This criminal case was appealed from the 262nd District Court in Harris County to the Court of Appeals for the 1st District of Texas.
Kevin Pilgreen was convicted of burglary of a habitation (enhanced by two prior felonies) and sentenced to 40 years confinement. He appealed in part contending that the pretrial lineup was impermissibly suggestive.
On August 14, 2007 while in the shower, Veronica Ramos heard a knock on her door. As she was getting dressed she heard the patio door open and a man screaming “HPD” “HPD”. Ramos walked into the hallway and saw a man standing 6 or 7 feet away. The man said, “I’m so sorry” and ran out the door.
Ramos looked outside and saw the man getting into a pickup truck. She also saw that her brothers motorcycle had been loaded into the bed of the truck. Another man was in the passenger seat, but Ramos could not see him. She did however have time to write down the license plate and call police.
Ramos described the man as having “dirty blond” hair, being in his late 30’s or early 40’s and standing about 5’6” tall. He was wearing a baseball cap, jeans, and a polo shirt.
17 days later Ramos identified the appellant within 40 seconds in a pretrial lineup. Ramos also noted that there was one gentleman that looked a lot like the appellant, but he was taller. The officer conducting the lineup said, “yeah, they’re brothers.”
In his first point of error, appellant contends the lineup should have been suppressed because it was suggestive in the disparity in height and hair color. Additionally, that two men looked alike and Ramos only chose appellant because he was the shorter of the two.
Appellant bears the burden to show by clear and convincing evidence both impermissible suggestion and a substantial likelihood of misidentification. The court concludes that the lineup was not suggestive. The court states that a lineup is not suggestive just because the members are not identical in appearance. It is only suggestive when there are distinct differences in appearance, race, hair color, height, or age. Minor differences will not make a lineup suggestive. So basically, a slight variance in height and hair color is not suggestive, it is actually what a reasonable test to identify should entail. In this case, all members of the lineup were dressed the same, had blond to light brown hair, and were within a few inches of each other in height (with the appellant being neither the tallest nor the shortest).
The court also rejected the second contention of the appellant that he looked too similar to his brother. The court states that a lineup is unduly suggestive if the participants are too DISSIMILAR, not too similar.
So in sum, to successfully challenge a pretrial lineup, you need to have distinct differences in appearance, race, hair color, height, or age that are obvious to a lay person. And these differences need to obviously leave the accused as the “odd man out”. Additionally, the fact that two individuals in a lineup look more similar than the others does not make a lineup suggestive if the others meet the general description to a reasonable degree.