State v. Washington

473 S.E.2d 479, 323 S.C. 106, 1996 S.C. App. LEXIS 111
CourtCourt of Appeals of South Carolina
DecidedJuly 15, 1996
Docket2543
StatusPublished
Cited by13 cases

This text of 473 S.E.2d 479 (State v. Washington) is published on Counsel Stack Legal Research, covering Court of Appeals of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Washington, 473 S.E.2d 479, 323 S.C. 106, 1996 S.C. App. LEXIS 111 (S.C. Ct. App. 1996).

Opinion

Hearn, Judge:

Jody Washington appeals from his conviction for attempted armed robbery, asserting the victim’s identification testimony should have been suppressed because it was tainted by an impermissible suggestive photo identification procedure. We affirm.1

[108]*108FACTS

On October 18,1994, at approximately 10:30 p.m., Ray Bro-man stopped at an automatic teller machine (ATM) on the Palmetto Parkway in Hilton Head. Broman parked his car directly in front of the ATM. Broman exited his car, which remained running with the headlights on, and withdrew money. As Broman walked back to his car, he saw two black males walking toward him coming from a gas station across the street. As the men passed by, one of the men exchanged greetings with Broman. Before Broman reached his car, this man struck him in the back of the head with a branch.

As Broman started toward his car, his attacker demanded that he “give up the money, mother f- — r.” When Broman refused, the other man struck him in the left knee with a branch. As Broman began yelling for help, the two individuals threw their branches at him and ran off into the nearby woods. Bro-man estimated the incident lasted approximately two to three minutes. Broman testified he was no more than two to eight feet away from the attacker during that time.

Following the attack, Broman met with Detective Matt Adair and described his attacker as a 20- to 25-year-old black male, approximately 6’2”, weighing approximately 170 pounds, with medium length hair, and wearing a multicolored shirt and black pants. Adair testified the description brought to mind Appellant, whom he described as being 24 years old, 6T”, and 173 pounds. The next day, Adair received a photographic lineup from another detective which included Appellant’s picture.

On the following day, Adair showed Broman the photographic lineup. After looking at the lineup, Broman selected picture number 2, Appellant’s picture. Broman stated to Adair he was “99 percent sure” number 2 was the robber. After viewing the photographic lineup, Broman signed the following statement: “On 10/19 at 5:30 p.m. I was shown a series of six photos of black males. I chose number two as the person who best resembled the person who tried to rob me on 10/18/94.” Broman identified Appellant at trial over objection.

Evella Roberts testified she was working at a gas station approximately two blocks from the bank on the night of October 18, 1994. Roberts further testified Appellant entered the store around 10:30 p.m., made a purchase, and left. Roberts [109]*109stated when Appellant entered the store there was another male outside talking to a store employee. Roberts testified she assumed the other individual left with Appellant because when she looked up the individual was no longer outside the store. Roberts stated she did not know Appellant personally, but knew his nickname was “J.T.” Roberts testified she had seen Appellant three or four times at Taco Bell where he used to work.

Two days later, Adair showed Roberts the photographic lineup containing Appellant’s picture. Roberts identified Appellant as the last customer in her store the night of the attempted robbery. Roberts identified Appellant at trial over objection.

Bob Bromage, a criminal investigator for the Beaufort County Sheriff’s Department, testified he drove through the Huddle House parking lot on the Palmetto Parkway at approximately 10:20 p.m. on October 18, 1994. Bromage stated he saw Appellant at the telephone inside the restaurant. Bromage testified Appellant was wearing dark pants and a multicolored tie-dye shirt. Bromage testified the Huddle House is approximately one-eighth of a mile from the crime scene.

Prior to admitting the identification evidence, the trial judge heard the testimony and reviewed the photographic lineup in camera. The trial judge determined the photographs were not unnecessarily suggestive considering the lineup as a whole, the features of the individuals, and the certainty of the identification.

DISCUSSION

Appellant asserts the identification procedure was unreasonably suggestive in that he was singled out from the other members of the photographic lineup. Specifically, Appellant argues his picture is the only one with a dark background and his hairstyle is the only one that cannot be described as close cropped.

Appellant also argues the circumstances surrounding Bro-man’s identification enhanced the likelihood of a due process violation. Appellant argues (1) the assailants were strangers, (2) the encounter took place quickly in uneven outdoor artificial lighting, and (3) Broman’s attention was diverted when he was under attack. Appellant further argues Broman did not re[110]*110member any distinguishing facial features, but did remember the first assailant had a medium-length Afro-style haircut. Appellant contends because his picture was the only one depicting such a haircut, Broman looked at the lineup and incorporated his face into his recollection of the crime. Appellant also states Broman failed to give a positive identification on viewing the lineup, noting Broman signed the statement indicating his picture “best resembled the person who tried to rob” him.

The admission of evidence within the sound discretion of the trial court and its ruling will not be disturbed on appeal absent a clear abuse of that discretion. Washington v. Whitaker, — S.C. —, 451 S.E. (2d) 894 (1994). Moreover, suggestiveness alone does not require the exclusion of evidence. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed. (2d) 1199 (1967); State v. Stewart, 275 S.C. 447, 272 S.E. (2d) 628 (1980). Instead, the central question for determining the admissibility of pretrial identification is whether, under the totality of the circumstances, the procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification. Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed. (2d) 1247 (1968); Stewart, 275 S.C. at 450, 272 S.E. (2d) at 629. The factors to be considered in determining the likelihood of misidentification include: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the witness’s prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the time between the crime and the confrontation. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed. (2d) 401 (1972); State v. Thompson, 276 S.C. 616, 281 S.E. (2d) 216 (1981).

The corrupting effect of a suggestive identification is to be weighed against the factors enunciated in Biggers. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed. (2d) 140 (1977). Moreover, “reliability is the linchpin in determining the admissibility of identification testimony.” Id.; State v. Denson, 269 S.C. 407, 411, 237 S.E. (2d) 761, 763 (1977). The key issue is whether “under the totality of the circumstances the identification was reliable” even though the confrontation may have been suggestive. State v. Johnson, — S.C. —, —, 458 S.E. (2d) 49, 50 (Ct.

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State v. Washington
473 S.E.2d 479 (Court of Appeals of South Carolina, 1996)

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Bluebook (online)
473 S.E.2d 479, 323 S.C. 106, 1996 S.C. App. LEXIS 111, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-washington-scctapp-1996.