author: WALLER, Presiding Justice,

text:
    Orlando JENKINS v. STATE of Mississippi.
    No. 2005-KA-00859-SCT.
    Supreme Court of Mississippi.
    Nov. 30, 2006.
    Rehearing Denied Feb. 8, 2007.

      Raymond M. Baum, Winona, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before WALLER, P.J., EASLEY and CARLSON, JJ.
   WALLER, Presiding Justice,

for the Court.

¶ 1. Orlando Jenkins was convicted in the Attala County Circuit Court of the murder of Andre Porter Barnes and sentenced to life in prison. On appeal, Jenkins argues (1) the indictment against him should be dismissed because the State violated his statutory and constitutional rights to a speedy trial, and (2) he should be granted a new trial because his conviction was against the overwhelming weight of the evidence. Finding that each of Jenkins’ claims is without merit, we affirm the judgment of the trial court.

FACTS

¶ 2. In the evening on July 10, Jenkins’ co-indictee, Dewon Winters, and a female companion met Jenkins at the Hannah Heights apartment complex in Ethel, Mississippi. Jenkins approached Barnes at the complex and convinced him to accompany them in Winters’ car. Winters left his companion at a trailer belonging to his sister, and he, Jenkins, and Barnes drove to a remote dirt road. Winters maintains that Jenkins then shot and killed Barnes with Winters’ gun. Jenkins claims Winters killed Barnes.

¶ 3. The two men hid Barnes’ body in the woods and returned to the trailer, where they found Winters’ cousin and his girlfriend with Winters’ companion. Winters and Jenkins placed their clothing and the gun and bullets used in the crime in a bag and told Winters’ cousin to bury it. Winters, his companion, and Jenkins then drove to Jackson. Winters’ cousin borrowed a shovel from another cousin and buried the evidence. Barnes’ sister overhead Winters’ cousin ask about the shovel. She found the request suspicious, and when she could not find her brother in the morning on July 11, she notified the police that Winters’ cousin might be involved in Barnes’ disappearance. Winters’ cousin implicated Winters and Jenkins, and the police arrested Jenkins on July 11, 2003. Winters fled the state, and was arrested in Illinois nine months later.

¶ 4. On August 4, 2003, the police officer investigating the case sent Jenkins’ clothes to the Mississippi Crime Lab for serology analysis to determine if there was blood on the clothing. Winters and Jenkins were indicted together for murder on March 4, 2004. On July 29, 2004, the state crime lab confirmed that there was blood on Jenkins’ shoes. Jenkins filed a motion for severance which was granted by the trial court on August 26, 2004. On September 17, 2004, Jenkins filed a motion to dismiss his indictment for want of a speedy trial. On September 24, 2004, the police requested DNA testing of the blood found on Jenkins’ shoes. The report on the DNA testing, which confirmed that Jenkins’ shoes had the victim’s blood on them, was issued in March of 2005.

¶ 5. Jenkins’ trial began on March 28, 2005. Winters testified for the prosecution at Jenkins’ trial, stating that he and Jenkins were involved in a drug deal together and that Jenkins killed Barnes for disrespecting him. Jenkins maintained that he did not know Winters and that Winters killed Barnes beeáuse Barnes would not give him information. After being convicted of murder on March 31, 2005, and sentenced to life in prison, Jenkins appeals.

DISCUSSION

I. STATUTORY AND CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL

¶ 6. Jenkins claims that the delay in his trial violates both his statutory right to a trial within 270 days of his arraignment under Miss.Code Ann. § 99-17-1 (2006) and his constitutional right to a speedy trial under the Sixth and Fourteenth Amendments to the U.S. Constitution, Article 3, section 26 of the Mississippi Constitution, and the United States Supreme Court’s holding in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

