State v. Moore, 2950.

• Citation: 513 S.E.2d 626,334 S.C. 411
• Decision Date: 22 February 1999
• Docket Number: No. 2950.,2950.
• Parties: The STATE, Respondent, v. Lawrence Edward MOORE, Appellant.
• Court: Court of Appeals of South Carolina

334 S.C. 411

513 S.E.2d 626

The STATE, Respondent, v. Lawrence Edward MOORE, Appellant.

No. 2950.

Court of Appeals of South Carolina.

Heard December 9, 1998.

Decided February 22, 1999.

Rehearing Denied May 8, 1999.

Assistant Appellate Defender Melissa J. Reed Kimbrough, of Office of Appellate Defense, of Columbia, for appellant.

Attorney General Charles M. Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott and Senior Assistant Attorney General Charles H. Richardson, all of Columbia; and Solicitor W. Townes Jones, IV, of Greenwood, for respondent.

STILWELL, Judge:

Lawrence Edward Moore was convicted of second degree burglary and grand larceny. On appeal, Moore contends the trial court erred in refusing to suppress an eyewitness's identification.¹ We reverse and remand.

FACTS

On June 11, 1996, Steven Bell's motorcycle was stolen while it was parked outside his apartment in Greenwood, South Carolina. On the same day, Bell's apartment was broken into and ransacked and his personal property was stolen.

Bell's neighbor Stephanie Davis called the police after she observed two men with bags on their shoulders coming from the rear of Bell's residence while she knew Bell was at work. When Davis went to the side of the house and asked the men what they were doing, they fled in opposite directions.

Davis described both men as African-Americans. She said the taller man was thin, had a dark complexion, and wore a white T-shirt, bluejean shorts, and a white ball cap. Davis momentarily saw the side of his face and saw that his hair was braided after his cap fell off. The other man had a lighter complexion and wore pants, a light shirt, and a black hat. Davis did not see his face at all.

Approximately an hour after calling police, Davis was driven in a police car to a location where police were detaining two black men, Moore and Wideman. Moore and Wideman were surrounded by police officers and were the only suspects shown to Davis.

Moore and Wideman's clothing matched the clothing of the men Davis had seen earlier. At the show-up, Davis recognized Wideman as someone she knew by the name of "Coochie Terry." According to Davis, Wideman was the man she had gotten the best look at earlier when she saw his face briefly from the side. Davis stated Moore had been running and was sweating heavily and that a black hat lay on the ground next to him.

Davis identified both Moore and Wideman as the two men she had seen running from Bell's yard. Davis testified she based her identification on the clothing Moore and Wideman were wearing and the fact that Wideman had braided hair.

DISCUSSION

On appeal, Moore argues the trial court erred in failing to suppress Davis's identification testimony. He contends her identification was tainted by the show-up procedure which created a substantial likelihood of misidentification.

The conduct of trial, including the admission and rejection of testimony, is largely within the trial court's sound discretion, the exercise of which will not be disturbed on appeal absent an abuse of discretion or the commission of a legal error which results in prejudice to the defendant. State v. Gregory, 198 S.C. 98, 16 S.E.2d 532 (1941).

A criminal defendant may be deprived of due process of law by an identification procedure that is unnecessarily suggestive and conducive to irreparable mistaken identification. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Single person show-ups are disfavored because they are suggestive by their nature. See State v. Johnson, 311 S.C. 132, 427 S.E.2d 718 (Ct.App.1993). It is well established, however, that an identification may be reliable under the totality of the circumstances even when the procedure has been suggestive. See Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); State v. Gambrell, 274 S.C. 587, 266 S.E.2d 78 (1980).

In determining the reliability of an identification, the following factors are considered: 1) the opportunity of the witness to view the criminals at the time of the crime; 2) the witness's degree of attention; 3) the accuracy of the witness's prior description; 4) the level of certainty demonstrated by the witness at the confrontation; and 5) the amount of time between the crime and the confrontation. See Neil, 409 U.S. at 199, 93 S.Ct. 375; State v. Stewart, 275 S.C. 447, 272 S.E.2d 628 (1980). After the trial court determines the witness's identification is reliable, the witness is permitted to testify before the jury.

