Appellants Nathan Joseph Jones and Elizabeth H. Parris were found guilty of kidnapping, rape, armed robbery and assault and battery with intent to kill. Each was sentenced to a term of life plus seventy-five years. This appeal followed. We affirm.
In the early morning of November 29, 1977, Michelle Rae Squillante was abducted at knife-point by the two assailants, onе male and one female. The assailants then drove to a secluded area where they proceeded to alternately assault, batter and sexually abuse the victim, rob her and slash her throat. On that same date appellants were arrested at their home and charged with the offenses.
Appellants filed a total of forty-eight еxceptions for this Court’s consideration on appeal. However, appellants abandoned twenty-one of these and chose to treat only twenty-seven exceptions in the form of ten questions presented. Exceptions not argued in appellants’ brief are deemed abandoned.
State v. Givens,
267 S. C. 47,
Appellants first contend the trial judge should have quashed the indictments on the basis they were denied a full preliminary hearing pursuant to Section 22-5-320, Code of Laws of South Carolina (1976). We disagree. The thrust of their argument is that the evidence presented by the State at the preliminary hearing was hearsay testimony by the chief investigating police officer who read into the record statements of other witnesses that were unavailable for cross examination by appellants. The record indicates that direct testimony of his investigation was offered by the investigating officer as well. Hearsay testimony does not render a preliminary hearing unlawful.
State v. Conyers,
268 S. C. 276,
A defendant in a criminal proceeding is afforded a preliminary hearing so that he can be appraised of the nature of the State’s evidence.
State v. Flood,
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257 S. C. 141,
Appellants also assert error in the trial judge’s refusal to allow their counsel to
vior dire
the jury panel individually, and while sequestered. This is without merit. We are satisfied, as in
State v. Neeley,
271 S. C. 33,
Appellants next argue that the trial judge erred in admitting certain evidence and testimony they chаracterize as fruits of an illegal arrest. The appellants were arrested without warrants. It is well settled that a police officer may conduct a warrantless arrest if, at the time
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of the arrest, the officer has reliable information or reasonable grounds that would justify his belief that a felony has been committed and that the arrestee is thе perpetrator.
State v. Bell,
263 S. C. 239,
At the moment of appellants’ arrests, the arresting officers knew the victim’s descriptions of her assailants and the automobile they used while committing the offenses. They had a description of an automobile and its occupants seen by a gas station attendant in the area and around the time of the crimes that matсhed the victim’s descripions. They had located an automobile matching the descriptions and had obtained separate positive identifications of the automobile from both the victim and the gas station attendant. They had information that the occupants of the house where the car was parked matched the descriptions given by the victim of the assailants.
The arrest of appellant Jones was made vdien he attempted to pull out of the driveway in the automobile after having noticed police surveillance. When stopped, appellant Jones showed the arresting officer photo identification of himself as having a full beard, as the victim had described the male assailant. Appellant Jones was then placed under arrest and the arrest of appellant Parris, who was at the time inside the house, followed. The arrests were made the same day the crimes were committed.
This Court has on prior occasions upheld warrantless arrests of felony suspects based on a victim’s descriрtion of the assailant and an automobile. See Bell, supra and Singleton, supra. We hold that these facts and circumstances cumulatively form sufficient probable cause for appellants’ arrests.
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Appellants likewise contend the search of appellant Jones’ automobile was illegal because it lacked probable cause and began рrior to the arrival of the search warrant on the scene. We disagree. The record shows appellant Jones and his brother hurriedly removed a suitcase from the car and then attempted to leave in the automobile after having notice police surveillance. The opportunity for search was fleeting. The exigency оf the situation justified the intrusion.
State v. Griffin,
262 S. C. 447,
The victim made photographic identifications of the appellants before trial. In addition to the argument that the identifications were a product of an illegal arrest, appellants contend that the photo line-ups were so suggestive as to violate due process. The lower court, after hearing testimony on the line-up procedure and examining the photos used in the line-up, found nothing suggestive about them and admitted the photos and the identifictaion. We agree.
This Court has recently considered the use at trial of pretrial photographic identification.
State v. Denson,
269 S. C. 407,
The reliability of the victim’s identificaton of appellants at the photo line-up is established by the circumstances. The opportunity to observe her assailants *730 during the period of approximately an hour and a half she spent with them, the fact thаt she was not a mere passerby witness but the victim of the crimes, the correctness of her descripions given police immediately after the commission of the crimes, the fact that no doubt was elicited from the victim at trial as to her identifications, and the passage of only two weeks between the crimes and the photo line-ups arе the factors which support reliability. Mans on, supra.
Further buttressing the reliability of the photo identification by the victim is the identification procedure itself. We have reviewed the record in this regard, and find that the procedure and the photographs are unobjectionable on due process grounds. The photo identification was properly admitted.
In view of the reliability of the photo identification and the circumstances enumerated above, the in-court identification was also properly admitted. There was no “substantial likelihood of irreparable misidentification.”
