State v. Lewis

580 S.E.2d 149, 354 S.C. 222, 2003 S.C. App. LEXIS 19

• Court: Court of Appeals of South Carolina
• Decided: February 18, 2003
• Docket: 3600
• Status: Published

Opinions

CONNOR, J.:

Gerrod Lewis was indicted for first degree criminal sexual conduct, two counts of kidnapping, grand larceny of a vehicle, and armed robbery. He appeals the jury’s verdict finding him guilty on all charges. We affirm in part, reverse in part, and remand.

FACTS

On June 21, 1999, Jane Doe¹ and Gill Armstrong were traveling with their infant daughter from Virginia to their home in Florida. They stopped at a hotel off 1-95 in St. George about 11:00 p.m. After checking in, Armstrong went to a nearby restaurant to get some food. When he returned, he noticed three men standing in the breezeway near his room. Assuming they were hotel guests, he proceeded back to his room. After putting the food in the room, Armstrong went back outside to the vending machines for drinks.

At the vending machine, a man whom Armstrong later identified as Timothy Washington, placed a gun to his head and demanded money. Lewis and Shermaine Elmore were with Washington. Armstrong recognized the three as the same men he had seen in the breezeway minutes earlier. The three assailants demanded that Armstrong take them to his room.

As the men entered the room, Doe was getting out of the shower clad only in a towel. Their daughter was asleep on the bed. The assailants demanded money. When they realized Armstrong and Doe had only fourteen dollars, they became enraged and began searching the room. They did not find anything else in the room.

Lewis and Washington then took turns sexually assaulting Doe in the bedroom while Elmore held Armstrong at gunpoint in the bathroom. Washington then took Doe into the bathroom and sexually assaulted her in Armstrong’s presence. Thereafter, the assailants took Armstrong’s keys and stole his ear. The car was found a few days later near St. George.

Lewis and Washington were tried together, and both were found guilty of all charges. The trial court sentenced Lewis to five years for grand larceny and thirty years concurrently on each of the remaining charges.

ISSUES

I. Did the trial court err by failing to suppress Armstrong’s in-court identification of Lewis?

II. Did the trial court err in refusing to allow Lewis to strike a juror previously stricken by his co-defendant?

LAW/ANALYSIS

I.

Lewis first argues he is entitled to a new trial because the trial court erred in failing to suppress the in-court identification Armstrong made of him. He contends the trial court erred in not holding a hearing to determine the reliability of the in-court identification and that the identification was unduly suggestive and unreliable. Lewis asserts the error in allowing the in-court identification was not harmless. We hold the trial court did not err in failing to hold a hearing and admitting the in-court identification of Lewis.

Armstrong was unable to return to South Carolina from Florida before the trial. Therefore, law enforcement had no opportunity to conduct a lineup prior to trial to determine if Armstrong could identify any of the three assailants.

Before jury selection Lewis’s counsel asked the court to require police or the solicitor to conduct a photo lineup to determine if Armstrong could identify his client or, in the alternative, for the court to suppress any in-court identification of Lewis. The trial court refused.

Subsequently, Lewis requested an in camera hearing prior to Armstrong’s in-court identification. He wanted the court to determine whether the identification was reliable. The trial court denied Lewis’s motion.

An in-court identification of an accused is inadmissible if an out-of-court confrontation such as a showup, lineup, or photo array was so unduly suggestive that it created a very substantial likelihood of irreparable misidentification. State v. Cheeseboro, 346 S.C. 526, 552 S.E.2d 300 (2001), cert. denied, 535 U.S. 933, 122 S.Ct. 1310, 152 L.Ed.2d 219 (2002). The United States Supreme Court has crafted a two-pronged inquiry for the trial court to use in determining the admissibility of an out-of-court identification. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). “ ‘[A] court must first determine whether the identification process was unduly suggestive.... [It] next 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) (quoting Curtis v. Commonwealth, 11 Va.App. 28, 396 S.E.2d 386, 388 (1990)).

Recently, the South Carolina Supreme Court has set forth the rule trial courts should use in deciding the reliability of in-court identifications. State v. Ramsey, 345 S.C. 607, 550 S.E.2d 294 (2001). In Ramsey, the Court stated:

Where identification is concerned, the general rule is that a trial court must hold an in camera hearing when the State offers a witness whose testimony identifies the defendant as the person who committed the crime, and the defendant challenges the in-court identification as being tainted by a previous, illegal identification or confrontation.

Id. at 613, 550 S.E.2d at 297. The Court limited this rule to situations where an in-court identification was the product of an unlawful confrontation or lineup. Id.

