State v. Tisdale

• Decision Date: 07 February 2000
• Docket Number: No. 3108.,3108.
• Citation: 338 S.C. 607,527 S.E.2d 389
• Parties: The STATE, Respondent, v. Antonio TISDALE, Appellant.
• Court: South Carolina Court of Appeals

338 S.C. 607

527 S.E.2d 389

The STATE, Respondent, v. Antonio TISDALE, Appellant.

No. 3108.

Court of Appeals of South Carolina.

Heard October 7, 1999.

Decided February 7, 2000.

Assistant Appellate Defender Melody J. Brown, of SC Office of Appellate Defense, of Columbia, for appellant.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott and Senior Assistant Attorney General Norman Mark Rapoport, all of Columbia; and Solicitor David P. Schwacke, of North Charleston, for respondent.

PER CURIAM:

A jury convicted Antonio Tisdale of entering a bank with intent to steal, armed robbery, and possession of a weapon during the commission of a violent crime. The trial court sentenced him to a total of thirty-two years imprisonment. Tisdale appeals, arguing the court erred in refusing to suppress tainted identifications and in denying his motion for mistrial based on a violation of the court's sequestration order. We affirm.

FACTS/PROCEDURAL HISTORY

On October 24, 1996, at approximately 10:57 a.m., a gunman robbed a branch of First Citizens Bank in North Charleston. No one saw the robber before he entered or after he left the bank. The police soon arrived and canvassed the area. Larry Fanning, who lived behind the bank at the time, told the police he saw a late-model brown Cadillac in need of a new muffler "shooting" up the alleyway around 11:00 a.m. Fanning described the car as having a bright yellow paper license tag reading "Your Car Store." Through the distinctive tag, the police were able to trace ownership of the car to Tisdale. Based on Fanning's subsequent identification of the car, the police arrested Tisdale later that afternoon.

The following morning, as Officer Robert Myers assembled a photo line-up, a teller from First Citizens, Justine Mood, telephoned and stated she had seen a report of Tisdale's arrest on television the previous night and she believed Tisdale was the robber.¹ Myers drove to the bank and took Mood's statement. While there, Georgia Vannice, another teller, told him she had identified Tisdale from a photo in a newspaper article about his arrest.² She also gave Myers a written statement. Michelle Crawford, a "floating" temporary for First Citizens, also identified Tisdale from the newspaper the morning after the robbery and subsequently gave a statement to police. After these identifications, Myers never completed the line-up preparation because the police decided it would be futile. A few days later, however, Myers returned to the bank and showed Vannice a photograph of Tisdale which she said depicted the robber.

On February 3, 1997, a Charleston County grand jury indicted Tisdale for entering a bank with intent to steal, armed robbery, possession of a weapon during the commission of a violent crime, and grand larceny. The case was tried before a jury on November 17-19, 1997. Prior to opening statements, Tisdale moved to sequester the witnesses. The trial court granted the motion, but exempted two of the State's case agents from his ruling. Thereafter, Tisdale moved to suppress the identifications of him made by the three tellers. The trial court held an in camera hearing on the reliability of each teller's identification, and denied the motion as to each witness.

The jury found Tisdale guilty of all the charges. The trial court, however, set aside the larceny conviction as a lesser included offense of armed robbery. The court sentenced Tisdale to thirty years for armed robbery, thirty years for entering a bank with intent to steal, concurrent, and two years for possessing a gun during the crime, consecutive to the robbery sentence. Tisdale appeals, arguing the trial court erred in permitting the tellers' in-court identifications, and in refusing to grant a mistrial based on David Rykowski's violation of the court's order sequestering all non-agent witnesses.

LAW/ANALYSIS

I. Impropriety of Identification Procedure

Tisdale first argues the trial court erred in failing to suppress the identifications by Mood, Vannice and Crawford. We disagree.

The admission of evidence is within the sound discretion of the trial court. State v. Tucker, 319 S.C. 425, 462 S.E.2d 263 (1995); State v. Brown, 333 S.C. 185, 508 S.E.2d 38 (Ct.App.1998). Accordingly, a trial court's decision to allow the in-court identification of an accused will not be reversed absent an abuse of discretion or prejudicial legal error. Id.

