THIS OPINION
HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN
ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Respondent,
v.
Kent Clayton, Appellant.
Appeal From Pickens County
G. Edward Welmaker, Circuit Court Judge
Unpublished Opinion No. 2011-UP-003
Submitted September 1, 2010 Filed
January 20, 2011
AFFIRMED
Appellate Defender Robert M. Pachak, South
Carolina Commission on Indigent Defense Division of Appellate Defense, of
Columbia, for Appellant.
Attorney General Henry Dargan McMaster, Chief
Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley
W. Elliott, Senior Assistant Attorney General Norman Mark Rapoport, Office of
the Attorney General, of Columbia; Solicitor Robert M. Ariail, of Greenville,
for Respondent.
PER CURIAM: Appellant,
Kent Clayton, was convicted of assault with intent to
commit criminal sexual conduct in the first degree. He appeals,
asserting the trial judge erred in failing to suppress the out-of-court and
in-court identifications of appellant by the victim, and further erred in admitting
testimony concerning a number of knives found in appellant's vehicle.[1]
We affirm.
FACTUAL/PROCEDURAL BACKGROUND
Victim testified that she
visited the Upstate Fair in Pickens County on the night of August 30, 2007.
Around 11:30 or 12:00 that night, she started to exit the fairground, intending
to walk to her home only a few blocks away. She stopped at the front gate and
spoke with a man named Keith. Another man was standing there at the time, and
as Victim began to leave, the other man told her he would walk her out of the
area. Victim declined, but the man accompanied her anyway. As she walked
through the fair parking lot, the man brandished a fixed-blade knife. When
Victim asked him what it was, he put the knife to her throat and threw Victim
to the ground. The man pointed the knife at Victim's neck and told her he was
going to rape her. Victim began fighting and screaming and momentarily managed
to escape her attacker. However, the man caught Victim and threw her back to
the ground, straddling her and holding the knife to her neck. Victim continued
to scream and fight until the man eventually told her he was going to let her
go. He took Victim's cell phone so she could not call for help, and told
Victim he would kill her if she reported the crime. Victim described the
lighting in the area of the gate where she exited the area as "pretty lit
up" and stated she could see "real good."
After the attack, Victim ran
home, where she told her husband what had occurred. However, she did not
contact law enforcement until the following day, September 1, 2007, out of fear
from the attacker's threat. Officers interviewed Victim at her home and
returned later that day to take her to the fairground to see if she could
identify the person who attacked her. Victim described her attacker as a being
white, in his late forties or early fifties, between two hundred and two
hundred and forty pounds, 6'1" or 6'2" tall, and having blonde hair.
On the second or third time walking around the fairground, Victim recognized
someone she believed was her attacker standing at one of the fair games.
Victim made an in-court identification of appellant as the person she thought
had attacked her, but testified she was "not really for sure that that's
him." Victim testified the officers asked how sure she was at the time
she pointed him out at the fairground, and she told them she was not quite
sure, but was fifty percent sure. However, when asked on cross-examination
where the person was that she was "fifty percent sure of" when she
walked around the fairground, Victim replied that she now remembered he was
standing at one of the games holding a basketball and that she was "starting
to remember that it is really him, too now."
The State also presented the
testimony of Steve Young, a friend and fellow fair worker of appellant. Young
testified that the fair opened in Easley on a Thursday, and in the early
morning hours on Friday appellant approached Young and indicated he needed to
speak with Young.[2]
Appellant then told Young that if anyone asked, appellant was with Young the
whole night. Young asked appellant why he asked him to do that, and appellant
replied that "he half-heartedly tried to rape someone." Subsequently,
Young contacted the authorities and informed them of his conversation with
appellant. The next day, around noon on Saturday, officers found Young
at the fairground and asked him about the matter. Young told them what had
occurred and directed them to the booth where appellant worked. When appellant
was arrested later that day, he gave Young the keys to his van and asked him to
look after his animals.
