State v. Asbury

493 S.E.2d 349, 328 S.C. 187, 1997 S.C. LEXIS 209

• Court: Supreme Court of South Carolina
• Decided: November 10, 1997
• Docket: 24712
• Status: Published

Opinions

BURNETT, Justice:

The appellant, Willie James Asbury, appeals his convictions of murder and kidnaping.¹ We affirm.

FACTS

On January 1, 1992, Ezell Lawrence was found dead in his home. His feet were bound and his hands were tied behind his back with electrical cord. A shirt was tied around his neck and part of the shirt was forced into his mouth. The cause of death was asphyxiation. Asbury’s fingerprints were found on the back-porch light bulb of Mr. Lawrence’s residence. The bulb had been unscrewed sufficiently so that it was inoperable. The switch for the light was inside the residence. Asbury resided near Mr. Lawrence and often visited at a residence adjacent to Mr. Lawrence’s property.

On January 6, 1992, just after daybreak, deputy sheriffs of the York County Sheriffs Department went to Asbury’s residence to serve him with commitment orders and arrest warrants unrelated to Mr. Lawrence’s death. Numerous previous attempts to effect service of the warrants had been unsuccessful. In preparing for the arrest, the officers verified Asbury’s address through driver’s license records, the postal carrier and neighbors. Additionally, they learned from neighbors that Asbury came home late at night and left early in the morning. Testimony reveals the officers, with the arrest warrants and commitments in their possession, knocked on the door of Asbury’s residence, announced themselves as police officers and called Asbury’s name. A light was seen inside, but no activity was noticed, and they received no response from within. The officers entered Asbury’s residence through an open kitchen window.

Asbury was not at home. However, in searching for him, the officers observed in plain view an electric blanket with a male plug but from which the electrical cord had been removed. The officers left the residence without removing any evidence. On January 8th the officers procured a search warrant, returned to Asbury’s residence and seized the electrie blanket. Another search warrant was secured on January 15th. Pursuant to this search warrant, numerous appliances from which electrical cords had been severed, partial electrical cords, and items which could be used to cut electrical cords, including several pairs of scissors, were seized from Asbury’s residence.

The State’s expert witness testified the male plug on the electric blanket had at one time been attached to the female plug on the electrical cord found tied around the victim’s ankles. He further testified the electrical cords which bound the victim’s hands and ankles had been cut by a pair of scissors found in Asbury’s home.

ISSUES

I. Did the trial court err in refusing to suppress evidence seized from Asbury’s home?

II. Did the trial court err by overruling Asbury’s motion to exclude reference to severed electrical cords and appliances which had been found in his home but which were not related to the crimes for which he was charged?

III. Did the trial court err by denying Asbury’s motion for a directed verdict?

IV. Did the trial court err by denying Asbury’s motion for a continuance?

DISCUSSION

I.

Asbury appeals alleging the trial court erred in refusing to suppress evidence seized from his home. Asbury argues the evidence seized was inadmissible because the police officers unlawfully entered his residence.

In State v. Loftin, 276 S.C. 48, 275 S.E.2d 575 (1981), this Court adopted the principle that a valid arrest warrant implicitly grants police the limited authority to enter a suspect’s residence when there is reason to believe the suspect is within. See Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). The lawfulness of entry into a private residence by law enforcement officers rests solely upon the information possessed by the officers at the time entry is effected. In Loftin the search was found to be unlawful because no one appeared to be at home, no one answered when the officers knocked on the door, and no sign of the defendant was perceived, despite an hour-and-a-half stakeout. Significantly, one officer, who was familiar with Loftin’s blue van, testified the vehicle was not in the parking area of Loftin’s apartment. Clearly, no basis existed for a reasonable belief Loftin was at home.

To the contrary, in United States v. Lauter, 57 F.3d 212 (2d Cir.1995), a federal court of appeals held officers had reason to believe the defendant was present in his apartment based upon information received from a “confidential informant” that the defendant had moved into the windowless apartment during the weekend, that he was unemployed, and that he typically slept late. Lauter was found asleep inside the apartment.

Here, the police officers had reason to believe Asbury was inside his residence. The police arrived at the residence just after daybreak because neighbors had informed them Asbury left home early in the morning. Although it was daylight, a light was on inside the residence and the kitchen window was open, suggesting someone was inside.² These circumstances are sufficient to establish a reasonable belief Asbury was within the residence at the time the officers entered. Because the officers reasonably believed Asbury was at home and entered the residence based on this belief, they were rightfully in a position to observe the electric blanket from which the electrical plug had been removed. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, reh. denied, 404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120 (1971); State v. Brown, 289 S.C. 581, 347 S.E.2d 882 (1986) (under “plain view” exception to warrant requirement, objects falling within the plain view of a law enforcement officer who is rightfully in a position to view the objects are subject to seizure and may be introduced as evidence).

