Denzel Smith v. State of Mississippi;

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2019-KA-00758-COA

DENZEL SMITH APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 03/21/2019
TRIAL JUDGE: HON. CHARLES E. WEBSTER
COURT FROM WHICH APPEALED: QUITMAN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: MOLLIE MARIE McMILLIN
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY: BRENDA FAY MITCHELL
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 09/08/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE WILSON, P.J., WESTBROOKS AND McDONALD, JJ.

WILSON, P.J., FOR THE COURT:

¶1. Following a jury trial in the Quitman County Circuit Court, Denzel Smith was

convicted of two counts of burglary of a dwelling. On appeal, Smith argues that the trial

court erred by allowing a witness to testify that she identified Smith after she saw his

Facebook profile picture. We hold that the trial judge did not err based on the evidence

before him at the time of his ruling. We also hold that Smith waived his claim that the

identification was tainted by improper police influence because Smith failed to assert such

an objection during trial. Therefore, we affirm.

FACTS AND PROCEDURAL HISTORY
¶2. In the early morning hours of April 26, 2017, two nearby houses in Lambert were

burglarized. Around 12:30 or 1 a.m., Chetonia Mays woke up and saw a man standing at her

bedroom door. She screamed, and the man quickly ran out the back door and fled on foot.

Mays called 911, and Officer Austin Hancock of the Lambert Police Department responded.

Hancock found a chair propped under one of the home’s rear windows, and the screen on the

window had been cut and removed.

¶3. Later that morning, John and Joyce Lewis, who lived about a block away from Mays,

discovered that someone had broken into their house during the night by cutting through a

plexiglass window and window screen. The Lewises’ cell phones, which they had left on a

dresser, were missing. John Lewis also testified that there was noticeably less gas in his car

than there had been when he arrived home the night before.

¶4. Hancock investigated the burglary of the Lewises’ house and learned that their

neighbor, Ashley Adams, had seen the burglar. Adams gave a written statement implicating

Denzel Smith in the burglary. Adams’s description of Smith’s clothing and appearance was

consistent with a description Mays had provided of the man who broke into her home.

¶5. Smith was arrested at a relative’s house in Lambert. When Hancock knocked on the

front door of the house, the person who answered told him that Smith was not there. Smith

then attempted to flee through a rear window of the house, but he was apprehended and

placed under arrest.

¶6. At Smith’s trial, Adams testified that she heard a loud noise around 2 a.m. on April

26. She looked out her window and saw a man appear from behind the Lewises’ house.

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Adams could see the man clearly because there was light coming from a streetlight and from

the Lewises’ porch light. Adams identified the man as Denzel Smith. She knew Smith

because she had gone to school with him for a number of years and had “hooked up” with

him “once or twice” several years earlier.

¶7. Adams watched Smith walk to the trunk of the Lewises’ car and then to the front door

of the Lewises’ house, but she could not see whether he went inside. Adams stopped

watching Smith and went to bed because she assumed that Smith was “supposed to be there.”

She looked out her window again a few minutes later when she heard the Lewises’ car start

and drive away, but she could not see who was driving. A few minutes later, Adams heard

the car return. She looked out her window again and saw Smith standing near the car.

¶8. At trial, Mays testified that the man who broke into her home was thin and about six

feet tall, had a haircut “like a mohawk,” and wore blue jeans and a red and blue coat. She

stated that she was not able to see the man’s face. Mays testified that after the burglary, she

“did a little more investigating” and “called around,” and “that’s when names starting coming

up.” Defense counsel then objected on the grounds of hearsay and relevance, and the court

sent the jury out.

¶9. Outside the presence of the jury, defense counsel eventually moved for a mistrial.

However, the judge denied the motion, finding that Mays’s brief testimony about her

investigation and calling around did not warrant a mistrial. The judge and counsel then

engaged in an extended discussion about what further testimony Mays could give, and the

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judge ultimately allowed the State to make a proffer of Smith’s additional testimony outside

the presence of the jury. Mays testified that “the first time that [she] heard” Smith’s name

“was at the beauty shop.” Mays testified that she then found Smith’s Facebook page and

identified him as the burglar from his profile picture. The judge ruled that Mays could testify

that she identified Smith from his Facebook page but should not testify about anything

specific that she heard at the beauty shop.

¶10. The trial resumed, and Mays’s testimony on direct examination was consistent with

her proffer. She testified that she first heard Smith’s name at the beauty shop, not from law

enforcement. She testified that she then found Smith’s page on Facebook, “and when his

profile picture came up, it was the person that was in [her] house.” Mays then identified

Smith in court as the burglar.

¶11. On cross-examination, defense counsel asked Mays whether she had already given the

police a different name before she ever heard Smith’s name or identified him as the burglar.

