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Docket Number

No. 51683.

Attorney(S)

Chatwin M. Jackson, Kosciusko, for appellant. A.F. Summer, Atty. Gen. by Robert D. Findley, Special Asst. Atty. Gen., Jackson, for appellee.

Judges

PATTERSON, Chief Justice, for the Court:

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Smart Summary

Case Summary: Donald Kimbrough v. State of Mississippi

Factual and Procedural Background

Donald Kimbrough was tried in the Circuit Court of Attala County on a charge of armed robbery. From a verdict of guilty and a sentence of twenty years, he appealed, arguing that the State adduced insufficient evidence to support the conviction and that inadequate advance notice of the hearing on the State's "Petition to Conduct Lineup" deprived him of due process.

On February 9, 1979, Mrs. Victor Turner was assaulted in her home: struck on the head and shot in the back with a shotgun; $47 taken from a family Bible. Blank checks were found at the scene, one made payable to "James Clark." On February 12 a check payable to "James Clark" was found along a road between Mrs. Turner's home and the home of Mrs. Alberta Hull (grandmother of both James Clark and Donald Kimbrough). James Clark lived with Mrs. Hull; Kimbrough lived nearby and spent the night of February 8 with Mrs. Hull.

Mrs. Turner identified Donald Kimbrough as her assailant both in and out of court, although she repeatedly referred to him by the name "James Clark" (including immediately after the robbery, at a lineup, and at in-court identification). A lineup was conducted March 15, 1979, in the presence of defense counsel; the defense concedes the lineup was fair and not suggestive. At trial Kimbrough offered an alibi—claiming he left his grandmother's before 8:00 a.m. to hunt, carrying Mrs. Hull's twelve-gauge shotgun, broke the gunstock while fleeing from what he thought was a warden, and left the stock by a creek—but the jury rejected the alibi and convicted him.

Legal Issues Presented

Whether the State adduced sufficient evidence to support Kimbrough's conviction for armed robbery.
Whether inadequate advance notice of the hearing on the State's "Petition to Conduct Lineup" deprived Kimbrough of due process of law.

Arguments of the Parties

Appellant's Arguments

The State's evidence was insufficient to support the conviction.
Defense counsel received no more than twenty-four hours' notice before the March 15, 1979 lineup hearing, and this inadequate notice deprived the appellant of due process; specifically, counsel needed time before the hearing to research applicable law.

Other Parties' Positions

This opinion does not contain a detailed account of the State's separate, specific trial arguments beyond the record of evidence and identification described by the court.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Madison v. State, 290 So.2d 607 (Miss. 1973)	Support for deference to the jury's province in credibility determinations.	Cited to justify that the jury's acceptance of identification and rejection of alibi was sufficient to support the verdict.
Freeland v. State, 285 So.2d 895 (Miss. 1973)	Support for deference to the jury's province in credibility determinations.	Used with other authorities to uphold the sufficiency of evidence based on credibility and identification.
Clanton v. State, 279 So.2d 599 (Miss. 1973)	Support for deference to the jury's province in credibility determinations.	Cited in sustaining the jury's verdict where identification and other factors supported conviction.
Nash v. State, 278 So.2d 779 (Miss. 1973)	Support for deference to the jury's province in credibility determinations.	Included among authorities affirming that credibility determinations by the jury support conviction.
Campbell v. State, 278 So.2d 420 (Miss. 1973)	Support for deference to the jury's province in credibility determinations.	Cited to support the view that the jury's resolution of contradictory testimony may sustain a conviction.
cf. Gandy v. State, 373 So.2d 1042, 1045 (Miss. 1979)	Related authority concerning evaluation of identification and credibility.	Referenced as a comparative authority in the court's analysis of identification credibility.
Luckett v. State, 354 So.2d 1119 (Miss. 1978)	Inconsistencies in identification testimony bear on credibility and weight, matters for the jury.	Cited to support the proposition that inconsistent identification testimony goes to weight and credibility, not to automatic exclusion.
Vickers v. State, 323 So.2d 743 (Miss. 1975)	Inconsistencies in testimony affect credibility and are for the jury to resolve.	Used to reinforce that inconsistencies do not necessarily destroy witness identification when jury resolves weight and credibility.
Passons v. State, 239 Miss. 629, 124 So.2d 847 (1960)	Inconsistencies in testimony affect credibility and are for the jury to resolve.	Cited with other authorities to show that inconsistent testimony is for jury determination.
United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967)	Constitutional principles governing pretrial identification procedures and defendants' rights concerning lineups.	Cited to reject the appellant's argument that counsel's lack of time to research invalidated the lineup where counsel was present and the lineup was non-suggestive.
Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967)	Constitutional principles governing identification procedures and related due process concerns.	Used with Wade and Stovall to dispose of the claim that inadequate notice to counsel rendered the lineup constitutionally infirm.
Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967)	Constitutional standards for identification procedures and due process in pretrial identifications.	Cited to support the court's rejection of the appellant's procedural-notice-based due process claim regarding the lineup.

