State v. Whyzdom A. L. Douse

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.

Whyzdom Antonio Lee Douse, Appellant.

Appellate Case No. 2021-000607

Appeal From Aiken County
Clifton Newman, Circuit Court Judge

Unpublished Opinion No. 2023-UP-245
Submitted June 5, 2023 – Filed June 21, 2023

AFFIRMED

Chief Appellate Defender Robert Michael Dudek, of
Columbia, for Appellant.

Attorney General Alan McCrory Wilson, Deputy
Attorney General Donald J. Zelenka, Senior Assistant
Deputy Attorney General Melody Jane Brown, and
Assistant Attorney General Julianna E. Battenfield, all of
Columbia; and Solicitor John William Weeks, of Aiken,
for Respondent.
PER CURIAM: Whyzdom Antonio Lee Douse appeals his conviction for murder
and sentence of thirty-three years' imprisonment. On appeal, Douse argues the trial
court erred by failing to suppress evidence of an out-of-court eyewitness
identification from a single photo. We affirm pursuant to Rule 220(b), SCACR.

During the Neil v. Biggers 1 hearing, the eyewitness, Keyshawn Davis, testified he
was in a car with the victim, stopped at an intersection, when a red vehicle with
two men inside pulled alongside and fired shots into their car. Davis testified that
when he was first interviewed by police, he indicated he thought he knew the two
men in the red vehicle but did not provide police any names. He explained that
following the police interview, he sought information from friends regarding who
the red vehicle belonged to, and when he learned who the owner was, he asked a
friend to ask the owner if her boyfriend—Douse—had been driving her vehicle at
the time of the shooting. According to Davis, when police next interviewed him a
few hours after the incident, he told them Whyzdom Douse and Harold Bates were
the men he saw in the red vehicle. Subsequently, during a third interview, police
showed Davis a single photo and asked if it was a photo of Douse.

We hold the trial court did not abuse its discretion by failing to suppress the
out-of-court identification. We note Davis, on his own initiative, sought
information from others which ultimately led to Davis providing Douse's name to
police. The subsequent single photo police showed to Davis, although it generally
would be considered unduly suggestive, was merely confirmatory because the
witness had prior knowledge of the accused from attending school together, and he
had already provided Douse's full name to police. 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 [court'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."); State v. Traylor, 360
S.C. 74, 81, 600 S.E.2d 523, 526 (2004) ("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."); State v. Moore,
343 S.C. 282, 287, 540 S.E.2d 445, 448 (2000) ("Single person show-ups are
particularly disfavored in the law."); id. at 287, 540 S.E.2d at 447 (stating courts
engage in the two-prong inquiry set forth in Biggers to determine whether an
out-of-court identification is admissible); State v. Wyatt, 421 S.C. 306, 310, 806

1
409 U.S. 188 (1972).
S.E.2d 708, 710 (2017) ("First, the court must determine whether the identification
resulted from 'unnecessarily suggestive' police identification procedures."); id. ("If
the court finds the police procedures were not suggestive, or that suggestive
procedures were necessary under the circumstances, the inquiry ends there and the
court need not consider the second prong."); id. at 311, 806 S.E.2d at 710 ("If,
however, the court determines the procedures were both suggestive and
unnecessary, the court must then determine 'whether the out-of-court identification
was nevertheless so reliable that no substantial likelihood of misidentification
existed.'" (quoting State v. Liverman, 398 S.C. 130, 138, 727 S.E.2d 422, 426
(2012))); State v. Mansfield, 343 S.C. 66, 78, 538 S.E.2d 257, 263 (Ct. App. 2000)
("Reliability is the linchpin in determining the admissibility of identification
testimony."); Liverman, 398 S.C. at 141-42, 727 S.E.2d at 427 ("[T]he fact that an
identification witness knows the accused remains a significant factor in
determining reliability. The suggestive nature of a show-up is mitigated by the
witness's prior knowledge of the accused. We concur with those jurisdictions that
consider the show-up identification procedure, normally considered unduly
suggestive, as merely confirmatory.").

AFFIRMED. 2

KONDUROS and VINSON, JJ., and LOCKEMY, A.J., concur.

2
We decide this case without oral argument pursuant to Rule 215, SCACR.