Mays admitted that she had done some “investigating” the morning after the burglary and

gave Police Chief Marvin Pryor the name “Jasper Booker.” Mays testified that Pryor then

suggested the name “Denzel Smith” and that she went to the beauty shop after Pryor

suggested Smith’s name. Mays testified that she heard Smith’s name again from others at

the beauty shop. Mays also testified that Pryor showed her photographs of both Booker and

Smith and that she “picked [Smith] in front of Marvin Pryor.” Mays stated that she had made

a “mistake” in her testimony on direct examination and that she actually did see “a glimpse

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of [the burglar’s] face.” Mays further testified:

Q. So when somebody in the beauty shop said Denzel Smith, . . . Chief
Pryor had already told you Denzel Smith; correct?

A. Correct.

Q. So when you heard it two times, that’s when you went to Facebook?

A. Well, yeah -- yes, sir.

Q. All right. And then from looking at his Facebook page, after Chief
Pryor had done already told you it’s Denzel Smith --

A. Correct.

Q. -- that’s when you made your positive identification; correct?

A. Correct.

Mays ultimately testified that she was “100 percent sure” that Smith was the man whom she

saw in her home.

¶12. After Mays’s testimony concluded and the jury left the courtroom, the judge stated

that Mays’s testimony was not what he expected. The judge stated that he had been “under

the impression” that Mays would testify that she first heard Smith’s name at the beauty shop,

that she then found Smith on Facebook and identified him from his profile picture, and that

she then gave Smith’s name to law enforcement. The judge asked why he had been “left with

that impression” after the hearing outside the presence of the jury. The assistant district

attorney (ADA) answered, “Your Honor, because that was the impression that I ha[d], and

I think that the transcript would support that when I initially asked her, on my direct

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examination, that was the testimony she gave.” The judge asked, “What happened?” The

ADA agreed that Mays’s testimony changed on cross-examination. The ADA stated that she

asked for a proffer in part because she wanted to make sure that Mays first heard Smith’s

name at the beauty shop. The ADA pointed out that that was Mays’s testimony both in her

proffer and again on direct examination. The judged stated, “Well, it certainly took a turn.”

The ADA stated, “Well, your Honor, it was a surprise turn for us all.” The proceedings then

concluded for the day with no further discussion of the issue.

¶13. At the conclusion of trial, the jury found Smith guilty of two counts of burglary of an

occupied dwelling.1 The court sentenced Smith to twelve years in the custody of the

Department of Corrections, with five years suspended and seven years to serve.

ANALYSIS

¶14. On appeal, Smith argues that Mays’s identification of him from his Facebook profile

picture was the equivalent of an impermissible “suggestive lineup or suggestive show-up

identification” because Chief Pryor had previously suggested his name to Smith. This

argument fails because Smith did not raise the issue at trial, and the trial judge did not err by

allowing Mays’s testimony based on her testimony during her proffer.

¶15. In some cases, due process may require the exclusion of an eyewitness identification

“when the police have arranged suggestive circumstances leading the witness to identify a

particular person as the perpetrator of a crime.” Perry v. New Hampshire, 565 U.S. 228, 232

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Smith was also indicted for automobile theft for taking the Lewises’ car, but the jury
found him not guilty of that count.

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(2012). “An identification infected by improper police influence . . . is not automatically

excluded.” Id. A trial judge should exclude the identification only if improper police

influence created “a very substantial likelihood of irreparable misidentification.” Id. (quoting

Simmons v. United States, 390 U.S. 377, 384 (1968)). But identification evidence should be

admitted if its “indicia of reliability . . . outweigh the corrupting effect of the police-arranged

suggestive circumstances.” Id. The trial judge must consider the “totality of the

circumstances” and the so-called “Biggers factors” to determine whether improper police

influence requires the suppression of an eyewitness identification. Id. at 238-40 & n.5

(discussing Neil v. Biggers, 409 U.S. 188 (1972)).

¶16. However, not “all suggestive circumstances raise due process concerns warranting a

pretrial ruling.” Id. at 232 n.1. No such “pretrial screening for reliability” is required in

“cases in which the suggestive circumstances” surrounding an identification “were not

arranged by law enforcement officers.” Id. at 232. This is because “what triggers due

process concerns is police use of an unnecessarily suggestive identification procedure.” Id.

at 232 n.1 (emphasis added). If an identification is not tainted by any improper police

influence, then it is up to the jury—not the judge—to determine whether the identification

is reliable. Id. at 245. In such cases, the defendant is protected by other safeguards, such as

his right to confront and cross-examine the witness with the assistance of counsel. Id. at 245-

46; accord Ward v. State, 283 So. 3d 258, 262 (¶15) (Miss. Ct. App. 2019).

¶17. In this case, Mays’s proffer testimony did not reveal any improper police influence.

