                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2012-KA-01828-SCT

JUSTIN STEWART

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                         10/22/2012
TRIAL JUDGE:                              HON. WILLIAM A. GOWAN, JR.
COURT FROM WHICH APPEALED:                HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   OFFICE OF STATE PUBLIC DEFENDER
                                          BY: W. DANIEL HINCHCLIFF
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY:                        ROBERT SHULER SMITH
NATURE OF THE CASE:                       CRIMINAL - FELONY
DISPOSITION:                              AFFIRMED - 02/06/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       BEFORE RANDOLPH, P.J., PIERCE AND KING, JJ.

       RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:

¶1.    Justin Stewart appeals his convictions of armed robbery and felon in possession of a

firearm. Stewart argues that the trial court improperly enhanced his sentence, in violation

of his rights against double jeopardy, and erred in denying his motion to suppress out-of-

court and in-court identifications. Finding no error, we affirm.

                              FACTUAL BACKGROUND
¶2.    On July 23, 2010, Stewart and an accomplice 1 went to a Fred’s store on North State

Street in Jackson, Mississippi. Stewart purchased a pair of Hanes undergarments with cash.

When the clerk, LaQuinta Nelson, opened the cash register to give Stewart his change,

Stewart attempted to grab the money in the register. Nelson quickly closed the cash drawer.

Stewart then pointed a gun at Nelson and demanded she reopen the cash drawer. Nelson

complied. While Stewart was grabbing money out of the drawer, Nelson attracted the

attention of Darryl Crumpton, the store manager. Crumpton approached and was ordered to

get on the ground. Stewart demanded that Crumpton give him all of the money from the

store’s office. Instead, Crumpton took Stewart to another cash register. Stewart removed its

contents. Crumpton informed Stewart that there was no more money in the store. Stewart

fled the store with cash and credit-card receipts from the two registers. The police were

informed that the robber was a black male wearing a pink and brown multi-colored hat. The

police also were informed that the robber had sped away in a gold or tan car, which had

struck a curb exiting the parking lot, causing the right front tire to rupture.

¶3.    Moments later, an officer observed two black males changing the right front tire of

a tan car in a driveway a few blocks from Fred’s. As the officer approached the suspects,

they fled. Several officers canvassed the area, searching for the suspects. After finding his

accomplice, the police found Stewart hiding between a shed and a house. After arresting

Stewart, officers retrieved a pink multicolored hat, $1,494 in cash, a revolver, and two Fred’s


       1
         Stewart’s accomplice pleaded guilty and the parties agreed not to mention him or
his sentence during the trial.

                                               2
receipts near Stewart’s hiding spot. A Fred’s shopping bag with a package of Hanes

undergarments was found in the car.

¶4.    On July 29, 2010, Nelson and Crumpton each were asked to review a photo lineup.

Both identified Stewart without hesitation. No mention of facial tattoos appeared in the

police reports. Nelson testified at trial that she mentioned facial tattoos to the police shortly

after the crime. Crumpton testified that he did not.

¶5.    On October 10, 2012, Justin Stewart was convicted of the crimes of armed robbery

and felon in possession of a firearm. On October 22, 2012, he was sentenced to a total of

thirty years, twenty years for armed robbery, with an additional five-year gun-enhancement

sentence, and ten years for felon in possession of a firearm, with five years suspended. After

Stewart’s motion for judgment notwithstanding the verdict (JNOV) was denied, he timely

appealed.

                                           ISSUES

¶6.    The following two issues are raised for review:

       I.     Whether the trial court erred in failing to suppress the
              photographic lineups where appellant’s photograph was the only
              one with the facial tattoos.

       II.    Whether the trial court’s sentence of Stewart to five years under
              the firearm-enhancement statute constituted double jeopardy,
              where he was already being sentenced under the armed-robbery
              felon-in-possession-of-a firearm statutes.

                                         ANALYSIS

       I.     Whether the trial court erred in failing to suppress the
              photographic line-ups and in-court identification.

                                               3
¶7.    This Court reviews photographic lineups and in-court identifications 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.” Gray v. State,
       728 So. 2d 36, 68 (Miss. 1998) (internal citations omitted). 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.” Id. 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. York v. State, 413 So. 2d 1372, 1383 (Miss. 1982).

Butler v. State, 102 So. 3d 260, 264 (Miss. 2012) (emphasis original).

¶8.    “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.’” Id. at 266 (quoting York, 413

So. 2d at 1381). This Court looks to five factors when determining whether an out-of-court

identification was reliable: (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. Butler,

102 So. 3d at 266.

¶9.    A photo lineup is impermissibly suggestive only 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 264 (quoting York v. State, 413 So. 2d 1372,

1383 (Miss. 1982)) (emphasis added). “The test is whether the defendant was ‘conspicuously


                                               4
singled out in some manner from the others,’ not whether the witness noticed that the

defendant was singled out.” Butler v. State, 102 So. 3d 260, 264 (Miss. 2012) (quoting York

v. State, 413 So. 2d 1372, 1383 (Miss. 1982)). To be excluded, an out-of-court photo

identification must have been “so impermissibly suggestive as to give rise to ‘a very

substantial likelihood of misidentification.’” Butler, 102 So. 3d at 265 (quoting Neil v.

