White v. State, No. 19881

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtBUSSEY; MOSS
PartiesDavid Allen WHITE, Appellant, v. The STATE of South Carolina, Respondent.
Decision Date28 August 1974
Docket NumberNo. 19881

Page 35

208 S.E.2d 35
263 S.C. 110
David Allen WHITE, Appellant,
v.
The STATE of South Carolina, Respondent.
No. 19881.
Supreme Court of South Carolina.
Aug. 28, 1974.

Page 36

[263 S.C. 111] Levy S. Alford, York, for appellant.

[263 S.C. 112] Atty. Gen. Daniel R. McLeod, Asst. Attys. Gen. Emmet H. Clair and Stephen T. Savitz, Columbia, for respondent.

[263 S.C. 113] 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.

Page 37

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 [263 S.C. 114] 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 [263 S.C. 115] 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...

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201 practice notes
  • Robinson v. State, No. 27357.
    • United States
    • United States State Supreme Court of South Carolina
    • 30 Junio 2014
    ...a post-conviction relief (PCR) application, including a request for belated review of his direct appeal issues pursuant to White v. State, 263 S.C. 110, 208 S.E.2d 35 (1974). The PCR court denied his claim for ineffective assistance of counsel, finding that Petitioner failed to prove either......
  • Thompson v. McFadden, C/A No. 5:15-cv-01568-TMC-KDW
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • 8 Abril 2016
    ...advise as to right to appealThe Applicant has alleged that he is entitled to a review of direct appeal issues pursuant to White v. State, 263 S.C. 110, 108 S.E.2d 35 (1974). Counsel has a constitutionally-imposed duty to consult with a defendant about an appeal when there is reason to think......
  • Frazer v. South Carolina, No. 04-6500.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 8 Diciembre 2005
    ...be insufficient as a matter of South Carolina law. In re Anonymous Member of the Bar, 303 S.C. 306, 400 S.E.2d 483 (1991); White v. State, 263 S.C. 110, 208 S.E.2d 35, 39 (1974) (noting that even though there is "a reasonable basis for trial counsel's conclusion or assumption that the defen......
  • Wells v. Stevenson, C/A No. 5:15-01652-CMC-KDW
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • 29 Octubre 2015
    ...rights, the applicant may petition the South Carolina Supreme Court for review of direct appeal issues pursuant to White v. State, 263 S.C. 110, 208 S.E.2d 35 (1974). See Rule 243(i), SCACR; Davis v. State, 288 S.C. 290, 342 S.E.2d 60 (1986).Trial counsel is not required to file a notice of......
  • Request a trial to view additional results
201 cases
  • Robinson v. State, No. 27357.
    • United States
    • United States State Supreme Court of South Carolina
    • 30 Junio 2014
    ...a post-conviction relief (PCR) application, including a request for belated review of his direct appeal issues pursuant to White v. State, 263 S.C. 110, 208 S.E.2d 35 (1974). The PCR court denied his claim for ineffective assistance of counsel, finding that Petitioner failed to prove either......
  • Frazer v. South Carolina, No. 04-6500.
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • 8 Diciembre 2005
    ...be insufficient as a matter of South Carolina law. In re Anonymous Member of the Bar, 303 S.C. 306, 400 S.E.2d 483 (1991); White v. State, 263 S.C. 110, 208 S.E.2d 35, 39 (1974) (noting that even though there is "a reasonable basis for trial counsel's conclusion or assumption that the defen......
  • Thompson v. McFadden, C/A No. 5:15-cv-01568-TMC-KDW
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • 8 Abril 2016
    ...advise as to right to appealThe Applicant has alleged that he is entitled to a review of direct appeal issues pursuant to White v. State, 263 S.C. 110, 108 S.E.2d 35 (1974). Counsel has a constitutionally-imposed duty to consult with a defendant about an appeal when there is reason to think......
  • Wells v. Stevenson, C/A No. 5:15-01652-CMC-KDW
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • 29 Octubre 2015
    ...rights, the applicant may petition the South Carolina Supreme Court for review of direct appeal issues pursuant to White v. State, 263 S.C. 110, 208 S.E.2d 35 (1974). See Rule 243(i), SCACR; Davis v. State, 288 S.C. 290, 342 S.E.2d 60 (1986).Trial counsel is not required to file a notice of......
  • Request a trial to view additional results

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