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Facial tattoo did not render photo lineup inadmissible

Facts

In 2010, Justin Stewart and an accomplice went to a Fred’s store on North State Street in Jackson, Mississippi. Stewart purchased a pair of Hanes undergarments with cash. When the clerk, LaQuinta Nelson, opened the cash register to give Stewart his change, Stewart attempted to grab the money in the register. Nelson quickly closed the cash drawer.

Stewart then pointed a gun at Nelson and demanded she reopen the cash drawer. Nelson complied. While Stewart was grabbing money out of the drawer, Nelson attracted the attention of Darryl Crumpton, the store manager. Crumpton approached and was ordered to get on the ground. Stewart demanded that Crumpton give him all of the money from the store’s office.

Instead, Crumpton took Stewart to another cash register. Stewart removed its contents. Crumpton informed Stewart that there was no more money in the store. Stewart fled the store with cash and credit-card receipts from the two registers. The police were informed that the robber was a black male wearing a pink and brown multi-colored hat. The police also were informed that the robber had sped away in a gold or tan car, which had struck a curb exiting the parking lot, causing the right front tire to rupture.

Moments later, an officer observed two black males changing the right front tire of a tan car in a driveway a few blocks from Fred’s. As the officer approached the suspects, they fled. Several officers canvassed the area, searching for the suspects. After finding his accomplice, the police found Stewart hiding between a shed and a house. After arresting Stewart, officers retrieved a pink multicolored hat, $1,494 in cash, a revolver, and two Fred’s receipts near Stewart’s hiding spot. A Fred’s shopping bag with a package of Hanes undergarments was found in the car.

Nelson and Crumpton each were asked to review a photo lineup. Both identified Stewart without hesitation. No mention of facial tattoos appeared in the police reports. Nelson testified at trial that she mentioned facial tattoos to the police shortly after the crime. Crumpton testified that he did not.

Stewart was convicted of armed robbery and felon in possession of a firearm and sentenced to 30 years. On appeal, he argued he was the only person in the lineup with facial tattoos. MSC affirmed.

Analysis

For an identification (made out of court or in court) to be excluded, it must be the result of an impermissibly suggestive lineup and the identification must be unreliable. See MSC York v. State, 413 So. 2d 1372 (Miss. 1982).

A photo lineup is impermissibly suggestive only if the accused, when compared with the others, is conspicuously singled out in some manner from the others, either from appearance or statements by an officer. Minor differences between the suspects or photographic backgrounds will not render a lineup impermissibly suggestive.

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.

This court looks to five factors when determining whether an out-of-court identification was reliable: (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’s 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.

Finally, an impermissibly suggestive pretrial identification does not preclude in-court identification by an eyewitness who viewed the suspect at the procedure, unless: (1) from the totality of the circumstances surrounding it (2) the identification was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

Stewart argues that the photo lineups were impermissibly suggestive, since Stewart was the only person with facial tattoos. We find that this case is similar to the cases of White, Foster, and Jones, in which this court upheld similar identifications.

In White v. State, 507 So. 2d 98 (Miss. 1987), the witness noticed the defendant’s plaited hair and forehead tattoo during the commission of the crime. This court upheld the out-of-court and in-court identifications of the defendant even though the defendant was the only suspect in the lineup with plaited hair. The defendant also had a forehead tattoo, which the witness identified at trial.

In Foster v. State, 493 So. 2d 1304 (Miss. 1986), we upheld the out-of-court and in-court identifications of the defendant even though he was the only person in the lineup wearing a fishing hat, where the defendant had worn a fishing hat during the robbery.

Likewise, in Jones v. State, 504 So. 2d 1196 (Miss. 1987), we upheld the out-of- court and in-court identifications of the defendant even though he was the only suspect in the photo lineup wearing a hat similar to the one worn by the attacker. We found that, even though the hat may have played a significant part in the identification, it was not impermissibly suggestive, because the witness had given an accurate description and identified the defendant with great conviction at trial.

In this case, the trial court noted that there was no mention from the officer or police reports of the tattoo, and that the tattoos just don’t jump out at you.

But Nelson also testified that the encounter with Stewart lasted more than five minutes. During that time, she observed Stewart and his accomplice enter the store. She remembered Stewart asking the manager, “where is your Hanes boxers.” She later observed him in the checkout line for four to five minutes, where he let a couple of people go ahead of him. Nelson testified that the area was well lit. She and Stewart exchanged greetings.

Nelson testified that Stewart was in such close proximity to her that he only had to whisper. She observed him when he threatened her with the gun. She observed Stewart as he stole money from another register. Nelson told the officers that Stewart was the same height as she, wore dark clothes, and wore a pink and brown hat with a letter on his hat. Nelson testified that Stewart’s facial tattoos were located “under his eyes and in the middle of his forehead.” She remembered thinking “why would he get tattoos under his eye and right . . . in the middle of his forehead.” Nelson identified Stewart at trial as the same person who had robbed her.

Crumpton offered similar detailed testimony. He stated that, even though a gun was pointed at him, he remembered looking at Stewart. He noticed that Stewart had some markings on his face. Crumpton also conversed with Stewart during the robbery. Although Crumpton mentioned at trial that he had picked Stewart out of the photo lineup by the markings on his face, he later testified that the tattoos were not the “main way” he identified Stewart. Importantly, Crumpton testified that he could have identified Stewart “even if he didn’t have the markings . . . on his face.”

In short, Stewart failed to establish that he was conspicuously singled out from the other suspects in the photo lineups. While he was the only one with facial tattoos, the officer responsible for preparing the photo lineups testified that he was unaware Stewart had facial tattoos. Moreover, the trial court found the facial tattoos in the photo were nearly unrecognizable, which is supported by the photo lineup included in this record. The tattoo on the forehead is faintly visible. The dark lines under Stewart’s eyes are not distinguishable as tattoos in the photo. Thus, the trial court had substantial, credible evidence to dismiss the motion to suppress the photo lineups.

 

https://courts.ms.gov/images/Opinions/CO91676.pdf