        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                              NO. 2014-KA-00109-COA

DERRICK COURSE A/K/A DERRICK J.                                         APPELLANT
COURSE

v.

STATE OF MISSISSIPPI                                                      APPELLEE
DATE OF JUDGMENT:                        07/18/2013
TRIAL JUDGE:                             HON. JEFF WEILL SR.
COURT FROM WHICH APPEALED:               HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                 OFFICE OF STATE PUBLIC DEFENDER
                                         BY: GEORGE T. HOLMES
                                             ERIN ELIZABETH PRIDGEN
ATTORNEY FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                         BY: LISA L. BLOUNT
DISTRICT ATTORNEY:                       ROBERT SHULER SMITH
NATURE OF THE CASE:                      CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                 CONVICTED OF ARMED ROBBERY AND
                                         SENTENCED TO THIRTY YEARS IN THE
                                         CUSTODY OF THE MISSISSIPPI
                                         DEPARTMENT OF CORRECTIONS
DISPOSITION:                             AFFIRMED: 11/10/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE GRIFFIS, P.J., BARNES AND JAMES, JJ.

      GRIFFIS, P.J., FOR THE COURT:

¶1.   Derrick Course was convicted of armed robbery, in violation of Mississippi Code

Annotated section 97-3-79 (Rev. 2014). Course argues that the trial court committed error

when it denied his motion to suppress. We find no error and affirm.

                                        FACTS

¶2.   In December 2011, Clell McCurdy was in his dorm room on the campus of Jackson
State University. With his door ajar, he noticed two men walk down the hall past his door,

then turn and come into his room. McCurdy did not recognize either of the men.

¶3.   Once in the dorm room, one of the men began to search through McCurdy’s

belongings while the other man stood by the door. The latter instructed McCurdy: “Calm

down. Don’t say anything. Don’t holler or I’ll shoot.” The man kept his hand in his pocket

the entire time as if holding a gun, though McCurdy never saw one.

¶4.   When the men left, McCurdy contacted campus police. Once the officers arrived,

McCurdy gave a description of the men – both had dread locks and one was tall with a dark

complexion while the other was short with a lighter complexion.

¶5.   On December 9, Course and Reginald Jackson were arrested in a dorm room on the

Jackson State University campus. Officers suspected Course and Reginald of committing

a separate armed robbery on campus. The suspects were both photographed at the campus

police department, and McCurdy was contacted.

¶6.   Once at the station, McCurdy viewed two photographs, one of Course and one of

Jackson. McCurdy identified Course as the shorter man with light skin and Jackson as the

taller man with dark skin. Officers did not show McCurdy any other photos.

¶7.   Days later, in the process of reviewing surveillance footage, an officer realized that

the video showed a suspect other than Jackson. McCurdy viewed the tape and identified the

man on the tape as Frederick Smith rather than Reginald Jackson. His identification of

Course remained the same.

¶8.     Before trial, Course requested that McCurdy’s pretrial identification of Course be



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suppressed. The trial court denied this motion. Course was convicted and now appeals.

                                         ANALYSIS

¶9.    Course only challenges the trial court’s decision to not suppress the pretrial

identification. He argues that the out-of-court identification process was unnecessarily

suggestive and conducive to an irreparable mistaken identification.

¶10.   The supreme court has reviewed identification procedures as follows:

       The standard of review for suppression hearing findings in pretrial
       identification cases is whether or not substantial credible evidence supports the
       trial court’s findings that, considering the totality of the circumstances, in-
       court identification testimony was not impermissibly tainted. This Court will
       not disturb a lower court’s decision on the suppression of evidence unless there
       is an absence of substantial credible evidence supporting it. For an
       identification (made out of court or in court) to be excluded, it must be the
       result of an impermissibly suggestive lineup[,] and the identification must be
       unreliable.

Butler v. State, 102 So. 3d 260, 264 (¶8) (Miss. 2012) (internal citations and quotation marks

omitted).

¶11.   “A lineup or series of photographs is impermissibly suggestive if ‘the accused, when

compared with the others, is conspicuously singled out in some manner from the others,

either from appearance or statements by an officer[.]’” Id. at (¶9) (citation omitted). “Where

the defendant is ‘the only one depicted with a distinctive feature,’ courts usually will find the

lineup to be impermissibly suggestive.” Id. at 265 (¶10) (citation omitted). “Pretrial

identifications which are suggestive, without necessity for conducting them in such a manner,

are proscribed.” York v. State, 413 So. 2d 1372, 1383 (Miss. 1982).

