THIS OPINION HAS NO PRECEDENTIAL VALUE.� IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Curtis Scott, Appellant.

Appeal From Jasper County
�Jackson V. Gregory, Circuit Court Judge

Unpublished Opinion No. 2008-UP-067
Submitted December 1, 2007 � Filed January 23, 2008���

AFFIRMED

Appellate Defender Eleanor Duffy Cleary, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Harold M. Coombs, Jr., Senior Assistant Attorney General Harold M. Coombs, Jr., all of Columbia; and Solicitor I. McDuffie Stone, III, of Beaufort, for Respondent.

PER CURIAM:� Curtis Scott was convicted of attempted armed robbery and sentenced to thirteen years in prison.� He appeals, arguing the trial court erred in admitting the in-court identifications of him because they were based upon an unduly suggestive pretrial identification procedure and were not otherwise reliable.� We affirm.[1]� �

I.

Scott was charged with attempting to rob Miguel Leyva of his wallet in the parking lot of a Food Lion in Ridgeland, South Carolina.� Both Leyva and Shawnricka Burrison, a store employee who observed the incident, picked Scott out of a photographic lineup shortly after the incident, and they again identified Scott at trial as the perpetrator.�

Prior to trial, Scott made a motion to exclude the identifications of the two eyewitnesses.� During the in limine hearing on the motion, Leyva, who speaks little English, testified through an interpreter that a man approached him in the parking lot and asked him for a cigarette, and he told the man he didn�t smoke.� The man then got inside Leyva�s car, pulled a gun on him, and asked for his wallet.� Leyva opened the car door, hit the man with his arm, and then ran towards the Food Lion while calling 9-1-1 on his cell phone.� Burrison testified that she had walked outside the store on her break when she observed the conflict between Leyva and the other man.� She stated the perpetrator was wearing a red jersey shirt and blue jeans and appeared to be harassing the victim.� Burrison stated once the victim appeared to be attracting attention, the perpetrator shoved something into the waistband of his pants and then ran behind the store.� Burrison advised her store manager about the problem and the manager called the police.� Burrison stated she had seen the perpetrator before because he had come into the store on prior occasions, but she did not know his name.�

The police prepared two photo lineups.� The first lineup, prepared shortly after the incident, consisted of photos of people the police thought were likely to have committed the crime.� Scott�s photo was not included in the first lineup.� A few days later, after receiving several tips, the police presented seven photos in a stack to Leyva and Burrison and each positively identified Scott as the perpetrator.� The officer who presented the photos, Michael Ballenski, testified that he did not suggest anything to the witnesses when they viewed the photos and simply handed them the stack of photos and asked if the person who had attempted the robbery was in any of the photos.� He stated Burrison �immediately� identified Scott as the person she saw at the store.� Burrison signed the back of the photo to indicate she had identified Scott.� The officer stated Leyva was then shown the photos.� Burrison was not present.� Once Leyva identified Scott as the person who had attempted to rob him, the photo was then turned over for Leyva to sign.� The officer explained that the witnesses were not together when the identifications were made, and Leyva could not see Burrison�s identification before he made his own identification of Scott.�

At the in limine hearing, Burrison testified that she was handed a stack of photos and they were not in any particular order.� Burrison stated she looked at all of them and recognized Scott as the robber.� Burrison stated the officer stood back while she looked at the photos so she could not ask him any questions.� Burrison stated there was nothing about any of the photographs that focused particular attention on any of them and that she �reviewed them all the same.�� She stated her identification was based on what she had seen during the incident.� ��

Leyva testified through an interpreter and stated when he saw the second set of photos the officer stated only, �I�m bringing you a couple of more pictures to see if you can identify the person that did whatever happened.�� When asked if there was anything said or done to make one photo any more or less special, Leyva stated �[t]hey were all normal pictures.�� Leyva said he recognized Scott in the second set of photographs and after he identified Scott, the officer then told him he needed to sign the back of the photo.� Leyva stated he did not see the back of the photo prior to turning it over to sign it.�

The trial judge, while noting the police could have done some things better, found �as a fact that under . . . all the circumstances of this case . . . this identification by both witnesses was reliable� and ruled that their testimony as to identity would be admissible at trial.� Scott was subsequently convicted as charged.

II.

On appeal, Scott contends the trial judge erred in admitting the in-court identifications of him because they were based upon an unduly suggestive pretrial identification procedure and the identifications were not otherwise reliable under Neil v. Biggers, 409 U.S. 188 (1972).

�The United States Supreme Court has developed a two-prong inquiry [in Neil v. Biggers] to determine the admissibility of an out-of-court identification.�� State v. Brown, 356 S.C. 496, 503, 589 S.E.2d 781, 784 (Ct. App. 2003).� �First, a court must ascertain whether the identification process was unduly suggestive.�� Id.� �The court must next decide whether the out-of-court identification was nevertheless so reliable that no substantial likelihood of misidentification existed.�� Id.

