/opinions/HTMLFiles/SC/25943.htm

THE STATE OF SOUTH CAROLINA
In The Supreme Court

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The State,            Petitioner/Respondent,

v.

Gerrod Lewis,        Respondent/Petitioner.

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ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

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Appeal From Dorchester County
Luke N. Brown, Jr., Circuit Court Judge

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Opinion No. 25943
Heard November 16, 2004 - Filed February 22, 2005

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AFFIRMED IN PART, REVERSED IN PART

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Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, and Assistant Attorney General Deborah R.J. Shupe, all of Columbia; and Robert D. Robbins, of Summerville, for petitioner/respondent.

Assistant Appellate Defender Eleanor Duffy Cleary, of Columbia, for respondent/petitioner.

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JUSTICE MOORE: Respondent/petitioner (Lewis) and his co-defendant, Timothy Washington, were convicted of first-degree criminal sexual conduct (CSC), two counts of kidnapping, grand larceny of a vehicle, and armed robbery. Lewis was sentenced to concurrent terms of thirty years for CSC, thirty years for each kidnapping charge, five years for grand larceny, and thirty years for armed robbery. [1] The Court of Appeals affirmed in part, reversed in part, and remanded. State v. Lewis, 354 S.C. 222, 580 S.E.2d 149 (Ct. App. 2003). Judge Anderson dissented. We now affirm in part and reverse in part.

ISSUES

I. Did the Court of Appeals err by affirming the trial courts failure to suppress an in-court identification?

II. Did the Court of Appeals err by holding the trial court improperly disallowed Lewiss attempt to strike a juror who had previously been struck in violation of Batson? [2]

DISCUSSION

I

Lewis argues the Court of Appeals erred by affirming the trial courts decision not to suppress an in-court identification or to require an in camera hearing prior to the in-court identification.

Gill Armstrong and Jane Doe [3] were driving from Virginia to their home in Florida with their seven-month-old daughter when they stopped at a motel off I-95 in St. George about 11:00 p.m. Armstrong then left to get food. Upon his return, he noticed three black males in the breezeway of the motel and assumed they were guests of the motel. He had a direct view of the men because of the fluorescent lighting in the breezeway. After taking the food into the hotel room, Armstrong then went to the vending machines to get drinks. As he began to place money in the machine, the three men walked up to him and placed a gun to the back of his head.

The men then forced him into the motel room. Before entering the room, the men turned him around and Armstrong saw Washington holding the gun to his head. When they entered the room, the lights were on. Doe was just getting out of the shower and was clad only in a towel. Lewis asked where the money and jewelry was. While Lewis was digging in a duffel bag, Washington instructed Lewis to turn off the lights. Before the lights were turned off, Armstrong was able to view his assailants for a few minutes.

After the men did not find anything, Washington pointed the gun at Armstrongs daughter who was still asleep and said, If you try anything, shes gone. The men became extremely angry when they discovered the couple had only $14. At this point, Armstrong was taken into the bathroom and was placed on his knees, bending over into the bathtub, with the gun pointed at him. At first, Lewis held Armstrong in the bathroom at gunpoint, but then the third man, Shermaine Elmore, [4] switched with Lewis.

Doe testified that two of the men, allegedly Lewis and Washington, then took turns forcing her to perform oral sex on them. Washington then took Doe into the bathroom, bent her over the toilet, and raped her while forcing Armstrong to watch. Then, the men asked for Armstrongs car keys. As they left, Washington told Armstrong Happy Fathers Day. [5] The men then took the couples car and burned it.

Doe was not able to give a description of the attackers. [6] However, Armstrong told the police that the men were black males and gave general descriptions of their height, facial hair, and clothing. [7] A few days later, Shermaine Elmore informed the police he was the lookout during the crimes. Elmore told the police that Washington and Lewis were the two men who sexually assaulted Doe. Armstrong confirmed at trial that Elmore had no involvement in the sexual assault.

