State v. Jones

• Decision Date: 11 October 1979
• Docket Number: No. 21066,21066
• Citation: 273 S.C. 723,259 S.E.2d 120
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Nathan Joseph JONES and Elizabeth H. Parris, Appellants.

Page 120

259 S.E.2d 120

273 S.C. 723

The STATE, Respondent, v. Nathan Joseph JONES and Elizabeth H. Parris, Appellants.

No. 21066.

Supreme Court of South Carolina.

Oct. 11, 1979.

Dale T. Cobb, Jr. and Michael P. O'Connell, Charleston, for appellants.

Atty. Gen., Daniel R. McLeod and Asst. Atty. Gen., Brian P. Gibbes, Columbia, and Sol., Capers G. Barr, III, Charleston, for respondent.

GREGORY, Justice:

Appellants Nathan Joseph Jones and Elizabeth H. Parris were found guilty of kidnapping, rape, armed robbery and assault and battery with intent to kill. Each was sentenced to a term of life plus seventy-five years. This appeal followed. We affirm.

In the early morning of November 29, 1977, Michelle Rae Squillante was abducted at knife-point by the two assailants, one male and one female. The assailants then drove to a secluded area where they proceeded to alternately assault, batter and sexually abuse the victim, rob her and slash her throat. On that same date appellants were arrested at their home and charged with the offenses.

Appellants filed a total of forty-eight exceptions for this Court's consideration on appeal. However, appellants abandoned twenty-one of these and chose to treat only twenty-seven exceptions in the form of ten questions presented. Exceptions not argued in appellants' brief are deemed abandoned. State v. Givens, 267 S.C. 47, 225 S.E.2d 867 (1976).

Appellants first contend the trial judge should have quashed the indictments on the basis they were denied a full preliminary hearing pursuant to Section 22-5-320, Code of Laws of South Carolina (1976). We disagree. The thrust of their argument is that the evidence presented by the State at the preliminary hearing was hearsay testimony by the chief investigating police officer who read into the record statements of other witnesses that were unavailable for cross examination by appellants. The record indicates that direct testimony of his investigation was offered by the investigating officer as well. Hearsay testimony does not render a preliminary hearing unlawful. State v. Conyers, 268 S.C. 276, 233 S.E.2d 95 (1977).

A defendant in a criminal proceeding is afforded a preliminary hearing so that he can be apprised of the nature of the State's evidence. State v. Flood, 257 S.C. 141, 184 S.E.2d 549 (1971). The accused may not offer any evidence, but is allowed to cross examine the witnesses presented by the State in its attempt to show probable cause. State v. White, 243 S.C. 238, 133 S.E.2d 320 (1963). This is the scope of a preliminary hearing in our State. Appellants are not entitled to expand the hearing into a discovery proceeding wherein they may cross examine all the State's witnesses, nor does the language of Section 22-5-320 require the State to come forward with all its witnesses and evidence at this stage. See 21 Am.Jur.2d Criminal Law § 449.

Appellants also assert error in the trial judge's refusal to allow their counsel to Voir dire the jury panel individually, and while sequestered. This is without merit. We are satisfied, as in State v. Neeley, 271 S.C. 33, 244 S.E.2d 522 (1978), that the trial judge fully complied with the Voir dire requirements of Section 14-7-1020, Code of Laws of South Carolina (1976). He also questioned the jurors individually in regard to certain specifics as requested by appellants. We are convinced that his refusal to allow counsel to question the jurors any further was well within the bounds of his discretion as to the scope of juror examination and we perceive no error. State v. Dawkins, 268 S.C. 110, 232 S.E.2d 228 (1977); State v. Peterson, 255 S.C. 579, 180 S.E.2d 341 (1971); State v. Britt, 237 S.C. 293, 117 S.E.2d 379 (1960), cert. denied, 365 U.S. 886, 81 S.Ct. 1040, 6 L.Ed.2d 197 (1961). Although it may not be reversible error for a trial judge in his discretion to permit counsel also to examine prospective jurors, we reaffirm that the better practice is for the judge to conduct the Voir dire. State v. King, 158 S.C. 251, 155 S.E. 409 (1930); State v. Britt, supra; State v. Peterson, supra.