This Court’s scope of review is determined by our State constitution which limits our scope of review in law cases to the correction of errors of law. S.C. Const. Art. 5, § 5; S.C.Code Ann. § 14-3-330 (1976). In criminal cases, appellate courts are bound by fact findings in response to preliminary motions where there has been conflicting testimony or where the findings are supported by the evidence and not clearly wrong or controlled by an error of law. State v. Amerson, 311 S.C. 316, 428 S.E.2d 871 (1993), citing City of Chester v. Addison, 277 S.C. 179, 284 S.E.2d 579 (1981). Since the evidence supports the trial judge’s finding the officers had a reasonable belief Asbury was at home at the time they attempted to effectuate his arrest, the trial judge properly concluded the evidence seen and eventually seized by the officers was admissible at trial. We find no abuse of discretion amounting to an error of law. State v. Cutter, 261 S.C. 140, 199 S.E.2d 61 (1973) (in criminal cases, this Court sits to review errors of law only).

II.

Police officers who had conducted the search of As-bury’s home testified briefly about some items which were seized from the home, including appliances with severed electrical cords and partial electrical cords. These items were not related to the crimes charged.³ Asbury asserts the trial judge erred by overruling his motion to exclude reference to the appliances and partial electrical cords.

Evidence is relevant if it tends to make more or less probable a fact in issue. Whether evidence is relevant in a criminal prosecution is an issue within the trial judge’s discretion. State v. McWee, 322 S.C. 387, 472 S.E.2d 235 (1996), cert. denied — U.S. -, 117 S.Ct. 695, 136 L.Ed.2d 618 (1997). However, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. State v. Alexander, 303 S.C. 377, 401 S.E.2d 146 (1991).

Because the victim’s hands and feet were bound with cut electrical cord, we find the testimony concerning the appliances and severed electrical cords found at Asbury’s home was relevant. Moreover, the probative value of the testimony was not outweighed by the danger of unfair prejudice to Asbury. We find no error.

III.

Appellant argues the trial judge erred by denying his motion for a directed verdict on the murder and kidnaping charges. We disagree.

The trial court has the duty to submit the case to the jury where the evidence is circumstantial if there is any substantial evidence which reasonably tends to prove the guilt of the accused or from which his guilt may be fairly and logically deduced. State v. Brazell, 325 S.C. 65, 480 S.E.2d 64 (1997); see also State v. Edwards, 298 S.C. 272, 379 S.E.2d 888, cert. denied, 493 U.S. 895, 110 S.Ct. 246, 107 L.Ed.2d 196 (1989). In ruling on a motion for a directed verdict, the trial judge is concerned with the existence or non-existence of evidence, not its weight. When this Court reviews the denial of a motion for a directed verdict, it views the evidence in the light most favorable to the non-moving party, and if there is any direct or substantial circumstantial evidence which reasonably tends to prove the guilt of the accused, refusal by the trial judge to direct a verdict is not error. State v. Brazell, supra.

Here, Asbury’s fingerprints were found at the victim’s residence. There was testimony electrical cords which bound the victim’s hands and ankles had been cut by a pair of scissors found in Asbury’s home. Moreover, there was evidence the same severed electrical cords had at one time been attached to an electric blanket found in Asbury’s residence. This is substantial circumstantial evidence which reasonably tends to prove Asbury’s guilt. Accordingly, the trial judge did not err by denying Asbury’s motion for a directed verdict.

IV.

Asbury was initially tried in early August 1993. A mistrial was declared. Immediately after the court authorized reimbursement of expenses, Asbury’s appointed counsel requested a transcript of the trial proceedings. Shortly before Asbury’s second trial in early September 1993, Asbury moved for a continuance, arguing he had not yet received the transcript and it was necessary for him to effectively impeach witnesses with their inconsistent statements. The trial judge denied the motion, ruling the transcript would have been beneficial, but was not essential. Asbury argues this was error.

The decision to grant or deny a continuance is within the sound discretion of the trial judge. State v. Register, 323 S.C. 471, 476 S.E.2d 153 (1996). Reversals of the refusal to grant a continuance in a criminal case are about “as rare as the proverbial hens’ teeth.” State v. Williams, 321 S.C. 455, 469 S.E.2d 49 (1996).

Asbury has not established any prejudice from the lack of access to the transcript from his first trial. As noted in the record, the court reporter’s back-up tapes from the first trial were available and Asbury could have requested use of these tapes, if necessary, to impeach a witness during trial. State v. Owenby, 267 S.C. 666, 668, 230 S.E.2d 898 (1976) (“it is preferable to have available the written transcript taken at the former hearing, but the unavailability of such a transcript does not preclude utilization of other means of proving to the court what the witness stated on a prior occasion”). We find no error in denying Asbury’s request for a continuance.

AFFIRMED.

MOORE and WALLER, JJ., concur. TOAL, J., and FINNEY, C.J., dissenting in separate opinions.

1 . The trial judge granted a directed verdict in Asbuiy’s favor on charges of armed robbery and burglary.

2 . Although testimony about the light is conflicting, on two occasions Detective Thompson unequivocally testified a light was on in the residence. This testimony supports the trial judge's decision. The trial judge is in a superior position to judge credibility and great deference must be given the judge’s determination. See Drayton v. Evatt, 312 S.C. 4, 430 S.E.2d 517 (1993) (where matters of credibility are involved, the reviewing court will give great deference to a judge's findings because the reviewing court lacks the opportunity to directly observe the witnesses).

3 . These items were not admitted into evidence.