Simmons v. U. S.,
Appellants further object to the admission of the photo identification on the ground that the photo identification was a crucial stage at which appellants were denied their right to counsel. The photo line-up was conducted after counsel had been appointed to represent appellants, but without counsel present. The United States Supreme Court held in
United States v. Ash,
Appellants next assign error to thе trial judge’s admission of “bite mark” expert opinion evidence on the basis that such evidence is inherently unreliable. We disagree.
*731 The use of dental records to assist in identifying a deceased is a widely accepted and recognized procedure. However, the comparison of bite marks on a victim’s body with the dentiton of an accused to prove identify is a relatively new prosecutorial tool. It rests on the principle that a person’s dentition, like his fingerprints, is uniquely his own.
We are aware of four jurisdictions which have considered the admissibility of “bite mark” testimony, and all four have found such evidence reliable and decided in favor of admitting the evidence.
People v. Milone,
43 Ill. App. (3d) 385,
In reliance on the case of
Frye v. United States,
54 App. D. C. 46,
The admissibility of expert testimony in this State is a matter within the discretion of the trial court.
Prince v. Associated Petroleum Carriers,
262 S. C. 358,
As stated in Marx, supra:
Further, in making their painstaking comparisons and reaching their conclusions, the experts did not rely on untested methods, unproven hypotheses, intuition or revelation. Rather, they applied scientifically and professionally established techniques — X-rays, models, microscopy, photography —to the solution of a particular problem which, though novel, was well within the capability of those techniques. In short, in admitting the evidence, the court did not have to sacrifice its indеpendence and common sense in evaluating it.
We find that the trial court properly exercised its discretion in admitting the “bitemark” evidence and expert testimony for the jury’s determination of its probative value.
Appellants next contend the lower court erred in refusing to charge the lesser-included offenses of robbery and larceny in conjunction with the armed robbery instruction. We disagree.
It is axiomatic that the law to be charged in a case is determined by the evidence presented.
State v. Gates,
269 S. C. 557,
This testimony was undisputed. In fact, there is no disputed factual element of the offense charged other than identity, and no evidencе proffered by appellants to support the lesser included offenses. Their defense was alibi. Thus, the factual issue was simply whether or not the appellants were the perpetrators of the crimes charged. See
State v. Cude,
265 S. C. 313,
The Court of Appeals of North Carolina addressed this issue on an appeal from an armed robbery conviction in
State v. Clemmons,
34 N. C. App. 101,
In a prosecution for armed robbery, the trial court is not required to submit the lesser included offense of common law robbery unless there is evidence of defendant’s guilt of that crime. If the State’s evidence shows an armed robbery, and there is no conflicting evidence on the elements of the crime charged, an instruction on common law robbery is not required.
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Appellants’ contention tHat they could not lawfully be convicted of armed robbery when the evidence does not show that at (the exаct moment the victim’s ring was taken the assailants were armed is frivolous. It is not necessary that the perpetrator be armed throughout the commission of the crime. The North Carolina Supreme Court upheld an armed robbery conviction under similar circumstances in
State v. Joyner,
35 N. C. App. 89,
It is clear from this evidence that Ms. Lincoln was placed under a continuing threat with а firearm. Though Ms. Lincoln did not testify that defendant actually pointed the gun at her at the time she gave her ring to his accomplice, earlier there had been such “use” of the firearm as to force her to commit certain acts, and it had been made clear to her on several occasions prior to the actual taking of her ring thаt the firearm would be used against her if she did not comply. . . . The evidence presented by the State was, therefore, sufficient to overcome defendant’s motion for nonsuit.
Appellants next claim the trial court erred in ruling that the State could elicit testimony from appellant Parris that she smoked a marijuana cirgarette shortly before the timе the crimes were committed. Based on this ruling, defense counsel brought out this testimony on direct examination. They assert that this was evidence of a prior unconnected crime which does not fall within the well-recognized exceptions enunciated in
State v. Lyle,
125 S. C. 406,
In view of tire bizarre sexual nature of the crimes, such evidence was relevant to the state of mind and condition of the appellant Parris at the time the crimes were committed. The trial judge did not abuse his discretion in allowing the testimony, even though it did incidentally tend to prove appellant guilty of a misdemeanor. See
Lassere v. State,
Tex. Cr. App.,
Appellants’ final assignment of error is in the trial judge’s refusal to charge a special identification instruction -found in United States v. Telfaire, 152 U. S. App. D. C. 146, 469 F. (2d) 552 (1972). This has no merit. First, Telfaire emphasizes the importance of a special identification instruction where the only evidence is the sole testimony of an eye witness or victim. Such was clearly not the case here. Second, we -feel that the lower court’s instruction on the credibility of the witnesses’ testimony sufficiently covered the believabifity of the victim’s identification.
For the foregoing reasons, the convictions and sentences of appellants are affirmed.
Affirmed.