In The Court of Appeals

State of South Carolina,  Respondent,


Jerene Markwell Hayward, Appellant.

Appeal from Richland County
James W. Johnson, Jr., Circuit Court Judge

Unpublished Opinion No. 2008-UP-088
Submitted February 1, 2008 – Filed February 8, 2008


Aileen P. Clare, of South Carolina Commission on Indigent Defense, Division of Appellate Defense, of Columbia, for Appellant.

Attorney General Henry D. McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General

Salley W. Elliott; and Solicitor Warren B. Giese, all of Columbia, for Respondent.

PER CURIAM:  Jerene Markwell Hayward (Hayward) was convicted of first-degree burglary, the lesser-included offense of assault and battery of a high and aggravated nature (ABHAN), petit larceny, and possession of marijuana.  He was sentenced to consecutive terms of thirty (30) years for first-degree burglary and ten (10) years for ABHAN, plus concurrent terms of thirty (30) days each for the remaining convictions.  Hayward argues the trial court erred in: (1) admitting an impermissibly suggestive show-up identification; and (2) denying his motion for mistrial after a witness for the State commented on Hayward’s exercise of his Fifth Amendment right to remain silent.  We affirm. [1]


Hayward was accused of burglarizing the home of Jeffrey Connell and assaulting Connell’s domestic employee on April 13, 2004.  On that same afternoon, Ronald Cowart, a landscaper, was in route to Crescent Lake Subdivision when Hayward ran out in front of Cowart’s truck, exclaiming two people were in pursuit of him.  Cowart talked with Hayward and gave him a ride.  Cowart observed Hayward was a tall, slender black male, with close-cut hair and a mark or tattoo on his neck.  Hayward was wearing baggy blue jeans and a dark, long-sleeved shirt.  He was carrying a backpack.  Hayward eventually left Cowart’s vehicle to find a store and a phone.  Cowart alerted the police in response to conduct he believed was “out of the ordinary” and the noticeable police activity in the area.

Police arrested Hayward, informed him of his Miranda rights, and summoned Cowart several hours later to identify Hayward.  At the site of arrest Hayward was handcuffed and surrounded by police cars and uniformed officers.  Cowart positively identified Hayward as the man he had spoken with and picked up earlier.  He testified, “I said yes this is him, I know him.” 

Eric Barnes, an investigator with Richland County Sheriff’s Department, was responsible for directing the investigation.  As he arrived on the scene where Hayward was detained, he recalled Hayward was shouting that he was innocent.  Barnes introduced himself to Hayward and looked at Hayward’s shoeprint to determine if it was similar to one left at the crime scene.  Barnes observed what he thought was blood on Hayward’s shoes, removed them, and secured them as evidence.

Barnes continued talking with Hayward, commenting that Hayward “was going to have a hard time explaining how the victim’s blood got on the shoe.”  Hayward said “he was in the house but it was the other guy that kicked her or hit the lady, not him.”

At headquarters, Barnes verbally informed Hayward of his Miranda rights, asked Hayward if he understood, and attempted to obtain information from him.  Barnes testified Hayward denied he made the statement at the arrest site claiming he was not the one who kicked the lady.  Hayward continued to deny everything about the case at that point, becoming louder and louder as the discussion progressed.  When Barnes realized it was futile to continue, he decided to adjourn the session, concluding, “it became apparent in my mind that [Hayward] didn’t want to give a statement.”

Hayward was indicted for first-degree burglary, petit larceny, kidnapping, assault and battery with intent to kill, and possession of marijuana.

In a hearing pursuant to Jackson v. Denno, 378 U.S. 368, (1964), Hayward challenged the suggestiveness of Cowart’s identification of him at the arrest site.  The trial court ruled Cowart’s identification was admissible.

Additionally, Hayward moved for a mistrial on the ground Barnes impermissibly commented on Hayward’s constitutional right to remain silent.  The trial court denied Hayward’s motion and ruled Hayward had not invoked his right to remain silent at the time Barnes decided it was futile to continue the session.  Therefore, Barnes’ comment that Hayward’s statement was not forthcoming did not reflect on Hayward’s invocation of his Fifth Amendment right. 

The jury found Hayward guilty of first-degree burglary, the lesser-included offense of ABHAN, petit larceny, and possession of marijuana.  The trial court sentenced Hayward to consecutive terms of thirty years (30) for first-degree burglary and ten (10) years for ABHAN, plus concurrent terms of thirty days (30) each for the remaining convictions.


