State v. Robinson

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.

Travis Deniele
Robinson, Appellant.

Appeal From York County

John C. Hayes, III, Circuit Court Judge

Unpublished Opinion No. 2011-UP-022

Submitted January 1, 2011 – Filed January
25, 2011   

AFFIRMED

Chief Appellate Defender Joseph L. Savitz,
III, of Columbia, for Appellant.

Attorney General Alan Wilson, Chief Deputy
Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W.
Elliott, Senior Assistant Attorney General Harold M. Coombs, Jr., all of
Columbia; and Solicitor Kevin S. Brackett, of York, for Respondent.

PER CURIAM:  Travis
Deniele Robinson appeals his convictions for attempted armed robbery, assault
and battery with intent to kill, and possession of a weapon during the
commission of a violent crime, arguing the circuit court erroneously admitted
unreliable in-court identifications by eyewitnesses after determining the
out-of-court identification procedures were unduly suggestive.  We affirm.[1]

When assessing the
admissibility of an eyewitness identification, a court must apply a two-prong
test.  State v. Moore, 343 S.C.
282, 287, 540 S.E.2d 445, 447 (2000). 
First, it must determine whether the confrontation procedure used by the police
was unduly suggestive.  Id.  Only if the procedure was unduly suggestive
must a court focus on whether "'under [the totality of] the circumstances
the identification was reliable notwithstanding any suggestive procedure.'"  Id. at 287, 540 S.E.2d at 447-48 (quoting Jefferson v. State, 425
S.E.2d 915, 918 (Ga. Ct. App. 1992)).  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.

Neil v. Biggers, 409 U.S. 188, 199-200 (1972).

Here, the circuit court
did not abuse its discretion by admitting the eyewitnesses' in-court
identifications.  After finding the show-up procedure performed by the police
was unduly suggestive, the circuit court properly considered the Neil v.
Biggers factors to assess the reliability of the eyewitnesses'
identifications.  As to the first witness's identification: first, she testified
she saw Robinson when he walked into and back out of the gas station, and
throughout the course of his struggle with the victim; second, she testified
she was suspicious of Robinson and witnessed the struggle and shooting unfold, indicating
a heightened degree of attention; third, she told police the shooter had
dreadlocks; fourth, she was "99 percent sure" Robinson was the
shooter; and finally only a "little while" had passed until she
identified Robinson at the show-up that night.  As to the second witness's
identification: first, she testified she saw Robinson when he walked into and
back out of the gas station, and she looked him in the eyes during the
attempted robbery; second, her attention was focused on Robinson during the
course of the attempted robbery; third, she was a "hundred percent
certain" Robinson was the shooter; and finally, only a "little
while" had passed before she identified Robinson as the shooter later that
night. 

Under the totality of
the circumstances, the unduly suggestive show-up procedures did not unconstitutionally
taint the reliability of the eyewitnesses' in-court identifications of
Robinson.  Thus, the circuit court did not err in allowing both eyewitnesses to
identify Robinson in court as the shooter.  Accordingly, the decision of the
circuit court is

AFFIRMED.

FEW, C.J., SHORT and
WILLIAMS, JJ., concur.

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