downloads/Criminal Outline June2005
7. PROBATION REVOCATION WARRANTS ............................................................... 8
8. EFFECT OF ILLEGAL ARREST ON PROSECUTION .............................................. 8
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b) Searches and Seizures Without Fourth Amendment Protection ............................... 15
(7) Non-U.S. Citizens and Their Property Outside U.S. Territory ......................... 18
(ii) Supplementation with Sworn Testimony ................................................. 25
(v) Challenging the Affidavit at Trial (Franks Hearing) .............................. 27
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(4) Subsequent Confessions after Unwarned Confession....................................... 54
4. SIXTH AMENDMENT RIGHT TO COUNSEL ......................................................... 55
6. CONFESSIONS FOLLOWING ILLEGAL ARREST. ................................................ 56
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Castaneda v. Partida, 430 U.S. 482, 97 S. Ct. 1272, 51 L. Ed. 2d 498 (1977); State v.
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4. WAIVER OF ARRAIGNMENT/TRIALS IN ABSENTIA ......................................... 77
(1) Cumulative Punishment Authorized by Legislature ......................................... 80
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4. WAIVER OF CONSTITUTIONAL RIGHTS ............................................................. 89
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CONSTITUTIONAL CHALLENGES TO GRAND JURY AND PETIT JURY
PETITE JURY VENIRE QUALIFICATIONS .............................................................. 103
2. EXEMPTIONS ON REQUEST BY JUROR ............................................................. 104
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(2) Victim's body - in non-capital cases or guilt phase of capital cases ............... 117
(2) Testimony of child witnesses and other special needs witnesses ................... 118
5. EVIDENCE OF OTHER BAD ACTS (LYLE).......................................................... 124
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(3) Examples of Subjects for Expert Testimony .................................................. 134
(4) Behavioral Science Expert Opinions in Sexual Abuse Case .......................... 135
(2) Rule 801(d)(1), SCRE. Prior Statement by Witness. ..................................... 137
(d) Declaration by Victim of Criminal Sexual Conduct. .................................. 138
Party Has Manifested an Adoption or Belief in Statement’s Truth. ........... 138
(c) Statement by Co-Conspirator in Furtherance of the Conspiracy. ............... 138
c) Exceptions to Hearsay Rule: Availability of Declarant Immaterial. Rule 803, SCRE.
(3) Then Existing Mental, Emotional, or Physical Condition. ............................. 140
(4) Statements for Purposes of Medical Diagnosis or Treatment. ........................ 140
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(7) Absence of Entry in Records Kept in Accordance With the Provisions of
(12) Records of Documents Affecting an Interest in Property. .............................. 142
(13) Statements in Documents Affecting an Interest in Property. .......................... 143
(15) Reputation Concerning Personal or Family History. ...................................... 143
(1) Definition of Unavailability. Rule 804(a), SCRE. ......................................... 144
(2) Hearsay Exceptions. Rule 804(b), SCRE. ..................................................... 144
(b) Statement Under Belief of Impending Death. ............................................. 145
13. WRITTEN STATEMENTS MADE TO PUBLIC OFFICIALS ............................ 151
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4. IMPROPER INTIMIDATION OF A WITNESS ....................................................... 159
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10. DEFENDANT'S FAILURE TO APPEAR AT TRIAL .......................................... 177
15. PRIOR INCONSISTENT STATEMENTS ............................................................ 180
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3. APPORTIONMENT OF FINE AFTER PART OF SENTENCE SERVED .............. 223
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CRIMINAL LAW OUTLINE
Acknowledgment and Caveat
This outline was created in 1990 under the leadership of former Chief Justice A. Lee Chandler.
Craig Collins, John Nichols, Ken Richstad, Dan Shearouse, Denise Spears, and Susan Widener compiled the original outline. Since that time, the outline has been updated by Judge Gary
Clary’s law clerks. The present outline has been substantially modified and updated by the
Supreme Court Staff Attorneys Office. Betsy Goodale, Becky Hunter, Brad Lanford, Erin
Joyner, William Blitch, David Marvel, Matthew Penn, Karen Ratigan, Julie Thames, Christy
Mahon, and Chenay Weyble all contributed to the update.
This outline is meant to be a starting point for research and is not intended to be the “last word.”
If, while using the outline, errors or omissions are discovered, please inform Linda Allen in the
Supreme Court Staff Attorneys Office, 803-734-1160; lallen@scjd.state.sc.us. xviii
1.
PRE-TRIAL
A. ARREST
1.
GENERALLY
The legality of an arrest is to be determined under the facts and circumstances which existed at the time and place of the arrest and not upon the results of the subsequent trial. State v. Retford,
276 S.C. 657, 281 S.E.2d 471 (1981).
An arrest is not rendered unlawful by the fact that an officer who has authority to make an arrest for a particular offense erroneously states that he is making an arrest for some other offense or even for a cause which is not in fact an offense, or states the offense inaccurately. State v.
Retford, 276 S.C. 657, 281 S.E.2d 471 (1981).
The validity of an arrest is unaffected by the fact that after the arrest the statute defining the crime for which the suspect was arrested is declared unconstitutional. Michigan v. DeFillippo,
443 U.S. 31, 99 S. Ct. 2627, 61 L. Ed. 2d 343 (1979); State v. Roper, 274 S.C. 14, 260 S.E.2d
705 (1979).
2.
PROBABLE CAUSE
For an arrest, whether with or without a warrant, there must be probable cause to believe that a crime has been committed and that the person to be arrested committed the crime. Tennessee v.
Garner, 471 U.S. 1, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985) (probable cause for arrest without a warrant); Giordenello v. United States, 357 U.S. 480, 78 S. Ct. 1245, 2 L. Ed. 2d 1503 (1958)
(probable cause for arrest with a warrant).
The standard for an arrest is probable cause, defined in terms of facts and circumstances sufficient to warrant a prudent man in believing that the suspect had committed or was committing an offense. Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975).
The officer's experience may be considered in determining whether probable cause existed.
United States v. Ortiz, 422 U.S. 891, 95 S. Ct. 2585, 45 L. Ed. 2d 623 (1975).
The fact that the officer making the arrest does not believe probable cause existed does not prevent the State from justifying the arrest by showing probable cause did exist. Florida v.
Royer, 460 U.S. 491, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983).
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Hearsay may be considered by law enforcement agents in determining whether there is probable cause. Draper v. United States, 358 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959).
Where officer stopped car for speeding and driver gave consent to search the vehicle, which contained, 2 passengers, officer had probable cause to arrest all the occupants of the vehicle where none of the occupants admitted knowledge of money found in glove compartment and cocaine in the vehicles back seat. Maryland v. Pringle, ___ U.S. ___, 124 S.Ct. 795, 157
L.Ed.2d. 769 (2003).
3.
WARRANT
a) Probable Cause Determination
The Fourth Amendment requires that arrest warrants be based upon probable cause, supported by oath or affirmation, a requirement that may be satisfied by an indictment returned by a grand jury. Kalina v. Fletcher, 522 U.S. 118, 118 S. Ct. 502, 139 L. Ed. 2d 471 (1997); see also State v. Higgins, 51 S.C. 51, 28 S.E. 15 (1897) (a warrant is illegal if not supported by oath or affirmation).
The judicial officer must be supplied with sufficient information to make an independent determination that probable cause exists. Whiteley v. Warden, 401 U.S. 560, 91 S. Ct. 1031, 28
L. Ed. 2d 306 (1971).
Oral information may only be used by an affiant to supplement or to amend incorrect information in an affidavit that was not knowingly, intentionally, or recklessly supplied by the affiant. State v. Jones, 342 S.C. 121, 536 S.E.2d 675 (2000) (case involving a search warrant).
To implement the Fourth Amendment's protection against unfounded invasions of liberty and privacy, the Court has required that the existence of probable cause be decided by a neutral and detached magistrate. Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975);
State v. Franks, 276 S.C. 636, 281 S.E.2d 227 (1981); see also Sheldon R. Shapiro, Annotation,
Requirement, Under Federal Constitution, That Person Issuing Warrant for Arrest or Search Be
Neutral and Detached Magistrate B Supreme Court Cases, 32 L. Ed. 2d 970 (1999) (discussing the magistrate requirement).
When a properly constituted grand jury has returned an indictment that is fair on its face, a magistrate may issue an arrest warrant without making an independent determination of probable cause. Ex parte United States, 287 U.S. 241, 53 S. Ct. 129, 77 L. Ed. 283 (1932). b) Particularity
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The arrest warrant must with particularity identify the person to be arrested. Wong Sun v.
United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963); S.C. Const. art. I, § 10. c) Criminal Domestic Violence
The Criminal Domestic Violence Act provides the circumstances under which a law enforcement officer may effect an arrest for criminal domestic violence either with or without a warrant, specifically permits a warrantless arrest even if the violence did not take place in the presence of an officer, and permits an officer to enter a person's home without a warrant to effect the arrest.
State v. Cannon, 336 S.C. 335, 520 S.E.2d 317 (1999); see S.C. Code Ann. § 16-25-70 (1985 &
Supp. 2001) (for warrantless arrest or search and admissibility of evidence).
Note: presumably this statute would not override otherwise relevant constitutional protections. d) Entry into Residence to Effect Arrest
(1) Generally
A valid arrest warrant implicitly grants police the limited authority to enter a suspect's residence when there is reason to believe the suspect is within. State v. Asbury, 328 S.C. 187, 493 S.E.2d
349 (1997); State v. Loftin, 276 S.C. 48, 275 S.E.2d 575 (1981); see Payton v. New York, 445
U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980).
The lawfulness of entry into a private residence by law enforcement officers rests solely upon the information possessed by the officers at the time entry is effected. State v. Asbury, 328 S.C.
187, 493 S.E.2d 349 (1997).
In the absence of consent or an exigent circumstance, if it is necessary to enter the home of a third party to effect an arrest, a search warrant must be obtained for the search of the residence; an arrest warrant for the suspect is not sufficient to authorize entry into the residence. Steagald v. United States, 451 U.S. 204, 101 S. Ct. 1642, 68 L. Ed. 2d 38 (1981).
(2) Exceptions
The warrant requirement is not applicable if the police have another lawful basis for entry, such as:
Consent.
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Hot pursuit. See United States v. Santana, 427 U.S. 38, 96 S. Ct. 2406, 49 L. Ed. 2d 300 (1976).
Other exigent circumstances such as destruction of evidence, risk of escape, or danger to police or to others. Minnesota v. Olsen, 495 U.S. 91, 110 S. Ct. 1684, 109 L. Ed. 2d 85 (1990).
The burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries. Welsh v.
Wisconsin, 466 U.S. 740, 104 S. Ct. 2091, 80 L. Ed. 2d 732 (1984).
Police officer's refusal to allow defendant to enter residence without a police officer until a search warrant of residence was obtained, following statement by defendant's wife that husband had illegal drugs in residence, was a "reasonable seizure" that did not violate the Fourth
Amendment; officer had probable cause to believe defendant had illegal drugs in residence and reason to fear destruction of evidence, and restriction was limited in time and scope. Illinois v.
McArthur, 531 U.S. 326, 121 S. Ct. 946, 148 L. Ed. 2d 838 (2001).
4.
AUTHORITY TO MAKE WARRANTLESS ARREST
a) Probable Cause Determination
When determining the constitutional validity of a warrantless arrest, a court must consider
"whether, at the moment the arrest was made, the officers had probable cause to make it--whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [defendant] had committed . . . an offense." Beck v. Ohio, 379 U.S. 89, 85 S. Ct. 223, 13
L. Ed. 2d 142 (1964); State v. Hamilton, 251 S.C. 1, 159 S.E.2d 607 (1968); State v. Robinson,
335 S.C. 620, 518 S.E.2d 269 (Ct. App. 1999). b) Arrest by Police Officer
(1) Felony
A police officer has the authority to arrest a person without a warrant for a felony based upon probable cause. State v. Retford, 276 S.C. 657, 281 S.E.2d 471 (1981).
(2) Misdemeanor
A police officer has the authority to arrest a person without a warrant for a misdemeanor committed in his presence. State v. Retford, 276 S.C. 657, 281 S.E.2d 471 (1981); State v.
Mims, 263 S.C. 45, 208 S.E.2d 288 (1974) (officer has power and authority to arrest without
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warrant those who have committed violation of criminal laws of this State within view of such officer); S.C. Code Ann. § 16-25-70 (1985 & Supp. 2001); S.C. Code Ann. § 17-13-30 (1985).
An officer may make a warrantless arrest for a misdemeanor not committed in his presence, if the facts and circumstances observed by the officer provided probable cause to believe a crime had been freshly committed. Atwater v. City of Lago Vista, 533 U.S. 924, 121 S.Ct. 2540, 150
L.Ed.2d 709 (2001); State v. Clark, 277 S.C. 333, 287 S.E.2d 143 (1982); State v. Sullivan, 277
S.C. 35, 282 S.E.2d 838 (1981); State v. Martin, 275 S.C. 141, 268 S.E.2d 105 (1980); see also
S.C. Code Ann. § 23-13-60 (1989); Summersell v. South Carolina Dep’t of Public Safety, 334
S.C. 357, 513 S.E.2d 619 (Ct. App. 1999), vacated in part on other grounds by 522 S.E.2d 144,
337 S.C. 19 (1999); Fradella v. Town of Mount Pleasant, 325 S.C. 469, 482 S.E.2d 53 (Ct. App.
1997), cert. denied, 1997-OR-890 (S.C. Sup. Ct. filed December 22, 1997) (noting that the officer need not observe all the facts and circumstances at the scene as long as the facts and circumstances observed or perceived by an officer justify the conclusion that a crime has been freshly committed).
(3) Outside Jurisdiction
Where police officers do not have statewide jurisdiction (e.g., municipal police and sheriffs), a warrantless arrest outside their jurisdiction is lawful only if the arrest could have lawfully been done by a private citizen. State v. McAteer, 340 S.C. 644, 532 S.E.2d 865 (2000); State v. Harris,
299 S.C. 157, 382 S.E.2d 925 (1989). See Arrest by Private Citizen.
There are also various statutory provisions which may give police officers authority outside their jurisdiction such as:
S.C. Code Ann. § 5-7-110 (Supp. 2001) (municipal property and by private contract);
S.C. Code Ann. § 5-7-120 (Supp. 2001) (officers sent to other political subdivisions in emergencies);
S.C. Code Ann. § 17-13-40 (1985 & Supp. 2001) (officers in pursuit of offender); and
S.C. Code Ann. § 23-1-215 (1989) (written agreements between multiple law enforcement jurisdictions for purpose of criminal investigation). c) Public Place
If an officer has probable cause to believe that a crime has been committed and that the suspect committed the crime, then the officer can make an arrest for a felony in a public place without a warrant, even if there had been sufficient time in which to obtain one. Watson v. United States,
423 U.S. 411, 96 S. Ct. 820, 46 L. Ed. 2d 598 (1976).
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d) Arrest by Private Citizen
Any person may make an arrest upon “(a) view of a felony committed, (b) certain information that a felony has been committed, or (c) view of a larceny committed.” S.C. Code Ann. § 17-13-
10 (1985).
“A citizen may arrest a person in the nighttime by efficient means as the darkness and the probability of escape render necessary, even if the life of the person should be taken, when the person: (a) has committed a felony; (b) has entered a dwelling house without express or implied permission; (c) has broken or is breaking into an outhouse with a view to plunder; (d) has in his possession stolen property; or (e) being under circumstances which raise just suspicion of his design to steal or to commit some felony, flees when he is hailed.” S.C. Code Ann. § 17-13-20
(1985 & Supp. 2001).
There is no common law right to make warrantless citizen's arrests of any kind, and such rights as exist are created by statute in South Carolina. State v. McAteer, 340 S.C. 644, 532 S.E.2d 865
(2000).
5.