Within a day of his arrest,
appellant called Young and asked him to come see him. A day or two later,
Young contacted the officers and requested he be wired for his visit with
appellant. Thereafter, Young visited with appellant while wired, at which time
Young told appellant he thought all the authorities had was a witness who
identified appellant. Appellant responded that was all he knew that the
authorities had against him, and that it was "his word against hers."
He further instructed Young to "go ahead and give the alibi that [the two
of them were] together the whole night" except for approximately ten
minutes. Young asked appellant if there was anything the police could get that
he should take care of, and appellant indicated that he had "disposed of
everything." Appellant then told Young the cell phone battery may be in
the van, though, and he should dispose of that for him. When asked if there
was any weapon in the van that was involved, appellant stated that he had
disposed of it, "but the police took a picture of all his knives."
Detective Kett Fowler
testified he was apprised of the matter by Deputy Raines, who happened to
respond to the call of Young as well as the call from Victim. Detective Fowler
accompanied Victim during the walk through the fairground. He testified that
on the second trip around, Victim identified appellant as a possible suspect.
On the third trip around, Victim again indicated appellant might be the
suspect, stating that he looked similar to her attacker, but noted she was not
one hundred percent positive. When asked to scale her certainty, Victim
responded she was fifty percent sure. Detective Fowler pointed out appellant
to Young and asked him if that was the person Young had had the previous
conversation with that he reported, and Young indicated it was. Detective Fowler
then made contact with appellant and took a statement from him, wherein
appellant claimed he was with Young until 2 a.m. on the night in question, then
walked his dogs and went to his van to sleep. The detective obtained appellant's
consent to search his van. Over defense counsel's objection, Detective Fowler
testified the only thing found in the van connected to the Victim's report were
various knives, mostly folding but some fixed-blades, which were located in a
footlocker. The discovered knives were ultimately not tied to this crime.
Thereafter, Detective Fowler contacted the magistrate and explained the facts
and the magistrate issued a warrant for appellant's arrest.
ISSUES
1. Whether the trial court erred, abused its discretion and violated due
process of law under the State and Federal Constitutions when it failed to
suppress out-of-court and in-court identifications of appellant when the only
witness to the incident could only say there was a fifty percent chance
appellant was her attacker.
2. Whether the trial court erred in admitting into evidence testimony about
a number of knives found in appellant's trunk that were not connected to the
crime, were prejudicial, and raised spurious instances of prior bad acts.
STANDARD OF REVIEW
The admission or exclusion of
evidence is left to the sound discretion of the trial court, and the court's
decision will not be reversed absent an abuse of discretion. State v.
Morris, 376 S.C. 189, 205-06, 656 S.E.2d 359, 368 (2008). An abuse of
discretion occurs when the trial court's decision is based on an error of law
or on factual findings that are without evidentiary support. Id. at
206, 656 S.E.2d at 368. Further, for an error of law to warrant reversal based
upon the admission or exclusion of evidence, the appellant must prove both the
error of the ruling and the resulting prejudice, i.e., that there is a
reasonable probability the verdict was influenced by the challenged evidence or
the lack thereof. State v. Gault, 375 S.C. 570, 574, 654 S.E.2d 98, 100
(Ct. App. 2007).
LAW/ANALYSIS
I. Identification
On appeal, appellant argues the trial court erred in
allowing Victim's out-of-court and in-court identification testimony. Noting
that "reliability is the linchpin in determining the admissibility of
identification evidence," appellant contends Victim's failure to make a
positive identification was not relevant, and that a show-up identification
procedure with only a tentative identification violates due process. We disagree.