��Even assuming an identification procedure is suggestive, it need not be excluded so long as, under all the circumstances, the identification was reliable notwithstanding the suggestiveness.�� State v. Traylor, 360 S.C. 74, 82, 600 S.E.2d 523, 527 (2004).� �The inquiry must focus upon whether, under the totality of the circumstances, there was a substantial likelihood of irreparable misidentification.�� Id.� �The following factors should be considered in evaluating the totality of the circumstances to determine the likelihood of a misidentification:� (1) the witness�s opportunity to view the perpetrator at the time of the crime, (2) the witness�s degree of attention, (3) the accuracy of the witness�s prior description of the perpetrator, (4) the level of certainty demonstrated by the witness at the confrontation, and (5) the length of time between the crime and the confrontation.�� Id.

�Generally, the decision to admit an eyewitness identification is in the trial judge�s discretion and will not be disturbed on appeal absent an abuse of discretion, or the commission of prejudicial legal error.�� Brown, 356 S.C. at 502, 589 S.E.2d at 784.

Scott argues the photos were unduly suggestive because Scott �was the only person in the photos wearing a white undershirt, was the only one who[se] photo was vertically oriented, was the only one in front of a bulletin board that read �Secure at all time,� was in the only photo without a computer-generated name printed on his photo, and was depicted in the largest photograph.� Scott also contends the paper is lightweight so Burrison�s signature could �easily be seen by Leyva, influencing his choice.�� Finally, Scott contends Burrison knew of two of the people in the photo lineup and that three of them shared her same last name.� ��

After reviewing the photo lineup, it appears the trial judge properly exercised his discretion in ruling the identifications were admissible.� Scott�s arguments, while numerous, are ultimately without merit.� The photos are all on plain paper that is 8� by 11 inches, one sheet for each suspect, and each sheet has two photos of that suspect, a front view and a side view.� Although Scott�s photos are oriented in a different direction on the page from the majority, another suspect�s photos also are oriented differently from the others and there is a double border around the photos, so there is nothing remarkable about Scott�s photos.� As noted by both witnesses, Scott�s photos appear to be normal and nothing makes his stand out from the others.�

Further, contrary to Scott�s argument, his photo is not larger than all of the others.� Rather, it is the same size as at least one other suspect, and there is not much difference between the sizes, in any event.� Moreover, his is not the only photo that does not have a name on it.� Scott is wearing a white undershirt, that is true, but all of the other individuals except one are wearing a white undershirt with another T-shirt over it.� In fact, one individual is wearing a red T-shirt, the same color as the perpetrator.� The bulletin board Scott refers to is so blurry as to be unreadable, and the wording he references is, for the most part, obscured behind Scott�s head and does not actually appear in full on the photo as he alleges.� As to the signatures, the only evidence in the record is that Leyva was not present when Burrison made her identification and he did not see Burrison�s identification before making his own identification of Scott.�

The only arguable issue with the lineup appears to be the fact that people with the same last name as one of the witnesses appeared in the lineup.� There are photos of a Marcus Burrison, a Nathaniel Burrison, and a Gil Nathaniel Burrison.� Burrison stated she was not related to Marcus Burrison and she knew of the others.� (It is unclear from the record whether the last two might even be the same person as the names and photos are similar and Scott notes in his brief that Nathaniel Burrison and Gil Nathaniel Burrison appear to be the same person.)� However, while the lineup could arguably be deemed suggestive, we hold it is not unduly suggestive, which is the applicable standard.� See State v. Turner, 373 S.C. 121, 644 S.E.2d 693 (2007) (stating the fact that a suspect�s photo is in color and the others are in black and white or that the suspect�s photo is larger or in a different position on the page is not unduly suggestive; the court noted the trial judge�s observation that there will always be differences found in photos); State v. Govan, 372 S.C. 552, 643 S.E.2d 92 (Ct. App. 2007) (stating although the showup identification procedure in that case was suggestive, it was not unduly suggestive under the test articulated in Neil v. Biggers).

Moreover, even assuming the photos are unduly suggestive, however, the inquiry then focuses on whether, under the totality of the circumstances, they were nevertheless reliable.� It is evident from the testimony of the witnesses that they each had ample opportunity to view Scott, Burrison had even seen him at the store before, and they were uniformly certain in their identifications.� The incident occurred at close range in broad daylight, and both Leyva and Burrison were focused on the acts of the perpetrator.� The officer stated Burrison �immediately� identified Scott after viewing the photos, and there is no evidence that Leyva was influenced in his selection of Scott.� As noted by the trial judge, the officers certainly could have done some things differently in preparing the photo lineup, but in looking at the totality of the circumstances there is not a very substantial likelihood of misidentification in this case.� Accordingly, the trial court did not abuse its discretion in admitting the identifications of Scott.

III.

Scott�s conviction and sentence are, therefore,

AFFIRMED.

HEARN, C.J., and KITTREDGE and THOMAS, JJ., concur.

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