The State v. Singleton

• Citation: 395 S.C. 6,716 S.E.2d 332
• Decision Date: 07 September 2011
• Docket Number: No. 4886.,4886.
• Court: Court of Appeals of South Carolina
• Parties: The STATE, Respondent,v.Eugene J. SINGLETON, Appellant.

395 S.C. 6

716 S.E.2d 332

The STATE, Respondent,

v.Eugene J. SINGLETON, Appellant.

No. 4886.

Court of Appeals of South Carolina.

Submitted June 1, 2011.Decided Sept. 7, 2011.

Appellate Defender M. Celia Robinson, of Columbia, for Appellant.Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Deborah Shupe, all of Columbia, for Respondent.GEATHERS, J.

Appellant Eugene Singleton was indicted in Bamberg County for first degree burglary, armed robbery, kidnapping, possession of a weapon during the commission of a violent crime, and criminal conspiracy. After a trial, a jury convicted Singleton of first degree burglary and criminal conspiracy. Singleton appeals, arguing the circuit court erred in allowing (1) the victim to identify Singleton in court when her out-of-court identification was arguably unreliable and created a substantial likelihood of misidentification and (2) the State to call a reply witness who did not comply with the sequestration order imposed by the circuit court at Singleton's request. We affirm.¹

FACTS/PROCEDURAL HISTORY

On the night of September 7, 2007, Mattie Singletary (Victim) and her one-year-old daughter were sleeping in her bedroom when she heard a “thump.” Moments later, a man walked into her bedroom, uttered an expletive, and ran out. Two other men then entered her bedroom and began threatening her with guns pointed in her and her daughter's direction. The two men ransacked the room and stole a cell phone, two pairs of shoes, jewelry,² and more than one thousand dollars in cash.³ After the men left, Victim noticed her front door had been kicked in.

During trial, Victim identified Singleton ⁴ as the first man who entered her bedroom. Prior to this in-court identification, Singleton's counsel had moved to suppress Victim's identification of Singleton on the basis of inconsistencies between Victim's written and oral statements. Specifically, Victim initially stated she did not recognize any of the perpetrators but later recalled that she recognized the first man who entered her room as “Jay.” Singleton's counsel argued Victim's identification was the product of her hearing of Singleton's arrest by law enforcement after the fact. The circuit court agreed that there were inconsistencies between Victim's statements but ruled that any inconsistencies would go to her credibility and not to admissibility. The circuit court concluded the identification was sufficiently reliable to submit the issue to the jury because it was based on her own personal knowledge. Therefore, the circuit court denied the motion to suppress Victim's in-court identification of Singleton.

Victim testified she recognized Singleton “[b]ecause he used to be around my baby['s] father ... [b]ut then after a while, I guess they drifted apart.” Victim also noted she had seen Singleton several times on the campus of Denmark Technical College, where she attended school, and when she saw him he would greet her. Victim stated she had seen Singleton nine or ten times prior to September 7, 2007, and she got a good look at him the night of the robbery.

After the robbery, Victim called 911, but she did not mention that she recognized one of the perpetrators. Victim allegedly told one of the responding officers that she recognized one of the robbers as “Jay,” but she admitted her written statement did not mention this fact. Victim's initial written statement said “a boy came in the room and said, [oh] sh[*]t, and turn [ed] around.” Victim explained that her written statement given the day after the robbery did not mention she recognized Singleton because “it was just so much going on, and I was scared.” Singleton's trial counsel cross-examined Victim extensively regarding the absence of this information in her initial written statement.

Two other perpetrators involved in the robbery, Lonnie Rowe and Eugene Hosey, testified at trial on the State's behalf and identified Singleton as a participant in the robbery. Both Rowe and Hosey testified Singleton joined them in planning to go rob a drug dealer and steal drugs from his mobile home. Rowe testified Singleton kicked in the front door and entered the mobile home first. Rowe said Singleton repeatedly asked Victim where her “stuff” was, and after she told them, Singleton went and got a white bag allegedly containing drugs out of the washing machine.

Rowe further testified he grabbed one or two pairs of sneakers and a cell phone before leaving the mobile home. Rowe claimed he did not know exactly what was in the white bag, and the State did not admit any drug evidence during the course of the trial. Rowe spent the night in the woods and was apprehended by the police the next morning. He confessed to his involvement in the crime and directed the police to Latrell Tyler's home, where Rowe knew Singleton would be staying.⁵ Police proceeded to the address Rowe gave them and arrested Singleton.

