State v. Rogers

PREHEARING REPORT

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED
ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State, Respondent,

v.

Tavarus Rogers, Appellant.

Appeal From Beaufort County

 Jackson V. Gregory, Circuit Court Judge

Unpublished Opinion No. 2004-UP-427

Heard March 10, 2004 – Filed July 7, 2004

AFFIRMED

Assistant Appellate Defender Robert M. Dudek, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General
John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka,
and Assistant Attorney General Melody J. Brown, all of Columbia; and
Solicitor Randolph Murdaugh, III, of Hampton, for Respondent.

PER CURIAM:  A jury convicted Tavarus Rogers
of two counts of murder, five counts of kidnapping, one count of armed robbery,
and one count of first-degree burglary.  Rogers contends the trial judge erred
in admitting:  (1) the in-court identifications of two witnesses; and (2) a
note that Rogers allegedly wrote to a co-defendant while he was incarcerated
on the charges that are the subject of this appeal.  We affirm.

FACTS

At approximately 12:30 a.m. on January 2, 1999, Jocelyn
Elizabeth Shough Wendel, James Mitchell Riley, and Kristal Mae Wire arrived
at a party held in the home of Paul Reischl on Coffin Point Road in Beaufort
County, South Carolina.  A number of people were present at the party including
Rogers, West McKinnon, Jonathon Gadsen, Collins Gadsen, John Byars, Paul Reischl,
and Toby Reischl.

Wendel and Wire testified they only knew a couple of
people at the party and were introduced to the others.  Both stated Rogers introduced
himself as “V.”  After about an hour-and-a-half to two hours, Rogers, McKinnon,
and the Gadsens left the party.  

Approximately an hour-and-a-half later, two men knocked
on the door of Paul Reischl’s home.  Byars opened the door and the men entered
the home wielding guns.  The men attempted to conceal their identity by using
some type of white cloth wrapped around their faces.

Upon entering the home, the men started hitting Byars. 
They then forced everyone to the floor and the first intruder began demanding
money and drugs from Paul Reischl.  Following these demands, he forced Reischl
to a back bedroom.  The second intruder, who apparently was witnessing the incident,
called out to the first intruder some variation of “don’t do it V,” shortly
after which the intruder shot Paul Reischl.  The shooter then returned to the
living room and confronted James Mitchell Riley.  After forcing Riley to hand
over his money, the intruder shot and killed him as well.  Before leaving the
house with the other man, the shooter told everyone in the house “you didn’t
see anything.”  After the intruders left, Wire and Wendel ran to a nearby home
and called 911.

Several hours after the shooting, Wire and Wendel gave
written statements to investigators.  In one of her two statements, Wire recounted
the incident and identified the intruders as “two black males.”  She, however,
did not identify Rogers other than referencing the statement that was made during
the incident, “V don’t do it.” Subsequently, investigators presented Wire with
three photographic lineups.  Wire was unable to identify anyone in these lineups.

Wendel also was unable to identify anyone in the three
photographic lineups that were presented to her shortly after the incident. 
When describing the incident in her statement, Wendel noted that when the
two intruders entered the home, “I recognized him ‘V’ as soon as he came in
the door.”  Throughout her statement, she described the actions of “V.”  She
also gave a physical description of “V.”

On January 6, 1999, Rogers was detained on a coroner’s
warrant. Two days later, while incarcerated, Rogers admitted to investigating
officers that he killed the two victims.  On January 10 and 21, 1999, Rogers
was arrested on warrants issued by a magistrate.     

On February 8, 1999, a Beaufort County grand jury indicted Rogers for two counts
of murder, six counts of kidnapping, one count of assault and battery with intent
to kill, one count of first-degree burglary, one count of armed robbery, and
one count of possession of a weapon during the commission of a violent crime.

Prior to trial, Rogers’s counsel sought to suppress
any in-court identifications of Rogers.  Pursuant to Neal v. Biggers,
409 U.S. 188 (1972), [1] the
judge held two in camera hearings regarding the in-court identifications
of Rogers by Wire and Wendel.   

During her testimony, Wire recounted the incident. 
She testified that she recognized the intruders because she had seen them earlier
in the evening at the party.  Wire identified “V” as present in the courtroom
by pointing to “the one in the orange suit.”  When questioned about her
ability to identify “V,” Wire stated she had seen the intruders earlier in the
evening at the party and she recognized their voices.  She further testified
that the intruders’ faces were not completely covered with the white cloth when
they entered the home.   

