Facts
In 2006, twenty-two-year-old Jesse Green had $4,400 in income tax return proceeds and he was interested in buying a car. His brother, Eric, told him about a black Camaro Z28 that was for sale and gave him a contact number. Green spoke to a man named Ricky in Arkansas. They arranged to meet in the parking lot of the Isle of Capri Casino.
Green, his brother Jerryco, and Roger Leslie drove to the parking lot and waited for the black Camaro. When it did not appear, Jerryco went inside the casino to telephone Ricky. While Jerryco was inside the casino, a white Cadillac pulled up behind Green’s red truck. By Green’s description, one man suddenly appeared at his window and another man appeared at the driver’s side window where Leslie was sitting. Both men were armed with pistols.
One robber took $400 from Green’s pocket, and then he “kind of butted” Green in the head with the pistol and said, “That’s not all you got. You don’t think I’ll kill you?” He took the remaining $4,000. As one armed man attempted to flee the scene, the other armed man demanded that Leslie give him the keys to Green’s truck. Once they retrieved the keys, ensuring they could not be followed, the robbers sped away from the casino against the flow of traffic and headed toward Arkansas.
Several other individuals testified that they witnessed a white Cadillac speeding out of the casino parking lot heading toward Arkansas. Following the robbery, Green and Leslie reported the incident to a casino security officer who contacted the police.
When Coahoma County Investigator Fernando Bee arrived at the casino he interviewed Green and Leslie, and the two victims gave Bee descriptions of the robbers and of the white four- door Cadillac they were driving. They also gave Bee a partial license plate number of the vehicle; however, he was unable to match the number. The individual who robbed Green was described as having a stocky build, a dark complexion, braids or dreads, a partial gold tooth, and, according to Green, a chubby face.
A day or two after the robbery, Bee received a call from Chief Deputy David Lawman in Phillips County, Arkansas. Bee met with Lawman in Arkansas and obtained photos of possible suspects, one of which was James Brownlee. After returning to Mississippi, Bee developed a photo lineup consisting of photos of Brownlee and five other individuals. The following day Green came to the station to view the lineup and identified Brownlee as the person who robbed him.
The next day, Leslie viewed the same lineup and also identified Brownlee as the robber. Green and Leslie then signed affidavits against Brownlee and he was arrested in Arkansas soon after. However, Bee never discovered the white Cadillac, the gun used in the robbery, or any removable gold teeth.
Brownlee was convicted of armed robbery and sentenced to 15 years. On appeal, he argued the lineup was improper because he was the only one with dreadlocks. MCOA affirmed.
Analysis
The testimony shows that two witnesses identified Brownlee out of court from a photo array and also made in-court identifications of Brownlee as the culprit who robbed Green at gunpoint of $4,400. As to this, Brownlee argues that the photo lineup was “impermissibly suggestive” because he was the only individual who had dread locks and cites Dennis.
In Dennis, the defendant made a similar argument and indicated that the suggestive nature of the lineup stemmed from the facts that his picture was a driver’s license picture while the others were pictures of inmates and that his image was larger than the others. MCOA conceded the differences identified by Dennis, but found the issue absolutely devoid of any merit. In so doing, the court pointed out that each picture had the same format and the men pictured had the same complexion.
An in-court identification by an eyewitness will not be thwarted by an impermissibly suggestive pre-trial identification unless under the totality of circumstances the identification was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. See Houston.
Therefore, we must determine if Greens’s and Leslie’s photo identifications of Brownlee carried a likelihood of irreparable misidentification. In so doing, we must apply the factors expounded in U.S. Supreme Court case Neil v. Biggers, 409 U.S. 188,(1972), listed as follows: (1) the opportunity of the witness to view the accused at the time of the crime, (2) the degree of attention exhibited by the witness, (3) the accuracy of the witness’ prior description of the criminal, (4) the level of certainty exhibited by the witness at the confrontation, and (5) the length of time between the crime and the confrontation.
The photo lineup in this case was a grouping of six pictures of men. As in Dennis, they were of the same complexion, appeared to be of the same age group, and the size of the image of each man was roughly equivalent. While Brownlee is the only individual in the lineup with dread locks, other individuals could reasonably be said to have the same or similar hairstyle, especially given the less than stellar detail of the photos in the array.
Additionally, Green was able to view his robber’s face for a full four minutes. He testified that Brownlee exited a white Cadillac and, all of a sudden, was in his window with a gun. He identified Brownlee exactly as he did to the police. Namely, he described Brownlee as having braids and a chubby face. When asked if he would ever forget Brownlee’s face, Green responded, “No, sir, never will.” Green was shown the lineup approximately two weeks after the robbery and Bee testified that when Green identified Brownlee from the photo lineup his only hesitation stemmed not from uncertainty that Brownlee was the robber, but from his confusion of the numbers used in the photo indicating height. As such, Brownlee’s claim that Green’s pre-trial identification was somehow tainted is without merit.
As to Leslie’s out-of-court identification, we reach the same conclusion. Leslie testified that he observed Brownlee rob Green and gave a description to Bee that the robber was slim with “dreads”, and he identified Brownlee in the photo lineup the day after Green. Based upon the record before us, we cannot say Leslie’s identification of Brownlee from the photo lineup was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.