Search
Close this search box.

Photo lineup was reliable and not impermissibly suggestive

Facts:

In 2013 Danzel Williams was working on his car at his brother’s house in Durant when he received a text message from Crystal Pernell asking him to come “chill.” Pernell and Danzel had been frequently meeting and having sex with one another for more than a year. For these meetings, Danzel would usually drive to Pernell’s house and park, although sometimes Danzel would pick up Pernell, and they would drive to different locations.

Pernell proceeded to send Danzel a series of text messages throughout the day, as she usually did, insisting that he come to her house that evening and, on this occasion, that he bring cigars. Importantly, at this time, Pernell had a boyfriend, Tajarvis Haymon.

Before dark, Danzel borrowed his mother’s car and drove to Pernell’s aunt’s house in West, where Pernell was residing. Pernell’s aunt’s house was at the end of a dead-end road and had a long driveway. Pernell was waiting in the driveway when Danzel arrived at the house, and Pernell directed him to park in their usual spot in “the cut.” Pernell and Danzel sat in the front seat of the car and talked. Eventually, it was agreed that they should move to the back seat of the car.

As Danzel was getting out of the car, two men dressed in black with black hoodies and black face coverings jumped out of the bushes near the car. One of the men hit Danzel in the eye, ear and back of the head with a pistol. Danzel fell to the ground and was held down and searched by the two men. Pernell stayed in the front seat of the car during the beginning of the attack and at some point went back into her house.

The two men repeatedly asked Danzel where his money and gun were located. When neither money nor guns were found, one of the attackers allegedly said, “oh I know where it at” and threw Danzel into the back seat of his mother’s car. One man took the driver’s seat and the other sat in the back seat holding a gun to Danzel’s head.

When they approached Durant, the assailants lowered their masks so as not to arouse suspicion. At this point, Danzel was able to see the driver’s face through the reflection in the rearview mirror and recognized him as Chub, who was one of Pernell’s relatives that he had known for many years. As they drove through town, Danzel testified he was able to glance up at the face of the man holding a gun to his head and identify him as Pernell’s boyfriend.

Chub drove the car to where Danzel was staying in Durant. Chub took the gun from Pernell’s boyfriend and followed Danzel to the house to get the money. Danzel went inside. When Danzel returned outside to give the money to Chub, he was able to look directly into Chub’s face and recognize him by his cheekbones and hair. Danzel gave them $350 and ran back inside the house to alert his mother. Chub and Pernell’s boyfriend rode away in Danzel’s mother’s car. Later that evening, Danzel gave a summary statement to the police; he reported that Pernell’s boyfriend and brother had robbed him. Then, Danzel went to the hospital for treatment of his injuries.

The next day, Danzel gave a full statement to the police and was presented a photo lineup; he identified Jamarcus Williams as Chub and Tajarvis Haymon as Pernell’s boyfriend. The day after the crimes, Conola Logan, a truck stop employee, saw Pernell, Haymon and Jamarcus riding together in the stolen vehicle. Surveillance camera footage showing Pernell, Haymon and Jamarcus at the truck stop was introduced as an exhibit at trial. The vehicle was later discovered in a locked and gated backyard behind Pernell’s aunt’s house.

At trial, Danzel identified Pernell and Haymon from the witness stand. Pernell was convicted of two counts of armed robbery, one count of kidnapping and one count of aggravated assault and sentenced to 20 years. Haymon was convicted of two counts of armed robbery, one count of kidnapping and one count of aggravated assault and sentenced to 20 years.

On appeal, Haymon argues that the photo lineup was suggestive. MSC affirmed.

Analysis

When evaluating the admissibility of a pretrial identification, this Court must first determine whether the identification process was unduly suggestive. And even if it was, the court has the right to admit the identification if it determines that the out-of-court identification was nevertheless so reliable that no substantial likelihood of misidentification existed.

A. The photo lineup was not unduly suggestive

Haymon argues that an officer provided Danzel with his name, which tainted the identification procedure. A lineup or series of photographs is impermissibly suggestive if the accused, when compared with the others, is conspicuously singled out in some manner from the others, either from appearance or statement by an officer. See MSC Butler.

Officer Mitchell, the officer who conducted the photo lineup, testified that the purpose of giving Danzel a photo identification line up was to allow Danzel to match the nicknames to faces so the deputies could discover the suspect’s legal names. Undoubtedly the officers supplied the names of the suspects to Danzel because he reported that Big Chub and T.J. had attacked him, but he did not know their legal names.

