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2010-UP-550 - State v. Mack

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.

Lemar Thomas Mack, Appellant.


Appeal From Charleston County
J. Derham Cole, Circuit Court Judge


Unpublished Opinion No. 2010-UP-550
Submitted December 1, 2010 – Filed December 17, 2010


AFFIRMED


Appellate Defender Elizabeth A. Franklin-Best, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General William M. Blitch, Jr., all of Columbia; and Solicitor Scarlett Anne Wilson, of Charleston, for Respondent.

PER CURIAM:  Lemar Thomas Mack appeals his convictions for kidnapping, armed robbery, and assault and battery with intent to kill (ABWIK), arguing the circuit court erroneously admitted an unduly suggestive photographic lineup and allowed an unreliable in-court identification by the victim.  We affirm.[1]

When assessing the admissibility of an eyewitness identification, a court must apply a two-prong test.  State v. Moore, 343 S.C. 282, 287, 540 S.E.2d 445, 447.  First, it must determine whether the confrontation procedure used by the police was unduly suggestive.  Id.  Only if the procedure was unduly suggestive must a court decide whether "under [the totality of] the circumstances the identification was reliable notwithstanding any suggestive procedure."  Id. at 287, 540 S.E.2d at 447-48 (citations and internal quotation marks omitted).  Factors to consider in "evaluating the likelihood of a misidentification" include the following:

[T]he 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.

Neil v. Biggers, 409 U.S. 188, 199-200 (1972).

Here, the circuit court did not abuse its discretion when it admitted the photographic lineup and the in-court identification of Mack.  The photographic lineup was not unduly suggestive.   See State v. Roberts, 522 S.E.2d 130, 133 (N.C. Ct. App. 1999) ("[T]he police's inability to include individuals in the lineup that shared defendant's unique physical appearance 'cannot be attributed to the officers or regarded as the kind of rigged "suggestiveness" in identification procedures [prohibited by due process].'" (citation omitted)); State v. Simmons, 384 S.C. 145, 168, 682 S.E.2d 19, 31 (Ct. App. 2009) (finding lineup appropriate when the suspect's "ears were smaller than those of the other individuals in the [lineup]").

Regardless of the suggestiveness of the lineup, the circuit court's finding both the out-of-court and in-court identifications were reliable under the totality of the circumstances is reasonable.  First, the victim had multiple opportunities to view the face of her assailant for extended periods of time.  Second, the victim's proximity to her assailant, her status as victim, and her detailed account of the event implies her focused attention on her assailant.  Third, her descriptions of her assailant's height and age, notwithstanding his crossed eye, are consistent with Mack's features at the time of his arrest.  Fourth, the victim was confident enough Mack was her assailant to pick him "right away."  Finally, her identification of Mack in the photographic lineup occurred only two days after the crime.  These facts are sufficient for the circuit court to reasonably find a misidentification substantially unlikely.  Accordingly, the decision of the circuit court is

AFFIRMED.

THOMAS, PIEPER, and GEATHERS, JJ., concur.


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