State v. Crummey

443 S.C. 94

902 S.E.2d 391

The STATE, Respondent,

v.Daquan Javor CRUMMEY, Appellant.

Appellate Case No. 2020-000537

Opinion No. 6059

Court of Appeals of South Carolina.

Heard April 4, 2023

Filed May 8, 2024

Appeal From Charleston County, R. Kirk Griffin, Circuit Court Judge

Appellate Defender David Alexander, of Columbia, for Appellant.

Attorney General Alan McCrory Wilson and Assistant Attorney General Joshua Abraham Edwards, both pf Columbia, and Solicitor Scarlett Anne Wilson, of Charleston, all for Respondent.

MCDONALD, J.:

Daquan J. Crummey appeals his convictions for first-degree burglary, armed robbery, assault and battery, and possession of a weapon during the commission of a violent crime, arguing the circuit court erred in admitting into evidence a photographic identification, two Facebook screenshots, and a recorded jail call. Crummey also challenges the validity of the warrant authorizing the search of his iPhone. We affirm.

Facts and Procedural History

On July 23, 2017, several people gathered at Alberto Garcia’s trailer in North Charleston to share a meal. Dulce Martinez-Garcia, then sixteen years old, was watching from a kitchen window for her ride when she saw two young men walking across the street. She then heard a knock at the door and got up to answer, believing it to be her ride. Instead, she found the two men at the door. They forced their way inside the home and "took their weapons out of their pants."

While pointing their weapons at Alberto and his guests, the men demanded money and ordered everyone to get on their knees and face the wall. Dulce translated their demands for the group. The taller of the two men struck Alberto near his right eye with the gun and hit him in the face again after Alberto pulled a wallet from his shirt pocket. As the guests gathered their cash and cell phones, the assailants demanded more money and ransacked the home. Dulce testified, "The taller young man took me by the hair and hit me in the right side of my head." At some point during the robbery, a neighbor opened the door to the trailer, saw what was happening, and fled.

Once the men left, Dulce called the police. Law enforcement arrived to find several people waiting outside the trailer. Deputy Nicholas Vecchione of the Charleston County Sheriff's Office (CCSO) described the scene as chaotic and crowded, noting most of the people at the scene did not speak English. Dulce and another bilingual person helped translate.

EMS transported Dulce and Alberto to a hospital for evaluation and treatment; CCSO Detective Zulifqar Khan first interviewed Dulce there. Dulce told Detective Kahn that she recognized the taller assailant because she had seen him standing in front of the auto shop where her father worked. She recognized the other man from school, but she did not know either of the men’s names. Detective Khan later met Dulce at her high school to review yearbooks in an effort to identify the intruders. Although Dulce initially considered someone from the school yearbook as a possible suspect, she realized that young man merely had similar features but was not one of the men from the robbery.

A few days later, Dulce was on Facebook when she saw an image of the taller assailant on her timeline. Dulce did not know how she had connected with this person on Facebook, but later noted, "It was probably me because I was the one always adding, honestly, whoever was coming to my page." Dulce began looking through the photographs associated with the account and saw the shorter assailant, Denali White, in a photo that was later introduced at trial as State’s Exhibit 85. She then contacted Detective Khan and told him she found the men on Facebook in photos posted to the account of "Runacheckup Youngn." Detective Kahn recognized Crummey as the taller man associated with the Runacheckup Youngn account. Later in the investigation, Detective Khan learned Crummey had been involved in a traffic stop with White just a few days after the robbery.

Dulce subsequently identified Crummey and White from their respective photographic lineups, and both had cell phones with them when arrested. Detective Khan obtained search warrants for the phones, which revealed text messages between Crummey and White discussing hitting a "lick" on the morning of the robbery.

Crummey and White were jointly tried in March 2020. Crummey was convicted of first-degree burglary, two counts of first-degree assault and battery, possession of a weapon during the commission of a violent crime, and four of the five armed robbery counts. He was acquitted of a fifth armed robbery charge.¹ The circuit court sentenced Crummey concurrently to fifteen years on the burglary, fifteen years for each armed robbery conviction, ten years for each assault and battery, and five years on the weapon charge.

