A suggestive photo lineup does not automatically exclude the identification


In 2010, Anthony Nichols and his girlfriend, Haley Brooke Terrell, and their friend, Jarron Pappas, traveled from McComb to Brookhaven to sell a pit bull dog. The trio first talked to Pappas’s friend, Brent Fells, about purchasing the dog. During this conversation, a friend of Fells approached and expressed an interest in the dog; he also asked for a ride. The man told the trio that his name was “Little Black.” During the ride, Little Black gave Nichols drugs in exchange for the dog. Little Black gave Nichols his phone number and told him that if he needed anything else to give him a call. Nichols programmed the number into his cell phone under the contact name “Black.”

The next evening, Nichols, Terrell, and Pappas returned to Brookhaven to purchase more drugs from Little Black. On this trip, the trio was accompanied by Cory Harris and Dorothy Crawford. Pappas pulled up to the designated location, Happy Food Mart, and Little Black approached the vehicle. Little Black instructed Pappas to “kill the car and turn off the lights.” Little Black then walked to a nearby car, returned with drugs, and handed them to Nichols. When Nichols tried to show the drugs to Pappas, Little Black reached for money that was in Nichols’s lap and then pulled out a gun, demanding that Nichols give him the money. Little Black and Nichols began to tussle, and Little Black shot Nichols in the head. Pappas drove Nichols to the hospital, and he later died from his injuries.

The four eyewitnesses – Pappas, Harris, Terrell, and Crawford – were asked to identify the shooter from photo lineups. Pappas was shown a one-page photo lineup, and he identified the defendant, Ahmad Butler, as the shooter. The suspects in the lineup were pictured standing beside a height marker. Butler was the only suspect within six inches of the height description that Pappas supposedly had given the police.

Harris was shown a different one-page photo lineup, and he also picked Butler as the shooter. Harris later told Pappas that he was not sure he had identified the right person. Terrell was shown an array of single photos, from which she first chose Butler, then changed her mind and chose another suspect. Crawford could not identify the shooter from a photo lineup.

Detective Bobby Bell testified that the witnesses had referred to the shooter as “Black.” Pappas and Terrell testified at trial that they knew the shooter as “Black.” Although Fells was not present when Nichols was shot, he testified that Butler was present at the dog sale the night before the murder. Fells also testified that the day after the murder, Butler admitted to Fells that he had shot the “dude that had the dog.” Detective Bell asked Fells to look at a photo lineup to identify the man he had introduced to Nichols the night before the shooting, who was the same man who had told Fells that he had shot the “dude that had the dog.” Fells identified Butler. Fells had known Butler for about nine years prior to the incident.

All four eyewitnesses – Pappas, Harris, Terrell, and Crawford – positively identified Butler in open court as the person who had shot Nichols. Butler was convicted of manslaughter and sentenced to 20 years in prison. On appeal, he argued the photo lineup was improperly admitted. MSC affirmed.


A. The photo lineup shown to Pappas was impermissibly suggestive

Butler claims the lineup shown to Pappas was suggestive because each of the photos had a height ruler beside the person in the picture, and Butler was the only suspect within six inches of the height description allegedly given by Pappas. To be excluded, an out-of-court identification must have resulted from an identification procedure that was so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification. See U.S. Supreme Court case Neil v. Biggers, 409 U.S. 188 (1972).

Where the defendant is the only one depicted with a distinctive feature, courts usually will find the lineup to be impermissibly suggestive. See MSC Bankston v. State, 391 So. 2d 1005 (Miss. 1980), where defendant was the only one with a mustache, and victim specifically remembered the robber had a mustache, the photo lineup was impermissibly suggestive. See also MCOA Shaw, where lineup was suggestive where defendant was the only suspect with a large Afro hair style; plus, defendant was holding a whiteboard displaying the date of the crime.

On the other hand, “minor differences” with the suspects or differences in the photograph backgrounds will not render a lineup impermissibly suggestive. See MCOA Jones, where defendant was the only one wearing a coat, difference was minor and not impermissibly suggestive; MCOA Dennis, where defendant’s picture was slightly larger than the others and the others were marked “Carroll Co. Det. Center,” the differences were minor and lineup was not impermissibly suggestive); MCOA Stradford, absence of criminal identification tags did not single out defendants; MCOA Anderson, photos that differ in technique and background are not so distinctive as to single out a suspect impermissibly. MSC has held that a photo lineup in which the suspect was the only one wearing a baseball cap, when the assailant’s description included a baseball cap, had a suggestion of impermissibility, but was not so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification. See Jones v. State, 504 So. 2d 1196 (Miss. 1987).

