State v. Brown, 3702.

• Decision Date: 24 November 2003
• Docket Number: No. 3702.,3702.
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. Anthony Jerome BROWN, Appellant.

356 S.C. 496

589 S.E.2d 781

The STATE, Respondent, v. Anthony Jerome BROWN, Appellant.

No. 3702.

Court of Appeals of South Carolina.

Heard November 4, 2003.

Decided November 24, 2003.

Assistant Appellate Defender Eleanor Duffy Cleary, of SC Office of Appellate Defense, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson and Senior Assistant Attorney General Norman Mark Rapoport, all of Columbia; and Solicitor Ralph E. Hoisington, of Charleston, for Respondent.

ANDERSON, J.:

Anthony Jerome Brown was convicted of second degree burglary. He was sentenced to life without parole. Brown appeals his conviction asserting the trial court erred in admitting the witness's identification of him. We affirm.

FACTS/PROCEDURAL BACKGROUND

At approximately 2:40 a.m. on January 30, 2001, Rolston Smith was sleeping in his downtown Charleston condominium when he was awakened by the sound of breaking glass. After getting out of bed and putting on his glasses, Smith looked out his second floor bedroom window to see the source of the noise. At the Prescription Pharmacy Center approximately "three car lengths diagonally across the street" from his bedroom window, Smith "saw an individual straddling a bicycle at the front door of the Prescription Center, and this individual was finishing off the breaking of a large window pane to the right of the front door of the Prescription Center." Smith noticed that the individual was a black male wearing a light blue jacket and a black backpack. Smith testified that, while watching the individual reach through the broken window of the Prescription Pharmacy Center, he called 911 and gave a "blow-by-blow account to the operator who received [his] phone call." Smith described to the operator "what [the individual] was wearing, that he was on a bike, that he was headed the wrong way on Rutledge Avenue, the blue coat, the hat, the backpack that he had on." Smith indicated he "thought [the individual] was stealing something from inside the Prescription Center because this white object was being brought from within out ... so that [Smith] thought he was already in the process of taking things from inside that building."

The Prescription Pharmacy Center's twenty-four hour internal lights and its four external lights across the front of the store cast what Smith described as "certainly ample lighting so that you can see what is going on without any trouble." Regarding additional lighting, Smith stated:

Well, they also have security lights on the right-hand side of the building which illuminate that entire side of the building. And there is an overheard street light just right across on the same side of the street of the Prescription Center which illuminates that intersection. And then we also have security lights on our building so that at the back of our building sort of shining into the street is yet another light source. So there's plenty of light right there at that particular part of Rutledge Avenue.

Smith testified that, while he observed the individual across the street, his degree of attention was "100 percent because I couldn't believe that I was actually seeing this attempted break-in. I could not believe it. I just was stunned. So I was 100 percent focused to it."

As Smith talked to the 911 operator, the individual left the storefront and rode north toward Calhoun Street going the wrong way on Rutledge Avenue. In doing so, the individual biked directly in front of Smith, "as [he] stood [at his] second floor window looking down at him bike by." While watching the individual ride by, Smith conveyed to the 911 operator a description of the individual's attire and direction of travel.

"[W]ithin just a matter of again a few more seconds," the police called Smith back, asking him to make an identification of "an individual that had been found a few blocks over." An officer arrived at Smith's house about two minutes later. The officer drove Smith to the intersection of Vanderhorst and Smith Streets, where the police had detained Brown. When Smith arrived in the patrol car, Brown was standing and facing in Smith's direction. Brown's bicycle was located near where Brown was standing. Smith told the officer that if the individual turned around and was wearing a black backpack, he would recognize him as the perpetrator. As Smith spoke, Brown turned around, revealing a black backpack. Smith then told the officer that Brown was the man he had seen at the Prescription Pharmacy Center just "two minutes or three minutes prior to that."

