State v. Pacheco

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.

Hector Mauricio
Pacheco, Appellant.

Appeal From Charleston County

J. Michelle Childs, Circuit Court Judge

Unpublished Opinion No. 2012-UP-041

Submitted November 1, 2011 – Filed January
25, 2012   

AFFIRMED

Deputy Chief Appellate Defender Wanda H.
Carter, of Columbia, for Appellant.

Attorney General Alan M. Wilson, Chief
Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General
Salley E. Elliott, and Assistant Attorney General Mark R. Farthing, all of Columbia;
and Solicitor Scarlett A. Wilson, of Charleston, for Respondent.

PER CURIAM:  Hector
Mauricio Pacheco appeals his convictions of two counts of armed robbery, strong
arm robbery, and three counts of kidnapping.  He argues the circuit court erred
in admitting an eyewitness's in-court identification after suppressing an
unduly suggestive out-of-court identification.  We affirm.[1]

"The admission or
exclusion of evidence is left to the sound discretion of the [circuit] court,
and the court's decision will not be reversed absent an abuse of
discretion."  State v. Liverman, 386 S.C. 223, 233, 687 S.E.2d 70,
75 (Ct. App. 2009) (citation omitted).  "An abuse of discretion occurs
when the decision of the [circuit] court is based upon an error of law or upon
factual findings that are without evidentiary support."  Id. (citation omitted).  "[W]hether an eyewitness identification is
sufficiently reliable is a mixed question of law and fact."  State v.
Moore, 343 S.C. 282, 288, 540 S.E.2d 445, 448 (2000).  "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."  Id. (citation omitted).

When assessing the
admissibility of an eyewitness identification "the primary evil to be
avoided is 'a very substantial likelihood of irreparable
misidentification.'"  Neil v. Biggers, 409 U.S. 188, 198 (1972)
(quoting Simmons v. United States, 390 U.S. 377, 384 (1968)).  An unduly
or unnecessarily suggestive confrontation procedure may deprive a defendant of
due process of law.  State v. Turner, 373 S.C. 121, 127, 644 S.E.2d 693,
696 (2007) (citation omitted).  However, "the admission of evidence of [an
unnecessarily suggestive procedure] without more does not violate due process."  Biggers, 409 U.S. at 198. 

If a confrontation procedure
is deemed unduly suggestive, a court must determine whether "under [the
totality of] the circumstances the identification was reliable notwithstanding
any suggestive procedure."  Moore, 343 S.C. at 287, 540 S.E.2d at
447-48 (citation 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.

Biggers, 409 U.S. at 199-200.

Here, we find the circuit
court did not err in admitting the eyewitness's in-court identification.  Despite
the undue suggestiveness of the confrontation procedure used by the police, the
in-court identification was reliable under the Biggers analysis.  The
eyewitness testified he was able to get a good look at his assailants over the
course of the five- to six-minute robbery.  While the nearly two-week period
between the robbery and the confrontation was considerable, his description of
his assailants after the robbery was detailed and consistent with the description
of Pacheco.  Finally, when the eyewitness identified Pacheco at the police
station, he was absolutely sure Pacheco was one of the men who robbed him.  Furthermore,
we find the circuit court's suppression of the out-of-court identification to
be consistent with the admission of the in-court identification, given the additional
testimony offered at trial.  See, e.g., State v. Smith, 337 S.C.
27, 32, 522 S.E.2d 598, 600 (1999) ("A pretrial ruling on the
admissibility of evidence is preliminary and is subject to change based on
developments at trial.").

AFFIRMED.

FEW, C.J., THOMAS and
KONDUROS, JJ., concur.

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