ARREST OF WRONG PERSON
If police have probable cause to arrest first party, their arrest of second party under a mistaken belief that he is the first party is valid if under the circumstances the mistake was reasonable.
Hill v. California, 401 U.S. 797, 91 S. Ct. 1106, 28 L. Ed. 2d 484 (1971).
6.
SEARCH INCIDENT TO ARREST
a) Generally
Police officers may search an arrestee's person and the area within his immediate control for weapons and destructible evidence without first obtaining a search warrant. State v. Cannon,
336 S.C. 335, 520 S.E.2d 317 (1999); State v. Ferrell, 274 S.C. 401, 266 S.E.2d 869, cert. denied, 446 U.S. 965, 100 S. Ct. 2942, 64 L. Ed. 2d 824 (1980).
A search incident to the arrest requires no additional justification. United States v. Robertson,
414 U.S. 218, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973).
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Whether the search precedes a "formal" arrest is irrelevant where police have probable cause to arrest before the search occurs. Rawlings v. Kentucky, 448 U.S. 98, 100 S. Ct. 2556, 65 L. Ed.
2d 633 (1980).
If probable cause exists to arrest a suspect, a warrantless search of the suspect that immediately precedes the arrest will be valid, so long as the fruits of the search are not the justification for the arrest. State v. Moultrie, 316 S.C. 547, 451 S.E.2d 34 (Ct. App. 1994).
A warrantless search incident to arrest must be limited to the area into which an arrestee may reach. Cupp v. Murphy, 412 U.S. 291, 93 S. Ct. 2000, 36 L. Ed. 2d 900 (1973); see State v.
Brown, 289 S.C. 581, 347 S.E.2d 882 (1986) (a search may be conducted incident to an arrest only if it is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest); see also State v. Dupree, 319 S.C. 454, 462 S.E.2d 279 (1995) (the Fourth
Amendment also protects a person's body beyond the body's surface). Where a search incident to arrest could have been performed at the scene of the arrest, the arrestee and his personal effects may be searched at the place of detention. United States v. Edwards, 415 U.S. 800, 94 S.
Ct. 1234, 39 L. Ed. 2d 771 (1974); State v. Ferell, 274 S.C. 401, 266 S.E.2d 869, cert. denied,
446 U.S. 965, 100 S. Ct. 2942, 64 L. Ed. 2d 824 (1980).
A search may be made of the passenger compartment of an automobile, including containers located in the passenger compartment, where the search is incident to the arrest even if the arrestee has been removed from the vehicle. New York v. Belton, 453 U.S. 454, 101 S. Ct.
2860, 69 L. Ed. 2d 768 (1981).
Even when office does not make contact until after suspect has exited vehicle and is secured in officer’s vehicle, the office may still search the passenger compartment of the vehicle. Thornton v. United States, ___ U.S. ___, 124 S.Ct. 2127, ___ L.Ed.2d. ___ (2004).
Police officers with probable cause to search an automobile may inspect the passenger's belongings found in the car, where the items are capable of concealing the object of the search.
See Wyoming v. Houghton, 526 U.S. 295, 119 S. Ct. 1297, 143 L. Ed. 2d 408 (1999). b) Protective Sweep
Where an arrest lawfully occurs in a home, police officers may, without probable cause or reasonable suspicion, conduct a protective sweep of closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. A protective sweep of other areas is permissible only if there are articulable facts which would warrant a reasonably prudent officer in believing the area to be swept harbors an individual posing a danger to those on the arrest scene. Maryland v. Buie, 494 U.S. 325, 110 S. Ct. 1093, 108 L. Ed.
2d 276 (1990); cf. State v. Brown, 289 S.C. 581, 347 S.E.2d 882 (1986) (the State failed to meet its burden of proof to justify the warrantless search under this exception where officers had adequate time to obtain a search warrant and could not explain why they did not obtain a search warrant).
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7.
PROBATION REVOCATION WARRANTS
An arrest warrant for a probation violation may be issued by the probation officer without violating the Fourth Amendment. State v. Franks, 276 S.C. 636, 281 S.E.2d 227 (1981); see also
S.C. Code Ann. § 24-21-450 (1989 & Supp. 2001).
8.
EFFECT OF ILLEGAL ARREST ON PROSECUTION
An illegal arrest does not in and of itself prevent or void a criminal prosecution. United States v.
Crews, 445 U.S. 463, 100 S. Ct. 1244, 63 L. Ed. 2d 537 (1980); State v. McCoy, 255 S.C. 170,
177 S.E.2d 601 (1970).
9.
EXCLUSIONARY RULE
a) Suppression
(1) In General
When considering the use of evidence obtained in violation of the Fourth Amendment in the prosecution's case in chief, the United States Supreme Court has declined to adopt a per se or
"but for" rule that would render inadmissible any evidence that came to light through a chain of causation that began with an illegal arrest. United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405,
82 L. Ed. 2d 677 (1984); see also THE EXCLUSIONARY RULE.
(2) Confessions
A confession obtained through custodial interrogation after an illegal arrest should be excluded unless intervening events break the causal connection between the illegal arrest and the confession so that the confession is sufficiently an act of free will to purge the primary taint.
Taylor v. Alabama, 457 U.S. 687, 102 S. Ct. 2664, 73 L. Ed. 2d 314 (1982).
Factors that should be considered in determining whether a confession has been purged of the taint of the illegal arrest: the temporal proximity of the arrest and the confession, the presence of intervening circumstances, and particularly, the purpose and flagrancy of the official misconduct.
Taylor v. Alabama, 457 U.S. 687, 102 S. Ct. 2664, 73 L. Ed. 2d 314 (1982).
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Obtaining a waiver of Miranda rights is not in and of itself sufficient to purge the taint of an illegal arrest. Taylor v. Alabama, 457 U.S. 687, 102 S. Ct. 2664, 73 L. Ed. 2d 314 (1982).
(3) In-Court Identification
An illegal arrest does not require the suppression of the victim's in-court identification of the suspect. United States v. Crews, 445 U.S. 463, 100 S. Ct. 1244, 6 L. Ed. 2d 537 (1980).
B.
INVESTIGATORY DETENTIONS
1.
STOP AND FRISK
a) Generally
A police officer may briefly detain and question a person without probable cause if he has a reasonable suspicion based on articulable facts that the person is involved in criminal activity.
State v. Foster, 269 S.C. 373, 237 S.E.2d 589 (1977) (citing Terry v. Ohio, 392 U.S. 1, 88 S. Ct.
1868, 20 L. Ed. 2d 889 (1968)).
State “Stop and Identify” statutes do no violate the Fourth Amendment. Unless an individual has reasonable belief that disclosure would tend to incriminate him the Firth Amendment is not implicated. Hibel v. Sixth Judicial District Ct. of Nevada, 2004 WL 1373207, 2004 Daily
Journal D.A.R. 7363, U.S.Nev., June 21, 2004. b) “Frisk”
In addition to the stop for questioning, Terry permits a pat-down search for weapons based on an objectively reasonable belief that the suspicious individual is armed and presently dangerous.
The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence. Minnesota v. Dickerson, 508 U.S. 366, 113 S.
Ct. 2130, 124 L. Ed. 2d 334 (1993).
Even where the stop is deemed proper, before the police may frisk a defendant, they must have a reasonable belief the defendant is armed and dangerous. State v. Blassingame, 338 S.C. 240,
525 S.E.2d 535 (Ct. App. 1999).
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In assessing whether a suspect is armed and dangerous, the officer need not be absolutely certain the individual is armed. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968);
State v. Blassingame, 338 S.C. 240, 525 S.E.2d 535 (Ct. App. 1999).
The issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868,
20 L. Ed. 2d 889 (1968); State v. Blassingame, 338 S.C. 240, 525 S.E.2d 535 (Ct. App. 1999).
In justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
If in the course of a proper frisk for weapons, the officer feels something that, without further manipulation, he has probable cause to believe is subject to seizure, the object may be seized, and would be admissible. Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d
334 (1993); see also State v. Smith, 329 S.C. 550, 495 S.E.2d 798 (Ct. App. 1998).
A police officer may seize nonthreatening contraband detected during a protective patdown search. An officer must be acting within the scope of a permissible frisk for weapons and the incriminating character of the contraband must be immediately apparent. See Minnesota v.
Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993) (officer determined that lump in defendant's pocket was crack cocaine only after manipulating the object with his fingers after he had determined that there was no weapon present. Thus, search both exceeded the scope of the protective patdown and the incriminating character of the object was not immediately apparent). c) Automobiles
A police officer may stop an automobile and briefly detain its occupants, even without probable cause to arrest, if the officer has a reasonable suspicion that the occupants are involved in criminal activity. Knight v. State, 284 S.C. 138, 325 S.E.2d 535 (1985).
A protective search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible under the Fourth Amendment during an investigative detention if the police officer reasonably believes that the suspect is dangerous and may gain immediate control of weapons. Michigan v. Long, 463 U.S. 1032, 103 S. Ct. 3469, 77
L. Ed. 2d 1201 (1983).
Contraband discovered during a lawful stop and frisk, including a search of a vehicle for weapons, is admissible. Michigan v. Long, 463 U.S. 1032, 103 S. Ct. 3469, 77 L. Ed. 2d 1201
(1983).
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d) Reasonable Suspicion
While "reasonable suspicion" is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, the Fourth Amendment requires at least a minimal level of objective justification for making the stop. Illinois v. Wardlow, 528
U.S. 119, 120 S. Ct. 674, 145 L. Ed. 2d 570 (2000); United States v. Sokolow, 490 U.S. 1, 109 S.
Ct. 1581, 104 L. Ed. 2d 1 (1989).
The officer must be able to articulate more than an "inchoate and unparticularized suspicion or
'hunch'" of criminal activity. Illinois v. Wardlow, 528 U.S. 119, 120 S. Ct. 674, 145 L. Ed. 2d
570 (2000); United States v. Sokolow, 490 U.S. 1, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989).
This suspicion must be based on specific and articulable facts which taken together with rational inferences from those facts, reasonably warrant that intrusion. Terry v Ohio, 392 U.S. 1, 88 S. Ct.
1868, 20 L. Ed. 2d 889 (1968). The term "reasonable suspicion" requires "a particularized and objective basis" that would lead one to suspect another of criminal activity. United States v
Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621, 629 (1981). In determining whether reasonable suspicion exists, "the totality of the circumstances--the whole picture" must be considered. United States v Sokolow, 490 U.S. 1, 8, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1,
10 (1989).
Facts that are subject to innocent explanations when viewed in isolation may be considered in applying the totality of circumstances test. U.S. v. Arvizu, 534 U.S. 266, 122 S. Ct. 266, 151 L.
Ed. 2d (2002). e) Fleeing from Police
A police officer had reasonable suspicion for a Terry stop and frisk of a person in a high-crime area who fled upon seeing the police. Illinois v. Wardlow, 528 U.S. 119, 120 S. Ct. 673, 145 L.
Ed. 2d 570 (2000). f) Anonymous Tip
An anonymous tip that a defendant was carrying a gun did not have sufficient indicia of reliability to establish reasonable suspicion to justify a Terry stop and frisk. Florida v. J.L., 529
U.S. 266, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000); see also State v. Green, 341 S.C. 214, 532
S.E.2d 896 (Ct. App. 2000).
However, there are situations in which an anonymous tip, suitably corroborated, exhibits
"sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop."
Florida v. J.L., 529 U.S. 266, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000).
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g) Duration and Scope
In assessing whether a detention is too long in duration to be justified as an investigative stop, the question is not simply whether some alternative means existed by which the objectives of the police might have been accomplished, but whether the police acted unreasonably in failing to recognize or pursue them. United States v. Sharpe, 470 U.S. 675, 105 S. Ct. 1568, 84 L. Ed. 2d
605 (1985).
If the officer's suspicions are confirmed or are further aroused, the stop may be prolonged and the scope enlarged as required by the circumstances. State v. Culbreath, 300 S.C. 232, 387
S.E.2d 255 (1990), abrogated on other grounds by Horton v. California, 496 U.S. 128, 110 S. Ct.
2301, 110 L. Ed. 2d 112 (1990); State v. Blassingame, 338 S.C. 240, 525 S.E.2d 535 (Ct. App.
1999).
2.
CHECKPOINTS
a) Sobriety Checkpoint
A state's use of a highway sobriety checkpoint does not per se violate the Fourth Amendment to the United States Constitution. Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 110 S. Ct.
2481, 110 L. Ed. 2d 412 (1990). b) Drivers’ Licenses and Registration Checkpoint
In Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979), the United Stated
Supreme Court invalidated a discretionary, suspicionless stop for a spot check of a motorist's driver's license and vehicle registration. The officer's conduct in that case was unconstitutional primarily on account of his exercise of "standardless and unconstrained discretion." The Court suggested that "questioning of all oncoming traffic at roadblock-type stops" would be a lawful means of serving this interest in highway safety. c) Narcotics Checkpoint
The narcotics checkpoints at issue violated the Fourth Amendment because the primary purpose of the narcotics checkpoint program was to uncover evidence of ordinary criminal wrongdoing.
Because the authorities pursued primarily general crime control purposes at the checkpoints, the stops could only be justified by some quantum of individualized suspicion. City of Indianapolis v. Edmond, 531 U.S. 32, 121 S. Ct. 447, 148 L. Ed. 2d 333 (2000).
12
d) Investigatory Checkpoint
A highway checkpoint where police stopped motorists to ask for information about a recent hit and run accident at the location of checkpoint were reasonable and constitutional. Illinois v.
Lidster, ___ U.S. ___, 124 S.Ct. 885, 157 L.Ed.2d 843 (2004).
C.
SEARCHES AND SEIZURES
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const. amend. IV.
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and unreasonable invasions of privacy shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, the person or thing to be seized, and the information to be obtained. S.C. Const. art. I, § 10.
State courts may offer more expansive rights under state constitutional provisions than the rights conferred by the Federal Constitution. Thus, state courts can develop state law to provide their citizens with a second layer of constitutional rights. Because South Carolina’s constitution articulates a specific prohibition against unreasonable invasions of privacy, searches and seizures, which do not offend the federal constitution, may still offend the South Carolina
Constitution. State v. Forrester, 343 S.C. 637, 541 S.E.2d 837 (2001).
Violations of these rights are enforced by the exclusionary rule, which forbids the State from introducing evidence gathered as a result of such violations in its case in chief. See Mapp v.
Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961); see also THE EXCLUSIONARY
1.
REASONABLENESS
Our federal and state constitutions protect against unreasonable searches and seizures. U. S.
Const. amend. IV; S.C. Const. art. I, § 10.
What is reasonable depends upon all the circumstances and is judged by balancing the intrusion on the individual's Fourth Amendment interest against the promotion of legitimate governmental interests. United States v. Hernandez, 473 U.S. 531, 105 S. Ct. 3304, 87 L. Ed. 2d 381 (1985); see also State v. Gaskin, 284 S.C. 105, 326 S.E.2d 132 (1985), overruled on other grounds by
State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991); State v. Foster, 269 S.C. 373, 237 S.E.2d
589 (1977).
13
The Fourth Amendment's restraint on government conduct generally bars officials from undertaking a search or seizure absent individualized suspicion. Chandler v. Miller, 520 U.S.
305, 117 S. Ct. 1295, 137 L. Ed. 2d 513 (1997).
The subjective intent of the law enforcement officer, that is, whether he was motivated by a law enforcement purpose, is irrelevant in determining whether that officer's actions violated the
Fourth Amendment. Bond v. United States, 529 U.S. 334, 120 S. Ct. 1462, 146 L. Ed. 2d 365
(2000).
