State v. Johnson

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.

Harry Johnson, Appellant.

Appeal From Bamberg County

 D. Garrison Hill, Circuit Court Judge

Unpublished Opinion No. 2010-UP-385

Submitted June 1, 2010 – Filed August 16,
2010   

AFFIRMED

Appellate Defender LaNelle C. DuRant, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior
Assistant Attorney General Norman Mark Rapoport, all of Columbia; and Solicitor
James Strom Thurmond, Jr., of Aiken, for Respondent.

PER CURIAM:  Harry Johnson appeals his convictions for carjacking,
kidnapping, possession of a weapon during the commission of a violent crime,
and assault of a high and aggravated nature, and aggregate eighteen-year
sentence.  He argues the trial court erred in admitting the victim's in-court
identification because the out-of-court identification procedure was unreliable
and created a substantial likelihood of misidentification.  While we note the
out-of-court identification procedure was problematic and urge the State to
exercise extreme caution during out-of-court identification procedures, we affirm[1] pursuant to Rule 220(b)(1), SCACR, and the following authorities:  State v.
Moore, 343 S.C. 282, 286, 540 S.E.2d 445, 447 (2000) (noting an in-court
identification is inadmissible if a suggestive out-of-court identification procedure
created a very substantial likelihood of irreparable misidentification); Id. at 287, 540 S.E.2d at 447 (stating when evaluating an out-of-court
identification, the court must determine if the identification process was
unduly suggestive and, if so, whether the out-of-court identification was so
reliable that it posed no substantial likelihood of misidentification); Neil
v. Biggers, 409 U.S. 188, 199-200 (1972) ("[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.").

AFFIRMED.

KONDUROS, GEATHERS, and LOCKEMY, JJ., concur.

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