State v. Simmons, No. 4569.

CourtCourt of Appeals of South Carolina
Writing for the CourtGeathers
Citation384 S.C. 145,682 S.E.2d 19
PartiesThe STATE, Respondent, v. Alphonso SIMMONS, Appellant.
Decision Date17 June 2009
Docket NumberNo. 4569.
682 S.E.2d 19
384 S.C. 145
The STATE, Respondent,
v.
Alphonso SIMMONS, Appellant.
No. 4569.
Court of Appeals of South Carolina.
Heard April 22, 2009.
Decided June 17, 2009.

[682 S.E.2d 23]

Appellate Defender M. Celia Robinson, of Columbia, for appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General, John W. McIntosh, Assistant Deputy Attorney General, Salley W. Elliott, Assistant Attorney General, Christina J. Catoe, all of Columbia; and Solicitor Warren B. Giese, of Columbia, for respondent.

GEATHERS, J.


Appellant Alphonso Simmons (Simmons) claims the circuit court erred on several grounds at his criminal trial for kidnapping, armed robbery, and grand larceny of a motor vehicle, which resulted in prejudice to Simmons and warrants a new trial. We affirm.

682 S.E.2d 24
FACTS

On April 19, 2004, at approximately 7:00 a.m., an armed robbery occurred at the McDonald's on Decker Boulevard in Columbia, South Carolina. The employees were held at gunpoint, robbed, and locked inside the restaurant's cooler. While inside the restaurant, the robber stole personal items from the employees and approximately $1,300 from the restaurant's safe. After fleeing the McDonald's, the robber stole a 2001 Pontiac Sunfire from the parking lot. The robber then removed the tires, the custom rims, an amplifier, and a custom speaker box, and he abandoned the car in a wooded area near the location of the robbery.

Simmons was arrested in an unrelated home invasion in Kershaw County on May 24, 2004, approximately one month after the McDonald's robbery. The police impounded Simmons's vehicle, and the custom rims, speaker box, and amplifier from his vehicle were subsequently identified as those stolen from the Pontiac Sunfire. Shortly after Simmons's arrest in Kershaw County, he was transported to Richland County for questioning in connection with the McDonald's robbery.

Before the police questioned Simmons at Richland County police headquarters, Simmons was asked to give his palm print for identification purposes. Chief David Wilson, deputy chief of investigations for Richland County, testified that Simmons initially refused to give his palm print but consented after he explained the purpose behind taking the print.1 While his palm print was being taken, Simmons indicated that he was hungry, so Chief Wilson requested a meal for Simmons.

Once Simmons gave his palm print, Chief Wilson escorted Simmons to his office. At that time, Chief Wilson read Simmons his Miranda2 rights from a standard form. Simmons was not handcuffed or restrained in any way while in Chief Wilson's office. Chief Wilson then questioned Simmons on whether he understood his rights. Simmons stated he understood them as he was "familiar with the system." Simmons did not sign a waiver of rights form, but Chief Wilson testified that in his opinion, Simmons's actions demonstrated a knowing and voluntary waiver of his rights. Investigator Steven Faust, who was present when Chief Wilson read Simmons his Miranda rights, corroborated Chief Wilson's testimony.

Shortly thereafter, Simmons's meal arrived. While eating his meal, but before discussing the McDonald's robbery, Simmons requested that he be allowed to call his father, mother, and brother. Chief Wilson was unable to contact Simmons's mother, but Simmons spoke with his father and brother over the phone, who then came to police headquarters and spoke with Simmons for approximately thirty minutes outside of the police's presence. Chief Wilson testified that he did not talk with Simmons specifically about the McDonald's robbery until after Simmons met with his family, as Simmons stated he would tell the police everything after meeting with his family.

After speaking with his father and brother, Simmons discussed the robbery with Chief Wilson and Captain James Smith. At some point, Captain Smith asked whether Simmons had viewed the videotape from the McDonald's robbery, at which time Simmons requested to view the videotape. Before Simmons made any admissions, Captain Smith told Simmons the quality of the surveillance tape was "pretty good." While viewing a close-up frame of the robber's face, Captain Smith testified that Simmons said, "Those are pretty good." Captain Smith then asked Simmons where the clothing was located that he was wearing in the video, and Simmons stated the clothing should be in his car. Chief Wilson also testified that Simmons identified himself as the robber in the

682 S.E.2d 25

video. Following this admission, Simmons confessed to stealing the money from McDonald's but claimed it was much less than the $1,300 allegedly stolen from the store's safe. Simmons was not willing to reduce his confession to writing. Chief Wilson stated the interrogation lasted approximately five hours, which did not include the time Simmons was in the holding cell.

