The State v. Herring
| Decision Date | 21 December 2009 |
| Docket Number | No. 26750.,26750. |
| Citation | 387 S.C. 201,692 S.E.2d 490 |
| Court | South Carolina Supreme Court |
| Parties | The STATE, Respondent,v.H. Dewain HERRING, Appellant. |
COPYRIGHT MATERIAL OMITTED
Graham L. Newman and Richard A. Harpootlian, both of Columbia, and Katherine Carruth Goode, of Winnsboro, for Appellant.
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, Assistant Attorney General S. Creighton Waters, and Solicitor Warren Blair Giese, all of Columbia, for Respondent.
Appellant, H. Dewain Herring, was convicted of murder and pointing and presenting a firearm. We affirm.1
Herring was charged with the January 29, 2006 shooting of an employee of Chastity's Gold Nightclub (Chastity's), a strip club in Columbia. The facts giving rise to the shooting are as follows.
After golfing in Aiken with friends on the day of January 28, 2006, at which he had consumed numerous beers, Herring stopped by a bar for a few drinks on the way home, and then returned home around 7:30 p.m. Herring had a couple more drinks at his home with a golfing buddy before the friend left. Herring laid down intending to go to sleep, but got up and decided to go a Forest Acres restaurant. When the restaurant was closed, Herring changed his mind and went to Platinum Plus, a Columbia strip club. He had a drink and paid a dancer for a lap dance and left Platinum Plus. On his way home, he decided to stop by Chastity's on River Drive; he arrived shortly after 11:00 p.m. According to Herring, he ordered a drink at the bar, but he has very little recall of any events for several hours thereafter.
According to witnesses and employees of Chastity's, Herring purchased a drink and paid for a $30.00, three minute lap dance from a dancer named Mia. After the lap dance, Herring paid Mia for a $300 dance in what was known as the Champagne room.
Mia took Herring to the Champagne room and told him to wait while she went to freshen up. A bouncer, Carl Weeks, went to check on Herring a few minutes later and found him naked and masturbating on the sofa. The bouncer told Herring he could not do that and told him he would have to leave. When Herring did not move, the bouncer got the manager, John Johnson (John John). When they returned, Herring was dressed. Weeks told Herring he would either have to leave, or they would call police and have him arrested for solicitation of prostitution. According to Weeks, Herring responded, “No. I will fucking shoot you.” John John and a bouncer named Donnie Hawkins escorted Herring to the front door at 11:57 p.m. John John walked outside with Herring and used a two-way radio to call Herring's license plate number out to Weeks, who was standing in the doorway, as Herring drove away. Weeks and Hawkins watched as Herring backed up his black SUV, and fumbled with his glove compartment with his right hand. Herring slowly pulled away, putting down the passenger side windows as he went. Hawkins, Weeks and John John had just gone inside when they saw Herring's vehicle coming back down River Drive toward Chastity's. According to Hawkins, John John was right inside the door. Hawkins saw a flash of light come from the side of the vehicle, and heard John John say, “Oh shit!” John John fell to the floor, having been hit in the left ear by a bullet which came through the front door. He died a short while later at the hospital.
Upon arriving at the scene of Chastity's, police were given Herring's license tag number, which was registered to his office address in Columbia. Police patrolled the office parking lot, but did not find the vehicle. They then determined Herring's home address and went there at 2:10 a.m. on January 29, 2006. A police officer, seeing a light on in the garage, peeked in the garage window to see if the suspect was there. Although the suspect was not there, the officer did see the vehicle, which they realized was Herring's. They knocked on the door and rang the doorbell several times and, receiving no answer, they returned to the police station and obtained a search warrant for the home.2
Police went back to Herring's residence at approximately 4:00 a.m. to execute the search warrant. They rang the doorbell several times but received no answer. They entered forcibly, announcing they were police with a search warrant. Officer Linfert testified that he saw Herring in the hallway and recognized him from the photo on his driver's license. Linfert told Herring to get down on the ground, but Herring ran back down the hall toward a bedroom. He followed Herring to the bedroom, and saw Herring pull a gun from a nightstand and point it in his direction. Officer Linfert yelled at him to drop the gun and then fired one shot at him. Other officers also opened fire, and Herring was hit in the arm. Herring called 9-1-1 and told them he believed there were intruders in his home. After talking with the 9-1-1 operator, Herring surrendered upon realizing the “intruders” were indeed police officers.
