York v. State, 53048

• Decision Date: 12 May 1982
• Docket Number: No. 53048,53048
• Citation: 413 So.2d 1372
• Parties: Harvey YORK v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1372

413 So.2d 1372

Harvey YORK v. STATE of Mississippi.

No. 53048.

Supreme Court of Mississippi.

May 12, 1982.

Bentley E. Conner, Canton, for appellant.

Bill Allain, Atty. Gen., by Wayne Snuggs, Asst. Atty. Gen., Jackson, for appellee.

Before SMITH, ROY NOBLE LEE and HAWKINS, JJ.

HAWKINS, Justice, for the Court.

Harvey York appeals from a conviction of armed robbery and a twenty-five year sentence in the circuit court of Madison County.

The only issue we address on this appeal is whether the trial court erred in overruling York's motion to suppress the evidence relating to his identification following a prior pretrial lineup identification. This in turn involves questions of Sixth Amendment rights (right to counsel at the lineup), Fourteenth Amendment rights (due process of law), and whether or not the State proved identity beyond every reasonable doubt. We affirm.

Decisions of the United States Supreme Court beginning in 1967 have precipitated a flood of alleged constitutional violations throughout the United States of defendants' rights in criminal cases, in which our state courts have had their share. There has been confusion of the meaning of these cases, especially in defining the boundaries of their application. This case is a vehicle for review of the history of the U. S. Supreme Court cases concerning identifications and their present application to our Court, ever bearing in mind, however, that the application of the principles of these decisions, like the tide, expand and contract.

FACTS

Mrs. Rosa Lee Tharp was working in the Handee Mart in Ridgeland on July 23, 1980, and was robbed at approximately nine o'clock that night. She was the only witness who testified to the details of the robbery, although there were two others who witnessed at least a part of the crime.

According to Mrs. Tharp, the robber entered the store, picked up a soft drink in the back, and asked her where the potato chip rack was. As he set the items on the counter for Mrs. Tharp to ring up, he pulled out a pistol and told her not to try anything and that he wanted the money from the cash register. He then went around the counter, where Mrs. Tharp was on her knees in fear, and helped himself to the contents of the cash register.

As the robber was leaving, two youths, Steve Rivers and Ken Whatley, were entering. ¹ The robber asked Rivers what kind of car he had, and Rivers replied, "Mustang," whereupon the robber told the boy to give him the keys. Rivers responded, "You've got to be kiddin', that's a new car," and further, "I know that's a play gun you got." The robber responded by shooting into the ceiling, and Rivers immediately threw him the keys.

Three days later York was arrested, and less than a week after the robbery, was placed in a lineup conducted by the Jackson Police Department. Mrs. Tharp promptly identified York as the robber at the lineup proceeding. Rivers and Whatley were also present at the lineup, however neither of them were called by the State or defense at either the hearing on the motion to suppress or the trial. ²

Mrs. Tharp was quite positive York was the robber. She had an opportunity to view the robber two to three minutes during the robbery and stated at the motion to suppress that she "spotted him right off" at the lineup. Her only articulated reasons for the identification, however, were that she "could never forget those eyes" (though she could not remember whether they were blue or black), and that she recognized the boots he was wearing.

The robber's height was particularly difficult for Mrs. Tharp to describe. At one point she stated that he was about five feet, but added that he "might not have been that tall." Mrs. Tharp, 5'5" herself, then stated, "I don't know much about height, but I was looking at him," thus inferring he was taller than five feet. She further described the robber as weighing 150-55 pounds with red curly hair. ³

The identification testimony by Mrs. Tharp was essentially the same during the trial as during the motion to suppress, and she never hesitated or wavered from her instant identification at the lineup to and throughout the trial.

York is 6'1", about 185 pounds, and has brown eyes. There was conflicting testimony as to the color of York's hair at the lineup, but it was not red or curly, like the robber's hair.

