State v. Starks

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.

Dwayne Eddie Starks, Appellant.

Appellate Case No. 2013-000869

Appeal From Abbeville County
Thomas L. Hughston, Jr., Circuit Court Judge

Unpublished Opinion No. 2014-UP-490
Heard October 8, 2014 – Filed October 29, 2014

AFFIRMED

John Edward Robinson, of Charleston, and Chief
Appellate Defender Robert Michael Dudek, of Columbia,
for Appellant.

Attorney General Alan McCrory Wilson and Assistant
Attorney General Christina Catoe Bigelow, both of
Columbia, for Respondent.

FEW, C.J.: Dwayne Starks appeals his conviction for armed robbery and
possession of a deadly weapon during the commission of a violent crime. Starks
argues the trial court erred in refusing to suppress evidence of an out-of-court
identification of Starks by the sole eyewitness, Nakelia Williams. Starks contends
the evidence should have been suppressed because the one-man show-up
identification procedure used by police was unnecessarily suggestive and created a
substantial likelihood of misidentification under Neil v. Biggers, 409 U.S. 188, 93
S. Ct. 375, 34 L. Ed. 2d 401 (1972). We affirm.

On the night of February 27, 2012, Starks robbed a convenience store where
Williams worked as a clerk. Because Starks wore a ski mask during the robbery,
Williams did not see his face, but Williams testified she recognized his voice and
body build based on her prior knowledge of Starks as a regular customer of the
store. Immediately after the robbery, Williams called the police and told the
dispatcher she had been robbed and Starks was the person who did it. Shortly
thereafter—before the show-up—she told an investigating officer she was "robbed
by Dwayne Starks." One hour after the robbery, police brought Starks to the store
in the back seat of a patrol car, and Williams identified Starks after viewing his
face.

As to Starks' argument the trial court erred in finding the identification procedure
was not unnecessarily suggestive, we agree and find the trial court's ruling was
clearly erroneous. See State v. Moore, 343 S.C. 282, 287, 540 S.E.2d 445, 448
(2000) (stating "[s]ingle person show-ups are particularly disfavored in the law,"
and holding that "it is patent the show-up procedure used was . . . suggestive").

However, we question whether Biggers applies to the facts of this case. Williams
used one criterion—Starks' face—to identify Starks during the identification
procedure but used other criteria—Starks' voice and body build—to identify Starks
during the commission of the crime. Therefore, the reliability of Williams'
testimony that Starks committed the crime depended only upon the accuracy of her
recognition of Starks' voice and body build during the crime sequence, and did not
depend upon any likelihood of misidentification the police created when she
viewed Starks' face during the show-up procedure. See Biggers, 409 U.S. at 198,
93 S. Ct. at 381-82, 34 L. Ed. 2d at 410 ("It is the likelihood of misidentification
which violates a defendant's right to due process . . . ."). The show-up served the
primary purpose of identifying Starks as the person Williams knew before the
crime, and she identified him as the person who committed the crime based on her
prior knowledge of him—not as a result of suggestive police procedures. See State
v. Liverman, 398 S.C. 130, 138, 727 S.E.2d 422, 426 (2012) ("Due process
requires courts to assess . . . whether the identification resulted from unnecessary
and unduly suggestive police procedures . . . ." (emphasis added)). Compare
Liverman, 398 S.C. at 134-35, 140-41, 727 S.E.2d at 424, 427 (finding Biggers
applies where the witness saw the suspect's face during the crime and identified the
suspect upon viewing his face in a show-up) with State v. McGee, 408 S.C. 278,
286-87, 758 S.E.2d 730, 734-35 (Ct. App. 2014) (holding Biggers did not apply to
an identification because the "testimony related to seeing [the defendant] a year
before the [crime] and was for the purpose of showing that [the defendant] knew
[the victim]").

In any event, we find the trial court acted within its discretion in applying the
Biggers reliability factors and in determining the identification procedure "was
nevertheless so reliable that no substantial likelihood of misidentification existed."
Liverman, 398 S.C. at 138, 727 S.E.2d at 426 (citing Biggers, 409 U.S. at 199-200,
93 S. Ct. at 382, 34 L. Ed. 2d at 411). "Whether an eyewitness identification is
sufficiently reliable is a mixed question of law and fact." 398 S.C. at 137-38, 727
S.E.2d at 425. "Generally, the decision to admit an eyewitness identification is at
the trial judge's discretion and will not be disturbed on appeal absent an abuse of
discretion." 398 S.C. at 138, 727 S.E.2d at 425. "[T]he factors to be considered in
evaluating the likelihood of misidentification include the opportunity of the
witness to view the criminal at the time of the crime, the witness' degree of
attention, the accuracy of the witness' 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, 93 S. Ct.
at 382, 34 L. Ed. 2d at 411; see also Liverman, 398 S.C. at 138, 727 S.E.2d at 426
(listing factors).

In this case, the trial court considered all the Biggers factors and discussed its
findings as to those factors on the record. The trial court placed particular
emphasis on the fact that Williams knew Starks before the crime. See Liverman,
398 S.C. at 141, 727 S.E.2d at 427 ("[T]he fact that an identification witness
knows the accused remains a significant factor in determining reliability."). The
trial court's finding that the identification was sufficiently reliable is supported by
the evidence, and thus was not an abuse of discretion.

AFFIRMED.

LOCKEMY, J., concurs.

THOMAS, J., concurs in result only.