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2004-UP-242 - State v. Littles

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

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State,        Respondent,

v.

Edward Littles        Appellant.


Appeal From Marlboro County
John M. Milling, Circuit Court Judge


Unpublished Opinion No. 2004-UP-242
Submitted October 15, 2003 – Filed April 15, 2004


AFFIRMED


Edward Littles, Jr., pro se Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, Assistant Attorney General Melody J. Brown, all of Columbia; and Solicitor Jay E. Hodge, Jr., of Darlington, for Respondent.

PER CURIAM: Littles was indicted for murder.  The case was called for trial on February 12, 2002.  After jury selection, the judge adjourned court for the day.  Littles was allowed to stay on bond, but the court informed Littles that failure to appear at the trial would not delay the trial from moving forward.  On February 13, 2002, Littles did not return to court.  On February 14, 2002, Littles returned for the second day of trial.  The jury convicted him of murder.  The judge sentenced Littles to 40 years imprisonment.  This appeal follows.

FACTS

The victim, Harold Richard Williams, owned a small store and poolroom in Bennettsville, South Carolina.  On August 11, 1999, the victim’s wife, Kathy Moody, went to the store to see the victim and pick up supplies for a planned outing scheduled for the following day.  When Ms. Moody arrived, a group of men were at the store, including Edward Littles, Jr.  Some members of the group were playing pool; Mr. Littles was observing them play. 

At some point later, Littles, Maurice McNeil and a man named Shawn (whose last name was unknown) were outside in the middle of the street. They were involved in an altercation.  Littles approached McNeil and Shawn as they were crossing the street.  Littles called to McNeil and stated “All I asked you to do is buy me a beer.” Shawn returned to where Littles and McNeil were talking and informed Littles that he was trying to get home and did not want any trouble. Littles pointed his gun at Shawn and told him that he was not speaking to him.  Shawn ran away, while McNeil stood there.  Eventually, Littles and McNeil returned to the inside of the store so that McNeil could return a paged call. 

Once McNeil and Littles were inside the store, McNeil used the telephone. When McNeil picked up the telephone and started dialing, Littles came around to where the phone was and pulled McNeil’s hand off the telephone and pulled McNeil away from the phone.  At that point, McNeil and Littles began fighting.  Williams pulled out a gun and requested Littles leave.  Littles got “crazy, loud” and said that he was not afraid of the gun.  Williams picked up his gun and struck Littles on the forehead and pushed him out the door.  As Williams was pushing Littles out the door the clip fell from Williams’ gun. 

Littles returned and threatened to shoot Moody, then shot Williams.  After shooting Williams, Littles went outside.  After Littles left, there were several shots outside.  Littles returned to the store and fired several shots into Williams, who was on the floor. Williams was pronounced dead at the scene.   

The case was called for trial on February 12, 2002. Prior to the beginning of the trial, the judge allowed Littles to remain on bond.  However, the judge admonished Littles that the trial would proceed whether Littles was present.  Littles did not show for the second day of trial and the trial proceeded and testimony was completed.  Littles returned before closing arguments on the last day of trial.  He was convicted of murder and sentenced to forty (40) years.  Littles appeals.

ISSUES

1.                 Did the trial court err in proceeding with the trial in abstentia?

2.                 Did the trial court err in denying Appellant’s motion for directed verdict on the grounds of lack of evidence?

LAW/ANALYSIS

1. Trial In Abstentia

Littles asserts the trial court erred in trying him in absentia. We disagree. 

Rule 16 of the South Carolina Rules of Criminal Procedure provides: 

Except in cases wherein capital punishment is a permissible sentence, a person indicted for misdemeanors and/or felonies may voluntarily waive his right to be present and may be tried in his absence upon a finding by the court that such person has received notice of his right to be present and that a warning was given that the trial would proceed in his absence upon a failure to attend the court.  

Rule 16, SCRCrimP. 

“A trial judge must determine a criminal defendant voluntarily waived his right to be present at trial in order to try the case in absentia.”  See Rule 16, SCRCrimP; State v. Castineira, 341 S.C. 619, 623, 535 S.E.2d 449, 451 (Ct.App. 2000)  “The judge must make findings of fact on the record that the defendant (1) received notice of his right to be present; and (2) was warned he would be tried in his absence should he fail to attend.” Castineira, 341 S.C. at 623, 535 S.E.2d 451; State v. Jackson, 288 S.C. 94, 96, 341 S.E.2d 375 (1986).

The record establishes the trial judge made the requisite inquiries and findings; and counsel stipulated that Littles received the proper notice, not only from the court, but also from counsel himself. Therefore, this issue is without merit.

2.       Directed Verdict Motion

Although Littles raises the denial of the directed verdict motion in his statement of the issues on appeal, he failed to argue it in his brief. “An issue raised on appeal but not argued in the brief is deemed abandoned and will not be considered by the appellate court.”  Fields v. Melrose Ltd. Partnership, 312 S.C. 102, 106, 439 S.E.2d 283, 285 (Ct.App. 1993).

CONCLUSION

For the foregoing reasons, the trial court’s ruling is

AFFIRMED.

HUFF, STILWELL, and BEATTY, JJ., concur.