On cross-examination, Wire admitted that she was unable
to identify anyone in the photographic lineups and she did not give a physical
description of the intruders, other than their race, in her written statement. 
She also acknowledged that once she was ordered to the floor during the incident
she never looked up.  She further acknowledged that Rogers was the only African-American
male in the courtroom wearing an orange detention center uniform.  She
also admitted that she had:  seen Rogers at a bond hearing; been informed by
an investigating officer that Rogers had been arrested; read newspaper articles
regarding the incident; and spoken with Wendell about the incident.

Detectives Sam Roser and Matthew Averill, investigating
officers, testified that they interviewed Wire after the incident and showed
her the photographic lineups.  Roser testified that Wire told him that she knew
the intruders were African-American because their masks were partially open. 
She also told Roser that she identified “V” by his braided hairstyle.

At the conclusion of the testimony, Rogers’s counsel
argued Wire’s in-court identification should be suppressed given:  Wire gave
no physical description of the intruders after the incident; she could not identify
Rogers in the photographic lineups; she had seen Rogers at a bond hearing; and
Rogers was the only African-American male in the courtroom wearing an orange
detention suit.  The judge denied the motion and ruled Wire’s identification
was admissible.

In a subsequent hearing, the judge heard testimony regarding Wendel’s identification
of Rogers.  Wendell testified that at the time of the incident she recognized
Rogers as one of the intruders because his mask fell down when he entered the
home.  She also knew him as the man who had introduced himself at the party. 
Wendell admitted that she had not been able to identify Rogers in any of the
photographic lineups.  During her testimony, Wendell identified Rogers by pointing
to him and describing his attire as an orange jumpsuit.  On cross-examination,
she acknowledged that she had seen Rogers at a prior hearing and had read about
the incident in the newspaper.

After the testimony concluded, Rogers’s counsel moved to suppress Wendell’s
identification.  He argued the in-court identification procedure was suggestive
in that it was the equivalent of an impermissible “show-up” procedure.  Additionally,
he contended Wendell’s identification was not reliable on the grounds:  she
could not identify Rogers in a photographic lineup; she had seen Rogers at prior
court proceedings; she had reviewed newspaper articles regarding the incident;
and she had discussed the incident with the other victims as well as her father,
who had collected the newspaper articles.       

The judge denied Rogers’s motion to exclude Wendell’s in-court identification. 
Aside from addressing the reliability of Wendell’s identification, the judge
also found Rogers could not claim undue prejudice from the identification of
him in court given the fact that his counsel chose not to use an alternate procedure,
i.e., placing other African-American males with similar characteristics
to Rogers at the defense table or in the courtroom.

At trial, both Wendell and Wire testified regarding
the incident and identified Rogers as the man who shot the two victims.  They
also identified Rogers in the courtroom.

Toby Reischl testified Rogers was at the party and was introduced as “V.” 
Although he could not positively identify the intruders, he testified that one
of the intruders was referred to as “V.”  In addition to this testimony and
the testimony of the investigating officers, the State introduced, over the
objection of defense counsel, a note allegedly written by Rogers to his co-defendant
McKinnon while the two were incarcerated.

The jury convicted Rogers of two counts of murder, five counts of kidnapping,
one count of armed robbery, and one count of first-degree burglary.  The judge
sentenced Rogers to life imprisonment for each count of murder and the first-degree
burglary charge, consecutive thirty-year terms for three of the kidnapping charges,
[2] and a concurrent term of twenty-five years for armed robbery.  Rogers
appeals.

DISCUSSION

I. 

Rogers argues the trial judge erred in admitting the in-court identifications
of Wire and Wendel.    

“Generally, the decision to admit an eyewitness identification is at the trial
judge’s discretion and will not be disturbed on appeal absent an abuse of such,
or the commission of prejudicial legal error.”  State v. Moore, 343 S.C.
282, 288, 540 S.E.2d 445, 448 (2000).  “However, an eyewitness identification
which is unreliable because of suggestive line-up procedures is constitutionally
inadmissible as a matter of law.”  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.”  State v. Brown, 356 S.C. 496,
502, 589 S.E.2d 781, 784 (Ct. App. 2003).  “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.” Id. 
Suggestiveness alone, however, does not require the exclusion of evidence. 
State v. Stewart, 275 S.C. 447, 450, 272 S.E.2d 628, 629 (1980). 