In determining that Davis's identification was admissible the court stated: "The court's finding is that there is evidence—I won't say reliable, but I think that's a matter for the jury—that she can identify them. I don't find it unduly suggestive. I find the issues—the weight is a matter for the jury." (Emphasis added.) The court did not evaluate the reliability of Davis's identification in light of the above factors and did not make a determination that her identification was reliable. This was error.

"Reliability is the linchpin in determining the admissibility of identification testimony...." Manson v. Brathwaite, 432 U.S. 98, 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). The court clearly did not exercise its discretion but instead erroneously decided reliability was a jury issue. Although the admission of evidence at trial is within the court's discretion, the failure to exercise that discretion is an abuse of discretion. See State v. Smith, 276 S.C. 494, 280 S.E.2d 200 (1981); Samples v. Mitchell, 329 S.C. 105, 495 S.E.2d 213 (Ct.App. 1997). Here, the failure of the trial court to undertake the analysis articulated by the United States Supreme Court for use when there has been a suggestive identification procedure was an abuse of discretion.

We can not say this error was harmless. The defense presented alibi witnesses who testified they left Moore's house on foot around 10:30 a.m. on the morning of the burglary, heading towards the Walmart. The Walmart was a twenty minute walk from the Moore home. A Walmart receipt was found in Wideman's possession that indicated T-shirts were purchased at 11:04 a.m. on the day of the burglary.

According to the State's theory of the case, the burglary began around 9:00 a.m. with the theft of the victim's motorcycle and continued throughout the morning until discovered by Davis. Bell's apartment was thoroughly ransacked; dressers had been pulled out, clothes were scattered throughout the residence, mattresses had been removed from the bed and were leaning against the wall. Numerous items were missing. Police were unable to recover any fingerprints from the scene.

Davis's call to police was logged in at 11:14 a.m. A police officer walking the distance from the ransacked apartment to the shopping center containing the Walmart covered the distance in ten minutes and nine seconds. He did not however, walk all the way to Walmart.

At trial, the State presented testimony by a police officer that a police dog taken to the woods behind the ransacked apartment later reacted to Moore. This possibly ties Moore to the woods but does not place him inside the apartment. Wideman is implicated by this evidence only incidentally, if at all, because he testified he was in Moore's company all day.

The State also presented the testimony of inmate, Anthony Williams, who claimed he overheard Moore and Wideman confess to the burglary while waiting in a holding cell for a court appearance. Williams acknowledged guards were forced to separate him from Wideman and Moore following an altercation on the same day he allegedly overheard the confession. Two other inmates present in the holding cell with Williams, Wideman, and Moore that day contradicted Williams's testimony.

As demonstrated by the record, without Davis's identification, the State's case against Moore and Wideman was tenuous. Accordingly, we find the error in admitting Davis's identification testimony without first determining that her identification was reliable was not harmless. See State v. Singleton, 303 S.C. 313, 400 S.E.2d 487 (1991) (finding that in the absence of overwhelming guilt, the error was not harmless). Therefore, we remand this case for the trial court to hold a hearing to determine whether, under the totality of the circumstances, Davis's identification of Wideman and Moore was reliable.

REVERSED AND REMANDED.

ANDERSON, J., concurs.

HOWELL, C.J., dissents in separate opinion.

HOWELL, Chief Judge, dissenting:

Because I believe that the eyewitness identification in this case was unreliable as a matter of law and that a remand for a hearing to determine the reliability of identification is therefore unnecessary, respectfully dissent.

I.

As the majority recognizes, "[a] criminal defendant may be deprived of due process of law by an identification procedure that is unnecessarily suggestive and conducive to irreparable mistaken identification." State v. Johnson, 311 S.C. 132, 134, 427 S.E.2d 718, 719 (Ct.App.1993); see Stovall v. Denno, 388 U.S. 293, 301-02, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). However, even if the identification procedures are suggestive, no due process violation occurs if, under the totality of the circumstances, the identification is reliable. Neil v. Biggers, 409 U.S. 188, 198-99, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). Whether an eyewitness identification is sufficiently reliable is a mixed question of law and fact subject to de novo review on appeal. Sumner v. Mata, 455 U.S. 591, 591-92, 597, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982) ("We agree with the Court of Appeals that the ultimate question as to the constitutionality of the pretrial identification procedures used in this case is a mixed question of law and fact that is not governed by 2254(d)," which "requires federal courts in habeas proceedings to accord a presumption of correctness to state-court findings of fact."); State v. Mack, 255 Kan. 21, 871 P.2d...