Davis Adv. Sh. No. 31
S.E. 2d

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

charges of armed robbery and burglary.

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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.

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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

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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

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).

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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

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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

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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.

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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

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).

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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

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,

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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

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

(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

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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.

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