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State v. Henley

Court of Appeals of South Carolina

December 11, 2019

The State, Respondent.
Rickey Santoine Henley, Appellant. Appellate Case No. 2016-000844

          Heard February 12, 2019

          Appeal From Abbeville County Eugene C. Griffith, Jr., Circuit Court Judge

          Appellate Defender Susan Barber Hackett, of Columbia, for Appellant.

          Attorney General Alan McCrory Wilson, Senior Assistant Deputy Attorney General William M. Blitch, Jr., and Assistant Attorney General Vann Henry Gunter, Jr., of Columbia, and Solicitor David Matthew Stumbo, of Greenwood, all for Respondent.

          McDONALD, J.

         Rickey Santoine Henley appeals his first degree burglary conviction, arguing the circuit court erred by (1) finding his prior larceny acquittal did not bar his retrial for burglary; (2) excluding evidence of the prior larceny acquittal; (3) limiting the admission of a witness's prior trial testimony; and (4) admitting evidence of DNA testing conducted on a cigarette butt found at the crime scene. We affirm.

         Facts and Procedural History

         On the morning of February 15, 2012, Richard Culbreth drove past the Abbeville County home of Amanda Moss (Victim) and her husband Jamie Moss (Husband) while on the way to visit his mother.[1] Culbreth saw a gray car backed into Victim's carport with the back door open and a black male running from the home's front door to a side door. As Culbreth found this unusual, he turned around and drove back to Victim's house, where he observed the same man standing in the doorway.

         After spotting Culbreth, the alleged intruder got into his car, pulled out of Victim's driveway, stopped in front of Culbreth's pickup truck-which was pulling a trailer with a lawn mower-and asked him if he needed any help with lawn care. Culbreth replied he did not need any help, and the man drove away, merging onto Highway 28 North toward Anderson County. Culbreth called 911 and described the car as a dirty, gray, late 1980s or 1990s model Pontiac with the license plate number "HSN 454." Culbreth described the man as having facial hair and testified, "I just remember he had a bandana tied tightly around his head. It went down the back of his neck. Light-skinned from what I could tell. But I do not remember any, you know, marks, facial scars, or anything."

         Deputy Patrick Thompson, a detective in the Abbeville County Sheriff's Office (ACSO) property crimes division, responded to Victim's home. While processing the scene, Deputy Thompson noticed a footwear impression on the carpet. Officers recovered a cigarette butt from the intruder's point of entry, which they collected and placed into evidence.[2] The sole item missing from Victim's home was a Dell laptop computer, valued at five hundred dollars, which Victim reported had been on a bench just inside the carport door.[3]

         At trial, Victim identified photographs of the side carport door, which was partially broken off its hinge and appeared to have been tampered with; the doorframe was also damaged. Victim testified a cigarette butt found near her steps did not belong to her or Husband as neither smoked, and the cigarette was not there when she left the home that morning. Victim noted she normally locked the door to the house when she left. Likewise, Husband testified the door was locked and there was no cigarette butt on the steps when he left the house.

         Deputy Thompson used Culbreath's description and tag number to search for the suspect vehicle on the South Carolina Law Enforcement Division (SLED) vehicle database. The search revealed a 1997 Pontiac Bonneville owned by Henley and his then girlfriend, Jolene Gray, bearing the license plate number "HSN 544." Based on information he received from the Department of Motor Vehicles, Deputy Thompson went to Henley's Anderson County residence on February 22, 2012. Parked outside, he saw a Pontiac Bonneville matching the description provided by Culbreath with the license plate "HSN 544".

         Henley was at the residence and spoke with law enforcement. He admitted he had recently been in Abbeville and acknowledged he had been on Highway 28. Henley recalled speaking to someone in a pickup truck and admitted he smoked Newport cigarettes. Deputy Thompson noticed Henley was wearing boots, the soles of which resembled the impression left on Victim's carpet. Henley was arrested for first degree burglary and larceny on February 23, 2012.[4]

         According to Gray, five police officers came to her house a second time when Henley was not there. She stated she saw the officers walking around, and one officer picked something up off of the ground. Regarding Henley's location on the day of the burglary, Gray claimed Henley left their Anderson County apartment between 8:00 a.m. and 9:00 a.m. to go to his mother's house in Beech Island.[5]Gray confirmed Henley owned a pair of boots and smoked Newport cigarettes.

         Henley's mother, Ella Johnson, stated that on February 15, 2012, Henley arrived at her home at approximately 10:00 a.m. with leftover shrimp and lobster from his Valentine's Day dinner with Gray. Johnson testified she and Henley went to Moe's Convenience Store at approximately 2:00 p.m.

         Henley's first jury trial began April 8, 2015. Following an Allen charge, the jury returned a verdict of not guilty on the larceny charge connected with the burglary at Victim's home. However, the jury hung on the first degree burglary charge, and the circuit court declared a mistrial on April 9, 2015. After the circuit court's denial of Henley's motion to preclude retrial under the Double Jeopardy Clause of the Fifth Amendment, Henley was retried on the burglary charge. The jury found Henley guilty of first degree burglary, and the circuit court sentenced him to twenty-four years' imprisonment.

         Law and Analysis

         I. Double Jeopardy

         Henley argues the circuit court erred by denying his motion to quash the burglary indictment on double jeopardy grounds because (1) it failed to apply the proper test of Yeager v. United States, 557 U.S. 110 (2009), and (2) his prior acquittal on the larceny charge relating to the Dell computer necessarily determined he was "not guilty" of burglary as the sole item missing following the burglary was the Dell laptop. We disagree.

