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2010-UP-191 - State v. Michael Dunham

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.

Michael Barney Dunham, Appellant.


Appeal From Charleston County
Larry R. Patterson, Circuit Court Judge


Unpublished Opinion No.  2010-UP-191
Submitted March 1, 2010 – Filed March 4, 2010


AFFIRMED


Joshua Snow Kendrick, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, and Assistant Attorney General J. Anthony Mabry, all of Columbia; and Solicitor Scarlett A. Wilson, of Charleston, for Respondent.

PER CURIAM:  Michael Barney Dunham appeals his conviction for murder, arguing the trial court erred in admitting witness testimony regarding a photographic lineup and the witness's subsequent in-court identification of him as the shooter.  We affirm.

"The United States Supreme Court has developed a two-prong inquiry to determine the admissibility of an out-of-court identification."  State v. Turner, 373 S.C. 121, 127, 644 S.E.2d 693, 696 (2007) (citing Neil v. Biggers, 409 U.S. 188 (1972)).  First, a court must ascertain whether the identification process was unduly suggestive.  Id.  Second, even if an identification procedure is suggestive, it need not be excluded so long as, under all the circumstances, the identification was reliable notwithstanding the suggestiveness.  Id.  Here, no evidence in the record suggests the photographic lineup was suggestive.  Because the first prong of the Biggers analysis is not satisfied in this case, we do not proceed to the second prong to consider the reliability of the identification.  Accordingly, the trial court correctly admitted witness testimony regarding the photographic lineup and the witness's subsequent in-court identification of Dunham as the shooter.  

AFFIRMED.[1]

HUFF, THOMAS, and KONDUROS, JJ., concur. 


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