The police served warrants on Simmons for the McDonald's robbery around 7:30 p.m. that evening, at which time Sergeant Barnes arrived to transport Simmons back to the Kershaw County detention center and to deliver a second meal to him. En route to the detention center, Sergeant Barnes stated that Simmons initiated conversation by asking whether Sergeant Barnes would be taking him to jail. Sergeant Barnes replied in the affirmative and stated that it had been a long day. Sergeant Barnes then testified that he told Simmons the police were tired of chasing him and that while Simmons had given the police a good chase, "he messed up when he stole the rims and stereo." Sergeant Barnes also stated that in response to his statements, Simmons nodded his head in agreement, smiled, and said, "It was fun while it lasted."

Prior to Simmons's arrest on May 24, 2004 in Kershaw County, Sergeant Scott McDonald presented several McDonald's employees with photographic line-ups in an attempt to identify the robber. Simmons's photo was not in any of the prior line-ups, and none of the witnesses made any positive identifications in the prior line-ups. The day Simmons was arrested in Kershaw and became a suspect in the McDonald's robbery, Sergeant McDonald returned to the McDonald's with a new photographic line-up containing Simmons's picture. Simmons's picture was the second photograph in a six-picture photo array. Sergeant McDonald separately presented the line-up to four employees with specific instructions not to discuss the matter with anyone. Two employees, L'Marshalett Moore and Sophia Thomas, positively identified Simmons as the robber in the photographic line-up and testified to the same at trial. Both Ms. Thomas and Ms. Moore testified unequivocally that they did not discuss their identifications with anyone else, including each other. Later that evening, based on the photographic identifications, the recovered car rims, and videotape footage from the McDonald's robbery, the Richland County police issued a warrant for Simmons's arrest.

Simmons was subsequently tried and convicted by a Richland County jury of eight counts of kidnapping, five counts of armed robbery, and one count of grand larceny of a motor vehicle. Simmons received a concurrent twenty-year sentence on each kidnapping charge and a concurrent ten-year sentence on each armed robbery charge as well as a concurrent ten-year sentence on the grand larceny charge. The latter charges of armed robbery and grand larceny were to run concurrent to each other, but consecutive to the kidnapping charges, for a total of thirty years confinement. This appeal followed.

ISSUES ON APPEAL

(1) Did the circuit court's admission of limited testimony regarding the Kershaw County incident violate Rules 404(b) and 403, SCRE?

(2) Did the circuit court err in determining that Simmons's admissions to the police while in custody were freely and voluntarily made?

(3) Did the circuit court err in permitting two eyewitnesses to testify in court that they positively identified Simmons in a photographic line-up and a third eyewitness to testify that Simmons "looked like" the robber? Further, was it reversible error for the circuit court to deny Simmons's motion for a mistrial when the third witness once referred the robber as "the defendant" in her testimony?

(4) Did the circuit court err in permitting an investigating officer to testify when the officer entered the courtroom during another witness's testimony, despite the court's sequestration order?

(5) Did the circuit court err in requiring Simmons to give a second palm print at trial when the court previously ruled that the State had improperly obtained the first palm

682 S.E.2d 26

print during Simmons's custody in Richland County?

(6) Did the circuit court err in charging the jury to find Simmons not guilty if they found there was a "real possibility" that he was innocent?

STANDARD OF REVIEW

In criminal cases, this Court will review errors of law only. State v. Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006). This Court is bound by the circuit court's factual findings unless they are clearly erroneous. State v. Quattlebaum, 338 S.C. 441, 452, 527 S.E.2d 105, 111 (2000). On review, this Court is limited to determining whether the circuit court abused its discretion. State v. Rochester, 301 S.C. 196, 200, 391 S.E.2d 244, 247 (1990). This Court does not reevaluate the facts based on its own view of the preponderance of the evidence but simply determines whether the circuit court's ruling is supported by any evidence. State v. Wilson, 345 S.C. 1, 6, 545 S.E.2d 827, 829 (2001).

