State v. Hiott

• Decision Date: 03 March 1981
• Docket Number: No. 21398,21398
• Citation: 276 S.C. 72,276 S.E.2d 163
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Charles Edward HIOTT and Walter Edward Ruff, Appellants.

Page 163

276 S.E.2d 163

276 S.C. 72

The STATE, Respondent, v. Charles Edward HIOTT and Walter Edward Ruff, Appellants.

No. 21398.

Supreme Court of South Carolina.

March 3, 1981.

Staff Atty. David W. Carpenter, of S. C. Commission of Appellate Defense, Public Defender John M. Young and Deputy Public Defender W. Gaston Fairey, Columbia, for appellants.

Atty. Gen. Daniel R. McLeod, Asst. Attys. Gen. Kay G. Crowe, Lindy Pike Funkhouser and Russell D. Ghent and Sol. James C. Anders, Columbia, for respondent.

LITTLEJOHN, Justice:

Defendants Charles Edward Hiott and Walter Edward Ruff appeal their conviction for murder, attempted armed robbery, and conspiracy. Each was sentenced to consecutive terms of life imprisonment for murder, twenty years for attempted armed robbery, and five years for conspiracy.

In January 1979, Hiott and Ruff escaped from the Wateree Correctional Institution, whereupon arrest warrants were issued by a Sumter County magistrate for their recapture. A third arrest warrant was issued for Ruby Burt, alleged wife of Charles Hiott, for aiding in the escape.

On March 13, 1979, around 7 p. m., two men, wearing wigs and sunglasses, entered Nate's Pharmacy where pharmacist William Catoe and store clerk Donald Boan were on duty. One of the men asked Boan for toothbrushes, while the other proceeded towards Catoe in the rear. Boan was then forced behind the rear counter at gunpoint and ordered down on hands and knees beside Catoe, already on the floor. Catoe apparently panicked and attempted to run, whereupon he was shot in the back and killed. The two men immediately ran out the front door. A neighbor near the pharmacy, upon hearing barking dogs and police sirens, looked out her door and saw two men scrambling in the woods about twenty yards from her house. She observed one remove and drop his coat. Police later retrieved the coat, as well as a sweatshirt, handcuffs, wigs, and sunglasses.

Four days later, on March 17, 1979, police were called to 1003 Omega Drive, a Columbia residence rented to Charlene Porter ¹. Earlier that day, Hiott and Ruff had been identified on the premises by police, and a surveillance was established from a distance to observe their activities. Ruff was later seen entering his car, along with another male whose identity could not then be determined. The officers entered the house to arrest Hiott. Actually it developed that he was not there and was simultaneously being identified as the other person in the car and arrested along with Ruff at a convenience store. In searching for Hiott at the house, police officers viewed various drugs and drug-related paraphernalia lying on an open table. Burt, Porter, and Alfred Hayes, present in the house when the officers entered, were arrested for violation of state drug laws. At that time, an officer went to the magistrate and obtained a search warrant for illegal drugs and for the handgun used in the killing.

Hiott, Ruff, Porter, Burt, and Hayes were subsequently indicted for various offenses. Burt and Porter later pled guilty to (1) harboring escaped convicts (Hiott and Ruff), (2) conspiracy, and (3) simple possession of marijuana (Burt)/valium (Porter); Hayes pled guilty to (1) and (2) above, and also to accessory before the fact to felony crime of common-law murder. Hiott and Ruff (hereafter referred to as defendants) were tried by jury and convicted.

Defendants have alleged prejudicial error by the trial judge in four respects:

(1) finding the search and seizure at 1003 Omega Drive to have been legal,

(2) admitting into evidence the drugs and gun seized at 1003 Omega Drive,

(3) permitting the jury to pass upon the charge of "attempted armed robbery," and

(4) upholding a lineup procedure and allowing an in-court identification.

I. SEARCH & SEIZURE:

Defendants argue that the entry and subsequent search of 1003 Omega Drive, resulting in the seizure of drugs and a handgun, was a violation of their Fourth and Fourteenth Amendment rights. We need not analyze the substance of their argument, since we hold at the outset that the defendants-escapees were not protected by the Fourth Amendment in this case.

