Stewart v. State, 2012–KA–01828–SCT.

• Decision Date: 06 February 2014
• Docket Number: No. 2012–KA–01828–SCT.,2012–KA–01828–SCT.
• Citation: 131 So.3d 569
• Court: Mississippi Supreme Court
• Parties: Justin STEWART v. STATE of Mississippi.

131 So.3d 569

Justin STEWART

v.STATE of Mississippi.

No. 2012–KA–01828–SCT.

Supreme Court of Mississippi.

Feb. 6, 2014.

Office of State Public Defender by W. Daniel Hinchcliff, attorney for appellant.

Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.

Before RANDOLPH, P.J., PIERCE and KING, JJ.

RANDOLPH, Presiding Justice, for the Court:

¶ 1. Justin Stewart appeals his convictions of armed robbery and felon in possession of a firearm. Stewart argues that the trial court improperly enhanced his sentence, in violation of his rights against double jeopardy, and erred in denying his motion to suppress out-of-court and in-court identifications. Finding no error, we affirm.

FACTUAL BACKGROUND

¶ 2. On July 23, 2010, Stewart and an accomplice ¹ went to a Fred's store on North State Street in Jackson, Mississippi. Stewart purchased a pair of Hanes undergarments with cash. When the clerk, LaQuinta Nelson, opened the cash register to give Stewart his change, Stewart attempted to grab the money in the register. Nelson quickly closed the cash drawer. Stewart then pointed a gun at Nelson and demanded she reopen the cash drawer. Nelson complied. While Stewart was grabbing money out of the drawer, Nelson attracted the attention of Darryl Crumpton, the store manager. Crumpton approached and was ordered to get on the ground. Stewart demanded that Crumpton give him all of the money from the store's office. Instead, Crumpton took Stewart to another cash register. Stewart removed its contents. Crumpton informed Stewart that there was no more money in the store. Stewart fled the store with cash and credit-card receipts from the two registers. The police were informed that the robber was a black male wearing a pink and brown multi-colored hat. The police also were informed that the robber had sped away in a gold or tan car, which had struck a curb exiting the parking lot, causing the right front tire to rupture.

¶ 3. Moments later, an officer observed two black males changing the right front tire of a tan car in a driveway a few blocks from Fred's. As the officer approached the suspects, they fled. Several officers canvassed the area, searching for the suspects. After finding his accomplice, the police found Stewart hiding between a shed and a house. After arresting Stewart, officers retrieved a pink multicolored hat, $1,494 in cash, a revolver, and two Fred's receipts near Stewart's hiding spot. A Fred's shopping bag with a package of Hanes undergarments was found in the car.

¶ 4. On July 29, 2010, Nelson and Crumpton each were asked to review a photo lineup. Both identified Stewart without hesitation. No mention of facial tattoos appeared in the police reports. Nelson testified at trial that she mentioned facial tattoos to the police shortly after the crime. Crumpton testified that he did not.

¶ 5. On October 10, 2012, Justin Stewart was convicted of the crimes of armed robbery and felon in possession of a firearm. On October 22, 2012, he was sentenced to a total of thirty years, twenty years for armed robbery, with an additional five-year gun-enhancement sentence, and ten years for felon in possession of a firearm, with five years suspended. After Stewart's motion for judgment notwithstanding the verdict (JNOV) was denied, he timely appealed.

ISSUES

¶ 6. The following two issues are raised for review:

I. Whether the trial court erred in failing to suppress the photographic lineups where appellant's photograph was the only one with the facial tattoos.

II. Whether the trial court's sentence of Stewart to five years under the firearm-enhancement statute constituted double jeopardy, where he was already being sentenced under the armed-robbery felon-in-possession-of-a firearm statutes.

ANALYSIS

I. Whether the trial court erred in failing to suppress the photographic line-ups and in-court identification.

¶ 7. This Court reviews photographic lineups and in-court identifications as follows:

“The standard of review for suppression hearing findings in ... pretrial identification cases is whether or not substantial credible evidence supports the trial court's findings that, considering the totality of the circumstances, in-court identification testimony was not impermissibly tainted.” Gray v. State, 728 So.2d 36, 68 (Miss.1998) (internal citations omitted). This Court will not disturb a lower court's decision on the suppression of evidence unless “there is an absence of substantial credible evidence supporting it.” Id. For an identification (made out of court or in court) to be excluded, it must be the result of an impermissibly suggestive lineup and the identification must be unreliable. York v. State, 413 So.2d 1372, 1383 (Miss.1982).

