State v. Wimbush

556 S.E.2d 413, 347 S.C. 513, 2001 S.C. App. LEXIS 139
CourtCourt of Appeals of South Carolina
DecidedNovember 5, 2001
DocketNo. 3402
StatusPublished

This text of 556 S.E.2d 413 (State v. Wimbush) is published on Counsel Stack Legal Research, covering Court of Appeals of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Wimbush, 556 S.E.2d 413, 347 S.C. 513, 2001 S.C. App. LEXIS 139 (S.C. Ct. App. 2001).

Opinion

CURETON, J.:

Donald Ray Wimbush was convicted of two counts of murder and one count of possession of a weapon during the commission of a violent crime. Wimbush appeals, arguing the trial court erred in failing to grant a directed verdict and in allowing the testimony of a State’s witness. We affirm.1

FACTS

This is a circumstantial evidence case. The evidence, viewed in the light most favorable to the State, is as follows. The two victims, Elijah Hunt and Kevin White, were found shot to death at the T & T nightclub by a passerby around noon on November 17, 1995. When the police arrived at the scene they found Hunt on the floor near a door entering the pool table area and Kevin White lying on the floor near the pool table. Police recovered ten beer cans in the pool table area. Seven empty beer cans were found on the table near [516]*516White, two opened beer cans were on a chair in the pool table area next to White, and one unopened can was on the floor. A black Nike cap was found lying on top of White’s left arm. A Dallas Cowboys blue knit cap was found near White’s body. The door to the premises was unlocked, but the keys were found at the scene.

A SLED expert in fingerprint analysis tested forty-four latent fingerprints taken from the ten beer cans and found six prints matched the appellant Wimbush and three matched the victim Hunt. A ballistics expert found that Hunt was shot with a .357 magnum or a .38 caliber handgun. The bullet fragments taken from White were unsuitable for identification.

Peggy Nelson, Hunt’s niece, stated she ran the T & T nightclub and that she closed it between 8:00 p.m. and 8:30 p.m. on November 16, 1995 because they had no customers. She lived five doors down from the club on Pelfrey Road, and Hunt had been living with her for about a month. Nelson stated that before she left the club, she locked the doors and cleaned up, throwing away all the beer cans she could find. Nelson stated she was certain she had picked up every can that was in plain view.

Nelson testified the last time she saw her uncle alive was when he was standing in her kitchen sometime between 12:30 a.m. and 1:30 a.m. in the early morning hours of November 17th. Nelson stated Hunt had access to the keys to the T & T nightclub, which were found at the scene, because he would sometimes go down to the club in the afternoon to get a fire started in order to warm the building before she arrived. She noted Wimbush had previously been to the club, but she could not recall how often.

Daphne Nelson called Hunt, her uncle, at her mother’s (Nelson’s) house and spoke to him for about five minutes around 12:30 a.m. on November 17th. Hunt was to bring her daughter’s clothes over to her home, but Hunt never made it to her house.

Wadell Mack stated he saw the victim Kevin White with Wimbush around 11:00 p.m. on November 16, 1995, when White and Wimbush were standing in the road in front of his home. Wadell confirmed he sold Wimbush a .357 magnum handgun for $100 in April of 1995.

[517]*517Travis Mack, whose sister was dating White, testified he saw Wimbush and White together, on the night of November 16,1995, while they were all standing around a fire in his yard, and he noticed Wimbush was carrying a .357 handgun. According to Mack, the next time he saw Wimbush was around 3:30 a.m. on the morning of November 17th when Wimbush came over and asked White to go with him to get a drink. Mack stated White refused at first, telling Wimbush, “I’m not f* * *ing with you.” Wimbush left the room and came back, telling White he had some liquor. White then dressed and left with Wimbush. Before he left, White told Mack that he “was going to Elijah’s [Hunt’s] house to get a beer” and that he would “be right back.” However, White never returned home, and Mack never saw Wimbush again.

Mack stated when Wimbush left he was wearing blue jeans, a black Nike cap, and a FILA jacket. Mack positively identified the hat retrieved at the scene as being the one Wimbush was wearing when he left with White. Mack stated White was wearing a Dallas Cowboys blue knit cap with a star on the front.