LAW/ANALYSIS

I. Admissibility of Kershaw County Incident

Simmons claims that the circuit court erred in permitting any testimony regarding the Kershaw County incident into evidence because the testimony violated Rules 404(b) and 403, SCRE. We disagree.

Evidence of other crimes, wrongs, or acts is inadmissible to prove the character of a person in order to show action in conformity therewith; however, such evidence may be admissible "to show motive, identity, the...

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66 practice notes
  • State v. Moses, No. 4758.
    • United States
    • Court of Appeals of South Carolina
    • December 20, 2010
    ...to the jury (or fact finder) beyond a reasonable doubt that the statement was freely, knowingly, and voluntarily made. State v. Simmons, 384 S.C. 145, 162, 682 S.E.2d 19, 28 (Ct.App.2009); Goodwin, 384 S.C. at 602, 683 S.E.2d at 507. 5 Likewise, under Rule 5, SCRCrimP, defendants, upon requ......
  • State v. Jenkins, No. 4958.
    • United States
    • South Carolina Court of Appeals
    • June 20, 2012
    ...element met because the State showed it could compare defendant's blood sample to blood found on a victim's shirt); State v. Simmons, 384 S.C. 145, 176, 682 S.E.2d 19, 35–36 (Ct.App.2009) (affirming an order requiring defendant to provide a palm print because it could be compared to a palm ......
  • Mattison v. Cartledge, C/A No. 0:15-2323-TLW-PJG
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • January 21, 2016
    ...kind while located upon the public highways or highway rights of way of this State."). 5. The PCR court cited to State v. Simmons, 682 S.E.2d 19, 37 (S.C. Ct. App. 2009), to support this finding. 6. Officer Marsee was qualified as an expert in the distribution and street value of illeg......
  • The State v. Moses, Opinion No. 4758
    • United States
    • Court of Appeals of South Carolina
    • November 5, 2010
    ...to the jury (or fact finder) beyond a reasonable doubt that the statement was freely, knowingly, and voluntarily made. State v. Simmons, 384 S.C. 145, 162, 682 S.E.2d 19, 28 (Ct. App. 2009); Goodwin, 384 S.C. at 602, 683 S.E.2d at 507. 5. Likewise, under Rule 5, SCRCrimP, defendants, upon r......
  • Request a trial to view additional results
66 cases
  • State v. Moses, No. 4758.
    • United States
    • Court of Appeals of South Carolina
    • December 20, 2010
    ...to the jury (or fact finder) beyond a reasonable doubt that the statement was freely, knowingly, and voluntarily made. State v. Simmons, 384 S.C. 145, 162, 682 S.E.2d 19, 28 (Ct.App.2009); Goodwin, 384 S.C. at 602, 683 S.E.2d at 507. 5 Likewise, under Rule 5, SCRCrimP, defendants, upon requ......
  • State v. Jenkins, No. 4958.
    • United States
    • South Carolina Court of Appeals
    • June 20, 2012
    ...element met because the State showed it could compare defendant's blood sample to blood found on a victim's shirt); State v. Simmons, 384 S.C. 145, 176, 682 S.E.2d 19, 35–36 (Ct.App.2009) (affirming an order requiring defendant to provide a palm print because it could be compared to a palm ......
  • Mattison v. Cartledge, C/A No. 0:15-2323-TLW-PJG
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • January 21, 2016
    ...kind while located upon the public highways or highway rights of way of this State."). 5. The PCR court cited to State v. Simmons, 682 S.E.2d 19, 37 (S.C. Ct. App. 2009), to support this finding. 6. Officer Marsee was qualified as an expert in the distribution and street value of illeg......
  • The State v. Moses, Opinion No. 4758
    • United States
    • Court of Appeals of South Carolina
    • November 5, 2010
    ...to the jury (or fact finder) beyond a reasonable doubt that the statement was freely, knowingly, and voluntarily made. State v. Simmons, 384 S.C. 145, 162, 682 S.E.2d 19, 28 (Ct. App. 2009); Goodwin, 384 S.C. at 602, 683 S.E.2d at 507. 5. Likewise, under Rule 5, SCRCrimP, defendants, upon r......
  • Request a trial to view additional results

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