In 2003, Aaron Clark was cleaning his work van in the parking lot of his apartment complex. As he leaned across the driver’s seat he felt a gun barrel pushed into his back and heard a male voice say “give me what you got.” Clark turned to face the gunman and told him that he did not have anything on him and that in fact he did not have any pockets in the jogging pants he was wearing. Clark testified that he was face-to- face with the gunman and that a large black automatic pistol was being held against his chest.
After seeing that Clark did not have anything, the gunman stepped back while still holding the gun on him and said “there must be something in the van that I can take.” Clark informed him that it was a company van and that there was nothing of value inside, but suggested that he see for himself. After ascertaining there was nothing of value in the van, the gunman ran away.
Clark immediately called the Jackson Police Department and reported the incident, describing the gunman as a light-skinned young black male with a light mustache and braids in his hair. Clark told the police that the gunman was between 5’9″ and 6′ tall, weighed approximately 145 pounds, and was wearing a gray shirt or sweater with a pullover hood and dark pants with shiny black shoes. Officer Cesar Hamilton arrived on the scene within half an hour of the incident and Clark gave him an identical description, which was radioed to other officers so they would be on the lookout for an individual matching the description.
Hamilton received a call about another armed robbery in progress and left to respond to that call. Approximately one hour later he returned to get Clark and take him to a local gas station to identify a suspect who matched the description Clark had given. En route Clark heard radio transmissions about the detained suspect. When they arrived at the gas station Clark remained in the patrol car while other officers at the scene produced the handcuffed suspect, later identified as Daniel Outerbridge, from another patrol car. At a distance of about fifteen feet Clark was able to identify Outerbridge positively as the man who had earlier held a gun on him.
The next day Clark went to the police station to speak with a Jackson Police Department detective. During the course of Clark’s interview a photo lineup was conducted, and Clark positively identified Outerbridge from the six-person photo lineup.
Outerbridge was convicted of armed robbery and sentenced to 30 years. On appeal, he argued the show up and the lineup was overly suggestive. MSC affirmed.
The holding of U.S. Supreme Court case Neil v. Biggers, 409 U.S. 188 (1972), which has long guided this court’s decisions on eyewitness identifications, established the central question as being whether under the totality of the circumstances the identification was reliable even through the confrontation was suggestive.
It held that five factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.
In York v. State, 413 So. 2d 1372 (Miss. 1982), this court provided a detailed history and analysis of the law regarding both pretrial and in-court identification, recognizing the importance of eyewitness identifications while at the same time warning of the troubles which can arise from mistaken identifications. In evaluating the likelihood of misidentification of York following an allegedly suggestive police procedure, this court applied the five factors established by Biggers and affirmed York’s conviction and sentence.
The trial court found beyond a reasonable doubt from the totality of the circumstances that Mr. Clark had an excellent opportunity to view the assailant during the time of the commission of the crime. There was a high degree of attention given by Mr. Clark to his assailant during that period of time. Duration was such that it provided excellent opportunity for Mr. Clark to observe, not only a clothing description, but a physical description and facial description of the assailant as well. The description was highly accurate when compared with the actual physical description of the defendant following his apprehension.
The trial court went on to find the duration between the crime and the photo lineup was relatively short, and that after taking approximately ten minutes reviewing the photographs, Clark expressed 100 percent degree or level of certainty in his identification of Outerbridge. Further the trial court called the photo lineup one of the best I have ever seen. Despite whatever taint may have been involved by the impermissibly suggestive how-up, the trial court found from the totality of the circumstances beyond a reasonable doubt that Clark’s identification was admissible.
This court has stated that historically, show-ups have been condemned as impermissibly suggestive and have been disapproved because they increase the likelihood of misidentification. See York. The eyewitness is apt to retain the image of the individual displayed during the show-up rather than the actual assailant. This could be true in the present situation, where Clark overheard Hamilton speaking with other officers and say to them “well, that’s our guy.”
In rare situations, as in York, show-ups are appropriate. However, the facts in the present case were markedly different from those in York, where the eyewitness was grievously injured by her assailant, it was not clear she would survive long enough for proper identification procedures to take place, and as a result of these exigencies such a procedure was appropriate. No exigencies existed in the present situation. Outerbridge was already in custody, and Clark was neither grievously injured nor was there any threat that he would be unavailable to participate in a later lineup.
Although it was inappropriate for the police to conduct the show-up in the manner they did, and the procedure threatened the admissibility of Clark’s later identification, our inquiry does not end there. We proceed to review the reliability of the eyewitness identification under the Biggers factors and weigh it against the corrupting effect of the suggestive identification.
Despite the suggestiveness of the show-up, Clark’s identification is still admissible because there is factual evidence which overcomes the likelihood of misidentification. Applying the Biggers five-prong test, it is clear that Clark had an excellent opportunity to view Outerbridge during the robbery. Outerbridge was at arms’ length to Clark while standing face-to-face with him for a period of three to five minutes. Admittedly it was evening, but the parking lot was well lighted with street lights. It is also clear that Clark had every opportunity to pay close and undivided attention to Outerbridge during the robbery, as evidenced by the level of accuracy with which he was able to describe Outerbridge to the police. Clark’s description of Outerbridge’s clothes and physical characteristics provided a degree of accuracy that permitted the police to find a suspect with the same characteristics within an hour.
When Clark identified Outerbridge at the gas station, in the photo lineup, and at trial he expressed 100 per cent certainty that Outerbridge was the gunman. Outerbridge claims that Clark took approximately fifteen minutes to pick him out of a photo lineup and that is prima facie evidence of his lack of certainty. We agree with the opinion of the trial court that fifteen minutes is not a long period of time for a witness to investigate a photo lineup. Witnesses should be encouraged to pause and deeply consider their identifications, viewing all possible photos prior to making a decision.
Additionally, less than 24 hours transpired between the robbery and photo lineup. There is no doubt that the assailant’s image was fresh on Clark’s mind when he identified Outerbridge. The Biggers factors weigh strongly in favor of admissibility of the pre-trial identification. Looking at the totality of the circumstances, we conclude the trial court did not abuse its discretion in admitting this evidence.
Outerbridge also asserts that the six individuals in the photo lineup were so similar in appearance there was an extreme likelihood of misidentification, citing no authority for this position except a U.S. Department of Justice training manual. Although this argument is novel, it lacks substance. The purpose of a photo lineup is to provide witnesses a set of individuals who are similar in physical characteristics so that only someone who was actually familiar with the accused would be able to identify them. See Brooks. This court’s decisions are replete with examples of identifications being challenged because the photos were dissimilar but we found none challenging it on the basis of too much similarity.
If this court adopted such an approach there would be an unnecessary limit on the use of identification evidence, in both directions. It is logical that the police should not use images of individuals who are dissimilar; however, the converse is illogical. It is in the best interest of the accused that the other individuals in the photo lineup have similar characteristics as it ensures that an identification is made by someone familiar with the accused. Considering the totality of the circumstances, we conclude the trial court did not abuse its discretion with regard to the identification issues.