BEFORE ROY NOBLE LEE, SULLIVAN and DAN LEE
ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:
Willie Lee White, Jr. was convicted in the Circuit Court of Grenada County on a charge of armed robbery and was sentenced to thirty-five (35) years, without benefit of parole, in the custody of the Mississippi Department of Corrections. He has appealed to this Court and assigns three (3) errors in the trial below.
Dorris Goss testified that on December 18, 1984, at approximately 10:30 p.m., she was the attendant at Neely's Cab Stand in Grenada, Mississippi, when two black males entered, and, at gunpoint, ordered her to lie face down in the washroom; that she started toward the washroom and then suddenly ran for the door, her escape hastened by two gunshots toward her; and that she returned to the cab stand a short while later and discovered all the money missing. She identified appellant as one of the robbery participants.
THE LOWER COURT COMMITTED REVERSIBLE ERROR WHEN IT REFUSED TO SUSTAIN THE MOTION OF APPELLANT TO EXCLUDE IN-COURT AND OUT-OF-COURT IDENTIFICATION.
The lower court held a suppression hearing to determine whether or not the in-court and out-of-court identification of appellant should be suppressed. Immediately preceding the hearing, the lower court took judicial notice of its prior determination that appellant was illegally arrested on December 19, 1984, without probable cause, and that all physical evidence obtained by reason of that arrest was suppressed. However, it was shown in the suppression hearing that, upon being transported to the Grenada Police Department on December 19, 1984, pursuant to the illegal arrest, appellant was served with, and arrested on, an outstanding aggravated assault warrant dated October 19, 1984. On the day of the arrest, appellant was included in a lineup to be viewed by Dorris Goss, victim of the robbery. The appellant contends that the lineup was unduly suggestive.
At the suppression hearing, Officer Greg Harris testified that, since there were two suspects, he formed two separate lineups with one suspect in each. At the first lineup, Goss identified L. V. White as one of the men and stated that Ernest Potts" looked like the other one. "Nine minutes later, a second lineup was presented and, without any direction from Officer Harris other than to take her time and be sure, Goss identified, without delay, Willie White as the second of the two individuals who robbed her.
According to Harris, the makeup of the lineups were black males in their mid-20s to early-40s with three of the five participants common to both lineups. One individual in the lineup had plaited hair, the appellant. According to Officer Harris and Goss, there was nothing suggestive about the lineup which would point out, or indicate to Goss, that the persons who committed the robbery were in the lineups. Their testimony was contradicted by appellant.
Goss testified that she was in appellant's presence for three to five minutes in the well-lighted cab stand; that with most of her attention directed at appellant, who had a gun, she noticed his hair was plaited and he wore a beard; and that she noticed something was tattooed on appellant's forehead. During the lineup, she was placed in an adjoining room from the lineup room, with a door separating them; that the door had a 12" x 12 "window in it with 10" of the 12 inches in height covered with opaque paper; and that through the uncovered bottom two inches she looked at the lineup.
In York v. State, 413 So. 2d 1372 (Miss. 1982), this Court reviewed United States Supreme Court decisions addressing due process violations predicated on impermissibly suggestive lineups. The Court said:
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."
In determining whether these standards are fulfilled, Neil v. Biggers states the following may be considered:
. . . the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.
409 U.S. at 199, 93 S. Ct. at 382.
In the final analysis, under Manson v. Brathwaite, "reliability is the linchpin in determining the
admissibility. . . ." York, 413 So. 2d at 1383. See Foster v. State, 493 So. 2d 1304 (Miss. 1986) (Foster was the only member of the lineup wearing
a distinctive fishing hat, and the Court rejected Foster's contention that the lineup was impermissibly suggestive); Jones v. State, No. 56, 838 (March 18, 1987) (not yet reported), (Jones was the only person in a photograph display wearing a cap similar to the one worn by the ...