Marlene Hester testified that on the evening of February 19, 2001, she was working alone as a clerk at Little Joe’s Package Store on Highway 19 North in Meridian. At approximately 9:30 p.m., a black male entered the store, pulled a small silver-plated handgun out of his pants, pointed the gun at her, and demanded money. Hester indicated that the male appeared to be in his early 20s, had a lot of gold in his mouth, wore jeans, a dark blue shirt, and a bandana around his head.
The robber stooped behind the counter to avoid being seen and demanded that Hester place all of the money from the cash register in a bag. Hester complied, but the robber insisted that there was more money in the store. The robber asked whether there was a safe in the store. When Hester said no, he hit her with the gun. The robber took Hester to the stock room at the rear of the store. In the stock room, the robber pulled the telephone cord out of the wall, struck Hester in the head with the gun, and threatened to kill her if she did not tell him where more money was located. Hester stated that the robber hit her on the head once with the gun and four or five times on the arms.
Hester informed the robber that there was a box in the room which contained $250. The robber kept insisting that this was not all of the money and that he was going to kill Hester. After taking possession of the money, the robber made Hester lie down behind some boxes in the stock room and left through the front door. After Hester heard the bell jingle on the front door, she used the telephone at the front of the store to report the incident. Hester also testified that there was a surveillance camera in the store but she told the robber that it did not work.
Following treatment at the emergency room for her injuries, Hester went to the police station where she looked at several books containing photographs of potential suspects. She did not see the robber in any of the books. Later, Hester looked at a second set of between fifteen and twenty photographs that Officer Tim Eldridge of the Meridian Police Department brought to her job for viewing. Eldridge had called and advised Hester that someone that he thought fit her description of the robber had been picked up by the police. When Hester viewed these photographs, she immediately picked out Derrick Houston.
Hester testified that approximately one or two weeks after identifying Houston from the second set of photographs, Houston’s father came into the store. He suggested that she may have confused his son with a person of similar appearance, and asked that she view some photos, which he brought with him. Hester identified Houston and stated that the picture showed him wearing the same bandana he wore on the night of the robbery.
Houston was convicted of robbery by use of a deadly weapon and aggravated assault and sentenced to 20 years. On appeal, he argued the photo lineup was overly suggestive. MCOA affirmed.
Houston claims that the original six-photograph line-up sheet shown to Hester was suggestive in (1) that all photos save his had dates of arrest that were before February 19, 2001, thereby causing his photo to stand out, (2) that he was the only person not in the formal photograph room, and (3) that in the photos only two individuals, including himself, had “raised eyebrows.”
An impermissibly suggestive pre-trial 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. See MSC Nicholson v. State, 523 So. 2d 68 (Miss. 1988).
In addressing that question our courts have been instructed when considering identification testimony, to apply the factors in U.S. Supreme Court case Neil v. Biggers, 409 U.S. 188 (1972), which are as follows: (1) opportunity of the witness to view the accused at the time of the crime, (2) the degree of attention exhibited by the witness, (3) the accuracy of the witness’ prior description of the criminal, (4) the level of certainty exhibited by the witness at the confrontation, and (5) the length of the time between the crime and the confrontation.
Additionally, the MSC has suggested that slight or minor differences in the photographs do not necessarily constitute an impermissible suggestion. See Brooks.
Having reviewed Houston’s claim, this court finds this issue to be without merit.