                                  IN THE COURT OF APPEALS
                                            OF THE
                                     STATE OF MISSISSIPPI
                                      NO. 94-KA-00916 COA
TRAVIS LEVY                                                                          APPELLANT
v.
STATE OF MISSISSIPPI                                                                   APPELLEE
  THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED,
                          PURSUANT TO M.R.A.P. 35-B
DATE OF JUDGMENT:                                   09/12/94
TRIAL JUDGE:                                        HON. MARCUS D. GORDON
COURT FROM WHICH APPEALED:                          LEAKE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                            EDMUND JULIUS PHILLIPS JR.
                                                    CHOKWE LUMUMBA
ATTORNEY FOR APPELLEE:                              OFFICE OF THE ATTORNEY GENERAL
                                                    BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY:                                  KEN TURNER
NATURE OF THE CASE:                                 CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                            ARMED ROBBERY: SENTENCED TO
                                                    SERVE A TERM OF 40 YRS WITH MDOC; IT
                                                    IS ORDERED THAT HE SERVE HIS ENTIRE
                                                    SENTENCE AT THE MDOC
DISPOSITION:                                        AFFIRMED - 11/18/97
MOTION FOR REHEARING FILED:                         12/17/97
CERTIORARI FILED:                                   3/19/98
MANDATE ISSUED:                                     6/4/98



BEFORE McMILLIN, P.J., HINKEBEIN, AND SOUTHWICK, JJ.

McMILLIN, P.J., FOR THE COURT:

Travis Levy was convicted of armed robbery by a jury in the Circuit Court of Leake County. He
appeals to this Court raising three issues that he claims warrant a reversal of his conviction. We
conclude that the issues are without merit and affirm the conviction.

                                                  I.

                                                Facts
A convenience store in Leake County was robbed at gunpoint. The defendant, Travis Levy, was
subsequently arrested in connection with another armed robbery in neighboring Scott County. Based
on the similarity in the two crimes, investigating officers arranged a lineup to be viewed by the two
clerks who were in the store at the time of the Leake County robbery. The two clerks viewed the
lineup separately and both of them selected Levy as the robber. He was subsequently indicted, tried,
and convicted. This appeal ensued.

                                                    II.

                              Admissibility of the Lineup Identification

Levy argues on appeal that the trial court erred in permitting the State, during re-direct examination
of one of the clerks, to elicit the fact that the witness had previously identified the suspect in a police
lineup. The trial court, for reasons not articulated on the record, had previously sustained a defense
objection to testimony about the pre-trial lineup while the clerk was on direct. The court, in
permitting the belated introduction of the lineup evidence, asserted that the defendant had "opened
the door" to the evidence by extensively cross-examining the witness on his ability to make a positive
identification of the robber. There was evidence that the robber's face was obscured by a pulled-down
cap during the robbery, suggesting limited opportunity to view the robber's facial features. Defense
counsel had also established that the clerk was not acquainted with the alleged robber prior to the
incident, so that no claim could be made that familiarity with the suspect made identification easier
and more credible.

Our task in analyzing this issue is made difficult by the fact that the record does not reveal the legal
basis upon which the trial court originally excluded evidence of the pre-trial lineup identification.
Such information is routinely admitted, and it has been correctly observed that identification in a
properly-conducted lineup has more probative value than an in-court identification where the accused
is sitting conspicuously alone in the courtroom. Fells v. State, 345 So.2d 618, 621-22 (Miss. 1977);
Livingston v. State, 519 So.2d 1218, 1221 (Miss. 1988). If lineup evidence is to be excluded, it is
normally on some claim of a violation of the suspect's constitutional rights, e.g., a claim that the
lineup was conducted without benefit of counsel in violation of the Sixth Amendment, or that the
lineup was constituted so as to be unduly suggestive in violation of the Fourteenth Amendment.
United States v. Wade, 388 U.S. 218, 235-238 (1967); York v. State, 413 So.2d 1372, 1383 (Miss.
1982). Levy's counsel never articulated one of these arguments, nor did he give any other specific
basis to exclude the lineup evidence. The trial court did not state the basis for its initial ruling
excluding the witness's testimony about the lineup.

We put little stock in the proposition that the defendant's attempt to weaken the impact of the
robbery victim's in-court identification "opened the door" to otherwise-inadmissible lineup evidence.
Proof that the defendant is, in fact, the perpetrator of the crime is always a central issue in a criminal
prosecution. It is to be expected that, whenever appropriate, the defense will do everything it can to
attack any witness's ability to identify the defendant as the culprit. To do anything less if the
opportunity presents itself would be a fundamental dereliction of defense counsel's duty. To say that
such a defense effort can open the door to evidence excluded on constitutional considerations is not a
proposition that can withstand scrutiny.

Nevertheless, after a careful sifting of this record, we are convinced that the trial court was in error in
its initial ruling excluding the lineup identification information. In the absence of anything in the
record suggesting the reason the evidence was originally excluded, we have been unable to
independently discover a valid basis for denying its admission when first offered. We, therefore, treat
this as a matter of the trial court correcting, during the course of the trial, a previously incorrect
ruling excluding admissible evidence. Though we are satisfied that the trial court admitted the
evidence for the wrong reason, we do not reverse when we are convinced that the trial court has
reached the right result for reasons with which we might disagree. Jackson v. State, 684 So.2d 1213,
1232 (Miss. 1996). Because the trial court permitted defense counsel additional opportunity to
cross-examine the witness about the lineup after the evidence came in on redirect, there was no
prejudice arising out of the untimely introduction of evidence that insofar as the record reveals, was
admissible the first time the State offered it. Evans v. State, 499 So.2d 781, 783 (Miss. 1986). There
is, therefore, no error requiring reversal on this issue.