In criminal cases, the appellate court sits to review errors of law only.  State v. Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006).  Thus, an appellate court is bound by the trial court’s factual findings unless they are clearly erroneous.  Id. at 48, 625 S.E.2d at 220.  This same standard of review applies to preliminary factual findings in determining the admissibility of certain evidence in criminal cases.  State v. Preslar, 364 S.C. 466, 472, 613 S.E.2d 381, 384 (Ct. App. 2005).


IAdmissibility of Show-Up Identification 

Hayward contends Cowart’s identification of him at the arrest site should be suppressed because it was so suggestive that Cowart’s objectivity was compromised.  We disagree.

Generally, the decision to admit an eyewitness identification is at the trial court’s discretion and will not be disturbed on appeal absent an abuse of discretion, or the commission of prejudicial legal error.  State v. Moore, 343 S.C. 282, 288, 540 S.E.2d 445, 448 (2000); State v. McCord, 349 S.C. 477, 481, 562 S.E.2d 689, 691 (Ct. App. 2002).  However, an eyewitness identification which is unreliable because of suggestive police procedures is constitutionally inadmissible as a matter of law.  Moore, 343 S.C. at 288, 540 S.E.2d at 448. 

A criminal defendant may be deprived of due process of law by an unnecessarily suggestive identification procedure conducive to irreparable mistaken identification.  State v. Roach, 364 S.C. 422, 429-30, 613 S.E.2d 791, 795 (2005); State v. Brown, 356 S.C. 496, 503, 589 S.E.2d 781, 785 (Ct. App. 2003); State v. Mansfield, 343 S.C. 66, 79, 538 S.E.2d 257, 264 (Ct. App. 2000); State v. Blassingame, 338 S.C. 240, 251, 525 S.E.2d 535, 541 (Ct. App. 1999).

The United States Supreme Court and the South Carolina Supreme Court have established a two-prong inquiry to determine the admissibility of an out-of-court identification.  Neil v. Biggers, 409 U.S. 188, 196 (1972); Moore, 343 S.C. at 287, 540 S.E.2d at 448.  A court must determine whether the identification process was unduly suggestive.  Moore, 343 S.C. at 287, 540 S.E.2d at 448.  Only if the identification procedure was unduly suggestive does the court need to consider the next step, whether the out-of-court identification was nevertheless so reliable that no substantial likelihood of misidentification existed.  Id.         

Single person show-ups have been sharply criticized as unnecessarily suggestive.  Mansfield , 343 S.C. at 79, 538 S.E.2d at 264.  However, suggestiveness alone does not require the exclusion of evidence.  State v Stewart, 275 S.C. 447, 450, 272 S.E.2d 628, 629 (1980).  The central question is whether, under the totality of the circumstances, the identification was reliable even though the confrontation procedure was suggestive. Id.; Mansfield, 343 S.C. at 79, 538 S.E.2d at 264.  Reliability is the “linchpin in determining the admissibility of identification testimony.”  Mansfield, 343 S.C. at 79, 538 S.E.2d at 264.  To determine whether identification is reliable, we must consider the factors set forth in Biggers.  409 U.S. at 199.  The factors to be considered are:

1) the opportunity of the witness to view the criminal at the time of the crime; 2) the witness’s degree of attention; 3) the accuracy of the witness’s prior description of the criminal; 4) the level of certainty demonstrated by the witness at the confrontation; and 5) the amount of time between the crime and the confrontation.

Biggers, 409 U.S. at 200; Mansfield, 343 S.C. at 79, 538 S.E.2d at 264.

At the arrest site, Hayward was presented in handcuffs, surrounded by police cars and uniformed officers.  Notwithstanding the somewhat suggestive nature of the setting, Cowart’s identification of Hayward was reliable in light of the totality of the circumstances. 

Cowart had opportunity to observe Hayward in close proximity, during daylight hours, on the day the crimes were committed.  Cowart’s attention was focused on Hayward because of his unusual behavior.  He was suspicious of Hayward to the point he removed his keys and cell phone from Hayward’s view, and he ultimately alerted the police about his contact with Hayward.