Butler v. State, 102 So.3d 260, 264 (Miss.2012) (emphasis original).

¶ 8. “An unnecessarily suggestive pretrial identification is not automatically excluded; rather, ‘evidence of a suggestive out-of-court identification will be admissible if, from a totality of the circumstances, the identification was reliable.’ ” Id. at 266 (quoting York, 413 So.2d at 1381). This Court looks to five factors when determining whether an out-of-court identification was reliable: (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness' degree of attention, (3) the accuracy of the witness's prior description of the criminal, (4) the level of certainty demonstrated by the witness at the confrontation, and (5) the length of time between the crime and the confrontation. Butler, 102 So.3d at 266.

¶ 9. A photo lineup is impermissibly suggestive only if “the accused, when compared with the others, is conspicuously singled out in some manner from the others, either from appearance or statements by an officer.” Id. at 264 (quoting York v. State, 413 So.2d 1372, 1383 (Miss.1982)) (emphasis added). “The test is whether the defendant was ‘conspicuously singled out in some manner from the others,’ not whether the witness noticed that the defendant was singled out.” Butler v. State, 102 So.3d 260, 264 (Miss.2012) (quoting York v. State, 413 So.2d 1372, 1383 (Miss.1982)). To be excluded, an out-of-court photo identification must have been “so impermissibly suggestive as to give rise to ‘a very substantial likelihood of misidentification.’ ” Butler, 102 So.3d at 265 (quoting Neil v. Biggers, 409 U.S. 188, 196–98, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972)). “Minor differences” between the suspects or photographic backgrounds “will not render a lineup impermissibly suggestive.” Butler, 102 So.3d at 265.

¶ 10. Finally, “an impermissibly suggestive pretrial 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 irreparable misidentification.” Id. at 267 (citing York, 413 So.2d at 1383) (emphasis original). “The standard for in-court identifications is heightened because it requires the likelihood of irreparable misidentification.” Butler, 102 So.3d at 267 (citing York, 413 So.2d at 1383) (emphasis original).

¶ 11. Stewart argues that the photo lineups were impermissibly suggestive, since Stewart was the only person with facial tattoos. Thus, he argues that the in-court identification was tainted and unreliable. The State argues that the tattoos are a minor difference and that the trial judge concluded that the tattoos did not stand out in the photographs.

¶ 12. We find that the case sub judice is similar to the cases of White,Foster, and Jones, in which this Court upheld similar identifications. In White, the witness noticed the defendant's plaited hair and forehead tattoo during the commission of the crime. White v. State, 507 So.2d 98, 99 (Miss.1987). This Court upheld the out-of-court and in-court identifications of the defendant even though the defendant was the only suspect in the lineup with plaited hair. Id. at 99–101. The defendant also had a forehead tattoo, which the witness identified at trial. Id. at 99–100. In Foster, this Court upheld the out-of-court and in-court identifications of the defendant even though he was the only person in the lineup wearing a fishing hat, where the defendant had worn a fishing hat during the robbery. Foster v. State, 493 So.2d 1304, 1305–06 (Miss.1986). Likewise, in Jones, this Court upheld the out-of-court and in-court identifications of the defendant even though he was the only suspect in the photo lineup wearing a hat similar to the one worn by the attacker. Jones v. State, 504 So.2d 1196, 1199–1200 (Miss.1987). This Court found that, even though the hat may have played a significant part in the identification, it was not impermissibly suggestive, because the witness had given an accurate description and identified the defendant with great conviction at trial. Id. at 1200.

¶ 13. In the case sub judice, in denying the motion to suppress, the trial court noted that there was no mention from the officer or police reports of the tattoo, and that the tattoos “just don't jump out at you.” ² Stewart argues that the testimony adduced during the trial contradicts the evidence relied upon by the trial court when ruling on the motion to suppress. Specifically, Stewart points to testimony from Nelson in which she states, “[t]he tattoos is what stuck out the most” about Stewart at the time of the robbery.

¶ 14. But Nelson also testified that the encounter with Stewart lasted more than five minutes. During that time, she observed Stewart and his accomplice enter the store. She remembered Stewart asking the manager, “where is your Hanes boxers.” She later observed him in the checkout line for four to five minutes, where he let a couple of people go ahead of him. Nelson testified that the area was well lit. She and Stewart exchanged greetings. Nelson testified that Stewart was in such close proximity to her...