In April 2008, Victim gave another statement to a Solicitor's Office investigator. In that statement, Victim stated she saw a black male whom she knew as “J” come into her bedroom with a handgun. “J” said “oh sh[*]t” and then ran from the room. Victim said she was not sure why she did not initially tell the police that “J” Singleton was one of the people who entered her home. Victim claimed that “J” probably ran from the room when he saw her because she and “J” knew each other. Victim said she did not see any drugs in the mobile home that night, but she admitted that she had heard her live-in boyfriend, Folk, sold drugs.

With respect to the jewelry stolen from her home, Victim's handwritten statement noted the robbers took a gold chain, a gold watch, and two gold rings. Victim claimed that all the jewelry found on Singleton when he was arrested belonged to Folk. Singleton's counsel cross-examined Victim regarding the fact that the jewelry found in Singleton's possession upon his arrest consisted of two gold bracelets, a watch, a ring, and did not include any gold chains.

In his case-in-chief, Singleton presented evidence that the jewelry found in his possession at the time of his arrest actually belonged to him and not to Folk. Specifically, Tyler, Tanora Clemons, and Dorothy May Singleton ⁶ described the jewelry in detail, and all three witnesses testified they had seen Singleton wearing the jewelry prior to September 7, 2007. Tyler noted:

I remember the bracelet because I asked him could I wear the bracelet. He told me no, he wouldn't let me wear the bracelet. It got the real pretty Jesus on it and I liked it. It had the diamonds on it. I asked could I get it. He told me no. I did want this too, but he told me no.

The State sought to call a reply witness, Harriet Washington, Folk's mother, to testify that the jewelry in fact belonged to her son. During a bench conference off the record, Singleton objected to Washington's testimony on the grounds that Washington was not sequestered during the trial, and was in the courtroom when the other witnesses discussed the jewelry. The circuit court overruled Singleton's motion to suppress the testimony but limited any prejudice by requiring Washington to verbally describe the jewelry prior to the State showing it to her.

During her direct testimony, Washington described the jewelry and identified it as belonging to her son, Folk. Washington testified:

He got the Lord's piece, a big chain with the Lord face on it. And then he got another big gold chain like a, uh, it's something like some kind of like a head something, but then he got one with a Jesus in it with the diamonds on it and then he had, he got a gold bracelet with Jesus head because I had asked him for it ... he got his gold watch. He got several rings.

During cross-examination, Singleton's counsel questioned Washington extensively regarding her presence in the courtroom when the jewelry was displayed earlier that same day. Washington admitted she had last seen the jewelry that same morning when Singleton's counsel displayed it for three witnesses.

The jury convicted Singleton of first degree burglary and criminal conspiracy. The circuit court sentenced Singleton to thirty-five years' imprisonment for first degree burglary, suspended upon the service of twenty-five years plus five years' probation. The circuit court also sentenced Singleton to five years' imprisonment for conspiracy, to run concurrently with the burglary sentence. This appeal followed.

ISSUES ON APPEAL

1. Did the circuit court err in allowing the victim to identify Singleton in court when her out-of-court identification was arguably unreliable and created a substantial likelihood of irreparable misidentification?

2. Did the circuit court err in allowing the State to call a witness for reply testimony when the witness did not comply with the sequestration order imposed at Singleton's request such that his right to due process was violated?

LAW/ANALYSIS

I. In–Court Identification of Defendant

Singleton argues the circuit court erred in allowing Victim to identify him during her in-court testimony when her out-of-court identification was unreliable and created a substantial likelihood of misidentification. We disagree.

“The admission of evidence is within the sound discretion of the circuit court.” State v. Simmons, 384 S.C. 145, 166, 682 S.E.2d 19, 30 (Ct.App.2009). “Accordingly, a circuit 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. “To warrant reversal based on the admission or exclusion of evidence, the appellant must prove both the error of the ruling and the resulting prejudice, i.e., that there is a reasonable probability the jury's verdict was influenced by the challenged evidence or the lack thereof.” Fields v. Reg'l Med. Ctr. Orangeburg, 363 S.C. 19, 26, 609 S.E.2d 506, 509 (2005).

“An in-...