Davis Adv. Sh. No. 31
S.E. 2d
STATE v. ASBURY
THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
v.
Willie James Asbury, Appellant.
Appeal From York County
Don S. Rushing, Judge
Opinion No. 24712
Heard December 5, 1995 - Filed November 10, 1997
AFFIRMED
Assistant Appellate Defender Robert M. Dudek, of S.C.
Office of Appellate Defense, of Columbia, for appellant.
Attorney General T. Travis Medlock, Chief Deputy
Attorney General Donald J. Zelenka, Senior Assistant
Attorney General Harold M. Coombs, Jr., Staff Attorney
Charles F. Reid, all of Columbia; and Solicitor Thomas E.
Pope, of York, for respondent.
Burnett, A.J.: 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
1 The trial judge granted a directed verdict in Asbury's favor on
charges of armed robbery and burglary.
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STATE v. ASBURY
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 Sheriff's 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
electric 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.
p. 16
STATE v. ASBURY
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.3rd 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
p. 17
STATE v. ASBURY
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. V, § 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
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).
p. 18
STATE v. ASBURY
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 Asbury'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
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
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
guilt may be fairly and logically deduced. State v. Brazell, __ S.C. __,
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 (1989). In ruling on a motion for a
3 These items were not admitted into evidence.
p. 19
STATE v. ASBURY
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, __S.C.__, 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
p. 20
STATE v. ASBURY
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, A.J., and FINNEY, C.J.,
dissenting in separate opinions.
p. 21
STATE v. ASBURY
TOAL, A.J.: The defendant Willie James Asbury appeals his
convictions of murder and kidnapping, asserting, inter alia, that the court
erred in refusing to suppress evidence improperly seized from Asbury's home.
I agree and must, therefore, dissent from the majority opinion.
On January 6, 1992, six officers went to Asbury's trailer house to serve
on him outstanding warrants and commitment orders unrelated to the
present case. Asbury had been pinpointed as a suspect in the murder of
Ezell Lawrence ("Victim"). The officers went to Asbury's residence early in
the morning. When they arrived, they did not see any vehicles outside. The
doors of the trailer house were locked, and no noises could be heard coming
from inside. An officer testified that a light could be seen inside the house.
The officers claimed that they knocked on the front door and called to
Asbury, but did not receive a response. They decided to enter the trailer
through an open window. Two officers, one following the other, entered
through the window, while the others had their weapons drawn in order to
protect the entering officers. They then opened the front door from inside.
In checking the rooms for Asbury, the officers found in plain view an
electric blanket with its electrical plug missing. Asbury himself was not at
home. The officers left the residence, but did not remove any evidence. They
procured a search warrant two days later on January 8th and returned to the
residence in order to seize the electric blanket. On January 15th, the officers
secured another search warrant and seized numerous appliances that had
had their electrical cords cut off, as well as other items in the residence that
could be used to cut electrical cord, including a pair of scissors.
In Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639
(1980), the Supreme Court wrote that "for Fourth Amendment purposes, an
arrest warrant founded on probable cause implicitly carries with it the
limited authority to enter a dwelling in which the suspect lives when there
is reason to believe the suspect is within."1d Id. at 603, 100 S. Ct. at 1388
63 L. Ed. 2d at 661. The South Carolina Supreme Court applied this
1d Although initially this language may have been viewed as dicta, since
under the facts of Payton, the officers lacked an arrest warrant, the Supreme
Court has cited it with approval in subsequent cases, see Michigan v.
Summers, 452 U.S. 692, 101 S. Ct. 2587, 69 L. Ed. 2d 340 (1981); Steagald
v. United States, 451 U.S. 204, 101 S. Ct. 1642, 68 L. Ed. 2d 38 (1981), and
it has been recognized as binding by the federal circuit and state courts that
have considered the issue. See United States v. Underwood, 717 F.2d 482
(9th Cir. 1983), cert. denied, 465 U.S. 1036 (1984).
p. 22
STATE v. ASBURY
standard in 1981 when it decided State v. Loftin, 276 S.C. 48, 275 S.E.2d 575
(1981) ("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."')(quoting Payton). In Loftin the Court found that there were no facts
or circumstances from which the police could have entertained a reasonable
belief that the defendant was in his apartment. No one appeared to be at
home when the police arrived, no one answered when the officers knocked on
the door, and no sign of the defendant was perceived, despite a stake-out of
an hour and a half. Accordingly, the evidence which the police found after
the apartment complex manager let them into defendant's apartment was
excludable as fruit of an illegal search.
Under the standard articulated in Loftin, the evidence in the present
case would similarly be deemed as impermissibly seized because there was
not reason to believe the suspect was within his trailer house. This is
revealed by the testimony of one of the officers:
Q: And you got there and there was no evidence of anybody
being present, was there?
A: When we first got there you really couldn't tell if anyone
was present or not ....
Furthermore, the officers did not see any vehicles outside, did not
notice any activity, did not hear any noises from inside, and did not get a
response when they knocked on the door. Although the officers claimed that
they saw a light inside the residence, this was called into question on cross-
examination.2d When the officers found the doors locked, they decided to enter
2 One officer testified as follows:
Q: You testified there were no lights before, didn't you?
A: I'm not sure on that. I might have. If I said no lights, then it
may be an oversight.
Q: Well, you testified previously under oath in regards to your
activities on the inside of his trailer house is that the only light
that was available was a light, was light that was coming in from
the sunlight, is that not correct sir?
A: Yes, sir, I believe so.
Q: There was no artificial light?
