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[W] State v. Miller4/26/2004
conviction because of insubstantial errors not affecting the result." State v. Bailey, 298 S.C. 1, 5, 377 S.E.2d 581, 584 (1989).
Here, assuming the identification evidence was improperly admitted, we cannot conclude it could not have reasonably affected the result of Miller's trial. Miller was never identified as a participant in the robbery of the Alltel store. Indeed, no direct evidence was presented that the robbery was accomplished by anyone other than a lone gunman. While we acknowledge that there is circumstantial evidence of Miller's participation in the crime by way of Miller's apprehension with Glenn and the circumstances surrounding that apprehension, it cannot be said that, without the identification of Glenn, Miller's guilt was conclusively proven by competent evidence such that no other rational conclusion could be reached. Accordingly, we find any error in the admission of the identification evidence was not harmless.
In light of the critical nature of the identification of Glenn to the State's case against Miller, we find, under the facts of this particular case, the interests of justice required a preliminary hearing be conducted outside the hearing of the jury on the pretrial identification of Glenn, and the trial court erred in refusing to hold such a hearing. It does not follow, however, that Miller is entitled to a new trial. Rather, we remand this case to the trial court for the purpose of conducting an in camera hearing to determine whether the identification of Glenn was so tainted as to require its suppression at trial. Should such a finding be made, Miller will then be entitled to a new trial. See State v. Simmons, 308 S.C. 80, 83, 417 S.E.2d 92, 93-94 (1992) (proper remedy where court erroneously refuses to hold suppression hearing on identification is remand for such a hearing).
REVERSED AND REMANDED.
STILWELL, J. and CURETON, A.J., concur.
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