          “To determine the admissibility of an identification,
the court must determine (1) whether the identification process was unduly suggestive
and (2) if so, whether the out-of-court identification was nevertheless so reliable
that no substantial likelihood of misidentification existed.”  State v. Cheeseboro,
346 S.C. 526, 540, 532 S.E.2d 300, 308 (2001), cert. denied, 535 U.S.
933 (2002).  Furthermore, as reliability is the most important factor in determining
the admissibility of identification testimony, the key inquiry is whether under
all the circumstances the identification was reliable even though the confrontation
procedure may have been suggestive.  State v. McCord, 349 S.C. 477, 481,
562 S.E.2d 689, 691 (Ct. App. 2002); State v. Blassingame, 338 S.C. 240,
251, 525 S.E.2d 535, 541 (Ct. App. 1999).

Several factors should be considered in evaluating the totality of the circumstances
to determine the likelihood of a misidentification:

(1) the witness’s opportunity to view the perpetrator at the time of the
crime, (2) the witness’s degree of attention, (3) the accuracy of the witness’s
prior description of the perpetrator, (4) the level of certainty demonstrated
by the witness at the confrontation, and (5) the length of time between the
crime and the confrontation.

McCord, 349 S.C. at 481, 562 S.E.2d at 691.  “Only
after a determination as to the reliability of a witness’ identification has
been made by the trial court may the witness testify before the jury.”  Moore,
343 S.C. at 289, 540 S.E.2d at 449.

Although there are questions and apparent inconsistencies involved in Wire’s
and Wendel’s in-court identifications, we do not believe the trial judge abused
his discretion in admitting their testimony.  Specifically, the judge applied
the correct standard in determining the admissibility of the testimony and there
is evidence to support his decision.  See State v. Wilson, 345
S.C. 1, 5-6, 545 S.E.2d 827, 829 (2001) (An abuse of discretion occurs when
the conclusions of the circuit court either lack evidentiary support or are
controlled by an error of law.).

Initially, we find the fact that neither Wire nor Wendel could identify Rogers
in a photographic lineup is not dispositive of whether their identifications
were admissible.  See McCord, 349 S.C. at 483, 562 S.E.2d at 692
(“The fact that a witness is unable to make a positive identification from a
photo array does not negate the reliability of their positive in-court identification.”
(quoting State v. Blanchard, 920 S.W.2d 147, 149 (Mo. Ct. App. 1996)));
State v. Scipio, 283 S.C. 124, 126-27, 322 S.E.2d 15, 17 (1984) (finding
in-court identification of defendant by victim was admissible even though victim
failed to identify defendant in photographic lineup). 

Similarly, the fact that the witnesses viewed Rogers at a bond hearing did
not preclude a finding that their in-court identification was reliable.  See
State v. Cunningham, 275 S.C. 189, 193, 268 S.E.2d 289, 291 (1980) (holding
victim’s in-court identification was admissible even though victim saw the defendant
at a preliminary hearing prior to the in-court identification); State v.
Covington, 226 S.E.2d 629, 638 (N.C. 1976) (“[T]he viewing of a defendant
in the courtroom during the various stages of a criminal proceeding by witnesses
who are offered to testify as to identification of the defendant is not, of
itself, such a confrontation as will taint an in-court identification unless
other circumstances are shown which are so ‘unnecessarily suggestive and conducive
to irreparable mistaken misidentification’ as would deprive defendant of his
due process rights.” (quoting State v. Haskins, 178 S.E.2d 610, 612 (N.C.
1971))).

Turning to the requisite identification factors, we find there is evidence
to support the judge’s conclusion.  Both witnesses observed Rogers in a social
setting for several hours before the incident.  Wire testified that she was
able to identify Rogers because she had seen him earlier and his face was not
completely covered when he entered the home.  Wendel also testified that she
was able to immediately recognize Rogers when he returned to the home because
she saw his face.  Additionally, in her written statement, Wendel gave a detailed
description of the incident.  She also provided physical descriptions of “V”
as well as the other intruder.  Furthermore, given the witnesses were held at
gunpoint their degree of attention would most likely have been acute.  Although
a significant amount of time elapsed, approximately three years, between the
incident and the hearing concerning the in-court identification testimony, both
witnesses were certain in their in-court identifications of Rogers.    