¶ 7. Jenkins asserted his right to a speedy trial, or a dismissal of his indictment in the alternative, on September 17, 2004. The circuit court granted Jenkins motion on September 22, 2004, and ordered his trial set for the first weeks of October 2004. For reasons that are not provided in the record, Jenkins was not tried in October 2004, and his trial was set for March 28, 2005. On March 2, 2005, Jenkins filed a second motion to dismiss his indictment for want of a speedy trial. Another trial judge considered Jenkins’ motion on March 3, 2005, and found that neither Jenkins’ statutory right nor his constitutional right to a speedy trial had been violated. Jenkins renewed his motion again at the beginning of the trial on March 28, 2005, noting that one of his witnesses could not be found. The State argued that the proposed testimony of the missing witness concerned issues not in dispute by the State, that the testimony was duplicative of other witnesses’ testimony, and that Jenkins therefore suffered no prejudice. The trial judge reserved ruling on the issue until the close of Jenkins’ case. After the close of Jenkins’ case, the trial judge found that, because the proposed testimony was cumulative, Jenkins suffered no prejudice from its absence. He therefore denied the motion to dismiss.

¶ 8. Reviewing a trial court’s denial of a motion to dismiss for want of a speedy trial “necessarily entail[s] questions of fact regarding whether the trial delay rose from good cause.” Manix v. State, 895 So.2d 167, 173 (Miss.2005) (citing DeLoach v. State, 722 So.2d 512, 516 (Miss.1998)). We adopt a deferential standard of review for such factual determinations and will reverse only if the trial court’s decision is clearly erroneous. Id. (citing Stokes v. State, 548 So.2d 118, 122 (Miss.1989)). We will uphold the trial court’s decision based on substantial, credible evidence of a finding of good cause. Young v. State, 891 So.2d 813, 817 (Miss.2005) (citing Folk v. State, 576 So.2d 1243, 1247 (Miss.1991)).

A. The Statutory Right

¶ 9. Section 99-71-1 of the Mississippi Code requires that all offenses be tried within 270 days of arraignment, unless the court shows good cause and enters a continuance. The statute is not applicable to delays between the alleged act and the indictment. Coleman v. State, 725 So.2d 154, 156 (Miss.1998). When the accused is not tried within 270 days of his arraignment, the State has the burden of establishing good cause for the delay since the accused is under no duty to bring himself to trial. Herring v. State, 691 So.2d 948, 953 (Miss.1997); Perry v. State, 419 So.2d 194, 199 (Miss.1982)

¶ 10. Delays caused by a backlog at state or federal crime lab constitute good cause and will not be attributed to the State. See Manix v. State, 895 So.2d 167, 176 (Miss.2005) (delay caused by backlog in state crime lab does not prejudice State); State v. Magnusen, 646 So.2d 1275, 1281 (Miss.1994) (five-month delay by crime lab not attributed to State); Gray v. State, 728 So.2d 36, 48 (Miss.1998) (delay caused by FBI crime lab does not weigh in favor of defendant). This Court has also recognized congested dockets as good cause. Herring, 691 So.2d at 953; Folk v. State, 576 So.2d 1243 (Miss.1991).

¶ 11. There was a delay of 389 days between Jenkins’ arraignment on March 4, 2004, and the beginning of his trial on March 28, 2005. The delay from March 4, 2004, to July 29, 2004, was due to the backlog at the state crime lab, which the trial court found to be good cause. The delay from July 29, 2004, to September 21, 2004, was due to the investigating officer’s deployment with the military, which the trial court found to be good cause. The delay from September 21, 2004, to March 27, 2005, was due to delays in DNA testing, requested from the state crime lab but ultimately performed by a private company, which the trial court also found to be good cause. Finally, on its own initiative, the trial court noted that its docket was congested, and that the court would not have been able to try Jenkins between October 1, 2004, and March 7, 2005.

¶ 12. In the trial court’s hearing on Jenkins’ motion to dismiss for violation of the right to a speedy trial, the State provided witnesses from the police, the state crime lab, and the district attorney’s office, all of whom testified to the delays caused by the crime lab’s personnel shortages and backlog of requests. The determinations of the trial court were supported by substantial, credible evidence of good cause. Therefore, Jenkins’ statutory right to a speedy trial was not violated by the delay.

