State v. Michael Dunham

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.

Michael Barney
Dunham, Appellant.

Appeal From Charleston County

Larry R. Patterson, Circuit Court Judge

Unpublished Opinion No.  2010-UP-191

Submitted March 1, 2010 – Filed March 4,
2010

AFFIRMED

Joshua Snow Kendrick, 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 J. Anthony Mabry, all of
Columbia; and Solicitor Scarlett A. Wilson, of Charleston, for Respondent.

PER CURIAM:  Michael
Barney Dunham appeals his conviction for murder, arguing the trial court erred
in admitting witness testimony regarding a photographic lineup and the
witness's subsequent in-court identification of him as the shooter.  We affirm.

"The United States
Supreme Court has developed a two-prong inquiry to determine the admissibility
of an out-of-court identification."  State v. Turner, 373 S.C. 121,
127, 644 S.E.2d 693, 696 (2007) (citing Neil v. Biggers, 409 U.S. 188 (1972)). 
First, a court must ascertain whether the identification process was unduly
suggestive.  Id.  Second, even if an identification procedure is
suggestive, it need not be excluded so long as, under all the circumstances,
the identification was reliable notwithstanding the suggestiveness.  Id. 
Here, no evidence in the record suggests the photographic lineup was
suggestive.  Because the first prong of the Biggers analysis is not
satisfied in this case, we do not proceed to the second prong to consider the
reliability of the identification.  Accordingly, the trial court correctly
admitted witness testimony regarding the photographic lineup and the witness's
subsequent in-court identification of Dunham as the shooter.  

AFFIRMED.[1]

HUFF, THOMAS,
and KONDUROS, JJ., concur. 

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