At trial, Armstrong identified Washington and Lewis as the perpetrators. In fact, Armstrong stated he was 100 percent positive in his identification of Lewis. Further, Armstrong testified the individuals that committed the crimes were stuck in [his] mind. Counsel objected to the in-court identification and requested an in camera hearing to determine the reliability of his identification. The trial judge denied the request, and ruled that Armstrong could identify the defendants in court, even though Armstrong had never previously identified them. [8]

The Court of Appeals held that, since Armstrong had never previously identified the defendants, no hearing was necessary. [9] The court further held that the reliability of Armstrongs identification was a question for the jury and that Lewis counsel extensively cross-examined Armstrong regarding the identification. In his dissent, Judge Anderson concurred in the result but found that the trial judge should have held an in camera hearing to determine the reliability of Armstrongs identification.

The Court of Appeals decision represents the majority view that the Neil v. Biggers [10] analysis should not be extended to protect criminal defendants against identifications that occur for the first time in court without a pre-trial identification. In Neil v. Biggers, the United States Supreme Court found that a court must review the totality of the circumstances to determine whether an identification is reliable. See also State v. Scipio, 283 S.C. 124, 322 S.E.2d 15 (1984). The factors to be considered in evaluating the likelihood of misidentification include: (1) the opportunity of the witness to view the accused; (2) the witness degree of attention; (3) the accuracy of the witness prior description; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation. Neil v. Biggers, 409 U.S. at 199; State v. Drayton, 293 S.C. 417, 361 S.E.2d 329 (1987), cert. denied, 484 U.S. 1079 (1988).

We conclude, as the majority of courts have, that Neil v. Biggers does not apply to in-court identifications and that the remedy for any alleged suggestiveness of an in-court identification is cross-examination and argument. The United States Supreme Court has not extended its exclusionary rule to in-court identification procedures that are suggestive because of the trial setting. See State v. Smith, 512 A.2d 189, 193 (Conn. 1986).

The Georgia supreme court has stated, [b]ecause pretrial identification procedures occur beyond the immediate supervision of the court, the likelihood of misidentification in such cases increases, and courts have required that pretrial identification procedures comport with certain minimum constitutional requirements in order to ensure fairness. Ralston v. State, 309 S.E.2d 135, 136 (Ga. 1983). See also United States v. Domina, 784 F.2d 1361 (9^th Cir. 1986), cert. denied, 479 U.S. 1038 (1987) (concern with in-court identification, where there has been suggestive pretrial identification, is that witness later identifies the person in court, not from his recollection of observations at time of crime, but from suggestive pretrial identification). However, as the Ralston court explained, these extra safeguards are not applicable to an in-court identification because the witness testimony is subject to the same rules of evidence, witness credibility, and cross-examination as all testimony in a criminal trial. Ralston v. State, 309 S.E.2d at 136-137. See also United States v. Bush, 749 F.2d 1227 (7^th Cir. 1984), cert. denied, 470 U.S. 1058 (1985) (deference shown jury in weighing reliability of potentially suggestive out-of-court identification would seem even more appropriate for in-court identifications where jury is present and able to see first-hand the circumstances which may influence a witness); People v. Brazeau, 759 N.Y.S.2d 268 (N.Y. 2003) (where there has not been a pretrial identification and defendant is identified in court for first time, defendant is not deprived of fair trial because defendant is able to explore weaknesses and suggestiveness of identification in front of the jury); State v. Smith, 512 A.2d 189 (Conn. 1986) (defendants protection against obvious suggestiveness in courtroom identification confrontation is his right to cross-examination); People v. Rodriguez, 480 N.E.2d 1147, 1151 (Ill. App. 1985) cert. denied, 475 U.S. 1089 (1986) (where witness first identifies defendant at trial, defense counsel may test perceptions, memory, and bias of witness, contemporaneously exposing weaknesses and adding perspective to lessen hazards of undue weight or mistake).

Accordingly, we conclude Neil v. Biggers does not apply to a first-time in-court identification because the judge is present and can adequately address relevant problems; the jury is physically present to witness the identification, rather than merely hearing testimony about it; and cross-examination offers defendants an adequate safeguard or remedy against suggestive examinations. Therefore, the Court of Appeals properly concluded the trial court did not err by denying Lewis request for an in camera hearing prior to the in-court identification by Armstrong. [11] In any event, Armstrongs in-court identification was strong, detailed, and clear, and would have survived an in camera hearing.

