there is a heavy burden on defendants who are contesting a pretrial identification procedure


In 2000, Vernon Brown went into the Piggly Wiggly Grocery Store (Piggly Wiggly) in Fulton, Itawamba County, Mississippi. Brown walked to the cashier in the Piggly Wiggly with approximately $90.00 worth of groceries. Brown gave Kantress Evans, the cashier, a check. The check was drawn on a Tupelo Foam Sales, Incorporated account, was payable to V. Edwin Brown, and was for the sum of $252.45. Evans cashed the check and gave Brown the difference between the face amount of the check and the cost of the groceries. The check was returned to the store by BancorpSouth in Fulton. The check was returned as unauthorized because it was believed to have been stolen.

Brown was convicted of uttering a false check and sentenced to 15 years. On appeal, he argued the photo lineup was suggestive. MSC affirmed.


Evans was the cashier who identified Brown as the person who passed her the forged check. Evans identified Brown from the photographic lineup shown to her. Brown alleges that Evans was presented one photograph, that being his photograph. In fact, Evans testified that she was shown ten to fifteen pictures.

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), we 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 practice, Mississippi has tended to lay a heavy burden on defendants who are contesting the propriety of a pretrial identification procedure.

This court has repeatedly held that the jury is the final arbitrator of a witness’s credibility. The issue raised of Evans’s credibility as a witness, as well as, other witnesses at trial rests with the jury. Therefore, we find this issue is without merit.