State v. Mack

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.

Lemar Thomas
Mack, Appellant.

Appeal From Charleston County

J. Derham Cole, Circuit Court Judge

Unpublished Opinion No. 2010-UP-550

Submitted December 1, 2010 – Filed
December 17, 2010

AFFIRMED

Appellate Defender Elizabeth A.
Franklin-Best, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster,
Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney
General Salley W. Elliott, and Assistant Attorney General William M. Blitch,
Jr., all of Columbia; and Solicitor Scarlett Anne Wilson, of Charleston, for
Respondent.

PER CURIAM:  Lemar
Thomas Mack appeals his convictions for kidnapping, armed robbery, and assault
and battery with intent to kill (ABWIK), arguing the circuit court erroneously
admitted an unduly suggestive photographic lineup and allowed an unreliable
in-court identification by the victim.  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.  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 decide 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 (citations 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.

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

Here, the circuit court did
not abuse its discretion when it admitted the photographic lineup and the
in-court identification of Mack.  The photographic lineup was not unduly
suggestive.   See State
v. Roberts, 522 S.E.2d 130, 133 (N.C. Ct. App. 1999) ("[T]he police's
inability to include individuals in the lineup that shared defendant's unique
physical appearance 'cannot be attributed to the officers or regarded as the
kind of rigged "suggestiveness" in identification procedures
[prohibited by due process].'" (citation omitted)); State v. Simmons,
384 S.C. 145, 168, 682 S.E.2d 19, 31 (Ct. App. 2009) (finding lineup
appropriate when the suspect's "ears were smaller than those of the other
individuals in the [lineup]").

Regardless of the
suggestiveness of the lineup, the circuit court's finding both the out-of-court
and in-court identifications were reliable under the totality of the
circumstances is reasonable.  First, the victim had multiple opportunities to
view the face of her assailant for extended periods of time.  Second, the
victim's proximity to her assailant, her status as victim, and her detailed
account of the event implies her focused attention on her assailant.  Third,
her descriptions of her assailant's height and age, notwithstanding his crossed
eye, are consistent with Mack's features at the time of his arrest.  Fourth, the
victim was confident enough Mack was her assailant to pick him "right
away."  Finally, her identification of Mack in the photographic lineup
occurred only two days after the crime.  These facts are sufficient for the
circuit court to reasonably find a misidentification substantially unlikely.  Accordingly, the decision of the circuit court is

AFFIRMED.

THOMAS,
PIEPER, and GEATHERS, JJ., concur.

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