An in-court identification of an accused is inadmissible if a suggestive out-of-court identification procedure created "a very substantial likelihood of irreparable misidentification." Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) (quoting Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968)); State v. Stewart, 275 S.C. 447, 272 S.E.2d 628 (1980). However, in this case, the pre-trial identification of Tisdale by the three tellers was admissible because the televised bond hearing and newspaper article were non-governmental sources of the suggestiveness.

In excluding improper identification testimony

the primary evil to be avoided is a "very substantial likelihood of irreparable misidentification." ... It is the likelihood of misidentification which violates a defendant's right to due process.... Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous.

Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) (quoting Simmons, 390 U.S. at 384, 88 S.Ct. 967).

"[R]eliability is the linchpin in determining the admissibility of identification testimony...." Manson, 432 U.S. at 114, 97 S.Ct. 2243 (citation omitted); see also State v. Jones, 273 S.C. 723, 729, 259 S.E.2d 120, 123 (1979)

. However, "[t]he purpose of a strict rule barring evidence of unnecessarily suggestive confrontations would be to deter the police from using a less reliable procedure where a more reliable one may be available...." Neil, 409 U.S. at 199,

93 S.Ct. 375. Therefore, the impetus behind the harsh remedy of exclusion is police deterrence. Although the reliability of an identification may be affected by media identification, no police deterrence would be achieved by excluding evidence where there has been no governmental involvement. Thus, we hold that the Neil analysis is inapplicable where there is a nongovernmental identification source.

A number of other jurisdictions have held media identifications of an accused do not constitute identification procedures for analysis under Neil and its progeny. See United States v. Peele, 574 F.2d 489 (9th Cir.1978)

; United States v. Zeiler, 470 F.2d 717 (3d Cir.1972); State v. Smith, 681 So.2d 980, 986 (La.App.1996) ("[t]he viewing of television news coverage of a defendant's arrest is not an `identification procedure'")(citing State v. Daughtery, 563 So.2d 1171 (La.App.1990)); State v. Lawrence, 700 S.W.2d 111 (Mo.Ct.App.1985) ("When the source of the alleged taint is not governmental, the balancing test under Stovall and Simmons is not applicable."); State v. Brown, 38 Ohio St.3d 305, 528 N.E.2d 523 (1988).

It is uncontested that the media identifications in this case were suggestive. See Simmons, 390 U.S. at 383,

88 S.Ct. 967 (identifications arising from single photo displays are generally viewed with suspicion); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) (show-ups, or showing a person singly for identification, are widely condemned); State v. Patrick, 318 S.C. 352, 457 S.E.2d 632 (Ct.App.1995) (witness's prior identification of defendant, which occurred in a courtroom while the defendant was being tried for another crime, contained a degree of suggestiveness). However, because the police were not involved in the media identifications in this case, the trial judge did not err in allowing the tellers' identification testimony.

Courts that have rejected the Neil analysis have also recognized the possibility of a case "where the mind of a witness is so clouded by suggestions from nongovernment sources that a conviction based principally on the testimony of that witness violates due process." Peele, 574 F.2d at 491; Lawrence, 700 S.W.2d at 112 ("We recognize that a case might arise in which an identification of a defendant is so clouded by outside nongovernmental sources as to be totally unreliable as a matter of law...."); see also State v. Coburne, 10 Wash.App. 298, 518 P.2d 747, 753 (1973)

("[t]he publication of [a] newspaper picture is considered an `unarranged' photo show up. Conceivably, viewing it could have implanted a suggestion to the [] eyewitnesses").

We are not convinced that the identification testimony admitted in this case violated due process. All the tellers were fully cross-examined regarding their descriptions and the suggestiveness of the media identification. "The extent to which a suggestion from nongovernment sources has influenced the memory or perception of the witness, or the ability of the witness to articulate or relate the identifying characteristics of the accused, is a proper issue for the trier of fact to determine." Peele, 574 F.2d at 491; see also Kubat v. Thieret, 867 F.2d 351, 359 (7th Cir.1989)

("although [the witness] expressed concern about seeing the picture in the newspaper, she testified at trial only [the defendant] looked like the man in the bar, and her concerns about the newspaper were disclosed to the jury—thus her concerns went to weight not admissibility"); Zeiler, 470 F.2d 717 (When "there is no evidence that law enforcement officials encouraged or assisted in the impermissive identification procedures, the proper means of testing eyewitness identification is through cross-examination."); Brown, 528 N.E.2d at 532 ("The rationale for excluding a tainted pretrial...