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Strong objection to allowing witnesses to look at photo lineup together for identification

Facts

In 1999, Tim Seese’s job was to put Tom’s Snacks into Sims’s vending machines. Seese was accounting for his stock inside Laird Hospital when an estimated $500-$600 was taken from his delivery van. Two hospital employees, Sherry Whinery and Faye Walker, entered the parking lot area after work and noticed a red car speeding into the parking lot. The two ladies, who were 10 to 20 feet away from the car, noticed it had pulled behind a Tom’s truck. The driver of the car was not wearing a hat or a hood, and the driver’s side window was rolled down. Whinery described the weather conditions that day as “sun-shining.” When Whinery and Walker reached the back of the Tom’s truck, they saw a man jump from the back with money bags, get in on the passenger side of the red car, and then the car sped away.

Whinery and Walker went back into the hospital to phone the police. Later that day, both the witnesses were taken to the police department in Meridian and were asked to view photographs in order to identify the accused. While there, they participated in a photograph identification. Although Whinery and Walker viewed these photographs together, there was not a significant amount of communication between the two. The most that was said between the two witnesses at this time was a phrase such as “that’s the driver,” while the other responded immediately, almost in unison, with a phrase such as “yes, it’s the driver,” or “that’s him.” The two witnesses disagreed as to who uttered the first statement and who uttered the agreeing statement. However, both witnesses indicate they identified the accused almost simultaneously.

The witnesses were shown six photographs with both of the suspects included in the six photographs. The photographs were laid randomly on a table for the two witnesses, and they were not in a stack or in a straight line. Whinery and Walker identified Bonnie Burks at this time. Whinery and Walker later identified the two (Burks and James Stradford) in a subsequent jury trial. Whinery stated that her in-court identification was based strictly on what she had seen at Laird Hospital approximately two hours before her photograph identification. Upon being examined by the trial court, Walker also stated that her courtroom identification was not dependent upon her photograph identification.

In court, the witnesses described Burks as a thin black male, dark-skinned, with short, dark hair. Walker stated, “when I saw his face on the picture, I was sure that was him.” Walker also stated that the driver was “looking straight at us and we (the witnesses) stood there and looked straight back at him, in his face. We got a really good look at his face.” In addition, Whinery stated “the whole time he was driving into the parking lot, we were looking at him….”

Burks was convicted of grand larceny and sentenced to five years. On appeal, he argued the photo lineup should have been conducted separately with each witness. MSC affirmed.

Analysis

The joint, pretrial identification made in the present case did not taint the witnesses’ subsequent courtroom identifications because the witnesses demonstrated clear and certain accounts of the events they observed and were not substantially biased by the pretrial photograph identification when viewed under the totality of the circumstances.

Joint identification as a form of pretrial identification to identify alleged defendants can have serious procedural dangers. Pretrial photograph identifications have been generally upheld if the witnesses view the photographs separately and if there is no emphasis placed on certain photographs as opposed to others. See U.S. Supreme Court case Simmons v. United States, 390 U.S. 377 (1968).

A Georgia appellate court case, Kinsey v. State, 464 S.E. 2d 648 (Ga. Ct. App. 1995), reviewed a situation very similar to the one in the present case. Kinsey involved a joint, pretrial photograph identification, where two witnesses were in each other’s presence when the identification was made, and each witness also subsequently made a courtroom identification of the defendant in that case. The Kinsey court stated that there is no indication that either witness relied upon the other’s identification of the defendant. Both witnesses “closely observed Kinsey for five to ten minutes during the robbery,” and both witnesses “unequivocally identified” the defendant approximately ten days after the robbery. The court stated that based on the “totality of the circumstances,” there was not a substantial likelihood of misidentification.

In the present case, the two witnesses were allowed to view a photograph lineup together and were instructed to identify the alleged thieves. The two witnesses were not instructed to keep their selections private and not to converse with each other. In addition, privacy of selection in a pretrial photograph identification is substantially more difficult when the parties are viewing the photographs together. This should not occur; however, under the totality of the circumstances, the identification was not error since both witnesses testified from first-hand knowledge of actually seeing the defendant and not the photographs.

Because of the severe due process violations that could occur when witnesses are not allowed to independently and privately identify defendants, it is important to note that the joint identification allowed by the law enforcement officials in the present case could be a very dangerous procedure to adopt. The likelihood and pressure to agree with another witness in a joint identification is tremendous. The fault of the law enforcement officials in the present case is at best harmless error. The totality of the circumstances surrounding the pretrial photograph identification must be considered, and therefore, the trial court did not err by not suppressing the testimony of witnesses Whinery and Walker.

Even 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 a misidentification. See MSC York v. State, 413 So. 2d 1372 (Miss. 1982).

In U.S. v. Biggers, 409 U.S. 188 (1972), the U.S. Supreme Court sets out five standards to be followed in determining the likelihood of misidentification under the totality of the circumstances. These five factors are as follows:

1) The opportunity of the witness to view the criminal at the time of the crime;

In the present case, the two witnesses were no more than 10 to 20 feet away from the driver at the time of the crime. Both witnesses testified that the driver’s side window was down, and he wore no hats or hoods. Whinery stated the sun was shining. In addition, both witnesses stopped at the end of the truck, “even with the backdoor” of the truck, when the incident took place.

2) The witness’s degree of attention;

Walker stated her attention was drawn to the red car because of the speed with which it was driven into the parking lot. She also stated on cross-examination that the driver was “looking straight at us and we stood there and looked straight back at him, in his face. We got a really good look at his face.” In addition, Whinery stated, “the whole time he was driving into the parking lot, we were looking at him….”

3) The accuracy of the witness’s prior description of the criminal;

Both of the witnesses had similar descriptions of Burks which were that he was a thin, black male with short, dark hair. Whinery also added that the accused in question had a thin face and was dark-skinned.

4) The level of certainty demonstrated by the witness at the confrontation; and

This factor can be supported by the quotes of the witnesses above in factors # 1 and #2. Whinery also stated that she did not have any trouble recognizing the defendant from the photographs and that she was sure she was correct when she saw the photograph. Walker made a similar statement and stated, “when I saw his face on the picture, I was sure that was him.”

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

Both witnesses agreed that the time between the incident and the pretrial photograph identification was approximately two hours. This is not a significant amount of time by which to render the witnesses’ testimony unreliable or inadmissible.

The five factors above are factors Biggers and York have set forth for determining the admissibility and reliability of pretrial identification testimony. The facts of this case and statements by the two witnesses satisfy these five factors.

It should be noted that this court has strong objection to the use of joint pretrial identifications where witnesses are allowed to speak to one another and confer about their selections. This is definitely not a satisfactory method of pretrial identification. However, in limiting its decision to the facts of this case, this court cannot reverse Burks’s conviction. In consideration of the totality of the circumstances, the pretrial photograph identification used in this case was not so unnecessarily suggestive and conducive to irreparable mistaken identification.

 

https://courts.ms.gov/images/Opinions/Conv9693.pdf