B. The Constitutional Right

¶ 13. Jenkins also claims that the delay of his trial violated his constitutional right to a speedy trial. The Sixth Amendment to the United States Constitution provides that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” U.S. Const, amend. VI. In Barker v. Wingo, the United States Supreme Court articulated the standard of review for determining whether the constitutional right to a speedy trial has been violated. 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101; see also Brengettcy v. State, 794 So.2d 987, 992 (Miss.2001). Under the Barker test, courts must balance: (1) the length of the delay, (2) the reason for the delay, (3) whether the defendant asserted his right to a speedy trial, and (4) whether the defendant was prejudiced by the delay. No one factor is dispositive. Poole v. State, 826 So.2d 1222, 1229-30 (Miss.2002).

(1) The Length of the Delay

¶ 14. The length of the delay is a threshold issue under Barker. 407 U.S. at 530, 92 S.Ct. 2182. The Barker factors will be considered only if the length of the delay is “presumptively prejudicial” to the defendant. Barker, 407 U.S. at 530, 92 S.Ct. 2182; Smith v. State, 550 So.2d 406, 408 (Miss.1989). The constitutional right to a speedy trial, unlike the statutory right created by Miss.Code Ann. § 99-17-1, attaches when a person has been effectively accused of a crime. Magnusen, 646 So.2d at 1278 (citing Box v. State, 610 So.2d 1148 (Miss.1992)). A delay in excess of eight months between arrest and trial is sufficient to trigger analysis under Barker. Manix, 895 So.2d at 176; Skaggs v. State, 676 So.2d 897, 900 (Miss.1996).

¶ 15. There was a delay of 626 days between Jenkins’ arrest on July 11, 2003, and the beginning of his trial on March 28, 2005. The delay is therefore presumptively prejudicial, and the remaining Barker factors must be considered.

(2) The Reason for the Delay

¶ 16. Once the delay is found to be presumptively prejudicial, the burden shifts to the State to produce evidence justifying the delay and to persuade the trier of fact of .the legitimacy of the reasons. Herring, 691 So.2d at 955-956; State v. Ferguson, 576 So.2d 1252, 1254 (Miss.1991). A delay by the State is justified by a showing of good cause. Ross v. State, 605 So.2d 17, 22 (Miss.1992).

¶ 17. Approximately 520 days of the 626 day delay can be attributed to either the state crime lab or the private company subsequently hired to complete the DNA testing requested by the State. Delays unintentionally caused by the State will not be weighed as heavily against the prosecution as delays intended to hurt the defendant’s case. Jenkins v. State, 607 So.2d 1137, 1138-1140 (Miss.1992) (citing Williamson v. State, 512 So.2d 868, 876 (Miss.1987)). This Court has also been reluctant to weigh delay heavily against the State when the cause is an instrumentality of the State, such as the state crime lab. See Manix, 895 So.2d at 176; Gray, 728 So.2d at 48; Magnusen, 646 So.2d at 1281.

¶ 18. The trial court’s determination that the delays should not be weighed against the State was' based on credible evidence from the record. The second Barker factor favors neither party.

(3) Assertion of Right

¶ 19. While the State bears the burden of bringing a defendant to trial, a defendant’s assertion of his right to a speedy trial weighs more heavily in his favor than not asserting it. Manix, 895 So.2d at 176. However, the demand for dismissal for violation of the right to speedy trial is not the equivalent of a demand for speedy trial, because such a motion seeks discharge and not trial. See, e.g., Stark v. State, 911 So.2d 447 (Miss.2005). Jenkins asserted his right to a speedy trial on September 17, 2004, 433 days after his arrest and 197 days after his arraignment, and requested a dismissal of the indictment in the alternative. This motion constituted a valid assertion of his right to a speedy trial. The third Barker factor therefore favors Jenkins.

(4) Prejudice to the Defendant

¶20. Jenkins alleges that his case was prejudiced in two ways. First, he Claims his incarceration from July of 2003 to March of 2005 caused him anxiety and concern, one of the interests contemplated by the U.S. Supreme Court in Barker. Second, he claims that he was prejudiced because at the beginning of his trial, he was unable to locate a previously-subpoenaed witness.

