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Lee v. State

Court of Appeals of Mississippi

January 3, 2017

DESMON RAY LEE A/K/A DESMON R. LEE A/K/A DESMON LEE APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 07/22/2015

         DESOTO 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

          BEFORE IRVING, P.J., FAIR AND WILSON, JJ.

          FAIR, J.

         ¶1. 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, [1] 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.

         ¶2. 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.

         ¶3. 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.

         ¶4. On appeal, Lee argues that the trial court abused its discretion in denying his motion to suppress the identification.

         DISCUSSION

         ¶5. "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).

         ¶6. 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 ...


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