In Wilson, the defendant claimed that a photo lineup was impermissibly suggestive because he was two to three inches taller than the other suspects in the photos according to height charts in the photo background. MCOA found that a height difference of two or three inches among six suspects was not a notable difference that would render the lineup impermissibly suggestive. We find that a height difference of two or three inches is not as distinct as a height difference of six inches; the significant height difference in this case is more akin to a distinctive feature that is suggestive.

We find that the ruler showing the height of each suspect, considered in light of the testimony that Pappas thought the shooter was five-feet- five-inches tall and the significant height difference between Butler and the other suspects in the lineup, rises to the level of an impermissible suggestion. The test is not whether the witness noticed the distinction or whether the suspect was intentionally singled out, the test is whether the defendant was conspicuously singled out in some manner from the others.

B. The pretrial identification by Pappas was reliable

An unnecessarily suggestive pretrial identification is not automatically excluded; rather, evidence of a suggestive out-of-court identification will be admissible if, from a totality of the circumstances, the identification was reliable.

In Biggers, the United States Supreme Court articulated five factors to consider when evaluating, from the totality of the circumstances, whether an out-of-court identification carries a substantial likelihood of misidentification:

[1] the opportunity of the witness to view the criminal at the time of the crime, [2] the witness’ degree of attention, [3] the accuracy of the witness’ prior description of the criminal, [4] the level of certainty demonstrated by the witness at the confrontation, and [5] the length of time between the crime and the confrontation.

Taking the Biggers factors into account, we conclude that Pappas’s identification was reliable. Pappas testified that he rode beside the shooter in a car for forty-five minutes the night before the shooting. Pappas also was present the next night when the shooting occurred, sitting in the driver’s seat of the car when Nichols was shot while sitting in the back seat. The shooter spoke directly to Pappas when he told Pappas to turn off the car and the lights. All the witnesses testified that the light was on inside the vehicle, and Detective Bell testified that the area where the shooting occurred had “pretty good lighting.” Pappas identified Butler quickly, after stating with confidence that he could identify the shooter. The identification was on June 18, the day after the shooting. Further, Pappas testified that he did not notice the height markers in the photographs. Pappas testified at the suppression hearing that he did not recall saying that he thought the shooter was about five-feet-five-inches tall, so the height markers may have meant nothing to him even if he had noticed them. Each of the Biggers factors weighs in favor of reliability.

C. The in-court identification by Pappas was reliable

Again, if the pretrial identification procedure was impermissibly suggestive, the Biggers factors should be considered to determine reliability.

As set forth above, we determined that the photo lineup shown to Pappas, in which Butler was the only suspect within six inches of the height description supposedly given by Pappas, was impermissibly suggestive. However, applying the Biggers factors, Pappas’s pretrial identification of Butler was reliable. The same is true for Pappas’s in-court identification of Butler. The only factor that weighs against reliability for the in-court identification is the “length of time between the crime and confrontation.” A year had passed between the shooting and the day Pappas saw Butler in court. However, as set forth above, the remaining factors weigh in favor of reliability, thus, we find that Pappas’s in-court identification was reliable.

D. Whether Terrell’s in-court identification of Butler was based on an impermissibly suggestive pretrial lineup

Butler claims that the pretrial lineup shown to Terrell was impermissibly suggestive because she was shown an individual photograph of Butler. Butler adds that, because she ultimately chose a different suspect from the photo lineup, Terrell’s in-court identification of Butler was unreliable.

Butler first contends that Terrell was shown a single photo, but later states that she was shown a photographic array. Certainly, for Terrell to change her mind and pick another suspect, she must have been shown more than one photo. Butler points out that the practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned.

That rule does not apply in this case, because, although Terrell was shown the photos one at a time, she was not shown only one photograph. In Burks, we said that pretrial photograph identifications have been generally upheld if the witnesses view the photographs separately and if there is no emphasis placed on certain photographs as opposed to others. Because there is no evidence that the pretrial lineup was impermissibly suggestive, we need not consider the Biggers factors.

Although Terrell first identified Butler in the pretrial photo array, she changed her mind and chose someone else. This supports Butler’s defense, as it creates a jury question as to Terrell’s reliability and credibility. This Court will not reweigh the credibility of witnesses.