State v. Miller

THIS OPINION HAS NO PRECEDENTIAL VALUE

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.

Bruce Miller, Appellant.

Appeal From Greenville County

 John W. Kittredge, Circuit Court Judge

Unpublished Opinion No. 2004-UP-620

Submitted December 1, 2004 – Filed December
13, 2004

AFFIRMED

Acting Chief Attorney Joseph L. Savitz, III, of Columbia, for Appellant.

Attorney General Henry
Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, and Assistant
Attorney General David Spencer, all of Columbia; and Solicitor Robert M. Ariail,
of Greenville, for Respondent.

PER CURIAM:  Bruce Miller (Miller) appeals his conviction for armed
robbery.  We affirm. [1]

FACTS

Miller was convicted of robbing James Holden (Holden) at gunpoint.  While on
his way to work, Holden stopped at a convenience store in Greenville to use
the phone.  A man Holden later identified as Miller asked him for directions
to the interstate.  After Holden gave Miller directions, Miller pointed a gun
at Holden and demanded money.  Holden surrendered $106, and Miller walked behind
the store, out of view.  Miller then drove by, and Holden followed him and recorded
his license plate number.  Several days later, Holden identified Miller as the
perpetrator from a photographic lineup.  Miller was indicted and convicted for
armed robbery. 

LAW/ANALYSIS

Miller asserts two issues on appeal.  First, he argues the trial
court lacked subject matter jurisdiction due to an insufficient indictment. 
Second, he contends the trial court erred in failing to give his proposed jury
instruction on eyewitness testimony. 

I.  Sufficiency of the Indictment

Miller’s indictment states:

That BRUCE RANDALL MILLER did in Greenville County, on or about the 9th day
of December, 2001, while armed with a deadly weapon, to wit: handgun, take by
means of force or intimidation, goods or monies described as: U.S. currency
from the person or presence of James Holden.  This is in violation of §16-11-330
of the South Carolina Code of Laws (1976) as amended.

A circuit court has subject matter jurisdiction if: (1) there has
been an indictment which sufficiently states the offense; (2) there has been
a waiver of the indictment; or (3) the charge is a lesser included charge of
the crime charged in the indictment.  Locke v. State, 341 S.C. 54, 533
S.E.2d 324 (2000).  An indictment is sufficient to convey jurisdiction if it
states the offense with sufficient certainty and particularity to enable the
court to know what judgment to pronounce and the defendant to know what he is
called upon to answer.  Carter v. State, 329 S.C. 355, 495 S.E.2d 773
(1998). 

Miller complains the indictment is insufficient because it fails
“to allege intent of permanent deprivation or that the taking was done feloniously.” 
Our supreme court has held:  “There is no requirement that an armed robbery
indictment contain an allegation of an intent to permanently deprive the owner
of the property.”  Broom v. State, 351 S.C. 219, 221, 569 S.E.2d 336,
337 (2002).  The Broom court found that “the intent to permanently deprive
is . . . implicit in the definition of armed robbery.”  Id.  The court
defined armed robbery as “a robbery while armed with a deadly weapon or while
the robber alleges, by actions or words, that he is armed with a deadly weapon
which a person during the commission of the robbery reasonably believes to be
a deadly weapon.”  Id. at 220-21, 569 S.E.2d at 337 (citing S.C. Code
Ann. § 16-11-330(A) (Supp. 2001)).   The definition does not include the word
“feloniously”; therefore, feloniously is not required in the indictment.  Cf.
Joseph v. State, 351 S.C. 551, 571 S.E.2d 280 (2002) (finding indictment
for murder sufficient where it set forth the time, place, and manner of the
crime, but did not include the defendant “‘feloniously’ and ‘wilfully’ committed
the murder’” and holding “the word ‘feloniously’ is encompassed in the word
‘murder’ because murder is a felony.”).

Locke lends further support to the State’s position that the
indictment does not need to include “feloniously” or “intent of permanent deprivation.” 
In Locke, the supreme court found that “the indictment alleges the substance
of asportation when it reads, ‘taking of goods and/or monies from the person
or presence of.’”  341 S.C. at 56, 533 S.E.2d at 325.  Miller’s indictment alleged
that he did “take by means of force or intimidation, goods or monies
described as: U.S. currency from the person or presence of James Holden.” 
(Emphasis added).  Thus, the language of Miller’s indictment was approved by
the court in Locke. 

II.  Proposed Jury Charge

Miller argues the trial court erred in failing to charge his requested instruction
on the accuracy of eyewitness identification.  The trial judge rejected Miller’s
charge and instead gave the following charge:

The state alleges that the defendant, Mr. Miller, is the perpetrator of the
alleged crime charged.  The State has the burden of proving identity beyond
a reasonable doubt.  Identification testimony is an expression of belief or
impression by a witness.  You may consider the opportunity a witness had to
observe the alleged offender at the time of the alleged offense and thereafter
make an identification.  It is for you to determine the accuracy of the identification
as given by the witness. 

You may consider the credibility of the identification witness as you do any
other witness.  You may consider his or her truthfulness as well as the capacity,
opportunity, and circumstances of the observation of the matters about which
he or she testified.  Remember the State has the burden of proving identity
beyond a reasonable doubt.  Therefore, if you find that a crime has been committed
as alleged, but you are not convinced, beyond a reasonable doubt, that the defendant
was the person who committed the crime, you must find the defendant not guilty. 

The jury charge Miller proposed was a Telfaire charge (United
States v. Telfaire, 469 F.2d 522 (D.C. Cir 1972)).  Contrary to Miller’s
assertion that South Carolina has recognized the Telfaire charge as a
“model instruction,” our courts have rejected the Telfaire charge as
violative of the Constitution of South Carolina.  See State v. Patterson,
337 S.C. 215, 234, 522 S.E.2d 845, 855 (Ct. App. 1999) (holding the Telfaire
charge “is essentially a charge on the facts which is contrary to our constitutional
prohibition [S.C. Const. Art. V, § 21] against charges to the juries on the
facts”); see also State v. Robinson, 274 S.C. 198, 262
S.E.2d 729 (1980) (upholding trial court’s decision to decline the Telfaire
charge).

A jury instruction is sufficient if, when considered as a whole, it covers
the law applicable to the case.  State v. Burton, 302 S.C. 494, 397 S.E.2d
90 (1990).  Here, the judge’s charge was sufficient.  As in State v. Motes,
264 S.C. 317, 326, 215 S.E.2d 190, 194 (1975), it “adequately focused the attention
of the jury on the necessity for a finding that the testimony identified defendant
as the offender beyond a reasonable doubt.”  Id.  Moreover, at trial,
Holden was asked about his identification of Miller:

Q. 
Was there any doubts as to your selection?

A.
Not a doubt in the
world.

Given Holden’s degree of certainty, there appears very little likelihood of
mistaken identification.  See State v. Jones, 344 S.C. 48, 60,
543 S.E.2d 541, 547 (2001). 

CONCLUSION

Based on the foregoing, the conviction
and sentence of Miller are

AFFIRMED.

ANDERSON, STILWELL, and SHORT, JJ., concur.

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