BEFORE DAN LEE, PRESIDING JUSTICE, SULLIVAN AND ANDERSON, JJ.
James Harvey Nicholson was convicted on a charge of rape and sentenced to a term of 30 years in custody of the Mississippi Department of Corrections on April 16, 1986. From that conviction and sentence Mr. Nicholson appeals, assigning the following as error:
I. THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.
II. THE COURT ERRED IN OVERRULING APPELLANT'S MOTION TO SUPPRESS PHOTOGRAPHIC LINEUP, VOICE IDENTIFICATION TESTS, AND THE RESULTING IN-COURT IDENTIFICATION.
III. THE COURT ERRED IN REQUIRING THE JURY TO GIVE A NUMERICAL DIVISION PERTAINING TO THEIR BEING DEADLOCKED.
During the evening of August 29, 1985, Sandra McKinion was sleeping in bed with her two-year-old daughter. During the early morning hours of August 30, she awoke to find someone standing over her with a knife to her head. This man told her to pull off her clothes, after which he raped her. After he finished he forced her to perform fellatio on him, after which he raped her again. Ms. McKinion made no resistance because she was frightened - the man had threatened to kill her and her baby if she made any noise. The lighting was such that she was able to see a tattoo on this man's right arm which said "IOA" with some sort of writing under it. She also noticed a scar on his rib cage. She noted that he was a black man with short hair, a light beard, and a little mustache. After the man
finished raping her, he went to the kitchen and turned on the light, found her purse, and rummaged through it for money. He then went to the living room and lay on the couch and demanded that she turn on the stereo. He left between 4:00 and 5:00 a. m., repeating his admonition that if she told the law, he would kill her. Ms. McKinion had never seen the man before. However, at trial Ms. McKinion identified the man as the defendant (appellant here).
After he left she got her baby and went to her neighbor's apartment where the police were summoned. She gave the police a description, then the officer took her to the hospital where a rape kit was performed.
I. The Guilty Verdict Handed Down in Newton County Circuit Court was Against the Overwhelming Weight of the Evidence and, Accordingly, the Defendant Should Have Been Found Not Guilty.
In his first assignment of error Mr. Nicholson argues that the jury verdict was against the weight of the evidence because the state's case, based primarily on the testimony of the victim, Ms. McKinion, contains discrepancies and lacks credibility. He raised this issue in his motion for directed verdict at the close of the state's evidence and again on motion for JNOV or a new trial, all being overruled. The state counters that because Mr. Nicholson argues only that the state's evidence lacks credibility, his assignment of error is without merit due to the scope of review of jury findings this Court follows.
This Court has often stated the limitations upon its scope of review of a jury's findings of fact. In Billiot v. State, 454 So. 2d 445, 463 (Miss. 1984), the Court stated, "the jury is the sole judge of the credibility of witnesses, and the jury's decision based on conflicting evidence will not be set aside where there is substantial and believable evidence supporting the verdict." Id. at 463. Further, in Kinzey v. State, 498 So. 2d 814 (Miss. 1986), this Court stated, "the credibility of the witnesses at trial is not a matter for the reviewing court's evaluation." Id. at 818. Where the verdict turns on the credibility of conflicting testimony and the credibility of the witnesses, it is the jury's duty to resolve the conflict. "Gandy v. State, 373 So. 2d 1042, 1045 (Miss. 1979); Shannon v. State, 321 So. 2d 1, 2 (Miss. 1975); Bond v. State, 249 Miss. 352, ___, 162 So. 2d 510, 512 (1964). The jury's findings will not be disturbed by this Court unless the verdict is so contrary to the overwhelming weight of the evidence that" to allow it to
stand would be to sanction an unconscionable injustice. "Pearson v. State, 428 So. 2d 1361, 1364 (Miss. 1983); Groseclose v. State, 440 So. 2d 297 (Miss. 1983). See also, Russell v. State, 506 So. 2d 974, 977 (Miss. 1987); Shive v. State, 507 So. 2d 898, 900 (Miss. 1987); Johnson v. State, 511 So. 2d 1360, 1367 (Miss. 1987).