Biggers, 409 U.S. 188, 196-98, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972)). “Minor differences”

between the suspects or photographic backgrounds “will not render a lineup impermissibly

suggestive.” Bulter, 102 So. 3d at 265.

¶10.   Finally, “an impermissibly suggestive pretrial identification does not preclude in-court

identification by an eyewitness who viewed the suspect at the procedure, unless: (1) from the

totality of the circumstances surrounding it (2) the identification was so impermissibly

suggestive as to give rise to a very substantial likelihood of irreparable misidentification.”

Id. at 267 (citing York, 413 So. 2d at 1383) (emphasis original). “The standard for in-court

identifications is heightened because it requires the likelihood of irreparable

misidentification.” Bulter, 102 So. 3d at 267 (citing York, 413 So. 2d at 1383) (emphasis

original).

¶11.   Stewart argues that the photo lineups were impermissibly suggestive, since Stewart

was the only person with facial tattoos. Thus, he argues that the in-court identification was

tainted and unreliable. The State argues that the tattoos are a minor difference and that the

trial judge concluded that the tattoos did not stand out in the photographs.



                                              5
¶12.   We find that the case sub judice is similar to the cases of White, Foster, and Jones,

in which this Court upheld similar identifications. In White, the witness noticed the

defendant’s plaited hair and forehead tattoo during the commission of the crime. White v.

State, 507 So. 2d 98, 99 (Miss. 1987).       This Court upheld the out-of-court and in-court

identifications of the defendant even though the defendant was the only suspect in the lineup

with plaited hair. Id. at 99-101. The defendant also had a forehead tattoo, which the witness

identified at trial. Id. at 99-100. In Foster, this Court upheld the out-of-court and in-court

identifications of the defendant even though he was the only person in the lineup wearing a

fishing hat, where the defendant had worn a fishing hat during the robbery. Foster v. State,

493 So. 2d 1304, 1305-06 (Miss. 1986). Likewise, in Jones, this Court upheld the out-of-

court and in-court identifications of the defendant even though he was the only suspect in the

photo lineup wearing a hat similar to the one worn by the attacker. Jones v. State, 504 So.

2d 1196, 1199-1200 (Miss. 1987). This Court found that, even though the hat may have

played a significant part in the identification, it was not impermissibly suggestive, because

the witness had given an accurate description and identified the defendant with great

conviction at trial. Id. at 1200.

¶13.   In the case sub judice, in denying the motion to suppress, the trial court noted that

there was no mention from the officer or police reports of the tattoo, and that the tattoos “just

don’t jump out at you.” 2      Stewart argues that the testimony adduced during the trial



       2
           This finding is borne out by this Court’s examination of the photo lineup.

                                               6
contradicts the evidence relied upon by the trial court when ruling on the motion to suppress.

Specifically, Stewart points to testimony from Nelson in which she states, “[t]he tattoos is

what stuck out the most” about Stewart at the time of the robbery.

¶14.   But Nelson also testified that the encounter with Stewart lasted more than five

minutes. During that time, she observed Stewart and his accomplice enter the store. She

remembered Stewart asking the manager, “where is your Hanes boxers.” She later observed

him in the checkout line for four to five minutes, where he let a couple of people go ahead

of him. Nelson testified that the area was well lit. She and Stewart exchanged greetings.

Nelson testified that Stewart was in such close proximity to her that he only had to whisper.

She observed him when he threatened her with the gun. She observed Stewart as he stole

money from another register. Nelson told the officers that Stewart was the same height as

she, wore dark clothes, and wore a pink and brown hat with a letter on his hat. Nelson

testified that Stewart’s facial tattoos were located “[u]nder his eyes and in the middle of his

forehead.” 3 She remembered thinking “why would he get tattoos under his eye and right .

. . in the middle of his forehead.” Nelson identified Stewart at trial as the same person who

had robbed her.

¶15.   Crumpton offered similar detailed testimony. He stated that, even though a gun was

pointed at him, he “remember[ed] looking at [Stewart].” He noticed that Stewart “had some



       3
        During trial, Stewart was asked to remove his glasses and stand before the jury so
that they could see his tattoos. The record reflected that “under each of his eyes are tattoos
with the words ‘life’ and ‘death,’ and there is also a tattoo . . . on the forehead.”

                                              7
markings on his face.” Crumpton also conversed with Stewart during the robbery. Although

Crumpton mentioned at trial that he had picked Stewart out of the photo lineup “[b]y the

markings on his face,” he later testified that the tattoos were not the “main way” he identified

Stewart. Importantly, Crumpton testified that he could have identified Stewart “even if he

didn’t have the markings . . . on his face.” Crumpton’s testimony was unequivocal. He

testified as follows:

       Q. Did you have the opportunity to view the robber at register one?
       A. Yes, I did.
       Q. Did you have the opportunity to view the robber at register three?
       A. Yes, I did.
       Q. And did you have the opportunity to view the robber when he was putting
       a gun in your face and telling you to get on the ground?
       A. Yes, I did.
       Q. And did you have the opportunity to view the robber when you were
       walking between and to and from registers one and three?
       A. Yes, I did.
       Q. How certain are you that the person you saw is the defendant sitting next
       to Mr. Knapp, Justin Stewart?
       A. One hundred percent.

