State v. Stewart

• Decision Date: 01 December 1980
• Docket Number: No. 21335,21335
• Citation: State v. Stewart, 275 S.C. 447, 272 S.E.2d 628 (S.C. 1980)
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Douglas STEWART, Appellant.

Page 628

272 S.E.2d 628

275 S.C. 447

The STATE, Respondent, v. Douglas STEWART, Appellant.

No. 21335.

Supreme Court of South Carolina.

Dec. 1, 1980.

Chief Atty. John L. Sweeny and Staff Atty. Tara D. Shurling, of S. C. Appellate Defense Commission, Columbia, for appellant.

Atty. Gen. Daniel R. McLeod and Asst. Atty. Gen. Kay G. Crowe, Columbia; and Sol. William W. Wilkins and Asst. Sol. Matthew Hawley, Greenville, for respondent.

HARWELL, Justice:

Douglas Stewart appeals his conviction for armed robbery and the life imprisonment sentence imposed pursuant to Section 17-25-40, Code of Laws of South Carolina (1976). We affirm the conviction and remand for a sentencing hearing and imposition of the appropriate sentence.

Appellant contends that the pre-trial identification procedures used by the police were unnecessarily suggestive and conducive to irreparable mistaken identification. Appellant therefore argues that the trial court erred by allowing a witness to subsequently identify him in court.

Sometime between 9:30 and 10:00 on the evening of December 23, 1978, at a time when no customers were present, someone leaped over the counter at a Wendy's restaurant in Greenville to accost the employees and rob the store. He was armed and had a nylon stocking in his hand. Witness Clay looked him full in the face, she testified, for 5 to 7 seconds before he pulled the stocking over his head and covered his face. Though Clay was the only employee to see the robber's face, two other employees did state that they could detect "hair on the chin" or a "scraggly beard" of a couple days growth. Witness Clay's description of the man was that he was a black male with a very light complexion; 24 or 25 years of age; 175 pounds; 5 feet 10 inches tall; curly light brown hair. He was wearing jeans. Apparently the initial description did not mention a beard. Sometime during the investigation, however, Clay mentioned the beard.

Some two weeks later on January 8, 1979, the police conducted a photographic display. The officer conducting the display used a photograph of appellant and those of five others drawn from police records. Though the photographs were not preserved, the officer testified that he used only those of light skinned black males with medium-heavy facial hair. The officer stated that none of the employees could give a positive identification but that Clay did comment, referring to the photograph of the appellant, that "if she could see that person in person she could identify him".

The next day, the police held a physical line-up and of those who viewed the line-up, only Clay could give a positive identification. She identified appellant. Only appellant was placed in both the photographic and the physical line-ups; only appellant, among those used in the physical line-up, had a beard though four of the five others did sport facial hair of some kind.

At trial, Clay testified that her trial identification was based solely on her view during the robbery, though on cross-examination she did admit that appellant's photograph from the display had affected her identification of appellant at the line-up "a little bit".

The United States Supreme Court as well as this Court has dealt with questions of this kind in recent decisions and from these cases the rule of law has developed that suggestiveness alone does not require the exclusion of evidence. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); State v. Gambrell, S.C., 266 S.E.2d 78 (1980); State v. Jones, 273 S.C. 723, 259 S.E.2d 120 (1979); State v. Denson, 269 S.C. 407, 237 S.E.2d 761 (1977).

The central question is whether under the totality of the circumstances the identification was reliable even though the confrontation procedure was suggestive. The factors considered in determining the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of the witness's prior description of the criminal, the level of certainty demonstrated at the confrontation and the time between the crime and the confrontation. Neil v. Biggers, supra; State v. Jones, supra.

Applying the factors outlined to the circumstances here leads to the conclusion that the identification was reliable. Clay had a full facial view of the appellant; her attentiveness is manifested by the description she gave the police. Only two weeks passed from the robbery to the confrontation.

Appellant would argue that the witness betrayed a lack of certainty at the photographic display and that only because of the suggestiveness of the subsequent physical line-up was a positive identification secured. We disagree. Referring to appellant's photograph at the display, Clay indicated that she could identify him if she could see him in person. Rather than merely conduct a showup, the police held a line-up wherein they endeavored to place individuals with physical characteristics as similar to appellant's as then possible.

While there was a degree of suggestiveness in the procedures employed, we do not believe the circumstances of this case show there is "a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). As stated by the United States Supreme Court in Manson v. Brathwaite, supra:

"Short of that point, such evidence is for the jury to weigh. We are content to rely upon the good sense and judgment of American juries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature." 432 U.S. at p. 116, 97 S.Ct. at 2254.

We conclude that the trial court did not err by admitting this identification testimony.

Appellant argues that the trial judge should have excluded testimony from the witnesses who positively identified appellant's voice as that of the armed robber. We disagree. The evidence reveals that the witnesses gave certain, unequivocal identification of the voice based upon recollections of the...