Since the evidence basically presented a question of whether or not the victim was telling the truth about the identity of her assailant, the jury's duty was to determine the credibility of this witness. Therefore, this assignment of error is without merit.
II. THE LOWER COURT ERRED IN OVERRULING APPELLANT'S MOTION TO SUPPRESS PHOTOGRAPHIC LINEUP, VOICE IDENTIFICATION TESTS, AND THE RESULTING IN-COURT IDENTIFICATION.
Under this assignment of error, Mr. Nicholson argues three issues: (1) that the" showup "(actually a voice" overhearing ") of the defendant on September 3, 1985, was an impermissible ploy by the state to allow Ms. McKinion to identify the defendant as her assailant; (2) that the voice identification" lineup "conducted by the Newton Police Department on September 5, 1985, was calculated to be suggestive as to the identity of the defendant; (3) that the photographic lineup shown to Ms. McKinion on September 5 was suggestive because the defendant was the only one of the six pictured with bare arms displaying a tattoo; therefore, the argument continues, the in-court identification of the defendant was impermissibly tainted. As such, the defendant was denied due process of law under the Fourteenth Amendment. Further, Nicholson argues that his Sixth Amendment right to counsel was violated because the pre-trial identifications were conducted in the absence of counsel for the defendant. A suppression hearing was held as to the pre-trial identifications. The trial judge overruled the motion to suppress, allowing testimony as to the pre-trial identifications and allowing Ms. McKinion to make an in-court identification of the defendant. The three identification procedures will be analyzed in turn.
A. Scope of Review of Trial Court's Suppression Hearing Findings.
This Court has stated its scope of review of suppression hearing findings in pre-trial identification cases as follows:
The combined effect of the circuit court's pre-trial and trial rulings is that of a finding of fact that, under the totality of the circumstances . . . in-court identification testimony had not been impermissibly tainted. We may, of course, disturb such a finding
only where there is an absence of substantial credible evidence supporting it. [emphasis added]
Ray v. State, 503 So. 2d 222, 224 (Miss. 1986). Therefore, this Court must determine if, in this case, there is substantial credible evidence supporting the trial judge's findings.
B. The Photographic Display.
The" Wade Trilogy "and its progeny are the guidelines this Court must follow in determining the competency of identification testimony. York v. State, 413 So. 2d 1372, 1374 (Miss. 1983). York is the leading case in Mississippi on this issue and has been followed by this Court on numerous occasions. See e. g., Davis v. State, 510 So. 2d 794 (Miss. 1987); White v. State, 507 So. 2d 98 (Miss. 1987); Jones v. State, 504 So. 2d 1196 (Miss. 1987); Smith v. State, 492 So. 2d 260 (Miss. 1986). As pointed out in York, there are two lines of analysis when considering pre-trial identifications: the Fourteenth Amendment due process analysis and the Sixth Amendment right-to-counsel analysis. Mr. Nicholson raises both points in his assignment of error, claiming that the photographic display was suggestive and that it was conducted in the absence of his legal counsel.
In United States v Ash, 413 U.S. 300 (1973), the United States Supreme Court held that" the Sixth Amendment does not grant the right to counsel at photographic displays conducted . . . for the purpose of allowing a witness to attempt an identification of the offender. "Ash at 321. Therefore, this aspect of Mr. Nicholson's argument is without merit.
His argument under the due process analysis has to do with suggestiveness of the photographic display. He points out that he was the only one of the six men who was pictured with bare arms, prominently displaying his tattoo, a characteristic described to police by Ms. McKinion. Such is undeniably a suggestive photographic display. See Bankston v. State, 391 So. 2d 1005, 1008 (Miss. 1980) (holding that showing the victim only one photograph of a man with a mustache was impermissibly suggestive). A series of photographs where one is" conspicuously singled out in some manner from others . . . is impermissibly suggestive. "York at 1383, citing Foster v. California, 394 U.S. 440 (1969) and Simmons v. U.S., 390 U.S. 377 (1968). However, an impermissibly suggestive pre-trial identification does not preclude in-court identification by an eyewitness who viewed the suspect at the procedure" unless: (1) from ...