The method of an officer's entry into a dwelling must be considered in assessing the reasonableness of a search or seizure. In some circumstances an officer's unannounced entry into a home might be unreasonable under the Fourth Amendment. Wilson v. Arkansas, 514 U.S. 927,
115 S. Ct. 1914, 131 L. Ed. 2d 976 (1995).
To justify a "no-knock" entry, police must have reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit effective investigation of crime by, for example, allowing destruction of evidence. However, destruction of property occurring pursuant to a no-knock entry does not make the entry unreasonable. United States v. Ramirez, 523 U.S. 65, 118 S. Ct. 992, 140 L. Ed.
2d 191 (1998).
Totality of circumstances confronting police officers executing search warrant for evidence of cocaine dealing after they knocked, announced their presence and waited 15 to 20 seconds for admittance gave rise to reasonable suspicion occupants would destroy evidence if officers waited longer and ensuing entry was not unreasonable under the Fourth Amendment. United States v.
Banks, ___ U.S. ___, 124 S.Ct. 521, 157 L.Ed.2d 343 (2003).
2.
WHAT CONSTITUTES SEARCH AND SEIZURE?
a) Generally
Fourth Amendment protection is triggered when 1) the individual has exhibited an actual expectation of privacy and 2) the individual’s expectation of privacy is one that society is prepared to recognize as reasonable. Bond v. United States, 529 U.S. 334, 120 S. Ct. 1462, 146
L. Ed. 2d 365 (2000).
The Fourth Amendment applies to searches conducted by the government even when it is acting as an employer. Nat'l Employers Unions v. Van Rabb, 489 U.S. 656, 109 S. Ct. 1384, 103 L. Ed.
2d 685 (1989).
14
A seizure occurs when there is some meaningful interference with an individual's possessory interests in the property seized. Maryland v. Macon, 472 U.S. 463, 105 S. Ct. 2778, 86 L. Ed. 2d
370 (1985).
The purchase of goods by a governmental agent is not a seizure. Maryland v. Macon, 472 U.S.
463, 105 S. Ct. 2778, 86 L. Ed. 2d 370 (1985).
For seizure of a person, see ARREST.
b) Searches and Seizures Without Fourth Amendment
Protection
(1) Private Searches
The Fourth Amendment is inapplicable to searches or seizures by private citizens who are not acting as governmental agents or with the participation or knowledge of a governmental official.
United States v. Jacobsen, 466 U.S. 109, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984); State v.
Cohen, 305 S.C. 432, 409 S.E.2d 383 (1991) (holding that the Fourth Amendment does not bar a search and seizure, even an arbitrary one, effected by a private party on his own initiative);
Peters v. State, 302 S.C. 59, 393 S.E.2d 387 (1990).
The party challenging admission of evidence has the burden to show sufficient government involvement in the private citizen's conduct to warrant Fourth Amendment scrutiny. State v.
Cohen, 305 S.C. 432, 409 S.E.2d 383 (1991).
The test for determining whether a search was private entails an inquiry into the totality of the circumstances. This inquiry encompasses a number of relevant factors including: (1) the citizen's motivation for the search or seizure; (2) the degree of governmental involvement, such as advice, encouragement, knowledge about the nature of the citizen's activities; and (3) the legality of the conduct encouraged by the police. State v. Brockman, 339 S.C. 57, 528 S.E.2d
661 (2000).
Pre-search contacts between a government official and private citizen, even if intended by the government to prompt the citizen to render some type of assistance, are not sufficient to make a search by the private citizen other than a "private" search so long as the government’s contact is short of an explicit request for a search, and there was a legitimate private purpose behind the search. State v. Brockman, 339 S.C. 57, 528 S.E.2d 661 (2000).
(2) Plain View
15
What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed.
2d 576 (1967).
Under the "plain view" exception to the warrant requirement, objects falling within the plain view of a law enforcement officer who is rightfully in a position to view the objects are subject to seizure and may be introduced as evidence. State v. Beckham, 334 S.C. 302, 513 S.E.2d 606
(1999).
The seizure will satisfy Fourth Amendment analysis so long as (1) the officer did not violate the
Fourth Amendment in arriving at the place from which the evidence was viewed; (2) the incriminating character of the item was immediately apparent; and (3) the officer had a lawful right of access to the object itself. This doctrine is applicable even when the discovery of the item is not inadvertent. Horton v. California, 496 U.S. 128, 110 S. Ct. 2301, 110 L. Ed. 2d 112
(1990).
However, under state law, in order for evidence to be seized under the plain view exception, three things must be shown: (1) the initial intrusion which afforded the authorities the plain view was lawful; (2) the discovery of the evidence was inadvertent ; and (3) the incriminating nature of the evidence was immediately apparent to the seizing authorities. State v. Beckham, 334 S.C.
302, 513 S.E.2d 606 (S.C. 1999) (emphasis added). Thus it appears that South Carolina adheres to the inadvertency requirement. See State v. Culbreath, 300 S.C. 232, 387 S.E.2d 255 (1990)
(the plain view doctrine is applicable where a police officer is not searching for evidence against the accused but inadvertently comes across an incriminating object), cited in Horton v.
California, 496 U.S. 128, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990) (Brennan, J., dissenting).
Entering a business and examining its wares is not a search. Maryland v. Macon, 472 U.S. 463,
105 S. Ct. 2778, 86 L. Ed. 2d 370 (1985).
An officer's "plain view" may be enhanced by the use of a flashlight without violating the Fourth
Amendment. United States v. Dunn, 480 U.S. 294, 107 S. Ct. 1134, 94 L. Ed. 2d 326 (1987)
(shining flashlight into open front of barn); Texas v. Brown, 460 U. S. 730, 103 S. Ct. 1535, 75
L. Ed. 2d 502 (1983) (plurality opinion; shining flashlight into interior of car).
An observation by an officer's naked eye from an aircraft operating within the public airspace is within the plain view doctrine. Florida v. Riley, 488 U.S. 445, 109 S. Ct. 693, 102 L. Ed. 2d 835
(1989) (plurality opinion) (helicopter hovering 400 feet above greenhouse); California v. Ciraole,
476 U.S. 207, 106 S. Ct. 1809, 90 L. Ed. 2d 210 (1986) (airplane flying 1,000 feet over home's curtilage). Further, photographing an industrial complex with a camera from an aircraft operating in public airspace is not unreasonable under the Fourth Amendment. Dow Chemical
Co. v. United States, 476 U.S. 227, 106 S. Ct. 1819, 90 L. Ed. 2d 226 (1986) (in dicta, Court indicates this may not be the case where more sophisticated equipment is used).
See also Kyllo v. United States, 533 U.S. 27, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001) (the use of a thermal imaging device to detect heat sources within a home requires a warrant).
16
Criminal domestic violence arrest
S.C. Code Ann. § 16-25-70 (1985 & Supp. 2001) allows police officers to enter the residence of a person to be arrested for criminal domestic violence where the officer has probable cause to believe that the arrest is reasonably necessary to prevent physical harm or danger to a family or household member. Section 16-25-70(H) prohibits the introduction of evidence discovered as a result of this entrance, other than evidence of criminal domestic violence. Thus, the statute prohibits the introduction of evidence that would otherwise be admissible under the plain view doctrine. See State v. Cannon, 336 S.C. 335, 520 S.E. 2d 317 (1999).
Note : presumably this statute would not override otherwise relevant constitutional protections.
(3) Open Fields
An open field is neither a "house" nor an "effect," and therefore, the government's intrusion is not an unreasonable search proscribed by the Fourth Amendment. United States v. Dunn, 480
U.S. 294, 107 S. Ct. 1134, 94 L. Ed. 2d 326 (1987).
The term "open fields" includes any unoccupied or undeveloped area outside of the curtilage.
Oliver v. United States, 466 U.S. 170, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984).
In determining if a particular item is within the curtilage, the following factors should be considered: the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.
United States v. Dunn, 480 U.S. 294, 107 S. Ct. 1134, 94 L. Ed. 2d 326 (1987).
The fact that police intrusion onto an open field may be a trespass does not make it a search.
Oliver v. United States, 466 U.S. 170, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984).
(4) Jails
Because prisoners have no legitimate expectation of privacy, the Fourth Amendment is inapplicable to the search of a cell and its contents. Hudson v. Palmer, 468 U. S. 517, 104 S. Ct.
3194, 82 L. Ed. 2d 393 (1984); State v. Matthews, 296 S.C. 379, 373 S.E.2d 587 (1988).
(5) Garbage
A person has no justified expectation of privacy in garbage left on the side of a public street.
California v. Greenwood, 486 U.S. 35, 108 S. Ct. 1625, 100 L. Ed. 2d 30 (1988).
17
(6) Use of Dogs
Exposing traveler's luggage located in a public place to a drug detection dog is not a search under the Fourth Amendment. United States v. Place, 462 U.S. 696, 103 S. Ct. 2637, 77 L. Ed. 2d 110
(1983) (dicta).
Walking a narcotics sniffing dog around a vehicle at a checkpoint is not a search protected by the
Fourth Amendment. City of Indianapolis v. Edmond, 531 U.S. 32, 121 S. Ct. 447, 148 L. Ed. 2d
333 (2000).
(7) Non-U.S. Citizens and Their Property Outside U.S.
Territory
The Fourth Amendment is inapplicable to searches of non-United States citizens and their respective property outside United States territory. United States v. Verduge-Urguidez, 494 U.S.
259, 110 S. Ct. 1056, 108 L. Ed. 2d 222 (1990).
3.
SEARCHES NOT REQUIRING PROBABLE CAUSE
a) Consent Search
(1) Generally
A search based on consent may be conducted without a warrant or probable cause. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973).
The existence of consent is determined from the totality of the circumstances. Palacio v. State,
333 S.C. 506, 511 S.E.2d 62 (1999).
On a motion to suppress, the State has the burden of proving the validity of the consent. Palacio v. State, 333 S.C. 506, 511 S.E.2d 62 (1999).
(2) Who May Consent
18
The defendant or his agent may consent to a search. Stoner v. California, 376 U.S. 483, 84 S. Ct.
889, 11 L. Ed. 2d 856 (1964); State v. Pollard, 255 S.C. 339, 179 S.E.2d 21 (1971).
Host. In the absence of a landlord-tenant relationship, a resident of a premises may authorize the search of a premises occupied by a guest. State v. Pressley, 288 S.C. 128, 341 S.E.2d 626
(1986); State v. Bailey, 276 S.C. 32, 274 S.E.2d 913 (1981); State v. Moultrie, 271 S.C. 526, 248
S.E.2d 486 (1978).
A person with common authority or other sufficient relationship to the premises or effects sought to be inspected. United States v. Matlock, 415 U.S. 164, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974)
(co-occupants); State v. Laux, 344 S.C. 374, 544 S.E.2d 276 (2001); State v. Pressley, 288 S.C.
128, 341 S.E.2d 626 (1986).
A driver of a vehicle may consent to a search where the owner has given him the use of the car.
State v. Curley, 253 S.C. 513, 171 S.E.2d 699 (1970).
Person with apparent authority. Where the police reasonably believe a person has the authority to consent to a search, the search is valid even though the person did not in fact have the authority to consent. Illinois v. Rodriquez, 497 U.S. 177, 110 S. Ct. 2793, 111 L. Ed. 2d 148
(1990); State v. Laux, 344 S.C. 374, 544 S.E.2d 276 (2001) (finding apparent authority where person giving consent told police she lived in the apartment and her personal effects were seen throughout the premises).
A landlord may not validly consent to the search of the tenant's property. State v. Moultrie, 271
S.C. 526, 248 S.E.2d 486 (1978).
A hotel manager or clerk may not validly consent to the search of a guest's room. Stoner v.
California, 376 U.S. 483, 84 S. Ct. 889, 11 L. Ed. 2d 856 (1964); State v. Moultrie, 271 S.C. 526,
248 S.E.2d 486 (1978).
(3) Consent after Fourth Amendment violation
Consent to search, by itself, is not sufficient to purge the taint of a previous unlawful search or seizure. State v. Greene, 330 S.C. 551, 499 S.E.2d 817 (Ct. App. 1997).
When a consensual search is preceded by a Fourth Amendment violation, the government must establish both (1) the voluntariness of the consent under the totality of the circumstances, and (2) a break in the causal connection between the illegality and the evidence thereby obtained. State v. Greene, 330 S.C. 551, 499 S.E.2d 817 (Ct. App. 1997); see also State v. Robinson, 306 S.C.
399, 412 S.E.2d 411 (1991) (holding consent to search procured during unlawful stop invalid unless State proves consent is voluntary and that sufficient attenuating circumstances remove taint of unlawful stop so that search is not an exploitation of unlawful stop).
19
The factors to consider in determining whether a consent is tainted by a preceding unlawful search or seizure are: the temporal proximity between the police illegality and the consent to search; the presence of intervening circumstances; and the purpose and flagrancy of the misconduct. Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975); State v.
Greene, 330 S.C. 551, 499 S.E.2d 817 (Ct. App. 1997).
(4) Voluntariness
Determining Voluntariness
Whether a consent to search was voluntary or the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of the circumstances. State v.
Greene, 330 S.C. 551, 499 S.E.2d 817 (Ct. App. 1997).
Police officers are not required to inform citizens that they have the right to refuse consensual searches. United States v. Drayton, ___ U.S. ___, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002)
(Fourth Amendment does not require police officers to advise bus passengers of right not to cooperate and to refuse consent to searches); State v. Forrester, 343 S.C. 637, 541 S.E.2d 837
(2001).
Where consent is given by a person after the police inform him they have a search warrant, the consent is no more than an "acquiescence to a claim of lawful authority" and the consent is not voluntary. Bumper v. North Carolina, 391 U.S. 543, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968).
While relevant to a determination of voluntariness, the following do not in and of themselves render consent involuntary :
The defendant gave the consent while in custody. State v. Wallace, 269 S.C. 547, 238 S.E.2d
675 (1977).
The defendant was not advised of his right not to consent or the State fails to show he had knowledge of his right to refuse consent. State v. Forrester, 343 S.C. 637, 541 S.E.2d 837
(2001).
The defendant was not advised of his Miranda rights. State v. Wallace, 269 S.C. 547, 238 S.E.2d
675 (1977); State v. Pollard, 255 S.C. 339, 179 S.E.2d 21 (1971).
The police threaten to get a search warrant if consent is not given. State v. Wallace, 269 S.C.
547, 238 S.E.2d 675 (1977); State v. Battle, 304 S.C. 191, 403 S.E.2d 331 (Ct. App. 1991).
Burden of Proof on the State
20
The burden is on the State to prove the voluntariness of the consent, and the determination of voluntariness is a question of fact for the judge. State v. Harris, 277 S.C. 274, 286 S.E.2d 137
(1982).
The State does not meet this burden by merely showing acquiescence to a claim of authority.
Bumper v. North Carolina, 391 U.S. 543, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968).
It is not necessary that the State prove the consent was a knowing and intelligent waiver of the protections of the Fourth Amendment. Instead, the State must establish "that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied." Schneckloth v. Bustamonte, 412 U.S. 218, 248, 93 S. Ct. 2041, 2059, 36 L. Ed. 2d 854, 875 (1973).
(5) Scope of Consent
Under our state constitution, suspects are free to limit the scope of the searches to which they consent. State v. Forrester, 343 S.C. 637, 541 S.E.2d 837 (2001) (finding defendant’s act of opening her purse so that officer could look inside did not give consent for intrusive search). See also State v. Mattison, 352 S.C. 577, 575 S.E.2d 852 (Ct. App. 2003) (finding officer did not exceed scope of defendant's consent to search when officer proceeded to search defendant's groin area; when asked if officer could check his person, defendant responded "Go ahead," defendant imposed no limits on the scope of the search, and defendant's generalized consent authorized the traditional frisk search undertaken). b) Search (Frisk) Incident to Stop.
c) Search Incident to Arrest.
See Search Incident to Arrest.
d) Protective Sweep Incident to Arrest. e) Inventory and Booking Searches.
21
Where police are following standard procedures, they may inventory impounded property, including closed containers, to protect an owner's property while it is in police custody.
