State v. Tyndall

• Decision Date: 24 May 1999
• Docket Number: No. 3001.,3001.
• Citation: 518 S.E.2d 278,336 S.C. 8
• Parties: STATE of South Carolina, Respondent, v. Carlyle TYNDALL, Appellant.
• Court: South Carolina Court of Appeals

336 S.C. 8

518 S.E.2d 278

STATE of South Carolina, Respondent, v. Carlyle TYNDALL, Appellant.

No. 3001.

Court of Appeals of South Carolina.

Submitted May 11, 1999.

Decided May 24, 1999.

Rehearing Denied September 11, 1999.

John A. O'Leary, of O'Leary Associates, of Columbia, for Appellant.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Senior Assistant Attorney General Charles H. Richardson, all of Columbia, for Respondent.

ANDERSON, Judge:

Carlyle Tyndall appeals from his convictions for two counts of assault and battery of a high and aggravated nature (ABHAN) and one count of resisting arrest. We affirm.¹

FACTS/PROCEDURAL BACKGROUND

On January 6, 1996, Verna Moore, the Sumter County Coroner, radioed Chief Donald Allen, with the Mayesville Police Department, to report an escalating altercation between Carlyle Tyndall, Jr., and his father at the father's home. Moore, a family friend, had picked Tyndall up at his home in Cherryvale and taken him to his father's home for a visit.

Chief Allen and Sergeant Wylie Tiller, Jr., responded to Moore's call. Moore was outside the house when the officers arrived. She informed Chief Allen that Tyndall had threatened to kill her and his father. Tyndall's father, who was in poor health and required a wheelchair and oxygen, was in the kitchen. He was frightened, upset, and crying. Once inside, the officers, with their straight batons drawn, entered the small den off the kitchen where Tyndall was located.

Chief Allen told Tyndall his father wanted him to leave and that if he did not comply, he would be placed under arrest for trespass after notice. Tyndall refused to leave. Chief Allen stated: "[Y]ou're under arrest for trespassing after notice. Turn around, put your hands behind your back." Tyndall reached under the couch cushion, withdrew a hammer, and started swinging it. The officers backed up toward the kitchen and asked Tyndall to put the hammer down.

Tyndall ran at the officers while brandishing the flat side of the hammer and threatening to kill them. Chief Allen yelled "go to guns" and attempted to push Sergeant Tiller into the kitchen. Tyndall struck Tiller on the right side of the head with the hammer. As the hammer bounced off of Tiller, it hit Allen's hand. During this time, Tyndall was saying: "I'm going to kill ya'll. You know, I'm going to kill somebody here today. I'm going to kill ya'll today." Tyndall turned the hammer to the "claw" side and was preparing to strike again when Chief Allen drew his gun and fired at Tyndall's thigh. However, Allen's gun jammed.

Sergeant Tiller heard Chief Allen's gun misfire. Tiller fired his gun into the den about three times, striking Tyndall in the legs. Allen corrected his gun and fired a couple of shots into Tyndall's legs while warning him to stop swinging the hammer. Chief Allen pointed his firearm directly at Tyndall's head and warned him a final time to drop the hammer. Tyndall fell to the floor. Chief Allen kicked the hammer away from Tyndall's hand and the hammer landed close to the den wall. Chief Allen later "signed a warrant charging [Tyndall] with resisting arrest while being arrested for trespass after notice."

Moore had followed the officers into the house and was attending to Tyndall's father in the kitchen. She claimed she did not hear words exchanged between the officers and Tyndall. When she heard gunfire, she pushed Tyndall's father, in his wheelchair, behind the refrigerator and went out the back door. After Tyndall was shot, Moore applied bandages and pressure to his gunshot wounds. Although Moore testified she did not see a hammer on the floor at this time or at any time during the evening's events, she had seen Tyndall threaten his father with a hammer on a prior occasion.

Officer Dana Wingate, the crime scene investigator, observed the hammer lying on the floor. Before the crime scene photographers arrived, Officer Wingate removed the hammer from the floor, apparently for safety purposes, and placed it in his car. He mistakenly forgot to include the hammer in the crime scene diagram.

Thomas Taylor, a police instructor with experience in crime scene investigation, explained the standard procedure for securing the crime scene would not normally include removing the weapon from the crime scene. According to Taylor, removal of any item would contaminate a crime scene.

