                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2009-KA-01323-SCT

JERRY LAMAR WHITLOCK

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                         07/07/2009
TRIAL JUDGE:                              HON. SAMAC S. RICHARDSON
COURT FROM WHICH APPEALED:                RANKIN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   OFFICE OF INDIGENT APPEALS
                                          BY: BENJAMIN ALLEN SUBER
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: STEPHANIE BRELAND WOOD
DISTRICT ATTORNEY:                        MICHAEL GUEST
NATURE OF THE CASE:                       CRIMINAL - FELONY
DISPOSITION:                              AFFIRMED - 09/16/2010
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       BEFORE CARLSON, P.J., RANDOLPH AND KITCHENS, JJ.

       CARLSON, PRESIDING JUSTICE, FOR THE COURT:

¶1.    Jerry Lamar Whitlock was convicted for the crime of attempted automobile burglary

in the Circuit Court of Rankin County. Whitlock was sentenced to life without parole as a

habitual offender under Mississippi Code Section 99-19-83. He appealed, alleging specific

errors committed during the course of his trial. Finding Whitlock’s assignments of error to

be without merit, we affirm the judgment of the Rankin County Circuit Court.

              FACTS AND PROCEEDINGS IN THE TRIAL COURT
¶2.    On August 5, 2005, Dottie Smith went to BankPlus in Flowood to obtain coin change

for operating her business over the weekend. As she exited the bank, Smith noticed that

another vehicle was backed into the parking spot beside her vehicle. Smith testified that she

“thought it was kind of strange because all the other parking places were empty and they

were backed in there next to me.” Smith proceeded to her car, unlocked the doors by remote,

and placed her change bags on the back seat. According to Smith, as she closed the back

passenger door, she heard the driver’s door of the other vehicle open. Smith also found this

strange. She locked all the doors of her vehicle with the remote.

¶3.    Smith testified that as she shut the door, she looked up and saw a man standing there,

looking as if he was going into the bank. They were between the two vehicles. According

to Smith, before she had the chance to unlock her door to enter her vehicle, the man placed

his hand on her rear passenger door handle and pulled it. While the man attempted to open

her door, Smith ran to the back of the man’s vehicle. Realizing the door was locked, the man

then yelled at her to unlock the door, and she replied “no.” Smith pushed the panic button

on her remote which caused her car horn to blow. The man then got back into his car and

sped away. Since Smith was standing behind the man’s vehicle, she was able to obtain his

tag number. She immediately ran into the bank, grabbed a deposit slip, and wrote the tag

number on it. As Smith was writing the tag number, she yelled that someone had just tried




                                             2
to rob her. She gave the deposit slip with the tag number written on it to a bank employee

who called 911.1

¶4.    State Trooper Wayne Dearman was monitoring his radio systems at the time of the

incident, and he received information that “[t]wo black males, attempted robbery at

BankPlus.” He also received a vehicle description and the tag number. While Trooper

Dearman was writing the information on a notepad, the vehicle that was described passed

him, and he was able to see part of the license plate. Trooper Dearman then initiated a traffic

stop, and the vehicle turned into a driveway, where he pulled behind it. The driver exited the

vehicle, so Trooper Dearman ordered him to the ground. The passenger acted as if he was

exiting the vehicle to also get on the ground; however, according to Trooper Dearman, the

man kicked off his flip-flops and ran. When Dearman attempted to get his radio, the other

suspect also fled. Trooper Dearman was able to identify the clothing of both suspects.2

¶5.    Officer Sentel Easterling of the Pearl Police Department heard Trooper Dearman on

the radio requesting assistance, so he proceeded to the area. He observed a black male

wearing the clothes Trooper Dearman had described attempting to gain entrance to a

residence. Officer Easterling apprehended the man and handed him over to a Flowood police

officer. The man was wearing a white tank top and dark colored shorts and was identified


       1
        For the benefit of aiding law enforcement officials in locating and apprehending the
perpetrator, Smith described the suspect as a black male wearing a white tank top and dark
shorts.
       2
        Trooper Dearman stated the passenger was wearing a white tank top and blue shorts,
and the driver was wearing a white tee shirt and Hawaiian, or flower design, shorts.

