Facts
In 1996, Willie McCall and Brian Lanier were at the South Mall Apartment complex in Montgomery, Alabama smoking marijuana. Soon thereafter, they walked to another apartment in the same complex to meet William Wilson and a few other friends. While at Wilson’s apartment, Wilson and McCall separated themselves from the rest of the group and spoke privately in an adjoining room.
Shortly thereafter, Wilson and McCall emerged from their impromptu meeting and asked those in the room if they cared to “go for a ride.” Lanier volunteered to join them on their trip, but had no idea where they were headed. The three men left the apartment complex in a silver-grey Ford Crown Victoria. After running a brief errand in town, Wilson steered the vehicle onto the highway for the ill-fated trip south to the Mississippi Gulf Coast. As soon as they were on the highway, McCall turned to Lanier and informed him that they were traveling to the Gulf Coast to commit a robbery on an out-of-town patron at one of the local casinos.
They arrived in Mississippi around 11:00 that night and rode around for awhile just checking out different casinos, checking out different people to rob. After leaving their Texas home earlier that day, Bill and Darlene Allen arrived in Mississippi to celebrate their anniversary and to visit their daughter, stationed at Kessler Air Force Base on the Gulf Coast. After eating dinner with their daughter, the Allens decided to celebrate their weekend out-of-town by enjoying a few games of video poker at a local casino.
After a few hours at the gaming tables, the Allens returned to the Comfort Inn motel on Highway 49 around midnight. Unbeknownst to them, the Allens were followed from the casino, down the highway and into the motel parking lot by Wilson, McCall and Lanier. Apparently the Allens fit the loose profile of potential victims envisioned by Wilson, McCall and Lanier because they had a Texas license plate on their silver van and were leaving a casino at a late hour.
As their evening wound down, Mr. Allen was about to leave the room to fill an ice bucket when a man forced the door open. Mr. Allen and the assailant, later identified as William Antonio Wilson, struggled violently with each other, making their way outside the room into the breeze way. Mrs. Allen heard a gunshot and ran outside to find Wilson on top of her husband. It appeared to her that Mr. Allen had been shot in the chest.
Immediately after she crossed the door threshold, a second person, later identified as Willie Clarence McCall, put a gun to her head and threatened to kill her. At great risk to her own life, she ignored his threat and tried to aid her wounded husband. McCall thwarted her efforts by striking her in the back of her head, knocking her to her knees. Still she continued to try and reach her husband but Wilson, who was going through her husband’s pockets, picked her up and threw her against a wall.
After they robbed him, Mrs. Allen made her way back to her husband and covered his body with hers. As Wilson and McCall retreated down the breeze way to the waiting car, McCall fired several shots at the couple, narrowly missing them. Lanier observed the entire scenario in his capacity as a lookout from a distance of twenty five yards. The Gulfport Police Department and medical personnel were immediately summoned to the scene, but Mr. Allen died as a result of the gunshot wound to the chest. Mrs. Allen suffered injuries to her neck and head as a result of being struck by the pistol. For their efforts, each participant got about $150, which was divvied up at a Waffle House between Gulfport and Montgomery.
Wilson was convicted of murder and sentence to life. On appeal, he argued his statement should have been suppressed and that the photo lineup was overly suggestive. MCOA affirmed.
Analysis
A. Statement
On the basis of statements made by McCall to Gulfport police officers investigating the Allen case, the officers interviewed Wilson about what part, if any, he played in the commission of this senseless crime. During the course of that interview, Wilson made a statement to the police officers admitting that he was in Gulfport and involved with the crime. Detective Carvin testified that Wilson waived his Miranda rights, that Wilson was not threatened or coerced into making a statement, and that no promises were made to him in order to obtain his statement.
On cross-examination, Carvin denied telling Wilson that he couldn’t do anything for him if Wilson didn’t talk to the officers. During the interview, Wilson made one phone call to his sister, a military police woman, and she told Wilson to tell the police whatever they want to hear.
The trial judge found that allowing Wilson to make a phone call was not an offer of reward nor an inducement. Further, the trial court ruled that the conversation with his sister, since she was an uninvolved third party, in no way compromised the voluntariness of the statement regardless of her advice. Conduct by third parties not connected with the law enforcement officers in the investigation will not vitiate a confession which might be rendered incompetent and inadmissible if such conduct had been committed by a law enforcement officer. See MSC Darghty v. State, 530 So. 2d 27 (Miss. 1988). Wilson’s conversation with his sister falls squarely within the letter of the enunciated law.
The trial judge used the correct legal standard and found the statements admissible. No clear error rendering the judgment reversible on this issue presents itself.
B. Photo Lineup
In a photographic line-up ordered by the lower court at the request of defense counsel, Mrs. Allen identified the first gunman as Wilson. Wilson complains that his photo identification was tainted because the line-up was impermissibly suggestive. Wilson believes that because he is two to three inches taller than the other suspects in the photos according to height charts in the photo background, he was unfairly singled out by the police officers. This argument is without merit.
MSC has established that a photographic array containing pictures of the assailant viewed by the victim is not unduly prejudicial unless the assailant’s photograph is notably different from the remaining photographs or the officer conducting the photo line-up makes some comment suggesting the identification of the assailant. See Wilson v. State, 574 So. 2d 1324 (Miss. 1990).
Further, even if the pre-trial photo line-up is determined to be unduly suggestive, a later in-court identification is still perfectly admissible unless, from the totality of the circumstances, the pre-trial identification was so suggestive as to create a very substantial likelihood of irreparable misidentification.
Mrs. Allen participated in the photographic line-up for the purpose of determining whether or not she could identify the defendant as the assailant. Mrs. Allen had not yet viewed a line-up of any kind, either physical or photographic. The defense objected vigorously to her identifying the defendant in court for the first time as the assailant because they believed that she would be prone to point out the only black individual in front of the rail not in the jury box.
In an overabundance of caution, the trial judge ordered the State to conduct a photographic line-up. The trial court even went so far as to allow defense counsel to pick the place the photo would appear in the sequence of the six presented to Mrs. Allen. She immediately identified suspect number four, Wilson, as the perpetrator. Defense counsel made a motion to suppress the photographic line-up.
Darlene Allen appeared in court at the suppression hearing and testified that she identified Wilson as the assailant from the photographic line-up. In regard to the photo identification, she testified that she relied upon the color and shape of his eyes rather than his height. She claimed that she did not notice the background numbers reflecting the height of each suspect in the photos.
In this case, the trial court specifically found the absence of suggestiveness in the pre-trial identification, and nothing in the record discredits his conclusion. Based on the foregoing analysis we hold that a variance in height of two to three inches among six individuals posed in mug shot photographs in no way makes a photographic line-up impermissibly suggestive and that there was no substantial likelihood of misidentification.