Admittedly, Wire did not provide a description
of the intruders in her written statements beyond describing them as “two black
males.”  However, any uncertainty as to the identification testimony went to
the weight of the evidence and not its admissibility.  See State v.
Distance, 594 S.E.2d 221, 226 (N.C. Ct. App. 2004) (“[A]ny uncertainty in
an in-court identification goes to the weight and not the admissibility of the
testimony.”).  This evidence was then for the jury to weigh.  See State
v. Stewart, 275 S.C. 447, 451, 272 S.E.2d 628, 630 (1980) (recognizing that
jury is to weigh identification testimony that has some questionable feature).

Finally, even if the in-court identifications were erroneously admitted, particularly
that of Wire, any error would not require reversal.  See State v.
Simmons, 308 S.C. 80, 83, 417 S.E.2d 92, 94 (1992) (stating “under certain
circumstances, if the identification is corroborated by either circumstantial
or direct evidence, then the harmless error rule might be applicable”); State
v. Thompson, 276 S.C. 616, 620-21, 281 S.E.2d 216, 219 (1981) (recognizing
admission of improper in-court identification may be harmless error where the
evidence is merely cumulative to independent and overwhelming evidence of guilt),
habeas corpus granted by Thompson v. Leeke, 590 F. Supp. 110 (D.S.C.
1984) (finding improper in-court identification did not constitute harmless
error where:  robbery victim was the only eyewitness; victim could not identify
perpetrator on two occasions; investigating officer pointed out defendant as
the man who robbed the victim; victim, at trial, was “almost positive” that
defendant was the perpetrator; and the only other testimony identifying defendant
was that of his accomplice and his accomplice’s wife), aff’d, 756 F.2d
314 (4th Cir. 1985).  

Because the in-court identification testimony was
not the only evidence identifying Rogers, any error would be harmless.  Here,
Wire, Wendel, and Toby Reischl all testified that they believed Rogers was the
intruder who shot the victim because Rogers introduced himself to them at the
party as “V,” and each person heard the second intruder say “Don’t do it V.” 
Wire also testified she recognized the intruders from earlier in the evening
by their voices.  See Stewart, 275 S.C. at 451, 272 S.E.2d at
630 (finding witnesses’ voice identification of defendant was admissible as
to the issue of the reliability of the in-court identification).  Rogers does
not challenge this evidence on appeal.  Additionally, Wendel was able to identify
Rogers’s co-defendant by the clothing he had worn during the party.  Based on
the foregoing, we affirm the judge’s decision to admit the identification testimony.

II.

Rogers asserts the trial judge erred in refusing to suppress the note allegedly
written by him to his co-defendant while incarcerated.  In support of this assertion,
he contends the note was obtained pursuant to an illegal arrest.  Alternatively,
he argues that even if the note was not fruit of the illegal arrest, it should
have been excluded as being more prejudicial than probative.

Prior to trial, Rogers’s counsel moved to exclude any
inculpatory statements made by Rogers while illegally detained under the coroner’s
warrant.  Because the coroner’s warrant was invalid and the State did
not have probable cause to arrest Rogers at the time he confessed to shooting
the victims, counsel moved to suppress the admission as “fruit of the poisonous
tree.”  See Taylor v. Alabama, 457 U.S. 687, 690 (1982) (“[A]
confession obtained through custodial interrogation after an illegal arrest
should be excluded unless intervening events break the causal connection between
the illegal arrest and the confession so that the confession is ‘sufficiently
an act of free will to purge the primary taint.’” (quoting Wong Sun v. United
States, 371 U.S. 471 (1963))).

After a hearing, the trial judge granted Rogers’s motion.  He found that at
the time the statement was made the State lacked probable cause to arrest Rogers. 
He further held the coroner’s warrant was invalid, as conceded by the State,
given it was issued without legal authority.  Because the State “failed to prove
that the taint of the Fourth Amendment violation was purged,” the judge suppressed
all of the alleged statements as the “fruit of the poisonous tree.”

Based on this earlier ruling, Rogers’s counsel objected
at trial to the admission of the note allegedly written by Rogers to co-defendant
West McKinnon.  Counsel argued the note was not relevant and even if found to
be relevant, admitting it into evidence would be unfairly prejudicial.  He asserted
there was no indication who wrote the letter or who was the intended recipient.
Additionally, counsel contended the note should be excluded as evidence obtained
from Rogers’s illegal detention under the coroner’s warrant.  He asserted that
the magistrate’s warrant, which was issued after the coroner’s warrant, did
not cure the Fourth Amendment violation because this warrant would not have
been obtained but for the information illegally obtained under the coroner’s
warrant.  The trial judge denied the motion, finding the note was admissible
given it was volunteered and Rogers was not being questioned at the time it
was found. 