¶ 21. In considering whether Jenkins was prejudiced by the delay, we must look to the three interests for which the speedy trial right was designed: “(I) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Mitchell v. State, 792 So.2d 192, 213 (Miss.2001); Barker, 407 U.S. at 532, 92 S.Ct. 2182. Generally, proof of prejudice entails the loss of evidence, the death of witnesses, or the staleness of an investigation. Sharp v. State, 786 So.2d 372, 381 (Miss.2001) (citations omitted). The possibility of impairment of the defense is the most serious consideration in determining whether the defendant has suffered prejudice as a result of delay. Id. Mississippi case law does not recognize as prejudice the negative emotional, social, and economic impacts that accompany incarceration. Manix, 895 So.2d at 177 (citing Hughey v. State, 512 So.2d 4, 11 (Miss.1987)). Consequently, a defendant’s assertion of prejudice attributable solely to incarceration, with no other harm, typically is not sufficient to warrant reversal. Ross, 605 So.2d at 23.

¶ 22. Because we have declined to recognize the negative impacts of incarceration as prejudicial, Jenkins’ incarceration alone does not constitute prejudice, and his first claim is without merit. Jenkins’ second claim of prejudice was considered by the trial court at the end of his case-in-chief. The trial judge’s determination that the proposed testimony of the missing witness would be cumulative and that its absence was not prejudicial was supported by credible evidence in the record. The fourth Barker factor favors the State.

C. Conclusion

¶ 23. The trial court was well within its discretion in finding that the four Barker factors favored the State and that the delay in Jenkins’ trial did not violate either his statutory or his constitutional right to a speedy trial. The trial court carefully considered Jenkins’ claims and conscientiously applied the appropriate judicial tests to determine whether his rights had been violated. Finding no error by the trial court, we find the first assignment of error is without merit.

II. WEIGHT OF THE EVIDENCE.

¶ 24. Jenkins claims that the trial court erred in refusing to grant his motion for a new trial because the verdict was against the overwhelming weight of the evidence. The standard of review for denial of a motion for new trial is well-established. This Courts sits as a “thirteenth juror” and, in determining whether a jury verdict is against the overwhelming weight of the evidence,

this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal. As such, if the verdict is against the overwhelming weight of the evidence, then a new trial is proper.

Baker v. State, 802 So.2d 77, 81 (Miss.2001) (citing Dudley v. State, 719 So.2d 180, 182 (Miss.1998)).

¶ 25. Jenkins claims that the only evidence against him was the uncorroborated testimony of his co-indictee Winters. He cites several cases for the proposition that convictions based solely on the such testimony may be reversed if the testimony is unreasonable, improbable, or self-contradictory. see, e.g., Mister v. State, 190 So.2d 869 (Miss.1966). Jenkins argues that inconsistencies between Winters’ testimony and that of other witnesses prove that Winters’ testimony is self-contradictory and improbable.

¶ 26. Jenkins is mistaken in his reliance on our rule for the uncorroborated testimony of an interested party. His conviction was not based solely on the testimony of his co-indictee, but also on eyewitness testimony and DNA evidence. Any conflicts between witnesses’ accounts are properly weighed by the jury. When the evidence is conflicting, “the jury will be the sole judge of the credibility of witnesses and the weight and worth of their testimony.... In other words, the credibility of witnesses is not for the reviewing court.” Scott v. State, 796 So.2d 959, 968 (Miss.2001). Sitting as a thirteenth juror and viewing the evidence in the light most favorable to the judgment, we cannot say that an unconscionable injustice resulted from the jury’s guilty verdict. See Bush v. State, 895 So.2d 836, 844-45 (Miss.2005). The second assignment of error is without merit.

CONCLUSION

¶ 27. Because each of Jenkins’ two claims of error is without merit, we affirm the judgment of the trial court.

¶ 28. CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SAID SENTENCE SHALL RUN CONSECUTIVELY TO ANY SENTENCE PREVIOUSLY IMPOSED.

SMITH, C.J., COBB, P.J., EASLEY, CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. DIAZ AND GRAVES, JJ., CONCUR IN RESULT ONLY.

      . “Unless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned.” Miss.Code Ann. § 99-17-1 (2006).


source: Caselaw Access Project

author: COBB, Presiding Justice,

license: Public Domain

text:
    Daniel OUTERBRIDGE a/k/a Daniel Nian Outerbridge v. STATE of Mississippi.
    No. 2005-KA-01809-SCT.
    Supreme Court of Mississippi.
    Dec. 7, 2006.
    Rehearing Denied Feb. 8, 2007.

