Wilson v. State

• Decision Date: 19 December 1990
• Docket Number: No. 89-KA-0301,89-KA-0301
• Parties: James WILSON, Jr. v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1324

574 So.2d 1324

James WILSON, Jr. v. STATE of Mississippi.

No. 89-KA-0301.

Supreme Court of Mississippi.

Dec. 19, 1990.

Rehearing Denied Feb. 6, 1991.

Barry H. Powell, Thomas Price Alston, Jones & Davis, Dennis L. Horn, Horn & Payne, Jackson, Grady F. Tollison Jr., Tollison & Alexander, Oxford, for appellant.

Mike C. Moore, Atty. Gen., Marvin L. White, Jr., and Wayne M. Snuggs, Asst. Attys. Gen., Deirdre McCrory, Sp. Asst. Atty. Gen., Jackson, for appellee.

William L. Denton, Denton & Tyler, Biloxi, Lewis H. Burke, Vicksburg, Floyd Abrams, Cahill Gordon & Reindel, Laurence T. Sorkin, Anthony Paduano and John Holdridge, Cahill Gordon Firm, New York City, Luther T. Munford, Phelps Dunbar Marks Claverie & Sims, Jackson, for amicus curiae.

En Banc.

SULLIVAN, Justice, for the Court:

On Thursday, November 20, 1986, at approximately 3:00 o'clock P.M., Mrs. Sungok (Gloria) Im was murdered during an apparent robbery of the Continental Wig Shop located across Bailey Avenue from the Jackson Mall in Jackson, Mississippi. An autopsy revealed numerous stab wounds and lacerations. Her throat had been so severely slashed that she was almost decapitated. James Wilson, Jr., was indicted and charged with the commission of this murder. The first trial resulted in a hung jury. Wilson was re-indicted as an habitual offender and the second jury found Wilson guilty but was unable to agree on a sentence. Wilson, a recidivist, was then sentenced to life imprisonment without the benefit of probation or parole.

I. WAS WILSON'S RIGHT TO COUNSEL VIOLATED BY HIS LINEUP IDENTIFICATION?

Ellis Ray Manuel had a face to face confrontation with Wilson in the Wig Shop after the murder of Mrs. Im.

Wilson was displayed to Manuel as part of a five man lineup. Also present to view the lineup was Wilson's attorney, Doc Kellum. No objection was made to the manner in which the lineup was conducted. After viewing the array, Manuel was escorted from the viewing room to an adjacent hallway where he identified Wilson as the armed assailant from the wig shop on the day Mrs. Im was murdered. There was no objection to this procedure.

While Kellum did not accompany Manuel and the police officers into the hallway, the record does not indicate that he was precluded from doing so.

In the context of lineups we have held that an accused has the right to have his counsel present during the lineup. Magee v. State, 542 So.2d 228, 233 (Miss.1989); Jimpson v. State, 532 So.2d 985, 989 (Miss.1988); Nicholson v. State, 523 So.2d 68, 77 (Miss.1988). In the same context, an accused does not enjoy the right to counsel during a photographic lineup. See Magee, 542 So.2d at 233; Nicholson, 523 So.2d at 71-72; Johnson v. State, 359 So.2d 1371, 1374 (Miss.1978). See also, United States v. Ash, 413 U.S. 300, 321, 93 S.Ct. 2568, 2579, 37 L.Ed.2d 619 (1973).

The post-viewing confrontation between Manuel and the police was not a "confrontation" between Wilson and the police. In Jimpson, 532 So.2d at 989, we specifically recognized that an accused enjoys the right to counsel at a lineup. We now hold that only an actual confrontation with the defendant at a lineup is the critical stage which requires the right to counsel. Wilson was not present at the post-lineup encounter between Manuel and the police and there was no "actual confrontation" between Wilson and the witness. Therefore, the presence of counsel is not required. We note that counsel for the defendant did not request a post viewing interview with Manuel. This assignment of error is without merit.

II.

WAS THE LINEUP SO SUGGESTIVE

AS TO VIOLATE DUE

PROCESS OF LAW?

Wilson argues first that the actual live lineup was a per se violation of his due process rights because Manuel had failed to identify Wilson from any pictorial lineup administered prior to the live lineup. The record indicates that the photograph used in the pictorial lineup was eight years old and there was testimony at the trial that Wilson's appearance had changed since that photo was taken.

