State v. Brown
| Decision Date | 25 February 1986 |
| Docket Number | No. 22595,22595 |
| Citation | 347 S.E.2d 882,289 S.C. 581 |
| Court | South Carolina Supreme Court |
| Parties | The STATE, Respondent, v. Jesse Keith BROWN, Appellant. . Heard |
Chief Atty. William Isaac Diggs and Asst. Appellate Defender Joseph L. Sairtz, III of S.C. Office of Appellate Defense, Columbia, for appellant.
Atty. Gen. T. Travis Medlock, Asst. Atty. Gen. Harold M. Coombs, Jr., Staff Atty. Norman Mark Rapoport, Columbia, and Sol. Holman C. Gossett, Jr., Spartanburg, for respondent.
Appellant, Jesse Keith Brown (Brown), appearing pro se in this capital case, was convicted of murder, larceny, armed robbery and entering without breaking. He was sentenced to death for the murder and to 25 years' imprisonment for the other crimes.
This case consolidates Brown's appeal and our mandatory review of the death sentence pursuant to S.C.Code Ann. § 16-3-25 (1976). We reverse and remand for a new trial.
On the evening of December 31, 1983, John Horace McMillin (the victim) was shot to death in his Spartanburg home. The police discovered that all the bedrooms had been ransacked and that several items had been stolen.
Brown was arrested two days later and charged with the crimes.
Brown contends numerous reversible errors were committed in the (I) pre-trial, (II) guilt and (III) sentencing phases of this proceeding. However, we find it necessary to address only three issues:
I. Whether Brown's waiver of his right to counsel was made knowingly and intelligently.
II. Whether items seized without a warrant were properly admitted into evidence at trial.
III. Whether the Solicitor's cross-examination of Brown in reference to his failure to show remorse violated due process.
At a pre-trial hearing, the presiding judge informed Brown that court-appointed counsel would be made available only if he were indigent.
Following this colloquy, the judge made a factual determination that Brown was not indigent and was able financially to retain adequate legal counsel.
The judge then further examined Brown concerning his earlier statement that he did not desire counsel, carefully explaining the risks of pro se representation. He concluded that Brown's waiver of his right to counsel was made knowingly and intelligently, and permitted him to appear pro se. However, he ordered that a previously appointed public defender remain available to Brown throughout the proceedings as "standby counsel."
Brown contends that, under South Carolina law, he was entitled to free court-appointed counsel whether indigent or not. As he was not specifically informed of this right, he contends his waiver of counsel was not made knowingly and intelligently. Brown cites S.C.Code Ann. § 17-23-70 (1976), which was enacted at the turn of the century and provides:
In case any person accused or indicted for any capital offense shall desire counsel the court before whom such person shall be tried shall, immediately upon his request, assign to such person such and so many counsel, not exceeding two, as the presiding judge shall designate. Such counsel shall have free access to such person at all reasonable times, either before, at or after trial, any law or usage to the contrary notwithstanding. One of such counsel shall have a minimum of five years of practice before the bar.
As the statute makes no mention of a defendant's financial circumstances, Brown contends a right to free, appointed counsel exists, both to indigents and non-indigents alike.
The State counters that § 17-23-70 conflicts inherently with more recent statutes. We agree and hold that § 17-23-70 has been superseded.
S.C.Code Ann. § 16-3-26(B) (1976) provides:
Whenever any person is charged with murder and the death penalty is sought, the court, upon determining that such person is unable financially to retain adequate legal counsel, shall appoint two attorneys to defend such person in the trial of the action. One of the attorneys so appointed shall have at least three years' experience in the actual trial of felony cases, and only one of the attorneys so appointed shall be the Public Defender or a member of his staff.
This statute provides the exclusive procedure for appointment of counsel for indigent defendants charged with capital murder. By clear implication, non-indigent defendants have no right to court appointed counsel. This statute was enacted in 1978. It is, therefore, more recent and by its terms more specific than § 17-23-70. Under our rules of statutory construction, we hold that § 17-23-70 has been superseded and has no applicability in this case. See Duke Power Co. v. S.C. Public Service Comm'n, 284 S.C. 81, 326 S.E.2d 395 (1985) ().
The trial judge properly determined that Brown had knowingly and intelligently waived his right to counsel.
On January 2, 1984, the police received a tip from a desk clerk at the Peach Blossom Motel in Spartanburg County. The clerk, through a telephone extension, had overheard Brown discussing the victim's murder.
A seven member "SWAT" team from the Spartanburg County Sheriff's Department conducted surveillance upon Brown's motel room for approximately two and one-half hours. No search or arrest warrants were secured during this period. After observing no movement, a team member, Lieutenant Ennis, called Brown on the telephone and told him he was under arrest. Brown, along with any others in the room, was instructed to exit with hands raised. Brown, his brother Vonn, and Vonn's girlfriend Susie Shawley exited. They were arrested and taken away.
The SWAT team then conducted what is described as a "protective sweep" of the motel room. Several items stolen from the victim's home were discovered. When the State sought to introduce them, Brown moved to suppress.
Lieutenant Ennis, who was not present when Brown was arrested or at the time of the search, was the State's only witness to testify on Brown's motion. Out of the presence of the jury, he testified as follows:
The trial judge refused Brown's motion to suppress the evidence seized without a warrant, on the ground the police had made a valid search incident to Brown's arrest.
Only in a few specifically established and well-delineated situations will a warrantless search withstand constitutional scrutiny, even when law enforcement has probable cause to conduct it. The burden rests on the prosecution to establish the existence of such an exceptional situation. Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970). See also State v. Peters, 271 S.C. 498, 248 S.E.2d 475 (1978). Three possible exceptions are advanced: search incident to an arrest, exigent circumstances and plain view.
A search may be conducted incident to an arrest only if it is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest. Shipley v. California, 395 U.S. 818, 89 S.Ct. 2053, 23 L.Ed.2d 732 (1969). See also Annot., 75 L.Ed.2d 1018. Here, Lieutenant Ennis testified that Brown, Brown's brother and Shawley were arrested outside the motel room. They had been taken away at the time the search was conducted. Accordingly, the exception allowing a search incident to an arrest is not applicable.
The exigent circumstances doctrine is an exception to the Fourth Amendment's protection against searches conducted without prior approval by a judge or magistrate. The doctrine recognizes that "warrantless entry by criminal law enforcement officials may be legal when there is compelling need for official action and no time to secure a warrant." [Emphasis supplied]. Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978).
We agree with the State's position that a "protective sweep" of the motel room was justified. It was reasonable to believe that concealed persons remaining in the room might pose danger. However, Lieutenant Ennis gave no explanation as to why the police were unable to obtain a warrant during the approximately two and one-half hour period the motel room was under surveillance. The State has not met its burden of proof to justify the warrantless search under this exception.
A plurality of the United States Supreme Court has ruled that a "plain view" exception to the warrant requirement exists. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, reh'g denied, 404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120 (1971); Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75...
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