However, in this case the police did not conduct any kind of pretrial identification which could have contributed to a misidentification of Lewis during trial. Our research reveals no South Carolina case requiring a trial court to conduct an in camera hearing to determine the reliability of an in-court identification, where law enforcement has conducted no pretrial out-of-court identification. Nor has Lewis cited any such case.

“Generally, the decision to admit an eyewitness identification is at the trial judge’s discretion and will not be disturbed on appeal absent an abuse of such, or the commission of prejudicial legal error.” Moore, at 288, 540 S.E.2d at 448. We find no abuse of discretion or prejudicial legal error because the trial court failed to conduct a Neil v. Biggers hearing or to suppress Lewis’s in-court identification.

Ultimately, the reliability and credibility of the in-court identification was a question for the jury, as it was the sole judge of the facts and the credibility of the witnesses. State v. Wilson, 345 S.C. 1, 545 S.E.2d 827 (2001). Lewis’s counsel subjected Armstrong to extensive cross-examination concerning the accuracy and reliability of his in-court identification. Armstrong explained the extent of his opportunity to view Lewis at the time of the crime, the degree of attention he paid, and the accuracy of his prior description of Lewis. In his direct testimony, Armstrong unhesitatingly identified Lewis as one of the assailants, and even though he admitted that a year and a half had elapsed since the crime, he testified he was nevertheless “positive” about his identification.

Therefore, the trial court committed no error on this issue.

II.

Lews additionally argues he is entitled to a new trial because the trial court refused to allow him to strike a juror previously stricken by his co-defendant.

During jury selection Lewis exercised peremptory strikes on nine white jurors. His co-defendant, Washington, also separately struck nine white jurors, including juror 304, a white female. At the end of jury selection, the State requested a Batson² hearing. Each defendant separately presented reasons for his respective strikes. Washington explained he struck juror 304 because she was a housewife. The trial court found several jurors, including juror 304, had been struck for reasons not race-neutral or gender-neutral.³ The parties then began selecting a second jury.

Juror 304 was presented again. Washington accepted the juror, but Lewis attempted to strike her. At that point, the trial court asked the attorneys to approach the bench and told Lewis’s attorney he could not strike the juror because the court had already held that the reason for the previous strike was pretextual. Lewis therefore accepted the juror. After finishing the second jury selection process, Lewis moved to quash the jury and re-select another jury because he was not allowed to exercise a peremptory strike. The following colloquy occurred:

Mr. Loy [Lewis’s counsel]: Your Honor, my motion is to strike the jury and re-pick based on the following, Your Honor: Juror Number 304 was called, when she was called I exercised a strike, struck her, you called us to sidebar, indicated as you had earlier ruled that that was not a race-neutral or gender-neutral strike.

The Court: I did.

Mr. Loy: That I couldn’t strike her for any reason whatsoever, and in fact was compelled to seat her on the jury. I didn’t want to make the argument there, I attempted to preserve my objection to that instruction by saying pursuant to your instruction at the bench. However, Your Honor, I think if I have independent grounds to strike her separate and apart from what we did last time—

The Court: No, sir. You don’t get to pick and choose. When you put on there that that’s the reason you struck her the first time and I ruled that was not gender or race neutral, that means you cannot strike her. Now,-put anything you want to on the record.

Mr. Loy: That’s my argument, Your Honor. My argument is that if I have independent reasons for striking her, such as if something—

The Court: I don’t know what the independent reason is. You’re stuck with what you gave me the first time. I had already ruled you couldn’t put her, but I’ll let you put anything you want to on the record.

Mr. Loy: I think, You[r] Honor, it’s akin, although this is not the case, that if I had heard her in the hallway saying they ought to just hang both of those guys and be done with it, that I wouldn’t be compelled to seat her on the jury. That’s my argument, I think I should have been allowed to strike her.

The Court: I’ll be glad to let you put down whatever independent reason you would have used.

Mr. Loy: Your Honor, the reason I would have used, the reason I would have struck her was based solely on her demeanor when she came forward on the manner in which she looked at our table versus the State’s table entirely independent of what happened during our first jury selection process.

The Court: All right. Anything else?

Mr. Loy: No. That’s it, Your Honor.

The Court: I deny your motion. Anything further?

Mr. Loy: Not from [sic] on behalf of Mr. Lewis, Your Honor.

Neither the State nor the defendant may exercise peremptory challenges in a racially discriminatory manner. State v. Hicks, 330 S.C. 207, 499 S.E.2d 209 (1998) (citing Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992)). The United States Supreme Court let individual states fashion a remedy for striking a juror based upon race. Batson, 476 U.S. at 99 n. 24, 106 S.Ct. 1712.