¶12.   Course’s photograph was one of two photographs shown to McCurdy on December



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9. The previous day, McCurdy was robbed by two individuals matching the description of

the two men in the photographs.

¶13.   McCurdy initially described his assailants as two men, one dark complected and the

other light complected with dread locks. This description matched those of Course and

Jackson, whose photographs were shown to McCurdy. Officers made no effort to set up a

proper photo lineup to prevent false identifications. Instead, McCurdy was only shown the

photos of the men suspected of committing the crime. This procedure did in fact result in the

false identification of Reginald Jackson as one of the men who robbed McCurdy on

December 8.

¶14.   We have previously stated that identifications based on a single photograph are

suggestive. Anderson v. State, 25 So. 3d 1074, 1078 (¶15) (Miss. Ct. App. 2009) (where the

victim was first shown a single polaroid photo of the defendant before viewing a photo

lineup, the single photograph resulted in the latter identification being suggestive).

Essentially, McCurdy was shown one photograph for each man who robbed him.                  The

pretrial identification of Course was unnecessarily suggestive.

¶15.   “An 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.’” Butler, 102 So. 3d at 266

(¶14). The reliability of an out-of-court identification is determined by five factors: (1) the

opportunity of the witness to view the criminal at the time of the crime, (2) the witness’s

degree of attention, (3) the accuracy of the witness’s prior description of the criminal, (4) the



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level of certainty demonstrated by the witness at the confrontation, and (5) the length of time

between the crime and the confrontation. Id. (citing Neil v. Biggers, 409 U.S. 188, 199-200

(1972)).

¶16.    McCurdy testified that the robbery in his dorm room took place within the span of

“five or more minutes.” During this time, he focused on the man at the door, who claimed

to have a gun and threatened to shoot McCurdy if he called for help. This man was later

identified as Course. According to McCurdy, the assailant claiming to have a gun spoke to

him the entire time the two men were robbing him. McCurdy had ample opportunity over

the five or more minutes in which the robbery took place to view the criminal. He also paid

special attention to the assailant later identified as Course because he was holding his hand

in his pocket and threatening to shoot. Thus, the first two factors weigh in favor of

reliability.

¶17.    The day of the robbery, McCurdy described the assailant, later identified as Course,

as light complected with dread locks. He testified later in the trial that he told police that the

assailant was shorter than his accomplice and had a flat face. Indeed, it was this description

that motivated officers to contact McCurdy on December 9 in an effort to identify the

individuals. Because of the accuracy of McCurdy’s description, this factor weighs in favor

of reliability.

¶18.    Furthermore, McCurdy was positive of his identification three separate times. First,

on December 9, 2011, McCurdy initially identified Course. Second, on December 13, 2011,

after McCurdy viewed the surveillance video, he identified Course. Third, on June 12, 2013,



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he identified Course when he testified at trial. McCurdy also testified at the motion-to-

suppress hearing that he had no doubts about his positive identification of Course. McCurdy

demonstrated certainty in his identification. Therefore, this factor weighs in favor of

reliability.

¶19.    McCurdy was robbed on December 8 and called in to identify two suspects on

December 9. No more than one day passed between the time of the crime and the time of the

identification. Course argues that this granted officers ample time to prepare a proper photo

array for the identification process. This is irrelevant to the question of reliability. Rather,

McCurdy’s ability to remember in reference to the amount of time that passed is the relevant

question. Only one day passed between the robbery and the identification of Course; this

factor weighs in favor of reliability.

¶20.    We find that McCurdy’s out-of-court identification of Course was admissible. Even

though the identification methods used by officers were suggestive, the pretrial identification

was reliable. Substantial credible evidence exists in support of the trial court’s finding.

Thus, we affirm the trial court’s denial of Course’s pretrial motion to suppress.

¶21. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF
CONVICTION OF ARMED ROBBERY AND SENTENCE OF THIRTY YEARS IN
THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS
COUNTY.

    LEE, C.J., IRVING, P.J., BARNES, ISHEE, CARLTON, MAXWELL, FAIR,
JAMES AND WILSON, JJ., CONCUR.




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