by Alex KornfeldDID YOU KNOW A DELL COMPUTER CAN COST 24 YEARS? BEING UNSUCCESSFUL IN BURGLARY IRRELEVANT IF CRIMINAL INTENT PROVEN, SC COURT OF APPEALS RULES
Rickey Santoine Henley appealed his 1st degree burglary conviction on 4 grounds.
On February 15, 2012 a witness drove passed the home of Amanda and Jamie Moss when he noticed a gray car backed into the Moss’s carport with the back door open and a black male running from the home’s front door to a side door. The witness found it unusual and drove back to the Moss’s home where he observed that same man standing in the doorway. The man got in his car, pulled out of the Moss’s driveway, stopped in front of the witnesses. The witness was pulling a trailer with a lawmower. The man asked the witness if he needed any help with lawn care. The witness told him no and the man drove away. The witness called 911 and described the car, the description of the man, and gave dispatchers the man’s license plate number.
Detective’s went to the Moss’s home. The only thing missing from their home was a Dell laptop computer. Mrs. Moss testified a cigarette butt found near her steps did not belong to her or her husband. A search of the license plate revealed the 97 Bonneville was owned by Henley and his girlfriend. A deputy went to Henley’s home on February 22, 2012 where he saw the Bonneville with the same license plate. Henley admitted he’d been on the road the Moss’ live on and that he smoked Newport cigarettes. Henley was arrested for 1st degree burglary and larceny a day later.
First, Henley was found not guilty of larceny connected in a previous trial in which the burglary concerning this case was also tried. The jury was hung on the burglary 1st. The Judge granted a mistrial concerning the burglary 1st. A new trial was held and Henley was found guilty of the burglary 1st and sentenced to 24 years in prison which brings us to this blog about his appeal.
Because he was found not guilty of larceny and the jury was hung concerning the burglary charge Henley argued his burglary should have been dismissed because to not do so would be double jeopardy. Unfortunately for Henley, The Court of Appeals did not agree. The Court of Appeals ultimately reasoned that burglary merely requires that “the person enters a dwelling without consent and with the intent to commit a crime in the dwelling”. In the previous trial the jury only found that the State failed to prove beyond a reasonable doubt that Henley took the Dell computer, they were hung on the burglary.
Further reasoning, “there was no requirement that the State actually prove he successfully committed a separate crime within Victim’s home to prove the burglary charge.” In short, just because you’re not good a burglary or successful in your endeavor doesn’t preclude you form being tried on a burglary.
Second, Henley argued it was improper to exclude evidence of the prior larceny acquittal. The trial court did a weighted (401, 402, and 403) analysis and ultimately found that Henley’s acquittal on the larceny charge was irrelevant because it did not make the existence of any fact or consequence in the proceeding more or less probable with respect to the elements of first degree burglary. The Court of Appeals further articulated it’s ruling that it was true that the State must prove Henley entered the victim’s home without her consent AND with intent to commit a crime BUT there was no requirement the State prove that Henry was successful in committing that crime (here, taking a Dell computer). Further, the Court was concerned it would have invited this jury to speculate about what occurred at the first trial. Interestingly, The Court of Appeals opinion does not discuss what Henley’s intent was when he entered the home. If it wasn’t to steal the Dell laptop, what was it??
Third, the Court limited Henley’s attempt to get the admission of a witness’s prior trial testimony into evidence. At the first trial, Henley’s girlfriend testified but in preparation for this trial Henley could not find the girlfriend. Henley cited Rule 804(b)(1) arguing the previous testimony was admissible under a hearsay exception where the witness is unavailable. Henley represented to the Court he was unable to find the witness. The State wanted to try to find the witness as well and the trial court replied, “Okay. If you can find her, get her.” The State did make contact with her on the phone. The witnesses stated she was in Anderson County and that she did not receive a subpoena. The paramount question concerning the admissibility of the testimony from the prior trial was whether Henley was able to procure Gray’s attendance by process or other reasonable means. The trial court let some of the testimony in but excluded the rest.
