Grayer v. State
| Docket Number: | 2004-KA-01728-COA Linked Case(s): 2004-CT-01728-SCT ; 2004-KA-01728-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 01-31-2006 Opinion Author: Barnes, J. Holding: AFFIRMED |
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| Additional Case Information: |
Topic: Burglary of dwelling - Show-up identification - Identification instruction - Amendment of indictment Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Southwick, Irving, Chandler, Griffis, Ishee and Roberts, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 04-28-2004 Appealed from: Harrison County Circuit Court Judge: Jerry O. Terry, Sr. Disposition: CONVICTED OF BURGLARY OF A DWELLING AND SENTENCED TO TWENTY-FIVE YEARS AS A HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS District Attorney: Cono A. Caranna, II Case Number: B2401-2003-656 |
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| Party Name: | Attorney Name: | |||
| Appellant: | David Antonio Grayer |
ROBERT CHARLES STEWART |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: JEFFREY A. KLINGFUSS |
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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: | Burglary of dwelling - Show-up identification - Identification instruction - Amendment of indictment |
| Summary of the Facts: | David Grayer was convicted of burglary of a dwelling and was sentenced as a habitual offender to twenty-five years. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Identification Grayer argues that the show-up identification was suggestive. The factors to be considered in determining whether, under the totality of circumstances, a show-up identification was reliable even though the confrontation procedure was suggestive include the opportunity of the witness to view the accused at the time of the crime; the witness’s degree of attention; the accuracy of the witness’ 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. It is clear from the record that the trial court considered those factors in making its determination not to suppress the identification testimony, and that the court’s findings are backed by substantial credible evidence. Issue 2: Identification instruction Grayer argues that the court’s refusal to grant his identification instruction constitutes reversible error because his identification rests on the basis of a single witness. Grayer’s identification did not rest solely on the testimony of a single witness. Grayer was in possession of property stolen from the crime scene and apologized to the victim for his actions. Therefore, the court committed no error in refusing to give the identification instruction. Issue 3: Amendment of indictment Grayer argues that it was error for the court to grant the State’s motion to amend the original indictment to change the date the burglary occurred. An amendment to change the date on which the offense occurred is one of form only, unless time is an essential element or factor in the crime. Grayer makes no claim that time is an essential element or factor in the crime with which he is charged. |
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