State v. Anthony K. Mays

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.

Anthony Kwame Mays, Appellant.

Appellate Case No. 2019-001918

Appeal From Greenville County
Letitia H. Verdin, Circuit Court Judge

Unpublished Opinion No. 2022-UP-458
Submitted November 1, 2022 – Filed December 21, 2022

AFFIRMED

Appellate Defender Taylor Davis Gilliam, of Columbia,
for Appellant.

Attorney General Alan McCrory Wilson, Deputy
Attorney General Donald J. Zelenka, and Senior
Assistant Deputy Attorney General Melody Jane Brown,
all of Columbia; and Solicitor William Walter Wilkins,
III, of Greenville, all for Respondent.

PER CURIAM: Anthony Mays appeals his convictions and sentences for murder
and attempted murder. He argues a photo lineup presented to the surviving victim
was unduly suggestive because it only depicted one heavyset individual. He also
argues the surviving victim may not have been lucid when police showed him the
lineup in the hospital. We affirm.

As to Mays's argument that the photo lineup presented at the hospital depicted only
one heavyset individual and was therefore unduly suggestive, slight variations
among pictures in photo lineups alone do not render the procedure suggestive. See
State v. Simmons, 384 S.C. 145, 168, 682 S.E.2d 19, 31 (Ct. App. 2009) (finding
photo lineup was admissible, despite the assertion that it was unduly suggestive due
to one individual's ears being smaller than other individuals in the lineup); see also
State v. Turner, 373 S.C. 121, 127, 644 S.E.2d 693, 697 (2007) (finding photo lineup
was admissible, despite defendant's assertion that it was unduly suggestive due to
variations in the background colors on certain photos in the lineup). The photos in
the lineup "six-pack" contain multiple similarities including shape of face, amount
and formation of facial hair, braided hair of short-to-medium length, skin tone, and
photo cropping. In short, we hold the lineup does not present Mays in a manner
tending to emphasize his photo over the others and is not unduly suggestive.

Generally, when an identification procedure is deemed non-suggestive, there is no
need to evaluate the identification's reliability. See State v. Traylor, 360 S.C. 74,
82, 600 S.E.2d 523, 527 (2004) (evaluating reliability only after holding a lineup
was unduly suggestive); State v. Gambrell, 274 S.C. 587, 590, 266 S.E.2d 78, 81
(1980) (excluding an evaluation on reliability for a non-suggestive lineup).
However, for the sake of completeness, we will evaluate the identification's
reliability regardless of its non-suggestive nature.

Mays argues that the circumstances surrounding the witness's identification
decreased the reliability of the identification. Police showed the challenged lineup
to the witness while the witness was in the hospital and recovering from surgery.
The reliability of an identification is viewed considering the totality of the
circumstances. See State v. Brown, 356 S.C. 496, 503, 589 S.E.2d 781, 784-85 (Ct.
App. 2003) (explaining courts "must focus upon whether, under the totality of the
circumstances, there was a substantial likelihood of irreparable misidentification"
(quoting State v. Moore, 343 S.C. 282, 287, 540 S.E.2d 445, 447-48 (2000))). The
factors affecting reliability include (1) the opportunity of the witness to view the
criminal during the crime, (2) the witness's degree of attention, (3) the accuracy of
the witness's prior description of the criminal, (4) the level of certainty of the
witness, and (5) the length of time between the crime and identification. See Neil
v. Biggers, 409 U.S. 188, 199-200 (1972) (setting out the factors to consider in
evaluating reliability in misidentification cases). Although the witness did have
serious injuries, was on pain medication, and was only eighty percent sure about his
identification, he had an excellent opportunity to view the shooter during the crime,
he was "terrified at the time," his identification only wavered regarding the shooter's
hair length, and only a single day had passed since the shooting. See State v.
Washington, 323 S.C. 106, 111, 473 S.E.2d 479, 481 (Ct. App. 1996) ("[A] person
in fear of his life presumably has a more acute degree of attention to his
surroundings than a mere passerby."). Weighing the totality of the circumstances,
the witness's identification was accurate and reliable, and we see no abuse of the
trial court's discretion.

AFFIRMED. 1

KONDUROS, HEWITT, and VINSON, JJ., concur.

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