Around 6:00 a.m. on November 17th, Wimbush arrived at Victoria Delay’s house. Delay had met Wimbush before but they were not friends. Delay testified that when she opened the door, “He [Wimbush] said he didn’t want to hurt anybody. He just needed a ride home, because his girlfriend had left him back there in the projects.” Delay told Wimbush to wait in her car while she got ready for work, and he came back to her door twice, at one point asking her if she had any company at her home. When she came out to leave, Wimbush was gone. As she drove down the street, Delay saw Wimbush walking and gave him a ride to his girlfriend’s house. Wimbush told Delay that he needed to go home to get some sleep. Wadell Mack, who left for work each morning at 6:30 a.m., confirmed that he saw Wimbush walking along the road around 6:35 a.m. on November 17,1995.

Mary Mack, who at the time of the murders had been Wimbush’s girlfriend for a year and a half, testified that Wimbush arrived at her home around 6:45 a.m. on November 17th. Mary had given Wimbush a ride out to “the country,” as she called it, the evening before. Wimbush told Mary that [518]*518he had just talked to his mother and that he needed a ride to the bus station so he could go to New York because his sister was sick. Mary dropped Wimbush off at the bus station but did not see him enter. Wimbush told her he would be back the following Thursday in order to go to a wedding they had planned to attend together on Saturday. However, Wimbush did not return, and Mary never heard from him again until nearly a year later when he was in the Sumter County Jail. Notably, Wimbush’s mother and the purportedly sick sister did attend the wedding on Saturday as scheduled.

After the State rested, Wimbush moved for a directed verdict. The trial court denied the motion, finding there was sufficient circumstantial evidence presented to create a question of fact for the jury as to Wimbush’s guilt.2 The jury convicted Wimbush of two counts of murder and one count of possession of a weapon during the commission of a violent crime. He received concurrent sentences of life in prison on each murder conviction and five years for possession of a weapon. This appeal followed.

LAW/ANALYSIS

I. Directed Verdict Motion

Wimbush first contends the trial court erred in denying his motion for a directed verdict because the State failed to present substantial circumstantial evidence of-his guilt. We disagree.

In State v. McHoney, 844 S.C. 85, 544 S.E.2d 30 (2001), our supreme court recently reiterated the standard for reviewing the denial of a directed verdict motion:

A defendant is entitled to a directed verdict when the State fails to produce evidence of the offense charged. State v. Brown, 103 S.C. 437, 88 S.E. 21 (1916). In reviewing a motion for directed verdict, the trial judge is concerned with the existence of the evidence, not with its weight. State v. Mitchell, 341 S.C. 406, 535 S.E.2d 126 (2000). On appeal from the denial of a directed verdict, an appellate court must view the evidence in the light most favorable to the State. State v. Burdette,

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Related

State v. Ballenger
470 S.E.2d 851 (Supreme Court of South Carolina, 1996)
State v. Hamilton
543 S.E.2d 586 (Court of Appeals of South Carolina, 2001)
State v. McHoney
544 S.E.2d 30 (Supreme Court of South Carolina, 2001)
State v. Mitchell
535 S.E.2d 126 (Supreme Court of South Carolina, 2000)
State v. Kelsey
502 S.E.2d 63 (Supreme Court of South Carolina, 1998)
State v. Scott
497 S.E.2d 735 (Court of Appeals of South Carolina, 1998)
State v. Gardner
505 S.E.2d 338 (Supreme Court of South Carolina, 1998)
State v. Burdette
515 S.E.2d 525 (Supreme Court of South Carolina, 1999)
State v. Pinckney
529 S.E.2d 526 (Supreme Court of South Carolina, 2000)
State v. Lyle
118 S.E. 803 (Supreme Court of South Carolina, 1923)
State v. Brown
88 S.E. 21 (Supreme Court of South Carolina, 1916)

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Bluebook (online)
556 S.E.2d 413, 347 S.C. 513, 2001 S.C. App. LEXIS 139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wimbush-scctapp-2001.