State v. Carlson, No. 3948.

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: Anderson
• Citation: 611 S.E.2d 283,363 S.C. 586
• Parties: The STATE, Respondent, v. Russell Carl CARLSON, Appellant.
• Docket Number: No. 3948.
• Decision Date: 22 February 2005

611 S.E.2d 283 363 S.C. 586 The STATE, Respondent,
v.
Russell Carl CARLSON, Appellant. No. 3948. Court of Appeals of South Carolina. Heard February 9, 2005. Decided February 22, 2005. Rehearing Denied April 21, 2005.

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Gene McCain Connell, Jr., of Surfside Beach, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General David A. Spencer, Office of the Attorney General, all of Columbia; and Solicitor John Gregory Hembree, of Conway, for Respondent.

ANDERSON, J.:

Russell Carl Carlson appeals his convictions for assault and battery with intent to kill and first degree burglary. We affirm.¹

FACTUAL/PROCEDURAL BACKGROUND

Junior DeWitt lived with his fiancée, Stephanie Davis, and her two children. One morning, as Davis's daughter was getting ready for school, two men entered DeWitt's home wearing all black and carrying guns. DeWitt was in bed asleep when he was awakened by the sound of the door being kicked open, glass breaking, and gunshots. One of the intruders was a man with several gold teeth who was wearing a bandana. He was carrying guns in both hands and shot DeWitt multiple times as DeWitt stumbled out of bed. The intruders rifled through DeWitt's clothes, took approximately $500, and then left. DeWitt sustained severe injuries. He was in a coma for a month and is now paralyzed; he will never walk again.

DeWitt recognized Carlson as the shooter and identified Demar "Demond" Moore as the other intruder. DeWitt had known Moore for approximately ten years before the incident. He recognized Carlson because Carlson and Moore had come to his house a couple of weeks before the shooting, and the three had engaged in conversation for around fifteen to twenty minutes.

Moore and Carlson were tried together. The jury convicted Carlson of assault and battery with intent to kill, and burglary in the first degree, and sentenced him to twenty

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years in prison. Carlson raises eight issues on appeal. Due to the number of issues, and for the sake of clarity, we set forth the remaining facts necessary for our decision in the discussion of the issues to which they pertain. See Hundley v. Rite Aid of South Carolina, Inc., 339 S.C. 285, 293, 529 S.E.2d 45, 49 (Ct.App.2000).

LAW/ANALYSIS I. In-Court Identification

During the investigation police showed DeWitt a photo lineup. DeWitt picked out Carlson without hesitation. However, the picture of Carlson was approximately four to five times larger than the other photos. The trial judge decided to exclude the lineup, finding it unduly suggestive. Although the prior identification was not admitted, the trial judge did allow DeWitt to identify Carlson in court. The judge found DeWitt could make a reliable in-court identification of Carlson based on factors independent of the improperly suggestive lineup.

Carlson first argues the trial court failed to conduct a proper hearing on the admissibility of DeWitt's out-of-court identification pursuant to Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) and State v. Ramsey, 345 S.C. 607, 550 S.E.2d 294 (2001). Generally, 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. Ramsey at 613, 550 S.E.2d at 297 (citing State v. Cash, 257 S.C. 249, 185 S.E.2d 525 (1971)); State v. Cheatham, 349 S.C. 101, 561 S.E.2d 618 (Ct.App.2002). The purpose of the in camera hearing is to determine whether the in-court identification was of independent origin or was the tainted product of the circumstances surrounding the prior, out-of-court identification. See Ramsey at 613, 550 S.E.2d at 297.

Defense counsel did not object to the procedure used in the present case. During pretrial motions, the trial judge suggested that the court merely view the pictures rather than require testimony. Counsel for Carlson responded: "No objection, Your Honor."

"An issue may not be raised for the first time on appeal, but must have been raised to the trial judge to be preserved for appellate review." State v. Nichols, 325 S.C. 111, 120-21, 481 S.E.2d 118, 123 (1997) (citation omitted); accord State v. Fleming, 254 S.C. 415, 175 S.E.2d 624 (1970); State v. Adams, 354 S.C. 361, 580 S.E.2d 785 (Ct.App.2003), cert. denied. A party cannot complain of an error which his own conduct has induced. State v. Stroman, 281 S.C. 508, 513, 316 S.E.2d 395, 399 (1984). "Where an objection and the ground therefore is not stated in the record, there is no basis for appellate review." State v. Morris, 307 S.C. 480, 485, 415 S.E.2d 819, 823 (Ct.App.1991). A contemporaneous objection is required to preserve issues for direct appellate review. State v. King, 334 S.C. 504, 514 S.E.2d 578 (1999); State v. Thomason, 355 S.C. 278, 584 S.E.2d 143 (Ct.App.2003); State v. Greene, 330 S.C. 551, 499 S.E.2d 817 (Ct.App.1997). Cf. State v. McCrary, 242 S.C. 506, 131 S.E.2d 687 (1963) (opining the court was without authority to consider question on appeal where defendant consented to being tried on two indictments at same time and raised no objection to such mode of trial in trial court).

