State v. Rogers, No. 19931

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtNESS; MOSS
Citation210 S.E.2d 604,263 S.C. 373
PartiesThe STATE, Respondent, v. Joseph A. ROGERS, Appellant.
Decision Date16 December 1974
Docket NumberNo. 19931

Page 604

210 S.E.2d 604
263 S.C. 373
The STATE, Respondent,
v.
Joseph A. ROGERS, Appellant.
No. 19931.
Supreme Court of South Carolina.
Dec. 16, 1974.

Page 605

[263 S.C. 374] H. F. Partee, Greenville, for appellant.

[263 S.C. 375] Atty. Gen. Daniel R. McLeod, Deputy Atty. Gen. C. Tolbert Goolsby, Jr., Staff Atty. Sidney S. Riggs, III, Columbia, and Sol. Thomas W. Greene, Greenville, for respondent.

Page 606

NESS, Acting Associate Justice:

This is an appeal by the appellant from a rape conviction of a thirteen year old girl. At approximately four o'clock p.m. on September 8, 1973, the prosecuting witness began [263 S.C. 376] walking to her home from the home of a schoolfriend with whom she had spent the night. After crossing the highway and starting down the road on which she lived, she was stopped by a man driving a light blue car, who had previously passed by her on two occasions, and who identified himself as being from the sheriff's office. He told her he was going to have to take her to the police station to see a lieutenant and asked her to get in the car. When she began crying, he grabbed her arm, placed her in the back seat, and locked the door. He proceeded to a road which ended in a wooded area upon the pretense of finding some boys whom he was going to have to arrest. Whereupon he forced her into the woods and made her disrobe, and raped her. He then placed her in the front seat of the car and let her out on the road on which she lived, where she was found by a neighbor.

After relating the incident to her mother, the police came and the prosecutrix described in minute detail her attacker and the car he was driving. Upon this basis the appellant was thereupon arrested and taken to the sheriff's department where in a showup through a one way mirror he was identified by his victim. The following day a lineup was conducted and she again identified the appellant as her attacker.

No attempt was made on the part of the State to introduce testimony relative to either the showup (view through the one way mirror) or the line-up identification. Rather, the State elected to proceed solely upon the in-court identification of appellant by the prosecutrix, the admissibility of which forms the basis for appellant's first assignment of error. He argues that the trial judge erred in permitting her to identify him as the man who raped her because this in-court identification was tainted by the pre-trial identification conducted in violation of his right to counsel and without due process of law. He relies upon the theory of the Wade-Gilbert-Stovall cases decided by the United States Supreme Court in 1967.

[263 S.C. 377] The trial judge conducted a hearing in the absence of the jury to evaluate the competency of the evidence in accordance with the procedure specified in State v. Cash, 257 S.C. 249, 185 S.E.2d 525, and held that in view of the totality of the circumstances that there was no likelihood of irreparable misidentification and that the in-court identification was proper. Factors to be considered in making such a determination were listed in U.S. v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 1940, 18 L.Ed.2d 1149 as (1) the prior opportunity to observe the alleged criminal act; (2) the existence of any discrepancy between any pre-lineup description and the defendant's actual description; (3) any identification prior to the line-up of another person; (4) failure to identify the defendant on a prior occasion; and (5) the lapse of time between the alleged act and the line-up identification.

Of course, the State has the burden to establish by clear and convincing evidence that the in-court identification was based upon observations of the appellant other than the show-up or line-up identification. U.S. v. Wade, supra, 388 U.S. 240, 87 S.Ct. at 1939.

Even if we assume that the totality of the circumstances surrounding the showup (one way glass) conducted in this instance reveals a constitutional violation, there is competent evidence of these and additional factors to support the trial judge's finding that the prosecutrix in-court identification had a source independent of the unconstitutional pre-trial identification. State v. Williams, 257 S.C. 257, 262, 185 S.E.2d 529; State v. Singleton, 258 S.C. 125, 187 S.E.2d 518; State v. McLeod, 260 S.C. 445, 196 S.E.2d 645; State v. Bell, 209 S.E.2d 890 filed November 12, 1974. In the case of U.S. v. Terry, 137 U.S.App.D.C. 267, 422 F.2d 704, 709, the prosecutrix gave the

