State v. Cain
| Decision Date | 28 November 2006 |
| Docket Number | 2006-UP-387 |
| Parties | The State, Respondent, v. Dorian J. Cain, Appellant. |
| Court | South Carolina Court of Appeals |
THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.
Heard September 14, 2006
Appeal From Lee County Clifton Newman, Circuit Court Judge
Desa Ballard and Jason B. Buffkin, both of West 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, of Columbia; and Solicitor Cecil Kelly Jackson, of Sumter; for Respondent.
A jury convicted Dorian J. Cain of two counts of armed robbery, and the trial court sentenced him to concurrent terms of ten years' imprisonment. On appeal, Cain argues the trial court erred in refusing to suppress the victims' identifications, failing to dismiss the case for lack of probable cause, and in failing to grant his motion for a new trial. We affirm.
On December 18, 2003, at approximately 11:00 a.m., James Reames and Edward Scott (collectively, the victims”) were at a work-site moving chairs out of a building that was set to be demolished. Three young men approached and asked if the victims needed help. When the victims looked up, two of the men, including a man later identified as Cain, pointed guns at them and demanded the victims' wallets. After taking the wallets, the robbers fled. The entire incident took approximately five minutes.
The victims drove to a police station and reported the incident about ten minutes after it occurred. They described the robbers as three young black males... one tall with a medium complexion wearing a white t-shirt” and two shorter males with darker complexions.
Officer Ernest Mosely was patrolling nearby when he heard a radio dispatch reporting the robbery and the victims' description of the perpetrators. A few moments later, Officer Mosely observed an automobile driving through an intersection at an unusual rate of speed.” He believed the automobile was traveling too fast for conditions because the street was narrow and the automobile failed to completely stop at a stop sign. The automobile was within two blocks of the scene of the robbery, and a passenger in the back kept turning around in his seat to watch the officer. Officer Mosely observed four black males in the car, and in addition to the rear passenger who continued to turn around in his seat, Officer Mosely also noticed that the driver repeatedly looked into the rearview mirror.
Officer Mosely activated his lights, and the automobile stopped. At some point before the stop, Officer Mosely observed the rear passenger, later identified as Cain, remove a white t-shirt to reveal a black t-shirt he wore underneath. The officer then radioed for back up because he believed the people inside the car might have been involved in the robbery. When the other officers arrived at the scene, they ordered the suspects to exit the car. The officers frisked and handcuffed the men. [1] They searched the car for weapons, but found none.
Soon afterward, police brought the victims to the scene. Both immediately identified Cain as the person who robbed them. They did not implicate the other men.
A grand jury indicted Cain on two counts of armed robbery. On April 6, 2004, the case was tried before a jury. Prior to opening statements, Cain moved to suppress the identifications of him made by the victims on the basis the show-up identification was unduly suggestive. The trial court held an in camera hearing on the motion, which it ultimately denied. During the in camera hearing, Cain also moved to have the case dismissed, arguing Officer Mosely lacked probable cause to stop the car. The trial court denied the motion.
The jury found Cain guilty of two counts of armed robbery, and the trial court sentenced him to two concurrent terms of ten years' imprisonment. After trial, Cain filed a motion pursuant to Rule 29(b), SCRCP, to set aside the verdict based on after-discovered evidence. The motion was based on an affidavit of Reames that recanted his trial testimony identifying Cain as one of the robbers. The affidavit provided:
This statement certifies that I am changing my statement back to my original. I am not sure who robbed us on Dec. 18. I can not clearly identify Dorian Cain. I only changed my statement because I was instructed by the police department that Dorian was the suspect. I could not really identify the suspect because of the dark lighting in the building. Again I can not state Dorian Cain robbed me and I am willingly changing my statement.
During the hearing on Cain's motion, Reames testified he could not read or write very well, and he denied writing the recantation. He admitted signing the affidavit, but stated he believed the document only changed a court date. Reames testified he still believed Cain robbed him and denied making any statement to the contrary. In contrast, Juanita Robinson testified that she and Cain's sister read the affidavit to Reames before they went to the courthouse to have the document notarized.
The trial court found Cain cross-examined Reames on the issue of whether he was sure Cain was one of the robbers. Further, the trial court found that recantation testimony is inherently unreliable and, in any case, Reames denied making the statement in the affidavit. Accordingly, the trial court denied the motion. This appeal followed.
Cain argues the trial court erred by failing to suppress the victims' out of court identification of him. He contends the show-up identification procedure was impermissibly suggestive, and therefore the identification of him was unreliable. Although we agree the show-up might have been suggestive, we find under the totality of the circumstances that the identification of Cain was nonetheless reliable.
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. Moore, 343 S.C. 282, 286, 540 S.E.2d 445 448 (2000) (citing Stovall v. Denno, 388 U.S. 293 (1967)). A confrontation which is suggestive is disapproved of because of the increased likelihood of misidentification however, suggestiveness in and of itself does not mandate the exclusion of evidence. State v. Tisdale, 338 S.C 607, 612, 527 S.E.2d 389, 392 (2000) (citing Neil v. Biggers, 409 U.S. 188, 198 (1972)). The key factor in deciding whether identification testimony is admissible is reliability. Manson v. Brathwaite, 432 U.S. 98, 114 (1977).
To determine whether an out-of-court identification is sufficiently reliable to warrant admission, South Carolina employs the two-prong inquiry developed by the United States Supreme Court in Neil v. Biggers. 409 U.S. at 199-201. The first prong considers whether the identification process was unduly suggestive. State v. Brown, 356 S.C. 496, 503, 589 S.E.2d 781, 784, (Ct. App. 2003). If the identification procedure is deemed suggestive, we then consider the second prong of the analysis: whether a substantial likelihood of irreparable misidentification occurred. Moore, 343 S.C. at 287, 540 S.E.2d at 447-48. Although one-on-one show ups have been sharply criticized, and are inherently suggestive, the identification need not be excluded as long as under the circumstances the identification was reliable” despite the suggestive procedure. Id. at 287, 540 S.E.2d at 448 (). Therefore, the overarching inquiry is whether under the totality of circumstances a substantial likelihood of irreparable misidentification exists. Id.
In assessing the first part of our inquiry, we find the trial court erred in ruling the show-up procedure was not unduly suggestive. An officer brought the two witnesses to a location where four young men stood handcuffed amidst uniformed police officers. Because the officer took the witnesses to a location that included suspects only, the show up procedure was suggestive. See id. at 287-288, 540 S.E.2d at 448 ().
Despite finding the show-up procedure suggestive, we can still uphold the admission of the identification testimony if, under the totality of the circumstances, the identification is deemed reliable and the opportunity for misidentification is slight. The factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of the witness's prior description of the criminal, the level of certainty displayed by the witness at the confrontation, and the length of time between the crime and the confrontation. State v. Blassingame, 338 S.C. 240, 252, 525 S.E.2d 535, 541 (Ct. App. 1999) (citations omitted).
Applying these factors to the present case, we find the witnesses' identification testimony reliable. The robbery occurred at 11:00 a.m. in a well-illuminated building. There, both victims saw Cain for at least five minutes. The robber was not wearing any sort of disguise, and both witnesses testified to looking at Cain's face primarily because he had a gun. Moreover, as a barber, Scott testified he was trained to notice everything...
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