Fells v. State, No. 49361

• Citation: 345 So.2d 618
• Decision Date: 27 April 1977
• Docket Number: No. 49361
• Parties: Cleveland FELLS v. STATE of Mississippi.
• Court: United States State Supreme Court of Mississippi

Page 618

345 So.2d 618

Cleveland FELLS v. STATE of Mississippi.

No. 49361.

Supreme Court of Mississippi.

April 27, 1977.

Curtis L. Collins, Clyde W. Mullins, Natchez, for appellant.

A. F. Summer, Atty. Gen., by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before PATTERSON, SMITH and LEE, JJ.

PATTERSON, Presiding Justice, for the Court:

Cleveland Fells was convicted of armed robbery by the Circuit Court of Adams County and sentenced to twenty years in the state penitentiary.

On January 31, 1975, at about 6:24 p.m., Boothe's Package Store, Inc., in Natchez was robbed. The clerk of the store, Mrs. Joyce Johnson, was then confronted by a robber brandishing a revolver, who stated: 'This is a robbery,' or, 'This is a holdup.' Waiving the gun in her face, he demanded the contents of the cash register and when it was obtained, Mrs. Johnson was commanded to 'fall down' whereupon the robber turned to flee and while doing so, dropped some coins. Violating a previous order of silence, Mrs. Johnson exclaimed: 'You're dropping part of it' The bandit replied by firing a shot into the ceiling and fleeing.

Mrs. Johnson remained on the floor until her brother entered the shop a moment later. He telephoned the police and Mrs. Johnson described the robber as a black male of slender build between five feet eleven inches and six feet tall, weighing 145 to 150 pounds and wearing dark trousers with a print shirt. While the Johnsons were thusly engaged, an employee entered the store and upon learning of the robbery, informed them that upon exiting his car, he had seen an individual, running at the time, proceed toward East Oak Street. Approximately two and one-half minutes after receipt of this information by the police, the appellant was arrested on Oak Street. Oak Street is about one block south of Boothe's Package Store as it turns off of Pine Street. The arresting officer testified that the appellant fitted the description he had received of the robber.

When Fells was frisked, he had $176 in his right front pocket consisting of five, ten, and twenty dollar bills with the exception of a one dollar bill. An accounting revealed the store to have been robbed of $274.98, largely in twenties, tens, fives, ones and some change.

Thirty or forty-five minutes after Fells was arrested, a revolver was found on Oak Street within fifty feet of where the appellant was apprehended and between that spot and the liquor store. However, no fingerprints were obtained from the weapon.

Shortly after 7:00 p.m. the same day, Mrs. Johnson identified the appellant as the robber from a 'lineup' at the Natchez Police Station. Four black males, other than the appellant, participated and all were trusties from the city or county jails. The men were dressed in street clothing with light shirts. Only Fells wore a 'print' shirt, the same he had on at the time of arrest.

The appellant's first trial ended in a mistrial because the jury was unable to reach a verdict. During the second trial both Mrs. Johnson and a police investigator, Officer Hude, testified concerning the methods employed and the result obtained at the out-of-court identification procedure. Additionally, Mrs. Johnson testified that she observed the appellant for one or one and one-half minutes at the robbery when, '(she) stared in his face, directly into his eyes.'

Fells argues that his conviction is improper because, prior to indictment, he was subjected to an unnecessarily suggestive police lineup without the benefit of counsel, and evidence of such was given at the trial in an effort by the state to improperly 'bolster' its case, which singly, or in combination, violated his Fifth, Sixth and Fourteenth Amendment rights under the United States Constitution as well as Article 3, Sections 14 and 26, of the Mississippi Constitution (1890).

Concerning appellant's lack of counsel at the lineup conducted shortly after the robbery, in Cox v. State, 326 So.2d 794 (Miss.1976), this Court reaffirmed its adoption of the rule announced by the United States Supreme Court in Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), and held that the right to counsel does not apply to preindictment lineups. Accordingly, no Sixth Amendment deprivation is here presented.

