Anderson v. State

25 So. 3d 1074, 2009 Miss. App. LEXIS 280, 2009 WL 1448994
CourtCourt of Appeals of Mississippi
DecidedMay 26, 2009
Docket2007-KA-02137-COA
StatusPublished
Cited by2 cases

This text of 25 So. 3d 1074 (Anderson v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anderson v. State, 25 So. 3d 1074, 2009 Miss. App. LEXIS 280, 2009 WL 1448994 (Mich. Ct. App. 2009).

Opinion

*1076 GRIFFIS, J.,

for the Court.

¶ 1. Billy Joe Anderson was convicted of armed robbery and sentenced to serve thirty-five years in the custody of the Mississippi Department of Corrections. Anderson now appeals and argues that the circuit court abused its discretion when it: (1) failed to suppress the in-court identification of Anderson when the initial out-of-court identification had been tainted by an earlier display of a single photograph of Anderson and (2) admitted into evidence exhibit number four — the photographic lineup — when its authenticity could not be conclusively established. We find no error and affirm.

FACTS

¶ 2. Anderson was indicted for the September 10, 2002, armed robbery of Jerry’s Appliance Center in Utica, Mississippi. At the time of the robbery, there were only two employees working at Jerry’s — Bryan Hales and Lynda Stephens. They heard the door open and saw two males enter the store. One man was tall and thin; the other was short and muscular. Both Hales and Stephens assumed that the men were customers because they began to look around the store. Then, the tall, thin man pulled out a gun and pointed it at Hales. He demanded that Hales give him the money from the cash register.

¶ 3. While the tall man was holding the gun on Hales, the shorter man removed about $1,000 in cash and checks from the cash register. The tall man then demanded Hales’s wallet. Hales and Stephens were told to get on the floor behind the store counter until the two men left the store.

¶ 4. Hales then called, the Utica Police Department. Officer Von Shinnie immediately reported to the crime scene. Utica Police Chief Timothy Myles, who was in Jackson at the time, was also called to the scene.

¶ 5. Officer Shinnie spoke with Darren Howard, the owner of a car wash located across the street from Jerry’s. Howard told Shinnie that he saw his cousin, Billy Joe Anderson, in a blue car driving up and down Main Street and back behind Jerry’s.

¶ 6. Jerry Yates, the owner of Jerry’s, was called to the store after the robbery. He called his long-time customer, Hattie Mae Washington, to find out if she knew Anderson. She informed Yates that Anderson was her son. Yates said that Anderson had robbed him and asked Washington to come to the store. Washington was -asked for a picture of her son, and she retrieved a Polaroid picture of Anderson that she kept in her car. The picture had been taken while Anderson was eating a piece of cake, so part of his face was covered.

¶ 7. Hales testified that he did not remember seeing the photograph. Stephens remembered the photograph, but she said that she could not tell whether or not the man eating cake in the picture was the individual who had robbed the store. Washington testified that both Hales and Stephens assured her that the man in her picture was not the man who had robbed the store.

¶8. Approximately one week after the robbery, Officer Shinnie separately showed Hales and Stephens a photographic lineup containing photographs of six different males. Hales and Stephens both independently selected Anderson as the tall, thin man who held the gun during the robbery.

¶ 9. Anderson filed a motion to suppress the photographic lineup and any in-court identification. After a lengthy hearing, the circuit court denied Anderson’s motion and found that the show-up — the showing of the single Polaroid picture of Anderson *1077 eating cake — did not taint the identification from the photographic lineup because Anderson was not identified from the Polaroid. The circuit court further held that there was nothing unduly suggestive about the photographic lineup; thus, it was unnecessary to consider the factors regarding any issues with an in-court identification. The witnesses were allowed to identify Anderson during trial, and the jury found Anderson guilty of armed robbery. Anderson now appeals his conviction.

ANALYSIS

I. Whether the witnesses’ in-court identification of Anderson was tainted by the earlier display of the picture of Anderson eating cake or the photographic lineup.

¶ 10. Anderson argues that “the original out-of-court identification upon which his arrest was based was tainted by a view on the day of the robbery of a single photograph his mother brought to Jerry’s.” He further claims that the photographic lineup was unduly suggestive, and it tainted the in-court identification of him. The State responds that there was substantial evidence to support the circuit court’s ruling that the photographic lineup was not suggestive and that the picture shown by Anderson’s mother did not taint the witnesses’ later identification of Anderson.

¶ 11. When reviewing a trial court’s suppression hearing findings, we consider “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,” and we will disturb the findings of the trial court “only where there is an absence of substantial credible evidence supporting it.” Brooks v. State, 748 So.2d 736, 741(¶ 26) (Miss.1999) (citation omitted).

¶ 12. This case is governed by York v. State, 413 So.2d 1372, 1383 (Miss.1982). In York, the Mississippi Supreme Court held that:

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. Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). A showup in which the accused is brought by an officer to the eyewitness is likewise impermissibly suggestive where there is no necessity for doing so. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) (impermissively suggestive); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) (same); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) (not impermissively suggestive).
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. (footnotes omitted).

¶ 13.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Derrick Course v. State of Mississippi
179 So. 3d 60 (Court of Appeals of Mississippi, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
25 So. 3d 1074, 2009 Miss. App. LEXIS 280, 2009 WL 1448994, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anderson-v-state-missctapp-2009.