Reasonable police regulations relating to inventory procedures administered in good faith satisfy the Fourth Amendment. Colorado v. Bertine, 479 U.S. 367, 107 S. Ct. 738, 93 L. Ed. 2d 739
(1987) (closed backpack in impounded vehicle); see also Illinois v. Lafayette, 462 U.S. 640, 103
S. Ct. 2605, 77 L. Ed. 2d 65 (1983) (arrestee's closed handbag); South Dakota v. Opperman, 428
U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976) (impounded vehicle); State v. Lemacks, 275
S.C. 181, 268 S.E.2d 285 (1980) (locked trunk of abandoned car).
Where the State attempts to justify the opening of a closed container as part of an inventory, it must show the container was opened as a result of an established policy. This policy may give the officer some discretion in determining which containers to open. Florida v. Wells, 495 U.S.
1, 110 S. Ct. 1632, 109 L. Ed. 2d 1 (1990).
There is no general crime scene exception allowing officers to conduct a search of a crime scene.
Flippo v. West Virginia, 528 U.S. 11, 120 S. Ct. 7 145 L. Ed. 2d 16 (1999) (excluding evidence from closed briefcase found at murder scene). f) "Special Needs" Search
The special needs doctrine is an exception to the general rule that a search must be based on individualized suspicion of wrongdoing. Ferguson v. City of Charleston, 532 U.S. 67, 121 S. Ct.
1281, 149 L. Ed. 2d 205 (2001).
Where special needs of the government beyond the normal needs of law enforcement are involved, a search may be conducted without probable cause or a warrant. E.g., Skinner v. Ry.
Labor Executives Ass'n, 489 U.S. 602, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989) (blood, urine and breath tests of railroad employees); Griffin v. Wisconsin, 483 U.S. 868, 107 S. Ct. 3164, 97
L. Ed. 2d 709 (1987) (regulation allowing search of probationer's home based on reasonable grounds to believe contraband was present in the home); New Jersey v. T.L.O., 469 U.S. 325,
105 S. Ct. 733, 83 L. Ed. 2d 720 (1985) (search of student property without probable cause or a warrant).
Special needs doctrine does not justify state employees’ warrantless search when the only purpose served by the search was the general interest in crime control. Ferguson v. City of
Charleston, 532 U.S. 67, 121 S. Ct. 1281, 149 L. Ed. 2d 205 (2001). g) Border Search
Routine customs searches and inspections at the international border, at fixed checkpoints near the border, or on inland waters with ready access to the sea do not require probable cause, a
22
warrant, or even an individualized suspicion. United States v. Montoya de Hernandez, 473 U.S.
531, 105 S. Ct. 3304, 87 L. Ed. 2d 381 (1985).
A person may be detained at the border beyond the period necessary to conduct a routine customs search and inspection if custom agents reasonably suspect the person is smuggling contraband. United States v. Montoya de Hernandez, 473 U.S. 531, 105 S. Ct. 3304, 87 L. Ed.
2d 381 (1985).
Customs officers may detain individual entering the United States and search the gas tank of the individual’s gas tank. United States v. Flores-Montano, ___ U.S.___, 124 S.Ct. 1582, 158
L.Ed.2d. 311 (2004). h) Search of Probationer
When an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationer’s significantly diminished privacy interests is reasonable. United
States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001).
4.
SEARCHES REQUIRING PROBABLE CAUSE
a) Warrant Searches
(1) Who May Issue Search Warrants?
All that is required under the Fourth Amendment is that the issuing authority be "neutral and detached" and "capable of determining whether probable cause exists." Shadwick v. City of
Tampa, 407 U.S. 345, 92 S. Ct. 2119, 32 L. Ed. 2d 783 (1972).
Under State law, any magistrate, recorder, city judge, or judge of a court of record having jurisdiction over the area where the property sought is located may issue a search warrant. S.C.
Code Ann. § 17-13-140 (1985). This section is merely a grant of authority; it does not prohibit the issuance of warrants by other persons if authorized by law. State v. Sachs, 264 S.C. 541, 216
S.E.2d 501 (1975).
A ministerial recorder is authorized to issue warrants under S.C. Code Ann. § 14-25-115 (Supp.
2001).
(2) Warrant Requirements
23
(a) Neutral and Detached Magistrate
The officer issuing the warrant must be neutral and detached. A magistrate who fails to manifest the neutrality and detachment demanded of a judicial officer and who acts instead as "an adjunct law enforcement officer" cannot provide valid authorization for an otherwise constitutional search. United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984).
A magistrate is not neutral if he participates in the search. State v. Adams, 291 S.C. 132, 352
S.E.2d 483 (1987).
The fact that a neutral magistrate would have found probable cause does not cure a warrant that is defective for failure of neutrality. State v. Sachs, 264 S.C. 541, 216 S.E.2d 501 (1975) (citing
Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971)).
(b) Probable Cause Requirement
Probable cause is required to issue a search warrant. The existence of probable cause is determined on the information submitted to the issuing magistrate. State v. Owens, 275 S.C.
586, 274 S.E.2d 510 (1981).
The duty of the reviewing court is to ensure the issuing magistrate had a substantial basis upon which to conclude that probable cause existed. State v. Adams, 291 S.C. 132, 352 S.E.2d 483
(1987).
Probable cause should be established by the "totality-of-the-circumstances" test. The issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Illinois v. Gates, 462 U.S. 213, 238,
103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983); State v. Bellamy, 336 S.C. 140, 519 S.E.2d
347 (1999).
The mere probability that a crime is being committed, rather than a prima facie showing of criminal activity, is sufficient to establish probable cause. State v. Dean, 282 S.C. 136, 317
S.E.2d 744 (1984).
The magistrate's determination of probable cause is entitled to substantial deference by a reviewing court. State v. Williams, 297 S.C. 404, 377 S.E.2d 308 (1989). In doubtful cases where reasonable minds could differ on the existence of probable cause, the magistrate's decision to issue a warrant should be upheld. United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L.
Ed. 2d 677 (1984); State v. Livingston, 282 S.C. 1, 317 S.E.2d 129 (1984); State v. Viard, 276
S.C. 147, 276 S.E.2d 531 (1981).
24
(c) Affidavit Requirement
(i) Generally
In South Carolina, a search warrant may not be issued without an affidavit swearing the basis for probable cause to search; a warrant based solely on sworn oral testimony is invalid. S.C. Code
Ann. § 17-13-140 (1985); State v. McKnight, 291 S.C. 110, 352 S.E.2d 471 (1987).
Affidavits for search warrants must be tested and interpreted in a common sense and realistic fashion since they are normally drafted by non-lawyers in the haste of criminal prosecution.
State v. White, 275 S.C. 500, 272 S.E.2d 800 (1980).
The affidavit must set forth particular facts and circumstances underlying the existence of probable cause to allow the magistrate to make an independent evaluation of the matter. Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978); see also Illinois v. Gates,
462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983).
Conclusory statements which give the issuing authority no basis to determine probable cause are insufficient. State v. Smith, 301 S.C. 371, 392 S.E.2d 182 (1990).
An affidavit for an arrest warrant submitted at the same time as an affidavit for a search warrant may be considered to determine the existence of probable cause to search. State v. White, 275
S.C. 500, 272 S.E.2d 800 (1980).
(ii) Supplementation with Sworn Testimony
An affidavit, which is itself insufficient to establish probable cause, may be supplemented by sworn oral testimony before the magistrate to establish probable cause. State v. Crane, 296 S.C.
336, 372 S.E.2d 587 (1988); State v. McKnight, 291 S.C. 110, 352 S.E.2d 471 (1987).
Oral information may only be used by an affiant to supplement or to amend incorrect information in an affidavit which was not knowingly, intentionally or recklessly supplied by the affiant. State v. Jones, 342 S.C. 121, 536 S.E.2d 675 (2000).
(iii)Information from Informants
Hearsay evidence is proper to support a warrant so long as the issuing magistrate is afforded a basis for determining the credibility of the declarant. State v. Sachs, 264 S.C. 541, 216 S.E.2d
501 (1975).
25
The affidavit must set forth information establishing the veracity and reliability of an informant.
State v. 192 Coin-Operated Video Game Machines, 338 S.C. 176, 525 S.E.2d 872 (2000); State v. Johnson, 302 S.C. 243, 395 S.E.2d 167 (1990) (reliability); State v. Philpot, 317 S.C. 458, 454
S.E.2d 905 (Ct. App. 1995) (veracity).
Veracity and basis of knowledge requirements are not separate and independent requirements that must be rigidly satisfied in every case. Rather, they are intertwined considerations that should be evaluated under the totality of the circumstances test. A strong showing on one element may compensate for a weak showing on the other. State v. Bellamy, 336 S.C. 140, 519
S.E.2d 347 (1999); see also Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527
(1983); State v. Williams, 297 S.C. 404, 377 S.E.2d 308 (1989).
Independent verification of an informant’s statements by law enforcement officers cures any defect. State v. 192 Coin-Operated Video Game Machines, 338 S.C. 176, 525 S.E.2d 872
(2000); State v. Viard, 276 S.C. 147, 150, 276 S.E.2d 531, 532 (1981).
A determination regarding an affiant’s credibility need not be based solely on facts explicitly stated, either in the affidavit or by oral testimony, so long as there are other indicia of reliability.
State v. Bellamy, 323 S.C. 199, 473 S.E.2d 838 (Ct. App. 1996), aff’d, 336 S.C. 140, 519 S.E.2d
347 (1999).
For example:
Evidence of past reliability is not usually required when information is provided by an eyewitness because, unlike the paid informer, the eyewitness does not ordinarily have the opportunity to establish a record of previous reliability. State v. Driggers, 322 S.C. 506, 473
S.E.2d 57 (Ct. App. 1996).
A non-confidential informant should be given a higher level of credibility because the informant is exposed to public view and to possible criminal and civil liability if the information proves to be false. State v. Driggers, 322 S.C. 506, 473 S.E.2d 57 (Ct. App. 1996).
An informant who possessed a special relationship and capacity to gain knowledge that should prompt belief in the veracity of the information is reliable. State v. Driggers, 322 S.C. 506, 473
S.E.2d 57 (Ct. App. 1996).
The specificity of the informant's statements coupled with the absence of ulterior motives has been held sufficient to establish reliability. State v. Bellamy, 323 S.C. 199, 473 S.E.2d 838 (Ct.
App. 1996), aff’d, 336 S.C. 140, 519 S.E.2d 347 (1999).
(iv) Staleness of Information
26
An affidavit must be based on facts closely related to the time of issuance to justify a finding of probable cause at that time. Sgro v. United States, 287 U.S. 206, 53 S. Ct. 138, 77 L. Ed. 260
(1932).
The time should be sufficiently short to justify the conclusion that the evidence is likely still at the place where it was seen. State v. Winborne, 273 S.C. 62, 254 S.E.2d 297 (1979).
The affidavit is defective if it does not allow the magistrate to determine the timeliness of the information. State v. Winborne, 273 S.C. 62, 254 S.E.2d 297 (1979).
Whether the averments in the affidavit establish probable cause at the time will depend upon the particular circumstances of the case. Factors to consider include the nature of the crime and the type of property sought. State v. Beckham, 334 S.C. 302, 513 S.E.2d 606 (1999) (approving warrant to search for a gun issued more than one year after the crime, as a gun was the type of property that in itself is innocuous and likely to be kept by its owner); State v. Corns, 310 S.C.
546, 426 S.E.2d 324 (Ct. App. 1992) (finding that 60 day delay did not invalidate warrant when subjects of search were ski masks, clothing and weapons used in an armed robbery, as those objects were otherwise innocuous in nature).
Where the affidavit properly recites facts indicating activity of a protracted and continuous nature, the passage of time becomes less significant. State v. Clifton, 302 S.C. 431, 396 S.E.2d
831 (Ct. App. 1990), overruled on other grounds by Brightman v. State, 336 S.C. 348, 520
S.E.2d 614 (1999).
(v) Challenging the Affidavit at Trial (Franks
Hearing)
A defendant is entitled to a hearing to challenge the veracity of the affidavit if the challenge is supported by allegations of deliberate falsehood or of reckless disregard for the truth, rather than a mere desire to cross-examine. Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d
667 (1978).
To be entitled to a Franks hearing for an alleged omission, the challenger must make a preliminary showing that the information in question was omitted with the intent to make, or in reckless disregard of whether it made, the affidavit misleading to the issuing judge. State v.
Missouri, 337 S.C. 548, 524 S.E.2d 394 (1999).
The defendant’s allegations must be accompanied by an offer of proof. Franks v. Delaware, 438
U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).
If the allegedly false material is set aside, and there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required. Franks v. Delaware, 438
U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).
27
When evidence presented by the State at trial suggests that affidavit could not have been truthful, the defendant is entitled to Franks hearing upon objection. State v. Sampson, 317 S.C. 423, 454
S.E.2d 721 (Ct. App. 1995).
The Franks test applies to both acts of commission, when false information had been included in the warrant affidavit, and acts of omission, when exculpatory material has been left out of the affidavit. State v. Missouri, 337 S.C. 548, 524 S.E.2d 394 (1999).
The Fourth Amendment does not require an affiant to include all potentially exculpatory evidence in the affidavit. State v. Missouri, 337 S.C. 548, 524 S.E.2d 394 (1999).
(d) Particularity
The place to be searched and the things to be seized much be stated with particularity in the warrant. U.S. Const. amend IV; S.C. Const. art. I, §10; S.C. Code Ann. § 17-13-140 (1985).
S.C. Code Ann. § 17-13-140 (1985) imposes no stricter requirement of particularity than required under the state and federal constitutions. State v. Williams, 297 S.C. 404, 377 S.E.2d
308 (1989).
The warrant and affidavit may be read together to determine if the place to be searched and the things to be seized are set forth with sufficient particularity. State v. Williams, 297 S.C. 404,
377 S.E.2d 308 (1989) (things to be seized); State v. Crane, 296 S.C. 336, 372 S.E.2d 587 (1988)
(place to be searched).
A search warrant for a tavern and its bartender does not permit body searches of all the bar's patrons. Ybarra v. Illinois, 444 U.S. 85,100 S. Ct. 338, 62 L. Ed. 2d 238 (1979).
A warrant may be issued authorizing the search of a person if there is probable cause with respect to that person. State v. Thompson, 363 S.C. 192, 609 S.E.2d 556 (C t. App. 2005).
.
A description of things to be seized as "any illegal drugs" is sufficient to satisfy the particularity requirement. State v. Williams, 297 S.C. 404, 377 S.E.2d 308 (1989).
A search warrant directed against a multiple unit structure is invalid where it fails to describe the particular units to be searched with sufficient definition to preclude a search of other units. One exception to this rule is where the multi-unit character of the premises is not externally apparent or known to the officers. State v. Jenkins, 275 S.C. 129, 267 S.E.2d 542 (1980); see also
Maryland v. Garrison, 480 U.S. 79, 107 S. Ct. 1013, 94 L. Ed. 2d 72 (1987) (reasonable belief that third floor contained only one apartment).
28
Invalid portions of a warrant issued with objective good faith on the part of law enforcement may be severed from valid portions amply supported by probable cause. State v. Thompson, 363 S.C.
192, 609 S.E.2d 556 (C t. App. 2005).
(e) Execution and Return
A search warrant must be executed and a return made to the magistrate within ten days after the warrant is issued. Additionally, the officer executing the warrant shall make and deliver a signed inventory of any articles seized. S.C. Code Ann. § 17-13-140 (1985).
Failure to make a return to the magistrate does not affect the validity of the warrant unless the person challenging the warrant can establish prejudice. State v. Wise, 272 S.C. 384, 252 S.E.2d
294 (1979).
Failure to list all of the items seized on the return, or the failure to make a return in 10 days is a ministerial error, and does not require suppression unless the defendant was prejudiced by the error. State v. Mollison, 319 S.C. 41, 459 S.E.2d 88 (Ct. App. 1995).
