In 2005, a man entered the Super Saver Exxon station at the intersection of Old Brandon Road and Pearson Road in Pearl, Mississippi. He purchased a cup of coffee and then exited the store. He re-entered about five minutes later, pulled a knife on the store clerk, demanded that she open the cash register, robbed the store of two hundred and forty-eight dollars, and fled the scene.
Detective Mark Logzino spoke to the store clerk who gave a detailed description of the armed robber. He also viewed a video of the events recorded by the store’s video surveillance system. After viewing the tape, Logzino contacted a detective at the Jackson Police Department in an attempt to identify the person involved in the robbery. From their conversation, Detective Logzino was able to identify Gregory Jones as a possible suspect. Logzino had the Jackson Police Department compile a photographic lineup which included Jones and five other males with similar physical characteristics. Later that same day, the store clerk identified Jones from the photographic lineup as the armed robber. As a result of the identification, a warrant was issued for Jones’s arrest.
One day after the robbery was committed, Jones was spotted by Detectives Reginald Cooper and Tommy Jones of the Jackson Police Department at an Exxon gas station at the intersection of County Line Road and Ridgewood Road in Jackson, Mississippi. After watching him for a couple of minutes, the detectives approached Jones, who immediately took off running. While police were in pursuit, they observed Jones twice reach into his pocket and discard what appeared to be a weapon. Jones was apprehended inside of the Hilton Hotel lobby/dining area. He was wearing the same shirt as identified by the store clerk and visible in the surveillance footage. After apprehending Jones, Cooper recovered a knife from the area where Jones was seen discarding it. The knife was later identified by the store clerk as the knife that was used in the robbery.
At trial, the store clerk identified: (1) Gregory Jones as the armed robber, (2) the shirt Jones was wearing when arrested as the same in which he committed the armed robbery, and (3) the knife that Jones discarded while fleeing police as the same used in the commission of the armed robbery.
Jones was convicted of armed robbery and sentenced to life. On appeal, he argued there was no probable cause for his arrest and that the photo lineup was overly suggestive. MCOA affirmed.
A. Probable cause
There is ample evidence to support that probable cause existed for Jones’s arrest without a warrant. After receiving a description of the suspect, viewing the surveillance video, and speaking with the Jackson Police Department, Detective Logzino was able to identify Jones as a suspect in the robbery. In a photographic lineup that included five other individuals, the store clerk identified Jones as the armed robber. The store clerk’s positive identification was sufficient in itself to provide the police with reasonable grounds to suspect that Jones committed the crime. In Clay v. State, 829 So. 2d 676 (Miss. Ct. App. 2002), we held that the victim’s identification of the defendant as the shooter provided reasonable grounds for the police to suspect the defendant had committed the act.
This was not, however, the only ground the police had for suspecting Jones committed the armed robbery. Their suspicions were heightened on the following day when Detective Cooper and his partner noticed a man fitting Jones’s description outside of another gas station. The officers confirmed that Jones’s clothes matched those in the store clerk’s description as the clothes worn by the armed robber. When approached by the officers, Jones fled. In doing so, he discarded a knife later confirmed by the store clerk to be the same knife used in the robbery. Taking into account all of the evidence and circumstances known to the police at the time of the arrest, it is apparent to this Court that there was sufficient probable cause to arrest Jones with or without a warrant.
B. Whether the photographic lineup from which Jones was identified was so suggestive as to violate due process of the law
In Neil v. Biggers, 409 U.S. 188 (1972), the U.S. Supreme Court set out five factors to be considered in determining whether a lineup is impermissibly suggestive:
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; and
5. The length of time between the crime and the confrontation.
Jones points out that his photograph stands out from the other five used in the photographic identification process. He takes issue with the photographic lineup because his photograph indicated that it was taken by the Jackson Police Department and was eleven years old. He further points out that he is the only individual wearing a coat, which happened to be included in the store clerk’s description of the armed robber. Jones concludes that the photographic lineup was impermissibly suggestive.
In Jones v. State, 504 So.2d 1196 (Miss.1987), the Mississippi Supreme Court addressed the issue of whether differences in a photograph lineup rose to the level of an impermissible suggestion. The defendant in Jones was the only suspect of the seven in the photographic lineup that wore a baseball cap. Our supreme court determined that this minor difference did not give rise to an impermissible suggestion.
Further, this court has specifically held in Anderson that a photographic lineup is permissible even when the backgrounds of the photographs clearly indicate that all individuals were in the custody of law enforcement, and the only difference is the photographic technique used to capture the defendant’s likeness.
Upon review of the photographs used in this case, we do not find that the minor differences in the appearance of Jones’s photograph are so distinctive as to improperly single him out. All photographs used in the lineup have the same format, that is, they each contain the same background and are marked with “Jackson Police Department.” The photographs do not contain inmate I.D. numbers, as Jones suggests.
Moreover, the men in the photographs are all African-American males, have the same build, and possess the same facial features in accordance with the store clerk’s description of the armed robber. The fact that Jones is the only individual wearing a coat is a minor difference and does not rise to the level of impermissible suggestion under Anderson and Jones.
Further, the fact that the photograph of Jones was taken eleven years earlier does not create an impermissible suggestion that Jones was the armed robber. If anything, the fact that Jones was younger in his picture would seem to discourage identification, rather than suggest identification. We consequently do not find that the photographic identification lineup in this case is impermissibly suggestive. This issue is without merit.