                                              3
as Jerry Lamar Whitlock.3 Before being taken to the Flowood Police Department, Whitlock

was taken to a mini storage facility where the complainant, Smith, positively identified him

as the man who had attempted to break into her car.

¶6.    After a trial in the Circuit Court of Rankin County, Judge Samac S. Richardson

presiding, the jury found Whitlock guilty of attempted automobile burglary.           Judge

Richardson sentenced Whitlock to a term of life imprisonment without parole as a Section

99-19-83 habitual offender. Likewise, Judge Richardson denied Whitlock’s Motion for

Judgment Notwithstanding the Verdict, or in the Alternative, for a New Trial. Aggrieved,

Whitlock appeals to us.

                                        DISCUSSION

¶7.    Whitlock presents three issues for this Court’s consideration: (1) whether the

identification process was so impermissibly suggestive that Whitlock suffered irreparable

misidentification; (2) whether Whitlock’s sentence of life imprisonment without parole as

an habitual offender for attempted automobile burglary is disproportionate to the crime and

constitutes cruel and unusual punishment; and (3) whether the trial court erred in denying

Whitlock’s motion for a new trial because the verdict was against the overwhelming weight

of the evidence.     The issues are restated for the sake of today’s discussion.

       I.        WHETHER THE IDENTIFICATION PROCESS WAS SO
                 IM PE RM ISSIB LY SUGGESTIVE THA T W HITLOCK
                 SUFFERED IRREPARABLE MISIDENTIFICATION.



       3
           Later, the other suspect also was apprehended and identified.

                                               4
¶8.    “The standard of review for admission of evidence is abuse of discretion. However,

when a question of law is raised, the applicable standard of review is de novo.” Hood v.

State, 17 So. 3d 548, 551 (Miss. 2009) (citation omitted). This Court’s “standard of review

for trial court decisions regarding pretrial identification is ‘whether or not substantial credible

evidence supports the trial court’s findings that, considering the totality of the circumstances,

in-court identification testimony was not impermissibly tainted.’” Outerbridge v. State, 947

So. 2d 279, 282 (Miss. 2006) (quoting Roche v. State, 913 So. 2d 306, 310 (Miss. 2005)).

¶9.    Whitlock asserts that the identification procedures performed by the police department

were unfairly suggestive, and thus, all identification stemming from the show-up procedure

should have been inadmissible at trial, including Smith’s in-court identification of him before

the jury. The United States Supreme Court has stated that “‘[t]he practice of showing

suspects singly to persons for the purpose of identification, and not as part of a lineup, has

been widely condemned,’” and this Court has “previously held that ‘pretrial identifications

which are suggestive, without necessity for conducting them in such manner, are

proscribed.’” Roche, 913 So. 2d at 310-11 (citations omitted); see also York v. State, 413 So.

2d 1372, 1383 (Miss. 1982) (citations omitted) (“A showup in which the accused is brought

by an officer to the eyewitness is likewise impermissibly suggestive where there is no

necessity for doing so.”). However, our inquiry does not end with the presence of an

impermissibly suggestive identification. Id. at 311. “Such identification is admissible if,

considering the totality of the circumstances surrounding the identification procedure, the

identification did not give rise to a very substantial likelihood of misidentification.” Id.

                                                5
(citing York, 413 So. 2d at 1383 (quoting Neil v. Biggers, 409 U.S. 188, 199-200, 93 S. Ct.

375, 34 L. Ed. 2d 401 (1972))).

¶10.   In Biggers, the United States Supreme Court laid out the factors to consider in

determining “whether under the ‘totality of the circumstances’ the identification was reliable

even though the confrontation procedure was suggestive”:

       As indicated by our cases, the factors to be considered in evaluating the
       likelihood of misidentification include the opportunity of the witness to view
       the criminal at the time of the crime, the witness’ 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.

Biggers, 409 U.S. at 199.

¶11.   Before addressing the merits of this issue, we pause to set out here additional

information concerning the procedural history of this case. Whitlock was tried three times

on this attempted automobile burglary charge. The first two trials resulted in mistrials, and

in the third trial, Whitlock was found guilty by the jury. Judge William E. Chapman, III,

presided over the first trial, and Judge Samac S. Richardson presided over the second and

third trials. In each of the three trials, Whitlock attempted to have excluded from evidence

the victim’s pretrial out-of-court identification of him shortly after the events which led to

the grand-jury indictment.

