A Jones County jury found Derrick Evans guilty of hijacking a motor vehicle, aggravated assault, and two counts of armed robbery, which charges arose from acts Evans and two other men perpetrated against the driver and passenger of a late model Chevrolet Tahoe SUV at the intersections of Highway 129 and Highway 11 in Grey. Evans appeals, claiming that the trial court erred in permitting identification evidence based upon a suggestive pre-trial lineup; that the trial court erred in permitting the victim to testify that he was certain in his identification of Evans as a perpetrator; and that the evidence was insufficient to support the verdict. Finding these contentions meritless, we affirm. 1. The trial court denied Evans’ motion to suppress the victims’ identification testimony. Evan’s argues that such ruling was error because a the background color in Evans’ photograph was a different color than the backgrounds in the other five photographs, and b the trial court did not consider the factors identified in Neil v. Biggers 1 prior to his ruling. We find no error.
a The procedure used for the pretrial identification of Evans by the victims was not impermissibly suggestive. The record shows that the subjects in the other five lineup photographs were physically similar to Evans, and Evans does not claim otherwise. Nor is there any contention that the authorities suggested to the victims in any fashion which photograph to choose. Although Evans complains that the none of the other five photographs used a “beige” background like that contained in his photograph, the record shows that several of the photographs utilized different colored backgrounds, i.e., “whitish,” and “light lavender bluish”; thus, Evan’s photograph’s background, alone, did not stand out as different while the other five backgrounds were exactly the same.2 Moreover, Evans has failed to demonstrate how the background color of his photograph made him stand out from the other lineup participants in an arbitrary or apparent way so as to be “suggestive,” especially since the only victim questioned on this subject testified that, in the ten seconds it took him to pick Evans out of the lineup, “I was looking at the faces. The background, I didn’t —the background didn’t make no difference to me.”3 Accordingly, the trial court did not err in admitting the disputed identification evidence.