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In her proffer, Mays specifically testified that she first heard Smith’s name at the beauty shop

and then took it upon herself to look up Smith on Facebook. Therefore, the trial judge’s

ruling was correct based on the evidence before him when he ruled.

¶18. Moreover, Smith’s argument on appeal was not presented to the trial judge. On

appeal, Smith argues that Mays’s identification was tainted by Chief Pryor’s suggestion that

Smith was the burglar and that the identification should have been excluded based on an

application of the Biggers factors. However, Smith did not make this argument in the trial

court. Smith initially asserted a hearsay objection to Mays’s testimony, and he never

articulated an objection based on due process, the Biggers factors, or improper police

influence. It is well-settled that “an objection on one or more specific grounds constitutes

a waiver of all other grounds.” Fleming v. State, 604 So.2d 280, 292 (Miss. 1992); accord,

e.g., Whittaker v. State, 262 So. 3d 531, 534 (¶¶10-12) (Miss. 2019). In addition,

“[c]onstitutional arguments not asserted at trial are waived.” Fleming, 604 So. 2d at 292.

“This Court cannot find that a trial judge committed reversible error on a matter not brought

before him or her to consider.” Smith v. State, 986 So. 2d 290, 295 (¶13) (Miss. 2008).

Because Smith failed to assert an objection during trial based on improper police influence

or the Biggers factors, the issue is procedurally barred on appeal.

¶19. There is a good reason that such an objection must be asserted at trial. As discussed

above, an identification made under impermissibly suggestive circumstances is not per se

inadmissible. Whitlock v. State, 47 So. 3d 668, 672 (¶9) (Miss. 2010). Rather, if such an

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objection is raised, the trial judge must consider the evidence and the Biggers factors and

make a preliminary finding of fact as to whether, “considering the totality of the

circumstances,” the identification procedures created “a very substantial likelihood of

misidentification.” Id. at 671-72 (¶¶8-9) (quoting Roche v. State, 913 So. 2d 306, 311 (¶14)

(Miss. 2005)). “[A]n accused who seeks to exclude identification testimony based upon an

alleged due process violation faces a very heavy burden.” Id. at 673 (¶15) (quoting York v.

State, 413 So. 2d 1372, 1384 (Miss. 1982)). And the trial judge’s findings on this issue will

not be disturbed if they are supported by “substantial credible evidence.” Id. at 672 (¶8)

(quoting Outerbridge v. State, 947 So. 2d 279, 282 (¶8) (Miss. 2006)). That is, the “trial

court’s ruling on the admissibility of a witness identification is reviewed for clear error.”

McDowell v. State, 807 So. 2d 413, 419 (¶12) (Miss. 2001) (emphasis added). In the present

case, because Smith failed to raise this issue at trial, the trial judge did not make any findings

of fact or any ruling that an appellate court can review. This Court cannot review findings

or rulings on issues that the trial judge was never called upon to address. See Triplett v.

State, 264 So. 3d 808, 816-18 (¶¶27, 34-35) (Miss. Ct. App. 2018), cert. denied, 265 So. 3d

180 (Miss. 2019). As a result, Smith’s argument on appeal is procedurally barred.

¶20. We also note that the trial judge in this case provided Smith with a prime opportunity

to make the argument that he now raises for the first time on appeal. As discussed above, the

trial judge’s initial ruling was correct based on Mays’s proffer (as well as her testimony on

direct examination), but Mays’s testimony changed significantly under cross-examination.

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It was Mays’s testimony on cross-examination that created the issue that Smith raises on

appeal. After Mays’s testimony ended and outside the presence of the jury, the trial judge

expressed surprise about the change in Mays’s testimony and pressed the State for an

explanation as to the reason for it. At this point, the issue was teed up for Smith. He could

have moved for a mistrial or asked the trial judge to strike and instruct the jury to disregard

Mays’s identification testimony. But Smith did neither. He simply proceeded with the trial.

Perhaps this was a strategic decision. Mays had been fairly well impeached on cross-

examination, and counsel may have thought it was better to “take his chances with the jury

on a favorable verdict” than to move for a mistrial. Blackwell v. State, 44 So. 2d 409, 410

(Miss. 1950). However, such a decision waives the issue on appeal. Id.

CONCLUSION

¶21. The trial judge’s ruling that Mays could testify about her identification of Smith via

Facebook was correct based on the evidence before the judge at the time of his ruling. Smith

waived his due process objection to the identification by failing to raise the issue at trial.

¶22. AFFIRMED.

BARNES, C.J., CARLTON, P.J., GREENLEE, WESTBROOKS, LAWRENCE
AND McCARTY, JJ., CONCUR. McDONALD, J., CONCURS IN RESULT ONLY
WITHOUT SEPARATE WRITTEN OPINION.

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