State v. Weaver

• Decision Date: 07 September 2004
• Docket Number: No. 3864.,3864.
• Citation: 361 S.C. 73,602 S.E.2d 786
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. Levell WEAVER, Appellant.

361 S.C. 73

602 S.E.2d 786

The STATE, Respondent, v. Levell WEAVER, Appellant.

No. 3864.

Court of Appeals of South Carolina.

Heard June 9, 2004.

Decided September 7, 2004.

Assistant Appellate Defender, Robert M. Dudek, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney

General Donald J. Zelenka, and Assistant Attorney General, Derrick K. McFarland, all of Columbia; and Solicitor Cecil Kelley Jackson, of Sumter, for Respondent.

CURETON, A.J.:

Levell Weaver appeals his convictions for murder and possession of a weapon during the commission of a crime of violence. Weaver contends the trial court erred in: (1) admitting evidence obtained pursuant to a procedurally defective warrant; (2) admitting hearsay testimony; and (3) declining to grant a mistrial based on inappropriate prosecutorial comment on Weaver's decision not to testify during the trial. We affirm.

FACTS

At approximately 10:00 p.m. on June 23, 1999, Marion Dwayne McKnight was shot thirteen times while outside a club called Rob's Place in Hemingway, South Carolina. At the time of the shooting, McKnight was getting into his car with Antonio Brown and Tracy Scott. After the shooting, Scott contacted his mother, Loretta, who drove to the club. When she arrived she saw Weaver covered in blood, standing over McKnight's body that had been stripped to its underwear.

Investigator Sandy Thompson, with the Williamsburg County Sheriff's Department, was called around 11:00 p.m. to investigate the incident. Leroy Powell, who witnessed the shooting, identified Weaver as the shooter. Investigator Thompson interviewed other witnesses and spoke with investigators at the scene who informed him that Weaver was a suspect and that he left the scene driving a green Jeep. Upon further investigation, the officers discovered that Weaver was at his cousin's house. Investigator Thompson then left for the residence accompanied by Investigator Collins and several other officers. At the home, the officers spoke with Weaver's cousin, Arnold Weaver. He confirmed Weaver arrived driving a green Jeep and told them Weaver had asked for bleach, a trash bag, and a change of clothes.

After the discussion with Weaver's cousin, officers found the Jeep in the backyard. When Investigator Thompson opened the driver's side door, he noticed the Jeep's back area was wet and smelled of bleach. On a pump house near the Jeep, Investigator Thompson also discovered a bag containing a towel and some socks which smelled of bleach. To preserve the evidence for investigation, the officers seized the bag and towed the Jeep to an impoundment area. During the early morning hours of June 24, 1999, Weaver turned himself in at the Williamsburg County Jail.

After the Jeep was impounded, Lieutenant Ricky Weston requested and obtained a search warrant. Though the police searched the impounded vehicle after the warrant was issued, no return of the warrant was made.

SLED Agent Steve Lambert processed the vehicle and collected samples of blood evidence from the Jeep and the decedent's vehicle. During the search, Agent Lambert found a cloth with blood evidence on the back seat of the Jeep. As part of the investigation, Lambert analyzed a pair of underwear that contained blood evidence. Agent Lambert received this evidence from Investigator Dennis Parrott who identified the underwear as belonging to Weaver. Investigator Parrott also turned over the bag of clothing that was seized from the pump house near the Jeep. DNA testing of the evidence revealed that all of the samples matched the decedent's blood type.

A Williamsburg County grand jury indicted Weaver for murder, armed robbery, and possession of a weapon during a violent crime. Before trial, Weaver's counsel filed a motion to suppress evidence taken from the Jeep on two primary grounds: (1) the Jeep was seized without a warrant; and (2) no return was made to the search warrant as required by South Carolina Code section 17-13-140. The trial court made a preliminary ruling denying the motion to suppress.

During trial, Weaver's counsel renewed his motion. After hearing testimony and arguments, the court gave a final ruling denying the motion to suppress. As a threshold matter, the court found Weaver had standing to challenge the legitimacy of the search even though he was not the owner of the vehicle. The court then concluded a search warrant was not necessary because the State had probable cause to seize the vehicle and to conduct the subsequent search. The court reasoned the warrantless search was permissible based on the automobile exception to the Fourth Amendment. As a result, the court found an analysis of the statutory provisions of section 17-13-140 was unnecessary.

The jury found Weaver guilty of murder and possession of a weapon during the commission of a crime of violence. The trial court sentenced Weaver to thirty years imprisonment for murder and a concurrent five-year sentence for the weapon charge. This appeal follows.

