State v. Dukes
| Decision Date | 24 July 2013 |
| Docket Number | No. 5148.,5148. |
| Citation | 745 S.E.2d 137,404 S.C. 553 |
| Parties | The STATE, Respondent, v. Henry Jermaine DUKES, Appellant. Appellate Case No. 2011–196667. |
| Court | South Carolina Court of Appeals |
OPINION TEXT STARTS HERE
Appellate Defender Kathrine Haggard Hudgins, of Columbia, for Appellant.
Attorney General Alan McCrory Wilson, Chief Deputy Attorney General John W. McIntosh, Senior Assistant Deputy Attorney General Donald J. Zelenka, Senior Assistant Attorney General W. Edgar Salter III, all of Columbia; and Solicitor Jimmy A. Richardson II, of Conway, for Respondent.
A jury found Henry Dukes guilty of murder for the shooting death of Andrico Gowans. Dukes argues the trial court erred in refusing to suppress an eyewitness's identification of Dukes for two reasons: (1) the pretrial hearing did not comport with due process because the detective who conducted the identification procedure was unavailable to testify; and (2) the identification procedure was impermissibly suggestive and created a substantial likelihood of misidentification. We affirm.
On the morning of November 2, 2007, Cornelius Ford witnessed Gowans' murder. That afternoon, Ford met with Detective Sean Addison at the Conway Police Department and identified Dukes as the shooter.
Before trial, Dukes asked the court to suppress Ford's out-of-court identification because the identification procedure used was impermissibly suggestive. The trial court conducted a hearing, where the State called Ford to testify to what happened when he made the identification. Ford told the court he went to the police station with his father after the shooting to give a statement. After Ford gave a description of the shooter, Addison suggested Ford look at photographs, “like a photo book,” to see if he could identify the person who shot Gowans. When Addison got up from the table to get the photo book, Ford saw other photographs in a file Addison had on the table. Ford identified Dukes from one of the photographs he saw in Addison's file. Ford testified Addison did not present the photos to him or instruct him to choose one.
The State then called Ford's father, Rasheed Muhammad, who was present when Ford made the identification. Muhammad told the court Addison offered to show a book of photographs to Ford, but before that occurred, “[photographs] were put on the table.” From those photographs, Ford identified Dukes. Muhammad testified Addison did not suggest which photograph Ford should select.
Dukes presented no witnesses but read an excerpt of Addison's investigative report, in which Addison wrote “the photos were presented to ... Ford one at a time.” 1 Dukes asserted that because Addison's report contradicted Ford's recollection of what happened, “the State [could] not meet its burden” of showing the identification procedure was not impermissibly suggestive without Addison's testimony.2
The trial court ruled it was not “necessary for the court to hear [Addison's] testimony,” and denied Dukes' motion, stating:
It does not appear, even taking into consideration the report of [Addison], that there was any corrupting effect, that there was any intentional act, that there was any deliberate act, there was any act by the police of a suggestive manner.... The seeing of the photographs was either done accidently through the looking at a file or in the process that the Court finds was not suggestive in any manner....
At trial, Ford and Muhammad testified to Ford's out-of-court identification of Dukes. Ford also gave an in-court identification. The jury found Dukes guilty of murder, and the court sentenced him to forty-seven years in prison.
An out-of-court identification of the defendant violates due process and must be suppressed when the identification procedure used by police was impermissibly suggestive and conducive to a substantial likelihood of misidentification. State v. Liverman, 398 S.C. 130, 138, 727 S.E.2d 422, 425 (2012). A witness's subsequent in-court identification is inadmissible “if a suggestive out-of-court identification procedure created a very substantial likelihood of irreparable misidentification.” State v. Traylor, 360 S.C. 74, 81, 600 S.E.2d 523, 526 (2004) (emphasis added); see also Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 381, 34 L.Ed.2d 401, 410 (1972) ().
Trial courts employ a two-pronged inquiry to determine whether due process requires suppression of an out-of-court eyewitness identification. Liverman, 398 S.C. at 138, 727 S.E.2d at 426. First, the court must determine whether the identification resulted from “unnecessarily suggestive” police procedures. Biggers, 409 U.S. at 198–99, 93 S.Ct. at 381–82, 34 L.Ed.2d at 410–11;see also Perry v. New Hampshire, ––– U.S. ––––, –––– n. 1, 132 S.Ct. 716, 721 n. 1, 181 L.Ed.2d 694, 703 n. 1 (2012) (); Liverman, 398 S.C. at 138, 727 S.E.2d at 426 (); Traylor, 360 S.C. at 81, 600 S.E.2d at 526 (). If the court finds the identificationdid not result from impermissibly suggestive police procedures, the inquiry ends there and the court does not need to consider the second prong. See United States v. Sanders, 708 F.3d 976, 984 (7th Cir.2013) (). If the court finds, however, that the police used an impermissibly suggestive identification procedure, it must then determine whether the identification was nevertheless “ so reliable that no substantial likelihood of misidentification existed.” Liverman, 398 S.C. at 138, 727 S.E.2d at 426 (citing Biggers, 409 U.S. at 199, 93 S.Ct. at 382, 34 L.Ed.2d at 411).
Dukes argues the suppression hearing conducted by the trial court did not comport with due process because “the State could not meet its burden” of showing the identification procedure was not impermissibly suggestive without Detective Addison's testimony. We hold Addison's absence from the hearing did not violate Dukes' due process rights.
Procedural due process requires “adequate notice of the proceeding, the opportunity to be heard in person, the opportunity to introduce evidence, the right to confront and cross-examine adverse witnesses, and the right to meaningful judicial review.” Dangerfield v. State, 376 S.C. 176, 179, 656 S.E.2d 352, 354 (2008). It does not, however, require any particular form of procedure. See S.C. Dep't of Soc. Servs. v. Wilson, 352 S.C. 445, 452, 574 S.E.2d 730, 733 (2002) (). Due process also does not require all witnesses to testify. See United States v. Morsley, 454 Fed.Appx. 191, 193 (4th Cir.2011) (). “The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” Wilson, 352 S.C. at 452, 574 S.E.2d at 734.
Dukes argues he was denied due process because the key witness, the investigating officer, was unavailable to testify. We disagree and hold the trial court afforded Dukes all that due process required in this particular situation. The trial court gave Dukes notice of the hearing and the opportunity to be present. The court also gave him the opportunity to cross-examine the State's witnesses, offer his own evidence, and argue his position. Dukes argued the specific reasons Addison's testimony was essential, but the trial court determined otherwise, specifically stating, “I find it is not necessary for the court to make the determination on your motion to suppress the identification to have the testimony of the officer in this particular case.” Thus, the trial court was able to determine from the testimony of the State's witnesses that nothing the police did was suggestive. Finally, this appeal is Dukes' opportunity for judicial review. We find the hearing did not violate Dukes' due process rights.
In Liverman, our supreme court addressed the sufficiency of a suppression hearing for identification evidence. The specific issue the court addressed was whether a trial court must conduct a “full” inquiry into the reliability of the evidence when the police procedure is impermissibly suggestive, but the eyewitness knew the accused before the identification procedure was conducted. See398 S.C. at 134, 727 S.E.2d at 423 (). Relying on Perry, the court held that “pretrial judicial review [is necessary] when an identification is infected by improper police influence.” 398 S.C. at 140, 727 S.E.2d at 427. Thus, the court held a suppression hearing is required to determine the reliability of the suggestive identification even though the eyewitness previously knew the defendant. Id. On the facts before it, the Liverman court “decline[d] to hold that the pretrial hearing fully comported with due process requirements” but found that any...
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