State v. Mitchell ( 2012 )

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.

Norman Lee Mitchell, Appellant.

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Appeal From Richland County
L. Casey Manning, Circuit Court Judge

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Unpublished Opinion No. 2012-UP-010  
Submitted November 1, 2011 – Filed January 25, 2012

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AFFIRMED

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Appellate Defender Kathrine H. Hudgins, of Columbia, for Appellant.

Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General Deborah R. J. Shupe, and Solicitor Daniel E. Johnson, all of Columbia, for Respondent.

PER CURIAM:  Norman Lee Mitchell appeals his conviction of carjacking.[1] He argues the circuit court erred in admitting the victim's single person show-up identification and subsequent in-court identification.  We affirm.[2]

"The admission or exclusion of evidence is left to the sound discretion of the [circuit] court, and the court's decision will not be reversed absent an abuse of discretion."  State v. Liverman, 386 S.C. 223, 233, 687 S.E.2d 70, 75 (Ct. App. 2009).  "An abuse of discretion occurs when the decision of the [circuit] court is based upon an error of law or upon factual findings that are without evidentiary support."  Id.  "[W]hether an eyewitness identification is sufficiently reliable is a mixed question of law and fact."  State v. Moore, 343 S.C. 282, 288, 540 S.E.2d 445, 448 (2000).  "In reviewing mixed questions of law and fact, where the evidence supports but one reasonable inference, the question becomes a matter of law for the court."  Id.

When assessing the admissibility of an eyewitness identification "the primary evil to be avoided is 'a very substantial likelihood of irreparable misidentification.'"  Neil v. Biggers, 409 U.S. 188, 198 (1972) (quoting Simmons v. United States, 390 U.S. 377, 384 (1968)).  An unduly or unnecessarily suggestive confrontation procedure may deprive a defendant of due process of law.  State v. Turner, 373 S.C. 121, 127, 644 S.E.2d 693, 696 (2007).  However, "the admission of evidence of [an unnecessarily suggestive procedure] without more does not violate due process."  Biggers, 409 U.S. at 198. 

Single person show-ups are "particularly disfavored in the law" and are suggestive.  Moore, 343 S.C. at 287, 540 S.E.2d at 448.  If a confrontation procedure is deemed unduly suggestive, a court must determine whether "under [the totality of] the circumstances the identification was reliable notwithstanding any suggestive procedure."  Id. at 287, S.E.2d at 447-48 (citation and internal quotation marks omitted).  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.

Biggers, 409 U.S. at 199-200.

Here, the circuit court did not err in admitting the victim's initial show-up identification and subsequent in-court identification.  Although the single-person show-up procedure used in the instant case has been disfavored as suggestive, the circuit court properly found the victim's identification was sufficiently reliable pursuant to the Biggers factors.  The victim was able to view Mitchell's face very closely during the carjacking, which took place outside during the day.  In addition, the victim demonstrated a high degree of certainty that Mitchell was perpetrator, and both witnesses to her initial identification of Mitchell testified she demonstrated no hesitation or doubt.  Finally, she identified Mitchell within minutes after the crime. Accordingly, Mitchell's carjacking conviction is affirmed.    

AFFIRMED.

FEW, C.J., THOMAS and KONDUROS, JJ., concur.

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[1] Although Mitchell was also convicted of failure to stop for a blue light, he does not appeal this conviction. 

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