Stradford v. State, No. 1999-KA-01755-COA.

• Decision Date: 07 November 2000
• Docket Number: No. 1999-KA-01755-COA.
• Citation: Stradford v. State, 771 So.2d 390 (Miss. App. 2000)
• Parties: James A. STRADFORD, Jr. a/k/a James Alfred Stradford, Jr., Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

771 So.2d 390

James A. STRADFORD, Jr. a/k/a James Alfred Stradford, Jr., Appellant, v. STATE of Mississippi, Appellee.

No. 1999-KA-01755-COA.

Court of Appeals of Mississippi.

November 7, 2000.

Edmund J. Phillips, Jr., Attorney for Appellant.

Office of the Attorney General by Jeffrey A. Klingfuss, Attorneys for Appellee.

BEFORE KING, P.J., BRIDGES, MOORE, AND THOMAS, JJ.

BRIDGES, J., for the Court:

¶ 1. This is an appeal from a conviction of grand larceny in the Circuit Court of Newton County, Mississippi, Honorable Marcus D. Gordon presiding. The defendant, James A. Stradford, Jr., was found guilty by a jury of his peers and was sentenced to five years in the custody of the Mississippi Department of Corrections.

¶ 2. Following a denial of his post-trial motions, Stradford filed this appeal citing two critical errors on the part of the lower court. First, Stradford claims that because the indictment fails to correctly identify the victim of the crime of larceny, it was "fatally defective." Secondly, Stradford cites error on the part of the trial court in failing to suppress eyewitness testimony identifying Stradford as one of the perpetrators of the crime in a photographic lineup and in failing to suppress the subsequent in-court identification of Stradford by those same witnesses.

FACTS

¶ 3. On the morning of October 30, 1998, Tim Seese, a delivery man for Grady Sims d/b/a Sims Distributing Company, a distributor of Tom's snack foods, parked the company delivery van in front of Laird's Hospital in Union, Mississippi. Seese left the doors of the van open as he was inside of the hospital making an inventory of the snack machines and refilling them. Sherry Whinery and Faye Walker, two of the hospital's employees, approached Seese to inform him that they had witnessed two individuals take something from the delivery van driven by Seese. Upon returning to the van, Seese ascertained that between $500 to $600 in coins and one dollar bills was missing from the van.

¶ 4. Following a call to the police by the witnesses, an investigation of this incident took place. The investigation led to the questioning of Whinery and Walker. They provided a detailed description of the thieves to the police, including the fact that they were two black men. As well, Whinery and Walker gave a detailed description of the car in which the perpetrators drove away, including the make and color of the car, and the Alabama license plate number. A report was then radioed out to all nearby law enforcement agents. Soon after, the police pulled over a vehicle matching the description given by Whinery and Walker. The car was occupied by Stradford and Bonnie Richards Burks. Burks and Stradford were immediately apprehended and a search of the vehicle ensued. No money was found in the car at the time of the search; however, it was later recovered by a highway maintenance worker along a roadside, apparently having been dumped there after the crime.

¶ 5. About two hours after Burks and Stradford were arrested, Whinery and Walker were shown photographs of six black men. At that time, they identified Burks and Stradford as the men they saw robbing the delivery van at the hospital. Before the trial began, Burks filed a motion to suppress the identification testimony of Whinery and Walker. At trial, both Burks and Stradford objected to this identification testimony. A hearing was conducted outside the presence of the jury regarding the motion and objections. The trial judge denied the motion and overruled the objections, allowing the testimony to be heard by the jury. Stradford cites error on the part of the trial court for failing to suppress such testimony.

¶ 6. Stradford also alleges that a crucial flaw existed in the substance of the indictment, charging that it failed to correctly identify the victim of the robbery. The indictment was written to state the name of the victim as "Tim Seese." However, for purposes of this appeal, Stradford now contends that the indictment was faulty because it should have articulated that the owner of the van, Grady Sims, was the victim rather than Seese.