¶12.   Prior to the first trial, Judge Chapman conducted a pretrial suppression hearing

concerning the identification evidence.      The victim, Smith, testified as to the events

surrounding the crime, and her testimony at the suppression hearing was consistent with her


                                               6
later testimony at the trial. At the conclusion of the suppression hearing, Judge Chapman

applied the Biggers factors to the evidence before him and denied Whitlock’s motion to

exclude evidence of the victim’s out-of-court identification of Whitlock shortly after the

crime, and the victim’s in-court identification of him during the trial. On this point, Judge

Chapman stated:

       All right, yeah, I just wanted to refresh my recollection relative to these five
       factors. I mean it’s clear [Smith] had ample opportunity to view the accused
       at the time of the crime. And based on her testimony, I’m convinced she had
       a pretty high degree of attention exhibited. It seems to me that there was no
       description in the, it appears to be no description in the statement. I’ve not
       read it, but she didn’t point it out to you, but her testimony is she described to
       the law enforcement officer present. And I don’t think there’s any real dispute
       that her description of [Whitlock] to the law enforcement officer didn’t match
       the defendant as he presented that night. My observation of her testimony was
       she was very certain about his identity, and it was a very short period of time.

       So I find all of those [factors] weigh in the State’s favor. For those reasons,
       the motion to suppress the show-up will be denied, and also relative to the in-
       court identification.

¶13.   Although there was no requirement for him to do so, Judge Richardson, prior to the

commencement of the second trial, revisited this issue and stated, “Judge Chapman ruled on

that and ruled that that evidence was admissible and the posture I’m taking on it is that that

was the correct ruling based on what was presented to the Court at that time.”

¶14.   In today’s case, according to Smith’s trial testimony, she was standing close to

Whitlock at the time of the incident and for a while she did not take her eyes off of him. She

stated they were only inches apart, she had nothing obstructing her view, and Whitlock had

nothing obstructing his face. Smith got a good look at Whitlock and stated that he was


                                               7
wearing a white tank top and dark shorts. At the time of his arrest, Whitlock was wearing

a white tank top and blue shorts. Smith was also a hundred percent sure that she did not

confuse the two suspects, Whitlock and the other occupant of the vehicle. Smith testified that

when she identified Whitlock at the storage facility, only about an hour after the incident,

there was no doubt in her mind that he was, in fact, the man who had attempted to rob her.

¶15.     As this Court stated in York,

         It can thus be observed that an accused who seeks to exclude identification
         testimony based upon an alleged due process violation faces a very heavy
         burden. Even though the pretrial identification is impermissibly suggestive,
         he must still show the conduct gave rise to a very substantial likelihood of
         irreparable misidentification.

York, 413 So. 2d at 1384. Here, Whitlock has not met this very high burden. When

analyzing the Biggers factors, this Court cannot say, based on the circumstances surrounding

the incident and show-up procedure, that “the conduct gave rise to a very substantial

likelihood of irreparable misidentification.” Thus, in today’s case, we find no abuse of

discretion in the trial court’s admission of this identification evidence. This issue is without

merit.

         II.    WHETHER      WHITLOCK’S       SENTENCE     IS
                DISPROPORTIONATE TO THE CRIME AND CONSTITUTES
                CRUEL AND UNUSUAL PUNISHMENT.

¶16.     Generally, a sentence will not be disturbed on appeal if it is within the limits

prescribed by statute. Gibson v. State, 731 So. 2d 1087, 1097 (Miss. 1998) (quoting Hoops

v. State, 681 So. 2d 521, 537-38 (Miss. 1996)) (citation omitted).



