State v. Jordan

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.

Tarrence Jordan, Appellant.

Appellate Case No. 2010-159986

Appeal From Florence County
Ralph King Anderson, Jr., Special Circuit Court Judge

Memorandum Opinion No. 2012-UP-537
Heard September 12, 2012 – Filed October 3, 2012

AFFIRMED

LaNelle Cantey DuRant, of Columbia, for Appellant
Tarrence Jordan.

Attorney General Alan McCrory Wilson, Chief Deputy
Attorney General John W. McIntosh, Senior Assistant
Deputy Attorney General Salley W. Elliott, Assistant
Deputy Attorney General David A. Spencer, and
Assistant Attorney General Mark Reynolds Farthing, all
of Columbia, for Respondent State of South Carolina.
PER CURIAM: Tarrence Jordan appeals his convictions and sentences for five
counts of armed robbery and three counts each of kidnapping, first-degree
burglary, and the possession of a weapon during the commission of a violent
crime. He argues the trial court erred in (1) admitting an eyewitness's
identifications of him and (2) denying his motion to reconsider his sentences. We
affirm pursuant to Rule 220(b), SCACR, and the following authorities:

1. As to the eyewitness identifications: State v. Wilson, 345 S.C. 1, 5-6, 545
S.E.2d 827, 829 (2001) (recognizing in criminal cases, the appellate court sits to
review errors of law only and is bound by the factual findings of the trial court
unless clearly erroneous); State v. Gillian, 373 S.C. 601, 613, 646 S.E.2d 872, 878
(2007) (holding the admission or exclusion of evidence is a matter within the trial
court's sound discretion, and an appellate court may disturb a ruling admitting or
excluding evidence only upon a showing of a manifest abuse of discretion
accompanied by probable prejudice); State v. Traylor, 360 S.C. 74, 81, 600 S.E.2d
523, 526 (2004) (stating an identification procedure arranged by police "which is
unnecessarily suggestive and conducive to irreparable mistaken identification" may
deprive a criminal defendant of due process of law; therefore, "[a]n in-court
identification of an accused is inadmissible if a suggestive out-of-court
identification procedure created a very substantial likelihood of irreparable
misidentification"); Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 382 (1972)1
(holding whether a witness's identification of an accused was so suggestive as to be
unreliable requires the court to examine the totality of the circumstances, including
"the 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");
State v. Govan, 372 S.C. 552, 558-59, 643 S.E.2d 92, 95 (Ct. App. 2007)
(upholding show-up identifications that occur "shortly after the alleged crime, near
the scene of the crime, as the witness's memory is still fresh, where the suspect has

1
We decline Jordan's invitation to discard the Biggers test, noting both the United
States Supreme Court and the South Carolina Supreme Court recently issued
opinions reinforcing the validity and usefulness of that test. See Perry v. New
Hampshire, 132 S. Ct. 716, 730 (2012) (holding the trial court's failure to conduct
a complete Biggers hearing "did not render . . . trial fundamentally unfair"); State
v. Liverman, 398 S.C. 130, 138-39, 727 S.E.2d 422, 426 (2012) (requiring Biggers
hearing even when eyewitness knows defendant very well).
not had time to alter his looks or dispose of evidence, and [when] the show-up may
expedite the release of innocent suspects and enable the police to determine
whether to continue searching"); State v. Simmons, 384 S.C. 145, 172, 682 S.E.2d
19, 33 (Ct. App. 2009) (noting identification evidence may be harmless when it is
cumulative to overwhelming evidence of guilt).

2. As to Jordan's motion to reconsider: State v. Garner, 304 S.C. 220, 222, 403
S.E.2d 631, 632 (1991) (recognizing when an appellant fails to object to his
sentence at the time of its imposition, he waives the issue on appeal); Rule 29,
SCRCrimP (providing parties to criminal actions may file post-trial motions within
ten days after the trial court imposes a sentence); State v. Hamilton, 333 S.C. 642,
648, 511 S.E.2d 94, 97 (Ct. App. 1999) ("[I]t is improper to argue new matter in a
motion for reconsideration.").

AFFIRMED.

HUFF and THOMAS, JJ., and CURETON, A.J., concur.