DISCUSSION

I.

Weaver contends the trial court erred in denying his motion to suppress the evidence seized from the Jeep. Specifically, he asserts the court erred in finding that a search warrant was not necessary. Moreover, because a warrant was required, Weaver claims the failure to file a return as mandated by section 17-13-140 invalidated the search, and thus, required the suppression of the evidence.

"On appeal from a suppression hearing, this court is bound by the circuit court's factual findings if any evidence supports the findings." State v. Abdullah, 357 S.C. 344, 349, 592 S.E.2d 344, 347 (Ct.App.2004). "In an appeal from a motion to suppress evidence based on Fourth Amendment grounds, an appellate court may conduct its own review of the record to determine whether the evidence supports the circuit court's decision." Id. at 349-50, 592 S.E.2d at 347.

Section 17-13-140 requires search warrants to be executed and return made within ten days after the date of the warrant:

Any warrant issued hereunder shall be executed and return made only within ten days after it is dated. The officer executing the warrant shall make and deliver a signed inventory of any articles seized by virtue of the warrant, which shall be delivered to the judicial officer to whom the return is to be made, and if a copy of the inventory is demanded by the person from whose person or premises the property is taken, a copy of the inventory shall be delivered to him.

S.C.Code Ann. ?XX-XX-XXX (2003).

Failure to observe the ten-day requirement for execution and return under section 17-13-140 does not necessarily void the warrant. State v. Wise, 272 S.C. 384, 386, 252 S.E.2d 294, 295 (1979) (holding the ten-day requirement was ministerial and the defendant failed to show he was prejudiced by the delay). Because the statute's return requirement is ministerial in nature, any purported noncompliance only provides grounds for exclusion upon a showing of prejudice. State v. Mollison, 319 S.C. 41, 47, 459 S.E.2d 88, 92 (Ct.App.1995). In at least one case, this court has excluded evidence based on the provisions of section 17-13-140. State v. Freeman, 319 S.C. 110, 459 S.E.2d 867 (Ct.App.1995). In Freeman, we found that drug evidence should have been excluded under a defective warrant where the State failed to produce the original warrant and a signed, sworn return. We concluded the defendant was prejudiced by this failure given he was unable to review the return and match the items listed with the items that were analyzed and admitted into evidence. Id. at 116-19, 459 S.E.2d at 871-72.

Here, the police searched and seized the Jeep prior to obtaining the warrant that Weaver contends was rendered faulty by virtue of noncompliance with the statute's return requirement. We agree with Weaver that the State's failure to produce a return constituted more than a ministerial error. However, as will be discussed, any error in failing to file a return did not require the suppression of the evidence. Under the specific facts of this case, a warrant was not necessary to search and seize the Jeep.

The Fourth Amendment guarantees "[t]he right of the people to be secure ... [from] unreasonable searches and seizures." U.S. Const. amend. IV. "In parallel with the protection of the Fourth Amendment, the South Carolina Constitution also provides a safeguard against unlawful searches and seizures." State v. Forrester, 343 S.C. 637, 643, 541 S.E.2d 837, 840 (2001); S.C. Const. art. I, § 10. Evidence obtained in violation of the Fourth Amendment is inadmissible in both state and federal court. Forrester, 343 S.C. at 643, 541 S.E.2d at 840.

"Generally, a warrantless search is per se unreasonable and thus violative of the Fourth Amendment's prohibition against unreasonable searches and seizures." State v. Bultron, 318 S.C. 323, 331, 457 S.E.2d 616, 621 (Ct.App.1995). "However, a warrantless search will withstand constitutional scrutiny where the search falls within one of a few specifically established and well delineated exceptions to the Fourth Amendment exclusionary rule." Id. at 331-32, 457 S.E.2d at 621. These exceptions include: (1) search incident to a lawful arrest; (2) "hot pursuit;" (3) stop and frisk; (4) automobile exception; (5) "plain view" doctrine; (6) consent; and (7) abandonment. State v. Dupree, 319 S.C. 454, 456-57, 462 S.E.2d 279, 281 (1995),cert. denied, 516 U.S. 1131, 116 S.Ct. 951, 133 L.Ed.2d 875 (1996). "The burden of establishing probable cause as well as the existence of circumstances constituting an exception to the general prohibition against warrantless searches and seizures is upon the prosecution." Bultron, 318 S.C. at 332,457 S.E.2d at 621.

Our supreme court analyzed the automobile exception in State v. Cox, 290 S.C. 489, 351 S.E.2d 570 (1986). In Cox, the court stated:

The automobile exception was first articulated in Carroll v. United States

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