State v. Rogers
| Decision Date | 07 July 2004 |
| Docket Number | 2004-UP-427 |
| Parties | The State, Respondent, v. Tavarus Rogers, Appellant. |
| Court | South Carolina Court of Appeals |
THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.
Heard March 10, 2004
Appeal From Beaufort County Jackson V. Gregory, Circuit Court Judge
Assistant Appellate Defender Robert M. Dudek, of Columbia for Appellant.
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, and Assistant Attorney General Melody J Brown, all of Columbia; and Solicitor Randolph Murdaugh, III, of Hampton, for Respondent.
A jury convicted Tavarus Rogers of two counts of murder, five counts of kidnapping, one count of armed robbery, and one count of first-degree burglary. Rogers contends the trial judge erred in admitting: (1) the in-court identifications of two witnesses; and (2) a note that Rogers allegedly wrote to a co-defendant while he was incarcerated on the charges that are the subject of this appeal. We affirm.
At approximately 12:30 a.m. on January 2, 1999, Jocelyn Elizabeth Shough Wendel, James Mitchell Riley, and Kristal Mae Wire arrived at a party held in the home of Paul Reischl on Coffin Point Road in Beaufort County, South Carolina. A number of people were present at the party including Rogers West McKinnon, Jonathon Gadsen, Collins Gadsen, John Byars, Paul Reischl, and Toby Reischl.
Wendel and Wire testified they only knew a couple of people at the party and were introduced to the others. Both stated Rogers introduced himself as V.” After about an hour-and-a-half to two hours, Rogers, McKinnon, and the Gadsens left the party.
Approximately an hour-and-a-half later, two men knocked on the door of Paul Reischl's home. Byars opened the door and the men entered the home wielding guns. The men attempted to conceal their identity by using some type of white cloth wrapped around their faces.
Upon entering the home, the men started hitting Byars. They then forced everyone to the floor and the first intruder began demanding money and drugs from Paul Reischl. Following these demands, he forced Reischl to a back bedroom. The second intruder, who apparently was witnessing the incident, called out to the first intruder some variation of don't do it V, After the intruders left, Wire and Wendel ran to a nearby home and called 911.
Several hours after the shooting, Wire and Wendel gave written statements to investigators. In one of her two statements, Wire recounted the incident and identified the intruders as two black males.” She, however, did not identify Rogers other than referencing the statement that was made during the incident, V don't do it.” Subsequently, investigators presented Wire with three photographic lineups. Wire was unable to identify anyone in these lineups.
Wendel also was unable to identify anyone in the three photographic lineups that were presented to her shortly after the incident. When describing the incident in her statement, Wendel noted that when the two intruders entered the home, I recognized him ‘V' as soon as he came in the door.” Throughout her statement, she described the actions of V.” She also gave a physical description of V.”
On January 6, 1999, Rogers was detained on a coroner's warrant. Two days later, while incarcerated, Rogers admitted to investigating officers that he killed the two victims. On January 10 and 21, 1999, Rogers was arrested on warrants issued by a magistrate.
On February 8, 1999, a Beaufort County grand jury indicted Rogers for two counts of murder, six counts of kidnapping, one count of assault and battery with intent to kill, one count of first-degree burglary, one count of armed robbery, and one count of possession of a weapon during the commission of a violent crime.
Prior to trial, Rogers's counsel sought to suppress any in-court identifications of Rogers. Pursuant to Neal v. Biggers, 409 U.S. 188 (1972), [1] the judge held two in camera hearings regarding the in-court identifications of Rogers by Wire and Wendel.
During her testimony, Wire recounted the incident. She testified that she recognized the intruders because she had seen them earlier in the evening at the party. Wire identified V” as present in the courtroom by pointing to the one in the orange suit.” When questioned about her ability to identify V, ” Wire stated she had seen the intruders earlier in the evening at the party and she recognized their voices. She further testified that the intruders' faces were not completely covered with the white cloth when they entered the home.
On cross-examination, Wire admitted that she was unable to identify anyone in the photographic lineups and she did not give a physical description of the intruders, other than their race, in her written statement. She also acknowledged that once she was ordered to the floor during the incident she never looked up. She further acknowledged that Rogers was the only African-American male in the courtroom wearing an orange detention center uniform. She also admitted that she had: seen Rogers at a bond hearing; been informed by an investigating officer that Rogers had been arrested; read newspaper articles regarding the incident; and spoken with Wendell about the incident.
Detectives Sam Roser and Matthew Averill, investigating officers, testified that they interviewed Wire after the incident and showed her the photographic lineups. Roser testified that Wire told him that she knew the intruders were African-American because their masks were partially open. She also told Roser that she identified V” by his braided hairstyle.
At the conclusion of the testimony, Rogers's counsel argued Wire's in-court identification should be suppressed given: Wire gave no physical description of the intruders after the incident; she could not identify Rogers in the photographic lineups; she had seen Rogers at a bond hearing; and Rogers was the only African-American male in the courtroom wearing an orange detention suit. The judge denied the motion and ruled Wire's identification was admissible.
In a subsequent hearing, the judge heard testimony regarding Wendel's identification of Rogers. Wendell testified that at the time of the incident she recognized Rogers as one of the intruders because his mask fell down when he entered the home. She also knew him as the man who had introduced himself at the party. Wendell admitted that she had not been able to identify Rogers in any of the photographic lineups. During her testimony, Wendell identified Rogers by pointing to him and describing his attire as an orange jumpsuit. On cross-examination, she acknowledged that she had seen Rogers at a prior hearing and had read about the incident in the newspaper.
After the testimony concluded, Rogers's counsel moved to suppress Wendell's identification. He argued the in-court identification procedure was suggestive in that it was the equivalent of an impermissible show-up” procedure. Additionally, he contended Wendell's identification was not reliable on the grounds: she could not identify Rogers in a photographic lineup; she had seen Rogers at prior court proceedings; she had reviewed newspaper articles regarding the incident; and she had discussed the incident with the other victims as well as her father, who had collected the newspaper articles.
The judge denied Rogers's motion to exclude Wendell's in-court identification. Aside from addressing the reliability of Wendell's identification, the judge also found Rogers could not claim undue prejudice from the identification of him in court given the fact that his counsel chose not to use an alternate procedure, i.e., placing other African-American males with similar characteristics to Rogers at the defense table or in the courtroom.
At trial, both Wendell and Wire testified regarding the incident and identified Rogers as the man who shot the two victims. They also identified Rogers in the courtroom.
Toby Reischl testified Rogers was at the party and was introduced as V.” Although he could not positively identify the intruders, he testified that one of the intruders was referred to as V.” In addition to this testimony and the testimony of the investigating officers, the State introduced, over the objection of defense counsel, a note allegedly written by Rogers to his co-defendant McKinnon while the two were incarcerated.
The jury convicted Rogers of two counts of murder, five counts of kidnapping, one count of armed robbery, and one count of first-degree burglary. The judge sentenced Rogers to life imprisonment for each count of murder and the first-degree burglary charge, consecutive thirty-year terms for three of the kidnapping charges, [2] and a concurrent term of twenty-five years for armed robbery. Rogers appeals.
Rogers argues the trial judge erred in admitting the in-court identifications of Wire and Wendel.
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). However, an eyewitness identification which is unreliable because of suggestive line-up procedures is constitutionally inadmissible as a matter of law.” Id.
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