Prior to trial, a suppression hearing was held regarding
Victim's pre-trial identification of appellant. Victim testified about how she
observed the assailant for ten to fifteen minutes before she left the
fairground's gate, and further testified to how the attack occurred, noting the
assailant straddled her during that time and their faces were "pretty
close." Victim additionally described her assailant, stating he was a
white man in his late forties or early fifties, was a little taller than her 6'1"
husband, he weighed "two something," and he wore a fair uniform
shirt. Victim stated that the next day, or the day after, she accompanied
officers to the fairground with two hundred or more people in the area, and she
observed a man on her second or third walk around that looked like her
attacker. She pointed the man out to the officers and told them she was fifty
percent sure, but she wasn't really positive. Victim further pointed out the
appellant in the hearing and stated, "He resembles the guy sitting over at
[the defense] table." Victim clarified that she saw the person twice in
her walks around the fairground, and that she was "pretty sure it was him."
Detective Fowler testified during the suppression hearing that he knew where
appellant was prior to walking around with Victim, but there was no suggestive
conversation between him and Victim and he said nothing to suggest Victim should
look over at appellant.
Defense counsel argued any in-court identification of
appellant by Victim should be suppressed based upon the fact that Victim was
only fifty percent sure of her identification. Additionally, counsel argued
the identification procedure was suggestive because the Victim walked around
the area three times with law enforcement and Detective Fowler could have
knowingly or unknowingly communicated his identity as the suspect to Victim.
The trial judge found the walk-through was not suggestive and the reliability
of the identification was a question for the jury. Defense counsel maintained,
while the State could elicit testimony from Victim regarding what she stated at
the fairground regarding appellant, she should not be allowed to make an in-court
identification of appellant or state appellant resembled her attacker. The
trial judge ruled the threshold for Biggers[3] had been met and the matter went to weight and not admissibility of the
evidence. During Victim's testimony before the jury, defense counsel made a
continuing objection to testimony concerning her identification of her
attacker.
The decision to admit an eyewitness identification is generally
within the trial judge's discretion, whose decision will not be disturbed on
appeal absent an abuse of such, or the commission of prejudicial legal error. State
v. McCord, 349 S.C. 477, 481, 562 S.E.2d 689, 691 (Ct. App. 2002). A
criminal defendant may be deprived of due process of law by an identification
procedure which is unnecessarily suggestive and conducive to irreparable
mistaken identification. State v. Turner, 373 S.C. 121, 127, 644 S.E.2d
693, 696 (2007). Thus, an in-court identification of an accused is
inadmissible if a suggestive out-of-court identification procedure created a
very substantial likelihood of irreparable misidentification. Id. The
United States Supreme Court has developed a two-prong inquiry to determine the
admissibility of an out-of-court identification. State v. Traylor, 360
S.C. 74, 81, 600 S.E.2d 523, 526 (2004) (citing Neil v. Biggers, 409
U.S. 188 (1972)). First, the court must determine whether the identification
process was unduly suggestive. Next, it must determine whether the out-of-court
identification was nevertheless so reliable that no substantial likelihood of
misidentification existed. State v. Moore, 343 S.C. 282, 287, 540
S.E.2d 445, 447 (2000). Only if the procedure was suggestive need the court
consider whether there was a substantial likelihood of irreparable
misidentification. Id. at 287, 540 S.E.2d at 447-48.
We find no error in the
admission of Victim's identification of appellant.[4]
There is no evidence the identification procedure in the case at hand was in
any way suggestive. As noted by the State, Victim was not taken to a standard
show-up where individual suspects are presented to a victim. Rather,
accompanied by law enforcement, Victim merely walked the fairground during
operating hours with over two hundred people in the area and pointed out the
person she believed might be her attacker. Additionally, there is no evidence
law enforcement suggested, either knowingly or unknowingly, that appellant was
the suspect. Because the procedure was not suggestive, we need not consider
whether there was a substantial likelihood of irreparable misidentification. We
further note, although the level of certainty demonstrated by Victim at the
confrontation is troubling, such is simply a factor for consideration in
whether there was a substantial likelihood of irreparable misidentification,
and that factor alone is insufficient to require suppression, for the key issue
is whether under the totality of the circumstances the identification is
reliable even though a confrontation may have been suggestive. See State
v. Washington, 323 S.C. 106, 111-12, 473 S.E.2d 479, 481-82 (Ct. App. 1996)
(wherein this court, in analyzing the factors in determining whether there was
a likelihood of misidentification, noted that an identification is not
unreliable simply because it may be phrased in uncertain terms, and held identification
was not unreliable where the jury had the opportunity to observe the witness
and attach the credibility it deemed proper to his testimony, including the
certainty or uncertainty of his identification).
