State v. Rogers

Decision Date16 December 1974
Docket NumberNo. 19931,19931
Citation210 S.E.2d 604,263 S.C. 373
CourtSouth Carolina Supreme Court
PartiesThe STATE, Respondent, v. Joseph A. ROGERS, Appellant.

H. F. Partee, Greenville, for appellant.

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.

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 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.

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 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 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 officer of the Greenville Police Department was the first to arrive at the scene, and she told the officer in exact detail a description of her assailant, which included his age, color of his hair, glasses, missing front teeth, tattoo on arm, and shirt over one pocket of which appeared the word 'Joe' and over the other pocket which appeared 'Sheriff's Department'. She also described the car, stating that the car was light blue in color, had a black interior; brown panel on the dash and that in the trunk of the car there was a blue light which looked like the light that goes on top of police cars and there was a radio in the trunk. She pointed to the radio in the police car and said it was that type of radio. She also stated that the oil can which he used on her in order to accomplish his purpose was in the trunk of the car. Upon a search of the trunk, practically all of these items were found. The trial judge further held that her identification was the most detailed he had ever heard in a rape case and was corroborated in precise particularity by her mother and the officer to whom she first reported it. All of which was prior to the time when she viewed the defendant through the one-way mirror or in the lineup.

Suffice it to say that the proof here was more than ample; the victim spent a half hour or more in the company of her assailant in broad daylight; made her first identification just a short time after the incident, was highly specific before ever seeing the appellant in custody, and was never inconsistent. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401; Clemons v. United States, 133 U.S.App.D.C. 27, 408 F.2d 1230; United States v. Follette (2 Cir.) 428 F.2d 912. See cases in 39 A.L.R.3d 791.

While the case at bar does not require decision concerning the application of Mallory to post-Wade identifications, it is appropriate to comment on certain aspects of this problem, particularly in view of discussion by counsel that he could show no direct prejudice, however he asserted that the exclusionary rule should be applied without exceptions.

Barely a decade after beginning a revolutionary expansion of the constitutional protections afforded the accused, and after first expressing constitutional concern about the dangers involved in eye witness identifications, the United States Supreme Court, in three recent opinions, have virtually immunized most pre-trial identification procedures from constitutional challenge. In the cases of U.S. v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619, Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401, and Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411, the court declined to depart from the rationale by imposing a per se exclusionary rule upon testimony concerning an identification that took place before the commencement of any prosecution whatever. The court stated however that there may be occasions during the course of criminal investigation when the police do abuse identification procedures.

Of course, the due process clause of the Fifth and Fourteenth Amendments forbids a lineup that is unnecessarily suggestive and conductive to irreparable mistaken identification. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199; Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402. However, when a person has not been formerly charged with a criminal offense, Stovall strikes the appropriate constitutional balance between the right of a suspect to be protected from prejudicial procedures and the interest of society in the prompt and purposeful investigation of an unsolved crime.

Although Stovall might be read as meaning that a one man showup violates due process unless good reason for the lack of a lineup is shown it has not been so interpreted by the lower courts. Thus, even when this mode of identification has been employed at the police station, the 'substantial likelihood of irreparable mis-identification' underlying the due process claim has been found lacking on the basis of other...

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  • State v. Arnett
    • United States
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    • April 14, 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......
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    ...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......
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    ...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 (1974). Gaskins argues that he should be allowed to exercise the strategy of seating jurors who were convinced of his guilt but......
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