State v. Cheeseboro

Decision Date27 August 2001
Docket NumberNo. 25347.,25347.
Citation346 S.C. 526,552 S.E.2d 300
PartiesThe STATE, Respondent, v. Felix CHEESEBORO, Appellant.
CourtSouth Carolina Supreme Court

Senior Assistant Appellate Defender Wanda H. Haile, of S.C. Office of Appellate Defense, of Columbia, for appellant.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, Assistant Attorney General S. Creighton Waters; and Solicitor Warren B. Giese, all of Columbia for respondent.

MOORE, Justice:

Appellant was charged with the 1996 armed robbery and execution-style shooting of three victims at Kelly's Barbershop in Columbia. One victim survived the shooting and identified appellant as the perpetrator. The State sought the death penalty. The jury found appellant guilty of three counts of armed robbery, three counts of kidnaping, two counts of murder, and one count of assault and battery with intent to kill but did not recommend death. The trial judge sentenced appellant to consecutive terms of thirty years for each armed robbery, thirty years for the kidnaping of the surviving victim, life without parole for each murder, and twenty years for assault and battery with intent to kill. We affirm.

FACTS

Kendrick Davis worked as a barber at Kelly's. On the morning of March 14, 1996, he arrived at work around 6:10 a.m. Mr. Kelly was already cutting a customer's hair and another customer, Leon Poole, was waiting. After confirming that Mr. Poole did not need his services, Davis sat down with a cup of coffee to read the newspaper. As Mr. Kelly's first customer was walking out the door, Davis overheard someone ask for the time. A few minutes later, Davis lowered his newspaper and saw a black man wearing a toboggan cap standing in front of him with a gun. The man told him it was a holdup and instructed him to get up and go to the back room. At trial, Davis identified the man as appellant.

Davis tapped Mr. Kelly on the shoulder and told him they were being robbed. Mr. Kelly and Mr. Poole, who were both in their 70's, were slow-moving. Davis led them to the back room which was very small and narrow. When they reached the back room, appellant ordered them back to the front where he told them to get on their knees and throw their wallets out on the floor. At this point, appellant pulled his cap down over his face. Mr. Kelly fumbled getting his wallet out and appellant ordered them to hurry up. Finally, appellant told them to get up and go back to the room at the back of the shop. Davis again led the way.

Appellant ordered the three men onto their knees with their hands behind their heads. Davis heard one shot, then another. The third shot struck him in the left thumb and the back of the neck. Davis lay on the floor and waited there several minutes. Mr. Poole, who weighed about 200 pounds, had fallen on top of him and they were all three lying in a pool of blood. Davis had some difficulty getting up but he was finally able to reach the telephone and dial 911.

Police arrived shortly thereafter and transported Davis to the hospital where he was interviewed almost immediately. Davis gave a description of the assailant as a black male in his mid-twenties, medium build, about 5'10". He gave a similar description later that day except he added that the perpetrator had a thin mustache. On March 15, Davis met with a forensic artist who developed a composite drawing based on Davis's description of the assailant.

Meanwhile, SLED analyzed three bullets from the barbershop crime scene and concluded they had been shot from the same gun that was used to kill a cab driver at a shopping mall in Richland County on February 19. During this time, appellant was living with his sister, Glenda Love, in Eau Claire. He moved in with her after his release from prison on February 2, 1996. Appellant, who was an aspiring rap artist, had legally changed his name to "King Justice." He worked part-time for a janitorial service.

Appellant was not at home in the early morning hours of March 14. Love did not speak with him until early that evening when he asked if she had heard about the barbershop shooting. During the next few days, Love noticed a newspaper article about the killings in which someone had highlighted the words "execution style." She noticed that other articles had been clipped from her newspapers.

Love saw the composite drawing of the suspect in the paper and thought it looked like appellant. She also thought the description of the hat and coat worn by the suspect matched appellant's. At some point, she found shoes wrapped up in a brown leather jacket. Finally, on March 27, she found a gun in a shopping bag in her house.

Love became alarmed and alerted police. The next day, March 28, police executed a search warrant at the Love residence but found nothing relevant except the newspaper clippings and a ski cap with two holes in it. Love testified she never saw the gun again.