Not only did Carlson fail to object, but he consented to the procedure proposed by the trial judge. Consequently, Carlson failed to preserve this issue.

At oral argument, Carlson's appellate counsel contended that the right to a hearing was a constitutional due process issue and could not be waived. We disagree. A plethora of cases from the appellate entities of this state recognize that constitutional rights may be waived. For example, in Burnett v. State, 352 S.C. 589, 591, 576 S.E.2d 144, 145 (2003), our supreme court observed that "[e]ntering a guilty plea results in a waiver of several constitutional rights...." In State v. Varvil, 338 S.C. 335, 526 S.E.2d 248 (Ct.App.2000), this Court held that the appellant waived his First Amendment right to free speech by failing to preserve the issue for

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review. We noted that constitutional arguments are no exception to the error preservation rule, "and if not raised to the trial court are deemed waived on appeal." Id. at 339, 526 S.E.2d at 250. See also State v. Downs, 361 S.C. 141, 604 S.E.2d 377 (2004) (acknowledging a defendant may waive the right to a trial by jury on both guilt and sentencing); State v. Owens, 346 S.C. 637, 552 S.E.2d 745 (2001) (providing the Fifth Amendment privilege against self-incrimination may be waived); Brown v. State, 340 S.C. 590, 533 S.E.2d 308 (2000) (same); State v. Shuler, 344 S.C. 604, 545 S.E.2d 805 (2001) (recognizing the Sixth Amendment right to confrontation may be waived); State v. Thompson, 355 S.C. 255, 584 S.E.2d 131 (Ct.App.2003) (explaining the waiver of the Sixth Amendment right to counsel and comparing waiver by affirmative, verbal request with waiver by conduct).

In the case sub judice, consent was given and constituted waiver of any procedural due process rights.

II. Use of Photograph at Trial

Carlson asserts the trial court erred in allowing a photograph of Carlson to be admitted into evidence. We disagree.

The trial judge did not allow the State to use DeWitt's identification of Carlson from the photographic lineup because the judge found the disproportionality of Carlson's picture vis-à-vis the other photos rendered the lineup inappropriately suggestive. Carlson argues "it was error to allow the same photograph or a similar photograph into evidence when the court had held the photographs inadmissible as being too suggestive from the photo lineup shown to the victim." He explains: "It seems logical that the court should not allow the admission of a photo into evidence after the court has found that the same photo was too suggestive to be used as part of the photo lineup."

Initially, we note there are two photographs of Carlson in the record. The first picture was taken within a month following the shooting. This photo depicts Carlson with his mouth closed and is not marked as an exhibit. The second photograph was taken approximately a year after the shooting, while Carlson was in jail. In the second picture, Carlson has his mouth open, his gold teeth prominently displayed. This picture is marked "State's Exhibit 29."

We find the record clearly establishes that the second photograph — which was not utilized in the pretrial lineup — is the photo that was entered into evidence and shown to the jury. In arguing Carlson's motion to suppress the pretrial photo lineup as unduly suggestive, the State mentioned that DeWitt could make an independently reliable in-court identification of Carlson because DeWitt observed the shooter had gold teeth, and in the picture used in the lineup, Carlson's mouth was closed, so his teeth were not visible.

Additionally, counsel for Carlson objected to the admission of State's Exhibit 29 on the ground that it might not be an accurate depiction of Carlson at the time the shooting occurred, because it was taken about a year after the attack. The picture taken a year after the crime cannot be the same photograph utilized in the lineup viewed approximately one month after the attack. Thus, by counsel's own admission, the photo entered into evidence was not the photograph employed in the pretrial lineup.

Further, the preservation of this issue is dubious. A defendant must object to an in-court identification to properly preserve the issue for appeal. See State v. Wakefield, 323 S.C. 189, 196, 473 S.E.2d 831, 835 (Ct.App.1996) ("Wakefield was required to object to the in-court identification at trial to properly preserve this issue for appeal."). Arguments not raised to or ruled upon by the trial court are not...