        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                              NO. 2015-KA-01413-COA

DESMON RAY LEE A/K/A DESMON R. LEE                                      APPELLANT
A/K/A DESMON LEE

v.

STATE OF MISSISSIPPI                                                      APPELLEE

DATE OF JUDGMENT:                        07/22/2015
TRIAL JUDGE:                             HON. ROBERT P. CHAMBERLIN
COURT FROM WHICH APPEALED:               DESOTO COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                  OFFICE OF STATE PUBLIC DEFENDER
                                         BY: JUSTIN TAYLOR COOK
ATTORNEY FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                         BY: ALICIA MARIE AINSWORTH
DISTRICT ATTORNEY:                       JOHN W. CHAMPION
NATURE OF THE CASE:                      CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                 CONVICTED OF COUNT I, ATTEMPTED
                                         ARMED ROBBERY, AND SENTENCED TO
                                         FIFTEEN YEARS; AND COUNT II,
                                         POSSESSION OF A FIREARM BY A
                                         CONVICTED FELON, AND SENTENCED
                                         TO TEN YEARS, TO RUN
                                         CONSECUTIVELY TO THE SENTENCE IN
                                         COUNT I, ALL IN THE CUSTODY OF THE
                                         MISSISSIPPI DEPARTMENT OF
                                         CORRECTIONS
DISPOSITION:                             AFFIRMED: 01/03/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

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

      FAIR, J., FOR THE COURT:

¶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


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         At one point, Royal testified, they were interrupted by a customer who came into
the restaurant. Royal served the customer while the robber held him at gunpoint from a
place where the customer could not see him.

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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 by the witness at the confrontation, and the length of time

between the crime and the confrontation.” Id. (quoting Biggers, 409 U.S. at 199).


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¶7.    The trial court in today’s case held a hearing and produced an explicit, written analysis

of the Biggers factors. It found (in relevant part):

       Royal testified as to a lengthy encounter that included close proximity viewing.
       The encounter lasted for a substantive amount of time with no concerns
       expressed over conditions such as lighting. Royal had adequate opportunity
       to pay clear attention to the robber including his appearance and voice.
       Therefore, Royal testified as to an adequate opportunity to view the assailant
       while exercising a high degree of attention.

       The description given by Royal[] was highly accurate. Although the robber
       wore a mask, Royal was able to give an accurate description of the clothes
       being worn by the assailant and physical characteristics of the perpetrator as
       well as other identifying information. It was ultimately determined that Royal
       knew Lee from previously working together at the business. During cross
       examination, Royal admitted that Lee was taller than the description he gave[,]
       but no evidence was presented as to Lee’s actual height. Further, Royal was
       shown a report of a police officer that stated Royal had given a different
       description of the clothing to the officer. However, Royal denied making the
       statement and no further evidence was presented on the subject.

       Royal expressed certainty in his description and the length of time between the
       crime and the confrontation was short. Additionally, upon viewing Lee, Royal
       recalled that to be the reason he recognized the voice of the perpetrator. He
       had previously worked with Lee.

       The facts in the case are substantially similar to those set forth in Outerbridge
       v. State, 947 So. 2d 279 (Miss. 2006). Such showups have also been upheld
       in similar circumstances in [further citations omitted].

       As in Outerbridge, this Court finds beyond a reasonable doubt from a totality
       of the circumstances that the factual evidence presented in this case does
       overcome the likelihood of any misidentification of the defendant . . . . [A]ny
       alleged discrepancies are grounds for cross-examination.

¶8.    Appellate courts review a trial court’s decision to admit or exclude evidence for an

abuse of discretion. Roberson v. State, 199 So. 3d 660, 668 (¶32) (Miss. 2016). More


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specifically, when the admission of a show-up identification is challenged on appeal, we ask

“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.” Roche, 913 So. 2d at 310 (¶11) (citation omitted).

¶9.    Lee contends on appeal that the trial court erred in its analysis because of the rather

limited description of the perpetrator initially given by Royal to the police, particularly that

Royal had not stated that he recognized the robber’s voice or that the robber had “distinctive”

facial features perceptible through the mask, as he testified at trial. While the accuracy of

the initial description is one factor to be considered under Biggers, Lee argues omissions

rather than inaccuracies, and the details might have been omitted for the practical reason that

they would have been difficult to articulate and of limited use to police in a hot pursuit.

Certainly, Lee could have, and did, argue that Royal’s limited and imperfect initial

description called into question the reliability of his subsequent identification, but we do not

find that as a matter of law the trial court was required to find that it gave “rise to a very

substantial likelihood of misidentification,” especially in light of the strength of the case for

admission under the other Biggers factors. See Roche, 913 So. 2d at 311 (¶14).

¶10.   After reviewing the record, we find the trial court’s decision to admit the challenged

identification testimony into evidence was supported by substantial credible evidence and did

not amount to an abuse of discretion. We therefore affirm Lee’s convictions and sentences.

¶11. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY OF
CONVICTION OF COUNT I, ATTEMPTED ARMED ROBBERY, AND SENTENCE

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OF FIFTEEN YEARS; AND COUNT II, POSSESSION OF A FIREARM BY A
CONVICTED FELON, AND SENTENCE OF TEN YEARS, TO RUN
CONSECUTIVELY TO THE SENTENCE IN COUNT I, ALL IN THE CUSTODY OF
THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON,
WILSON AND GREENLEE, JJ., CONCUR. WESTBROOKS, J., NOT
PARTICIPATING.




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