In Robinson v. State, 473 So.2d 957, 961 (Miss.1985), a witness was unable to identify a defendant from a photograph on the night of the robbery but subsequently did identify the defendant in a photographic lineup. We ruled that these grounds were insufficient to prevent an in-court identification by the witness.

In Magee v. State, 542 So.2d 228, 232-33 (Miss.1989), a robbery victim was unable to identify the defendant from a live lineup. The next day she positively identified the defendant from a photographic lineup. In spite of the fact that the defendant was the only person who appeared in both the photo lineup and the actual lineup, we found no merit to the contention that the trial court erred in allowing the victim's identification testimony. We followed United States v. O'Neal, 496 F.2d 368, 372 (6th Cir.1974), and said:

The initial misidentification on the part of these eyewitnesses to a crime did not completely destroy the value of their testimony or render it inadmissible. The jury was fully advised of the original mistake and had it as well as the subsequent testimony identifying appellant before them to weigh. The weight to be given this evidence was for the jury to determine.

We have already rejected the rationale upon which Wilson bases his argument that the trial court committed a per se violation of due process and we reject it again.

As a second point, Wilson argues that Manuel's identification of Wilson "cannot stand in light of Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401, 411 (1972)." We have recognized many times that the Biggers factors come into play only if the identification procedure utilized was impermissibly suggestive. Jones v. State, 504 So.2d 1196, 1199 (Miss.1987).

In York v. State, 413 So.2d 1372, 1383 (Miss.1982), we discussed at length allegedly suggestive pre-trial procedures and their effect on in-court identification:

Only pretrial identifications which are suggestive, without necessity for conducting them in such manner, are proscribed. A lineup or series of photographs in which 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, is impermissibly suggestive. (citations omitted.)

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.

Even if testimony is proffered of the out-of-court identification itself, the same standard exists as to the above, with the omission of the word 'irreparable'.

An unnecessarily suggestive pre-trial identification does not prevent an in-court identification by an eyewitness "... unless from the totality of the circumstances the identification was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Nixon v. State, 533 So.2d 1078, 1087 (Miss.1987); Goggins v. State, 529 So.2d 649, 652-53 (Miss.1988); Wash v. State, 521 So.2d 890, 895 (Miss.1988); York v. State, 413 So.2d 1372, 1383 (Miss.1982). Upon reviewing a photograph of the lineup participants, we find nothing that would distinguish Wilson from the other participants in the lineup. Nothing in the trial record indicates that Wilson was singled out in any way. The identification procedure was not impermissibly suggestive and therefore, the Biggers factors do not even come into play.

Assuming arguendo, that the lineup was impermissibly suggestive, Manuel's identification does not have to be excluded "if upon consideration of the totality of the circumstances there was no substantial likelihood of misidentification." Lannom v. State, 464 So.2d 492, 494 (Miss.1985). The standards to be considered under these circumstances are:

(1) 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's prior description of the criminal;

(4) The level of certainty exhibited by the witness at the confrontation;

(5) The length of time between the crime and the confrontation.

Nixon, 533 So.2d at 1087; Goggins, 529 So.2d at 652-53; Wash, 521 So.2d at 895-96; Lannom, 464 So.2d at 494-95; York, 413 So.2d at 1383; Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140, 154 (1977); Neil, 409 U.S. at 199, 93 S.Ct. at 382, 34 L.Ed.2d at 411.

With these standards in mind, we note:

(1) Opportunity to be observed.

At the suppression hearing, Manuel testified that he viewed the suspect under bright lighting from a distance of three to four feet for approximately three minutes. While the trial judge expressed his doubts as to whether Manuel actually stood and watched an individual armed with a knife advance toward him for three minutes, he did determine that the witness had an ample opportunity to view the face of the suspect.

(2) Degree of attention.

Manuel testified that as he backed away from the assailant, he kept an eye on him at all times. At the trial Manuel testified that he focused on the assailant from the time he exited the shop to when he reached the vegetable vendor across the street.

(3) Accuracy of prior description.

Manuel described the assailant as a black man, 35 to 42 years of age, between 5'10" and 6' tall, weighing between 210 and 240 pounds, and having a mustache. Detective Crisco verified Manuel's description of the assailant. At the time of the crime, Wilson, a 40 year old black man, stood 5'10" tall, weighed 200 pounds, and had a mustache.

(4) Level of certainty at confrontation.

Manuel testified that there was no doubt in his mind that when he identified Wilson from the lineup, that Wilson was the assailant....