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2004-UP-620 - 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Unpublished Opinion No. 2004-UP-620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.