The Court of Appeals stated because Rule 804(a)(5) requires the declarant’s unavailability despite “process or other reasonable means” the Court believes the witnesses testimony was inadmissible hearsay.
It is undisputed that the witness did not receive a subpoena (process). One can deduce that The Court of Appeals was not persuaded that Henley met the requirement to use other reasonable means to get the witness to Court. The only evidence Henley gave concerning his attempt to meet the requirement of other reasonable means was to offer his investigator as to all efforts that she made to try and locate the witness. In hindsight, appears it would have been wise to call the investigator so the trial court could weigh the specific lengths of which Henley’s investigator took to locate the witness and whether this met the other reasonable means standard.
In reading the opinion, it appears Henley was offering the testimony of the investigator in the most gracious of ways but at that time the State did not have an objection. To make matters worse for Henley, the State found her via a phone call in what appears to be a very short amount of time.
Fourth and finally, Henley argued the trial court improperly denied his motion to exclude evidence of DNA testing conducted on the cigarette butt found at the crime scene because the State could not present a complete chain of custody and the cigarette butt was not available for comparison to the crime scene photograph at trial. Further, the State’s negligence in destroying the cigarette butt constituted bad faith.
The Court of Appeals disagreed. Henley had to prove that either the state destroyed evidence in bad faith, OR that the state destroyed evidence that possessed an exculpatory value that IS apparent before the evidence was destroyed and the defendant cannot obtain other evidence of comparable value by other means. “Bad faith cannot be inferred simply because the evidence was lost.” The Court was also unconcerned with whether the cigarette butt was available for comparison reasoning it would not have contributed anything of value. The Court seemed to reason this was favorable to Henley because it allowed him to argue that the evidence was lost and to criticize the State’s investigation as a whole.
So, Dell Laptops can cost 24 years. Are they even making those things anymore?
Source: https://www.sccourts.org/opinions/HTMLFiles/COA/5694.pdf
by Alex KornfeldBURGLARY. APPURTENANT OR NOT IS THE KEY QUESTION
BURGLARY. APPURTENANT OR NOT IS THE KEY QUESTION IN STATE V. JOHN KENNETH MASSEY, JR.
John Kenneth Massey, Jr. was charged with first degree burglary. Prior to trial Massey’s lawyer moved to quash the first-degree burglary indictment because the building that Massey allegedly burglarized was on a separate piece of land than the victim’s residence and it was used for the victim’s business, not as a dwelling.
The land of which the business was located was titled in his Uncle Bill’s name, not his name. The victim also stated the building that was burglarized was primarily used as a storage building for belongings like four-wheelers, boats, and tools.
The Government argued the storage building was appurtenant to the family dwelling. Although the building was titled in Uncle Bill’s name it was a mere 200 feet from victim’s residence. Over the government’s objection, the Court granted Massey’s motion to quash the indictment reasoning that victim did not own the piece of land (remember Uncle Bill did) or the storage building nor was it appurtenant to the residence. The Court further stated the appropriate charge is actually burglary, second degree.
The government attempted to argue for the first time before the South Carolina Court of Appeals that the lower court lacked authority to quash the indictment because burglary is a crime of possession, not a crime of ownership. The South Carolina Court of Appeals did not rule on this argument because it was unpreserved.
In layman terms, the Court found the storage building wasn’t a dwelling which was a requirement to meet the elements of first-degree burglary in this case. To be first degree burglary in this case the structure needed to be within 200 yards of a dwelling AND appurtenant. The government couldn’t prove the latter because the Court found that a building unattached to a residence on a separate parcel of land isn’t appurtenant.
So, what difference does it make if it’s burglary first or burglary second? A whole lotta time…A whole lotta time.
Source: https://www.sccourts.org/opinions/HTMLFiles/COA/5630.pdf
On June 10, 2020 The South Carolina Supreme Court Reversed the Court of Appeals Decision and Remanded the Case to the trial court.