                                               8
¶17.   Whitlock argues that a sentence of life imprisonment without parole as an habitual

offender for attempted automobile burglary is disproportionate to the crime and constitutes

cruel and unusual punishment. The trial court sentenced Whitlock as an habitual offender

pursuant to Mississippi Code Section 99-19-83, which states:

       Every person convicted in this state of a felony who shall have been convicted
       twice previously of any felony or federal crime upon charges separately
       brought and arising out of separate incidents at different times and who shall
       have been sentenced to and served separate terms of one (1) year or more in
       any state and/or federal penal institution, whether in this state or elsewhere,
       and where any one (1) of such felonies shall have been a crime of violence
       shall be sentenced to life imprisonment, and such sentence shall not be reduced
       or suspended nor shall such person be eligible for parole or probation.

Miss. Code Ann. § 99-19-83 (Rev. 2007). At the sentencing hearing, evidence was presented

that Whitlock was previously convicted: (1) in 1978 in the Second Judicial District of

Harrison County, Cause Number 1672, for rape; (2) in 1978 in the Second Judicial District

of Harrison County, Cause Number 1673, for house burglary; (3) in 1978 in the Second

Judicial District of Harrison County, Cause Number 1674, for house burglary; (4) in 1978

in the First Judicial District of Harrison County, Cause Number 16308, for burglary; (5) in

1978 in the Second Judicial District of Harrison County, Cause Number 1268, for aggravated

assault; and (6) in 1997 in the First Judicial District of Harrison County, Cause Number

B2401-97-00394, for robbery.

¶18.   Whitlock was sentenced to and served terms of one year or more in a state penal

institution on each of these felony convictions, and at least one of these felonies was a crime

of violence. In fact, Whitlock’s prior convictions involved at least three crimes of violence


                                              9
– rape,4 aggravated assault5 and robbery.6 Thus, it is clear that Whitlock met the criteria to

be sentenced as an habitual offender to life imprisonment without parole under Section 99-

19-83.7

¶19.   Whitlock still maintains that when conducting a proportionality analysis by applying

the factors set forth in Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637

(1983), the conclusion is that Whitlock’s sentence is constitutionally disproportionate to his

offense. See also Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836

(1991). This Court also has stated that “‘[i]n light of Harmelin, it appears that Solem is to

apply only when a threshold comparison of the crime committed to the sentence imposed

leads to an inference of ‘gross disproportionality.’’” Hoops, 681 So. 2d at 538 (quoting

Smallwood v. Johnson, 73 F.3d 1343, 1347 (5th Cir. 1996) (citing Harmelin, 501 U.S. at

1005)). The Mississippi Court of Appeals recently held that a Solem analysis was not




       4
         Hughes v. State, 892 So. 2d 203, 211 (Miss. 2004) (rape, other than statutory rape,
i.e., consensual, nonviolent sex, is a crime of violence).
       5
       Smith v. State, 877 So. 2d 369, 387 (Miss. 2004) (aggravated assault is a felony
involving violence).
       6
           Magee v. State, 542 So. 2d 228, 236 (Miss. 1989) ( robbery is a crime of violence).
       7
        The sentences for Cause Numbers 1672, 1673, 1674, 16308, and 1268 were all
served concurrently. However, this Court has stated: “The question, thus, is whether serving
one year or more on concurrent sentences for separate convictions amounts to serving more
than one year on each sentence. We hold that it does.” Magee v. State, 542 So. 2d 228, 236
(Miss. 1989).



                                               10
required in affirming a life sentence without parole pursuant to Section 99-19-83 for

attempted burglary of an automobile, stating:

       It is clear that under the facts of this case if Hawkins were found guilty of the
       charge of attempted burglary of an automobile, he could be sentenced as a
       habitual offender under section 99-19-83, as he has one previous conviction
       for robbery and two for burglary. It is well established that “[s]entencing is
       within the complete discretion of the trial court and [is] not subject to appellate
       review if it is within the limits prescribed by statute.” Hoops, 681 So. 2d at
       537 (citing Reynolds v. State, 585 So. 2d 753, 756 (Miss. 1991)). We find no
       merit to this issue, as Hawkins’s sentence was within the statutory limits. Thus,
       no further analysis pursuant to Solem is required.

Hawkins v. State, 11 So. 3d 123, 129 (Miss. Ct. App. 2008). As in Hawkins, Whitlock’s

sentence unquestionably was within the limits prescribed by statute, and there is no need for

further analysis. As such, this issue is without merit.