A: At that time I couldn't remember a light.
Further,
p. 23
STATE v. ASBURY
through a window. Under these circumstances, I conclude the officers did not
have reason to believe that the suspect was within. Because the police did
not have the authority to enter into the home, the evidence which was later
seized was the fruit of this illegal entry and search; thus, it should have been
excluded. See Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L.
Ed. 2d 441 (1963)(where evidence would not have come to light but for the
illegal actions of the police, and the evidence has been obtained by the
exploitation of that illegality, the evidence must be excluded); State v. Plath,
277 S.C. 126, 284 S.E.2d 221 (1981).
Such a finding not only comports with our own holding in Loftin, but
it is also consistent with the application of the Payton standard by other
jurisdictions. For example, the Second Circuit in United States v. Lauter, 57
F.3d 212 (2d Cir. 1995) held that officers had reason to believe the defendant
was present in his apartment when they sought to execute an arrest
warrant.3d The officers had received information from a confidential informant
that the defendant had moved into the windowless apartment during the
weekend, that he was unemployed, and that typically he slept late. They
found him asleep inside the apartment when they entered one morning at
8:30 a.m.
The Georgia Court of Appeals held that the search subsequent to an
entry pursuant to an arrest warrant was valid where prior to their entry,
police observed a moving light in the apartment and heard noises from
within. Hardaway v. State, 372 S.E.2d 845 (Ga. Ct. App. 1988). Likewise,
United States v. Terry, 702 F.2d 299 (2d Cir.), cert. denied, 461 U.S. 931
Q: Okay. Now you saw no lights at the trailer, correct sir?
A: I can't recall whether there was lights on or not at the time.
Q: You can't recall?
A: No, sir.
3d The majority posits that Lauter is indistinguishable from the
circumstances in this case. A closer examination will reveal significant
differences between the present case and Lauter. In Lauter, agents had
received information from a confidential informant, whose father was the
landlord of the apartment wherein the defendant resided. Further, Lauter
had just moved into the apartment during the weekend. The agents had
been informed that Lauter was unemployed. Moreover, they had been told
that he typically slept late. Another distinguishing factor was that Lauter's
apartment was windowless; thus, unlike Asbury's home, it was not possible
for the officers to see any possible activity inside the residence.
p. 24
STATE v. ASBURY
(1983) held that agents had the right to enter the defendant's home where
they had verified the address through a phone listing and where upon
arriving at the apartment building, they encountered a twelve-year old boy
wearing a shirt with "Terry" on it, who told them that his parents lived in
the apartment and did not indicate that his father was not at home.
Further, agents arrived at 8:45 a.m. on a Sunday morning, a time they could
reasonably believe Terry would be at home.
In contrast, the Payton standard was not satisfied in People v. Cabral,
560 N.Y.S.2d 71 (N.Y. Sup. Ct. 1990), wherein police only had information
that the defendant may have lived at the residence some six and one-half
months earlier, where they had no additional information pointing to the
presence of the defendant in the residence, and where someone whom the
police recognized as not being the defendant answered the door; yet the police
entered and searched the apartment anyway. The same conclusion was
reached in State v. Roepka, 347 N.W.2d 857 (Neb. 1984), in which police
surrounded at 8:45 a.m. a trailer house, a location previously under
surveillance. When they knocked on the door, a third-party answered the
door and told the police the defendant was not within. The police,
nevertheless, entered. The court found that based on these facts, the officers
had no reason to believe the defendant was within the trailer house.
These cases are quite fact-specific; however, they do provide a general
sense of what constitutes "reason to believe the suspect is within." In the
present case, the officers could not have entertained a reasonable belief that
Asbury was in his home. The majority argues that the presence of three
factors -- general information that early mornings and late evenings were
good times to find Asbury at home, the existence of a light, and an open
window in the house -- were sufficient to give police reason to believe the
suspect was within his residence. Even if we accept the existence of these
factors, in light of all the indicia weighing against Asbury's presence at home,
these factors would only give rise to a mere possibility, not a reasonable
belief, that Asbury was in his residence. These factors must be weighed
against the officers' own testimony: "When we first got there you really
couldn't tell if anyone was present or not," and against the facts that they
found the residence's doors locked, noticed no activity, heard no noises from
inside, and got no response when they knocked on the door.
However, the task of determining whether the officers had a reasonable
belief is much easier. A closer examination reveals that there were not three
factors present, but really only one. First, the open window is veritably a
non-factor, as it is customary for many people, particularly in small towns in
p. 25
STATE v. ASBURY
South Carolina, to leave their house windows open. An open window does
not point to a person's presence at home, any more than a closed window
suggests his absence. Second, I find that the record does not support the
conclusion that the officers saw a light inside Asbury's residence. The
majority suggests that the officers saw a light, as evidenced by the testimony
of Detective Thompson. It is true that Thompson did testify to seeing a light;
however, when two other officers testified that they did not remember seeing
a light, it is highly questionable whether the light was a factor which led the
police to believe Asbury was at home. When the factors of the light and the
window are eliminated, we are then left with only one factor, namely, the
information from neighbors. This sole factor cannot justify a reasonable
belief by the officers that the suspect was at home.
The Fourth Amendment to the United States Constitution guarantees
to individuals the right to be free from unreasonable searches and seizures.
State v. McKnight, 291 S.C. 110, 352 S.E.2d 471 (1987). This is an instance
in which Asbury's Fourth Amendment rights were violated. Accordingly, I
would reverse the circuit court's denial of Asbury's motion to suppress.
FINNEY, C.J., concurs.
p. 26