Appellants next argue that the trial judge erred in admitting certain evidence and testimony they characterize as fruits of an illegal arrest. The appellants were arrested without warrants. It is well settled that a police officer may conduct a warrantless arrest if, at the time of the arrest, the officer has reliable information or reasonable grounds that would justify his belief that a felony has been committed and that the arrestee is the perpetrator. State v. Bell, 263 S.C. 239, 209 S.E.2d 890 (1974), cert. denied, 420 U.S. 1008, 95 S.Ct. 1453, 43 L.Ed.2d 767 (1975); State v. Singleton, 258 S.C. 125, 187 S.E.2d 518 (1972); State v. Thomas, 248 S.C. 573, 151 S.E.2d 855 (1966).

At the moment of appellants' arrests, the arresting officers knew the victim's descriptions of her assailants and the automobile they used while committing the offenses. They had a description of an automobile and its occupants seen by a gas station attendant in the area and around the time of the crimes that matched the victim's descriptions. They had located an automobile matching the descriptions and had obtained separate positive identifications of the automobile from both the victim and the gas station attendant. They had information that the occupants of the house where the car was parked matched the descriptions given by the victim of the assailants.

The arrest of appellant Jones was made when he attempted to pull out of the driveway in the automobile after having noticed police surveillance. When stopped, appellant Jones showed the arresting officer photo identification of himself as having a full beard, as the victim had described the male assailant. Appellant Jones was then placed under arrest and the arrest of appellant Parris, who was at the time inside the house, followed. The arrests were made the same day the crimes were committed.

This Court has on prior occasions upheld warrantless arrests of felony suspects based on a victim's description of the assailant and an automobile. See Bell, supra and Singleton, supra. We hold that these facts and circumstances cumulatively form sufficient probable cause for appellants' arrests.

Appellants likewise contend the search of appellant Jones' automobile was illegal because it lacked probable cause and began prior to the arrival of the search warrant on the scene. We disagree. The record shows appellant Jones and his brother hurriedly removed a suitcase from the car and then attempted to leave in the automobile after having noticed police surveillance. The opportunity for search was fleeting. The exigency of the situation justified the intrusion. State v. Griffin, 262 S.C. 447, 205 S.E.2d 186 (1974). In addition, the search began after the officers received word by radio that the search warrant had been obtained and was en route. We have held that it is not necessary to serve the owner of the premises with the search warrant prior to commencing the search. State v. Chandler, 267 S.C. 138, 226 S.E.2d 553 (1976). The search was inevitable and imminent. Therefore, application of the exclusionary rule would be inappropriate in any event. State v. Sachs, 264 S.C. 541, 216 S.E.2d 501 (1975); State v. Chandler, supra.

The victim made photographic identifications of the appellants before trial. In addition to the argument that the identifications were a product of an illegal arrest, appellants contend that the photo line-ups were so suggestive as to violate due process. The lower court, after hearing testimony on the line-up procedure and examining the photos used in the line-up, found nothing suggestive about them and admitted the photos and the identification. We agree.

This Court has recently considered the use at trial of pre-trial photographic identification. State v. Denson, 269 S.C. 407, 237 S.E.2d 761 (1977). We therein recognized that "reliability is the linchpin in determining the admissibility of identification testimony." Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140, 154 (1977).

The reliability of the victim's identification of appellants at the photo line-up is established by the circumstances. The opportunity to observe her assailants during the period of approximately an hour and a half she spent with them, the fact that she was not a mere passerby witness but the victim of the crimes, the correctness of her descriptions given police immediately after the commission of the crimes, the fact that no doubt was elicited from the victim at trial as to her identifications, and the passage of only two weeks between the crimes and the photo line-ups are the factors which support reliability. Manson, supra.

Further buttressing the reliability of the photo identification by the victim is the identification procedure itself. We have reviewed the record in this regard, and find that the procedure and the photographs are unobjectionable on due process grounds. The photo identification was properly admitted.

In view of the reliability of the photo identification and the circumstances enumerated above, the in-court identification was also properly admitted. There was no "substantial likelihood of irreparable misidentification." Simmons v. U. S.,, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247, 1253 (1968).

Appellants further object to the admission of the photo identification on the ground that the photo identification was a crucial stage at which appellants were denied their right to counsel. The photo line-up was conducted after counsel had been appointed to represent appellants, but without counsel present. The United States Supreme Court held in United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973), that the Sixth Amendment does not grant an accused the right to counsel at photo line-ups conducted by the government for the purpose of identifying the offender. We agree. We feel that the photo...