Tyndall was charged with two counts of attempted murder, two counts of assault and battery with intent to kill (ABIK), and one count of resisting arrest. He was tried on the resisting arrest charge and the two ABIK charges. Tyndall moved to dismiss all charges because he was never arrested or prosecuted for trespass after notice. The court denied the motion. The judge charged the jury as to ABIK and the lesser included offense of ABHAN, but refused to charge the law of simple assault and battery.

Tyndall was convicted of resisting arrest and two counts of ABHAN. The judge denied Tyndall's motion to set aside the verdict and grant a new trial.

ISSUES

I. Did the trial court err in failing to dismiss the charge of resisting arrest?

II. Did the trial court err in refusing to charge simple assault and battery?

LAW/ANALYSIS

I. Resisting Arrest Charge

Tyndall contends the trial court erred in failing to dismiss the charge of resisting arrest. Specifically, he argues he did not unlawfully resist arrest (1) because "[n]o judicial determination was made as to the probable cause to arrest for Trespass after Notice"; (2) because, as owner and co-occupant of the house, it was legally impossible for him to be arrested for trespass after notice; and (3) because he was never charged or prosecuted for trespass after notice, the underlying offense. We disagree. Tyndall was convicted of violating S.C.Code Ann. § 16-9-320(B) (Supp.1998), which provides:

It is unlawful for a person to knowingly and wilfully assault, beat, or wound a law enforcement officer engaged in serving, executing, or attempting to serve or execute a legal writ or process or to assault, beat, or wound an officer when the person is resisting an arrest being made by one whom the person knows or reasonably should know is a law enforcement officer, whether under process or not. A person who violates the provisions of this subsection is guilty of a felony and, upon conviction, must be fined not less than one thousand dollars nor more than ten thousand dollars or imprisoned not more than ten years, or both.

A. Probable Cause to Arrest

Tyndall alleges that, because no judicial determination was made as to the officers' probable cause to arrest him for trespass after notice, "the actions taken by the officers were absent probable cause and contrary" to Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949), Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964), and Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

A police officer may, without a warrant, arrest a person who commits a misdemeanor in his presence. See S.C.Code Ann. § 17-13-30 (1985); Summersell v. South Carolina Dep't of Pub. Safety, 334 S.C. 357, 513 S.E.2d 619 (1999). See also State v. Mims, 263 S.C. 45, 208 S.E.2d 288 (1974)

(officer has power and authority to arrest without warrant those who have committed violation of criminal laws of this State within view of such officer).

Contrary to Tyndall's arguments, he did commit the crime prohibited by S.C.Code Ann. § 16-11-620 (Supp.1998), commonly known as criminal trespass or trespass after notice. Section 16-11-620 reads in pertinent part:

Any person who, without legal cause or good excuse, enters into the dwelling house, place of business, or on the premises of another person after having been warned not to do so or any person who, having entered into the dwelling house, place of business, or on the premises of another person without having been warned fails and refuses, without good cause or good excuse, to leave immediately upon being ordered or requested to do so by the person in possession or his agent or representative shall, on conviction, be fined not more than two hundred dollars or be imprisoned for not more than thirty days (emphasis added).

Trespass after notice is a misdemeanor. See S.C.Code Ann. § 16-1-10(C) (Supp.1998) (all offenses with term of imprisonment of less than one year are misdemeanors).

The record reflects Tyndall resided in Cherryvale at the time of the altercation with his father. Moore picked him up from his home and drove him to his father's residence for a visit. Tyndall's claim that he resided in the same home as his father on the day in question is unsubstantiated. When the police arrived, Tyndall's father told them to ask Tyndall to leave, which the officers did. By refusing to leave upon request, Tyndall committed the crime of trespass after notice. See State v. Cross, 323 S.C. 41, 448 S.E.2d 569 (Ct.App.1994)

. Because Tyndall committed this crime in the presence of the police officers, they had the power and authority to arrest Tyndall without a warrant. There was no requirement for a judicial determination as to probable cause to arrest for trespass after notice.

In a one sentence reference to Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949), Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964), and Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), Tyndall avers the actions of the officers were in contrariety to these cases. Thereafter, Tyndall makes no reference to Brinegar, Beck, or Gates in his brief. He does not include in his argument any discussion of these decisions or their applicability to his situation. Conclusory arguments constitute an abandonment of the issue on appeal. See Solomon v. City Realty Co., 262 S.C. 198, 203 S.E.2d 435 (1974)

(where only passage in brief relating to issue appealed...