South Carolina Court of Appeals Opinion for March 11, 2015

sccourtofappeals1 On Wednesday, March 11, 2015, the South Carolina Court of Appeals published an opinion in State v. Green.  Green was convicted of possession of a weapon during the commission of a violent crime and armed robbery. The trial court sentenced him concurrently to five years’ imprisonment for possession of a weapon and life imprisonment without the possibility of parole (“LWOP”) for armed robbery.  Green appealed his conviction on three grounds, that the trial court erred in: (1) not giving the jury special instructions concerning how to analyze identification evidence; (2) allowing the State to introduce his mug shot; and (3) sentencing him to LWOP in violation of the Eight Amendment’s ban on cruel and unusual punishment. This Court affirms the lower court’s decision.

At trial, evidence was admitted of surveillance video that showed a man entering a convenience store and robbing the owner at gunpoint. The owner and his wife testified that they recognized the man as a regular customer who visited the store three times a week for approximately a year. Both the owner and his wife identified the man as Green, the defendant. The detective that investigated the robbery was also able to identify Green after reviewing the surveillance video.  The detective knew Green and was able to identify him as the robber because of Green’s “walk, height, weight, and structure of his face.” Specifically, the detective noted Green’s distinctive nose that help him identify Green as the man in the video. The State moved to admit a mug shot taken of Green during booking. The State argued that the mug shot photograph shows Green’s side profile  allowing the jury to compare this photograph to the side profile of the man in the surveillance video to determine if Green was the robber.. The trial court admitted the mug shot photograph over Green’s objection and later admitted a redacted version of the photograph, taking away any indication that it originated from Charleston County.

Green called Dr. Jennifer Beaudry to testify regarding eyewitness identification procedures. The court qualified her as an expert in “human memory and eyewitness identification”. Dr. Beaudry testified to factors that can affect a person’s ability to encode information, specifically, that stress and “weapon focus” reduce a witness’s identification accuracy. She also states that cross-racial identification increases the chances of a false identification. Following her testimony, Green submitted proposed jury instructions regarding identification that included a list of factors to consider including cross-racial identification. The trial court refused to issue Green’s requested charges and charged the jury its’ standard identification charge.  Green had a prior conviction for armed robbery and faced a mandatory LWOP sentence pursuant to the recidivist statute, sentencing 17-25-45 of the S.C. Code.  Green filed a  motion to vacate his sentence, reasserting that his sentence violated the Eighth Amendment’s ban of cruel and unusual punishment because he was under the age of eighteen at the time of the triggering offense. The court denied Green’s motion to vacate and this appeal followed.

On the first ground for appeal, the jury instructions, the Court found the trial court did not err in refusing to give Green’s requested identification charges. Green failed to show error from the absence of his requested charges because the substance of many of his requested charges were included in the trial court’s standard identification charge. Further, the trial court informed the jury of the State’s burden of proving beyond a reasonable doubt that Green committed the crime. Thus, the trial court’s charge “adequately focused the attention of the jury on the necessity for a finding that the testimony identified defendant as the offender beyond a reasonable doubt.” (citations omitted). In addition, the Court noted that some of Green’s requested charges would have been improper instructions.

On the second ground, Green argued that the trial court erred in allowing the State to introduce his “mug shot” because it was unnecessary, cumulative to the State’s case, and prejudicial because it suggested he had a prior criminal record. “The introduction of a ‘mug-shot’ of a defendant is reversible error unless: (1) the State has a demonstrable need to introduce the photograph, (2) the photograph shown to the jury does not suggest the defendant has a criminal record, and (3) the photograph is not introduced in such a way as to draw attention to its origin or implication.” State v. Denson, 237 S.E.2d 761, 763-4 (1977). The Court reasoned that the trial court did not err in admitting the booking photo because the probative value of the booking photo was not substantially outweighed by the danger of unfair prejudice, and the State satisfied the three-factor test for the admissibility of a mug shot under State v. Denson.

On the third ground, the Court found that the trial court did not err in sentencing Green to LWOP under the recidivist statute. At the time of sentencing for his current armed robbery conviction, Green had a prior conviction for armed robbery.  S.C. Code section 17-25-45 (A)(1)(a) states in part, that a person must be sentenced to a term of imprisonment for [LWOP] if that person has one or more prior convictions for a most serious offense”. Under S. C. Code section 17-25-45 (C) (1), armed robbery is defined as a most serious defense.

Although the Court found that the trial court erred in finding Green was not a juvenile at the time of his prior conviction, Court found the trial court did not err in finding Green’s sentence did not constitute cruel and unusual punishment. Thus the LWOP was appropriate under the statute.

Accordingly, the Court affirmed Green’s conviction.

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