The State's complete failure to produce an original search warrant, a signed, sworn return to the warrant, coupled with its inability to link items seized to items on unsworn return requires suppression of evidence. State v. Freeman, 319 S.C. 110, 459 S.E.2d 867 (Ct. App. 1995).
(f) Evidence of search warrant at trial
Generally a search warrant and an accompanying affidavit are not admissible in a criminal case.
State v. Johnson, 334 S.C. 78, 512 S.E.2d 795 (1999); State v. Alexander, 303 S.C. 408, 401
S.E.2d 167 (1991); State v. Arther, 290 S.C. 291, 350 S.E.2d 187 (1986); State v. Latham, 275
S.C. 550, 273 S.E.2d 772 (1981); State v. Smith, 230 S.C. 164, 84 S.E.2d 886 (1956).
Error in the admission of a warrant or affidavit is reversible only upon a showing of prejudice.
State v. Johnson, 334 S.C. 78, 512 S.E.2d 795 (1999).
When asked by the jury why officers served a search warrant, trial court should have instructed jury not to consider that information, as it was not in evidence. Trial court’s instruction for jury to “use its own judgment’ allowed the jury to speculate on evidence not in the record, and constituted reversible error. State v. Mollison, 319 S.C. 41, 459 S.E.2d 88 (Ct. App. 1995). b) Warrantless Search
(1) Presumptively unreasonable
29
A warrantless search is per se unreasonable and thus violative of the Fourth Amendment unless the search falls within one of the exceptions to the exclusionary rule. Flippo v. West Virginia,
528 U.S. 11, 120 S. Ct. 7 145 L. Ed. 2d 16 (1999) (holding that there is no exception allowing a general search of a crime scene); United States v. Karo, 468 U.S. 705, 104 S. Ct. 3296, 82 L. Ed.
2d 530 (1984); State v. Brockman, 339 S.C. 57, 528 S.E.2d 661 (2000); State v. Bultron, 318
S.C. 323, 457 S.E.2d 616 (Ct. App. 1995).
The burden rests on the prosecution to establish the existence of such an exceptional situation.
State v. Brown, 289 S.C. 581, 347 S.E.2d 882 (1986).
(2) Exceptions
(a) Probable Cause
The standard for probable cause to make a warrantless search is the same as that for a search with a warrant. In the Interest of Thomas B.D., 326 S.C. 614, 486 S.E.2d 498 (Ct. App. 1997).
The searching officer must simply make a practical, common-sense decision whether, given all the circumstances set forth before him, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317,
2332, 76 L. Ed. 2d 527, 548 (1983); State v. Bellamy, 336 S.C. 140, 519 S.E.2d 347 (1999).
The existence of probable cause is determined based on the information available to the officer at the time of the warrantless search . All the evidence within the officers' knowledge may be considered, including the details they observed while responding to an informant's tip. State v.
Peters, 271 S.C. 498, 248 S.E.2d 475 (1978).
The principal components of determination of reasonable suspicion or probable cause will be whether the events which occurred leading up to the search, viewed from standpoint of objectively reasonable police officer, amount to reasonable suspicion or to probable cause.
Ornelas v. United States, 517 U.S. 690, 116, S Ct. 1657, 134 L. Ed. 2d 911 (1996).
(b) Exigent Circumstances
The exigent circumstances doctrine allows warrantless entry by criminal law enforcement officials based upon probable cause when there is a compelling need for official action and no time to secure a warrant. State v. Brown, 289 S.C. 581, 347 S.E.2d 882 (1986); see also Roaden v. Kentucky, 413 U.S. 496, 93 S. Ct. 2796, 37 L. Ed. 2d 757 (1973).
30
The need to preserve evidence is not an exigent circumstance justifying a warrantless search when the underlying offense is a minor crime for which no jail time may be imposed. Welsh v.
Wisconsin, 466 U.S. 740, 104 S. Ct. 2091, 80 L. Ed. 2d 732 (1984).
Totality of circumstances facing police offers executing search warrant for evidence of cocaine dealing after they knocked, announced their purpose, and waited 15 to 20 seconds to be admitted gave rise to reasonable suspicion that occupants would destroy evidence if officers waited longer, and ensuing forcible entry was not unreasonable in violation of the Fourth Amendment.
United States v. Banks, ___ U.S. ___, 124 S.Ct. 521, 157 L.Ed.2d. 343 (2003).
(c) Plain Feel doctrine
If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context. Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L.
Ed. 2d 334 (1993); State v. Smith, 329 S.C. 550, 495 S.E.2d 798 (Ct. App. 1998).
However, physical manipulation of a protected effect to ascertain its contents violates the Fourth
Amendment. Bond v. United States, 529 U.S. 334, 120 S. Ct. 1462, 146 L. Ed. 2d 365 (2000)
(officer’s act of squeezing defendant’s soft luggage, which allowed him to determine that there were drugs inside, violated Fourth Amendment).
See also, INVESTIGATORY DETENTIONS.
(d) Automobile Exception
Because of its mobility and the lessened expectation of privacy in motor vehicles, an operable motor vehicle may be searched without a warrant based on probable cause alone. Pennsylvania v. Labron, 518 U.S. 938, 116 S. Ct. 2485, 135 L. Ed. 2d 1031 (1996); California v. Carney, 471
U.S. 386, 105 S. Ct. 2066, 85 L. Ed. 2d 406 (1985); State v. Cox, 290 S.C. 489, 351 S.E.2d 570
(1986).
If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search. This rule applies to all containers within a car, without qualification as to ownership and without a showing of individualized probable cause for each container. Wyoming v. Houghton, 526 U.S. 295, 119 S.
Ct. 1297, 143 L. Ed. 2d 408 (1999); see also United States v. Ross, 456 U.S. 798, 102 S. Ct.
2157, 72 L. Ed. 2d 572 (1982) (upholding the opening of closed container both at scene and at police station).
31
The fact that police have probable cause to believe that a container placed in a vehicle contains contraband or evidence does not justify search of the entire vehicle. California v. Acevedo, 500
U.S. 565, 111 S. Ct. 1982, 114 L. Ed. 2d 619 (1991).
Probable cause to search a car does not justify a body search of a passenger. United States v. Di
Re, 332 U.S. 581, 68 S. Ct. 222, 92 L. Ed. 210 (1948).
The scope of a warrantless search of an automobile is defined by the object of the search and the places in which there is probable cause to believe that it may be found. California v. Acevedo,
500 U.S. 565, 111 S. Ct. 1982, 114 L. Ed. 2d 619 (1991); State v. Perez, 311 S.C. 542, 430
S.E.2d 503 (1993).
The warrantless search does not have to be done contemporaneously with the seizure of the vehicle. United States v. Johns, 469 U.S. 478, 105 S. Ct. 881, 83 L. Ed. 2d 890 (1985)
(upholding search of containers 3 days after they were removed from vehicle).
(e) School Officials.
The Fourth Amendment’s prohibitions on unreasonable searches and seizures apply to public school officials. However, school officials need not obtain a warrant before searching a student so long as the school official has reasonable grounds to suspect that the search will yield evidence of a violation of the law or school rules. New Jersey v. T.L.O., 469 U.S. 325, 105 S.
Ct. 733, 83 L. Ed. 2d 720 (1985).
This exception does not apply to police officers who effect a search on school grounds when they are not acting as agents of the school. In the Interest of Thomas B.D., 326 S.C. 614, 486 S.E.2d
498 (Ct. App. 1997).
(f) Abandonment
Abandoned property has no Fourth Amendment protection. State v. Dupree, 319 S.C. 454, 462
S.E.2d 279 (1995).
Abandonment, in the search and seizure context, means the defendant has discarded the property in a manner which relinquished his reasonable expectation of privacy so that its search and seizure is reasonable within the limits of the Fourth Amendment. State v. Dupree, 319 S.C. 454,
462 S.E.2d 279 (1995).
(g) Other Exceptions
A warrantless search may be conducted based on any of the categories discussed in Searches Not
32
c) Intrusion into the Human Body
South Carolina Code Ann. § 17-13-140 (1985) allows the government to issue a warrant to procure evidence from a person's body. In re Snyder, 308 S.C. 192, 417 S.E.2d 572 (1992).
The taking of bodily fluids constitutes a search and seizure under the Fourth Amendment. The order must therefore comply with constitutional guidelines as well as statutory ones. Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966); State v. Register, 308 S.C.
534, 419 S.E.2d 771 (1992).
Witnesses to a crime have the same Fourth Amendment protection against governmental intrusion into their bodies that defendants or suspects in criminal cases have. State v. Register,
308 S.C. 534, 419 S.E.2d 771 (1992).
The Fourth Amendment permits minor intrusions beyond the body's surface only in stringently limited conditions, because such intrusions may readily offend those principles of dignity and privacy which are protected by the Fourth Amendment. Schmerber v. California, 384 U.S. 757,
86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966).
A warrant which allows the government to procure evidence from a person’s body may only be issued upon a showing that (1) there is probable cause to believe a crime has been committed; (2) there is probable cause to believe that it has been committed by a particular suspect; (3) there is a clear indication that material evidence relevant to the question of the suspect’s guilt will be found; and (4) that the method used to secure this evidence is safe and reliable. State v. Register,
308 S.C. 534, 419 S.E.2d 771 (1992); In re Snyder, 308 S.C. 192, 417 S.E.2d 572 (1992).
The court must also determine that the character of the requested search is appropriate. The court must balance the seriousness of the crime, the importance of the evidence to the investigation, and the unavailability of alternative, less intrusive means of obtaining the evidence, on one hand, against concern for the potential witness' constitutional right to be free from bodily intrusion on the other. State v. Register, 308 S.C. 534, 419 S.E.2d 771 (1992); In re
Snyder, 308 S.C. 192, 417 S.E.2d 572 (1992).
The requirement that penetrations of the body be founded on strong showings of need is applicable equally to searches with and without a warrant. State v. Register, 308 S.C. 534, 419
S.E.2d 771 (1992).
Police may make an intrusion into a suspect’s mouth to prevent destruction of evidence if there is both probable cause to believe that specific evidence is being disposed of and a clear indication evidence will be found. State v. Dupree, 319 S.C. 454, 462 S.E.2d 279 (1995).
33
5.
THE EXCLUSIONARY RULE
a) Standing
(1) Fourth Amendment Standing
A person seeking to have evidence suppressed on Fourth Amendment grounds must establish that his own rights have been violated. State v. Crane, 296 S.C. 336, 372 S.E.2d 587 (1988).
Fourth Amendment rights are personal rights which cannot be asserted vicariously. Thus, a defendant who seeks to suppress evidence on Fourth Amendment grounds must demonstrate a legitimate expectation of privacy in connection with the searched premises in order to have standing to challenge the search. State v. Crane, 296 S.C. 336, 372 S.E.2d 587 (1988); State v.
McKnight, 291 S.C. 110, 352 S.E.2d 471 (1987); see also Minnesota v. Carter, 525 U.S. 83, 119
S. Ct. 469, 142 L. Ed. 2d 373 (1998) (reiterating that this is a question of Fourth Amendment law that should not be analyzed under traditional standing analysis).
The burden of establishing a legitimate expectation of privacy is on the person challenging the search. Rawlings v. Kentucky, 448 U.S. 98, 100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980).
An overnight guest has sufficient expectation of privacy in premises to assert Fourth Amendment standing. Minnesota v. Olsen, 495 U.S. 91, 110 S. Ct. 1684, 109 L. Ed. 2d 85 (1990). However, a person who is merely present with the consent of the owner may not. Minnesota v. Carter, 525
U.S. 83, 119 S. Ct. 469, 142 L. Ed. 2d 373 (1998). See State v. Missouri, 361 S.C. 107, 603
S.E.2d 594 (2004) (the defendant had a reasonable expectation of privacy where the owners of the home chose to share the privacy of their home with the defendant on several occasions in the past and on the occasion in question).
Where an illegal traffic stop of the defendant’s car, which was driven by an underaged driver at the defendant’s permission, led police to the defendant’s hotel room, the proper inquiry was not whether the defendant had standing to challenge the initial illegal traffic stop or whether he had a reasonable expectation of privacy in the car. Rather, the proper inquiry was whether the defendant had suffered a meaningful interference with a sufficient possessory interest in the car.
State v. Maybank, 352 S.C. 310, 573 S.E.2d 851 (Ct. App. 2002).
(2) Standing to Challenge an Invalid Warrant
The rights afforded by S.C. Code Ann. § 17-13-140 are not dependent upon a showing of an expectation of privacy in the searched premises. Thus, any defendant against whom seized evidence is offered has standing to object to the validity of the search warrant on statutory
34
grounds. State v. McKnight, 291 S.C. 110, 352 S.E.2d 471 (1987); State v. Freeman, 319 S.C.
110, 459 S.E.2d 867 (Ct. App. 1995). b) Purpose
The primary purpose of the exclusionary rule is to deter illegal police conduct. The exclusionary rule should not be applied where it does not advance this remedial purpose. Illinois v. Krull, 480
U.S. 340, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987). c) Suppression Hearing
To be entitled to a suppression hearing a defendant must articulate specific factual and legal grounds to support his contention that evidence was obtained in violation of his constitutional rights. The trial court shall grant a suppression hearing if the defendant's grounds are sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that there are contested issues as to the validity of the search. State v. Patton, 322 S.C. 408, 472 S.E.2d 245,
(1996). d) What Must Be Suppressed?
(1) Primary Evidence
Where an illegal arrest, search or seizure occurs, the evidence obtained, both tangible and testimonial, is inadmissible. Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652
(1914).
(2) Fruit of the Poisonous Tree
The exclusionary rule also prohibits the introduction of derivation evidence, both tangible and testimonial, that is the product of the primary evidence, or that is otherwise acquired as an indirect result of the unlawful search unless the connection with the unlawful search becomes so attenuated as to dissipate the taint. Murray v. United States, 487 U.S. 533, 108 S. Ct. 2529, 101
L. Ed. 2d 472 (1988); see also State v. Plath, 277 S.C. 126, 284 S.E.2d 221 (1981), overruled on other grounds by State v. Collins, 329 S.C. 23, 495 S.E.2d 202 (1998).
35
The fruit of the poisonous tree doctrine excludes evidence if it would not have come to light but for illegal actions of police, and was obtained by exploitation of that illegality. State v Copeland,
321 S.C. 318, 468 S.E.2d 620 (1996); See also Kaupp v. Texas, ___ U.S. ___, 123 S.Ct. 1843,
155 L.Ed.2d. 814 (U.S. 2003) (a criminal defendant’s confession following Miranda warnings should have been excluded from evidence at his trial because it was the fruit of his arrest without probable cause). e) Exceptions
(1) Independent Source Doctrine
The exclusionary rule does not apply if the Government learns of the evidence from an independent source. Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441
(1963).
This doctrine allows admission of evidence that has been discovered by means that are wholly independent of any constitutional violation. Nix v. Williams, 467 U.S. 431, 104 S. Ct. 2501, 81
L. Ed. 2d 377 (1984).
This doctrine has two meanings. First, in its broadest sense, it refers to evidence obtained independently of illegal conduct. Secondly, it refers to evidence initially obtained illegally that is subsequently acquired by a legal search untainted by the initial illegality. Murray v. Untied
States, 487 U.S. 533, 108 S. Ct. 2529, 101 L. Ed. 2d 472 (1988).
(2) Inevitable Discovery Doctrine
If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means, the information is admissible despite the fact it was illegally obtained. Nix v. Williams, 467 U.S. 431, 104 S. Ct.
2501, 81 L. Ed. 2d 377 (1984) (violation of Sixth Amendment).
This rule is merely a variation of the independent source rule. Murray v. United States, 487 U.S.
533, 108 S. Ct. 2529, 101 L. Ed. 2d 472 (1988).