      George T. Holmes, Jackson, attorney for appellant.
    Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.

      Before COBB, P.J., CARLSON and DICKINSON, JJ.
   COBB, Presiding Justice,

for the Court.

¶ 1. This appeal comes from Daniel Out-erbridge’s conviction in the Hinds County Circuit Court, First Judicial District, for armed robbery pursuant to Miss.Code Ann. Section 97-3-79. Outerbridge asserts that the trial court erred by failing to suppress evidence of an improperly suggestive identification, allowing hearsay testimony to improperly bolster the victim’s statements, and allowing the prosecutor to make an inappropriate “golden rule” comment during the State’s closing argument. Concluding that "these issues are without merit, we affirm Outerbridge’s conviction and sentence.

FACTS

¶ 2. Around 7:00 P.M. on February 2, • 2003, Aaron Clark was cleaning his work van in the parking lot of his apartment complex. As he leaned across the driver’s seat he felt a gun barrel pushed into his back and heard a male voice say “give me what you got.” Clark turned to face the gunman and told him that he did not have anything on him and that in fact he did not have any pockets in the jogging pants he was wearing. Clark testified that he was face-to-face with the gunman and that a large black automatic pistol was being held against his chest.

¶ 3. After seeing that Clark' did not have anything,, the gunman stepped back while still holding the gun on him and said “there must be something in the van that I can take.” Clark informed him that it was a company van and that there was nothing of value inside, but suggested that he see for himself. After ascertaining there was nothing of value in the van, the gunman ran away.

¶ 4. Clark immediately called the Jackson Police Department and reported the incident, describing the gunman as a light-skinned young black male with a light mustache and braids in his hair. Clark told the police that the gunman was between 5'9" and 6' tall, weighed approximately 145 pounds, and was wearing a gray shirt or sweater with a pullover hood and dark pants with shiny black shoes. Officer Cesar Hamilton arrived on the scene within half an hour of the incident and Clark gave him an identical description, which was radioed to other officers so they would be on the lookout for an individual matching the description.

¶ 5. Hamilton received a call about another armed robbery in progress and left to respond to that call. Approximately one hour later he returned to get Clark and take him to a local gas station to identify a suspect who matched the description Clark had given. En route Clark heard radio transmissions about the detained suspect. When they arrived at the gas station Clark remained in the patrol car while other officers at the scene produced the handcuffed suspect, later identified as Outerbridge, from another patrol car. At a distance of about fifteen feet Clark was able to identify. Outerbridge positively as the man who had earlier held a gun on him.

¶ 6. The next day Clark went to the police station to speak with a Jackson Police Department detective. During the course of Clark’s interview a photo lineup was conducted, and Clark positively identified Outerbridge from the six-person photo lineup.

ANALYSIS

I. IDENTIFICATION EVIDENCE

¶ 7. Outerbridge asserts two reasons why the trial court erred in allowing the State to present Clark’s pre-trial identification. The first is that the show-up, which occurred at the gas station, was unjustifiably suggestive and also led to Clark’s identification of Outerbridge in the photo lineup the following day. The second is that the individuals in the photo lineup were “too indistinguishable from Outerbridge”, as they all looked almost exactly alike, thus increasing substantially the likelihood of mistaken identity.

¶ 8. This Court’s standard of review regarding the admissibility of evidence is abuse of discretion. Johnston v. State, 567 So.2d 237, 238 (Miss.1990). Unless a trial court abuses its discretion in admitting the specific evidence this Court will not find error. Shearer v. State, 423 So.2d 824, 826 (Miss.1983). The standard of review for trial court decisions regarding pretrial identification 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 impermis-sibly tainted.” Roche v. State, 913 So.2d 306, 310 (Miss.2005). We will only disturb the order of the trial court where there is an absence of substantial credible evidence supporting it. Id.

