State v. Robinson ( 2011 )

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Travis Deniele Robinson, Appellant.

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Appeal From York County
John C. Hayes, III, Circuit Court Judge

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Unpublished Opinion No. 2011-UP-022
Submitted January 1, 2011 – Filed January 25, 2011   

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AFFIRMED

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Chief Appellate Defender Joseph L. Savitz, III, of Columbia, for Appellant.

Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Harold M. Coombs, Jr., all of Columbia; and Solicitor Kevin S. Brackett, of York, for Respondent.

PER CURIAM:  Travis Deniele Robinson appeals his convictions for attempted armed robbery, assault and battery with intent to kill, and possession of a weapon during the commission of a violent crime, arguing the circuit court erroneously admitted unreliable in-court identifications by eyewitnesses after determining the out-of-court identification procedures were unduly suggestive.  We affirm.[1]

When assessing the admissibility of an eyewitness identification, a court must apply a two-prong test.  State v. Moore, 343 S.C. 282, 287, 540 S.E.2d 445, 447 (2000). First, it must determine whether the confrontation procedure used by the police was unduly suggestive.  Id.  Only if the procedure was unduly suggestive must a court focus on whether "'under [the totality of] the circumstances the identification was reliable notwithstanding any suggestive procedure.'"  Id. at 287, 540 S.E.2d at 447-48 (quoting Jefferson v. State, 425 S.E.2d 915, 918 (Ga. Ct. App. 1992)).  Factors to consider in "evaluating the likelihood of [a] misidentification" include the following:

[T]he 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 by the witness at the confrontation, and the length of time between the crime and the confrontation.

Neil v. Biggers, 409 U.S. 188, 199-200 (1972).

Here, the circuit court did not abuse its discretion by admitting the eyewitnesses' in-court identifications.  After finding the show-up procedure performed by the police was unduly suggestive, the circuit court properly considered the Neil v. Biggers factors to assess the reliability of the eyewitnesses' identifications.  As to the first witness's identification: first, she testified she saw Robinson when he walked into and back out of the gas station, and throughout the course of his struggle with the victim; second, she testified she was suspicious of Robinson and witnessed the struggle and shooting unfold, indicating a heightened degree of attention; third, she told police the shooter had dreadlocks; fourth, she was "99 percent sure" Robinson was the shooter; and finally only a "little while" had passed until she identified Robinson at the show-up that night.  As to the second witness's identification: first, she testified she saw Robinson when he walked into and back out of the gas station, and she looked him in the eyes during the attempted robbery; second, her attention was focused on Robinson during the course of the attempted robbery; third, she was a "hundred percent certain" Robinson was the shooter; and finally, only a "little while" had passed before she identified Robinson as the shooter later that night. 

Under the totality of the circumstances, the unduly suggestive show-up procedures did not unconstitutionally taint the reliability of the eyewitnesses' in-court identifications of Robinson.  Thus, the circuit court did not err in allowing both eyewitnesses to identify Robinson in court as the shooter.  Accordingly, the decision of the circuit court is

AFFIRMED.

FEW, C.J., SHORT and WILLIAMS, JJ., concur.

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[1] We decide this case without oral argument pursuant to Rule 215, SCACR.