Officer Richard Rivers of the Beaufort County Detention
Center was then permitted to testify that on January 22, 1999, he saw Rogers
slip a magazine into an adjoining cell.  The magazine was retrieved and the
handwritten note was found stuck between the pages.  A South Carolina Law Enforcement
Division fingerprint analyst found eleven prints on the note, eight of which
matched those of Rogers.  Phil  Foote, another Beaufort County Corrections Officer,
testified that West McKinnon was in the cell in which Rogers placed the magazine.  

The solicitor read the note as follows:

“What did you tell Mrs. Wilson (the Public Defender’s investigator)?  She
said our stories are f---ed up.  I told her that after we left P sh-- you
drop them” – up in brackets again – “(Cee and Bro) off at C sh-- and drop
me off in Saxonville at luck sh-- about 1 a.m. or later.  Then I called you
that morning and you took me to Lady’s Island with CAP about 7 or 8 a.m. 
You gotta f---ing holla at me less you done told these crackas you was there
at the time of the sh--, what?  We gotta have our stories “top of the line”,
unquote.  (Flush this sh-- – rip it up first*) (*Write me back*).”

“The fruit of the poisonous tree doctrine holds that
where evidence would not have come to light but for the illegal actions of the
police, and the evidence has been obtained by the exploitation of that illegality,
the evidence must be excluded.”  State v. Plath, 277 S.C. 126, 134, 284
S.E.2d 221, 226 (1981) (citing Wong Sun v. United States, 371 U.S. 471
(1963)), overruled on other grounds by State v. Short, 333 S.C.
473, 511 S.E.2d 358 (1999), and State v. Collins, 329 S.C. 23, 495 S.E.2d
202 (1998).  “Even if the arrest was illegal, the fruit of the poisonous tree
doctrine will not apply to a confession if it is freely and voluntarily given.” 
Id. at 134-35, 284 S.E.2d at 226. 

Even assuming Rogers was illegally detained when the note was seized and that
its contents constituted a confession, we find the note was not the fruit of
the illegal arrest.  Our decision is based on our supreme court’s holding in
State v. Funchess, 255 S.C. 385, 179 S.E.2d 25 (1971), cert. denied,
404 U.S. 915 (1971).  In Funchess, the court directly confronted this
issue, stating:

We conclude and hold that every statement or confession made by a person
in custody as the result of an illegal arrest, is not involuntary and inadmissible,
but the facts and circumstances surrounding such arrest and the in-custody
statement should be considered in determining whether the statement is voluntary
and admissible. Voluntariness remains as the test of admissibility.

Id. at 391, 179 S.E.2d at 28.  

In the instant case, there is no evidence that the note was the product of
questioning by law enforcement.  Instead, it is clear the note was produced
and passed along voluntarily.  Moreover, at the time the note was written Rogers
had been served with the magistrate’s warrant and apparently had spoken with
a public defender.  Thus, there were intervening acts that broke any causal
connection between the note and the illegal arrest.  Accordingly, we find the
trial judge was correct in concluding the note was not the fruit of the illegal
arrest.

Furthermore, we disagree with Rogers’s contention that the note was not relevant
and was unfairly prejudicial.  While Rogers argues the note is too vague to
be admitted into evidence, we believe the note constitutes circumstantial evidence
of Rogers’s guilt and was not so prejudicial as to outweigh it probative value. 
See Rule 401, SCRE (“‘Relevant evidence’ means evidence having any tendency
to make the existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be without the evidence.”);
Rule 403, SCRE (“Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice.”).     

CONCLUSION

Based on the foregoing, we affirm the admission of the in-court identifications
of Rogers as well as the admission of the note written while Rogers was incarcerated.

AFFIRMED.

HUFF and STILWELL, JJ. and CURETON, AJ., concur.

[1] Neil v. Biggers, 409 U.S. 188 (1972) (wherein the United States
Supreme Court developed a two-prong inquiry to determine the admissibility
of an out-of-court identification). 

[2]   Although the jury convicted Rogers of five counts of kidnapping,
which included the two counts involving the murder victims, the judge apparently
declined to sentence Rogers for the remaining kidnapping charges given he
was also convicted of the murders.  See State v. Perry, 278
S.C. 490, 495, 299 S.E.2d 324, 327 (1983), cert. denied, 461 U.S. 908
(1983) (holding, pursuant to section 16-3-910, life imprisonment sentence
for kidnapping murder victim was precluded where defendant was sentenced to
life imprisonment for murder).