State v. Simmons

• Citation: 352 S.C. 342,573 S.E.2d 856
• Decision Date: 25 November 2002
• Docket Number: No. 3572.,3572.
• Parties: The STATE, Respondent, v. John H. SIMMONS, Appellant.
• Court: Court of Appeals of South Carolina

352 S.C. 342

573 S.E.2d 856

The STATE, Respondent, v. John H. SIMMONS, Appellant.

No. 3572.

Court of Appeals of South Carolina.

Heard November 7, 2002.

Decided November 25, 2002.

Senior Assistant Appellate Defender Wanda H. Haile, of Columbia, for Appellant.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson and Senior Assistant Attorney General Harold M. Coombs, Jr., all of Columbia; and Solicitor Warren B. Giese, of Columbia, for Respondent.

ANDERSON, J.:

John H. Simmons was convicted of first degree burglary and petit larceny. He was sentenced to life without the possibility of parole. We affirm.

FACTS/PROCEDURAL BACKGROUND

On October 4, 1999, at approximately 2:15 a.m., Shirley Ann Thompson was in bed when she heard her door beep. Thompson had a burglar alarm system in her home on Liberty Street, but she did not have the alarm activated that evening. Even without the alarm activated, the system would beep whenever a door in Thompson's home was opened. Initially, Thompson assumed it was her son, but she soon discovered the man she saw carrying a light in her hallway was not her son. Thompson watched the figure walk down the hallway and grab her purse from the doorknob of her bedroom door, pulling the bedroom door closed in the process. Thompson grabbed her gun, chased the man out of her house, and shot toward him as he was fleeing down Liberty Street in the direction of the car wash. Thompson then called the police to report the burglary (Thompson burglary). She described the man as a dark-skinned black male wearing a black shirt with white writing on the back.

On that same morning, Douglas Brooks was watching television at his home near the intersection of Liberty and Magrath Streets, which was a block and a half away from Thompson's home. Sometime after 2:00 a.m., Brooks heard a loud noise coming from his back door which sounded like someone was trying to kick the door in. Brooks investigated the noise and saw someone jump off of his back porch. Brooks chased the man until he ran across Colonial Drive. Brooks stopped pursuing the suspect, and turned around to see a patrol car responding to the call at Thompson's house. Brooks flagged the officer down, informed him of the incident at his home, and described the suspect as wearing dark clothing.

As Officer Robert Lee Gibson was driving to Thompson's house in response to her call to 911, he saw a man in dark clothing run across Colonial Drive as he approached Liberty Street. Gibson informed another officer that he saw the suspect running down Colonial Drive. Police circle the area to find the suspect. Minutes later, the police located Simmons, who was hiding in some nearby bushes. He was wearing a black t-shirt with white writing on it. In the bushes, police found some clothing and other items Brooks had stored in his outside shed. Simmons had abrasions on his head. An ambulance was called to examine Simmons' wounds.

Thompson was taken to the scene, where she identified Simmons as the figure she had seen in her home. Although Thompson's purse was not immediately located, it was discovered the next morning across the street from the car wash near a daycare center. Because Brooks only viewed the suspect from the rear, he was unable to identify Simmons as the man who ran from his back porch.

Edward Anderson, a co-worker of Simmons, testified at trial. He stated that he and Simmons were working at the Cotton Club the evening of October 3, 1999. That night, Simmons was wearing the club's uniform, a black t-shirt with "Cotton Club" written on the back in white writing, along with black pants and suspenders. Anderson declared that he and Simmons left the club when it closed at midnight on October 4, 1999. The two men went to Dave's Lounge, where they drank several alcoholic beverages. On previous occasions, Anderson had driven Simmons home after work. Their route took them down Beltline Boulevard. After the two left Dave's around 2:00 a.m., an intoxicated Simmons directed Anderson to vary from their usual route by letting him out of the car near Beltline Boulevard and Colonial Drive, without explanation. Anderson let Simmons out of the car on Colonial Drive. Anderson then continued home.

Peter Banco, an officer with the Columbia police department, responded to Thompson's house on the morning of the burglary. He took a statement from Thompson at 4:05 a.m. He later returned to his office where he was able to speak with Simmons, who was already in custody. Banco gave Simmons his Miranda warnings. Simmons indicated he understood his rights. Simmons smelled of alcohol but he did not appear drunk to Banco. When Banco asked Simmons whether he could have attempted to break into Thompson's and Brook's homes, Simmons replied that he did not "know what's going on." The interview ended.

