                  IN THE SUPREME COURT OF MISSISSIPPI

                              NO. 2018-KA-01711-SCT

DALVIN LATHAM


v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                        11/21/2018
TRIAL JUDGE:                             HON. LINDA F. COLEMAN
TRIAL COURT ATTORNEYS:                   JAMIE BANKS
                                         LESLIE FLINT
                                         RAYMOND WONG
COURT FROM WHICH APPEALED:               BOLIVAR COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                 OFFICE OF STATE PUBLIC DEFENDER
                                         BY: JUSTIN T. COOK
                                             GEORGE T. HOLMES
ATTORNEY FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                          BY: ASHLEY SULSER
DISTRICT ATTORNEY:                       BRENDA FAY MITCHELL
NATURE OF THE CASE:                      CRIMINAL - FELONY
DISPOSITION:                             AFFIRMED - 08/06/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      EN BANC.

      CHAMBERLIN, JUSTICE, FOR THE COURT:

¶1.   A Bolivar County jury convicted Dalvin Latham of robbery in violation of Mississippi

Code Section 97-3-73 (Rev. 2014). The Circuit Court of the Second Judicial District of

Bolivar County sentenced Latham to serve five years in the custody of the Mississippi

Department of Corrections.
¶2.    Latham now appeals, arguing that his trial counsel was constitutionally ineffective in

two ways. First, Latham argues that his trial counsel was ineffective by failing to object to

the admission of an overly suggestive photographic lineup. Next, Latham argues that trial

counsel was ineffective by refusing the trial court’s proffered jury instruction C–8: an

instruction concerning the accuracy and reliability of the victim’s out-of-court identification

of Latham as one of the persons who robbed her.

¶3.    We find that Latham fails to show that the victim’s out-of-court identification was

unreliable, and Latham fails to rebut the strong presumption that his trial counsel’s refusal

of jury instruction C–8 was anything other than tactical and strategic. Accordingly, we

affirm Latham’s conviction and sentence, and we dismiss his ineffective-assistance-of-

counsel claim with prejudice.

                        FACTS AND PROCEDURAL HISTORY

¶4.    On May 19, 2016, Freddie Jean Williams, who was seventy-four years old at the time,

arrived at her Cleveland, Mississippi, home around 11:00 p.m. Williams parked inside her

carport and retrieved her blue purse and her clear work bag from the trunk of her car. As

Williams was retrieving these items, she heard a noise and noticed three individuals

approaching her from across the street. Upon noticing this, Williams placed one bag on each

of her shoulders, and she closed her trunk. The three men then surrounded Williams and

demanded that she hand over her purse and work bag. Williams refused. She then attempted

to distance herself from the three men, but they moved in closer to grab her bags.

¶5.    As the three men came closer, Williams could see what the men were wearing, and

she noticed that two men were short and one was tall. More importantly, Williams testified

                                              2
that the men did not have their faces covered and that at that point, she was able to “really

identify” one of the men. The man that Williams recognized during the robbery was later

identified as Latham.

¶6.    Williams testified that she recognized Latham’s face because she had seen Latham

more than once at her sister’s house, and Williams had seen Latham walking by her home

several times in the two-week period before she was robbed. After Williams had recognized

Latham, she said to him, “I know you,” thinking he would leave her alone. Instead, Latham

snatched Williams’s work bag off of her shoulder, the taller man snatched her purse and the

three men ran away.

¶7.    After the robbery, Williams ran to her sister’s house down the street. There, Williams

explained to her brother-in-law that she had been robbed, and he called the police. Officer

Bryan Bracey with the Cleveland Police Department responded immediately. When Officer

Bracey arrived, Williams was alone at her residence. Williams explained to Officer Bracey

that three men had taken her purse and work bag, and she indicated the direction they fled.

Williams also advised Officer Bracey that she recognized one of the individuals because he

hung out with her great-nephew, but Williams explained that she did not know his name.

Williams described Latham as having dreadlocks in his hair. Shortly thereafter, additional

officers responded to Williams’s residence, including Investigator Greg Perkins.

¶8.    After Williams had initially described Latham to police, Williams’s niece LaShonda

Hodges arrived. Williams explained to Hodges that one of the robbers had dreadlocks and

hung out at Hodges’s mother’s house, which is where Hodges also lived. Based on

Williams’s description, Hodges pulled up Latham’s picture from Facebook, and Williams

                                             3
immediately confirmed that Latham was the man that she recognized during the robbery.

