State v. Patterson, 3046.

CourtCourt of Appeals of South Carolina
Writing for the CourtANDERSON.
Citation522 S.E.2d 845,337 S.C. 215
PartiesThe STATE, Respondent, v. Ibin PATTERSON, Appellant.
Docket NumberNo. 3046.,3046.
Decision Date20 September 1999

Senior Assistant Appellate Defender Wanda H. Haile, of South Carolina Office of Appellate Defense, of Columbia, for Appellant.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott and Assistant Deputy Attorney General G. Robert DeLoach, III; and Solicitor Warren B. Giese, all of Columbia, for Respondent.


Ibin Patterson appeals from his convictions for armed robbery, first degree burglary, and assault and battery of a high and aggravated nature (ABHAN). We affirm.


Keisha Simpson was home alone on the evening of March 31, 1995, when she heard a knock on her front door. The people at the door asked if Simpson's husband, Jack, was home. She told them he was not home and watched through the peephole as they left.

Approximately fifteen minutes later, three men "busted in" Simpson's locked back door and forcibly entered her home. Before two of the men covered Simpson's head with a blanket, she recognized one of the men as Derrick Evans, a man who played basketball with her husband. Simpson did not get a good look at the other two men at that time.

The men removed Simpson's rings from her hands, held a gun to the side of her face, and demanded she tell them where the couple kept their money. Evans stayed downstairs while the other men physically dragged Simpson up the stairs on her stomach. She was eight and one-half months pregnant at the time. As the men dragged Simpson, the blanket "was coming off" of her head. By the time the men put Simpson in her bedroom closet, she could see. While in her closet with the doors open and the closet and bedroom lights on, Simpson watched one of the men ransacking her bedroom. Simpson was able to observe him at this time for approximately five minutes. He was facing toward her while rummaging through the drawers under her waterbed. The man, armed with a gun, told Simpson she was going to die. He then asked her if she was pregnant and said he was going to kill her if she was not pregnant. At one point, this man went into the closet with Simpson and again told her she was going to die. He informed her if she were not pregnant, she would already be dead. Simpson recalled the man being in the closet with her for about five minutes. She testified the man was larger than her and, although he was not armed at that time, she feared he would rape her. She convinced him to leave the closet by urinating on herself and screaming, pretending her water broke. The man ran out of the closet and all of the men left Simpson's home. They took Simpson's jewelry, her husband's jewelry, a VCR, a Super Nintendo, and some tapes.

Once she was certain the men were gone, Simpson went downstairs and ran to the home of a neighbor, who called 911. The police arrived quickly. Simpson did not give a statement but was instead taken to the hospital. When she talked to the police at the hospital, Simpson told them she could not identify any of the men because her face was covered the entire time. She did this because she was very upset and afraid of the men, who threatened to kill her if she said anything. She did, however, tell her husband that evening that Evans was one of the men who robbed her. Simpson's husband told the police Simpson recognized one of the suspects as Derrick Evans and could identify one of the other men if she saw him again.

Simpson's husband and Evans regularly played basketball with a group of men. On the day in question, Simpson's husband received a page from Evans, who wanted to know if he would be playing basketball that evening. Simpson's husband had recently told Evans and another man from their basketball group that he had received a $3,000 insurance settlement and wanted to take them out to dinner one night.

Approximately two weeks after the incident, Simpson picked Patterson out of a photographic lineup. She was unable to pick the third man out of a lineup. During the commission of the crime, his back was turned to her and he instructed her not to look at him. Yet, Simpson thought she recognized his voice as that of another man who played basketball with her husband.

Patterson was indicted for armed robbery, first degree burglary, and ABHAN. Before Patterson's trial, the Circuit judge held an in camera hearing to determine the admissibility of identification evidence. Patterson claimed any potential in-court identification was "tainted in some fashion by [the] impermissibly suggestive pre-trial procedure." The judge ruled the pre-trial photographic lineup was not "so impermissibly suggestive as to give rise to [a] substantial likelihood of misidentification." At trial, Simpson identified Patterson as the man who ransacked her bedroom, went into the closet with her, and threatened to kill her. Thereafter, the prosecuting attorney showed Simpson the photo lineup bearing Patterson's photograph. She identified Patterson as the man she had earlier picked out of the photographic lineup. The court admitted the lineup and pre-trial identification into evidence. Patterson was convicted of all three charges. The trial judge sentenced him to twenty-seven years imprisonment for armed robbery, twenty-seven years for first degree burglary, and ten years for ABHAN, with all sentences running concurrently.

