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2012-UP-041 - State v. Pacheco

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.

Hector Mauricio Pacheco, Appellant.


Appeal From Charleston County
J. Michelle Childs, Circuit Court Judge


Unpublished Opinion No. 2012-UP-041
Submitted November 1, 2011 – Filed January 25, 2012   


AFFIRMED


Deputy Chief Appellate Defender Wanda H. Carter, of Columbia, for Appellant.

Attorney General Alan M. Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley E. Elliott, and Assistant Attorney General Mark R. Farthing, all of Columbia; and Solicitor Scarlett A. Wilson, of Charleston, for Respondent.

PER CURIAM:  Hector Mauricio Pacheco appeals his convictions of two counts of armed robbery, strong arm robbery, and three counts of kidnapping.  He argues the circuit court erred in admitting an eyewitness's in-court identification after suppressing an unduly suggestive out-of-court identification.  We affirm.[1]

"The admission or exclusion of evidence is left to the sound discretion of the [circuit] court, and the court's decision will not be reversed absent an abuse of discretion."  State v. Liverman, 386 S.C. 223, 233, 687 S.E.2d 70, 75 (Ct. App. 2009) (citation omitted).  "An abuse of discretion occurs when the decision of the [circuit] court is based upon an error of law or upon factual findings that are without evidentiary support."  Id. (citation omitted).  "[W]hether an eyewitness identification is sufficiently reliable is a mixed question of law and fact."  State v. Moore, 343 S.C. 282, 288, 540 S.E.2d 445, 448 (2000).  "In reviewing mixed questions of law and fact, where the evidence supports but one reasonable inference, the question becomes a matter of law for the court."  Id. (citation omitted).

When assessing the admissibility of an eyewitness identification "the primary evil to be avoided is 'a very substantial likelihood of irreparable misidentification.'"  Neil v. Biggers, 409 U.S. 188, 198 (1972) (quoting Simmons v. United States, 390 U.S. 377, 384 (1968)).  An unduly or unnecessarily suggestive confrontation procedure may deprive a defendant of due process of law.  State v. Turner, 373 S.C. 121, 127, 644 S.E.2d 693, 696 (2007) (citation omitted).  However, "the admission of evidence of [an unnecessarily suggestive procedure] without more does not violate due process."  Biggers, 409 U.S. at 198. 

If a confrontation procedure is deemed unduly suggestive, a court must determine whether "under [the totality of] the circumstances the identification was reliable notwithstanding any suggestive procedure."  Moore, 343 S.C. at 287, 540 S.E.2d at 447-48 (citation 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.

Biggers, 409 U.S. at 199-200.

Here, we find the circuit court did not err in admitting the eyewitness's in-court identification.  Despite the undue suggestiveness of the confrontation procedure used by the police, the in-court identification was reliable under the Biggers analysis.  The eyewitness testified he was able to get a good look at his assailants over the course of the five- to six-minute robbery.  While the nearly two-week period between the robbery and the confrontation was considerable, his description of his assailants after the robbery was detailed and consistent with the description of Pacheco.  Finally, when the eyewitness identified Pacheco at the police station, he was absolutely sure Pacheco was one of the men who robbed him.  Furthermore, we find the circuit court's suppression of the out-of-court identification to be consistent with the admission of the in-court identification, given the additional testimony offered at trial.  See, e.g., State v. Smith, 337 S.C. 27, 32, 522 S.E.2d 598, 600 (1999) ("A pretrial ruling on the admissibility of evidence is preliminary and is subject to change based on developments at trial.").

AFFIRMED.

FEW, C.J., THOMAS and KONDUROS, JJ., concur.


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