Facts
In 2016, Freddie Jean Williams, who was seventy-four years old at the time, arrived at her Cleveland, Mississippi, home around 11:00 p.m. Williams parked inside her carport and retrieved her blue purse and her clear work bag from the trunk of her car. As Williams was retrieving these items, she heard a noise and noticed three individuals approaching her from across the street. Upon noticing this, Williams placed one bag on each of her shoulders, and she closed her trunk.
The three men then surrounded Williams and demanded that she hand over her purse and work bag. Williams refused. She then attempted to distance herself from the three men, but they moved in closer to grab her bags. As the three men came closer, Williams could see what the men were wearing, and she noticed that two men were short and one was tall. More importantly, Williams testified that the men did not have their faces covered and that at that point, she was able to “really identify” one of the men. The man that Williams recognized during the robbery was later identified as Dalvin Latham.
Williams testified that she recognized Latham’s face because she had seen Latham more than once at her sister’s house, and Williams had seen Latham walking by her home several times in the two-week period before she was robbed. After Williams had recognized Latham, she said to him, “I know you,” thinking he would leave her alone. Instead, Latham snatched Williams’s work bag off of her shoulder, the taller man snatched her purse and the three men ran away.
After the robbery, Williams ran to her sister’s house down the street. There, Williams explained to her brother-in-law that she had been robbed, and he called the police. Officer Bryan Bracey with the Cleveland Police Department responded immediately. When Bracey arrived, Williams was alone at her residence. Williams explained to Bracey that three men had taken her purse and work bag, and she indicated the direction they fled.
Williams also advised Bracey that she recognized one of the individuals because he hung out with her great-nephew, but Williams explained that she did not know his name. Williams described Latham as having dreadlocks in his hair. Shortly thereafter, additional officers responded to Williams’s residence, including Investigator Greg Perkins.
After Williams had initially described Latham to police, Williams’s niece LaShonda Hodges arrived. Williams explained to Hodges that one of the robbers had dreadlocks and hung out at Hodges’s mother’s house, which is where Hodges also lived. Based on Williams’s description, Hodges pulled up Latham’s picture from Facebook, and Williams immediately confirmed that Latham was the man that she recognized during the robbery.
Williams and Hodges then relayed Latham’s name to officers on scene, and Investigator Perkins developed Latham as a potential suspect. The officers searched the area for physical evidence and located Williams’s blue purse approximately two streets away from Williams’s home. The officers were unable to recover Williams’s work bag.
Then, Investigator Perkins had Williams come to the Cleveland Police Department. While at the department, Perkins presented Williams with a six-person photo lineup that contained a picture of Latham with dreadlocks. The other five individuals in the lineup did not have dreadlocks. Williams selected Latham out of the photo lineup by circling and initialing Latham’s photo. Perkins testified that he typically selects random photos of other individuals with similar build, height, and complexion. Based on Williams’s identification of Latham, Perkins charged Latham with robbery and issued a warrant for his arrest.
Latham was convicted of robbery and sentenced to five years. On appeal, Latham argues his lawyer was ineffective for failing to object to the lineup as he was the only one with dreadlocks. MSC affirmed.
Analysis
A. Lineup may be Suggestive
In Butler, we explained that 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.
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) and MCOA Shaw (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).
But even if the lineup presented to Williams was determined to be impermissibly suggestive, this court in Stewart has explained that 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.
Yet Latham’s argument on appeal focuses solely on the suggestiveness of the lineup, and he does not attempt to argue or explain how Williams’s pretrial identification of him was unreliable. Nonetheless, we find that there is no evidence that Williams’s identification was unreliable.
B. However, Lineup was Reliable
To determine whether an out-of-court identification was reliable, this court considers the following factors:
(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.
Applying the above factors, we conclude that Williams’s identification was reliable. During the robbery, Williams testified that she could “really identify” Latham’s uncovered face and noticed his dreadlocks while the three men were surrounding her. Moreover, Latham was obviously within close proximity to Williams, given that Latham snatched Williams’s work bag off her shoulder during the robbery. Williams clearly had a high degree of attention because she immediately recognized Latham during the robbery and even said to him, “I know you.”
Williams’s descriptions of Latham to police and her niece appear consistent and accurate. In fact, Williams’s description of Latham coupled with Williams’s explaining that she had seen Latham at the niece’s house before enabled Williams’s niece to pull up Latham’s Facebook profile picture. When Williams’s niece showed Williams Latham’s profile picture, Williams immediately confirmed that Latham was the robber that she had recognized.
Likewise, Williams reiterated that she was certain that Latham was the man that had grabbed her work bag because she had seen Latham several times before the night of the robbery. Williams explained that she had seen Latham at Williams’s sister’s house more than once and that Williams had seen Latham walking up and down the street in front of Williams’s house. Finally, Williams selected Latham out of the photo lineup less than twenty-four hours after the robbery had occurred.
Williams’s identification of Latham was reliable. Additionally, Williams’s statements to police and her niece and Williams’s trial testimony indicate that Latham was someone Williams was familiar with before the robbery. As a result, any objection by Latham’s trial counsel would have been futile because counsel could not have shown that Williams’s identification was unreliable. In other words, Latham cannot show that any attempt to exclude the out-of-court identification would have been successful. Therefore, Latham cannot show that the failure to object was either deficient or prejudicial.