IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2014-KA-00109-COA DERRICK COURSE A/K/A DERRICK J. COURSE APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 07/18/2013 TRIAL JUDGE: HON. JEFF W EILL SR. COURT FROM W HICH 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 C ourse was convicted of arm e d r obbery , in violation of M i ssissippi Code Annotated section 97-3-79 (Rev. 2014). Course argues that the trial court com m itted error when it denied his m otion to suppress. W e f ind no error and af

f i rm . FACTS ¶2. In Decem

ber 2011, Clell McCurdy was in his dorm room on the cam pus of JacksonState University

. W ith h is door ajar, h e noticed t wo m en walk down the hall past his door,

then turn and com e into his room . McCurdy did not recognize either of the m en. ¶3. Once in the do r m r oom , one of the m en began to search through McCurdy ’s belongings w hile the other m an stood by the d oor. The latter instruct e d M c C urdy : “Calm down. Don’t say any

thing. Don’t holler or I’ll shoot.” The m an kept his hand in his pocket the entire tim e as if

holding a gun, though McCurdy never saw one. ¶4. W h en the m en lef t, McCurdy contacted cam p us police. Once t he o f

f icers arrived, McCurdy gave a d escription of t he m e n

– both had dread locks and one was tall with a dark

com plexion while the other was short with a lighter com plexion. ¶5. On Decem

ber 9, Course and Reginald Jackson were arrested in a d orm r oom on the
J a c k s on S tate University cam pus. Of f icers suspected Course and Reginald o f commi t t i n g a separate arm ed r obbery on cam pus. The suspects were both photographed at the cam pus police departm ent, and McCurdy was contacted. ¶6. Once at the s t ation, M cCurdy v iewed two photographs, one o f Course and one of Jackson. McCurdy

identif ied Course as the shorter m an with light skin and Jackson as the taller m a n with dark skin. Of f icers did not show McCurdy any other photos. ¶7. Day s later, in the process of reviewing surveillance f

o otage, an of

f icer realized that the video s howed a suspect other than Jackson. McCurdy viewed the tape and identif ied the

m an o n t he tape a s Frederick Sm ith rather t han Reginald Jackson. His identif icati on of
Course rem ained the sam e. ¶8. Bef

ore trial, C ourse requested that McCurdy ’s p r e t r i a l identif ication of Course be

2suppressed. The trial court denied this m otion. Course was convicted and now appeals.
ANALYSIS ¶9. C o urse only challenges the trial court’s decision to n ot suppress the pret r i a l identif ication. He ar g u e s t hat the out-of -court identif

i cation process was unnecessarily suggestive and conducive to an irreparable m i staken identif ication. ¶10. The suprem e court has reviewed identif i cation procedures as f

ollows: The standard of review f or suppres s i on h earing f indings in p retrial identif ication cases is w h e t

h er or not substantial credible evidence supports the trial court’s f

indings that, considering the totality of the c i rcum stances, i ncourt identif

i cation testim ony was not i m p erm issibly tainted. This Court will not disturb a lower court’s decision on the suppression of evidence unless there is an absence of substantial credible e v i d e n ce supporting it. For an identif ication (m ade out of court or in court) t o be ex c l uded, it m ust be the result of a n im

perm issibly suggestive lineup[ ,] and t he identif ication m ust be unreliable. Butler v. State , 102 So. 3d 2 60, 2 64 (¶8) (Miss. 2012) (internal citations and quotation m arks

om itted). ¶11. “ A lineup or series of photographs is im perm issibly suggestive if ‘the accused, when

com pared with the others, is conspicuously singled out in som e m anner f rom t he others, either f rom appearance or statem ents by an of f icer[ .]’” Id. at ( ¶9) (citation om itted). “W here the def endant is ‘the only one depicted w ith a distinctive f e a ture,’ courts usually will f ind the lineup to be im

perm is s i b l y s u g g estive.” I d. at 265 (¶10) (citation om i tted). “Pretrial identif ications which a re suggestive, without nece s s i t y fo r c o n d u c ting t hem in such a m anner, are proscribed.” Y

ork v. State , 413 So. 2d 1372, 1383 (Miss. 1982). ¶12. Course’s photograph was one o f two photographs shown to McCurdy on Decem ber

39. The previous day , McCurdy was robbed by two individuals m atching the description of

the two m en in the photographs. ¶13. McCurdy initially described his assailants as two m en, o ne dark c om plected and the other l i g h t c o mp lected with dread locks. This description m atched those of Course and Jackson, whose photographs were shown to McCurdy

