State v. Simmons

• Decision Date: 05 February 1992
• Docket Number: No. 23643,23643
• Citation: 308 S.C. 80,417 S.E.2d 92
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Ora SIMMONS, Appellant. . Heard

Page 92

417 S.E.2d 92

308 S.C. 80

The STATE, Respondent, v. Ora SIMMONS, Appellant.

No. 23643.

Supreme Court of South Carolina.

Heard Feb. 5, 1992.

Decided April 27, 1992.

Rehearing Denied June 5, 1992.

Chief Atty. David I. Bruck, of South Carolina Office of Appellate Defense, Columbia, for appellant.

Attorney Gen. T. Travis Medlock, Asst. Attys. Gen. Harold M. Coombs, Jr. and Miller W. Shealy, Jr.; and Sol. Richard A. Harpootlian, Columbia, for respondent.

GARDNER, Acting Justice:

Ora Simmons (Simmons) was convicted of conspiracy to distribute crack cocaine and distribution of crack cocaine and sentenced to five and fifteen years, respectively. We remand for an in camera hearing.

ISSUES

The issues of merit are whether the trial judge erred (1) in failing to hold an in camera hearing regarding the admissibility of the agent's identification testimony and (2) in refusing to specifically charge the jury as to witness identification.

FACTS

On August 15, 1989, Ricky Crosby, an undercover narcotics agent, bought $20 of crack cocaine from two women at a house in Columbia. The serial number of the $20 bill was recorded. The sale took approximately 4 to 5 minutes. A week later Simmons and her mother were arrested for possession of crack cocaine when the house was raided. The $20 bill was found in the mother's purse along with $1,400.

At trial Simmons argued mistaken identity, claiming that it was her sister who took part in the drug sale. Simmons was six months pregnant at the time of the sale; the undercover agent failed to notice this and did not include it in his description of her given after the "buy."

Simmons and her mother were arrested after the raid on the house. Crosby was told by another officer that a search warrant had been executed on the Simmons' home and that a bond hearing was to take place that afternoon. A number of people were in the courtroom at the bond hearing. When Simmons' name was called, she approached the bench and bond was set. This was in the presence of Ricky Crosby, who was the only witness at trial who identified Simmons as having participated in the sale on August 15, 1989.

When the case was called for trial, in the absence of the jury, Simmons' counsel made a motion to suppress the in-court identification by Ricky Crosby. He contended that Crosby's identification was the result of the bond hearing and not a result of his observation at the time of the arrest.

The trial judge denied the request for an in camera hearing.

Simmons' counsel also contends that the trial judge erred in overruling his objection to the jury charge on the basis that an identification charge should have been made.

DISCUSSION

I.

Simmons' counsel argues, in effect, that Ricky Crosby got a "fix" on Simmons at the bond hearing when her name was called and she came forward for the judge to set bond. For that reason, Simmons argues that Ricky Crosby's in-court identification of her was tainted and should have been suppressed.

State v. Williams, 258 S.C. 482, 189 S.E.2d 299 (1972) is dispositive of this case. The question is whether Ricky Crosby's identification of Simmons arises solely from his observation of her when she made the buy on the night of August 15, 1989. The identification must be free of and independent of any later suggestion that Simmons was the person who sold him the crack. The identification may be so tainted by the circumstances surrounding the bond hearing as to require that it be suppressed. In State v. Cash, 257 S.C. 249, 185 S.E.2d 525 (1971), this Court adopted a per se rule requiring the court to hold an in camera hearing when the state offers witnesses whose testimony identifies the defendant as the person who committed the crime and the defendant challenges the in-court identification as being tainted by a previous illegal identification. Contra Watkins v. Souder, 449 U.S. 341, 101 S.Ct. 654, 66 L.Ed.2d 549 (1981). The lower court refused to hold a hearing. This error warrants reversal.

We hold that the denial of the motion to suppress was error. It does not follow, however, that Simmons is entitled to a new trial. We remand the case in order for the trial judge to hold a hearing to determine whether, under the circumstances of this

                case, Ricky Crosby's identification of Simmons was so tainted as to require its suppression at trial.   Should it be determined upon an in camera hearing, that the in-court identification of Simmons was not of independent origin but was the tainted product of the circumstances surrounding the bond hearing, it will follow as a matter of course that Simmons is entitled to a new trial.   We note that, under certain circumstances, if the identification is corroborated by either circumstantial or direct evidence, then the harmless error rule might be applicable.   See Chapman v.

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