State v. Patrick
| Decision Date | 03 April 1995 |
| Docket Number | No. 2343,2343 |
| Court | South Carolina Court of Appeals |
| Parties | The STATE, Respondent, v. Charles Waymon PATRICK, Appellant. . Heard |
C. Rauch Wise, of Greenwood; & S.C. Office of Appellate Defense, Columbia, for appellant.
Attorney General T. Travis Medlock, Chief Deputy Atty. Gen. Donald J. Zelenka, Sr. Asst. Atty. Gen. Harold M. Coombs, Jr., Staff Atty. Charles F. Reid, Columbia, and Sol. W. Townes Jones, IV, Greenwood, for respondent.
Charles Waymon Patrick appeals his conviction for burglary, armed robbery, assault with intent to kill, and use of an automobile without permission. We affirm.
Patrick was originally convicted in 1976 for burglary and received a life sentence. He appealed and the Supreme Court affirmed. State v. Allen, 269 S.C. 233, 237 S.E.2d 64 (1977). In 1992, Patrick petitioned for post conviction relief and the circuit court found he received ineffective assistance of counsel and reversed his conviction. The State sought a writ of certiorari, which the Supreme Court denied. In 1993, the State re-indicted Patrick for the charges on which he was convicted in this case.
Early in the morning on October 11, 1973, three men went to the residence of Walter and Loraine Huckabee in Abbeville County. They created a noise to get the Huckabees to come out of the house. Upon hearing the noise, Mr. Huckabee went to the front yard to investigate. There he saw three men wearing gloves, wigs, bandannas, and ski masks and carrying shotguns and pistols. When Mr. Huckabee yelled to his wife to hide, one of the men shot him in the side.
After cutting the telephone line and removing a portion of it, the men broke the glass in the back door to unlock it. They found Mrs. Huckabee locked in a bathroom and threatened to kill her if she did not come out.
Patrick then led Mrs. Huckabee around the house at gunpoint for approximately two hours demanding she find a safe which she denied she had. Although he had a bandanna over his face and a wig, she could see him well because the home had large windows which let in light from an outside floodlight. Moreover, at one point Mrs. Huckabee accidentally flipped on her bedroom lights. When Patrick took her outside to see her wounded husband, she also got a good look at him.
While searching the house, the men kept the lights off and used flashlights. They communicated with each other with walkie-talkies. They stole money, a gas mask, jewelry, watches, binoculars, and a .32 caliber pistol.
Less than two weeks after the Huckabee robbery, a similar offense occurred in Pike County, Georgia. The three male assailants in that robbery wore gloves, ski masks, bandannas, and wigs. They, too, lured the victim outside by making noise. Moreover, after cutting the telephone line and removing a portion of it, they used walkie talkies and flashlights during the robbery. They also carried pistols and shotguns.
Mrs. Huckabee travelled on her own volition to Georgia to observe the trial of that case. At the trial Mrs. Huckabee recognized the defendants as the same ones who had robbed her and her husband. She also recognized Patrick as the one who had led her around the house during the robbery.
Patrick first argues the trial judge improperly allowed the State to introduce evidence of the subsequent crime in Georgia.
Generally, evidence a defendant committed other crimes is not admissible to prove the crime for which the defendant is charged. State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923). However, evidence of another crime is admissible if that evidence tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others; or (5) the identity of the person charged with the commission of the crime on trial. Id.
The trial judge ruled the evidence admissible to prove identity and common scheme or plan. In determining whether the common plan exception is applicable to a particular set of facts, the trial court must first determine if evidence of a prior or subsequent bad act bears a sufficiently close similarity or connection to the crime. State v. Parker, --- S.C. ----, 433 S.E.2d 831 (1993); State v. Hallman, 298 S.C. 172, 379 S.E.2d 115 (1989); State v. McClellan, 283 S.C. 389, 323 S.E.2d 772 (1984). Furthermore, the court must determine that the probative value of the prior acts evidence outweighs its prejudicial effect. Id.
In both the Georgia case and the Huckabee case, the suspects used the same disguises (gloves, wigs, bandannas) and the same tools (walkie-talkies, flashlights). They cut telephone lines in the same manner. They generally carried the same type of weapons. There are sufficient similarities between the Georgia case and the present case to apply the Lyle common scheme or plan exception. Moreover, here the probative value of that evidence outweighed its prejudicial effect.
Patrick also complains the prosecution failed to give adequate notice of its intent to use evidence of other crimes in this case. However, Patrick cites no authority which requires the prosecution to disclose this evidence prior to trial. Because we are unaware of any such requirement, we find this argument to be without merit.
Patrick contends the voice and eyewitness identification by Mr. and Mrs. Huckabee were tainted by a prior unduly suggestive eyewitness and voice identification.
The trial judge maintains the discretion to oversee the conduct of the trial, including the admission and rejection of testimony. The exercise of the judge's discretion will not be disturbed on appeal absent an abuse of such, or the commission of prejudicial legal error. State v. Johnson, 311 S.C. 132, 427 S.E.2d 718 (Ct.App.1993). In deciding whether evidence is admissible, the judge must determine whether the identification procedure was so impermissibly suggestive that it would " 'give rise to a very substantial likelihood of irreparable misidentification.' " State v. Gambrell, 274 S.C. 587, 590, 266 S.E.2d 78, 80 (1980) (citation omitted).
In evaluating the likelihood of misidentification, the judge should consider: (1) the opportunity of the witness to see the accused during the crime; (2) the degree of attention the witness paid to the perpetrator; (3) the accuracy of the witness' prior description of the perpetrator; (4) the level of certainty demonstrated by the witness in the identification; and (5) the length of time between the crime and the identification. State v. Stewart, 275 S.C. 447, 272 S.E.2d 628 (1980).
Here Mrs. Huckabee testified she was with Patrick for about two hours, giving her ample time to observe him. During this time she conversed with him continually and observed him under well-lighted conditions. She testified during the in...
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