I. Did the trial court err in denying Patterson's motion for a mistrial?
II. Did the trial court err in failing to grant Patterson's motion to suppress Simpson's pre-trial identification of him?
III. Did the trial court err in denying Patterson's motion for directed verdict on the ABHAN charge?
IV. Did the trial court err in refusing to charge the jury on simple assault and battery as a lesser included offense of ABHAN?
V. Did the trial court err in refusing to give the Telfaire1 instruction to the jury?
I. Mistrial Motion/Curative Instruction

Patterson contends the trial court erred in refusing to grant a mistrial after a police officer's testimony impermissibly suggested Patterson's photo was placed in the lineup after another suspect, Derrick Evans, named him as a participant in the crime. Patterson claims this testimony constituted an improper comment on his character. We disagree.

Prior to trial, the court held an in camera hearing pursuant to Patterson's motion to suppress Simpson's in-court identification of him because of an allegedly tainted pre-trial photo lineup identification. During that hearing, Investigator Wesley Bickley, with the Richland County Sheriffs Department, testified Patterson became a suspect in the case when Evans, the suspect Simpson identified by name, told Bickley that Patterson was with him during the burglary. After his interview with Evans, Bickley prepared a photographic array including Patterson's picture and showed it to Simpson. Simpson picked Patterson's photograph immediately and without hesitation.

After ruling on the suppression motion, the trial judge acknowledged Patterson's concern that it would be improper for Bickley to testify that Evans named Patterson as a suspect. The court made no final ruling at that time, but vowed to revisit the issue if it became necessary.

Later, the judge ruled Bickley could not testify he placed Patterson's picture in the photo lineup after his conversation with Evans because this would constitute an impermissible comment on Patterson's character. Despite the court's ruling, the following testimony transpired during the State's direct examination of Investigator Bickley:

Q. Investigator Bickley, I believe we left off on April the 13th when you all had executed the search warrant and then talked to Mr. Evans?
A. That's correct.
Q. Do you recall what time it was that you interviewed Mr. Evans?
A. It was approximately 1:00 in the afternoon.
Q. I show you State's exhibits [sic] No. 14 for identification. See if that—looking at that—see if that refreshes your memory?
A. Yes, sir. This is a statement administered by me to Mr. Evans.
Q. And at some point during this investigation did you have an opportunity to prepare a photo lineup?
A. Yes, I did.
Q. Do you recall when that was?
A. It was right about the same time that the interview was taking place with Mr. Evans.
Q. Who were you preparing this lineup for? This is a lineup you were preparing for Ms. Simpson?
A. That's correct.
Q. To show her?
A. Yes, sir.
Q. And whose photograph were you including in that lineup?
A. The defendant, Mr. Patterson.

Patterson objected and moved for a mistrial. The trial court denied the request and concluded: "[T]here is no manifest necessity at this time for the declaration of a mistrial." The court offered to give the jury a curative instruction, which it paraphrased to the attorneys beforehand. When asked by the court whether he would accept the curative instruction and withdraw his request for a mistrial, Patterson's counsel responded: "Without waiving our motion for a mistrial, your honor, then that language is acceptable." The court instructed the jury:

Folks, the reason I excluded you, and you as always will use your own recollection of exactly what the questions and answers were that have been put forward to you. And don't rely on mine or anybody else's. So I'm not going to tell you what the last question and the last answer were. You use your own recollection of what the last question and last answer were. I will tell you this, that the question and answer taken together may have improperly brought before you, and I say improperly with emphasis, the suggestion that there was a nexus or a connection between a conversation had by the testifying witness and a Derrick Evans, that there was a connection between that conversation and the placing in a photographic lineup of a photograph of the

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