Slight difference in photo was not overly suggestive for photo lineup


In 2002, a man entered Mims’ One Stop Convenience Store on Highway 82, west of Carrollton, Mississippi. Brandishing a shotgun, the man demanded money from store clerk Jacqueline Benford. After retrieving over $2,000 from the clerk, the man exited the store and made his escape in a blue and white Ford LTD.

Approximately two months later, Benford was shown a photo lineup of six individuals. The lineup included five photos of men dressed in jail garb and a driver’s license photo of Henry Dennis. Benford identified Dennis as the culprit of the robbery.

Dennis was convicted of armed robbery and sentenced to 27 years. On appeal, he argued the photo lineup was overly suggestive. MCOA affirmed.


A photographic lineup is impermissibly suggestive when the accused is conspicuously singled out in some manner from others. See MSC York v. State, 413 So. 2d 1372 (Miss. 1982). In Thompson v. State, 483 So. 2d 690 (Miss. 1986), MSC stated that an impermissibly suggestive pretrial identification does not preclude in-court identification by an eye witness 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.

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.
5. The length of time between the crime and the confrontation.

In practice, Mississippi has tended to place a heavy burden on defendants who are contesting the propriety of a pretrial identification procedure. See MSC Brown.

Dennis points out that his picture stands out like a sore thumb from the rest of the pictures used in the photographic identification process. He takes issue with the photographic lineup because his photograph was a driver’s license picture, which included some information pertaining to his license, while the other photographs were pictures of inmates and possessed captions reading “Carroll Co. Det. Center” (Carroll County Detention Center). He further points out that his facial image is larger on his photograph than are the facial images on the other pictures. Citing Anderson, Dennis concludes that the photographic lineup was impermissibly suggestive.

In Anderson, the defendant argued that evidence concerning his identification by the robbery victim in a photographic lineup should have been excluded because of its improper suggestiveness.  The defendant specifically pointed out that the remaining five photographs in the lineup appeared to be developed and printed commercially whereas his photo was a self-developed Polaroid picture with a white border. In rejecting Anderson’s argument, we stated:

This court has reviewed the photographs used in the lineup. The physical characteristics of the persons themselves are sufficiently similar to avoid suggestiveness. The backgrounds of the various photographs indicate quite clearly that they all involve persons in the custody of law enforcement. The only noticeable difference is the different photographic technique used to capture Anderson’s likeness. We conclude that the existence of a white border on Anderson’s photograph does not, of itself, make that photograph so distinctive as to improperly single it out. The other photographs have minor distinctions in shape and size and show different backgrounds. In some of them, the individuals are holding up identification placards and in some they are not. All of these considerations tend to indicate that all of the photographs were taken at different times and possibly with different cameras. Thus, the minor differences in the appearance of Anderson’s photograph are not so distinctive as to improperly single him out. There is, in our opinion, no possibility of a very substantial likelihood of irreparable misidentification.

Dennis argues that Anderson is helpful because it points out the difference between minor distinctions and photos that are suggestive. He concludes that, in Anderson, all of the photos had some differences while here all the photos were alike except his.

Upon review of the photographs used in this case, we do not find that the minor differences in the appearance of Dennis’s photograph are so distinctive as to improperly single him out. While the other photographs are marked with “Carroll Co. Det. Center” and Dennis’s photograph seems to be slightly larger than the others, all pictures of the lineup have the same format, that is, the picture and biographical information of each person.

Moreover, the men in the photographs seem to be of similar complexion. We consequently do not find that the photographic identification lineup in this case is impermissibly suggestive. Even if we were to find that the photographic lineup was impermissibly suggestive, this would not be a basis for reversing Dennis’s conviction because he confessed to the crime. Therefore, this issue is absolutely devoid of any merit.