State v. McCord, 3482.

• Decision Date: 22 April 2002
• Docket Number: No. 3482.,3482.
• Citation: 349 S.C. 477,562 S.E.2d 689
• Parties: The STATE, Respondent, v. Tomongo James William McCORD, Appellant.
• Court: South Carolina Court of Appeals

349 S.C. 477

562 S.E.2d 689

The STATE, Respondent, v. Tomongo James William McCORD, Appellant.

No. 3482.

Court of Appeals of South Carolina.

Heard March 5, 2002.

Decided April 22, 2002.

Senior Assistant Appellate Defender Wanda H. Haile, of S.C. Office of Appellate Defense, of Columbia, for appellant.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, all of Columbia; and Solicitor Ralph E. Hoisington, of N. Charleston, for respondent.

HEARN, C.J.

Tomongo McCord appeals his convictions for first degree criminal sexual conduct (CSC), first degree burglary, kidnapping, and strong arm robbery. McCord contends the trial court erred in its rulings regarding (1) the victim's in-court identification of him, (2) DNA evidence, (3) a composite drawing of the suspect, (4) the solicitor's closing argument, and (5) his entitlement to credit for time served. We affirm in part and reverse in part.

FACTS

This action arises out of the 1993 robbery and sexual assault of a victim living in a gift shop she owned and operated. The victim was sleeping in her bedroom when she was awakened by the sound of breaking glass. She went to investigate and saw a man in the hallway. He lunged at her and knocked her to the ground. The man told her he wanted money and he would cut her if she did not stop screaming. She told him the money was in the front of the building. The man grabbed her wrists and started towards the front, but then changed his mind and forced her into the bedroom, turned on the light, and sexually assaulted her.

After the assault, the man forced the victim to the front of the building where the cash register was located. The victim turned on a hall light as they made their way to the front and then turned on lights in the display case next to the register. The man took money out of the register and fled through a back door. The victim immediately called 9-1-1 and reported she had been raped.

The police arrived and discovered a concrete pelican had been used to break a back window. A total of thirteen latent fingerprints and palm prints were taken at the scene. The victim was transported to a local hospital where a CSC protocol kit was performed.

In 1996, four of the thirteen prints were positively identified as McCord's by comparing them to a computer database of known prints. The victim was shown a photographic line-up in 1996 which included McCord's photo, but she chose not to make an identification. She requested a physical lineup instead, which was never held. The rape kit, including semen found on the victim, was transmitted to SLED in 1998, and later a private laboratory, for testing. Blood tests revealed McCord's genetic profile was consistent with the donor of the semen, and the chances of someone else having that genetic profile were approximately 1 in 1.2 billion.

McCord was convicted of first degree CSC, first degree burglary, kidnapping, and strong arm robbery. He received consecutive sentences of thirty years for each charge except robbery, for which he received a consecutive sentence of ten years. McCord appeals.

DISCUSSION

I. Victim's In-Court Identification of McCord

McCord first contends the trial court erred in permitting the victim to identify him at trial claiming the identification was unreliable and equivalent to a suggestive show-up. We disagree.

"Generally, the decision to admit an eyewitness identification is at the trial judge's discretion and will not be disturbed on appeal absent an abuse of such, or the commission of prejudicial legal error." State v. Moore, 343 S.C. 282, 288, 540 S.E.2d 445, 448 (2000). "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." State v. Cheeseboro, 346 S.C. 526, 540, 552 S.E.2d 300, 307-08 (2001) (citing Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977)).

"To determine the admissibility of an identification, the court must determine (1) whether the identification process was unduly suggestive and (2) if so, whether the out-ofcourt identification was nevertheless so reliable that no substantial likelihood of misidentification existed." Id. at 540, 552 S.E.2d at 308 (citing the two-prong analysis set forth in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972)). "The central question is whether under the totality of the circumstances the identification was reliable even though the confrontation procedure was suggestive." State v. Stewart, 275 S.C. 447, 450, 272 S.E.2d 628, 629 (1980). The following factors should be considered in evaluating the totality of the circumstances to determine the likelihood of a misidentification: (1) the witness's opportunity to view the perpetrator at the time of the crime, (2) the witness's degree of attention, (3) the accuracy of the witness's prior description of the perpetrator, (4) the level of certainty demonstrated by the witness at the confrontation, and (5) the length of time between the crime and the confrontation. Cheeseboro, 346 S.C. at 541, 552 S.E.2d at 308.

