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SEPTEMBER 10, 1986




Once again we are faced with an appeal involving a breach of Rule 4.06 of the Uniform Criminal Rules of Circuit Court Practice. This rule is becoming the problem child of our state jurisprudence. Such a development is

puzzling. The rule's requirements are neither confusing nor onerous; yet we are continually confronted with cases in which law enforcement officials have failed to comply with it. It is irritating to have to reverse criminal convictions because of mistakes which could so easily be avoided, but cases like the present one leave us little choice.

 At 9:00 a.m. on June 4, 1982, Elliott's Jewelry Store in Oxford opened for the day's business. Shortly thereafter, a lone black male wearing a brown polyester shirt and a fishing hat entered the store and asked to see some men's diamond rings. The sales clerk produced some for his inspection, whereupon he drew a pistol and said he would take the lot. After securing his loot, he fled the store on foot. Police were summoned immediately. Proceeding down what he considered the likeliest escape route, an officer discovered a brown polyester shirt and a fishing cap lying on the ground.

 On the same day, the sales clerk prepared a composite sketch of the robber with the help of the Oxford police. This composite was widely circulated through northern Mississippi.

 Two months after the robbery, the Oxford police received a report from the Highway Patrol that a man resembling the composite had entered a jewelry store in Batesville and fled after seeing the sales clerk consult the composite. The jeweler gave chase and was able to get the description of the man's car, as well as the tag number. The car turned out to be registered to" James Foster. "

 A few days later, an Oxford police officer was on the town square when he observed a man driving a car that answered the description from the Batesville incident. In his opinion, the driver closely resembled the composite sketch of the robber. Police stopped the car and told the driver, Webster Lee Foster, to drive to the station. He was not arrested, nor was he given the reason for his detention. When he arrived at the station, he was placed in a line-up wearing a fishing hat like the one seen on the robber. A citizen viewing this line-up identified Foster as the perpetrator of the robbery of an Oxford drug store. He was booked for this crime, and a routine search of his person revealed a pawnbroker's ticket for a man's diamond ring of the type taken during the jewelry store robbery, whereupon Foster was charged with that crime also.

 The sales clerk did not see the line-up, being out of town at the time. However, when shown a photo of the

 lineup, she picked out Foster as the robber, and repeated this identification in court with great conviction.

 After a jury trial, Foster was found guilty of armed robbery and sentenced to twenty years' imprisonment.


 Foster assigns the line-up as error, in that it was impermissibly suggestive. It can hardly be denied that the Oxford police used very poor judgment in conducting it. The defendant was the only participant wearing the distinctive fishing hat referred to by the robbery victim. The explanation given was that the police did not have hats for the other participants, but in that case, Foster should have taken part without a hat.

 Appellant contends that the sales clerk's in-court identification of Foster was tainted because she had been shown a picture of this line-up. Under our jurisprudence, however, the mere fact that a line-up was suggestive does not of itself compel such a result, unless under the totality of the circumstances, the impropriety gave rise to" a very substantial likelihood of irreparable misidentification. "York v. State, 413 So.2d 1372, 1383 (Miss. 1982). Having reviewed the circumstances of this robbery and the testimony of the sales clerk, we consider it highly unlikely that she could be mistaken in her identification of the robber. We therefore reject this assignment of error.

 Foster also argues that the state violated Rule 4.06 by failing to disclose the existence of certain discoverable material to the defendant or the court.

 This material came to light during the cross-examination of G. A. Liles, the police officer who responded to the call about the robbery and discovered the fishing hat and shirt. The pertinent section of the testimony is as follows:

 Q. Officer Liles, you state the hat was marked by the crime lab. Would you please explain who the crime lab is.

 A. Jackson Crime Lab, Mississippi Crime Lab in Jackson.

 Q. What purpose was that hat so marked?

 A. The hat was sent to the crime lab

 along with the shirt.

 Q. For what purpose?

 A. To try to determine if there was any hair in it.

 Q. Do you have the results of those tests?

 A. I have a letter back.

 Q. Pardon me?

 A. Yes sir.

 Q. Could I see it?

 A. I don't have it with me. I can tell you ...

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