of armed robbery and sentenced to twenty-five years. He appeals.

    Summary of Opinion Analysis: Issue 1: Motion to suppress Owen argues that the show-up identification was unduly prejudicial and should have been suppressed. Factors in evaluating the likelihood of misidentification 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. The record shows that the victim’s identification of Owen was based on his observation of Owen during the robbery and on his review of the surveillance video. Moreover, the victim’s testimony at the suppression hearing was consistent with his trial testimony. He provided an accurate description of Owen at the suppression hearing and stated that no more than thirty minutes had elapsed from the point in time that the store was robbed until the perpetrator was brought back to the store. Thus, there was no error. Issue 2: Confrontation clause Owen argues that the trial judge erred in allowing the tape-recorded statement of an inmate who had been incarcerated at the Forrest County Regional Jail at the same time as Owen, to be played for the jury after declaring the inmate unavailable pursuant to M.R.E. 804(a)(4). The record shows that when the inmate took the stand he immediately began complaining of chest pains and shortness of breath and informed the trial judge that he was “dying from heart disease.” The Confrontation Clause to the United States Constitution bars the admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination. There is no doubt that the inmate’s statement is testimonial and that he was not subject to cross-examination by Owen or anyone else at the time that he gave the statement. Further, it is not disputed that he appeared for trial, was sworn, but was dismissed without being subjected to either direct examination or cross-examination. Therefore, the trial court erred in admitting the inmate’s tape-recorded statement. However, the error is harmless, because the testimonies of three other witnesses are sufficient to support the jury’s verdict.


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