(3) Good Faith
The exclusionary rule does not require the suppression of evidence obtained by a police office whose reliance on a search warrant issued by a neutral magistrate was objectively reasonable, even though the warrant was ultimately found to be defective. Illinois v. Krull, 480 U. S. 340,
107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987) (summarizing holding in United States v. Leon, 468
U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984)).
36
This exception to the exclusionary rule applies only when a search warrant is defective on Fourth
Amendment grounds. State v. McKnight, 291 S.C. 110, 352 S.E.2d 471 (1987).
The exclusionary rule does not require the suppression of evidence obtained by an officer acting in an objectively reasonable reliance on a statute that is later declared to be unconstitutional.
Reliance on a statute is not reasonable if "the legislature wholly abandoned its responsibility to enact constitutional laws" of if "a reasonable officer should have known that the statute was unconstitutional." Illinois v. Krull, 480 U.S. 340, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987).
NOTE: State v. Austin, 306 S.C. 9, 409 S.E.2d 811 (1991), questions whether the good faith exception even applies under the South Carolina Constitution. While State v. Weston, 329 S.C.
287, 494 S.E.2d 801 (1997) indicates that it would apply, there is no published opinion of a
South Carolina court which actually ruled evidence admissible under the good faith exception.
See also State v. Johnson, 302 S.C. 243, 395 S.E.2d 167 (1990); State v. McKnight, 291 S.C.
110, 352 S.E.2d 471 (1987); State v. Sampson, 317 S.C. 423, 454 S.E.2d 721 (Ct. App. 1995);
State v. Adolphe, 314 S.C. 89, 441 S.E.2d 832 (Ct. App. 1994).
The good faith exception does not apply if:
A warrant is defective on statutory grounds. State v. McKnight, 291 S.C. 110, 352 S.E.2d 471
(1987).
If the underlying affidavit does not include sufficient information to allow a magistrate to determine probable cause. State v. Adolphe, 314 S.C. 89, 441 S.E.2d 832 (Ct. App. 1994) (citing
State v. Johnson, 302 S.C. 243, 395 S.E.2d 167 (1990)).
The magistrate was "misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth"; the magistrate wholly abandons his judicial role; the affidavit upon which the warrant issues is "so lacking in indicia of probable cause as to render official belief in its existence unreasonable"; or the warrant is so facially defective that the officers cannot reasonably rely on it.
United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984); see also State v.
Weston, 329 S.C. 287, 494 S.E.2d 801 (1997); State v. Austin, 396 S.C. 9, 409 S.E.2d 811 (Ct.
App. 1991) (good faith exception does not apply when officer knew that affidavit was insufficient to establish probable cause).
(4) Use of evidence for impeachment
37
Although not admissible in the prosecution's case in chief, evidence obtained in violation of the defendant's Fourth Amendment rights may be used to impeach the defendant's testimony.
Walder v. United States, 347 U.S. 62, 74 S. Ct. 354, 98 L. Ed. 503 (1954); State v. Brown, 296
S.C. 191, 371 S.E.2d 523 (1988).
Such evidence is admissible to impeach a defendant's answers to questions on cross-examination that are plainly within the scope of the defendant's direct examination. United States v. Havens,
446 U.S. 620, 100 S. Ct. 1912, 64 L. Ed. 2d 559 (1980).
A defense witness may not be impeached by evidence obtained in violation of the defendant's
Fourth Amendment rights. James v. Illinois, 493 U.S. 307, 110 S. Ct. 648, 107 L. Ed. 2d 676
(1990).
(5) Parole Revocation Proceedings
The exclusionary rule does not prohibit the use of illegally seized evidence in parole revocation proceedings. Pennsylvania Bd. of Probation v. Scott, 524 U.S. 357, 118 S. Ct. 2014, 141 L. Ed.
2d 344 (1998).
D.
IDENTIFICATION
1.
RELIABILITY
a) Generally
Under the due process clause, evidence of an identification of the accused must be excluded if the process used to obtain the identification was so unnecessarily suggestive as to give rise to a very substantial likelihood of misidentification. Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct.
2243, 53 L. Ed. 2d 140 (1977); State v. Moore, 343 S.C. 282, 540 S.E.2d 445 (2000).
In evaluating an out-of-court identification, the trial court should follow a two-step procedure:
(1) was the out-of-court identification process unduly suggestive; (2) if so, was the identification nevertheless so reliable that no substantial likelihood of misidentification existed. State v.
Moore, 343 S.C. 282, 540 S.E.2d 445 (2000).
Reliability is the linchpin in determining the admissibility of identification testimony. State v.
Jones, 273 S.C. 723, 259 S.E.2d 120 (1979).
The factors to determine reliability are:
38
(1) the witness’ opportunity to view the criminal at the time of the crime;
(2) the witness’ degree of attention;
(3) the accuracy of the witness’ prior description of the criminal;
(4) the witness’ level of certainty at the confrontation; and
(5) the time between the crime and the confrontation.
Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972); State v. Moore, 343 S.C.
282, 540 S.E.2d 445 (2000).
Against these factors must be weighed the corrupting effect of the unnecessarily suggestive procedure. State v. Denson, 269 S.C. 407, 237 S.E.2d 761 (1977).
Neil v. Biggers, does not apply to in-court identifications that occur without a pre-trial identification. The remedy for any alleged suggestiveness of an in-court identification is crossexamination and argument. State v. Lewis, 363 S.C. 37, 609 S.E.2d 515 (2005).
When the source of the suggestiveness is non-governmental, the typical two-step procedure is inapplicable because the purpose of a strict rule barring evidence of unnecessarily suggestive confrontations is to deter the police from using a less reliable procedure where a more reliable one may be available. State v. Tisdale, 338 S.C. 607, 527 S.E.2d 389 (Ct. App. 2000). b) Effect of Pretrial Identification on In-Court
Identification.
Where a pre-trial identification is inadmissible, a later in-court identification is also inadmissible,
State v. Tisdale, 338 S.C. 607, 527 S.E.2d 389 (Ct. App. 2000), unless the State proves by clear and convincing evidence that the in-court identification is based on observations other than the earlier inadmissible identification. State v. Rogers, 263 S.C. 373, 210 S.E.2d 604 (1974). c) Hearing to Determine Inadmissibility
An in-camera hearing must be held to determine the admissibility of identification evidence.
State v. Simmons, 308 S.C. 80, 417 S.E.2d 92 (1992); contra Watkins v. Sowders, 449 U.S. 341,
101 S. Ct. 654, 66 L. Ed. 2d 549 (1981) (in-camera hearing not required in every case).
Defendant has standing to require hearing on co-defendant’s show-up identification where the success or failure of his defense – that he knew nothing about the crime – turned largely on the
ID of the co-defendant as the perpetrator of the crime. State v. Miller , 359 S.C. 589, 598 S.E.2d
297 (2004).
39
d) Admissible Identifications
Where the witness originally failed to identify defendant from a photographic line-up, but after hypnosis session identified defendant, the identification was admissible. The descriptions given by the witness before and after hypnosis were similar and no photographs were shown to the witness during the session. State v. Cheeseboro, 346 S.C. 526, 552 S.E.2d 300 (2001).
In-court identification reliable despite fact witness had observed defendant on television after his arrest and at preliminary hearing. State v. Drayton, 293 S.C. 417, 361 S.E.2d 329 (1987), cert. denied, 484 U.S. 1079, 108 S. Ct. 1060, 98 L. Ed. 2d 1021 (1988).
Identification reliable despite fact defendant was the only person to appear in both photographic and physical line-ups. State v. Scipio, 283 S.C. 124, 322 S.E.2d 15 (1984).
Nothing impermissibly suggestive where all six photographs in photo line-up and four of the five participants in the physical line-up matched defendant's general description. State v. Ford, 278
S.C. 384, 296 S.E.2d 866 (1982).
Where defendant was only person to appear in both photographic line-ups, and only person to have a beard in physical line-up, identification was suggestive, but still reliable pursuant to the factors in Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972). State v.
Stewart, 275 S.C. 447, 272 S.E.2d 628 (1980).
Where identifying witness states belief that the in-court identification is not based on seeing defendant at preliminary hearing. State v. Cunningham, 275 S.C. 189, 268 S.E.2d 289 (1980).
In CSC case, identification was reliable despite errors in prior identifications; CSC victim’s degree of attention is presumed to be acute. State v. Gambrell, 274 S.C. 587, 266 S.E.2d 78
(1980).
In-court identification based on presence at robbery and a chance observation of defendant at courthouse before witness was subpoenaed. State v. Thomas, 268 S.C. 343, 234 S.E.2d 16
(1977).
Physical line-up where participants were required to wear same clothing, footwear and white pillow cases with the eyes and nose cut out, walk, and speak works used by robber. State v.
Jones, 268 S.C. 227, 233 S.E.2d 287 (1977).
Even though photographs used had been lost, testimony of victim and officer regarding photographic line-up sufficient to support in-court identification. State v. Gibbs, 267 S.C. 365,
228 S.E.2d 104 (1976).
Victim did not positively identify defendant at first photographic line-up but after viewing him through one way mirror, victim identified him as robber and again on second view of pictures.
In-court identification properly admitted. State v. Fowler, 264 S.C. 149, 213 S.E.2d 447 (1975).
40
Despite fact that all pictures at photographic lineup were marked with dates and defendant's picture was recently made while all other photographs were over 16 years old, and police officer told victim they had a suspect, in-court identification properly admitted. State v. Campbell, 263
S.C. 328, 210 S.E.2d 307 (1974).
Despite some disparity of heights and weights of persons in out-of-court line-up, in-court identification admissible where witness also picked defendant out of a photo line-up. State v.
Lyons, 251 S.C. 541, 164 S.E.2d 445 (1968).
A show-up may be proper where witness had ample opportunity to observe witness, witness’ attention to defendant was acute, witness was certain of identification at confrontation, and identification occurred not long after the alleged crime. State v. Mansfield, 343 S.C. 66, 538
S.E.2d 257 (Ct. App. 2000). e) Inadmissible Identification
Single person show-ups are disfavored by the law. State v. Moore, 343 S.C. 282, 540 S.E.2d 445
(2000).
Witness’ show-up identification was unreliable where witness saw two men in neighbor’s backyard about 50 yards away for brief period of time, gave police a vague description, did not recognize acquaintance at crime scene, and identified defendants only on basis of race and clothing. State v. Moore, 343 S.C. 282, 540 S.E.2d 445 (2000).
Witness shown only pictures of defendant and accomplice accompanied with statement by police that these were the persons who had committed the robbery. Both pre-trial and in-court identifications inadmissible. State v. LaRue, 271 S.C. 256, 246 S.E.2d 890 (1978).
Where witness did not get a good look at culprit, failed to pick defendant out of photographic line-up two months after robbery, and failed to identify defendant out of second photographic line-up held ten days prior to trial despite police officer pointing to picture of defendant while stating "this is the man who robbed you" in-court identification occurring over two years after robbery should have been excluded. State v. Thompson, 276 S.C. 616, 281 S.E.2d 216 (1981).
2.
VIOLATION OF RIGHT TO COUNSEL AT PRETRIAL
IDENTIFICATION
a) Generally
41
A defendant has a Sixth Amendment right to counsel at a post-indictment line-up identification.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967); State v. Hoyte,
306 S.C. 561, 413 S.E.2d 806 (1992).
Where an accused has a Sixth Amendment right to counsel during a pretrial identification, a violation of that right requires suppression of the pretrial identification. Gilbert v. California,
388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967); State v. Hoyte, 306 S.C. 561, 413
S.E.2d 806 (1992).
Where counsel is present at line-up and testifies that line-up was fair, but actual identification is given to police in a separate room where police made no suggestions, Sixth Amendment right to counsel not violated and identification properly admitted. State v. Hiott, 276 S.C. 72, 276 S.E.2d
163 (1981).
Sixth Amendment does not require police to provide defendant’s counsel of choice at a pre-trial identification; counsel called in by police can satisfy constitutional requirement. State v. Cash,
257 S.C. 249, 185 S.E.2d 525 (1971). b) Effect on In-Court Identification
If a pretrial identification is inadmissible because of a Sixth Amendment violation, the in-court identification is also inadmissible unless the State shows by clear and convincing evidence that the in-court identification was based upon observations other than the pretrial identification.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967); see also State v.
Singleton, 258 S.C. 125, 187 S.E.2d 518 (1972) (in-court identification is inadmissible unless it is of independent origin and untainted by illegal identification).
Six factors to determine if an in-court identification is independent:
(1) prior opportunity to observe the alleged criminal act;
(2) existence of any discrepancy between description given prior to pre-trial identification and defendant's actual description;
(3) any identification of some other person prior to the pre-trial identification;
(4) identification of defendant by picture prior to physical line up;
(5) failure to identify the defendant on a prior occasion; and
(6) lapse of time between the crime and the pretrial identification.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
42
3.
EFFECT OF ILLEGAL ARREST
An illegal arrest does not require suppression of the victim's in-court identification. United
States v. Crews, 445 U.S. 463, 100 S. Ct. 1244, 63 L. Ed. 2d 537 (1980).
E.
CONFESSIONS
1.
DETERMINING ADMISSIBILITY.
When seeking to introduce a confession, the State must prove that the statement was voluntary and taken in compliance with Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966). State v. Middleton, 288 S.C. 21, 339 S.E.2d 692 (1986).
Generally, only those parts of a confession or statement made to police which are relevant and material to the crime charged should be received into evidence. State v. Nelson, 331 S.C. 1, 501
S.E.2d 716 (1998).
In determining whether a defendant’s statement, which was taken in another jurisdiction in violation of that jurisdiction’s law, but in accordance with South Carolina law, should be suppressed, the proper inquiry is whether suppressing the statement would deter police misconduct. State v. Harvin, 345 S.C. 190, 547 S.E.2d 497 (2001).
NOTE
: the Fifth Amendment’s protection encompasses compelled statements that lead to the discovery of incriminating evidence even though the statements themselves are not incriminating and are not introduced into evidence. United States v. Hubbell, 530 U.S. 27, 120 S. Ct. 2037,
147 L. Ed. 2d 24 (2000). a) Hearing
Before a confession or statement by a defendant is admitted into evidence, the judge should hold a hearing outside the presence of the jury to determine whether the confession is voluntary and whether it is admissible under Miranda. Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L.
Ed. 2d 908 (1964) (voluntariness); State v. Jordan, 258 S.C. 340, 188 S.E.2d 780 (1972)
(Miranda); State v. Salisbury, 330 S.C. 250, 498 S.E.2d 655 (Ct. App. 1998) (trial court’s failure to hold Jackson v. Denno hearing was harmless error); State v. Creech, 314 S.C. 76, 84, 441
S.E.2d 635, 639 (Ct. App. 1994); but see State v. Silver, 314 S.C. 483, 431 S.E.2d 250 (1993)
(declining to hold that a trial court must hold an in camera hearing to determine whether a defendant was in custody for Miranda purposes).
A defendant need not show custody to be entitled to a Jackson v. Denno hearing on voluntariness. State v. Silver, 314 S.C. 483, 431 S.E.2d 250 (1993).
43
If there is conflicting evidence of voluntariness, the judge must make a determination the confession is voluntary before submitting it to the jury. State v. Childs, 299 S.C. 471, 385
S.E.2d 839 (1989).
The question whether law enforcement complied with the requirements of Miranda is for the court, not the jury. Once the court determines that a defendant received and understood his rights, the court allows a confession into evidence. It then is for the jury ultimately to decide whether the confession was voluntary. State v. Davis, 309 S.C. 326, 422 S.E.2d 133 (1992), overruled on other grounds by Brightman v. State, 336 S.C. 348, 520 S.E.2d 614 (1999).
The State bears the burden of establishing the voluntariness of a confession. State v. Childs, 299
S.C. 471, 385 S.E.2d 839 (1989); State v. Washington, 296 S.C. 54, 370 S.E.2d 611 (1988).