Simmons testified in his own defense at trial. He stated that the evening of the incident, he was wearing his black Cotton Club shirt with black tuxedo pants. He started drinking alcoholic beverages at about 4:00 p.m. while he was preparing dinner at home. Simmons had a few more drinks at the Cotton Club. He and Anderson left the Cotton Club at midnight and went to Dave's Lounge, where he imbibed three or four alcoholic drinks. According to Simmons, when he and Anderson left Dave's Lounge sometime between 1:00 and 2:00 a.m., Simmons was not intoxicated. Simmons claimed he asked Anderson to stop the car because he began to feel nauseous from all the alcohol he drank that day and he wanted to get out and walk. Simmons declared that he put on his earphones to his radio and began to walk along the edge of the road, when he thought he heard someone come up behind him. Simmons stated that, when he turned around to see a police patrol car behind him, he was struck by the patrol car. Simmons said he blacked out at that point, and his next memory was of waking up when medical personnel were working on him. Simmons denied breaking into Thompson's residence or attempting to break into Brooks' home. He further denied being in the bushes that morning. Simmons maintained the abrasion on his face that morning was the result of being hit by the patrol car.

ISSUES

I. Did the Circuit Court err in denying Simmons' motion to sever?

II. Did the Circuit Court err in denying Simmons' motion for a mistrial after directed verdicts of acquittal were issued on the burglary and petit larceny charges from the Brooks burglary?

III. Did the Circuit Court err in allowing the use of Simmons' prior burglary and housebreaking convictions to prove an element of first degree burglary?

LAW/ANALYSIS

I. SEVERANCE/JOINDER

Simmons argues the trial judge erred in failing to sever the two burglary charges against him for trial. We disagree.

Prior to trial, Simmons moved to sever the charges against him. Simmons contended the victims in the Thompson and Brooks burglaries were different, the witnesses were different, and the acts alleged were different. Simmons asserted he would be prejudiced if the jury heard about both the Thompson and the Brooks burglaries because the evidence was stronger in the Thompson matter and would influence the jury on the Brooks matter. The trial judge noted that the matter was within his discretion, and the trial proceeded on both sets of charges. A motion for severance is addressed to the sound discretion of the trial court. State v. Tucker, 324 S.C. 155, 478 S.E.2d 260 (1996); McCrary v. State, 249 S.C. 14, 152 S.E.2d 235 (1967); State v. Carter, 324 S.C. 383, 478 S.E.2d 86 (Ct.App.1996); State v. Anderson, 318 S.C. 395, 458 S.E.2d 56 (Ct.App.1995). The court's ruling will not be disturbed on appeal absent an abuse of that discretion. Tucker, 324 S.C. at 164,478 S.E.2d at 265; State v. Prince, 316 S.C. 57, 447 S.E.2d 177 (1993); State v. Deal, 319 S.C. 49, 459 S.E.2d 93 (Ct.App.1995); see also State v. Harris, 351 S.C. 643, 572 S.E.2d 267 (2002)

(Shearouse Adv. Sh. No. 34 at 32) (stating a motion for severance is addressed to trial court and should not be disturbed unless abuse of discretion is shown).

Where the offenses charged in separate indictments are of the same general nature involving connected transactions closely related in kind, place and character, the trial judge has the power, in his discretion, to order the indictments tried together if the defendant's substantive rights would not be prejudiced. State v. Smith, 322 S.C. 107, 470 S.E.2d 364 (1996); State v. Williams, 263 S.C. 290, 210 S.E.2d 298 (1974); State v. Jones, 325 S.C. 310, 479 S.E.2d 517 (Ct.App.1996); see also State v. Sullivan, 277 S.C. 35, 282 S.E.2d 838 (1981)

(where offenses charged in separate indictments are of same general nature, involving connected transactions closely related in kind, place and character, trial judge has authority, in his discretion, to order indictments tried together over objection of defendant absent showing that defendant's substantive rights were violated); McCrary v. State, 249 S.C. 14, 36, 152 S.E.2d XXX-X-XXX (1967) (stating "[t]he two offenses were of the same general nature, involving connected transactions closely related in time, place and character; and the trial judge had power, in his discretion, to order them tried together over objection by the defendant in the absence of a showing that the latter's substantive rights would have been thereby prejudiced."). Offenses are considered to be of the same general nature where they are interconnected. Jones, 325 S.C. at 315,

479 S.E.2d at 519.

Conversely, offenses which are of the same nature, but which do not arise out of a single chain of circumstances and are not provable by the same evidence may not properly be tried together. See, e.g., State v. Middleton, 288 S.C. 21, 339 S.E.2d 692 (1986) (holding although prison escapee committed two murders within a few miles of each other and attempted an armed robbery, the trial judge...