Williams and Hodges then relayed Latham’s name to officers on scene, and Investigator

Perkins developed Latham as a potential suspect. The officers searched the area for physical

evidence and located Williams’s blue purse approximately two streets away from Williams’s

home. The officers were unable to recover Williams’s work bag.

¶9.      There, Investigator Perkins had Williams come to the Cleveland Police Department.

While at the department, Investigator Perkins presented Williams with a six-person photo

lineup that contained a picture of Latham with dreadlocks. The other five individuals in the

lineup did not have dreadlocks. Williams selected Latham out of the photo lineup by circling

and initialing Latham’s photo. Investigator Perkins testified that he typically selects random

photos of other individuals “with similar build, height, and . . . similar complexion.” Based

on Williams’s identification of Latham, Investigator Perkins charged Latham with robbery

and issued a warrant for his arrest.

¶10.     On September 28, 2016, a Bolivar County grand jury returned a one-count indictment

against Latham for robbery in violation of Mississippi Code Section 97-3-73 (Rev. 2014).

Because Williams, the victim, was over the age of sixty-five, the grand jury also indicted

Latham under the sentencing enhancement of Mississippi Code Section 99-19-351 (Rev.

2015).

¶11.     After four continuances, Latham’s one-day trial occurred on November 16, 2018. The

six-person photo lineup marked with Williams’s selection of Latham as one of her assailants

was admitted into evidence without objection. Additionally, Williams identified Latham in

court as the man who took her work bag. Before trial, Latham had submitted his notice of

                                              4
an alibi defense. At trial, Latham called one witness, whose primary purpose was to establish

Latham’s alibi. Anthony Lewis, Jr., testified that he, Latham, and Jeron Lucas were together

at a carwash in Cleveland, Mississippi, during the time of the robbery. The jury found

Latham guilty of robbery but declined to impose the sentencing enhancement. The trial court

sentenced Latham to five years in the custody of Mississippi Department of Corrections.

Following the denial of his posttrial motions, Latham appealed to this Court.

                               STANDARD OF REVIEW

¶12.   This Court reviews claims of ineffective assistance of counsel de novo. Taylor v.

State, 167 So. 3d 1143, 1146 (Miss. 2015). When reviewing such claims, this Court applies

the two-prong test articulated by the United States Supreme Court in Strickland v.

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Id. “To prevail

on an ineffective-assistance-of-counsel claim, a defendant must prove that counsel’s

performance was both deficient and prejudicial.” Stevenson v. State, 283 So. 3d 697, 700

(Miss. 2019) (emphasis added) (citing Hawkins v. State, 255 So. 3d 1264, 1270 (Miss.

2018)).

¶13.   “The benchmark for judging any claim of ineffectiveness must be whether counsel’s

conduct so undermined the proper functioning of the adversarial process that the trial cannot

be relied on as having produced a just result.” McCoy v. State, 147 So. 3d 333, 346 (Miss.

2014) (internal quotation marks omitted) (quoting Strickland, 466 U.S. at 686). In

scrutinizing trial counsel’s conduct, this Court “must strongly presume that counsel’s conduct

falls within a wide range of reasonable professional assistance, and the challenged act or




                                              5
omission ‘might be considered sound trial strategy.’” Bennett v. State, 990 So. 2d 155, 158

(Miss. 2008) (quoting Strickland, 466 U.S. at 689).

¶14.   This Court has explained that “there is no constitutional right to errorless counsel.”

Parker v. State, 30 So. 3d 1222, 1233 (Miss. 2010) (citing Branch v. State, 882 So. 2d 36,

52 (Miss. 2004)). “Only where it is reasonably probable that, but for the attorney’s errors,

the outcome would have been different, will we find that counsel’s performance was

deficient.” Dartez v. State, 177 So. 3d 420, 423 (Miss. 2015) (citing Holly v. State, 716 So.

2d 979, 989 (Miss. 1998)).