In this case the victim testified that when the perpetrator pushed her into the bedroom, "[h]e ... turned on the bedroom light so it was fully lit." She stated that during the sexual assault, she focused on identifying factors about his appearance:

I decided to concentrate on what I could tell somebody about him, how could I remember this person, what I see about him that I could identify him.... I'm staring at his face the whole time. I put my hand up there to measure the face with my hand in case he hit me again I would be able to remember who this was. I smelled the smells of him, the color of his skin, the eyes, everything.

She further testified that as she was forced to the front of the building, she turned on the kitchen light and the lights near the cash register. She stated the time elapsed from her first encounter with the perpetrator in the hallway until he left the premises was approximately fifteen minutes. As to her degree of attention, the victim stated, "I watched him the whole time. I never took—turned my back on him. I stared at his face the whole time."

Finally, the victim explained that she was not "unable" to make a selection from the sole photographic lineup; rather, she chose not to select a suspect from the photographic lineup preferring a physical lineup. She stated she did not study all of the pictures in detail because she had asked for a physical lineup, and she "wanted to see the whole body connected with the head." However, a physical lineup was never conducted. The victim stated she was "positive" of her identification of McCord.

We find no abuse of discretion in the trial court's admission of the identification testimony. Here, the victim testified she did not misidentify the perpetrator, but rather chose not to make a selection from the one photographic lineup she was shown until a physical lineup was conducted. She described the scene as well-lit, as both she and the perpetrator turned on various lights as they moved through several rooms in the building. The victim also had a heightened degree of attention during the incident, which she described in great detail, and she was with the perpetrator for some fifteen minutes, which was not a brief encounter. Therefore, considering the totality of the circumstances, we conclude the trial court did not abuse its discretion in admitting the identification testimony. See State v. Patrick, 318 S.C. 352, 357, 457 S.E.2d 632, 635-36 (Ct.App.1995)

(finding no abuse of discretion in admission of identification where the victim was with the perpetrator under "well-lighted conditions," the victim testified she looked at him carefully, observed another trial involving the defendant and immediately knew the defendant "was the one"); see also State v. Blanchard, 920 S.W.2d 147, 149 (Mo.Ct.App.1996) ("The fact that a witness is unable to make a positive identification from a photo array does not negate the reliability of their positive in-court identification.") (citation omitted); Commonwealth v. Wilson, 538 Pa. 485, 649 A.2d 435, 445 (1994) (finding no error in admission of in-court identification where trial was six and one-half years after the alleged crime).

II. DNA Testing

McCord next contends the trial court erred in failing to suppress the State's DNA evidence because it "was based in part on an analysis of [his] blood, which was seized in violation of the [F]ourth [A]mendment." He asserts South Carolina law enforcement officers performed DNA testing on a blood sample he had previously given to federal authorities in an unrelated case, and that this use constituted an impermissible search and seizure. We disagree.

In 1997, the FBI obtained blood samples from McCord in an unrelated case pursuant to a written consent form.¹

Prior to trial, McCord moved to suppress this DNA evidence. The trial court denied the motion, finding McCord's consent was broad enough to cover the use of the sample in this case. Additionally, because federal authorities already had the right to develop McCord's DNA profile, state law enforcement officers were entitled to compare the evidence they had obtained against this known sample of McCord's blood. The court analogized this procedure to cases where fingerprint evidence is compared against known prints on file in an FBI database. The Fourth Amendment prohibits unreasonable searches and seizures. U.S. Const. Amend. IV; see also S.C. Const. Art. I, § 10 (containing similar proscription under South Carolina law). The United States Supreme Court has declared that evidence seized in violation of the Fourth Amendment must be excluded in federal criminal proceedings. See State v. Forrester, 343 S.C. 637, 643, 541 S.E.2d 837, 840 (2001)

. The Court later applied the Fourth Amendment and its...