¶ 9. The holding of Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), which has long guided this Court’s decisions on eyewitness identifications, established the central question as being “whether under the ‘totality of the circumstances’ the identification was reliable even through the confrontation was suggestive.” It held, inter alia, that five “factors to be considered in evaluating the likelihood of misidentification include 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’ pri- or 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. at 199, 93 S.Ct. 375. In York v. State, 413 So.2d 1372, 1381 (Miss.1982), this Court provided a detailed history and analysis of the law regarding both pretrial and in-court identification, recognizing the importance of eyewitness identifications while at the same time warning of the troubles which can arise from mistaken identifications. In evaluating the likelihood of misidentification of York following an allegedly suggestive police procedure, this Court applied the five factors established by Biggers and affirmed York’s conviction and sentence.

¶ 10. Outerbridge asserts that the show-up was unnecessary, impermissibly suggestive and tainted Clark’s subsequent photo identification. Applying the Biggers factors in its ruling on a pretrial motion to suppress the identifications, the trial court found otherwise:

The Court finds beyond a reasonable doubt from the totality of the circumstances that Mr. Clark had an excellent opportunity to view the assailant during the time of the commission of the crime. The Court finds that there was a high degree of attention given by Mr. Clark to his assailant during that period of time. Duration was such that it provided excellent opportunity for Mr. Clark to observe, not only a clothing description, but a physical description and facial description of the assailant as well. The Court finds beyond a reasonable doubt that the description was highly accurate when compared with the actual physical description of the defendant following his apprehension.

The trial court went on to find the duration between the crime and the photo lineup was relatively short, and that after taking approximately ten minutes reviewing the photographs, Clark “expressed 100 percent degree or level of certainty” in his identification of Outerbridge. Further the trial court called the photo lineup “one of the best I have ever seen.” Despite “whatever taint may have been involved by the impermissibly suggestive how-up”, the trial court found “from the totality of the circumstances beyond a reasonable doubt” that Clark’s identification was admissible.

¶ 11. This Court has stated that historically, show-ups have been condemned as impermissibly suggestive and have been disapproved because they increase the likelihood of misidentification. York, 413 So.2d at 1381. The eyewitness is apt to retain the image of the individual displayed during the show-up rather than the actual assailant. Id. at 1378. This could be true in the present situation, where Clark overheard Hamilton speaking with other officers and say to them “well, that’s our guy.” See id.

¶ 12. In rare situations, as in York, show-ups are appropriate. Id. at 1377. However, the facts in the present case were markedly different from those in York, where the eyewitness was grievously injured by her assailant, it was not clear she would survive long enough for proper identification procedures to take place, and as a result of these exigencies such a procedure was appropriate. Id. at 1378. No exigencies existed in the present situation. Outerbridge was already in custody, and Clark was neither grievously injured nor was there any threat that he would be unavailable to participate in a later lineup. Although it was inappropriate for the police to conduct the show-up in the manner they did, and the procedure threatened the admissibility of Clark’s later identification, our inquiry does not end there. We proceed to review the reliability of the eyewitness identification under the Biggers factors and weigh it against the corrupting effect of the suggestive identification. Roche, 913 So.2d at 311.

¶ 13. Despite the suggestiveness of the show-up, Clark’s identification is still admissible because there is factual evidence which overcomes the likelihood of misiden-tification. Applying the Biggers five-prong test, it is clear that Clark had an excellent opportunity to view Outerbridge during the robbery. Outerbridge was at arms’ length to Clark while standing face-to-face with him for a period of three to five minutes. Admittedly it was evening, but the parking lot was well lighted with street lights. It is also clear that Clark had every opportunity to pay close and undivided attention to Outerbridge during the robbery, as evidenced by the level of accuracy with which he was able to describe Outerbridge to the police. Clark’s description of Outerbridge’s clothes and physical characteristics provided a degree of accuracy that permitted the police to find a suspect with the same characteristics within an hour.

¶ 14. When Clark identified Outer-bridge at the gas station, in the photo lineup, and at trial he expressed 100 per cent certainty that Outerbridge was the gunman. Outerbridge claims that Clark took approximately fifteen minutes to pick him out of a photo lineup and that is prima facie evidence of his lack of certainty. We agree with the opinion of the trial court that fifteen minutes is not a long period of time for a witness to investigate a photo lineup. Witnesses should be encouraged to pause and deeply consider their identifications, viewing all possible photos prior to making a decision. Additionally, less than 24 hours transpired between the robbery and photo lineup. There is no doubt that the assailant’s image was fresh on Clark’s mind when he identified Outerbridge. The Biggers factors weigh strongly in favor of admissibility of the pre-trial identification. Looking at the totality of the circumstances, we conclude the trial court did not abuse its discretion in admitting this evidence.