Source: https://www.sccourts.org/opinions/HTMLFiles/SC/27981.pdf
I HAVE INCLUDED THE BURGLARY LAWS FOR REFERENCE
SECTION 16-11-311. Burglary; first degree.
(A) A person is guilty of burglary in the first degree if the person enters a dwelling without consent and with intent to commit a crime in the dwelling, and either:
(1) when, in effecting entry or while in the dwelling or in immediate flight, he or another participant in the crime:
(a) is armed with a deadly weapon or explosive; or
(b) causes physical injury to a person who is not a participant in the crime; or
(c) uses or threatens the use of a dangerous instrument; or
(d) displays what is or appears to be a knife, pistol, revolver, rifle, shotgun, machine gun, or other firearm; or
(2) the burglary is committed by a person with a prior record of two or more convictions for burglary or housebreaking or a combination of both; or
(3) the entering or remaining occurs in the nighttime.
(B) Burglary in the first degree is a felony punishable by life imprisonment. For purposes of this section, “life” means until death. The court, in its discretion, may sentence the defendant to a term of not less than fifteen years.
HISTORY: 1985 Act No. 159, Section 2; 1995 Act No. 83, Section 17.
SECTION 16-11-311. Burglary; first degree.
(A) A person is guilty of burglary in the first degree if the person enters a dwelling without consent and with intent to commit a crime in the dwelling, and either:
(1) when, in effecting entry or while in the dwelling or in immediate flight, he or another participant in the crime:
(a) is armed with a deadly weapon or explosive; or
(b) causes physical injury to a person who is not a participant in the crime; or
(c) uses or threatens the use of a dangerous instrument; or
(d) displays what is or appears to be a knife, pistol, revolver, rifle, shotgun, machine gun, or other firearm; or
(2) the burglary is committed by a person with a prior record of two or more convictions for burglary or housebreaking or a combination of both; or
(3) the entering or remaining occurs in the nighttime.
(B) Burglary in the first degree is a felony punishable by life imprisonment. For purposes of this section, “life” means until death. The court, in its discretion, may sentence the defendant to a term of not less than fifteen years.
HISTORY: 1985 Act No. 159, Section 2; 1995 Act No. 83, Section 17.
SECTION 16-11-312. Burglary; second degree.
(A) A person is guilty of burglary in the second degree if the person enters a dwelling without consent and with intent to commit a crime therein.
(B) A person is guilty of burglary in the second degree if the person enters a building without consent and with intent to commit a crime therein, and either:
(1) When, in effecting entry or while in the building or in immediate flight therefrom, he or another participant in the crime:
(a) Is armed with a deadly weapon or explosive; or
(b) Causes physical injury to any person who is not a participant in the crime; or
(c) Uses or threatens the use of a dangerous instrument; or
(d) Displays what is or appears to be a knife, pistol, revolver, rifle, shotgun, machine gun, or other firearm; or
(2) The burglary is committed by a person with a prior record of two or more convictions for burglary or housebreaking or a combination of both; or
(3) The entering or remaining occurs in the nighttime.
(C)(1) Burglary in the second degree pursuant to subsection (A) is a felony punishable by imprisonment for not more than ten years.
(2) Burglary in the second degree pursuant to subsection (B) is a felony punishable by imprisonment for not more than fifteen years, provided, that no person convicted of burglary in the second degree pursuant to subsection (B) shall be eligible for parole except upon service of not less than one-third of the term of the sentence.
HISTORY: 1985 Act No. 159, Section 2; 2010 Act No. 273, Section 11, eff June 2, 2010.
SECTION 16-11-313. Burglary; third degree.
(A) A person is guilty of burglary in the third degree if the person enters a building without consent and with intent to commit a crime therein.
(B) Burglary in the third degree is a felony punishable by imprisonment for not more than five years for conviction on a first offense and for not more than ten years for conviction of a second offense according to the discretion of the Court.
HISTORY: 1985 Act No. 159, Section 2.