State v. David C. Robinson

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.

David Crockett Robinson, Appellant.

Appellate Case No. 2021-001039

Appeal From Charleston County
R. Ferrell Cothran, Jr., Circuit Court Judge

Unpublished Opinion No. 2023-UP-384
Submitted November 1, 2023 – Filed December 6, 2023

AFFIRMED

Appellate Defender Kathrine Haggard Hudgins, of
Columbia, for Appellant.

Attorney General Alan McCrory Wilson, Senior
Assistant Attorney General David A. Spencer, and Senior
Assistant Attorney General Mark Reynolds Farthing, all
of Columbia; and Solicitor Scarlett Anne Wilson, of
Charleston, all for Respondent.

PER CURIAM: David Crockett Robinson appeals his convictions for armed
robbery and possession of a weapon during the commission of a violent crime and
concurrent sentences of twenty-seven years' imprisonment and five years'
imprisonment, respectively. On appeal, Robinson argues the trial court erred by
(1) admitting the victim's show-up identification and (2) failing to allow Robinson
to re-cross-examine the victim during a pretrial hearing. We affirm pursuant to
Rule 220(b), SCACR.
1. We hold the trial court did not abuse its discretion in admitting evidence of the
victim's out-of-court identification. See State v. Brown, 356 S.C. 496, 502, 589
S.E.2d 781, 784 (Ct. App. 2003) ("Generally, the decision to admit an eyewitness
identification is in the trial judge's discretion and will not be disturbed on appeal
absent an abuse of discretion, or the commission of prejudicial legal error."); State
v. Pagan, 369 S.C. 201, 208, 631 S.E.2d 262, 265 (2006) ("An abuse of discretion
occurs when the conclusions of the trial court either lack evidentiary support or are
controlled by an error of law."); Brown, 356 S.C. at 503, 589 S.E.2d at 784 ("The
United States Supreme Court has developed a two-prong inquiry to determine the
admissibility of an out-of-court identification. First, a court must ascertain whether
the identification process was unduly suggestive.") (citations omitted));
State v. Moore, 343 S.C. 282, 286, 540 S.E.2d 445, 447 (2000) ("A criminal
defendant may be deprived of due process of law by an identification procedure
which is unnecessarily suggestive and conducive to irreparable mistaken
identification"); id. at 287, 540 S.E.2d at 448 ("Single person show-ups are
particularly disfavored in the law."); State v. Govan, 372 S.C. 552, 558-59, 643
S.E.2d 92, 95 (Ct. App. 2007) ("Notwithstanding the inherent suggestiveness and
general disfavoring of one-on-one show-up identifications, they may be proper
where they occur shortly after the alleged crime, near the scene of the crime, as the
witness's memory is still fresh, where the suspect has not had time to alter his looks
or dispose of evidence, and the show-up may expedite the release of innocent
suspects and enable the police to determine whether to continue searching.").
Here, using a show-up identification was proper under the circumstances because it
was less than an hour from when the crime occurred, near the scene of the crime,
and the incident was still fresh in the victim's mind. This allowed police to quickly
determine whether they had the right individual and if not, set him free. Further,
they found the victim's phone on Robinson when they detained him, and his
clothes and appearance matched the victim's earlier description. See Govan, 372
S.C. 552, 559, 643 S.E.2d 92, 95 (Ct. App. 2007) (finding a show-up identification
was not unduly suggestive when "the show-up occurred within forty-five minutes
of the robbery and was held near the scene of the crime when the witness's memory
was still fresh, and the suspect was wearing clothing consistent with the clothing
described by the witness[] . . ."). Further, we find the trial court properly found the
identification was reliable and posed no substantial likelihood of irreparable
misidentification. See Brown, 356 S.C. at 503, 589 S.E.2d at 784 ("The court must
next decide whether the out-of-court identification was nevertheless so reliable that
no substantial likelihood of misidentification existed."); Moore, 343 S.C. at 287,
540 S.E.2d at 448 ("Although one-on-one show-ups have been sharply criticized,
and are inherently suggestive, the identification need not be excluded as long as
under all the circumstances the identification was reliable notwithstanding any
suggestive procedure. [The] inquiry, therefore, must focus upon whether, under
the totality of the circumstances, there was a substantial likelihood of irreparable
misidentification.") (alteration in original) (quoting Jefferson v. State, 425 S.E.2d
915, 918 (1992))); State v. Spears, 393 S.C. 466, 479-80, 713 S.E.2d 324, 331 (Ct.
App.)(2011) ("The following factors are to be considered in evaluating the totality
of the circumstances when determining the likelihood of 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.") (quoting State v. Turner, 373 S.C. 121, 127, 644 S.E.2d 693,
696-97 (2007)). Here, the robbery occurred during the daytime and the victim was
able to see the robber from close range; the victim testified she had a "good view
of the [perpetrator]'s face" during the robbery and was able to note distinguishing
features including his height, race, gender, and a distinct mark on his cheek despite
half his face being obscured by a bandana; the victim's prior description was
accurate; the victim confirmed the characteristics of the man detained matched the
robber and she was confident they were the same person, although she could not
see the mark on his cheek from inside the police car; the victim testified she was
very focused during the identification; and the identification took place within an
hour of the robbery.

2. We hold the trial court did not abuse its discretion in refusing to allow Robinson
an opportunity to re-cross-examine the victim because new matter was not
introduced on redirect examination. See Liberty Mut. Ins. Co. v. Gould, 266 S.C.
521, 533, 224 S.E.2d 715, 720 (1976) ("The right to, and scope
of, recross-examination is within the sound discretion of the trial court."); State v.
Johnson, 338 S.C. 114, 124, 525 S.E.2d 519, 524 (2000) ("[A] trial judge may
impose reasonable limits on cross-examination based upon concerns about, among
other things, harassment, prejudice, confusion of the issues, witness safety, or
interrogation that is repetitive or only marginally relevant."); Rule 611(d), SCRE
("A witness may be re-examined as to the same matters to which he testified only
in the discretion of the court, but without exception he may be re-examined as to
any new matter brought out during cross-examination."). The State's questions on
redirect examination were merely clarifying the victim's testimony that the officers'
comments related to the track tracking of her phone and the chatter on the radio did
not influence her identification.
AFFIRMED. 1

WILLIAMS, C.J., and HEWITT and VERDIN, JJ., concur.

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