. Of f icers m ade no ef

f ort to set up a
proper photo l i neup to prevent f alse identif

ications. Instead, McCurdy was only shown the photos of the m en suspected of com m itting the crim e. This procedure did i n f act r esult in the
f alse identif

ication of Reginald Jackson as one of the me n w h o r o b bed McCurdy on Decem ber 8. ¶14. W e hav e p reviously stated that identif ications based on a single photograph are suggestive. Anderson v. State , 25 So. 3d 1074, 1078 (¶15) (Miss. Ct. App. 2009) (where the victim was f

irst shown a s ingle p olaroid photo of the d ef endant bef

ore viewin g a photo lineup, the single photograph r esulted in the latter i dentif ication being s u g g e stive). Essentially , McCurdy was shown one photograph f or each m an who robbed h i m. The pretrial identif

ication of Course was unnecessarily suggestive. ¶15. “An unnecessarily s u g gestive pretrial identif i cation is not autom atically e xcluded; rather, ‘evidence of a s uggest i v e out-of -court i dentif

i cation will be adm issible if , f rom a totality o f t h e c i r c um stances, the identif ication was reliable.’” Butler , 1 02 So. 3 d at 266 (¶14). The reliability of an out-of -court identif

i cation is determ ined by f ive f actors: (1) the opportunity of the witness to view the crim inal at the tim e of the cri me , ( 2 ) t h e w i tness’s degree of attention, (3) the accuracy of the witness’s prior d escription of the crim inal, (4) the

4level o f certainty dem onstrated by the witness at t he conf rontation, and (5) the length of t im e between the crim e and the c onf rontation. Id. (citing Neil v. B iggers , 409 U.S. 188, 199-200 (1972)). ¶16. McCurdy testif

ied th a t t h e r o b b ery in his dorm room took p lace within the span of
“f ive or m ore m inutes.” During this tim e, he f ocused on the m an at the door, who claim ed

to have a gun and t hreatened t o s h o ot McCurdy if he called f or help. This m an was later identif ied as Course. According to McCurdy , the a s sailant claim ing t o have a gun spoke to him t he entire tim e the two m en wer e robbing him

. McCurdy had am ple o pportunity over the f ive or m ore m inutes in w hich the robbery took place to view t he crim inal. He also paid special attention to the assailant later identif ied as Course because he was holding his hand in his pocket and threatening to shoot. T hus, the f irst two f actors weigh in f

a v o r of reliability

. ¶17. The day of t he robbery , M cCurdy described the assailant, later identif ied as Course,

as light com

plected with dread locks. He testif ied l ater in the trial t hat h e told police that the assailant w as shorter than his accom plice and had a f

lat f ace. Indeed, it was t his description that m otivated of

f icers to contact McCurdy o n D e c e mb e r 9 in a n ef f ort t o identif

y the individuals. Because of the accuracy of McCurdy ’ s description, this f actor weighs in f

avor of reliability

. ¶18. Furtherm ore, McCurdy was positive of his identif ication three separate t im es. First,

on Decem ber 9, 2011, McCurdy initially identif ied Course. Second, on D ecem ber 13, 2011, af ter M cCurdy viewed t he s urveillance video, he identif i ed Course. Third, on J u ne 12, 2013,

5he identif

ied Course when h e t estif ied at t r i a l. McCurdy also testif ied at the m otion-tosuppress hearing t hat he had no doubts about his positive identif ication of C ourse. M cCurdy dem onstrated certainty in his identif ication. Theref

or e , t his f

actor weighs i n f

avor of reliability

. ¶19. M c C u r d y w a s r obbed on Decem ber 8 and c alled in to identif y two suspects on Decem ber 9. N o m o re than one day passed between the tim e of the crim e and the tim e of the identif ication. Course argues t hat this granted of f icers am ple tim e to prepare a proper photo
array f or the identif

ication process. This is irrelevant t o the q uestion of reliability

. Rather, McCurdy ’s ability to rem em ber in ref e rence to the am ount of tim e that passed i s the relevant question. Only one d ay p a ssed between the robb e r y and the identif ication of Course; this
f actor weighs in f

avor of reliability

. ¶20. W e f

i nd that McCurdy ’s out-of -court identif

ication of Course was adm i ssible. Even though the identif

ication m e thods used by of f icers were suggestive, the pretrial identif ication

was reliable. Substantial cred i b l e e v i d ence exists in support of the trial court’s f inding. Thus, we af

f irm the trial court’s denial of Course’s pretrial m otion to suppress. ¶21. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COU R T O F CONVICTION OF ARMED R OBBERY AND SENTENCE OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DE P A R TMENT OF CORRECTIONS IS A F F I R M E D . ALL COSTS O F T HIS APPEAL A RE ASSESSED TO HINDS COUNTY. LEE, C .J., IRVING, P .J., BARNES, I S HEE, C ARLTON, MAX W ELL, FAIR, JAMES AND WILSON, JJ., CONCUR.

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