In State v. Jones, 293 S.C. 54, 58, 358 S.E.2d 701, 704 (1987), abrogated on other grounds by State v. Chapman, 317 S.C. 302, 454 S.E.2d 317 (1995), our Supreme Court held that if the trial court finds a Batson violation, “the process of selecting the jury shall start de novo.” The Court stated, “members of the tainted jury and all persons who were struck shall be placed back in the jury venire. The jury selection process shall start anew using this ‘reconstructed’ venire.” Id. at 58 n. 3, 358 S.E.2d at 704 n. 3.

Later, in State v. Franklin, 318 S.C. 47, 51, 456 S.E.2d 357, 359 (1995), the Court addressed the procedure the trial court should follow when “a party attempts to strike from the second venire a person previously ruled stricken in violation of Batson.” The Court recognized the de novo jury selection procedure established in Jones but held, to protect a venireperson’s constitutional rights and to prevent rewarding a party for improper conduct, that it was not error for the trial court to disallow a party’s second attempt to strike a juror who was previously improperly removed from the jury.

However, in this case, Lewis did not strike juror 304 during the first selection process. His co-defendant Washington did. Thus, Lewis argues he should have been able to strike juror 304, independent of his co-defendant’s earlier actions. Lewis alleges the trial court erred in imputing the co-defendant’s unconstitutional strike to him, thereby prohibiting Lewis from striking the juror. Moreover, he claims his strike could have been for an intervening, independent reason.

The State contends Franklin controls these facts because a defendant does not have the right to repeatedly strike a prospective juror on an unconstitutional basis. However, Franklin did not address a situation where co-defendants exercise strikes independent of each other. In Franklin, the issue facing the Court was the “claimed right [of an offending party] to unconstitutionally strike a prospective juror over and over again ....” Id. at 54, 456 S.E.2d at 361. The Court reasoned that allowing the trial court the discretion to seat an improper juror prevented “ !giv[ing] the offending party exactly what he wanted, namely,’ a jury panel which unconstitutionally excludes a particular juror.” Id. at 53, 456 S.E.2d at 360 (quoting People v. Moten, 159 Misc.2d 269, 603 N.Y.S.2d 940, 947 (N.Y.Sup.Ct.1993)).

Here, Lewis was not the “offending party.” Lewis did not strike juror 304 during the first selection process. Furthermore, there is no evidence Lewis attempted to strike the juror on an unconstitutional basis during the second selection process. The trial court’s discretionary remedy for an improper peremptory strike must not infringe on either the juror’s or the defendant’s constitutional rights. Id. at 53, 456 S.E.2d at 360. Lewis is constitutionally entitled to a fair and impartial jury. S.C. Const, art. I, § 14; see State v. Harris, 340 S.C. 59, 62, 530 S.E.2d 626, 627 (2000) (“The Sixth and Fourteenth Amendments of the United States Constitution guarantee a defendant a fair trial by a panel of impartial and indifferent jurors.”). Lewis’s entitlement to an impartial jury was not met where the trial court prohibited Lewis from striking a juror he had not previously challenged.

Moreover, Lewis presented an intervening, independent reason to strike the juror. See Franklin, 318 S.C. at 54, 456 S.E.2d at 361 (stating a defendant is “not prohibited from bringing to light facts justifying striking the prospective juror which arose after the initial Batson hearing”). Lewis stated he attempted to strike the juror because of her demeanor when she came forward. However, the trial court did not even consider Lewis’s explanation for the attempted strike, given the court’s earlier ruling that Lewis was “stuck with what [he] gave [the trial court] the first time.” This was error. Because Lewis did not strike the juror the first time, he should have been allowed to strike the juror the second time, subject to scrutiny by the court only if the State moved for a Batson hearing. He should also have been allowed to present evidence concerning an intervening reason and had the trial court rule on that.

The State contends the trial court “properly refused to allow Lewis to use subterfuge to discriminate against juror [number 304] for a second time.” There is no evidence the reason advanced by Lewis to strike the juror was “subterfuge.”

The trial court should have allowed Lewis to exercise a peremptory challenge during the second selection process given Lewis had not already stricken the juror and may have had an intervening reason to later strike the juror. Lewis should not have been held responsible for the unconstitutional strike exercised by his co-defendant. Cf. State v. Carriker, 269 S.C. 553, 238 S.E.2d 678 (1977) (finding the objections of one defendant are not imputable to a co-defendant).

CONCLUSION

The trial court’s denial of Lewis’s motion to hold an in camera hearing to determine the reliability of an in-court identification is affirmed. However, based on the foregoing analysis concerning the jury selection, we reverse and remand this case for a new trial.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

STILWELL, J., concurs and ANDERSON, J., dissents in separate opinion.

1 . To protect the female victim’s identity, she has been referred to as Jane Doe.

2 . Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

3 . Lewis does not appeal the trial court’s decision to quash the first jury after finding the parties exercised strikes in a discriminatory fashion.