Additionally, Officer Mitchell testified at trial that the names came from Danzel based on his positive identification of the two suspects. Officer Mitchell denied that Haymon’s name was given to Danzel prior to the lineup and stated that the officers knew the names but that Danzel did not at the time of the photo lineup. The officers’ providing of the names of the suspects to Danzel based on the photos chosen from a lineup did not taint the identification procedure because Danzel had already identified Haymon and Jamarcus.

Haymon also argues that the photo lineup was suggestive because he and Jamarcus were the only two people with shorter deadlocks and hoodie jackets and because a fire alarm was visible in the top left corner of the picture. As to the potentially distinguishable features in the pictures, Danzel testified, “what difference does it make. I still know who it is, their hair or without the hoodie.”

The U.S. Supreme Court in Neil v. Biggers, 409 U.S. 188 (1972), said that an out-of-court identification will be excluded if the identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Danzel was able to see Haymon and Jamarcus in the car and at the house, and he knew them, making the likelihood of irreparable misidentification slim to none.

Nevertheless, the features that Haymon takes issue with are not so distinct as to cause the entire lineup to be tainted. This Court has held that lineups are impermissibly suggestive when the defendant is the only one depicted with a distinctive feature. See Bankston v. State, 391 So. 2d 1005 (Miss. 1980), when defendant was the only person with a mustache that matched the victim’s description of the suspect, lineup impermissibly suggestive.

However, this Court and MCOA has also found that minor differences with the suspects or differences in the photograph backgrounds will not render a lineup impermissibly suggestive. See Jones v. State, 504 So. 2d 1196 (Miss. 1987) (lineup not impermissibly suggestive when defendant was the only person in the lineup wearing a baseball cap); White v. State, 507 So. 2d 98 (Miss. 1987) (lineup not impermissibly suggestive when defendant was the only person with plaited hair and forehead tattoos); Batiste (lineup not impermissibly suggestive when suspect had a lighter photo background); Jones (lineup not impermissibly suggestive when defendant was the only person in the lineup wearing a coat that matched the description of the armed robber); Anderson (lineup not impermissibly suggestive when suspect’s photo was the only one with a white border).

The photo lineup here consisted of five photos of males, in different types of clothes, with dreadlocks of varying lengths. Considering the lineup in light of this Court’s precedent, Haymon’s picture did not have distinguishing features. This Court finds that the photo lineup given to Danzel to identify Haymon was not impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification.

B. The photo lineup was reliable

This Court analyzes five factors to determine if 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’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. See Biggers.

These factors, applied to the present case, support a finding that both the out-of-court and in-court identifications were reliable. Haymon argues that Danzel was unable to focus on his assailants and supports this argument with Danzel’s testimony that he was scared for his life because he was held at gunpoint with his head down in the back seat of the car. But Danzel testified: they took their masks up. And that’s when I raised my head up, I see the driver. And that was Chub, that’s his nickname. That was Chub. I seen the rearview mirror, the mirror. I had seen his face and I seen how his hair. So when we got back up to Double Quick that’s when I look up again and then I look to my side and that’s when I see her boyfriend.

There is no discrepancy in Danzel’s testimony as to the fact that he knew who attacked him. Haymon also argues that Danzel could not have been certain who attacked him because he admitted he had a bad memory. However, this testimony from Danzel was referring to his inability to remember phone numbers and legal names in the statements with the police, not the identity of his attackers. The reliability and credibility of Danzel’s memory is an issue for the jury to weigh.

As to the length of time between the crime and the confrontation, Haymon again argues that because law enforcement gave Danzel the names of the suspects, the identification was tainted and unreliable. However, as discussed above, the officers gave Danzel the legal names of the suspects because he only was able to identify their faces and nicknames.

The only issue that weighs against the reliability of the in-court identification is the length of time between the crime and the confrontation. The trial occurred more than seven years after the night of the crime. However, Danzel had already reliably identified Haymon the day after the crime and all other factors, as discussed above, weigh in favor of the identification’s reliability.

This Court finds substantial credible evidence to support the trial court’s finding of reliability of the photo identification.

 

https://courts.ms.gov/images/Opinions/CO163666.pdf