         At Henley's first trial, the jury acquitted Henley of the larceny of Victim's Dell computer but was unable to reach a unanimous verdict on the first degree burglary charge. Prior to the start of his second trial, Henley moved to quash the burglary indictment, arguing any retrial would violate both the federal and state Double Jeopardy Clauses. Following a pretrial hearing, the circuit court concluded:

Here's what I think. I understand your argument. I think it's a directed verdict to fact [sic] question as to whether they conclude and get past directed verdict stage. With the intent to commit a crime therein is one of the elements of burglary first and second and third. The State's got that burden of proving with the intent to commit a crime. I don't believe the acquittal of the larceny precludes them from presenting facts which the jury could prove intent to commit a crime therein. They have not had that opportunity yet. So I think your motion should be denied right now, but I feel confident you will most likely renew it at the directed verdict stage in a similar-worded argument if the State's failed to prove anything beyond a suggestion of intent to commit a crime therein. So I don't believe jeopardy attaches to the [burglary] charge since it's not a specific crime. The indictment does not get quashed at this point, but the Court will be listening.

         The Double Jeopardy Clauses of the United States and South Carolina Constitutions protect citizens from being subjected to repetitive conclusive prosecutions and multiple punishments for the same offense. U.S. Const. amend. V ("[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb. . . ."); S.C. Const, art. I, C ("No person shall be subject for the same offense to be twice put in jeopardy of life or liberty . . . ."). "In interpreting the Double Jeopardy clause, [our supreme court] has stated that '[t]he Double Jeopardy Clause protects against a second prosecution for the same offense after acquittal or conviction, and protects against multiple punishments for the same offense.'" State v. Brandt, 393 S.C. 526, 538, 713 S.E.2d 591, 597 (2011) (quoting Stevenson v. State, 335 S.C. 193, 198, 516 S.E.2d 434, 436 (1999)). However, "[a] defendant may be severally indicted and punished for separate offenses without being placed in double jeopardy where a single act consists of two 'distinct' offenses." Id. (quoting State v. Moyd, 321 S.C. 256, 258, 468 S.E.2d 7, 9 (Ct. App. 1996)).

         The doctrine of issue preclusion is embodied in the Fifth Amendment's Double Jeopardy Clause. Ashe v. Swenson, 397 U.S. 436, 445-46 (1970). Issue preclusion means that "when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Id. at 443. In Ashe, the United States Supreme Court explained that "'collateral estoppel' is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice." Id. at 443. In emphasizing the rule of collateral estoppel in criminal cases should be applied with "realism and rationality," the Court advised:

Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to "examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration."

Id. at 444. Ashe is not dispositive here as the issue determined there was "simply whether, after a jury determined by its verdict that the petitioner was not one of the robbers, the State could constitutionally hale him before a new jury to litigate that issue again." Id. at 446.

         Yeager v. United States, 557 U.S. 110, 113 (2009), which involved charges of securities fraud and insider trading, is more helpful to our analysis. There, the Supreme Court examined an issue preclusion challenge involving an attempted retrial after the jury acquitted the defendant on the securities fraud counts but could not reach a verdict on his insider trading charges. Id. at 115. When the prosecution subsequently sought to retry the defendant on the insider trading counts, the defendant moved to dismiss, arguing the acquittals on securities fraud precluded his retrial for insider trading. Id. The district court denied the motion, concluding the question of whether the defendant possessed insider information was not necessarily resolved in the first trial. Id. at 116-17. Although Yeager is distinguishable from Ashe in that Yeager involved an acquittal on some counts and a hung jury on others, the Supreme Court explained "the reasoning in Ashe is nevertheless controlling because, for double jeopardy purposes, the jury's inability to reach a verdict on the insider trading counts was a nonevent and the acquittals on the fraud counts are entitled to the same effect as Ashe's acquittal." Id. at 120. The Supreme Court subsequently found, "if the possession of insider information was a critical issue of ultimate fact in all of the charges against petitioner, a jury verdict that necessarily decided that issue in his favor protects him from prosecution for any charge for which that is an essential element." Id. at 123.

         Here, Henley's acquittal for larceny-the taking of the Dell computer-is not dispositive of whether the State could satisfy the elements necessary for a first degree burglary conviction. In Yeager, there could be no insider trading if, as found by the jury, there had been no fraud. But an acquittal for larceny does not foreclose any element necessary for a first degree burglary conviction. See S.C. Code Ann. § 16-13-30(A) ("Simple larceny of any article of goods, choses in action, bank bills, bills receivable, chattels, or other article of personalty of which by law larceny may be committed, or of any fixture, part, or product of the soil severed from the soil by an unlawful act, or has a value of two thousand dollars or less, is petit larceny, a misdemeanor, triable in the magistrates court or municipal court. . . ."); S.C. Code Ann. § 16-11-311(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) . . .; 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) . . . ."). While larceny is defined as "the felonious taking and carrying away of the goods of another against the owner's will or without his consent," State v. Moore, 374 S.C. 468, 477, 649 S.E.2d 84, 88 (Ct. App. 2007), burglary merely requires that "the person enters a dwelling without consent and with intent to commit a crime in the dwelling." S.C. Code Ann. § 16-11-311(A) (emphasis added). Each of the offenses requires proof of different critical elements. See Blockburger v. United States, 284 U.S. 299, 304, (1932) ("The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.").

         Additionally, we agree with the State that the jury's "not guilty" verdict was not necessarily a finding that Henley was not the individual who entered Victim's home without consent and with intent to commit a crime therein; rather, the prior jury found only that the State failed to prove beyond a reasonable doubt that Henley took the Dell computer. Henley's acquittal on the larceny charge did not preclude the State from presenting facts-that Henley's car was backed into Victim's carport with the back door open, Culbreth witnessed Henley ...

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