State v. Scott

THIS OPINION HAS NO
PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY
PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State, Respondent,

v.

Curtis Scott, Appellant.

Appeal From Jasper County

 Jackson V. Gregory, Circuit Court Judge

Unpublished Opinion No. 2008-UP-067

Submitted December 1, 2007 – Filed January
23, 2008   

AFFIRMED

Appellate Defender Eleanor Duffy Cleary, of Columbia, for
Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General Harold M. Coombs,
Jr., Senior Assistant Attorney General Harold M. Coombs, Jr., all of Columbia;
and Solicitor I. McDuffie Stone, III, of Beaufort, for Respondent.

PER CURIAM:  Curtis Scott was convicted of
attempted armed robbery and sentenced to thirteen years in prison.  He appeals,
arguing the trial court erred in admitting the in-court identifications of him
because they were based upon an unduly suggestive pretrial identification
procedure and were not otherwise reliable.  We affirm.[1]   

I.

Scott was charged with attempting to rob Miguel Leyva
of his wallet in the parking lot of a Food Lion in Ridgeland, South Carolina. 
Both Leyva and Shawnricka Burrison, a store employee who observed the incident,
picked Scott out of a photographic lineup shortly after the incident, and they
again identified Scott at trial as the perpetrator. 

Prior
to trial, Scott made a motion to exclude the identifications of the two
eyewitnesses.  During the in limine hearing on the motion, Leyva, who speaks
little English, testified through an interpreter that a man approached him in
the parking lot and asked him for a cigarette, and he told the man he didn’t
smoke.  The man then got inside Leyva’s car, pulled a gun on him, and asked for
his wallet.  Leyva opened the car door, hit the man with his arm, and then ran
towards the Food Lion while calling 9-1-1 on his cell phone.  Burrison
testified that she had walked outside the store on her break when she observed
the conflict between Leyva and the other man.  She stated the perpetrator was
wearing a red jersey shirt and blue jeans and appeared to be harassing the victim. 
Burrison stated once the victim appeared to be attracting attention, the
perpetrator shoved something into the waistband of his pants and then ran
behind the store.  Burrison advised her store manager about the problem and the
manager called the police.  Burrison stated she had seen the perpetrator before
because he had come into the store on prior occasions, but she did not know his
name. 

The police prepared
two photo lineups.  The first lineup, prepared shortly after the incident,
consisted of photos of people the police thought were likely to have committed
the crime.  Scott’s photo was not included in the first lineup.  A few days
later, after receiving several tips, the police presented seven photos in a
stack to Leyva and Burrison and each positively identified Scott as the
perpetrator.  The officer who presented the photos, Michael Ballenski,
testified that he did not suggest anything to the witnesses when they viewed
the photos and simply handed them the stack of photos and asked if the person
who had attempted the robbery was in any of the photos.  He stated Burrison
“immediately” identified Scott as the person she saw at the store.  Burrison
signed the back of the photo to indicate she had identified Scott.  The officer
stated Leyva was then shown the photos.  Burrison was not present.  Once Leyva
identified Scott as the person who had attempted to rob him, the photo was then
turned over for Leyva to sign.  The officer explained that the witnesses were
not together when the identifications were made, and Leyva could not see
Burrison’s identification before he made his own identification of Scott. 

At the in limine
hearing, Burrison testified that she was handed a stack of photos and they were
not in any particular order.  Burrison stated she looked at all of them and
recognized Scott as the robber.  Burrison stated the officer stood back while
she looked at the photos so she could not ask him any questions.  Burrison
stated there was nothing about any of the photographs that focused particular
attention on any of them and that she “reviewed them all the same.”  She stated
her identification was based on what she had seen during the incident.    

Leyva testified
through an interpreter and stated when he saw the second set of photos the
officer stated only, “I’m bringing you a couple of more pictures to see if you
can identify the person that did whatever happened.”  When asked if there was
anything said or done to make one photo any more or less special, Leyva stated
“[t]hey were all normal pictures.”  Leyva said he recognized Scott in the
second set of photographs and after he identified Scott, the officer then told
him he needed to sign the back of the photo.  Leyva stated he did not see the
back of the photo prior to turning it over to sign it. 

The trial judge,
while noting the police could have done some things better, found “as a fact
that under . . . all the circumstances of this case . . . this identification
by both witnesses was reliable” and ruled that their testimony as to identity
would be admissible at trial.  Scott was subsequently convicted as charged.

II.

On appeal, Scott contends the trial judge erred in
admitting the in-court identifications of him because they were based upon an
unduly suggestive pretrial identification procedure and the identifications
were not otherwise reliable under Neil v. Biggers, 409 U.S. 188 (1972).