II. Testimony regarding
knives
Appellant asserts on appeal
that the trial judge erred in admitting testimony about the knives found in his
trunk into evidence as they were not connected to the crime, the evidence was
prejudicial, and it "raised spurious instances of prior bad acts."
He argues, pursuant to State v. McConnell, 290 S.C. 278, 350 S.E.2d 179
(1986), the evidence concerning the knives was inadmissible.
During direct examination of
Detective Fowler, the solicitor asked what, if anything, was found in the
consensual search of appellant's van. The following colloquy then occurred:
A: The
only thing we found that had been mentioned as far as the report and all, there
was a footlocker that had numerous knives - - -
[Defense
Counsel]: Your Honor, I'm gonna object to that.
[The
Court]: Your objection?
[Defense
Counsel]: Unless they can show some nexus between what they are now talking
about and this crime it is not relevant.
At this point a bench
conference was held, and the trial judge overruled counsel's objection.
Thereafter, Detective Fowler testified they found numerous knives in the
footlocker, mostly folding but some fixed-blade knives, but they ultimately
were not able to tie any of the knives found there to the crime.
Assuming arguendo that the
evidence was improperly admitted, we find any error to be harmless in light of the
unobjected to testimony of Steve Young, as well as the minimal impact of
Detective Fowler's testimony considering the record as a whole. During direct
examination, Young recounted his conversation with appellant while appellant
was jailed. Young stated he and appellant talked about "a cell phone
battery and a knife." When Young asked appellant if there was anything he
needed to take care of for him before the police could find it in the van, and
if there was any weapon in there "that was involved in it," appellant
told him there was not, that he had disposed of it, "but the police took a
picture of all his knives." Accordingly, there is cumulative, unobjected
to evidence concerning the knives, and any error in the admission of Detective
Fowler's testimony regarding the knives is harmless. See State v.
Holder, 382 S.C. 278, 289, 676 S.E.2d 690, 696-97 (2009) (holding the
erroneous admission of evidence is harmless beyond a reasonable doubt where it
is minimal in the context of the entire record and cumulative to other
testimony admitted without objection); State v. Blackburn, 271 S.C. 324,
329, 247 S.E.2d 334, 337 (1978) (the admission of improper evidence is deemed
harmless if it is merely cumulative to other evidence); State v. Page,
378 S.C. 476, 483-84, 663 S.E.2d 357, 360 (Ct. App. 2008) (holding error is
harmless where it could not reasonably have affected the trial's outcome; no
definite rule of law governs the finding that an error was harmless, rather
the materiality and prejudicial character of the error must be determined from
its relationship to the entire case; in considering whether error is harmless,
a case's particular facts must be considered along with various factors
including: the importance of the witness's testimony in the prosecution's
case, whether the testimony was cumulative, the presence or absence of evidence
corroborating or contradicting the testimony of the witness on material points,
the extent of cross-examination otherwise permitted, and the overall strength
of the prosecution's case).
For the foregoing reasons, appellant's conviction is
AFFIRMED.
FEW, C.J., and HUFF and GEATHERS, JJ., concur.
[1] We decide this case without oral argument pursuant to
Rule 215, SCACR.
[2] In a statement given to police on September 1,
2007, Young indicated this conversation took place around 4:30 or 5:00 a.m.
[3] Neil v. Biggers, 409 U.S. 188, (1972).
[4] Although appellant asserts in his question on
appeal that the trial judge improperly admitted both the out-of-court and
in-court identification of him, trial counsel clearly argued only that any
in-court identification should be suppressed, specifically asserting the State
could elicit testimony from Victim regarding what she stated at the fairground.