The trial judge must make the initial determination of voluntariness based upon the preponderance of the evidence. If the judge finds that the statement was given voluntarily, it is then submitted to the jury, where its voluntariness must be established beyond a reasonable doubt. State v. Von Dohlen, 322 S.C. 234, 471 S.E.2d 689 (1996); State v. Washington, 296 S.C.
54, 370 S.E.2d 611 (1988).
Where defendant was advised of his Miranda rights on three occasions, was offered food by the police and was told he was free to leave the second time he was questioned, the police made sure defendant was well rested and fresh before they questioned him the next day, and even if information communicated to defendant that hair found in victims hand matched defendant’s hair was not true, the defendant’s statements were admissible. State v. Myers , 359 S.C. 40, 596
S.E.2d 488 ( 2004). b) Submission to jury
Although the judge must make the initial determination of admissibility, the trial judge must instruct the jury that it cannot consider any confession unless it finds beyond a reasonable doubt that the accused gave his statement freely and voluntarily under the totality of the circumstances.
State v. Davis, 309 S.C. 326, 422 S.E.2d 133 (1992).
If an accused is in custody at the time of his alleged confession, the jury must be instructed that it should determine the voluntariness of a confession under the totality of the circumstance and that receipt of Miranda warnings and ability to understand those warnings are appropriate factors to consider in deciding whether the confession was freely given. State v. Adams, 277 S.C. 115, 283
S.E.2d 582 (1981), overruled on other grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315
(1991).
This rule also applies when a capital defendant's disputed statement is introduced to the jury for the first time during the penalty phase. State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991).
44
c) CORROBORATION RULE
A defendant may not be convicted on an extra-judicial confession unless it is corroborated by proof of the corpus delicti. This rule applies whether a statement amounts to a confession or merely constitutes an admission. State v. Osborne, 335 S.C. 172, 516 S.E.2d 201 (1999).
Proof of corpus delicti is not a prerequisite to the admission of an extra-judicial confession of a defendant. Rather, if the State fails to prove the corpus delicti and the sole evidence of guilt is the defendant's confession, then a directed verdict in favor of the defendant is required. State v.
Williams, 321 S.C. 381, 468 S.E.2d 656 (1996); State v. McCombs, 335 S.C. 123, 515 S.E.2d
547 (Ct. App. 1999). But see State v. Dodd , 354 S.C. 13, 579 S.E.2d 331 (Ct. App. 2003) (in trial for armed robbery, defendant’s statement in his confession that he had a gun coupled with his threat to the store clerk that he would kill her was sufficient to establish the element of a deadly weapon).
2.
VOLUNTARINESS
a) Generally
A confession by a defendant is not admissible unless it is voluntary. E.g., State v. Childs, 299
S.C. 471, 385 S.E.2d 839 (1989).
The requirement that a confession be voluntary prior to being admitted is based on both the Fifth
Amendment right against self-incrimination and the Fourteenth Amendment right to due process.
Dickerson v. United States, 530 U.S. 428, 120 S. Ct. 2326, 147 L. Ed. 2d 405 (2000).
An involuntary confession or incriminating statement is inadmissible for any purpose, including
impeachment. State v. Victor, 300 S.C. 220, 387 S.E.2d 248 (1989). But see, MIRANDA
This voluntariness requirement is in addition to the requirement of showing a knowing and intelligent waiver of Miranda rights. State v. Middleton, 288 S.C. 21, 339 S.E.2d 692 (1986), cert. denied, 488 U.S. 871, 109 S. Ct. 189, 102 L. Ed. 2d 158 (1988).
The truth or falsity of the confession is irrelevant to the issue of voluntariness. Lego v. Twomey,
404 U.S. 477, 92 S. Ct. 619, 30 L. Ed. 2d 618 (1972). b) Requirement of Police Coercion
Coercive police activity is a necessary predicate to finding a confession is not voluntary.
Colorado v. Connelly, 479 U.S. 157, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986); State v. Linnen,
45
278 S.C. 175, 293 S.E.2d 851 (1982); State v. Salisbury, 330 S.C. 250,498 S.E.2d 655 (Ct. App.
1998).
A confession obtained by a private person is admissible under the due process clause even if it was obtained by outrageous behavior. Colorado v. Connolly, 479 U.S. 157, 107 S. Ct. 515, 93 L.
Ed. 2d 473 (1986).
Coercion is determined from the perspective of the suspect. Illinois v. Perkins, 496 U.S. 292,
110 S. Ct. 2394, 110 L. Ed. 2d 243 (1990).
As social workers are not agents of law enforcement, Miranda is inapplicable to statements made to them, despite their duty to report instances of suspected child abuse or neglect to the appropriate law enforcement agency. State v. Sprouse, 325 S.C. 275, 478 S.E.2d 871 (Ct. App.
1996). c) Totality of the Circumstances
The test of voluntariness is whether a defendant's will was overborne by the circumstances surrounding the giving of a confession. This test takes into consideration "the totality of all the surrounding circumstances--both the characteristics of the accused and the details of the interrogation.” Dickerson v. United States, 530 U.S. 428, 120 S. Ct. 2326, 147 L. Ed. 2d 405
(2000).
A confession may not be extracted by any sort of threats or violence, or obtained by any direct or implied promises, however slight, or by the exertion of improper influence. State v. Rochester,
301 S.C. 196, 391 S.E.2d 244 (1990). See State v. Register, 323 S.C. 471, 476 S.E.2d 153
(1996) (although police tactics such as misrepresentation of evidence may influence a suspect’s decision to confess, the decision is voluntary as long as it results from the suspect’s balancing of competing interests); State v. Osborne, 301 S.C. 363, 392 S.E.2d 178 (1990) (statement inadmissible where defendant was threatened with prosecution unless she changed her statement).
(1) Factors to consider.
The following factors, while not conclusive, should be considered by the court and the jury:
The crucial element of police coercion, the length of the interrogation, its location, its continuity, the defendant's maturity, education, physical condition, and mental health, and the failure of police to advise the defendant of his rights to remain silent and to have counsel present during custodial interrogation. Withrow v. Williams, 507 U.S. 680, 113 S. Ct. 1745, 123 L. Ed. 2d 407
(1993); Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973).
46
The characteristics of the defendant and the manner in which the confession was obtained.
Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973); State v.
Childs, 299 S.C. 471, 385 S.E.2d 839 (1989); State v. Franklin, 299 S.C. 133, 382 S.E.2d 911
(1989).
Custody is a factor to be considered in determining voluntariness, although a defendant need not show he was "in custody" when he is challenging the voluntariness of his statement. State v.
Silver, 314 S.C. 483, 431 S.E.2d 250 (1993).
The age, background, experience, and conduct of the accused. In re Williams, 265 S.C. 295, 217
S.E.2d 719 (1975); State v. Corns, 310 S.C. 546, 426 S.E.2d 324 (Ct. App. 1992).
Mental deficiency, although a confession is not inadmissible because of mental deficiency alone.
State v. Hughes, 336 S.C. 585, 521 S.E.2d 500 (1999)(mental illness); State v. Jennings, 280
S.C. 62, 309 S.E.2d 759 (1983) (mental retardation and hearing impairment); State v. Saxon, 261
S.C. 523, 201 S.E.2d 114(1973)(intoxication).
Misrepresentations of evidence by police, although a relevant factor, do not render an otherwise voluntary confession inadmissible. Frazier v. Cupp, 394 U.S. 731, 89 S. Ct. 1420, 22 L. Ed. 2d
684 (1969); State v. Von Dohlen, 322 S.C. 234, 471 S.E.2d 689 (1996); State v. Rabon, 275 S.C.
459, 272 S.E.2d 634 (1980).
The isolation of a minor from his or her parent is a factor to be considered. State v. Smith, 268
S.C. 349, 234 S.E.2d 19 (1977); In re Williams, 265 S.C. 295, 217 S.E.2d 719 (1975).
A statement induced by a promise of leniency is involuntary only if so connected with the inducement as to be a consequence of the promise. State v. Rochester, 301 S.C. 196, 391 S.E.2d
244 (1990); State v. Peake, 291 S.C. 138, 352 S.E.2d 487 (1987) (statement obtained after officer promised State would not seek the death penalty held involuntary). d) Subsequent Confession after Involuntary Confession
To determine whether coercion of a prior confession has carried over into the second, the court should consider the time that passes between confessions, the change in place of confessions, and the change in identity of the interrogators. Oregon v. Elstad, 470 U.S. 298, 105 S. Ct. 1285, 84
L. Ed. 2d 222 (1985).
3.
MIRANDA RIGHTS
a) Generally
47
A statement, whether exculpatory or inculpatory, obtained as a result of custodial interrogation is inadmissible unless the person was advised of and voluntarily waived his rights under Miranda v.
Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). E.g., State v. Sprouse, 325 S.C.
275, 478 S.E.2d 871 (Ct. App. 1996).
The purpose of Miranda is to prevent government officials from using the coercive nature of confinement to extract confessions that would not be given in an unrestrained environment.
Arizona v. Mauro, 481 U.S. 520, 107 S. Ct. 1931, 95 L. Ed. 2d 458 (1987).
Miranda rights were designed to supplement the requirement that a confession be voluntary, so to minimize the risk of admitting an involuntary custodial confession. Dickerson v. United
States, 530 U.S. 428, 120 S. Ct. 2326, 147 L. Ed. 2d 405 (2000).
Where police wait until after a suspect in custody has given a confession to give Miranda warnings and then ask the same questions a second time, both confessions are inadmissible at trial. Missouri v. Seibert, 2004 WL 1431864, U.S.Mo., June 28, 2004.
The failure to give a suspect Miranda warning does not require suppression of the physical fruits of the suspect’s unwarned but voluntary statements. United States v. Patane, 2004 WL 1431768,
U.S., June 28, 2004). b) Miranda Warnings
A suspect in custody may not be subjected to interrogation unless he is informed that: (1) he has the right to remain silent; (2) anything he says can be used against him in a court of law; (3) he has a right to the presence of an attorney; and (4) if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Miranda v. Arizona, 384 U.S. 436,
86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
It is sufficient if the warnings reasonably convey to a suspect his rights as required by Miranda.
Duckworth v. Eagan, 492 U.S. 195, 109 S. Ct. 2875, 106 L. Ed. 2d 166 (1989); State v.
Singleton, 284 S.C. 388, 326 S.E.2d 153 (1985) (a "talismanic incantation" is not required - omission of phrase "in court" did not render warning inadequate). c) Custody Requirement
The fact the suspect was a juvenile, inexperienced with police interrogation did not render trial court’s decision suspect was not in custody for purposes of warnings required by Miranda was not and “unreasonable application of federal law. Yarborough v. Alvarado, ___ U.S. ___, 124
S.Ct. 2140, ___ L.Ed.2d. ___ (2004).
48
The fact the investigation has focused on the suspect does not trigger the need for Miranda warnings unless the suspect is in custody. Minnesota v. Murphy, 456 U.S. 420, 104 S. Ct. 1136,
79 L. Ed. 2d 409 (1984); State v. Easler, 327 S.C. 121, 489 S.E.2d 617 (1997).
To trigger the requirement of Miranda warnings, the suspect's freedom of action must be curtailed to a degree associated with formal arrest. Berkemer v. McCarty, 468 U.S. 420, 104 S.
Ct. 3138, 82 L. Ed. 2d 317 (1984).
Miranda warnings are required for official interrogations only when a suspect "has been taken into custody or otherwise deprived of his freedom of action in any significant way." This language has been interpreted as meaning formal arrest or detention associated with a formal arrest. State v. Easler, 327 S.C. 121, 489 S.E.2d 617 (1997).
A determination of whether a suspect was in custody is a question to be resolved by the trial judge. Thompson v. Keohane, 516 U.S. 99, 116 S. Ct. 457, 133 L. E. 2d 383 (1995). Whether a suspect was "in custody" presents a factual issue. State v. Primus, 312 S.C. 256, 440 S.E.2d 128
(1994).
The initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned. Stansbury v. California, 511 U.S. 318, 114 S. Ct. 1526, 128 L. Ed. 2d 293 (1994).
A court must consider the totality of the circumstances, including the individual's freedom to leave the scene and the purpose, place and length of the questioning to determine whether a suspect is “in custody.” State v. Easler, 327 S.C. 121, 489 S.E.2d 617 (1997).
The relevant inquiry is whether a reasonable man in the suspect's position would have understood himself to be in custody. State v. Easler, 327 S.C. 121, 489 S.E.2d 617 (1997).
An officer's views concerning the nature of an interrogation, or beliefs concerning the potential culpability of the individual being questioned, may be assessed to determine whether that individual was in custody only if those views or beliefs were somehow conveyed to the individual under interrogation such that they would have affected how a reasonable person in that position would perceive his or her freedom to leave. Stansbury v. California, 511 U.S. 318,
114 S. Ct. 1526, 128 L. Ed. 2d 293 (1994).
While Miranda may apply to one who is in custody on an unrelated offense, the mere fact that one is incarcerated does not render an interrogation custodial. Bradley v. State, 316 S.C. 255,
449 S.E.2d 492 (1994).
A policeman's unarticulated plan has no bearing on the question of whether a suspect was “in custody” at a particular time; the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation. Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct.
3138, 82 L. Ed. 2d 317 (1984); Fradella v. Town of Mount Pleasant, 325 S.C. 469, 482 S.E.2d 53
(Ct. App. 1997) (fact that officers intended to obtain inculpatory statements under the guise of being concerned about the suspects welfare did not render the statements involuntary).
49
A person who is handcuffed and surrounded by officers is in custody for purposes of Miranda.
New York v. Quarles, 467 U.S. 649, 104 S. Ct. 2626, 81 L. Ed. 2d 550 (1984).
A probationer is not in custody when being questioned by his probation officer. Minnesota v.
Murphy, 465 U.S. 420, 104 S. Ct. 1136, 79 L. Ed. 2d 409 (1984).
A person who voluntarily goes to a police station is not in custody. California v. Beheler, 463
U.S. 1121, 103 S. Ct. 3517, 77 L. Ed. 2d 1275 (1983); State v. Doby, 273 S.C. 704, 258 S.E.2d
896 (1979).
Questioning of a juvenile by school officials in principal's office and in the presence of police officers has been held not to be custodial interrogation. In re Drolshagen, 280 S.C. 84, 310
S.E.2d 927 (1984).
As a general rule, a person subjected to roadside questioning pursuant to a routine traffic stop is not in custody for Miranda purposes. Pennsylvania v. Bruder, 488 U.S. 9, 109 S. Ct. 205, 102 L.
Ed. 2d 172 (1988); Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138, 82 L. Ed. 2d 317
(1984); State v. Peele, 298 S.C. 63, 378 S.E.2d 254 (1989).
Nor are Miranda warnings usually required for routine questioning following a traffic accident.
State v. Morgan, 282 S.C. 409, 319 S.E.2d 335 (1984).
A suspect is not in custody during a traffic stop and investigation of a possible DUI involving subsequent roadside field sobriety tests. Pennsylvania v. Bruder, 488 U.S. 9, 109 S. Ct. 205,
102 L. Ed. 2d 172 (1988); State v. Salisbury, 330 S.C. 250, 498 S.E.2d 655 (Ct. App. 1998). d) Interrogation Requirement
The special procedural safeguards outlined in Miranda are not required if a suspect is simply taken into custody, but only if a suspect in custody is subjected to interrogation. Rhode Island v.
Innis, 446 U.S. 291, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980); State v. Franklin, 299 S.C. 133,
382 S.E.2d 911 (1989).
Interrogation is either express questioning or its functional equivalent. It includes words or actions on the part of police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response. State v. Easler, 327
S.C. 121, 489 S.E.2d 617 (1997).