Nothing further happened in the investigation of this case until October 1996. On October 3, officers executed a search warrant in an unrelated case at the residence of Lamont Hilliard on House Street in Columbia. They were looking for stolen goods reportedly at that location. During the search, police confiscated a .38 caliber Smith & Wesson handgun. SLED subsequently matched this gun to the bullets from the barbershop and cab driver murders.

As a result, Lamont Hilliard was interviewed by police. Hilliard told police he got the gun from Bernard Johnson in May 1996. Police then interviewed Bernard Johnson who stated he bought the gun on the street in November 1995 and gave it to appellant shortly after appellant got out of prison around the end of January 1996. Appellant returned the gun to Johnson in May or June 1996, and Johnson left it with Hilliard. Johnson told police appellant said he had used the gun to commit the barbershop murders.1

The same day Johnson was interviewed, police had appellant transported from Greenville where he was incarcerated on another charge. Appellant admitted receiving Johnson's.38 in February of 1996 but claimed not to remember how long he had possessed it.

Police then executed a search warrant at Glenda Love's residence where appellant had been living. They found the name "Virgil Howard" on some letters addressed to appellant and ascertained that Virgil Howard was an inmate. Prison officials then confiscated letters written by appellant from Howard's cell. Appellant stipulated he wrote these letters. The first letter reads as follows:

Yo, Peace G, I got everything, even two letters from you. Things have been slow, but send them flicks because next time you write, my check will be cashed by then. I'm working with a janitorial service, so I can pay the payroll officers. Bust it. You know this shit ain't me. I got to have a backup when my licks don't go over. Read my last letter, you'll see where I told you about the Cee-Allah-Born. That didn't come out right because he tried to stag, so I sent him to the essence. You've heard about it. It was the one down by the mall last month.... Now that I got my God-U-Now back, I'm about to get busy tonight, March 1st ... I $300 (sic) for the demo tape, so someone's got to go.

Law enforcement officials familiar with a code used by inmates testified that "Cee-Allah-Born" means "cab," "God-Now" means "gun," "licks" means robbery, and "to stag" means "to resist." There was only one cab driver murder in the first three months of 1996 and it was the one matched to the .38.

The second letter reads as follows:

Yo, Peace G, Yo, Black, I'm telling you, shit ain't so swift as I thought. The licks that I thought were going to put me on turn out to be locked down with Self-Allah-Father-Equality.
So I just got small change. But I'm about to make a mad move Tuesday night 20th, that's going to put me on or put me away. Things are looking up for my music goals. I'm meeting with this kid that works in the music department for Black Newspaper. He gone to the Soul Train Music Awards, but he'll be back Monday.... I've got this bull-shitting job so I can buy some things for my capers on them devils Tuesday. The lyrics aren't all that sharp, but the beat is going to be the shit. I had to leave your stuff in my folder in the jail with this God Body because I was licking that night, but I'm sending for it now. Write Shabazz and tell him what's up but keep the caper between us, all right? Yo, Black, hang in there with me. I'm striving hard to get on and stay out at the same time. So I haven't forgot you, I've just been making a lot of moves. Write when you get this. Peace, King Justice. I got the stamps and envelopes from a lick I made. If I send one too many, just keep it for yourself.

Law enforcement translated "Self-Allah-Father-Equality" as meaning "safe." There was an unopened safe at the barbershop.

Finally, inmate Dan Temple testified that appellant told him while they were incarcerated together that he (appellant) was charged with the barbershop murders, that one of the victims had lived, and that he wished he had shot him again.

DISCUSSION
1. Destruction of gun

Appellant contends the murder weapon and any testimony regarding it should have been suppressed, or the indictments against him dismissed, because the gun was destroyed before the defense team could examine it. We disagree.

The State presented the following evidence at a pre-trial hearing. Officer Conyers of the Columbia Police Department, who confiscated the gun from Hilliard's residence on October 3, 1996, checked over a four-day period for a report that it was stolen. When her check turned up no owner, she tagged the gun "destroy or sell" and placed it in the evidence room. All this was done pursuant to normal department procedures. On October 16, the gun was transported to SLED for testing in an unrelated shooting case. The next day,...

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