II

The State argues the Court of Appeals erred by holding the trial judge improperly disallowed Lewis attempt to strike a juror who had previously been struck for discriminatory reasons in violation of Batson. [12]

During jury selection, Lewis exercised peremptory strikes on nine white jurors. His co-defendant, Washington, also separately struck nine white jurors, including juror 304, a white female. At the end of jury selection, the State requested a Batson hearing. Each defendant separately presented reasons for his respective strikes. Lewis stated he did not want housewives to be jurors and that is why he struck two white females. Washington explained he struck juror 304 because she was a housewife. In argument, the State pointed out that neither Washington nor Lewis had struck Juror 166, who was also a housewife. The trial court found several jurors, including juror 304, had been struck for reasons not race-neutral or gender-neutral. The parties then began selecting a second jury.

Juror 304 was presented again. Washington accepted the juror, but Lewis attempted to strike her. At that point, the trial court asked the attorneys to approach the bench and told Lewis attorney he could not strike the juror because the court had already held that the reason for the previous strike was pretextual. Lewis therefore accepted the juror. After finishing the second jury selection process, Lewis moved to quash the jury and re-select another jury because he was not allowed to exercise a peremptory strike. Lewis counsel argued he should be allowed to strike juror 304 because he had an independent reason to strike her, i.e. due to her demeanor. The trial court denied the motion and stated counsel was stuck with [the reason] given the first time.

The Court of Appeals reversed the trial court on the grounds that Lewis had not previously attempted to strike the juror, only Washington had, and because Lewis gave a race-neutral reason for striking the juror that was different from Washingtons reason.

We find the Court of Appeals erred by reversing the trial courts decision not to allow Lewis to strike a juror who had previously been stricken in violation of Batson. See State v. Ford, 334 S.C. 59, 512 S.E.2d 500 (1999) (trial courts findings of purposeful discrimination rest largely on courts evaluation of demeanor and credibility, and reviewing court should give the findings great deference on appeal).

As we stated in State v. Franklin, 318 S.C. 47, 456 S.E.2d 357, cert. denied, 516 U.S. 856 (1995), to hold that a trial court may not seat a juror who was previously improperly excluded by defense counsel due to a Batson violation would reward a party for his own improper conduct. [13] Lewis offered a reason for striking juror 304, i.e., due to her demeanor, [14] that was different from the reason his co-defendant struck juror 304, i.e. she was a housewife. However, the previous discriminatory explanation that the juror was stricken because she was a housewife tainted the selection process. This is true regardless of the other explanations for the strike. See Payton v. Kearse, 329 S.C. 51, 495 S.E.2d 205 (1998) (discriminatory explanation vitiates entire selection process regardless of genuineness of other explanations for the strike). To excuse such obvious prejudice because the challenged party can also articulate nondiscriminatory reasons for the peremptory strike would erode what little protection Batson provides against discrimination in jury selection. Payton v. Kearse, 329 S.C. at 60, 495 S.E.2d at 210. See also Coleman v. Hogan, 486 S.E.2d 548 (Va. 1997) (allowing a constitutionally proper reason to override a constitutionally infirm reason if the acceptable reason is given later would erode the constitutional protections enunciated in Batson and its progeny).

To allow a striking party to challenge the reseated juror a second time would require the trial court to ignore its prior determination and the prior explanations and conduct each successive evaluation of a newly proffered rationale as if on a blank slate. Coleman v. Hogan, supra. Such a process improperly restricts the ability of the trial court to make the required evaluation. Id.

We conclude that once a juror has been unconstitutionally stricken, the jury selection process relative to that juror is tainted. If the trial court chooses to reseat the improperly stricken juror, the striking party may not use a peremptory strike to remove that juror from the panel a second time.

CONCLUSION

We find the Court of Appeals properly affirmed the trial courts decision not to suppress an in-court identification. However, we find the Court of Appeals erred by finding the trial court had erred by not allowing Lewis to strike a juror who had previously been struck in violation of Batson. Therefore, the decision of the Court of Appeals is

AFFIRMED IN PART, REVERSED IN PART.

TOAL, C.J., WALLER, BURNETT, JJ., and Acting Justice A. Victor Rawl, concur.

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