Court's Reasoning and Analysis

The court examined the identification evidence and the appellant's alibi in the light most favorable to the State. It observed that Mrs. Turner's repeated identifications of Kimbrough, though she erroneously used the name "James Clark," were consistent as to identity; the court treated the name confusion as nominal and not destructive of identification. The lineup (March 15, 1979) was conducted in the presence of defense counsel and conceded by counsel to be fair and non-suggestive.

The court found the appellant's alibi weak: no corroborating witnesses (such as wardens) were produced to place him hunting in the area; a search shortly after the crime failed to disclose the alleged deer carcass or the gunstock; there was doubt whether the grandmother's home contained any ammunition other than bird shot (consistent with Mrs. Turner's wounds); and Kimbrough hid in the back of the house when the sheriff arrived. These facts placed Kimbrough in the vicinity of the Turner home with a shotgun at the time of the assault.

Weighing these factors and deferring to the jury's primary role in resolving credibility and inconsistencies, the court concluded the identification and attendant evidence were sufficient to support the jury's verdict. Regarding the procedural claim about insufficient notice of the lineup hearing, the court noted that defense counsel had received notice, attended, and conceded the lineup's fairness. The appellant's contention that counsel needed time to research the law before the hearing was characterized as a non sequitur, and the court referenced United States v. Wade, Gilbert v. California, and Stovall v. Denno in disposing of that argument.

Holding and Implications

AFFIRMED.

Holding: The Supreme Court of Mississippi affirmed the conviction and twenty-year sentence. The court held that (1) the evidence, including Mrs. Turner's identification and the surrounding circumstances, was sufficient to support the jury's verdict, and (2) the appellant was not deprived of due process by the timing of notice regarding the lineup hearing because defense counsel received notice, attended, and conceded the lineup was fair and non-suggestive.

Implications: The direct effect is that Kimbrough's conviction and sentence were upheld. The opinion applies existing authority concerning deference to jury determinations on credibility and established constitutional standards for pretrial identification procedures; it does not announce or discuss the creation of a new legal precedent beyond application of cited authorities.

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Donald KIMBROUGH v. STATE of Mississippi.

PATTERSON, Chief Justice, for the Court:

Donald Kimbrough was tried in the Circuit Court of Attala County on a charge of armed robbery. From a verdict of guilty and a sentence of twenty years, he appeals, contending the state adduced insufficient evidence to support the conviction, and that inadequate advance notice of the hearing on the state's "Petition to Conduct Lineup" deprived him of due process of law.

At about 9:30 a.m. on February 9, 1979, Mrs. Victor Turner, an elderly widow then alone, was the victim of a robbery committed by a black male in her home in Attala County. Her assailant struck her on the head and shot her in the back with a shotgun before absconding with $47 taken from a family Bible. Miraculously surviving the assault, Mrs. Turner managed to crawl to her telephone and summon the authorities.

When Sheriff Marvin Lawrence arrived, he found Mrs. Turner in the front room of her home seated next to a desk on which there rested a book of blank checks, the top unsigned check being made to the order of "James Clark" in the amount of $5. On February 12, James Clark, half brother of Donald Kimbrough, accompanied Sheriff Lawrence and his aides on a search of a field road running about one mile between the home of Mrs. Turner and the home of Mrs. Alberta Hull, grandmother of both Clark and Kimbrough. Clark discovered and called to the others' attention yet another check, drawn on Mrs. Turner's account and made to the order of "James Clark," which had been discarded or lost along the road.

James Clark lived with Mrs. Hull, and Donald Kimbrough lived just "across the road" in his mother's trailer. Kimbrough and not Clark, however, spent the night of February 8 with Mrs. Hull, Clark having lodged elsewhere with a friend, expecting to go to work the following morning.