Herring initially told police he had not left the house after returning home from Aiken; he did not recall going to Chastity's. When police told him of the video tape which showed him entering and leaving Chastity's, he remembered only being at the bar, having a drink, and a gunshot firing; the next memory he had was of police bursting into his home. He subsequently began remembering more details, such as paying for a lap dance from a light skinned black woman.
Bullet fragments removed from John John's head conclusively matched a .357 Magnum Ruger owned by Herring; the Ruger was found under some clothing in his bedroom closet during a SLED search of the home.3 Gunshot residue was found on the passenger side of Herring's vehicle. A jury convicted Herring of murder and pointing and presenting a firearm.
1. Did the trial court err in denying Herring's motions to suppress evidence found during the search of his residence?
2. Did the trial court err in allowing lay witnesses to testify as to their opinion of what could be seen on a videotape which recorded Herring as he exited Chastity's?
Herring contends the trial court erred in denying his motion to suppress evidence seized by police during the searches of his home and automobile. We disagree.
Herring contends the initial peek by police into his garage (when his black SUV was seen), was an illegal search, which thereby led to the issuance of a search warrant. Accordingly, Herring asserts the subsequent search of his home was the impermissible fruit of the illegal garage search, and that police otherwise had no basis upon which to search the residence. Herring also contends the subsequent SLED search of his home was illegal inasmuch as it a) resulted from the two prior illegal searches, and b) the SLED warrant was invalid as it was not issued in compliance with S.C.Code Ann. § 17-13-140. For numerous reasons, we find the evidence seized by police was properly admitted.
Regarding the initial search, Herring contends that when police crossed the curtilage of his yard and peered into his garage windows it constituted an illegal search. The trial court agreed with Herring and held Officer Linfert's peek into Herring's garage violated Herring's expectation of privacy. However, the trial court found that since no evidence was seized as a result of that search, there was nothing to suppress; it therefore went on to address the validity of the other searches, which it found permissible.
Initially, as discussed below, we disagree with the trial court's conclusion that Officer Linfert's initial peek into the garage window constituted an illegal search. Regardless however, we find the peek into the window did not lead to discovery of any further evidence, such that it was not “fruit of the poisonous tree” and therefore did not taint the subsequent searches.
As noted previously, prior to going to Herring's residence, police responded to a shooting at Chastity's nightclub at which the manager of the club was shot and killed. While at Chastity's, police were given a description of Herring's black SUV, as well as the corresponding South Carolina license plate number which was written down by witnesses. Police watched the video which showed the suspect as he entered and departed from the nightclub, and police were given a color photograph of the suspect from the video.
Police obtained Herring's identifying information from the license tag number. When they went to the registered address for the vehicle, a business office, there was no black SUV in the parking lot. Officer Linfert checked the Department of Motor Vehicle website for other addresses listed for Herring, which revealed his home address. Based upon this information, police went to the address at approximately 2:00 a.m. Officer, seeing a light on in the garage, peeked in the garage window to see if the suspect was there. Although the suspect was not there, Linfert saw the black SUV, and recognized it as the suspect's vehicle. Police knocked on the door and rang the doorbell several times; receiving no answer, they returned to the police station and obtained a search warrant for the home.
Private residences are places in which an individual normally expects privacy free of governmental intrusion not authorized by a warrant, and that expectation is one society recognizes as justifiable. Accordingly, searches and seizures inside a home without a warrant are presumptively unreasonable absent exigent circumstances. United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984). The Fourth Amendment extends that same protection to outbuildings in the curtilage of the home. United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987); Rogers v. Pendleton, 249 F.3d 279, 287 (4th Cir.2001).4
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