¶ 15. Outerbridge also asserts that the six individuals in the photo lineup were so similar in appearance there was an extreme likelihood of misidentification, citing no authority for this position except a U.S. Department of Justice training manual. Although this argument is novel, it lacks substance. The purpose of a photo lineup is to provide witnesses a set of individuals who are similar in physical characteristics so that only someone who was actually familiar with the accused would be able to identify them. See Brooks v. State, 748 So.2d 736, 742 (Miss.1999). This Court’s decisions are replete with examples of identifications being challenged because the photos were dissimilar but we found none challenging it on the basis of too much similarity. If this Court adopted such an approach there would be an unnecessary limit on the use of identification evidence, in both directions. It is logical that the police should not use images of individuals who are dissimilar; however, the converse is illogical. It is in the best interest of the accused that the other individuals in the photo lineup have similar characteristics as it ensures that an identification is made by someone familiar with the accused. Considering the totality of the circumstances, we conclude the trial court did not abuse its discretion with regard to the identification issues.

II. IMPROPER BOLSTERING

¶ 16. Outerbridge asserts that the trial court erred in allowing Officer Hamilton to testify, over objection, as to details of the crime and Outerbridge’s physical description. During direct examination the State asked Hamilton to describe the series of events from first receiving the call from dispatch until the show-up. During that dialogue Hamilton testified to statements made to by the dispatch officer, another fellow officer, and Clark before and during the show-up. Outerbridge now asserts that the trial court’s error violates this Court’s decision in Ratcliff v. State, 308 So.2d 225 (Miss.1975), and Anderson v. State, 171 Miss. 41, 156 So. 645 (1934). We disagree.

¶ 17. This Court has recently addressed arguments based on both Ratcliff and Anderson. We found Anderson irrelevant and factually distinguishable in an analogous situation in Hobgood v. State, 926 So.2d 847, 853 (Miss.2006). That situation involved a police officer who met with a child sex abuse victim and a social worker, and later testified at trial as to the substance of the discussions he had with these individuals. This Court found that the trial court did not err in admitting the police officer’s testimony because it did not go to the truth of the matter asserted but rather described why the officer acted as he did in arresting the defendant. Id.

¶ 18. Outerbridge’s reliance on Ratcliff is likewise misplaced. This Court recently dealt with a bolstering argument based on our holding in Ratcliff which said that statements of an informant to investigators were inadmissible hearsay. See Mixon v. State, 921 So.2d 275, 278-79 (Miss.2005). The Court distinguished these two cases, however, stating the linchpin of the Ratcliff decision was that “an accused person is entitled to be confronted with and have opportunity to cross-examine witnesses against him” and Ratcliff was not given that opportunity. Id. at 279. In the present case, however, Clark was present at trial and did testify subject to cross-examination. Outerbridge had every opportunity to cross-examine Clark as to the substance of his identification and in fact did so. Officer Hamilton’s testimony did not go to the truth of the matter asserted but rather explained why Hamilton acted the way he did. The report from the dispatcher led to Hamilton’s canvassing the area looking for an individual who matched Outerbridge’s description. Statements taken by Hamilton from Clark explained why Hamilton alerted other officers to look for an individual matching Outer-bridge’s description. Those statements were not intended to prove that Outer-bridge committed the crime. The trial judge even instructed the jury sua sponte of the limited purpose for using such statements, thereby dispelling any inappropriate or inadvertent use of that testimony. There was no error in admitting Hamilton’s testimony.