“The
United States Supreme Court has developed a two-prong inquiry [in Neil v.
Biggers] to determine the admissibility of an out-of-court identification.”  State v. Brown, 356 S.C. 496, 503, 589 S.E.2d 781, 784 (Ct.
App. 2003).  “First, a court must ascertain whether the identification process
was unduly suggestive.”  Id.  “The court must next decide whether the
out-of-court identification was nevertheless so reliable that no substantial
likelihood of misidentification existed.”  Id.

 “Even assuming an identification procedure is suggestive, it need not be excluded so long as, under all the
circumstances, the identification was reliable notwithstanding the suggestiveness.”  State v. Traylor, 360
S.C. 74, 82, 600 S.E.2d 523, 527 (2004).  “The inquiry must focus upon
whether, under the totality of the circumstances, there was a substantial
likelihood of irreparable misidentification.”  Id.  “The following
factors should be considered in evaluating the totality of the circumstances to
determine the likelihood of a 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.”  Id.

“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.”  Brown, 356 S.C. at
502, 589 S.E.2d at 784.

Scott argues the
photos were unduly suggestive because Scott “was the only person in the photos
wearing a white undershirt, was the only one who[se] photo was vertically
oriented, was the only one in front of a bulletin board that read “Secure at
all time,” was in the only photo without a computer-generated name printed on
his photo, and was depicted in the largest photograph.  Scott also contends the
paper is lightweight so Burrison’s signature could “easily be seen by Leyva,
influencing his choice.”  Finally, Scott contends Burrison knew of two of the
people in the photo lineup and that three of them shared her same last name.    

After reviewing the
photo lineup, it appears the trial judge properly exercised his discretion in
ruling the identifications were admissible.  Scott’s arguments, while numerous,
are ultimately without merit.  The photos are all on plain paper that is 8½ by
11 inches, one sheet for each suspect, and each sheet has two photos of that
suspect, a front view and a side view.  Although Scott’s photos are oriented in
a different direction on the page from the majority, another suspect’s photos
also are oriented differently from the others and there is a double border
around the photos, so there is nothing remarkable about Scott’s photos.  As
noted by both witnesses, Scott’s photos appear to be normal and nothing makes
his stand out from the others. 

Further,
contrary to Scott’s argument, his photo is not larger than all of the others. 
Rather, it is the same size as at least one other suspect, and there is not
much difference between the sizes, in any event.  Moreover, his is not the only
photo that does not have a name on it.  Scott is wearing a white undershirt,
that is true, but all of the other individuals except one are wearing a white
undershirt with another T-shirt over it.  In fact, one individual is wearing a
red T-shirt, the same color as the perpetrator.  The bulletin board Scott
refers to is so blurry as to be unreadable, and the wording he references is,
for the most part, obscured behind Scott’s head and does not actually appear in
full on the photo as he alleges.  As to the signatures, the only evidence in
the record is that Leyva was not present when Burrison made her identification
and he did not see Burrison’s identification before making his own identification
of Scott. 

The
only arguable issue with the lineup appears to be the fact that people with the
same last name as one of the witnesses appeared in the lineup.  There are
photos of a Marcus Burrison, a Nathaniel Burrison, and a Gil Nathaniel Burrison. 
Burrison stated she was not related to Marcus Burrison and she knew of the
others.  (It is unclear from the record whether the last two might even be the
same person as the names and photos are similar and Scott notes in his brief
that Nathaniel Burrison and Gil Nathaniel Burrison appear to be the same
person.)  However, while the lineup could arguably be deemed suggestive, we
hold it is not unduly suggestive, which is the applicable standard.  See State v. Turner, 373 S.C. 121, 644 S.E.2d 693 (2007) (stating the fact
that a suspect’s photo is in color and the others are in black and white or that
the suspect’s photo is larger or in a different position on the page is not
unduly suggestive; the court noted the trial judge’s observation that there
will always be differences found in photos); State v. Govan, 372
S.C. 552, 643 S.E.2d 92 (Ct. App. 2007) (stating although the showup
identification procedure in that case was suggestive, it was not unduly
suggestive under the test articulated in Neil v. Biggers).

Moreover,
even assuming the photos are unduly suggestive, however, the inquiry then
focuses on whether, under the totality of the circumstances, they were
nevertheless reliable.  It is evident from the testimony of the witnesses that
they each had ample opportunity to view Scott, Burrison had even seen him at
the store before, and they were uniformly certain in their identifications. 
The incident occurred at close range in broad daylight, and both Leyva and
Burrison were focused on the acts of the perpetrator.  The officer stated
Burrison “immediately” identified Scott after viewing the photos, and there is
no evidence that Leyva was influenced in his selection of Scott.  As noted by
the trial judge, the officers certainly could have done some things differently
in preparing the photo lineup, but in looking at the totality of the
circumstances there is not a very substantial likelihood of misidentification
in this case.  Accordingly, the trial court did not abuse its discretion in
admitting the identifications of Scott.

III.

Scott’s conviction and sentence are,
therefore,

AFFIRMED.

HEARN, C.J., and KITTREDGE and THOMAS, JJ., concur.

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