                                        ANALYSIS

¶15.   On appeal, Latham argues that his conviction should be reversed and that he should

receive a new trial because his defense attorney was constitutionally ineffective by failing

to object to the impermissibly suggestive lineup and by refusing the trial court’s jury

instruction concerning eyewitness identification.      The State contends that Latham’s

ineffective-assistance-of-counsel claim should be dismissed without prejudice because the

claim is not ripe for review on direct appeal. Alternatively, the State contends that Latham’s

claim lacks merit.

¶16.   At the outset, we note that this Court typically preserves ineffective-assistance-of-

counsel claims for post-conviction review. See, e.g., Stevenson v. State, 283 So. 3d 697,

700-01 (Miss. 2019). “This Court may, however, address an ineffectiveness claim on direct

appeal if the presented issues are based on facts fully apparent from the record.” Parker, 30

So. 3d at 1232 (citing Archer v. State, 986 So. 2d 951, 955 (Miss. 2008)). We find that

Latham’s claim is based on facts fully apparent from the record. The six-person photo lineup

                                              6
from which Williams identified Latham is included in the record. Additionally, it is apparent

from the record that defense counsel’s refusal of the identification instruction was strategic.

After our review, we find that Latham’s claim lacks merit. Therefore, we affirm Latham’s

conviction and sentence.

       I.     Whether Latham’s trial counsel was constitutionally ineffective by
              failing to object to the photo lineup.

¶17.   Latham claims that the six-person photo lineup presented to Williams the day after the

robbery was impermissibly suggestive because Latham was the only person in the lineup with

dreadlocks. Latham contends that his trial counsel was deficient by failing to object to the

introduction of the lineup at trial. Latham, however, fails to show that an objection would

have successfully excluded the lineup. Thus, Latham cannot show that his trial counsel’s

actions were deficient. Likewise, Latham cannot show that had counsel objected to the

lineup, the outcome of the trial would have been different.

¶18.   To successfully exclude the lineup in this case, trial counsel would have been required

to show that the lineup was impermissibly suggestive and unreliable. Stewart v. State, 131

So. 3d 569, 572 (Miss. 2014).

¶19.   In Butler v. State, we explained the following:

              To be excluded, an out-of-court identification must have resulted from
       an identification procedure that was so impermissibly suggestive as to give rise
       to “a very substantial likelihood of misidentification.” [York v. State, 413 So.
       2d 1372, 1383 (Miss. 1982)] (quoting Neil v. Biggers, 409 U.S. 188, 196–98,
       93 S. Ct. 375, 34 L. Ed. 2d 401 (1972)). Where the defendant is “the only one
       depicted with a distinctive feature,” courts usually will find the lineup to be
       impermissibly suggestive. Bankston v. State, 391 So. 2d 1005, 1008 (Miss.
       1980) (where defendant was the only one with a mustache, and victim
       specifically remembered the robber had a mustache, the photo lineup was
       impermissibly suggestive). See also Shaw v. State, 74 So. 3d 379, 382 (Miss.

                                              7
       Ct. App. 2011) (lineup was suggestive where defendant was the only suspect
       with a large Afro hair style; plus, defendant was holding a whiteboard
       displaying the date of the crime).

              On the other hand, “minor differences” with the suspects or differences
       in the photograph backgrounds will not render a lineup impermissibly
       suggestive. See Jones v. State, 993 So. 2d 386, 393 (Miss. Ct. App. 2008)
       (where defendant was the only one wearing a coat, difference was minor and
       not impermissibly suggestive); Dennis v. State, 904 So. 2d 1134, 1136 (Miss.
       Ct. App. 2004) (where defendant’s picture was slightly larger than the others
       and the others were marked “Carroll Co. Det. Center,” the differences were
       minor and lineup was not impermissibly suggestive); Stradford v. State, 771
       So. 2d 390, 393 (Miss. Ct. App. 2000) (absence of criminal identification tags
       did not single out defendants); Anderson v. State, 724 So. 2d 475, 478 (Miss.
       Ct. App. 1998) (photos that differ in technique and background are not so
       distinctive as to single out a suspect impermissibly). This Court has held that
       a photo lineup in which the suspect was the only one wearing a baseball cap,
       when the assailant’s description included a baseball cap, had “a suggestion of
       impermissibility,” but was not so impermissibly suggestive “as to give rise to
       a very substantial likelihood of misidentification.” Jones v. State, 504 So. 2d
       1196, 1199 (Miss. 1987).

Butler v. State, 102 So. 3d 260, 265 (Miss. 2012).

