DESMON RAY LEE A/K/A DESMON R. LEE A/K/A DESMON LEE APPELLANT
STATE OF MISSISSIPPI APPELLEE
OF JUDGMENT: 07/22/2015
COUNTY CIRCUIT COURT HON. ROBERT P. CHAMBERLIN TRIAL JUDGE
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY:
JUSTIN TAYLOR COOK
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERALBY:
ALICIA MARIE AINSWORTH
DISTRICT ATTORNEY: JOHN W. CHAMPION
IRVING, P.J., FAIR AND WILSON, JJ.
On the evening of December 5, 2011, a masked man entered the
Little Caesar's Pizza in Southaven and pointed a handgun
at Billy Royal, who was working behind the counter at the
time. The stickup man demanded money. For approximately
fifteen minutes,  Royal argued with the man and refused to
surrender the loot. Other employees called the police, and
the robber fled the scene as they approached. The first
arriving officers spoke to Royal and radioed out a brief
description of the robber and the direction he had fled.
One officer went to the nearby Super 8 Motel, where the
manager informed him that a man had just thrown something in
the trash can and gone out the back door. The manager said
the person was still standing outside behind the building.
Another officer arrived and confronted the man, who turned
out to be Desmon Lee. Lee admitted he had a weapon, and he
was taken into custody. He was read his rights and
transported about 400 yards to Little Caesar's, where
Royal identified Lee as the masked man who had attempted to
rob him a short time earlier. He also identified the weapon
taken from Lee as the one used in the robbery. Officers
recovered a black and red sweatshirt from a garbage can in
the motel lobby, and Lee later confessed that he had tried to
rob the restaurant.
Because of this "show up" identification, Lee moved
prior to trial to suppress Royal's identification of him
as the perpetrator. At the suppression hearing, Royal
testified that he and Lee had actually worked together at
Little Caesar's about two years before the robbery, and
that he had thought the robber's voice sounded familiar.
Royal was "one hundred percent certain" Lee was the
robber. The trial court denied the motion to suppress, and
Lee was convicted.
On appeal, Lee argues that the trial court abused its
discretion in denying his motion to suppress the
"The practice of showing suspects singly to persons for
the purpose of identification, and not as part of a lineup,
has been widely condemned." Stovall v. Denno,
388 U.S. 293, 302 (1967), abrogated in part by Griffith
v. Kentucky, 479 U.S. 314, 328 (1987); see also York
v. State, 413 So.2d 1372, 1381 (Miss. 1982).
Nonetheless, "[s]uch identification is admissible if,
considering the totality of the circumstances surrounding the
identification procedure, the identification did not give
rise to a very substantial likelihood of
misidentification." Roche v. State, 913 So.2d
306, 311 (¶14) (Miss. 2005) (citing York, 413
So.2d at 1383).
The central question is "whether under the totality of
the circumstances the identification was reliable even
[though] the confrontation was suggestive."
Outerbridge v. State, 947 So.2d 279, 282 (¶9)
(Miss. 2006) (quoting Neil v. Biggers, 409 U.S. 188,
199 (1972)). To evaluate the likelihood of misidentification,
the trial court must consider the Biggers factors:
"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 ...