       III.   WHETHER THE VERDICT W AS AGAINST                                      THE
              OVERWHELMING WEIGHT OF THE EVIDENCE.

¶20.   In Whitlock’s final assignment of error, he asserts that the trial court erred in denying

his motion for a new trial because the verdict was against the overwhelming weight of the

evidence. Thus, our standard of review is as follows:

       [This Court] must “accept as true the evidence which supports the verdict and
       [we] will reverse only when convinced that the circuit court has abused its
       discretion in failing to grant a new trial.” A new trial will not be ordered unless
       the verdict is so contrary to the overwhelming weight of the evidence that to
       allow it to stand would sanction “unconscionable injustice.”

Smith v. State, 802 So. 2d 82, 86 (Miss. 2001) (quoting Crawford v. State, 754 So. 2d 1211,

1222 (Miss. 2000)). “It is a fundamental principle of law that a jury verdict will not be

disturbed except in the most extreme of situations. ‘Only in those cases where the verdict


                                               11
is so contrary to the overwhelming weight of the evidence that to allow it to stand would

sanction an unconscionable injustice will this Court disturb it on appeal.’” Coleman v. State,

926 So. 2d 205, 208-09 (Miss. 2006) (citations omitted).

¶21.   Whitlock contends that a new trial is warranted because Smith stated that the driver

of the vehicle had attempted to rob her, but when Trooper Dearman pulled the vehicle over,

Whitlock was the passenger. According to Whitlock, this testimony is conflicting; however,

we must compare Smith’s testimony to the testimony of Investigator Jerry McCue of the

Flowood Police Department. Investigator McCue testified that it came to law enforcement’s

attention through the other occupant of the vehicle that the suspects had made a stop prior

to being pulled over by Trooper Dearman. Reasonable jurors logically could infer that the

two occupants of the vehicle had swapped positions during this stop. Whitlock also argues

that due to the weather, Smith’s perception of the individual she saw at the bank could have

been inaccurate. However, “the jury is the sole judge of the credibility of witnesses, and the

jury’s decision based on conflicting evidence will not be set aside where there is substantial

and believable evidence supporting the verdict.” Billiot v. State, 454 So. 2d 445, 463 (Miss.

1984) (citing Harrigill v. State, 381 So. 2d 619, 623 (Miss. 1980); Gathright v. State, 380

So. 2d 1276, 1278 (Miss. 1980); and Gangloff v. State, 134 So. 2d 481 (1961)). In today’s

case, Smith provided substantial and believable testimony that Whitlock was indeed the man

who had attempted to burglarize her vehicle. She asserted that she had gotten a good look

at him with nothing obstructing her view, and she testified to being a hundred percent sure

that she did not confuse the two suspects.

                                             12
¶22.   Whitlock further asserts that no scientific evidence was admitted showing Whitlock

was the person who attempted to rob Smith. This Court, however, has found that “‘the

testimony of a single uncorroborated witness is sufficient to sustain a conviction.’” Derouen

v. State, 994 So. 2d 748, 752 (Miss. 2008) (quoting Williams v. State, 512 So. 2d 666, 670

(Miss. 1987)). The record before this Court contains substantial and believable evidence that

Whitlock committed the crime of attempted automobile burglary, and the trial court did not

abuse its discretion in failing to grant a new trial. This issue is without merit.

                                      CONCLUSION

¶23.   Based on our discussion today, we affirm the Rankin County Circuit Court’s judgment

of conviction for attempted automobile burglary and sentence of life imprisonment without

parole under Mississippi Code Section 99-19-83, entered against Jerry Lamar Whitlock.

¶24. CONVICTION OF ATTEMPTED AUTOMOBILE BURGLARY AND
SENTENCE OF LIFE IMPRISONMENT, WITHOUT PAROLE OR PROBATION,
AS A HABITUAL OFFENDER, IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE SHALL NOT BE
REDUCED OR SUSPENDED.

    WALLER, C.J., DICKINSON, RANDOLPH, LAMAR, KITCHENS,
CHANDLER AND PIERCE, JJ., CONCUR. GRAVES, P.J., CONCURS IN RESULT
ONLY.




                                              13
