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2010-UP-385 - 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Unpublished Opinion No. 2010-UP-385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.