State v. Green

• Decision Date: 11 March 2015
• Docket Number: No. 5302.,5302.
• Citation: 412 S.C. 65,770 S.E.2d 424
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. Marvin Bowens GREEN, Appellant. Appellate Case No. 2012–212739.

412 S.C. 65

770 S.E.2d 424

The STATE, Respondent

v. Marvin Bowens GREEN, Appellant.Appellate Case No. 2012–212739.

No. 5302.

Court of Appeals of South Carolina.

Heard Jan. 8, 2015.

Decided March 11, 2015.

Rehearing Denied April 21, 2015.

Appellate Defender Susan Barber Hackett, of Columbia, for Appellant.

Attorney General Alan McCrory Wilson and Assistant Attorney General Jennifer Ellis Roberts, both of Columbia; Amie L. Clifford, of the South Carolina Commission on Prosecution Coordination, of Columbia; and Solicitor Scarlett Anne Wilson, of Charleston, all for Respondent.

Opinion

LOCKEMY, J.

Marvin Bowens Green was convicted of possession of a weapon during the commission of a violent crime (possession of a weapon) and armed robbery. The trial court sentenced him concurrently to five years' imprisonment for possession of a weapon and life imprisonment without the possibility of parole (LWOP) for armed robbery. Green appeals, arguing the trial court erred in (1) not giving the jury specific instructions concerning how to analyze identification evidence; (2) allowing the State to introduce his “mug shot”; and (3) sentencing him to LWOP in violation of the Eighth Amendment's ban on cruel and unusual punishment. We affirm.

FACTS

On December 24, 2010, a man entered Natubhai Patel's (Victim's) convenience store and robbed him at gunpoint. At trial, Victim testified the man was “wearing sunglasses, a red hat, a black jacket, and khaki pants.” He recognized the man as a regular customer he had known for approximately one year, who came into his store three times a week to purchase cigarettes, gas, and lottery tickets. Victim explained he and the man had a running joke about President Barack Obama's signature being on the man's identification. Victim identified Green in court as the man who robbed him. According to Victim, the police arrived at the store after the robbery and viewed surveillance video of the robbery with him. Thereafter, the trial court admitted the surveillance video without objection.

Detective Charles Lawrence investigated the robbery. He reviewed the surveillance video and recognized the perpetrator as Green. Detective Lawrence knew Green and was able to identify him as the robber because of Green's “walk, height, weight[,] and structure of his face.” He explained Green had a distinctive nose that led him to identify Green as the man in the video. Detective Lawrence asserted he was 100% positive Green was the man in the surveillance video. After he identified Green as the robber, Detective Lawrence generated a six-person photo line-up and arranged to meet with Victim to see if he could identify the man who robbed him. According to Detective Lawrence, Victim identified Green as the robber in a photographic line-up. The trial court admitted the line-up photo of Green over his objection.

The State then asked to hold a bench conference outside the presence of the jury. It moved to admit a “booking photo” of Green (the booking photo) that was taken following his arrest for the robbery. The State argued the booking photo was relevant because

[i]t shows [Green's] side profile, it's from when he was arrested from this instance so it's not a prior incident. It has nothing to do with [Rule] 404(b) [, SCRE,] but it's relevant so the jury can see him and be able to look at this and look at the [surveillance] video.

Green objected, arguing it was reversible error to admit a “booking photo” and the following colloquy occurred:

[The State]: I don't have a problem if you want me to cut those photos, cut the top half off.

[Green]: Yeah, but, I mean, it still shows it's a booking photo.

The Court: Let's just mark it for identification.

Thereafter, the State moved to admit the booking photo, and Green objected under Rule 404(b). The trial court overruled the objection and admitted the photo as State's Exhibit 5, but it did not allow the State to publish the photo to the jury at that time.

SLED investigator Joseph West testified he obtained still photographs from the surveillance video of the robbery. The trial court admitted the still photos over Green's objection.

Jagruti Patel, Victim's wife, testified she recognized the man in the surveillance video as a regular customer who often came into the store to buy cigarettes, lottery tickets, and gas. She recalled him joking about President Obama signing his driver's license. Patel identified Green in court as the man in the video.

