State v. Powell

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.

Marion B. Powell, Appellant.

Appellate Case No. 2013-002537

Appeal From Beaufort County
Brooks P. Goldsmith, Circuit Court Judge

Unpublished Opinion No. 2016-UP-297
Submitted June 1, 2016 – Filed June 15, 2016

AFFIRMED

Christopher James Moore, of Richardson Patrick
Westbrook & Brickman, LLC, and Chief Appellate
Defender Robert Michael Dudek, both of Columbia, for
Appellant.

Attorney General Alan McCrory Wilson and Assistant
Attorney General Jennifer Ellis Roberts, both of
Columbia; and Solicitor Isaac McDuffie Stone, III, of
Bluffton, for Respondent.
PER CURIAM: Affirmed pursuant to Rule 220(b), SCACR, and the following
authorities: State v. Liverman, 398 S.C. 130, 137, 727 S.E.2d 422, 425 (2012) ("In
criminal cases, the appellate court sits to review errors of law only."); id. at 137-38,
727 S.E.2d at 425 ("Whether an eyewitness identification is sufficiently reliable is
a mixed question of law and fact."); id. at 138, 727 S.E.2d at 425 ("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."); State v. Traylor,
360 S.C. 74, 81, 600 S.E.2d 523, 526-27 (2004) ("The United States Supreme
Court has developed a two-prong inquiry to determine the admissibility of an out-
of-court identification.[1] First, a court must ascertain whether the identification
process was unduly suggestive. The court must next decide whether the out-of-
court identification was nevertheless so reliable that no substantial likelihood of
misidentification existed."); Liverman, 398 S.C. at 138, 727 S.E.2d at 425
("Generally, the decision to admit an eyewitness identification is at the trial
[court's] discretion and will not be disturbed on appeal absent an abuse of
discretion.").

AFFIRMED.2

HUFF, SHORT, and THOMAS, JJ., concur.

1
See Neil v. Biggers, 409 U.S. 188, 199-200 (1972) (holding the court should
consider the following factors under the totality of the circumstances when
evaluating the likelihood of misidentification: "[1] the opportunity of the witness to
view the criminal at the time of the crime, [2] the witness' degree of attention, [3]
the accuracy of the witness' prior description of the criminal, [4] the level of
certainty demonstrated by the witness at the confrontation, and [5] the length of
time between the crime and the confrontation").
2
We decide this case without oral argument pursuant to Rule 215, SCACR.