¶20.   But even if the lineup presented to Williams was determined to be impermissibly

suggestive, this Court has explained that “[a]n unnecessarily suggestive pretrial identification

is not automatically excluded; rather, ‘evidence of a suggestive out-of-court identification

will be admissible if, from a totality of the circumstances, the identification was reliable.’”

Stewart, 131 So. 3d at 572 (internal quotation marks omitted) (quoting Butler, 102 So. 3d

at 266). Yet Latham’s argument on appeal focuses solely on the suggestiveness of the lineup,

and he does not attempt to argue or explain how Williams’s pretrial identification of him was

unreliable. Nonetheless, we find that there is no evidence that Williams’s identification was

unreliable.




                                               8
¶21.   To determine whether an out-of-court identification was reliable, this Court considers

the following factors:

       (1) the opportunity of the witness to view the criminal at the time of the crime,
       (2) the witness’ degree of attention, (3) the accuracy of the witness’[s] prior
       description of the criminal, (4) the level of certainty demonstrated by the
       witness at the confrontation, and (5) the length of time between the crime and
       the confrontation.

Stewart, 131 So. 3d at 572 (citing Butler, 102 So. 3d at 266).

¶22.   Applying the above factors, we conclude that Williams’s identification was reliable.

During the robbery, Williams testified that she could “really identify” Latham’s uncovered

face and noticed his dreadlocks while the three men were surrounding her. Moreover,

Latham was obviously within close proximity to Williams, given that Latham snatched

Williams’s work bag off her shoulder during the robbery. Williams clearly had a high degree

of attention because she immediately recognized Latham during the robbery and even said

to him, “I know you.” Williams’s descriptions of Latham to police and her niece appear

consistent and accurate. In fact, Williams’s description of Latham coupled with Williams’s

explaining that she had seen Latham at the niece’s house before enabled Williams’s niece to

pull up Latham’s Facebook profile picture. When Williams’s niece showed Williams

Latham’s profile picture, Williams immediately confirmed that Latham was the robber that

she had recognized. Likewise, Williams reiterated that she was certain that Latham was the

man that had grabbed her work bag because she had seen Latham several times before the

night of the robbery. Williams explained that she had seen Latham at Williams’s sister’s

house more than once and that Williams had seen Latham walking up and down the street




                                              9
in front of Williams’s house. Finally, Williams selected Latham out of the photo lineup less

than twenty-four hours after the robbery had occurred.

¶23.   Williams’s identification of Latham was reliable. Additionally, Williams’s statements

to police and her niece and Williams’s trial testimony indicate that Latham was someone

Williams was familiar with before the robbery. As a result, any objection by Latham’s trial

counsel would have been futile because counsel could not have shown that Williams’s

identification was unreliable. In other words, Latham cannot show that any attempt to

exclude the out-of-court identification would have been successful. Therefore, Latham

cannot show that the failure to object was either deficient or prejudicial.

       II.    Whether Latham’s trial counsel was constitutionally ineffective by
              refusing the trial court’s proffered jury instruction on eyewitness
              identification.

¶24.   Latham takes issue with his trial counsel’s refusal of the Court’s proffered jury

instruction C-8. Instruction C-8 would have instructed the jury to consider the five factors

in determining the accuracy and reliability of Williams’s identification of Latham.

¶25.   As discussed above, Strickland requires that Latham show that trial counsel’s

performance was deficient and that the deficient performance was prejudicial. Stevenson,

283 So. 3d at 700. To successfully make such a showing, Latham had to rebut the strong

presumption that counsel’s decision was strategic. Bennett, 990 So. 2d at 158. Thereafter,

Latham must show that “but for the attorney’s errors, the outcome would have been different

. . . .” Dartez, 177 So. 3d at 423 (citing Holly, 716 So. 2d at 989).

¶26.   First, we find that Latham fails to rebut the presumption that counsel’s refusal was

strategic. This Court has explained that “[w]hether to request a certain instruction generally

                                             10
is a matter of trial strategy.” McCoy, 147 So. 3d at 347 (citing Havard v. State, 928 So. 2d

771, 790–91 (Miss. 2006)). At trial, Latham’s counsel’s defense strategy was alibi. It is

apparent from defense counsel’s closing argument that counsel believed focusing on

Latham’s alibi defense was more advantageous than drawing further attention to Williams’s

identification of Latham. Specifically, counsel explained the following during his closing

argument:

       The whole idea behind identification through a six pack is we develop a
       suspect based on the evidence. We look at it, and then you identify them. You
       can see dreads. This is the only guy in there with dreads. But we got a better
       one. We have a better defense. He wasn’t there.