Brown was charged with second degree burglary. Prior to trial, Brown moved to suppress the pre-trial identification made by Smith. He claimed the identification procedure was unduly suggestive. He further maintained that, under the totality of the circumstances, the identification was unreliable and, thus, inadmissible. The judge held an in camera hearing to determine the admissibility of the identification by Smith.

During the in camera hearing, Smith testified that when he made the identification on the night of the crime, he "was 100 percent certain that [he] was seeing the same individual that [he] had just seen breaking—or trying to break into the Prescription Center." When asked if the police said or did anything that would have suggested Brown "as a suspect that would have swayed [his] opinion either way," Smith answered, "[d]efinitely not." On redirect, the Solicitor asked Smith if he was "sure that the man in court today, the man that was stopped that evening at Smith and Vanderhorst is the man that broke into the Prescription Center." Smith responded, "yes," and that there was no "doubt in [his] mind about that."

Officer Steven Jones, with the Charleston Police Department, testified at the hearing. Officer Jones responded to the scene and drove Smith to the intersection of Smith and Vanderhorst Streets to confirm the identity of the person the police had stopped. Officer Jones testified that Smith "confirmed the identity of the person [the police] had stopped as being the same person that he had seen attempting to break into the pharmacy." Officer Jones questioned Smith as to whether "he was certain that this was the person." Smith said "he was absolutely certain." According to Officer Jones, Smith did not hesitate when identifying Brown as the perpetrator.

While driving to the crime scene, Officer Grady Epps observed Brown "going north up Smith Street ... [j]ust minutes" after the "burglary call came over the radio." Officer Epps stopped Brown because he "fit the description that was given out by the witness at the scene."

The judge ruled the pre-trial identification was reliable under the totality of the circumstances. He denied the motion to suppress the identification. At trial, Smith explained that he based his identification on the fact that Brown "was a black individual, his bicycle, the blue jacket, the black backpack and the fact that he was where I thought he would about be given the amount of time that they had to get over in that neighborhood and look for him." Smith focused on the clothing to "see if in [his] memory what th[e] individual had on matched what [Smith] had just seen at the Prescription Center." He declared the body size of the person found by the police matched the body size of the person he had seen at the Prescription Pharmacy Center. Smith identified Brown as the man he "observed breaking into the Prescription Center."

ISSUE

Did the trial court err in admitting the witness's identification of Brown?

STANDARD OF REVIEW

Generally, the decision to admit an eyewitness identification is in the trial judge's discretion and will not be disturbed on appeal absent an abuse of discretion, or the commission of prejudicial legal error. State v. Moore, 343 S.C. 282, 540 S.E.2d 445 (2000); see also State v. Mansfield, 343 S.C. 66, 538 S.E.2d 257 (Ct.App.2000)

(admissibility of evidence is within sound discretion of trial judge; evidentiary rulings of trial court will not be reversed on appeal absent abuse of discretion or commission of legal error which results in prejudice to defendant).

LAW/ANALYSIS

Brown argues "the trial court erred by failing to suppress Smith's identification of [him] where the identification [procedure] was suggestive and unreliable." We disagree.

A criminal defendant may be deprived of due process of law by an identification procedure that is unnecessarily suggestive and conducive to irreparable mistaken identification. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); State v. Patterson, 337 S.C. 215, 522 S.E.2d 845 (Ct.App.1999). 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. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); State v. Cheeseboro, 346 S.C. 526, 552 S.E.2d 300 (2001).

The United States Supreme Court has developed a two-prong inquiry to determine the admissibility of an out-ofcourt identification. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). First, a court must ascertain whether the identification process was unduly suggestive. State v. Moore, 343 S.C. 282, 540 S.E.2d 445 (2000). The court must next decide whether the out-of-court identification was nevertheless so reliable that no substantial likelihood of misidentification existed. Id. The Moore Court explained:

Only if [the procedure] was suggestive need the court consider the second question—whether there was a substantial likelihood of irreparable misidentification. Although one-on-one show-ups have been sharply criticized, and are inherently suggestive, the identification need not be excluded as long as under all the circumstances the identification was reliable notwithstanding any suggestive procedure. [The]

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