                                                  III.

                                      Evidence of Other Crimes

The State called a former highway patrol criminal investigator as a witness for the sole purpose of
establishing the chain of custody for certain items of demonstrative evidence the State intended to
introduce. On cross-examination, defense counsel turned, once again, to the circumstances of the
pre-arrest lineup and quizzed the witness on the reason the lineup was conducted and the methods
employed. Defense counsel indirectly stressed again and again, by the nature of his questions, that
when the lineup was conducted, Levy was incarcerated in connection with another crime and there
was no particular suspicion of his involvement in the Leake County robbery. In response to one
question, the witness responded that Levy became a suspect only after an arrest warrant had been
served on him. On redirect, the State sought to clarify that the warrant the officer was speaking about
was for Levy's arrest on the unrelated Scott County crime. Defense counsel objected on the basis of
relevancy, and the trial court overruled the objection. The prosecutor then repeated the question in
exactly the same language, and the witness responded, "I'm referring to a warrant for armed robbery
for Travis Levy and Marlon Levy." After the answer was given, defense counsel said, "I object and
move for a mistrial." The court sustained the objection, denied the mistrial motion, and admonished
the jury to "disregard the statement of the witness regarding any other person."

Levy, on appeal, argues that this sequence of events constituted reversible error. His claim is that the
response was evidence of other crimes elicited by the State for no purpose other than to demonstrate
the defendant's propensity to commit crimes of the nature charged. Such evidence is inadmissible
under Mississippi Rule of Evidence 404(b). The State counters that the defense had opened the door
to such evidence by its prior cross-examination of the witness.

This Court is satisfied, based on our review of defense counsel's examination of this witness, that
Levy's counsel was, indeed, seeking to make the point that there was no particular basis to suspect
Levy's involvement in the Leake County crime at the time of the lineup. Having elected to pursue
such a trial strategy, the defendant cannot fairly argue that he was prejudiced when the State
subsequently sought to make the same point.

We are, nevertheless, of the opinion that there was little relevance to the State's inquiry. The only
purpose we can see to the inquiry was to drive home the fact that Levy had been arrested for another,
similar, crime. Even where defense counsel has "opened the door" to otherwise-inadmissible
evidence, such evidence still ought to have some logical relevance to the ultimate issue being tried by
the jury. We can discover none in this inquiry.

Despite these considerations, we conclude that only the most obtuse juror would have been unaware
that Levy had been arrested and charged with another robbery by the time this unnecessary and
irrelevant response was elicited. The information had been provided by the defense as a conscious part
of its trial strategy. The prejudicial effect of the evidence was, under these circumstances, non-
existent, and we conclude that such mishandling of this evidence as may have occurred was, without
question, harmless error.




                                                  IV.

                                          Closing Argument

During summation to the jury, defense counsel reminded the jury of the defendant's testimony that he
did not commit the crime. He then posed the rhetorical question, "What else can he say?" In the
State's final response, the prosecuting attorney answered that argument by stating, "Well, he could
have said where he was that night, if he wasn't at the store. Did he tell you an alibi?" Defense counsel
interposed an objection but declined to state the grounds for the objection before the jury. Instead, he
requested to be heard on the objection in a bench conference. The bench conference was not
recorded, and the trial court made no announcement as to its ruling at the conclusion of the
conference. Thus, this Court has no way of knowing the basis for the objection or how the trial court
ruled on the objection. The only thing the record reflects is that the State resumed its summation
without returning to the "alibi evidence" theme. This Court finds that any error that might have
occurred as a result of the prosecutor's comments has not been preserved for review on appeal, and
we decline to reach the merits of the argument. Davis v. State, 406 So.2d 795, 801 (Miss. 1981).

This Court, on its own motion, notes that the trial court's judgment of sentence contains the
following provision: "The Court having found the Defendant to be dangerous to others, it is, hereby,
ordered that he serve his entire sentence at the Mississippi State Penitentiary at Parchman,
Mississippi." This Court is uncertain whether this is an attempt to deny this defendant the possibility
of parol or to mandate to the Department of Corrections in which of its institutions it shall
incarcerate the defendant. In either event, this Court, on its own motion, finds this portion of the
judgment of sentence to be beyond the sentencing authority of the trial court and order it stricken
from the judgment. We further order that the trial court enter an appropriate amended judgment
deleting this provision and forward a certified copy thereof to the Mississippi Department of
Corrections.

THE JUDGMENT OF THE CIRCUIT COURT OF LEAKE COUNTY OF CONVICTION OF
ARMED ROBBERY AND SENTENCE OF FORTY YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED EXCEPT THAT
PORTION OF THE JUDGMENT DIRECTING THE APPELLANT TO SERVE HIS ENTIRE
SENTENCE AT THE MISSISSIPPI STATE PENITENTIARY AT PARCHMAN,
MISSISSIPPI, IS HEREBY STRICKEN. COSTS OF THIS APPEAL ARE ASSESSED TO
LEAKE COUNTY.


BRIDGES, C.J., THOMAS, P.J., COLEMAN, DIAZ, HERRING, HINKEBEIN, KING,
PAYNE, AND SOUTHWICK, JJ., CONCUR.