¶16.   In short, Stewart failed to establish that he was conspicuously singled out from the

other suspects in the photo lineups. While he was the only one with facial tattoos, the officer

responsible for preparing the photo lineups testified that he was unaware Stewart had facial

tattoos.   Moreover, the trial court found the facial tattoos in the photo were nearly

unrecognizable, which is supported by the photo lineup included in this record. The tattoo

on the forehead is faintly visible. The dark lines under Stewart’s eyes are not distinguishable

as tattoos in the photo. Thus, the trial court had substantial, credible evidence to dismiss the

motion to suppress the photo lineups.

                                               8
       II.      Whether the trial court erred in sentencing Justin Stewart to five
                years under the firearm enhancement statute.

¶17.   This court applies a de novo review to double-jeopardy claims. Rowland v. State, 98

So. 3d 1032, 1037 (Miss. 2012). Stewart raises this issue for the first time on appeal.

Although constitutional questions not raised at trial generally are waived, double-jeopardy

claims may be raised for the first time on appeal. See Rowland v. State, 98 So. 3d 1032, 1036

(Miss. 2012).

¶18.   The double-jeopardy clause provides three separate protections: “(1) protection from

a second prosecution for the same offense after acquittal, (2) protection from a second

prosecution for the same offense after conviction, and (3) protection from multiple

punishments for the same offense.” Kelly v. State, 80 So. 3d 802, 805 (Miss. 2012) (citations

omitted).

¶19.   Stewart argues that he was punished multiple times for the same offense when he was

charged with three separate crimes (armed robbery, felon in possession, firearm

enhancement) for the same act. Stewart argues that possession of a firearm by a felon under

Section 97-37-5 and the firearm enhancement under Section 97-37-37 are essentially the

same elements under the “same-elements” test.4 Thus, Stewart argues his five-year sentence

for firearm enhancement should be vacated.



       4
       The same-elements test, sometimes referred to as the “Blockburger” test, inquires
whether each offense contains an element not contained in the other; if not, they are the
“same offence,” and double jeopardy bars additional punishment and successive prosecution.
White v. State, 702 So. 2d 107, 109 (Miss. 1997).

                                             9
¶20.   The State argues that Section 97-37-37 operates as an enhanced sentence, not a

separate conviction. Moreover, the State argues that the elements in Sections 97-37-5 and

97-37-37 are different. (“[O]ne merely requires felon in possession . . . and, the other felon

in possession plus the added used [sic] or displayed [sic] during the commission of a

felony.”)

¶21.   The Court of Appeals addressed this very argument in Mayers v. State. Stewart

argues that Mayers violates the U.S. Supreme Court’s decision in Apprendi v. New Jersey.

In Mayers, the defendant was convicted under Section 97-3-7 for aggravated assault on a

law-enforcement officer through the use of a gun. Mayers v. State, 42 So. 3d 33, 36-38

(Miss. Ct. App. 2010). The court held that no double-jeopardy concerns arise when a

defendant is given an enhanced sentence under Section 97-37-37 and also is convicted and

sentenced under Section 97-37-5. Id. at 45 (“Section 97-37-37, which is entitled: ‘Enhanced

penalty for use of firearm during commission of felony,’ is clearly a sentence enhancement

and does not set out separate elements of the underlying felony.”). The court noted that,

although Appprendi held that “[o]ther than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond reasonable doubt,” 5 the court found Apprendi

inapplicable because Mayers failed to “cite to any specific element of the statute that was not

decided by the jury.” Id. at 45-46.


       5
       Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed.
2d 435 (2000).

                                              10
¶22.   We hold that the “same-elements” test does not apply, because Section 97-37-37 is

a sentence enhancement, not a separate crime. Thus, Stewart’s double-jeopardy claim is

without merit.

                                   CONCLUSION

¶23.   We affirm the trial court’s denial of Stewart’s motion to suppress and Stewart’s

sentence.

¶24. COUNT I: CONVICTION OF ARMED ROBBERY WITH GUN
ENHANCEMENT AND SENTENCE OF TWENTY (20) YEARS FOR ARMED
ROBBERY AND FIVE (5) YEARS FOR GUN ENHANCEMENT, FOR A TOTAL OF
TWENTY-FIVE (25) YEARS, IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF
FELON IN POSSESSION OF FIREARM AND SENTENCE OF TEN (10) YEARS,
WITH FIVE (5) YEARS SUSPENDED, FIVE (5) YEARS PROBATION AND FIVE
(5) YEARS POST-RELEASE SUPERVISION, IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE IN
COUNT II SHALL RUN CONSECUTIVELY WITH SENTENCE IN COUNT I.
APPELLANT IS TO BE GIVEN CREDIT FOR TIME SERVED IN EACH COUNT.

     WALLER, C.J., DICKINSON, P.J., LAMAR, KITCHENS, CHANDLER,
PIERCE, KING AND COLEMAN, JJ., CONCUR.




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