State v. Lassiter ( 2008 )

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

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The State, Respondent,

v.

Hardy Lassiter, Appellant.

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Appeal From Spartanburg County
J. Derham Cole, Circuit Court Judge

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Unpublished Opinion No. 2008-UP-688
Submitted December 1, 2008 – Filed December 11, 2008

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AFFIRMED

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Appellate Defender LaNelle C. DuRant, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General Deborah R.J. Shupe, all of Columbia; Solicitor Harold W. Gowdy, III, of Spartanburg, for Respondent.

PER CURIAM: Hardy Lassiter was convicted of two counts of armed robbery, two counts of possession of a firearm during the commission of a violent crime, and two counts of pointing and/or presenting a firearm.  On appeal, Lassiter argues the trial court erred in (1) refusing to suppress the clothing worn during the commission of the alleged robberies and (2) refusing to charge the jury on “mere presence.” We affirm[1] pursuant to Rule 220, SCACR, and the following authorities:

1.  The trial court did not err refusing to suppress Lassiter’s clothing because police seized the clothing while Lassiter was in police custody following a lawful arrest.  U.S. v. Robinson, 414 U.S. 218, 224 (1973) (“It is well settled that a search incident to a lawful arrest is a traditional exception to the warrant requirement of the Fourth Amendment.”); U.S. v. Edwards, 415 U.S. 800, 803-04 (1974) (“[B]oth the person and the property in his immediate possession may be searched at the station house after the arrest has occurred at another place and if evidence of crime is discovered, it may be seized and admitted in evidence.  Nor is there any doubt that clothing or other belongings may be seized upon arrival of the accused at the place of detention and later subjected to laboratory analysis or that the test results are admissible at trial.”); Hudson v. Palmer, 468 U.S. 517, 528 (1984) (holding a prisoner’s expectation of privacy is diminished as a consequence of confinement). 

2.  The trial court did not err in failing to instruct the jury on “mere presence” because the evidence presented at trial did not support such an instruction.  State v. Lee-Grigg, 374 S.C. 388, 405-06, 649 S.E.2d 41, 50 (Ct. App. 2007) (holding a trial court has a duty to give a requested instruction that is supported by the evidence and correctly states the law applicable to the issues);  State v. Stokes, 339 S.C. 154, 163, 528 S.E.2d 430, 434 (Ct. App. 2000) (holding a mere presence instruction is applicable if there is a doubt over whether the defendant is guilty as an accomplice to a crime); State v. Dennis, 321 S.C. 413, 420, 468 S.E.2d 674, 678 (Ct. App. 1996) (holding mere presence applies where the defendant is charged with possession of contraband as a result of being present where contraband was found); State v. Baccus, 367 S.C. 41, 55, 625 S.E.2d 216, 223 (2006) (“When guilt is conclusively proven by competent evidence, such that no other rational conclusion could be reached, this [c]ourt will not set aside a conviction for insubstantial errors not affecting the result”).  We believe neither mere presence situation applies to the present case, and in any event believe the State proved Lassiter’s guilt conclusively by competent evidence.

AFFIRMED.

WILLIAMS, PIEPER, and GEATHERS, JJ., concur.

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[1] We decide this case without oral argument pursuant to Rule 215, SCACR.