       ....

       Now, alibi is very simple. You can’t be in two places at one time. . . . I have
       a witness that says [Latham] was somewhere else, [which] raises a reasonable
       doubt. And if it’s a reasonable doubt, you must give my client that reasonable
       doubt and find him not guilty.

¶27.   Additionally, we note the record reflects that Latham’s counsel affirmatively refused

the proffered identification instruction. This affirmative refusal further supports our finding

that counsel’s refusal was strategic and tactical.

¶28.   “As to whether defense counsel’s trial strategies and decisions were sound, [Latham]

has no guarantee of flawless, or successful, representation.” Havard, 928 So. 2d at 790. In

Havard, this Court reiterated “that counsel is given broad discretion to plan a trial strategy

and to carry it out.” Id. Here, Latham fails to rebut the “strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance . . . .” Strickland,

466 U.S. at 689. Thus Latham has not shown that counsel’s refusal was deficient.




                                              11
¶29.   Additionally, Latham fails to show that counsel’s refusal of the identification

instruction prejudiced the defense, as required by the second prong of Strickland. Id. at 687.

Because we have already explained that Williams’s identification was reliable, the

identification instruction would not have changed the outcome in this case. Moreover,

Williams identified Latham in front of the jury during trial. But Latham fails to offer any

evidence suggesting that either of Williams’s out-of-court or in-court identifications were

unreliable. Thus, Latham’s claim fails under both Strickland prongs.

                                      CONCLUSION

¶30.   Latham fails to make the requisite showing that his trial counsel’s actions were either

deficient or prejudicial. This failure defeats Latham’s ineffective-assistance-of-counsel

claim. As a result, we affirm Latham’s conviction and sentence, and we dismiss Latham’s

ineffective-assistance-of-counsel claim with prejudice.

¶31.   AFFIRMED.

      RANDOLPH, C.J., COLEMAN, MAXWELL, BEAM, ISHEE AND GRIFFIS,
JJ., CONCUR. KING, P.J., CONCURS IN PART AND IN RESULT WITH
SEPARATE WRITTEN OPINION JOINED BY KITCHENS, P.J.

       KING, PRESIDING JUSTICE, CONCURRING IN PART AND IN RESULT:

¶32.   The lineup in this case was impermissibly suggestive, and I believe that the majority

should address this issue directly. However, I agree with the majority’s analysis that under

the totality of the circumstances, Williams’s identification of Latham was nonetheless

reliable. I therefore concur in part and in result.

¶33.   This Court has explicitly acknowledged that a lineup is impermissibly suggestive

when the defendant “was the only one depicted with a distinctive feature . . . .” Bankston

                                              12
v. State, 391 So. 2d 1005, 1008 (Miss. 1980). In Bankston, the victim specifically identified

one of the robbery perpetrators as having a mustache, and then was shown two photograph

lineups in which Bankston was the only person with a mustache. Id. at 1006. This Court

found “that showing the victim only one photograph of a man with a mustache when a

mustache was one of the features of the robber recalled by the victim was impermissibly

suggestive.” Id. at 1008. The Court went on to apply the reliability factors and found that

the identification was nonetheless reliable. Id. This case is indistinguishable from

Bankston. The victim specifically recalled that one of the robbery suspects had dreadlocks,

a distinctive feature.1 She was then shown a lineup that included only one photograph of a

man with dreadlocks. The lineup was therefore impermissibly suggestive, and the majority

should make a direct finding as such.

¶34.   I therefore agree that the identification was reliable, and I consequently concur in the

result affirming the conviction and dismissing the ineffective assistance of counsel claim.

However, because precedent directly addresses the issue of impermissibility before us, this

Court should make clear that the lineup in this case was impermissibly suggestible.

       KITCHENS, P.J., JOINS THIS OPINION.




       1
         This situation is no different than a witness identifying a suspect as having blond
hair, then having law enforcement present a lineup with one person with blond hair and five
people with brown hair.

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