Miranda issues are inapplicable to voluntary statements which are not the product of interrogation. State v. Primus, 312 S.C. 256, 440 S.E.2d 128 (1994); State v. Howard, 296 S.C.
481, 374 S.E.2d 284 (1988).
50
Miranda requirements are inapplicable to routine questioning during booking. State v. Sullivan,
277 S.C. 35, 282 S.E.2d 838 (1981); cf. Pennsylvania v. Muniz, 496 U.S. 582, 110 S. Ct. 2638,
110 L. Ed. 2d 528 (1990) (majority of Court agrees Miranda is inapplicable to routine booking questions but for different reasons).
Allowing a jailed suspect to meet with his wife in the presence of an officer and recording the conversation for security purposes is not interrogation. Arizona v. Mauro, 481 U. S. 520, 107 S.
Ct. 1931, 95 L. Ed. 2d 458 (1987). e) Who Must Give Warnings
The requirements of Miranda apply not only to custodial interrogation by law enforcement officers, but also to questioning by a psychiatrist appointed by the court to conduct a competency examination. Estelle v. Smith, 451 U.S. 454, 101 S. Ct. 1866, 68 L. Ed. 2d 359 (1981).
An IRS agent questioning a state inmate about tax violations must give Miranda warnings.
Mathis v. United States, 391 U.S. 1, 88 S. Ct. 1503, 20 L. Ed. 2d 381 (1968).
An undercover law enforcement agent posing as a fellow inmate need not give Miranda warnings before asking questions that may elicit an incriminating response. Illinois v. Perkins, 495 U.S.
292, 110 S. Ct. 2394, 110 L. Ed. 2d 243 (1990). f) Public Safety Exception
Under the "public safety" exception, Miranda warnings are not required for interrogation prompted by a concern for public safety. The need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth
Amendment's privilege against self-incrimination. New York v. Quarles, 467 U.S. 649, 104 S.
Ct. 2626, 81 L. Ed. 2d 550 (1984). g) Assertion of Right to Remain Silent
Once a person in custody has asserted his right to remain silent, a later statement is inadmissible unless the circumstances show his right to cut off questioning was scrupulously honored.
Michigan v. Mosely, 433 U.S. 96, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975).
The following factors may be considered in determining whether a defendant’s right to cut off questioning was “scrupulously honored”: (1) whether the suspect was given Miranda warnings at the first interrogation; (2) whether police immediately ceased the interrogation when the suspect indicated he did not want to answer questions; (3) whether police resumed questioning the suspect only after the passage of a significant period of time; (4) whether police provided a fresh set of Miranda warnings before the second interrogation; and (5) whether the second
51
interrogation was restricted to a crime that had not been a subject of the earlier interrogation.
State v. Benjamin, 345 S.C. 470, 549 S.E.2d 258 (2001).
Law Enforcement officers are not required to terminate an interrogation unless there is an unambiguous invocation of the right to remain silent. Davis v. United States, 512 U.S. 452, 114
S. Ct. 2350, 129 L. Ed. 2d 362 (1994); State v. Reed, 332 S.C. 35, 503 S.E.2d 747 (1998)
(defendant’s initial failure to respond to questions did not constitute an invocation of Miranda rights).
A suspect who makes an inadmissible confession may subsequently waive the Fifth Amendment to remain silent, and his later, validly obtained confession will be admissible at trial. Oregon v.
Elstad, 470 U.S. 298, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985). h) Assertion to Right of Counsel
If the accused invokes the right to counsel, interrogation must cease and police may not conduct interrogation unless the accused initiates communication, exchanges, or conversations with the police. Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981); State v.
McCray, 332 S.C. 536, 506 S.E.2d 301 (1998).
The Fifth Amendment right to counsel is not offense-specific; once an accused invokes the right to counsel for interrogation regarding one offense, he may not be approached regarding any offense unless counsel is present. Arizona v. Roberson, 486 U.S. 675, 108 S. Ct. 2093, 100 L.
Ed. 2d 704 (1988); State v. McCray, 332 S.C. 536, 506 S.E.2d 301 (1998); State v. Wilder, 306
S.C. 535, 413 S.E.2d 323 (1991).
A suspect's refusal to give a written statement without having his attorney present does not prevent authorities from obtaining an oral statement from the suspect. Connecticut v. Barrett,
479 U.S. 523, 107 S. Ct. 828, 93 L. Ed. 2d 920 (1987).
Once an unambiguous request for counsel is made, all questioning must cease and the fact the suspect responds to further inquiry does not undermine the effect of that request. Smith v.
Illinois, 469 U.S. 91, 105 S. Ct. 490, 83 L. Ed. 2d 488 (1984).
Officials may not reinitiate interrogation without counsel present, whether or not the accused has consulted with his attorney. Minnick v. Mississippi, 498 U.S. 146, 111 S. Ct. 486, 112 L. Ed. 2d
489 (1990).
A suspect’s request for counsel must be unambiguous. Davis v. United States, 512 U.S. 452, 114
S. Ct. 2350, 129 L. Ed. 2d 362 (1994) (agents not required to stop questioning suspect who remarks that "maybe I should talk to a lawyer," as that was not a request for counsel).
52
An adult's request for someone other than an attorney does not invoke a Fifth Amendment right to speak with counsel. State v. Register, 323 S.C. 471, 476 S.E.2d 153 (1996). i) Waiver
(1) Sufficiency
To introduce a statement obtained by custodial interrogation, the prosecution must establish a voluntary, knowing, and intelligent waiver of Miranda rights. Colorado v. Connelly, 479 U.S.
157, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986)
An express waiver is unnecessary to support a finding that the defendant has waived his or her
Miranda rights. North Carolina v. Butler, 441 U.S. 369, 99 S. Ct. 1755, 60 L. Ed. 2d 286 (1979);
State v. Kennedy, 333 S.C. 426, 510 S.E.2d 714 (1998).
When an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. Edwards v.
Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981).
A valid waiver of the right to counsel will not be presumed simply from the silence of the accused. The record must show an accused was offered counsel but intelligently and knowingly rejected the offer. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
(2) Burden
To admit the statement, the State bears the burden to establish waiver by a preponderance of the evidence. Colorado v. Connelly, 479 U.S. 157, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986); State v.
Osborne, 301 S.C. 363, 392 S.E.2d 178 (1990); State v. Rochester, 301 S.C. 196, 391 S.E.2d 244
(1990); State v. Washington, 296 S.C. 54, 370 S.E.2d 611 (1988).
The State bears the burden even where the defendant has signed a waiver of rights form. State v.
Osborne, 301 S.C. 363, 392 S.E.2d 178 (1990).
Whether a suspect has validly waived his rights is determined from the totality of the circumstances; an express waiver is unnecessary. State v. Tyson, 283 S.C. 375, 323 S.E.2d 770
(1984), cert. denied, 471 U.S. 1006, 105 S. Ct. 1873, 85 L .Ed. 2d 165 (1985).
While silence alone is never enough to establish waiver, silence, coupled with an understanding of his rights and a course of conduct indicating waiver may be sufficient. North Carolina v.
53
Butler, 441 U.S. 369, 99 S. Ct. 1755, 60 L. Ed. 2d 286 (1979); State v. Pendergrass, 270 S.C. 1,
239 S.E.2d 750 (1977).
Events occurring outside of the presence of the suspect and entirely unknown to him have no bearing on whether a valid waiver has occurred. Moran v. Burbine, 475 U.S. 412, 106 S. Ct.
1135, 89 L. Ed. 2d 410 (1986) (deliberate withholding of fact that an attorney retained by defendant's sister without his knowledge had telephoned); State v. Drayton, 293 S.C. 417, 361
S.E.2d 329 (1987) (failure to inform defendant that public defender wanted to speak to him), overruled on other grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991).
(3) Duration
Once a voluntary waiver is made, it continues until the individual being questioned indicates he wants to revoke the waiver and remain silent or circumstances exist which establish that his will has been overborne and his capacity for self-determination critically impaired. State v.
Rochester, 301 S.C. 196, 391 S.E.2d 244 (1990).
(4) Subsequent Confessions after Unwarned Confession
Where a confession is obtained without Miranda warnings but is otherwise voluntary, a subsequent confession obtained with a valid waiver of Miranda warnings is ordinarily admissible. Oregon v. Elstad, 470 U.S. 298, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985); State v.
Campbell, 287 S.C. 377, 339 S.E.2d 109 (1985).
(5) Use of Post-arrest, post-Miranda Silence
Doyle v. Ohio, 426 U.S. 610 (1976) generally prohibits the government from commenting on an accused’s post-Miranda silence.
Doyle does not apply to cross-examination that merely inquires into prior inconsistent statements. Anderson v. Charles, 447 U.S. 404 (1980).
Where focus of defense, as revealed by his actions before and at his arrest, as well as his trial testimony, was that he was not present when the crimes occurred, knew nothing about the crimes or who was involved, and so had nothing to tell police, defendant did not open the door to extensive questioning by solicitor regarding his post-arrest silence because he did not explicitly or implicitly, assert he cooperated with police. State v. McIntosh , ___ S.C. ___, 595 S.E.2d 484
(2004).
A Doyle violation may be harmless if the record establishes that the reference to silence is a single reference; the single reference was never repeated or alluded to in either the trial or in jury
54
argument; the prosecutor does not directly tie the defendant’s silence to his exculpatory story; the exculpatory story is totally implausible, transparently frivolous; and the evidence of guilt is overwhelming. State v. Hill, 360 S.C. 13, 598 S.E.2d 732 (Ct. App. 2004).
Evidence of invocation of right to silence is admissible where it is not used as evidence of guilt but as evidence of malingering to rebut defendant’s claim that he was incapable of understanding his Miranda rights. State v. Simmons , 360 S.C. 33, 599 S.E.2d 448 (2004). j) Use of Unwarned Confession for Impeachment
A statement obtained in violation of Miranda is admissible to impeach a defendant's testimony if it is otherwise voluntary. Oregon v. Hass, 420 U.S. 714, 95 S. Ct. 1215, 43 L. Ed. 2d 570
(1975); Harris v. New York, 401 U.S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971). But see
4.
SIXTH AMENDMENT RIGHT TO COUNSEL
Note: this section is not intended to be an exhaustive authority on a defendant’s Sixth
Amendment right to counsel. See RIGHT TO COUNSEL.
A statement taken in violation of a defendant’s Sixth Amendment right to counsel is inadmissible. Michigan v. Jackson, 475 U.S. 625, 106 S. Ct. 1404, 89 L. Ed. 2d 631 (1986).
The right to counsel in judicial proceedings is distinguished from the Fifth Amendment Miranda-
Edwards right to speak with counsel upon request in a custodial setting. State v. Register, 323
S.C. 471, 476 S.E.2d 153 (1996).
The Sixth Amendment right to counsel attaches when adversarial judicial proceedings have been initiated and at all critical stages. Michigan v. Jackson, 475 U.S. 625, 106 S. Ct. 1404, 89 L. Ed.
2d 631 (1986).
In the questioning/statement setting, the Sixth Amendment right attaches only after indictment.
Michigan v. Harvey, 494 U.S. 344, 110 S. Ct. 1176, 108 L. Ed. 2d 293 (1990).
Where police “deliberately elicited” information after indictment information was inadmissible.
The opinion leaves open the question of whether the Sixth Amendment requires suppression of jailhouse statements made after Miranda warnings have been given as the fruit of the previous questions conducted in violation of the Sixth Amendment “deliberate elicitation” standard.
Fellers v. United States, ___ U.S. ___, 124 S.Ct. 1019, 157 L.Ed.2d. 1016 (2004).
When the Sixth Amendment right to counsel has attached, if police initiate interrogation after a defendant's assertion, at an arraignment or other similar proceedings, of his right to counsel, any
55
waiver of the defendant's right to counsel for that police initiated interrogation is invalid unless the defendant initiates the contact himself. State v. Council, 335 S.C. 1, 515 S.E.2d 508 (1999).
Once a criminal defendant invokes his Sixth Amendment right to counsel, a subsequent waiver of that right--even if voluntary, knowing, and intelligent under traditional standards--is presumed invalid if secured pursuant to police-initiated conversation. Michigan v. Jackson, 475 U.S. 625,
106 S. Ct. 1404, 89 L. Ed. 2d 631 (1986); State v. Council, 335 S.C. 1, 515 S.E.2d 508 (1999).
The prosecution may use a statement taken in violation of the defendant’s Sixth Amendment rights to impeach a defendant's false or inconsistent testimony. Michigan v. Harvey, 494 U.S.
344, 110 S. Ct. 1176, 108 L. Ed. 2d 293 (1990); Hudgins v. Moore, 337 S.C. 333, 524 S.E.2d
105 (1999).
The Sixth Amendment right to counsel is offense-specific; the mere fact counsel was appointed in one matter does not invoke the Sixth Amendment relating to a different matter, even if the two offenses are factually related. Texas v. Cobb, 532 U.S. 162, 121 S. Ct. 1335, 149 L. Ed. 2d 321
(2001); State v. Register, 323 S.C. 471, 476 S.E.2d 153 (1996).
5.
RIGHT TO COPY OF STATEMENT.
See WRITTEN STATEMENTS MADE TO PUBLIC OFFICIALS.
6.
CONFESSIONS FOLLOWING ILLEGAL ARREST.
See EFFECT OF ILLEGAL ARREST ON PROSECUTION
7.
CO-DEFENDANT'S CONFESSION
a) Admission against Co-defendant at Joint Trial
At a joint trial, a defendant's confrontation rights are violated when a non-testifying codefendant's confession implicating the defendant is admitted into evidence against the codefendant. This is so even if a curative instruction is given. Cruz v. New York, 481 U.S. 186,
107 S. Ct. 1714, 95 L. Ed. 2d 162 (1987); Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620,
20 L. Ed. 2d 476 (1968).
A non-testifying co-defendant's confession is admissible against the defendant under the
Confrontation Clause if it has sufficient indicia of reliability "to overcome the weighty presumption against admission of such uncross-examined evidence." The indicia of reliability may result from the circumstances surrounding the confession or the interlocking character of the co-defendant's and defendant's confessions. Lee v. Illinois, 476 U.S. 530, 106 S. Ct. 2056, 90 L.
Ed. 2d 514 (1986).
56
A co-defendant's confession will not be considered reliable merely because some of the facts it contains "interlock" with the defendant's own confession; those portions of the statement concerning the defendant's participation must be "thoroughly substantiated" by the defendant's own confession. Cruz v. New York, 481 U.S. 186, 107 S. Ct. 1714, 95 L. Ed. 2d 162 (1987);
State v. Howard, 295 S.C. 462, 369 S.E.2d 132 (1988); cf. State v. Martin, 292 S.C. 437, 357
S.E.2d 21 (1987).
A co-defendant’s confession is not made reliable by the fact that the declarant inculpates himself in the statement. Such statements are suspect insofar as they inculpate other persons. Lilly v.
Virginia, 527 U.S. 116, 119 S. Ct. 1887, 144 L. Ed. 2d 117 (1999).
The exception to the hearsay rule for statements against penal interest does not allow admission of statements that are not self-inculpatory, even if they are made within broader narrative that is generally self-inculpatory. Williamson v. United States, 512 U.S. 594, 114 S. Ct. 2431, 129 L.
Ed. 2d 476 (1994). b) Redaction
The non-testifying co-defendant's confession is admissible if it is redacted to eliminate all references to the defendant's name or his existence. Richardson v. Marsh, 481 U.S. 200, 107 S.
Ct. 1702, 95 L. Ed. 2d 176 (1987) (allowing confession which omitted all reference to anyone other than declarant and a third party not involved in the trial); cf. State v. Clark, 286 S.C. 432,
334 S.E.2d 121 (1985) (error not to redact).
Redactions that simply replace a name with an obvious blank space or a word such as "deleted" or a symbol or other similarly obvious indications of alteration, however, leave statements that so closely resemble an unredacted statement that suppression is required. Gray v. