No. 01-10-00505-CR
Opinion issued April 14, 2011. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 180th District Court, Harris County, Texas, Trial Court Case No. 1221557.
Panel consists of Chief Justice RADACK and Justices ALCALA and BLAND.
JANE BLAND, Justice.
A jury found Troy Jerrington Mallet guilty of aggravated robbery, and the trial court assessed a sentence of ten years' confinement. In his single issue on appeal, Mallet contends that the trial court erred in admitting the complainant's in-court identification of Mallet as the perpetrator because it was the result of an impermissibly suggestive pretrial identification procedure. We find no error and affirm.
Background
Quintra Stepney worked as assistant manager of a Family Dollar Store in Houston. One evening in May 2009, she and her co-worker, LaPorsha Butler, were preparing to close the store. Butler was chatting with her boyfriend, E.J. Simon. She escorted him to the door and appeared to be preparing to lock it when two men entered. One of the men, who appeared to be in his mid-twenties, wore dark clothing. He was close to six feet, four inches tall, and heavy-set, about 400 pounds. The second man, later identified as Mallet, appeared to be a few years younger. He was shorter and smaller, about five feet, nine inches tall, and darker-skinned, wearing black pants and a white t-shirt. Both men had covered their heads with du-rags and tied bandanas over their faces, so that only their eyes and the tops of their ears were exposed. Stepney heard Butler say, "Sir, we're closed," then Butler fell to the floor and screamed for Stepney. Stepney turned and saw one of the men coming toward her. She headed for the door, but the men intercepted her, and she fell to the floor. The larger man held Stepney from behind while Mallet held a knife to her throat and ordered her not to move. Then, the larger man brought Stepney to the cash registers and told her to give him the cash. Stepney unlocked the registers, which held a little more than $200. The man demanded more cash and ordered her to open the store safe. When Stepney informed him it would take fifteen minutes to open the safe, the man grabbed the cash from the registers and he and Mallet fled. Stepney ran up to the window. She noted that the men left in a black four-door Saturn sedan and wrote down its license plate number. Stepney called her manager and the police. When the officers arrived, they interviewed Stepney and Butler separately, and then watched the store security video with them. In the meantime, officers traced the black Saturn's license and registration to Simon's mother. A patrol officer located the car at a nearby apartment complex and found Simon squatting at the back of the car in the process of removing the license plate. A few weeks later, the police contacted Stepney and asked her to view a live line-up. In addition to Mallet, who by then was in custody, the investigating officer selected five men from the jail population to participate in the line-up. Like Mallet, they were all dark-skinned black men, but they varied in age, height and weight, ranging from seventeen years old to thirty-two years old, five feet, three inches tall to five feet, eleven inches tall, and 125 pounds to 190 pounds. Stepney quickly identified the last man in the line-up, Mallet, as the man who held the knife to her throat. Stepney had seen Mallet in the store before. She did not know his name, but knew that he was a friend of Butler. He and Simon regularly gave Butler rides to work before she got her own car. During the investigation, Butler eventually admitted that she knew of the men's plan to rob the store and cooperated with the State at trial. Out-of-Court Identification
I. Standard of review
Mallet contends that the trial court erred in admitting evidence of Stepney's out-of-court identification of him. Specifically, he contends that the identification process was overly suggestive. We apply a de novo standard of review to determine whether an identification procedure was so impermissibly suggestive that it gave rise to a very substantial likelihood of misidentification. Sierra v. State, 266 S.W.3d 72, 79 (Tex. App.-Houston [1st Dist.] 2008, pet. ref'd). The Due Process Clause of the Fourteenth Amendment of the United States Constitution protects an accused from the admission of a pretrial identification into evidence if it is "so suggestive and conducive to mistaken identification that subsequent use of that identification at trial would deny the accused due process of law." Barley v. State, 906 S.W.2d 27, 32-33 (Tex. Crim. App. 1995). When challenging the admissibility of a pretrial identification, an accused has the burden to show, based on the totality of the circumstances and by clear and convincing evidence, that (1) the pretrial identification procedure was impermissibly suggestive and (2) it created a substantial likelihood of irreparable misidentification. Id. Under the second step, "reliability is the linchpin" in determining the admissibility of identification testimony. Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253 (1977). II. Analysis
Mallet contends that the live line-up was impermissibly suggestive because the physical characteristics of the other five participants were so dissimilar from the description given by Stepney that Mallet was the only participant who came close to the description. "`A lineup is considered unduly suggestive if other participants are greatly dissimilar in appearance from the suspect.'" Brown v. State, 29 S.W.3d 251, 254 (Tex. App.-Houston [14th Dist.] 2000, no pet.) (quoting Withers v. State, 902 S.W.2d 122, 125 (Tex. App.-Houston [1st Dist.] 1995, pet. ref'd)). A suspect may be greatly dissimilar in appearance from the other participants because of his distinctly different appearance, race, hair color, height, or age. Id. All the individuals, however, need not be identical; neither due process nor common sense requires such exactitude. Buxton v. State, 699 S.W.2d 212, 216 (Tex. Crim. App. 1985). Minor discrepancies between lineup participants do not render a line-up impermissibly suggestive. Brown, 29 S.W.3d at 254; see Buxton, 699 S.W.2d at 216 (holding that height range from five feet, nine inches to six feet, two inches and weights ranging from 175 to 210 pounds, in different-colored shirts and only two of whom shared defendant's skin tone did not render six-man lineup impermissibly suggestive); Withers v. State, 902 S.W.2d at 125) (concluding that lineup was not impermissibly suggestive where defendant was thirty-nine years old, 5'8" tall, weighing 160 pounds, and clean shaven at time of his identification; witness's description was of person 5'6" to 5'7" in height, 150 to 160 pounds, and thirty to thirty-five years of age, and four other persons in lineup ranged in age from twenty-one to forty-one, in height from 5'9" to 6'1", and in weight from 155 to 205 pounds; two had beards, and others — including defendant — were clean shaven). Here, the lineup contained men from seventeen years old to thirty-two years old, five feet, three inches tall to five feet, eleven inches tall, and 125 pounds to 190 pounds. Mallet was not the shortest or the slightest person in the lineup. We do not find that the physical characteristics of the other lineup participants were so greatly dissimilar from Mallet that the lineup violated his due process rights. In any event, the record contains other support for admitting Stepney's identification of Mallet at trial. Even if an out-of-court identification procedure is impermissibly suggestive, an in-court identification may still be admitted "as long as the record reveals that the witness' prior observation of the accused was sufficient to serve as an independent origin for the in-court identification." Jackson v. State, 657 S.W.2d 123, 130 (Tex. Crim. App. 1983). In evaluating whether a lineup gave rise to the substantial likelihood of irreparable misidentification, we consider the factors identified in Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375 (1972), weighing them against "the corrupting effect of any suggestive identification procedure in assessing reliability under the totality of the circumstances." Loserth v. State, 963 S.W.2d 770, 772 (Tex. Crim. App. 1998) (citing Biggers, 409 U.S. at 199, 93 S. Ct. at 382-83). These factors include: (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 level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation. Id. We review the application of these factors under a de novo standard. Id. With respect to Stepney's opportunity to view the robber during the crime, Mallet points out that the robbery was completed in only a few minutes, and the robbers covered their hair and faces. While this is true, the record also shows that Stepney watched the security video before viewing the lineup, giving her more time to study each individual's physical characteristics and mannerisms under less emergent conditions. This additional study prior to the lineup of the physical shape and movement of the perpetrator would aid her in serving as an independent origin for the in-court identification. Stepney was able to give only a general description of the perpetrator immediately after the robbery, but she showed the presence of mind to head to the front of the store after the robbers left to see them get into their car and note the car's appearance and plate number before they left. Also, the police officer overseeing the live lineup testified that, on viewing Mallet in the lineup, Stepney had an immediate emotional reaction and promptly identified him as one of the participants in the robbery. This reaction is consistent with the recognition that she had previously seen Mallet with Butler numerous times at the store, and supports a sufficient independent basis for her in-court identification. Thus, we hold that the trial court did not err in admitting the in-court identification. Conclusion
We hold that the trial court did not err in admitting the in-court identification of Mallet as a participant in the robbery. We therefore affirm the judgment of the trial court.