III. GOLDEN RULE ARGUMENT

¶ 19. Outerbridge finally asserts that during closing argument the State improperly asked the jury to put themselves in the victim’s place, thus violating the golden rule argument which this Court has long prohibited. See Chisolm v. State, 529 So.2d 635, 640 (Miss.1988). During closing argument the prosecutor said the following:

Now [Outerbridge] says that [the victim’s] not reliable. But I want you to consider. Aaron Clark didn’t say big guy, big gun. He said, five-nine to six foot, 145 pounds, light-skinned, light mustache — light mustache, gray hooded shirt, black pants, shiny black shoes. I don’t know what kind of gun it was but it wasn’t a revolver. He didn’t say, hey, big guy, big gun. He came in and started taking stuff from him. He didn’t try to pump it up. He didn’t try to make his story better than it was. If he would have done that we would get from him, oh, he took a lot of money. He didn’t tell you that. He told you, I didn’t have anything on me.
And how did he get a good look at who was robbing him? Well, the guy is going through his car. You never forget the man that puts a gun to your chest and holds your life in his hands. For those three minutes he was at the mercy of Daniel Outerbridge. This not a face you forget, ladies and gentlemen. I hope that none of you ever have to be in this situation. That is not—

The objection that followed was overruled by the trial court.

¶ 20. On appeal this Court reviews the propriety of closing arguments with discretion to the trial court. Stevens v. State, 806 So.2d 1031, 1057 (Miss.2001). The trial court is in the best position to determine if an alleged improper comment had a prejudicial effect; and therefore, absent an abuse of that discretion, the trial court’s ruling will stand. Id. (citing Roundtree v. State, 568 So.2d 1173, 1178 (Miss.1990)).

¶ 21. We have succinctly explained the justification for prohibiting a golden rule argument as follows:

It is the essence of our system of courts and laws that every party is entitled to a fair and impartial jury. It is a fundamental tenet of our system that a man may not judge his own case, for experience teaches that men are usually not impartial and fair when self interest is involved. Therefore, it is improper to permit an attorney to tell the jury to put themselves in the shoes of one of the parties or to apply the golden rule. Attorneys should not tell a jury, in effect, that the law authorizes it to depart from neutrality and to make its determination from the point of view of bias or personal interest.

See Chisolm, 529 So.2d at 639. There we concluded that “the argument was sufficiently insignificant in the overall context of the case before us” that we found the error harmless. Id. at 640.

¶ 22. This Court has also stated that “attorneys are allowed wide latitude in their arguments ‘limiting them not only to facts, but also to deductions and conclusions which may be drawn therefrom, and to the application of the law to those facts.’ ” Stevens, 806 So.2d at 1057 (quoting Holly v. State, 716 So.2d 979, 988 (Miss.1998)).

¶ 23. Even when a prosecutor has made an impermissible comment, this Court requires a showing of prejudice to warrant reversal. Ormond v. State, 599 So.2d 951, 961 (Miss.1992). Where a prosecutor has made an improper argument, the question on appeal is whether the natural and probable effect of the improper argument creates an unjust prejudice against the accused resulting in a decision influenced by the prejudice so created. Wells v. State, 698 So.2d 497, 507 (Miss.1997) (citing Davis v. State, 530 So.2d 694, 701 (Miss.1988)).

¶ 24. The prosecutor’s comment, when taken in context, did not ask the jurors to put themselves in the victim’s place to determine Outerbridge’s guilt. Rather the comment urged them to believe the victim’s identification. The Court of Appeals recently dealt with a similar factual situation in Brown v. State, 839 So.2d 597 (Miss.Ct.App.2003), where that court drew a distinction between prosecutorial comments that urge the jury to put themselves in the victim’s place for the purpose of determining guilt, and the same comment used to weigh the credibility of the victim’s identification. The Court of Appeals found the latter use admissible. Id. at 601. The latter approach is in keeping with this Court’s goal in Chisolm because it preserves the jury’s neutrality on the ultimate issue while allowing it to weigh the credibility of the witness. Today we adopt that standard. We find no merit to Outer-bridge’s third issue.

CONCLUSION

¶ 25. For the reasons set forth above, Outerbridge’s arguments are without merit. We affirm the circuit court’s judgment.

¶ 26. CONVICTION OF ARMED ROBBERY AND SENTENCE OF THIRTY (30) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIFTEEN(15) YEARS TO SERVE AND FIFTEEN (15) YEARS SUSPENDED AND FIVE (5) YEARS OF SUPERVISED PROBATION, AFFIRMED.

SMITH, C.J., WALLER, P.J., AND EASLEY, CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. DIAZ AND GRAVES, JJ., CONCUR IN RESULT ONLY.