Page 607

police a detailed description of her assailant and this description corresponded in most aspects to the features and characteristics of the defendant. She had seen the [263 S.C. 378] defendant in close proximity for approximately fifteen minutes both on a public street in broad daylight and in a well lighted room and the description which she gave the police was consistent with the description of her attacker. And she had not wavered in her identification at any stage of the proceedings. The court held that the trial court correctly assessed the relevant factors enumerated in U.S. v. Wade, supra and that the showing of independent source was sufficient. In the case of Coleman v. Alabama, 399 U.S. 1, 90A S.Ct. 1999 at 2001, 26 L.Ed.2d 387 the court held admissible an in-court identification by a witness who had a fleeting but 'real good look' at her assailant in the headlights of a passing car. This was considered to be sufficient to permit the in-court identification in spite of how a subsequent lineup was conducted. In the case of United States ex rel. Rutherford v. Deegan (2 Cir.), 406 F.2d 217 at 220, the prosecuting witness saw the defendant through a one-way mirror. She had previously given a description to the police which tallied perfectly with the defendant except for the change of clothing and shaving.

In the instant case the prosecuting witness testified that she was in her attacker's presence longer than thirty-five or forty minutes. An...

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23 practice notes
  • State v. Von Dohlen, No. 24437
    • United States
    • United States State Supreme Court of South Carolina
    • 19 Septiembre 1995
    ...85, 245 S.E.2d 123 (1978) (changes affecting remedy or procedure are outside the presumption of prospective application); State v. Rogers, 263 S.C. 373, 210 S.E.2d 604 (1974) (double jeopardy does not attach until jury is sworn). Accordingly, as Von Dohlen was made aware of our Torrence opi......
  • State v. Carlson, No. 3948.
    • United States
    • United States State Supreme Court of South Carolina
    • 22 Febrero 2005
    ...The in-court identification is admissible if based on information independent of the out-of-court procedure. State v. Rogers, 263 S.C. 373, 210 S.E.2d 604 (1974). The State bears the burden of proving that the identification was based on an independent source by clear and convincing evidenc......
  • State v. Arnett, No. 3684
    • United States
    • Arizona Supreme Court
    • 14 Abril 1978
    ...See State v. Waddell, 289 N.C. 19, 220 S.E.2d 293 (1975); Glenn v. State, 154 Ind.App. 474, 290 N.E.2d 103 (1972); State v. Rogers, 263 S.C. 373, 210 S.E.2d 604 (1974); Dragovich v. Slosson et al., 110 Cal.App.2d 370, 242 P.2d 945 (1952). Further, it is generally not improper to exclude som......
  • State v. Gaskins, No. 22217
    • United States
    • United States State Supreme Court of South Carolina
    • 12 Septiembre 1984
    ...jury and no right to a trial by any particular jury or juror. State v. McDaniel, 275 S.C. 222, 268 S.E.2d 585 (1980); State v. Rogers, 263 S.C. 373, 210 S.E.2d 604 Gaskins argues that he should be allowed to exercise the strategy of seating jurors who were convinced of his guilt but opposed......
  • Request a trial to view additional results
23 cases
  • State v. Von Dohlen, No. 24437
    • United States
    • United States State Supreme Court of South Carolina
    • 19 Septiembre 1995
    ...85, 245 S.E.2d 123 (1978) (changes affecting remedy or procedure are outside the presumption of prospective application); State v. Rogers, 263 S.C. 373, 210 S.E.2d 604 (1974) (double jeopardy does not attach until jury is sworn). Accordingly, as Von Dohlen was made aware of our Torrence opi......
  • State v. Carlson, No. 3948.
    • United States
    • United States State Supreme Court of South Carolina
    • 22 Febrero 2005
    ...The in-court identification is admissible if based on information independent of the out-of-court procedure. State v. Rogers, 263 S.C. 373, 210 S.E.2d 604 (1974). The State bears the burden of proving that the identification was based on an independent source by clear and convincing evidenc......
  • State v. Arnett, No. 3684
    • United States
    • Arizona Supreme Court
    • 14 Abril 1978
    ...See State v. Waddell, 289 N.C. 19, 220 S.E.2d 293 (1975); Glenn v. State, 154 Ind.App. 474, 290 N.E.2d 103 (1972); State v. Rogers, 263 S.C. 373, 210 S.E.2d 604 (1974); Dragovich v. Slosson et al., 110 Cal.App.2d 370, 242 P.2d 945 (1952). Further, it is generally not improper to exclude som......
  • State v. Gaskins, No. 22217
    • United States
    • United States State Supreme Court of South Carolina
    • 12 Septiembre 1984
    ...jury and no right to a trial by any particular jury or juror. State v. McDaniel, 275 S.C. 222, 268 S.E.2d 585 (1980); State v. Rogers, 263 S.C. 373, 210 S.E.2d 604 Gaskins argues that he should be allowed to exercise the strategy of seating jurors who were convinced of his guilt but opposed......
  • Request a trial to view additional results

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