On the motion to suppress the identification, York testified that he did not resemble any of the others in the lineup. Most of them were "just under my height," and one was "a lot taller than I was." He further testified, "all of 'em had on gold jump suits, city jump suits, and they let them put a white shirt on." According to York, he was not wearing a jump suit, and had on light brown slacks and a white shirt. He also testified that the others wore tennis shoes, while he wore boots. On cross-examination he testified the others "wasn't near my height," and were "lots slimmer than I was, I stuck out like a sore thumb." Further cross-examination of York revealed that there was no great difference in height between him and the others, and that he was not positive about the dress of the others.

The arresting officer Watkins, who was a witness at the lineup, testified that all participants in the lineup ranged from 5'9" to 6'1", their clothing was similar, and all except one (not York) wore brown shoes. On cross-examination, however, Watkins was not positive about the shoes worn.

During the pretrial hearing on the motion to suppress his identification, York never denied that the identification of him by Mrs. Tharp was correct. York did not take the witness stand during the trial. Additionally, on this appeal the conviction is not challenged because it might be against the overwhelming weight of the evidence.

HISTORY OF TRIAL COURT PROBLEMS WITH IDENTIFICATION

Prior to 1967, this Court had no competency test for the admissibility of testimony identifying the accused as the perpetrator of the crime. We did say that proof of identity, as any other element of the crime, had to be proved beyond a reasonable doubt. The weight and credibility of any identification, however, were left solely to the jury. Passons v. State, 239 Miss. 629, 124 So.2d 847 (1960).

In February, 1967, the United States Supreme Court in three decisions initiated an indepth search of the inherent problems with accuracy of identification testimony. It is a haunting question. When a false identification results in a conviction, two unfortunate developments follow: an innocent person is convicted, and a criminal remains loose in society.

These three decisions, called by commentators the "Wade trilogy," are: United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

These cases and their progeny are the present guidelines this Court must follow in determining the competency of identification testimony, whenever this issue is called into question.

In United States v. Wade, the accused, being represented by counsel, was required to participate in a lineup in a courtroom after his indictment, without his attorney present. Wade and five or six other prisoners were required to put tape on their faces and were exhibited to eyewitnesses to a bank robbery. Each participant, including Wade, was required to state, "Put the money in the bag," the words of the robber spoken during the commission of the crime. During the trial of his case, the witnesses simply identified Wade in the courtroom on direct examination, however, the prior lineup identification was later elicited on cross.

Upon conviction, Wade argued on appeal to the Fifth Circuit Court of Appeals that the lineup proceeding, having been conducted in the absence of and without the knowledge of his attorney, had violated his Sixth Amendment right to counsel. In agreement with this argument, the Fifth Circuit reversed and remanded for a new trial in which the in-court identification evidence was to be excluded.

The United States Court's opinion analyzed in considerable depth the problem of accurate identification and the fallibility of human perception:

But the confrontation compelled by the State between the accused and the victim or witnesses to a crime to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial. The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.

388 U.S. at 228, 87 S.Ct. at 1933. A great number of faulty and misleading methods of identification were noted.

As stated, during the trial the eyewitnesses made no reference to having previously identified Wade in the pretrial lineup until cross-examined. The Supreme Court then observed the burden this placed upon the defense counsel:

... The State may then rest upon the witnesses' unequivocal courtroom identification, and not mention the pretrial identification as part of the State's case at trial. Counsel is then in the predicament in which Wade's counsel found himself--realizing that possible unfairness at the lineup may be the sole means of attack upon the unequivocal courtroom identification, and having to probe in the dark in an attempt to discover and reveal unfairness, while bolstering the government witness' courtroom identification by bringing out and dwelling upon his prior identification.

Id. at 240-41, 87 S.Ct. at 1939.

Holding that Wade was entitled to presence of counsel at the pretrial lineup, the Supreme Court vacated the Fifth Circuit judgment and remanded "to determine whether the in-court identification had an independent source, or whether, in any event, the introduction of the evidence was harmless error." Id. at 242, 87 S.Ct. at 1940. ⁴

The Supreme Court listed several...