White v. State

Decision Date28 August 1974
Docket NumberNo. 19881,19881
PartiesDavid Allen WHITE, Appellant, v. The STATE of South Carolina, Respondent.
CourtSouth Carolina Supreme Court

Levy S. Alford, York, for appellant.

Atty. Gen. Daniel R. McLeod, Asst. Attys. Gen. Emmet H. Clair and Stephen T. Savitz, Columbia, for respondent.

BUSSEY, Justice:

On November 23, 1970 the appellant, White, was convicted of burglary in the General Sessions Court of York County and sentenced to a term of 20 years. The burglary with which he was charged occurred in the town of Fort Mill on the night of November 14, 1970. The defendant did not appeal from his conviction and sentence, but subsequently filed a petition for post-conviction relief and the instant appeal is from an order denying such relief following a full evidentiary hearing which was held on June 21, 1973.

Briefly the facts of the case are as follows. At approximately midnight of Saturday, November 14, 1970, the residence of Mr. & Mrs. George Ackerman, in the town of Fort Mill, was burglarized. Mrs. Ackerman awoke at about 12:15 a.m. and saw the burglar standing in the doorway of her bedroom. There was no light burning in the bedroom, but a light was burning in the hall behind the burglar so that she was able to see not his face, but his size and build and also had an opportunity to observe his manner of walking. When she realized that the person in the doorway was an intruder she screamed and the burglar fled.

The police were promptly notified and an investigation commenced. At 5:00 a.m. White was arrested at his home as a suspect, a warrant for his arrest having been obtained by the officers. In his possession at the time of his arrest was a billfold, belonging to Mrs. Ackerman and taken from her purse in the course of the burglary. At approximately 7:00 a.m. on Sunday morning, November 15, 1970, Mrs. Ackerman viewed the defendant in a one to one confrontation at the police station in Fort Mill, but was unable to positively identify him. He was asked to walk in the presence of Mrs. Ackerman, who could only say that he was 'the right height, the same build and he walked the same.' She stated, and later testified, that she felt like he was the burglar but that she could not positively or definitely identify him.

Defendant's first three questions on appeal are predicated on the contention that the trial court erred in allowing testimony as to the pre-trial confrontation between Mrs. Ackerman and the defendant and that there was error in denying post-conviction relief on such ground. At the trial, before permitting Mrs. Ackerman to testify as to anything that would tend to identify the defendant as the burglar, the trial judge conducted an extensive hearing concerning the admissibility of evidence as to the pre-trial confrontation and/or the results thereof. Such hearing was conducted out of the presence of the jury. Mrs. Ackerman, both police officers who were present at the confrontation, and the defendant were examined and cross-examined at length as to circumstances of the confrontation and whether or not the defendant had knowingly and voluntarily relinquished his right to the presence of counsel and voluntarily submitted to the confrontation. As to the voluntariness of his submission of the confrontation, the record shows that he, himself, testified that he wanted to go out there and prove he was not the one who went into the 'woman's house.' While he denied that he was advised of his right to the presence of counsel at the confrontation, there was abundant evidence to the contrary. Both the trial judge and the judge who held the post-conviction hearing found, as a fact, that he was fully advised of all of his rights and that he had knowingly and voluntarily waived his rights and had voluntarily submitted to the confrontation.

White contended at the post-conviction hearing, but not at the trial, that the confrontation was unnecessarily suggestive and conducive to mistaken identification and thus in violation of his constitutional rights. He testified, inter alia, at the post-conviction hearing that Mrs. Ackerman's indefinite and uncertain identification of him was made only after suggestions by police officers that he was in fact the burglar. It is quite significant, we think, that the defendant, when testifying out of the presence of the jury at his trial, made no mention or claim whatever as to any suggestive or factual statements made by police officers or other circumstances suggestive of an identification of defendant as the burglar by Mrs. Ackerman. He was given full opportunity at the trial to bring out anything which might have rendered evidence resulting from the confrontation inadmissible. His belated contention, made at the post-conviction hearing, that there were in fact improper suggestions and statements by the police officers, was obviously not accorded any credibility or weight by the hearing judge, although he did not pass specifically thereupon. We perceive no error in denying defendant relief on this asserted ground. Mrs. Ackerman was unable to positively identify defendant as the burglar and this in itself tends to refute any argument that she did identify him as a result of suggestions by the police officers. She testified only as to the similarities of certain physical characteristics of the burglar in her home and those of the defendant. Cf. State v. Hicks, 257 S.C. 279, 185 S.E.2d 746.

Finally, it is argued in connection with the pre-trial confrontation that he was not permitted to make a telephone call prior to such and that such was a denial of his constitutional rights; that only by making a telephone call could he contact an attorney, or reach his family, who could aid him in doing so. There is no merit in this contention for more than one reason; such was not relied upon as a ground in his petition for post-conviction relief. But, even if the issue were properly before us the trial record refutes his claim. There was abundant evidence that he was fully advised by the officers of all of his constitutional rights and also advised that he had a right to make a telephone call or calls. The trial court found, supported by abundant evidence, that the defendant had been fully advised of his rights and had waived such and voluntarily submitted to the confrontation, a factual finding which was later re-affirmed by the judge at the post-conviction hearing.

Defendant's next contention challenges the admissibility into evidence of Mrs. Ackerman's light blue billfold taken from her purse in the course of the burglary and found, according to the State's evidence, in one of the defendant's trouser pockets at the time of his arrest pursuant to a warrant. At the trial...

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