State v. Glenn

THE STATE OF SOUTH CAROLINA

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State,       
Respondent,

v.

 Tavo Terrell Glenn,       
Appellant.

Appeal From Cherokee County

Gary E. Clary, Circuit Court Judge

Unpublished Opinion No. 2003-UP-515

Submitted May 30, 2003 – Filed August
27, 2003

AFFIRMED

Senior Assistant Appellate Defender Tara S. Taggart,
of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh and Assistant Deputy Attorney General Charles H. Richardson,
all of Columbia; and Solicitor Harold W. Gowdy, III, of Spartanburg, for Respondent.

PER CURIAM:    Tavo Terrell Glenn was convicted
of armed robbery and carrying a pistol.  The trial judge sentenced him to thirty
years for armed robbery and one year, concurrent, for carrying a pistol.  We
affirm. [1]

FACTS

On October 5, 2001, an Alltel Communications store
was robbed between 4:00 pm – 4:15 pm.  The robber approached the store backwards. 
As he came into the store, “he turned and faced” the two employees who were
the only occupants in the store and pulled a mask down over his face.  He drew
a gun and demanded money.  He threw a plastic bag on the floor and told Brandi
Childers-Crane to put the money from her register in the bag.  He was standing
about a foot away from her on the other side of the counter.  She filled the
bag with money from her register, while he asked April Daves to open the safe. 
Nothing was in the safe.  He demanded for Daves to open the second register. 
She could not find her keys.  The robber placed his gun to the back of Daves’
head and told her to find the keys or he would shoot her.  After Daves was unsuccessful
in finding her keys, he took the women to the back of the store and told them
to lie down.  The robber then left the store with the plastic bag of money. 
He had been in the store for approximately ten to fifteen minutes.

Daves called 911.  Officer Chris Jones was the
first to respond.  The women described the robber as a thin black male wearing
a royal blue shirt with writing across the front and dark trousers.  Jones radioed
the information to the dispatchers to relay to all the patrols.  About twenty
to thirty minutes later, Glenn, who was apprehended during a high-speed chase
after pulling in front of an officer, was brought to the parking lot of the
Alltel store.  Daves and Childers-Crane, who were inside the store, viewed Glenn
from behind the officers in the store.  They identified Glenn as the robber.

Glenn moved to suppress the out-of-court identification
at trial.  Childers-Crane asserted she had “no doubt” that Glenn was the individual
who robbed the store.  She said, “he was wearing the same clothes he had on
and he has a very—his cheekbones showed through the mask.  I mean, it was a
tight mask and that’s what I noticed.”  Daves declared she “knew that was him.” 
She professed it was Glenn because she had seen the side of the robber’s face,
his high cheekbones were noticeable through the tight mask, and Glenn was wearing
the same clothing that the robber wore.

LAW/ANALYSIS

Glenn contends his single person show-up was unduly
suggestive and conducive to irreparable identification.  We disagree.

The admissibility of evidence is within the sound discretion
of the trial judge.  State v. Patterson, 337 S.C. 215, 522 S.E.2d 845
(Ct. App. 1999).  Accordingly, evidentiary rulings of the trial court will not
be reversed on appeal absent an abuse of discretion or the commission of legal
error which results in prejudice to the defendant.  Id.

A criminal defendant may be deprived of due process of law
by an identification procedure that is unnecessarily suggestive and conducive
to irreparable mistaken identification.  Stovall v. Denno, 388 U.S. 293,
87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Patterson,  supra.  Identifications
resulting from single person show-ups have been upheld by the United States
Supreme Court and our Supreme Court.  “While a showup in which a witness views
a single suspect is generally suggestive, and hence suspect or disfavored, and
less preferable than a lineup, even if requested by accused, a showup may be
proper in some circumstances.”  22A C.J.S. Criminal Law § 803 (1989)(footnotes
omitted).

 “[A] showup may be proper where it occurs shortly
after the alleged crime, near the scene of the crime, as the witness’ memory
is still fresh, and the suspect has not had time to alter his looks or dispose
of evidence, and the showup may expedite the release of innocent suspects, and
enable the police to determine whether to continue searching.”  22A C.J.S. Criminal
Law § 803 (footnotes omitted).  “The closer in time and place to the scene
of the crime, the less objectionable is a showup.”  Id.  “A showup may
be proper even though the police refer to the suspect as a suspect, and even
though the suspect is handcuffed or is in the presence of the police . . . .” 
Id. (footnotes omitted).  “While show-ups have been upheld by the Court,
these situations usually involve either extenuating circumstances or are very
close in time to the crime.”  State v. Hoyte, 306 S.C. 561, 562-63, 413
S.E.2d 806, 807 (1992).

State v. Mansfield, 343 S.C. 66, 77-78, 538
S.E.2d 257, 263 (Ct. App. 2000).

The central question is whether under the totality
of the circumstances the identification was reliable even though the confrontation
procedure was suggestive.  State v. Stewart, 275 S.C. 447, 450, 272 S.E.2d
628, 629 (2000).  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.  Id. (citing Neil
v. Biggers, 409 U.S. 188, 93 S.Ct. 375 (1972)).

The identification of Glenn was reliable under the
totality of the circumstances.  Daves and Childers-Crane viewed the side of
the robber’s face before he pulled down his mask.  During the robbery, the women
still noticed his high cheekbones under the mask.  The robber was only a few
feet away from the women during the ten to fifteen minutes he was in the store.  
Additionally, the women were victims of the crime.  A victim is presumed to
maintain a higher degree of attention than a mere bystander.  State v. Moore,
343 S.C. 282, 290 n.6, 540 S.E.2d 445, 449 n.6 (2000).  Furthermore, there was
no discrepancy between the description the women gave to Jones and the appearance
of Glenn.  Moreover, the women both testified at trial that they were certain
Glenn was the robber.  Finally, the time between the crime and confrontation
was only twenty to thirty minutes.

CONCLUSION

We hold the pre-trial identification of Glenn was
reliable under the totality of the circumstances.  The trial judge, therefore,
did not err in allowing the out-of-court identification into evidence.

AFFIRMED.

HEARN, C.J., CONNOR and ANDERSON, JJ., concur.

[1] This case was decided without oral argument pursuant to Rule 215,
SCACR.