Photo lineup where length of hair was different was not suppressed


In 1990, three-year-old Courtney Smith was taken from her bed. Two days later, Courtney was found dead in a pond near her home in Noxubee County. Levon “Tytee” Brooks, an ex-boyfriend of Courtney’s mother, was convicted of Courtney’s murder after Ashley Smith, Courtney’s five-year-old sister, identified Brooks as the man who took Courtney from their bed. Ashley could see Brooks in the light of the television coming from the next room.

Immediately after Brooks left the house with Courtney, Ashley tried unsuccessfully to awaken the only adult in the house, her Uncle Tony. When the other adults finally arrived home the next morning and found Courtney missing, they began a search. The police were finally called in at 8 p.m., and an official search was begun. Courtney had not been found when the search was called off at 1 a.m. Courtney’s body was found later that morning in a pond about 100 yards from her home.

Sgt. Ernest Eichelberger, chief investigator for the Noxubee County Sheriff’s Department, testified that Courtney’s body showed bleeding from her head and vaginal area. He interviewed Ashley, who told him “Tytee” had taken her sister. Ashley then identified Brooks from a photo lineup.

Dr. Stephen Hayne testified that the autopsy he performed showed drowning to be the cause of death. He testified that bruises found on Courtney’s head were probably from a fist. He further testified that he found cuts in her vaginal wall and a torn hymen, injuries that occurred while she was alive.

Brooks was convicted of capital murder and sentenced to life in prison. On appeal, he argued the lineup was impermissibly suggestive. MSC affirmed.


The Biggers factors, established in U.S. Supreme Court case Neil v. Biggers, 409 U.S. 188 (1972), are to be evaluated in order to determine whether the in-court identification is sufficiently reliable to overcome the taint of the prior improperly attained identification. The Biggers factors are:

(1) the 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 time between the crime and the confrontation.

The trial judge found that the photo identification by Ashley Smith was not impermissibly suggestive even though there were minor differences in the photographs:

The MSC addressed the issue of whether such minor differences in the photographs would, in fact, create an impermissible suggestion in Jones v. State, 504 So.2d 1196 (1976). In that case, the defendant was the only one in an array of seven photographs who was wearing a cap. His was the only picture in which there was a measuring device, and his picture was slightly larger than the other six. MSC held that although there might be a suggestion of impermissibility, such minor differences did not constitute an “impermissible suggestion.”

The only genuine issue in this case is that the length of the defendant’s hair is greater than that of the others. Following the analysis in Jones, there may very well be some suggestion of impermissibility. The court held that this was not so impermissible as to give rise to a substantial likelihood of misidentification.

The court, having considered same, is of the opinion that although there might be a slight suggestion of impermissibility in the use of the photograph of the defendant in which his hair is longer than the others depicted, nonetheless, nothing about the photographic array nor the procedure used, gives rise to a substantial likelihood of misidentification.

In addition, the Court relies upon the MSC case of Poole v. State, 216 So.2d 425 (Miss. 1968), wherein the court held that if there is an independent source for identification, this is generally sufficient to remove the “taint” of any alleged primary illegality from improper and suggestive pretrial photographic identification procedures.

In regard to the Motion to Suppress, the court makes the following findings of fact:

1. That the photographic lineup was a pre-indictment lineup.

2. The court finds that all photographs were of men of the approximate age of the defendant.

3. The court finds that they have the same type of facial hair and are all black.

4. The court does find there is a difference in that the length of the defendant’s hair is longer than those of the other photographic exhibits.

5. The court finds there were no external suggestions made by any law enforcement officers to the witness, Ashley Smith, encouraging her to select any of the particular suspects.

6. The court finds that the witness, Ashley Smith, made her selection free of any undue influence of any type from the investigating officers.

7. The court further finds that the witness, Ashley Smith, based upon her statement, knew the defendant prior to the alleged commission of the offense.

8. The court further finds that the witness related that the defendant had gone to school with the witness’s mother at Riley College, and further that the witness, Ashley Smith, had known the defendant’s son, Travis, and that they played together.

The court further concludes that the witness, Ashley Smith, had an independent source of knowledge about the identification of the defendant, and pursuant to Poole, this further removed any taint of alleged impermissibility and suggestive photographic identification procedures.

While there may have been a hint of impermissibility, it was shown that Ashley Smith had an independent source of knowledge regarding the identification of Brooks. Sgt. Eichelberger testified at trial that before Courtney’s body was found, Ashley told him that “Tytee” had taken her sister.

Ashley immediately picked Brooks out of the photo lineup even though the picture used was several years old. This court has ruled that the use of an older picture, even where the defendant’s appearance had changed, would not unreasonably taint a lineup. See MSC Wilson v. State, 574 So.2d 1324 (Miss. 1990). That is exactly what occurred in this case.

Ashley identified Brooks as the perpetrator of the crime before Courtney’s body had been found. Brooks offers no proof as to why Ashley would accuse him falsely.