Cowart described Hayward in accurate detail to the police as a tall, slender black male with close cut hair.  He noted Hayward’s clothing, observed the backpack he carried, and identified a green cigarette package that Hayward pulled out of the bag.  Cowart unequivocally and without hesitation confirmed Hayward was the man he picked up in the victim’s neighborhood on the afternoon of April 13, 2004.  Moreover, the amount of time between Cowart’s afternoon encounter with Hayward and the show-up identification at the arrest site was approximately three hours. 

The trial court concluded:

Case law indicates that even if the identification is unnecessarily suggestive the evidence need not be excluded if the totality of the circumstances indicates that the identification is reliable.  And I find that there is sufficient evidence that has been shown to this court that the identification is reliable.

In reviewing Cowart’s identification for indicia of reliability, the trial court considered the factors required under Biggers.  The trial court did not abuse its discretion when it denied Hayward’s motion to suppress Cowart’s identification.

II.  Failure to Grant Motion for Mistrial

Hayward contends the trial court erred in denying his motion for a mistrial when Barnes allegedly commented on Hayward’s exercise of his Fifth Amendment right to remain silent.  We disagree.

The decision to grant or deny a mistrial is within the sound discretion of the trial court.  State v. Stanley, 365 S.C. 24, 33, 615 S.E.2d 455, 460 (Ct. App. 2005).  The trial court’s decision will not be overturned on appeal absent an abuse of discretion amounting to an error of law.  Id.; State v. Rowlands, 343 S.C. 454, 458, 539 S.E.2d 717, 719 (Ct. App. 2000).  A mistrial should only be granted when “absolutely necessary,” and a defendant must show both error and resulting prejudice in order to be entitled to a mistrial.  Stanley, 365 S.C. at 34, 615 S.E.2d at 460.  Whether a mistrial is manifestly necessary is a fact specific inquiry.  Id.     

Hayward asserts Barnes’ comment, “it became apparent in my mind that [Hayward] didn’t want to give a statement,” was an impermissible reference to Hayward’s right to remain silent under Doyle v. Ohio, 426 U.S. 610 (1976).  In Doyle, the Supreme Court held:

‘[W]hen a person is informed, as Miranda requires, that he may remain silent, that anything he says may be used against him, … it does not comport with due process to permit the prosecution during the trial to call attention to his silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony.’ 

Id. at 619 (quoting U.S. v. Hale, 422 U.S. 171, 182-83 (1975)).

The courts of South Carolina have consistently recognized the significance of Doyle on post-arrest, post-Miranda silence.  “Doyle holds that the Due Process Clause prohibits the government from commenting on an accused’s post-Miranda silence.”  State v. Simmons, 360 S.C. 33, 39, 599 S.E.2d 448, 450 (2004); Payne v. State, 355 S.C. 642, 645, 586 S.E.2d 857, 859 (2003) (holding “The state may not directly or indirectly comment on the defendant’s right to remain silent.”).  Our appellate courts have warned solicitors against violation of the Doyle prohibition.  State v. Myers, 301 S.C. 251, 258-259, 391 S.E.2d 551, 555 (1990); State v. Arther, 290 S.C. 291, 350 S.E.2d 187 (1990); State v. Holliday, 333 S.C. 332, 509 S.E.2d 280 (Ct. App. 1998); State v. Gray, 304 S.C. 482, 405 S.E.2d 420 (Ct. App. 1991). However, “[t]he underpinnings of Doyle, and the need for its application, are diminished where a defendant waives his right to silence.  Simmons, 360 S.C. at 40, 599 S.E.2d at 451.

In the instant case the trial court concluded the State made a sufficient showing that Hayward was advised of his rights under Miranda.  The trial court found after being advised of those rights, Hayward essentially waived them by voluntarily making statements and utterances.  “I find based on what has been presented that the defendant had not at that point and [sic] time invoked his right to remain silent.  For that reason I will permit the testimony to continue.  I deny the motion for a mistrial.”

Police informed Hayward of his Miranda rights at the arrest site.  Nevertheless, Hayward continued to shout about his innocence and professed the acts were committed by other perpetrators.  After hearing his Miranda rights again during the discussion with Barnes at headquarters, Hayward persisted in talking about his innocence, disclaiming things he had allegedly said earlier.  In the context of ending the session because of its futility, Barnes’ comment was not in response to Hayward’s silence, because Hayward was not silent, and had not yet invoked his right to remain silent.  The trial court did not err in denying Hayward’s motion for mistrial. 



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