In determining whether one may challenge the legality of a search and seizure, the United States Supreme Court has recently shifted away from a "standing" approach to an inquiry focusing directly on the substantive issue of whether the claimant possessed "a legitimate expectation of privacy" in the area searched. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Rawlings v. Kentucky, --- U.S. ----, 100 S.Ct. 2556, 65 L.E.2d 633 (1980). We hold that defendants, escaped convicts at the time, had no legitimate expectation of privacy which the Fourth Amendment was designed to protect.

In Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), the court made clear that a motion to suppress evidence obtained from the premises searched was not available to one wrongfully on those premises. As prison escapees, defendants obviously were not legitimately on the premises.

Defendants cannot validly argue that they had any legitimate expectation of privacy in the premises searched. As convicted prisoners serving at the Wateree Correctional Institute, they had only severely diminished rights.

"Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system." Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). See, also, Lanza v. New York, 370 U.S. 139, 82 S.Ct. 1218, 8 L.Ed.2d 384 (1962).

Once the defendants had escaped unlawfully from prison, they abandoned their only legitimate premises and surrendered any future legitimate expectation of privacy ².

"It follows that appellant's Fourth Amendment rights were no greater as an escapee than they were while he was within the confines of the penitentiary. He had lost his constitutional protection against the invasion of his privacy and had no standing to object to a search of his (motel) room and his effects by the officers." Robinson v. State, 312 So.2d 15 (Miss.1975).

That the Fourth Amendment rights of others, besides Hiott and Ruff, were involved is of no comfort to these defendants. The law is well-settled that these rights are personal and one person may not claim the rights of another. United States v. Payner, --- U.S. ----, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980).

For the above reasons, the search and seizure at issue did not violate any of defendants' Fourth Amendment rights.

II. ADMISSIBILITY OF DRUGS:

At trial, the State sought to introduce into evidence various drugs and drug-related paraphernalia seized from 1003 Omega Drive and also from a house trailer where Alfred Hayes, Hiott and Burt had apparently been living. Defendants objected on the ground that these items were nothing more than evidence of prior misconduct not sufficiently relevant to or necessary for the present prosecution. The drugs, but not the paraphernalia, were subsequently admitted.

Hiott, Ruff, Burt, Hayes, and Porter were all charged with conspiracy to rob the pharmacy. The trial judge considered the drugs and drug paraphernalia relevant to the purpose and preparation of the conspiracy in light of (1) confiscation of numerous drugs from the two premises (1003 Omega Drive and the trailer) where the five parties apparently lived, (2) choosing a drug store to rob, (3) forcing the pharmacist to lie on hands and knees directly in front of the drug counter, and (4) fleeing the store without directing attention to the cash register. Before admitting the drugs for use against Hiott and Ruff, he required that proper foundation first be established by producing sufficient evidence showing a conspiracy, in fact, existed involving Hiott and Ruff. This foundation was then established to the trial judge's satisfaction by the eye-witness identification of Hiott and Ruff as the perpetrators and by testimony of several salespersons in Columbia identifying Hayes, Burt and Porter as having purchased, on or just prior to the date of the killing, wigs and handcuffs similar to those found near the scene.

It is well-settled that the reception or exclusion of evidence is left largely to the discretion of the trial judge, whose decision will not be disturbed absent an abuse. State v. Groome, S.C., 262 S.E.2d 31 (1980). Though the drugs themselves were admitted, the trial judge excluded all drug-related paraphernalia on the basis that its prejudicial effect outweighed its probative value. He consistently asserted that the drugs were not being admitted as evidence of prior criminal activity and he imposed limitations on their admission to assure this position.

We find no abuse of discretion by the trial judge in his rulings on this evidence. He correctly applied the law to the facts before him and made considerable effort to assure that the evidence was considered in the proper light. No error was committed.

III. ADEQUACY OF INDICTMENT:

The indictment for armed robbery originally charged defendants with "feloniously tak(ing) ... goods or monies of the said John Nates Druggist, Inc., such goods or monies being described: a toothbrush." The trial judge granted defendants' motion for directed verdict for lack of sufficient evidence from which a jury could infer a toothbrush was stolen. He then struck "a toothbrush" from the indictment and ruled that the remainder of the indictment, in light of other evidence, would be sent to the jury for attempted armed robbery of "goods and monies." Defendants contend, for two reasons, that the original indictment could not support the charge upon which the jury ultimately deliberated: first, that attempted armed robbery is not a lesser-included offense of armed robbery and, second, that once "a toothbrush" was struck from the original indictment, it could not thereafter survive so as to charge the wrongful taking of ...