After the State rested, Green asked for clarification regarding the trial court's ruling on the booking photo. The trial court noted it admitted the photo earlier but did not allow the State to publish it to the jury. The court explained the State planned to submit a redacted, color copy of the photo that was enlarged so that it was “in conformity” with “all the other paper page sizes.” Green renewed his objection to the booking photo, and the following exchange occurred:

[Green]: And we believe we have sort of a front picture, side pictures. Any ... reasonable juror can infer that's a booking photo.

The Court: But that's not standard, is it? That's not what I'm concerned with. We can infer anything from anything and the case that you provided indicates that it was a different type of photo. It was the actual booking photo. We all know that [Green] was arrested and there was indication that he was booked, and the case that you provided me ... the date was around his neck on his booking photo, which was prior to the arrest that he was being tried for.¹

[Green]: Yes, [y]our Honor. Basically, when you look at the three factors in the case we don't believe the [State] need[s] to introduce the photograph.

The Court: The reason that [the State] indicated to the [c]ourt that they needed [the booking photo] is because they needed a side profile picture. When we approached at the bench there was a discussion, because I'm not sure if it was on the record, there was a discussion on what would be admissible.

Mr. Groeber indicated that his major objection was to the top and to the bottom row because it clearly then indicated that it came from Charleston County. There's absolutely no distinguishing marks on the remaining two photographs. There's nothing to indicate that ... [Green is] in a jail suit or anything around the neck as in the case that you provided, and so I made the decision to cut the top and the bottom off of those pictures. So back to my initial question, Mr. Grimes.

[Green]: Yes, ma'am.

The Court: They have a larger picture of what I have had redacted. Okay. So it's now—that picture is a full page. There was an objection because during the redaction now it's a smaller page.

[Green]: Yes, ma'am.

The Court: So which would you prefer me, preserving all of your objections, give the bigger page so that it's in conformity with all the other paper page sizes or the smaller page that's black and white?

[Green]: Preserving everything we prefer the bigger photo to go back.

The Court: All right. If we will, just so the record is clear, we will mark that as 5–A. Five does not go back. Did you understand, Mr. Grimes? Did you hear what I said?

[Green]: They are substituting the—

The Court: I'm not substituting because I want the record to be thoroughly preserved. This will be 5–A, and 5, the redaction that I did cutting, it will not go back but it will remain as 5. The one 5–A will go back.

The trial court then admitted the redacted booking photo as State's Exhibit 5–A over Green's objection.

Thereafter, Green called Dr. Jennifer Beaudry, an assistant professor of psychology at the University of South Carolina Beaufort, to testify regarding eyewitness identification procedures and “people's perceptions of those procedures.” The trial court qualified her as an expert in “human memory and eyewitness identification” without objection. Dr. Beaudry first testified regarding common misconceptions about human memory, including that memory works “like a video camera,” and that a person is more likely to recall the details of a traumatic event. Dr. Beaudry testified factors that can affect a person's ability to encode information, include: the presence of a weapon, whether the perpetrator is wearing a disguise, and whether the perpetrator and witness are of the same race. She further stated that lighting, exposure time, and stress also affect a person's ability to recall information. Specifically, Dr. Beaudry explained stress and “weapon focus” reduce a witness's identification accuracy. She also stated “research shows that [people are] much better at identifying someone of [their] own race than identifying somebody of a different race” and that cross-racial identification increases the chances of a false identification.

Following Dr. Beaudry's testimony, Green submitted proposed jury instructions regarding identification.² “Request to Charge Number One” advised the jury to consider the extent to which the perpetrator's features were visible, whether there were any distractions during the eyewitness's observation, whether the eyewitness experienced stress or fright at the time of the observation, and whether the witness's identification may have been impaired by personal motivations, biases, and prejudices. It instructed the jury to consider issues implicated by cross-racial identifications; specifically, that “[i]dentification by a person of a different race may be less reliable than identification by a person of the same race.” This instruction also provided the jury with guidance concerning how to determine whether the identification was a product of the witness's own memory.

“Request to Charge Number 2” included instruction regarding the witness's opportunity to observe the subject of his testimony, whether the witness had something to gain by his testimony, motivation to lie, consistency of testimony, believability in light of the other evidence, and whether “there [was] anything about the way the witness testified that made the testimony more or less believable.”

The trial court refused to...