Case Information
*1 Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Robert Haley, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, South Carolina, for Appellant. Reginald I. Lloyd, United States Attorney, Alston C. Badger, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. *2
PER CURIAM:
This case arises out of a convenience store robbery and show-
up confrontation between the store cаshier, Norris Reid, and the
defendant, Raymond David Wilson, in which Reid identified Wilson.
Because we conclude, based on the totality of the circumstances and
the five factors identified by the Supremе Court in Neil v.
Biggers,
I.
On December 20, 2004, at approximately 3:30 a.m., a black male entered a Charleston convenience store, pointed а gun at the sole cashier, Norris Reid, and demanded money and packs of Newport cigarettes. Reid handed the cash and cigarettes to the robber, whose face was partiаlly covered by a black and grey checked jacket draped over his head. After threatening to shoot Reid, the gunman ordered Reid into the store bathroom, grabbed two 24-ounce Miller Lite bottles of beer, and left the store. Reid remained in the bathroom a short period of time, and emerged to see a red Pontiac Grand Am driving out of the store lot.
Reid called the police. He described the robber, and his clothing, firearm, and car to a City of Charleston police officer. The description was radioed to other units, and, within approximately tеn minutes, a second Charleston Police Officer, *3 Officer West, spotted a red Pontiac Grand Am parked at a second convenience store a short distance from the robbery sсene. Officer West initiated a traffic stop and the defendant was arrested while trying to evade the stop. Officer West testified that when the defendant emerged from his still-moving car and ran around a nearby house he was wearing a black and grey checked jacket and had a gun in his hand. He searched the area and found a black handgun beside a car. The defendant cоntends, however, that the gun and jacket were both found in the red Pontiac.
Officer West removed $34.54 and approximately $50 worth of crack cocaine from Wilson’s pockets. Five packs of Newport cigarettes and two 24-ounce Miller Lite bottles of beer were found in the front passenger seat of the Grand Am. Following Wilson’s arrest, Corporal Jim Byrne drove Reid to the аrrest scene twice. On the first visit, Reid identified the Pontiac Grand Am, the grey and black checked jacket, and the defendant. On the second trip to the arrest scene, Reid identified the .38 calibеr gun recovered from the arrest scene. The time from robbery to identification was approximately twenty to thirty minutes.
Wilson filed a pre-trial motion to suppress Reid’s out-of- court identifiсation on the grounds that the arrest scene show-up was impermissibly suggestive. The district court denied the motion because it found that Wilson’s show-up was not suggestive and because, even if the show-uр was suggestive, Reid’s identification *4 was a reliable one. The jury convicted Wilson of armed robbery, use of a firearm in relation to a crime of violence, felon in possession of a firearm, and possession of crack cocaine. Wilson now appeals.
II.
We review the district court’s factual findings for clear error and legal conclusions de novo. United Stаtes v. McKinnon, 92 F.3d 244, 246 (4th Cir. 1996) (citations omitted). We review for abuse of discretion the court’s rulings on the admissibility of evidence. United States v. Bostian, 59 F.3d 474, 480 (4th Cir. 1995).
The Supreme Court has outlined a two-step approach to
determine the admissibility of identification testimony. First,
the defendant must prove that the identification procedure was
impermissibly suggestive. Holdren v. Legursky,
188, 199 (1972).
The reliability of eyewitness identifications are assessed
“under the totality of the cirсumstances,” Satcher v. Pruett, 126
F.3d 561, 566 (4th Cir. 1997), gauged by the five factors
*5
identified by the Supreme Court in Neil v. Biggers,
Defendant maintains that the arrest scene show-up confrontation in which Reid identified him was unconstitutionally suggestive. Reid identified Wilson from the front seat of Corporal Byrne’s patrol car. The defendant was placed in front of the patrol car, and Corporal Byrne illuminated the area with his headlights and the white lights located on top of his car. Defendant challеnges as suggestive the fact that he was handcuffed and wearing a restraint belt and leg chains. Likewise, defendant claims that the show-up was suggestive because Corporal Byrne asked Reid if he recalled the gunman’s height, weight, build, jacket, belt, pants, and shoes.
To begin with, the exclusion of identification evidence is a
“drastic sanction” which is “limited to identification testimony
which is manifestly susрect.” Harker v. Maryland,
Cir. 1980) (quoting Stanley v. Cox, 486 F.2d 48, 51 (4th Cir. 1973)).
Assuming, however, that this show-up was suggestive, we “procеed directly to the reliability of the identification” to determine its admissibility. Holdren, 16 F.3d at 61 (citations omitted). Here, the totality of the circumstances and all five of the Biggers factors support thе district court’s finding that Reid’s identification of the defendant was sufficiently reliable.
1. The Opportunity to View. Reid had an adequate opportunity to view the gunman during the course of the robbery. The сonvenience store surveillance tape reviewed by the district court shows a well-lit store, that the robbery lasted one minute and forty-nine seconds, that Reid and the gunman were standing less thаn two feet apart during most of that time, and that five hand-to hand exchanges took place between Reid and the gunman.
Wilson argues that Reid did not have ample opportunity to
observe the robber’s face. Even if true, we held in Willis v.
Garrison, that “height, weight and clothing are acceptable elements
of identification” especially where, as here, “the confrontаtion
takes place shortly after the crime when it may reasonably be
inferred that the suspect is dressed as he was at the time of the
*7
robbery.”
2. The Degree of Attention. The district court properly
concluded that Reid was attentive. Reid was not a casual observer.
He testified that he looked the perpetrator “in the face” and also
observed his clothing and firearm. See Willis,
3. Accuracy of the Description. We agree with the district
court that Reid’s description of the gunman was not only accurate
but “right on the money.” As in Willis, the eyewitness’s
description included Wilson’s “race, height, approximate weight,
complexion, and clothing.” Willis,
4. The Witness’ Level of Certainty. Reid testified at trial that he was “sure” of his identification. His conduct at the show- up buttrеsses this testimony. Reid immediately identified the black and grey checked jacket and the red Pontiac and positively identified Wilson after studying him for a few minutes. See Willis, 624 F.2d at 494 (out-of-court identificatiоn admissible where eyewitness positively identified defendant after he put on clothing he was wearing during the robbery).
5. The Time Between the Crime and Confrontation. Reid’s identification of Wilson as robbеr occurred within twenty to thirty minutes of the underlying offense. This short time frame, like the other four Biggers factors, weighs in favor of reliability. Id. at 494-95.
Finally, Wilson argues that Reid’s in-court identification was
improper. But аn in-court identification is admissible if
reliable, United States v. Wilkerson ,
III.
For the foregoing reasons, we affirm Reid’s conviction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid in the deсisional process.
AFFIRMED
Notes
[*] Wilson also argues that this Court’s finding, in Smith v. Coiner, 473 F.2d 877 (4th Cir. 1973), that a victim’s identification was not reliable, controls this case. But the victim in Smith suffered from impaired eyesight and observed her assailant for “two seconds” with a flashlight. Id. at 882. Reid’s opportunity to view the defendant is not analogous.