The appellant's Fifth Amendment claim focuses upon the procedure employed at the lineup thus challenging the trustworthiness of the resulting identification evidence adduced at trial which led to his conviction. However, Fells does not direct the Court's attention to any specific instances of objectionable procedure, but rather believes it 'overwhelming (sic) obvious that the lineup, the procedure used, and the parties involved make it suggestive and conducive to irreparable mistaken identification.'

When similarly confronted in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the United States Supreme Court said:

. . . It is, first of all, apparent that the primary evil to be avoided is 'a very substantial likelihood of irreparable misidentification.' Simmons v. United States, 390 U.S. (377) at 384, 88 S.Ct. (967) at 971, (19 L.Ed.2d 1247). While the phrase was coined as a standard for determining whether an in-court identification would be admissible in the wake of a suggestive out-of-court identification, with the deletion of 'irreparable' it serves equally well as a standard for the admissibility of testimony concerning the out-of-court identification itself. It is the likelihood of misidentification which violates a defendant's right to due process . . .. Suggestive confrontations . . . increase the likelihood of misidentification . . ..

What is less clear from our cases is whether . . . unnecessary suggestiveness alone requires the exclusion of evidence. . . .

We turn, then, to the central question, whether under the 'totality of circumstances' the identification was reliable even though the confrontation procedure was suggestive. As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime (Mrs. Johnson was face-to-face with the robber separated only by a counter in a well-lighted store), the witness' degree of attention, the accuracy of the witness' prior description of the criminal (Mrs. Johnson missed his true height by one inch and weight by five pounds; the description of his clothing was exact), the level of certainty demonstrated by the witness at the confrontation (Mrs. Johnson was 'positive' and unwavering), and the length of time between the crime and confrontation (approximately thirty minutes). . . . (409 U.S. at 198-199, 93 S.Ct. at 381-382, 34 L.Ed.2d at 401-411)

When the Biggers test is applied, the fact that Fells was wearing a shirt similar to that described by Mrs. Johnson, and which he wore when arrested, did not make the lineup so suggestive as to result in the 'likelihood of misidentification.' See State v. Banks, 296 So.2d 314 (La.1974); McCay v. State, 51 Ala.App. 307, 285 So.2d 117 (Ala.1973). Rather, the identification of Fells was direct and resulted from the previous 'eyeball to eyeball' confrontation a few minutes before in the well-lighted liquor store.

Having found no error of constitutional moment, the decisive issue now concerns the propriety of permitting in evidence the testimony of Mrs. Johnson and Officer Hude regarding the extra-judicial identification.

Traditionally, evidence of an extra-judicial identification has been considered hearsay and this Court has categorized such as impermissible 'bolstering.' See Porter v. State, 339 So.2d 564 (Miss.1976). A divergent view has arisen, however, which admits the prior identification as independent, substantive evidence of identity by a witness who is available at trial for cross-examination as well as testimony regarding the identification by third parties present who are also available for cross-examination. Martin v. Commonwealth, 210 Va. 686, 173 S.E.2d 794 (1970); State v. Simmons, 63 Wash.2d 17, 385 P.2d 389 (1963); People v. Gould, 54 Cal.2d 621, 7 Cal.Rptr. 273, 354 P.2d 865 (1960).

A common theme linking those authorities accepting this evidence may be stated as follows:

1. Need; eye witnesses to the crime may be unavailable for whatever reason or less certain in their identification due to the passage of time before trial or altered appearance of the defendant.

2. Reliability; if the procedure used to obtain the identification is not overly suggestive, then subjecting the witness to cross-examination at trial will insure its trustworthiness.

Moreover, it would seem to be a dictate of common sense that the 'best evidence' of identification is normally the first identification because it is nearest in time to the crime. IV Wigmore on Evidence, section 1130 (1972), analyzes such evidence as follows:

Offered (6) after impeachment as to recent contrivance (continued): Statements identifying an accused, on a former occasion. Ordinarily, when a witness is asked to identify the assailant, or thief, or other person who is the subject of his...