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absence of criminal identification tags in photo lineup did not single out defendants

Facts

In 1998, Tim Seese, a delivery man for Tom’s snack foods, parked the company delivery van in front of Laird’s Hospital in Union, Mississippi. Seese left the doors of the van open as he was inside of the hospital making an inventory of the snack machines and refilling them. Sherry Whinery and Faye Walker, two of the hospital’s employees, approached Seese to inform him that they had witnessed two individuals take something from the delivery van driven by Seese. Upon returning to the van, Seese ascertained that between $500 to $600 in coins and one dollar bills was missing from the van.

Whinery and Walker provided a detailed description of the thieves to the police, including the fact that they were two black men. As well, Whinery and Walker gave a detailed description of the car in which the perpetrators drove away, including the make and color of the car, and the Alabama license plate number. A report was then radioed out to all nearby law enforcement agents. Soon after, the police pulled over a vehicle matching the description given by Whinery and Walker. The car was occupied by James Stradford and Bonnie Richards Burks. Burks and Stradford were immediately apprehended and a search of the vehicle ensued. No money was found in the car at the time of the search; however, it was later recovered by a highway maintenance worker along a roadside, apparently having been dumped there after the crime.

About two hours after Burks and Stradford were arrested, Whinery and Walker were shown photographs of six black men. At that time, they identified Burks and Stradford as the men they saw robbing the delivery van at the hospital. Stradford was convicted of grand larceny and sentenced to five years. On appeal, he argued the photo lineup was impermissibly suggestive. MCOA affirmed.

Analysis

In Wilson, we said that MSC has established that a photographic array containing pictures of the defendant viewed by the victim (or witnesses) is not unduly prejudicial unless the defendant’s photograph is notably different from the remaining photographs or the officer conducting the photo line-up makes some comment suggesting the identification of the defendant. Further, even if the pretrial photo line- up is determined to be unduly suggestive, a later in-court identification is still perfectly admissible unless, from the totality of the circumstances, the pretrial identification was so suggestive as to create a very substantial likelihood of irreparable misidentification.

In our case, there is no evidence presented in the record that would indicate a notable difference in the photograph of Stradford and the photographs of the other men that were shown to Whinery and Walker. Stradford claims that the photographs of him and Burks were the only photographs where there was not present an identification tag worn by criminals who had been arrested.

Without condoning or encouraging the procedure of placing Stradford and Burks in the lineup without identification tags, we are convinced that the trial judge was correct in discounting this argument. Whinery and Walker testified that they clearly were not influenced by the absence of these tags. It is our opinion that the missing name tag on the defendant would not serve to single out Stradford in a prejudicial fashion. Rather, the argument could easily be made that the absence of the name tags in the photographs of Stradford and Burks could most likely work in their favor, as the witnesses could arguably be more apt to choose a photograph where it was apparent that the person in the photograph had been arrested and booked for a crime.

We do find it of great importance to note that in other cases, depending on the surrounding facts and evidence, this process could prove to be precarious. Therefore, we acknowledge that this is not the most preferable approach to a lineup and we do not purport to advocate the idea that any lineup should reflect significant differences in any of the photographs. Still, because of the overwhelming identification evidence in this case, we are not convinced that Stradford was prejudiced by these missing identification tags or that the outcome would have been any different with the tags present.

Further, it is our opinion that there was substantial evidence to support the trial judge’s decision to allow the testimony of Whinery and Walker. Whinery and Walker both witnessed the robbery at the very same time while walking to their cars after work. Their separate testimony at trial indicates that they both described Stradford accurately, they both were able to get a good look at his face, and they knew the color and make of the car in which Stradford and Burks drove away from the scene of the crime, including the license plate number and state.

The car described by Whinery and Walker to the police turned out to be the very car in which Stradford and Burks were found before being arrested. Whinery and Walker also identified the car itself as the car they saw Stradford and Burks drive away in on the day of the crime. It is apparent to this court from the record that, at the time that Whinery and Walker were shown the photographic array, they were both undeniably certain of the identity of the perpetrators of the robbery. There is no evidence presented by Stradford that would indicate a possible misidentification, much less a substantial likelihood of such.

Stradford also asserts that the court erred in allowing the testimony of Whinery and Walker because they were able to “confer” with one another while viewing the photographs together. We find that there is no authority that directs us that two witnesses who were present together at the time of the crime should be shown the photographic array at separate times to diminish the risk of unfair prejudice to the defendant. Again, as with the missing identification tags, while we agree to some extent with Stradford that this procedure may not be the most effective or the most preferred, we are not convinced that Stradford was prejudiced in any way.

Once more, however, we note that this may not always be the case depending on the circumstances of the parties. We therefore take this opportunity to caution police and other authorities performing such identification procedures that this type of joint identification by two witnesses may be risky in certain cases. Nonetheless, in our case at bar, the fact that the two women witnessed the crime and the perpetrators of such crime at the exact same time and that both were, according to their accurate descriptions given on more than one occasion, absolutely certain of the identity of both men at the time they viewed the photographs two hours later suggests that the two women were not influenced by each other as to the persons they had seen commit the robbery. Neither Whinery nor Walker wavered on their certainty of the identity of the robbers at the photographic array, asserting that it was so fresh in their minds.

As to the issue of the in-court identification of Stradford by Whinery and Walker, it is our opinion that the trial judge was correct in allowing such testimony. In Ray v. State, 503 So. 2d 222 (Miss. 1986), the MSC provided that the scope of review in such cases is that the reviewing court must look to the totality of the circumstances to determine whether the in-court testimony had been impermissibly tainted. As such, this court may disturb the trial court’s findings only where there is an absence of substantial credible evidence supporting it.

At trial, Whinery and Walker were both asked separately whether they had any doubts about the identity of the robbers. Both answered negatively without hesitation. When asked whether one was influenced by the other in the identification process, they again immediately answered “no” and each of them asserted that they got a good look at the men and the car and therefore did not need any assistance in picking the photographs of Stradford and Burks.

There is no evidence in the record or in Stradford’s argument which would tend to support the idea of some form of conspiracy between the two women to choose Stradford as one of the robbers. Because we find that the photographic array procedure was proper, because Stradford offers nothing to this Court to negate the testimony and in-court identification by Whinery and Walker, and because Stradford presents nothing to prove that he was prejudiced by such testimony and identification, we conclude that the trial judge ruled correctly in allowing this testimony. We find, and Stradford gives us, no authority that we may turn to that would suggest that this procedure was impermissibly suggestive. Inasmuch as there is substantial credible testimony supporting the identification of Stradford, both through the photographic array and at trial, we cannot hold that the trial judge erred.

 

https://courts.ms.gov/images/Opinions/Conv9674.pdf