STANDARD OF REVIEW

¶ 7. On the issue of whether to suppress identification based on a photographic display, our scope of review is provided by the Mississippi Supreme Court in York v. State, 413 So.2d 1372, 1378 (Miss.1982):

[W]e hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

This language echoes the holding of the United States Supreme Court in Simmons v. U.S., 390 U.S. 377, 383-84, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). In that case, the Court held that there shall be no conviction overturned based on a due process violation in a pretrial identification of the defendant(s) unless the procedure used in the photographic display made it such that the photographs were "so impermissibly suggestive" that there would be a "substantial likelihood of irreparable mistaken identification." Id.

¶ 8. Regarding in-court identification by a witness following a pretrial photographic identification, our opinion in Buggs v. State, 754 So.2d 569 (¶ 20) (Miss.Ct.App. 2000), provides that a reviewing court may not disturb the ruling of the trial judge unless there is an absence of "substantial credible evidence supporting it." (citingRay v. State, 503 So.2d 222, 224 (Miss. 1986)).

¶ 9. As to the second issue in review, the amendment of the indictment to reflect the true name of the victim, it is this Court's task to review whether the proposed amendment would be one of form and not of substance. Evans v. State, 499 So.2d 781, 785 (Miss.1986). Miss.Code Ann. § 99-17-13 (Rev.1994) provides that where there is any variance between the indictment for any offense and the name or surname, or both or in the description of a person the following applies:

[I]t shall and may be lawful for the court before which the trial shall be had, if it shall consider such variance not material to the merits of the case, and that the defendant cannot be prejudiced thereby in his defense on the merits, to order such indictment and the record and proceedings in the court to be amended according to the proof, whenever it may be deemed necessary by the court to amend such indictment....

Id.

LEGAL ANALYSIS

¶ 10. Stradford urges this Court to overturn the conclusions of the trial court because he claims that the trial court erred in allowing the testimony of Whinery and Walker regarding their photo identification and, subsequently, their in-court identification of Stradford. However, it is our opinion that there is no merit to this argument. In Wilson v. State, 759 So.2d 1258 (¶ 10) (Miss.Ct.App.2000), (quoting Wilson v. State, 574 So.2d 1324, 1327 (Miss.1990)), we concluded that:

Our supreme court has established that a photographic array containing pictures of the [defendant] viewed by the victim [or witnesses] is not unduly prejudicial unless the [defendant'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 [defendant]. Further, even if the pretrial 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 pretrial identification was so suggestive as to create a "very substantial likelihood of irreparable misidentification."

In the case at bar, there is no evidence presented in the record that would indicate a notable difference in the photograph of Stradford and the photographs of the other men that were shown to Whinery and Walker. Stradford claims that the photographs of him and Burks were the only photographs where there was not present an identification tag worn by criminals who had been arrested. Without condoning or encouraging the procedure of placing Stradford and Burks in the lineup without identification tags, we are convinced that the trial judge was correct in discounting this argument. Whinery and Walker testified that they clearly were not influenced by the absence of these tags. In York, the Mississippi Supreme Court opined that, to be impermissibly suggestive, the photograph of the defendant must be "conspicuously singled out in some manner from others...." York, 413 So.2d at 1383. It is our opinion that the missing name tag on the defendant would not serve to single out Stradford in a prejudicial fashion. Rather, the argument could easily be made that the absence of the name tags in the photographs of Stradford and Burks could most likely work in their favor, as the witnesses could arguably be more apt to choose a photograph where it was apparent that the person in the photograph had been arrested and booked for a crime. We do find it of great importance to note that in other cases, depending on the surrounding facts and evidence, this process could prove to be precarious. Therefore, we acknowledge that this is not the most preferable approach to a lineup and we do not purport to advocate the idea that any lineup should reflect significant differences in any of the photographs. Still, because of the overwhelming identification evidence in this case, we are not convinced that Stradford was prejudiced by these missing identification tags or that the outcome would have been any different with the tags present.

¶ 11. Looking to the record of this trial, we find that this case should be affirmed as the photograph of Stradford was not "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." York, 413 So.2d at 1378. Further, it is our opinion that there was substantial evidence to...