Facts
Billy Joe Anderson was indicted for the 2002 armed robbery of Jerry’s Appliance Center in Utica, Mississippi. At the time of the robbery, there were only two employees working at Jerry’s – Bryan Hales and Lynda Stephens. They heard the door open and saw two males enter the store. One man was tall and thin; the other was short and muscular. Both Hales and Stephens assumed that the men were customers because they began to look around the store. Then, the tall, thin man pulled out a gun and pointed it at Hales. He demanded that Hales give him the money from the cash register.
While the tall man was holding the gun on Hales, the shorter man removed about $1,000 in cash and checks from the cash register. The tall man then demanded Hales’s wallet. Hales and Stephens were told to get on the floor behind the store counter until the two men left the store. Hales then called the Utica Police Department. Officer Von Shinnie immediately reported to the crime scene. Utica Police Chief Timothy Myles, who was in Jackson at the time, was also called to the scene.
Shinnie spoke with Darren Howard, the owner of a car wash located across the street from Jerry’s. Howard told Shinnie that he saw his cousin, Billy Joe Anderson, in a blue car driving up and down Main Street and back behind Jerry’s.
Jerry Yates, the owner of Jerry’s, was called to the store after the robbery. He called his long-time customer, Hattie Mae Washington, to find out if she knew Anderson. She informed Yates that Anderson was her son. Yates said that Anderson had robbed him and asked Washington to come to the store. Washington was asked for a picture of her son, and she retrieved a Polaroid picture of Anderson that she kept in her car. The picture had been taken while Anderson was eating a piece of cake, so part of his face was covered.
Hales testified that he did not remember seeing the photograph. Stephens remembered the photograph, but she said that she could not tell whether or not the man eating cake in the picture was the individual who had robbed the store. Washington testified that both Hales and Stephens assured her that the man in her picture was not the man who had robbed the store.
Approximately one week after the robbery, Shinnie separately showed Hales and Stephens a photographic lineup containing photographs of six different males. Hales and Stephens both independently selected Anderson as the tall, thin man who held the gun during the robbery.
Anderson was convicted of armed robbery and sentenced to 35 years. On appeal, he argued the identification was tainted by showing the single photograph. MCOA affirmed.
Analysis
In York v. State, 413 So. 2d 1372 (1982), the MSC held that only pretrial identifications which are suggestive, without necessity for conducting them in such manner, are proscribed. A lineup or series of photographs in which 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, is impermissibly suggestive.
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. See U.S. Supreme Court case Neil v. Biggers, 409 U.S. 188 (1972).
First, we examine whether the Polaroid picture of Anderson tainted the witnesses’ later identification of Anderson in the photographic lineup. Washington, Anderson’s mother, showed Hales and Stephens a picture of Anderson eating a large piece of cake. Neither witness identified the man in the picture as the man who had robbed Jerry’s. The picture was small, and portions of Anderson’s face were covered by the piece of cake.
We do not agree with the circuit court that the photographic lineup was not tainted by the single photograph simply because Anderson was not positively identified by the witnesses. Anderson’s argument is that the witnesses recognized him from the Polaroid picture and not the robbery. This argument is not conclusively dismissed just because the witnesses said that the man in the Polaroid was not the man who had robbed the store. Thus, we reject the circuit court’s finding that the show-up was not suggestive only because no positive identification was made.
Anderson argues that the show-up was suggestive; therefore, the subsequent photographic lineup was tainted. He states that a week after the robbery and the show-up, Stephens and Hales both identified Mr. Anderson, the only individual of whom they had previously seen a photograph.
However, even if we agree with Anderson’s argument, the suggestiveness of the Polaroid picture and the photographic lineup does not require the exclusion of the witnesses’ in-court identification of Anderson. 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.
The factors to be considered in determining the likelihood of misidentification are: [1] the opportunity of the witness to view the criminal at the time of the crime, [2] the witness’s 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, [5] and the length of time between the crime and the confrontation.
Here, an examination of these factors shows that, under a totality ofthe circumstances, there is credible evidence to support the circuit court’s admission of the in- court identifications.
1. The opportunity of the witnesses to view the criminal at the time of the crime
Both Hales and Stephens had the opportunity to view the gunman’s face under the lighting of the store at noon on the day of the robbery. He was not wearing any type of mask or disguise. Further, Hales and Stephens were only a few feet away from the gunman, and there were no obstructions in the store blocking their view of him.
2. The witnesses’ degree of attention
Both witnesses were paying close attention to the gunman because he was pointing an automatic weapon at Hales. Even before seeing the gun, the witnesses paid close attention to the two men because it was part of their job to be attentive to customers who came in to look around the store. Hales testified that he approached the tall man to see if he needed any assistance. He further testified to the areas of the store that the two men browsed before the gun was shown.
3. The accuracy of the witnesses’ prior description of the criminal
Both witnesses described the gunman as a tall and skinny male. Hales estimated him to be about six feet tall and about 155 to 160 pounds. According to the record, Anderson is five feet, ten inches tall and weighs 157 pounds.
4. The level of certainty demonstrated by the witnesses at the confrontation
Officer Shinnie testified that Hales and Stephens immediately picked Anderson out of the photographic lineup. There was no hesitation from either witness. Hales testified that it only took a matter of seconds to pick out Anderson because he recognized him immediately as the tall man who had robbed the store. Stephens further testified that she was one hundred percent certain that the man that she picked out of the photographic lineup was the same man who had robbed the store.
5. The length of time between the crime and the confrontation
Officer Shinnie presented the photographic lineup to Hales and Stephens one week following the robbery.
The linchpin of the issue of identification is reliability. We find that each of the factors examined above is sufficiently met such that, even assuming that the photographic lineup was suggestive, the record is clear as to the reliability of the in-court identifications. Thus, we find that the circuit court did not err in admitting the in-court identifications. Accordingly, this issue is without merit.