Standard of Review

[1–3] "In criminal cases, appellate courts sit to review errors of law only." State v. Robinson, 426 S.C. 579, 591, 828 S.E.2d 203, 209 (2019). "As to evidentiary issues, ‘we are limited to determining whether the trial judge abused his discretion.’ " State v. Hawes, 423 S.C. 118, 126, 813 S.E.2d 513, 517 (Ct. App. 2018) (quoting State v. Wilson, 345 S.C. 1, 5, 545 S.E.2d 827, 829 (2001)). "An abuse of discretion occurs when the trial court’s ruling is based on an error of law or, when grounded in factual conclusions, is without evidentiary support." State v. Black, 400 S.C. 10, 16, 732 S.E.2d 880, 884 (2012) (quoting State v. Jennings, 394 S.C. 473, 477–78, 716 S.E.2d 91, 93 (2011)).

Analysis

I. Photographic Lineup

Crummey challenges the circuit court’s admission of Dulce’s photographic lineup identification, arguing it was cumulative, suggestive, not probative, and unreliable. Crummey contends admission of this evidence was improper because Dulce had already identified him through Facebook as the taller assailant. We disagree.

[4, 5] "When a defendant challenges the admissibility of a witness’s identification, trial courts employ a two-pronged inquiry to determine whether due process requires suppression." State v. Wyatt, 421 S.C. 306, 310, 806 S.E.2d 708, 710 (2017). "First, the court must determine whether the identification resulted from ‘unnecessarily suggestive’ police identification procedures." Id. "If … the court determines the procedures were both suggestive and unnecessary, the court must then determine ‘whether the out-of-court identification was nevertheless so reliable that no substantial likelihood of misidentification existed.’ " Id. (quoting State v. Liverman, 398 S.C. 130, 138, 727 S.E.2d 422, 426 (2012)). "If the court finds the police procedures were not suggestive, or that suggestive procedures were necessary under the circumstances, the inquiry ends there and the court need not consider the second prong." Id.

Pretrial, the circuit court held a Neil v. Biggers² hearing to determine the admissibility of Dulce’s identification of Crummey from the photo array. Dulce recalled that one of the men was taller than the other, and she thought she recognized one from her school and the other as someone she had seen in front of the auto shop where her father worked. Dulce was able to observe both men during the robbery because she had to translate their demands for the other victims. She testified that "the tall guy had all black clothes on and … had a hat on turned backwards. And the shorter guy had a grey tee-shirt and black pants." Although Dulce admitted she was initially unable to identify either of the men when she met with Detective Khan to review yearbooks, she explained she recognized the taller man a few days later when an image from his livestream appeared on her Facebook timeline. Dulce went to the account, "Runacheckup Youngn," and reviewed the posted photographs. When she came across a photo of the two suspects together, Dulce took screenshots and "texted Detective Kahn right away."

Dulce went to the CCSO a few days later to review photo arrays and identified Crummey as the "main one from the robbery." Although Dulce wrote on the identification form that she recognized Crummey "because I’ve seen him before at school and he also used to be in front of my dad’s work," she admitted during the Biggers hearing that this was a mistake. Dulce confirmed she recognized White from school and Crummey from the auto shop where her father worked.

Crummey argued Dulce's identification should be excluded because it differed from a typical photo array identification in that Dulce already "had someone in mind" due to the Facebook information she found on her own. The circuit court disagreed, finding the lineup procedure was not unduly suggestive and Dulce—the victim who had the most contact with the men during the home invasion robbery—identified Crummey and White with certainty.

[6, 7] We are not persuaded by Crummey’s argument that the lineup was unnecessary, unreliable, and cumulative because Dulce had already identified him from Facebook. Cf. Upson v. State, 442 S.C. 359, 366, 897 S.E.2d 564, 568 (Ct. App. 2024), reh’g denied (Mar. 1, 2024) ("[A] witness’s independent identification process in which the state is not involved cannot be said to be unduly suggestive."). The lineup exhibit was relevant to establish Dulce could identify the taller assailant, and it allowed her to explain that while she initially considered another individual from her yearbook as a potential suspect, she eliminated him and was confident in her recognition of Crummey. Moreover, Crummey’s lineup array was not in any way suggestive—it contained six photos of black males with similar hairstyles and features. See, e.g., State v. Simmons, 384 S.C. 145, 168, 682 S.E.2d 19, 31 (Ct. App. 2009) (finding photo lineup admissible despite defendant’s contention that his ears were smaller than those of others in the lineup). Nothing in the lineup itself or the conducting officer’s behavior suggested Crummey was the target of the investigation. Because Dulce’s photographic...