Mrs. Turner identified, both in and out of court, Donald Kimbrough as her assailant, although she mistakenly called him by the name "James Clark" immediately after the robbery, at the time of a lineup, and at the time of her in-court identification. The lineup, conducted on March 15, 1979, in the presence of defense counsel, who concedes it was fair and untainted by suggestiveness, involved eight or more persons, including both James Clark and Donald Kimbrough. Mrs. Turner identified Kimbrough as her assailant, although she referred to him as "James Clark." Later, in the sheriff's office, Mrs. Turner pointed to James Clark, out of the presence of Donald Kimbrough, erroneously stating, "that is the man I pointed out in [the lineup]." It is probable that Mrs. Turner's confusion arose from the resemblance of the half brothers, both of whom had for several years lived within a mile of her rural home. It is noteworthy, however, that each time she had the opportunity to view Clark and Kimbrough together, she positively identified Kimbrough as her assailant while referring to him as "James Clark."

The evidence, when viewed most favorable to the state, supports the jury's verdict. We think it clear that Mrs. Turner's confusion was considered nominal, because it was related to the assailant's name and not his identity. In our opinion, it did not destroy her identification of Kimbrough as the person who assaulted and robbed her. The jury, having heard her testimony along with that of the appellant, accepted her identification and rejected the alibi offered by the appellant.

In an out-of-court statement and from the stand, Kimbrough stated he spent the night of February 8 with his grandmother, Alberta Hull, and left before eight the next morning to hunt, carrying his grandmother's twelve-gauge shotgun and ammunition described as "slugs." He testified he bagged a deer in the woods bordering the Natchez Trace and as he threw the deer onto his shoulder, heard a man shout, "Hold it!" Thinking the voice to be that of a warden he retreated into the woods, breaking the stock of his gun in his haste to escape. The stock, according to the appellant, was left behind along the bank of a creek which he jumped as he escaped the site.

As mentioned, the alibi testimony of the appellant was rejected by the jury. This was not unreasonable, in our opinion, because no wardens or other witnesses were produced to show their presence in the area, and a search shortly after the crime failed to disclose the carcass of a deer or the gunstock. Moreover, there exists great doubt as to whether there was any ammunition other than "bird shot" in the home of Mrs. Hull from which the appellant left. Mrs. Turner's wounds resulted from bird shot. Finally, when the sheriff came to investigate, Kimbrough concealed himself in the back of the house. Overall, the testimony of Kimbrough placed him in the vicinity of the Turner home with a shotgun at the time the assault and robbery. This factor, accompanied by the identification by Mrs. Turner, was sufficient, in our opinion, to support the jury's verdict, because its province in matters of credibility is broad. See Madison v. State, 290 So.2d 607 (Miss. 1973); Freeland v. State, 285 So.2d 895 (Miss. 1973); Clanton v. State, 279 So.2d 599 (Miss. 1973); Nash v. State, 278 So.2d 779 (Miss. 1973); Campbell v. State, 278 So.2d 420 (Miss. 1973); and cf. Gandy v. State, 373 So.2d 1042, 1045 (Miss. 1979).

The inconsistencies of the in-court identification go only to the credibility and weight of the evidence, which is a factual determination to be made by the jury. Luckett v. State, 354 So.2d 1119 (Miss. 1978); Vickers v. State, 323 So.2d 743 (Miss. 1975); and Passons v. State, 239 Miss. 629, 124 So.2d 847 (1960).

The appellant's remaining argument is that his counsel received no more than twenty-four hours notice prior to the holding of the March 15, 1979, lineup. However, defense counsel received notice of the lineup and attended. What is more, defense counsel concedes the lineup suffered from no constitutional infirmity whatsoever, all the process that was "due" having been afforded the appellant. We are nevertheless left with the argument that defense counsel should have been given time before the hearing on the "Petition to Conduct Line-up" in order "to research the applicable law," even though that "law" was indisputably followed by securing counsel's presence and eliminating any suggestiveness from the identification procedure. In essence, the appellant argues, "My rights were not violated, but because my lawyer had not enough time to determine whether my rights were violated, my rights were violated." This clearly poses a non sequitur within the contemplation of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

AFFIRMED.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.

KIMBROUGH v. STATE