State v. Bennett

Decision Date09 June 1971
Docket NumberNo. 19234,19234
Citation182 S.E.2d 291,256 S.C. 234
CourtSouth Carolina Supreme Court
PartiesThe STATE, Respondent, v. Joey BENNETT, Appellant.

John W. Williams, Jr., Columbia, for appellant.

Asst. Sol. Edmund H. Monteith, Columbia, for respondent.


The defendant, Joey Bennett, was tried and convicted by a jury of the murder of Robert Green. The jury recommended mercy and he was sentenced to life imprisonment. In this appeal error is alleged (1) in the admission in evidence of a .32 caliber pistol, (2) in failure of the trial judge to grant a change of venue, (3) in failure of the trial judge to quash the indictment because of pretrial publicity, and (4) in failure of the trial judge to conduct a bifurcated trial. We affirm.

The facts out of which the murder charge arose are as follows: On November 13, 1969 the defendant Bennett, Robert Green and Ronald Sawyer (also known as Joe Lewis) left the 1500 block of Harden Street in Columbia in Green's Chevrolet automobile to proceed to a pool hall. Green was driving, Sawyer was in the front seat with him, and Bennett was riding in the rear seat. A few blocks away Bennett drew a gun and ordered both Green and Sawyer to hand over their wallets. He took their wallets and ordered them to drive to the Dentsville area some 7 or 8 miles away, and onto a dirt road. At that place he ordered Green to stop the car, and directed both Green and Sawyer to get into the trunk of the car, where he shot them, killing Green and wounding Sawyer. Bennett closed the trunk lid and left.

Sawyer managed to open the trunk lid and ended up at the Columbia hospital, where he gave to authorities a description of Bennett. When police arrived at the car, Green was found in the trunk, dead from two .32 caliber bullet wounds.

Some two hours later, at about 12:30 A.M., a sheriff's deputy, using the description which Sawyer had given, identified Bennett walking near the scene of the crime and near his home and arrested him. He denied any knowledge of the shooting, but gave some general information including his home address, which was 1535 LeeSide Circle.

Some four hours later Lt. Laverne of the sheriff's office went before Magistrate H. G. Moore of Dentsville and obtained a search warrant for Bennett's residence, describing a .32 caliber pistol as the weapon sought.

Considerable publicity was given to the killing and to the entire happening by local news media which will be referred to hereafter. Before the trial, counsel for Bennett made motions for a change of venue and to quash the indictment because of the pretrial publicity. It was the contention of counsel that a fair trial could not be held in Richland County. Both motions were overruled. Counsel also sought a bifurcated trial, which was denied.

Bennett did not testify and did not present evidence in his own behalf. All evidence referred to is accordingly presented by the State. There is no contention but that the evidence warranted the guilty verdict by the jury.

It is first the contention of Bennett that the trial judge erred in admitting into evidence the .32 caliber pistol found in his residence and the ballistic tests and fingerprints derived from the pistol, because the pistol was the product of an illegal search and seizure under the fourth and fourteenth amendments to the United States Constitution and Article 1, Section 16 of the South Carolina Constitution.

The evidence reveals that officers proceeded to search Bennett's home and found the .32 caliber pistol which was used to fire the bullets that killed Green and wounded Sawyer. Fingerprints taken from the pistol were identified as those of the accused. All of this was admitted in evidence over the objection of counsel.

It is the contention of counsel 'that the (search) warrant was defective on its face, improper, and therefore any evidence following from it is improper and should not be admitted.' It is counsel's contention that the statement made in the affidavit showed merely a belief that the gun would be found at the residence of Bennett, without giving underlying facts and circumstances to justify that belief. The affidavit was as follows:

'PERSONALLY appeared before me, Lt. James H. Laverne who being sworn, says that he is informed by Joe Lewis (Sawyer) and has good cause to believe that Joey Bennett has concealed on his person, on his premises, or in his dwelling, or in a motor vehicle or other vehicle used or operated by him at or near 1535 LeeSide Circle Dentsville South Carolina One 32 Cal pistol used in the commission of a crime.

'The facts on which such belief is based are these:

'On 11--13--69 Joe Lewis was shot in the back by Joey Bennett and left in the trunk of a 1969 chevrolet Lic No. # EB 7434 on a dirt street near the intersection of Roof street and South Lake Marion Circle. Joe Lewis further stated that Joey Bennett also shot Robert Green with the same pistol resulting in his death. The bullet was removed from the deceased person and indicated it was a 32 cal bullet. It is believed that Joey Bennett carried the gun from the scene of the shooting to his home which is a trailer at the above address.'

We are called upon to say whether the affidavit, considered as a whole, sets forth sufficient facts to establish a reasonable belief in the mind of the magistrate that the pistol would be found at Bennett's residence. In making this determination we consider both the constitutionally guaranteed rights of citizens to be in their homes free from molestation, and the reasonable needs of law enforcement officers to carry out their duties to apprehend suspects and present a case to the court.

To justify issuance of a search warrant probable cause must be shown but the term 'probable cause' does not import absolute certainty.

'A search warrant must be based on evidential facts. The evidence must be of sufficient weight to establish probable cause. It has been required to be such as will lead a man of prudence and caution to believe that the...

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16 cases
  • State v. Dupree
    • United States
    • South Carolina Court of Appeals
    • June 30, 2003
    ...v. Adolphe, 314 S.C. 89, 441 S.E.2d 832 (Ct.App.1994). The term "probable cause" does not import absolute certainty. State v. Bennett, 256 S.C. 234, 182 S.E.2d 291 (1971); Arnold, 319 S.C. at 260,460 S.E.2d at 405. Rather, in determining whether a search warrant should be issued, magistrate......
  • State v. Fletcher
    • United States
    • South Carolina Court of Appeals
    • January 31, 2005 the extent an otherwise marginal search may be justified if it meets a realistic standard of probable cause. State v. Bennett, 256 S.C. 234, 182 S.E.2d 291 (1971). Based on the totality of the circumstances, the affidavit provided the magistrate with a substantial basis for finding proba......
  • State v. Bowie
    • United States
    • South Carolina Court of Appeals
    • June 28, 2004
    ...460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983). The term "probable cause" does not import absolute certainty. State v. Bennett, 256 S.C. 234, 182 S.E.2d 291 (1971); State v. Arnold, 319 S.C. 256, 460 S.E.2d 403 (Ct.App.1995). Instead, it "merely requires that the facts available to the......
  • State v. Cross
    • United States
    • South Carolina Supreme Court
    • July 24, 2019 the United States Supreme Court that a bifurcated trial is not required by the United States Constitution." State v. Bennett , 256 S.C. 234, 242, 182 S.E.2d 291, 295 (1971). In Spencer v. Texas , 385 U.S. 554, 568, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967), the United States Supreme Court stat......
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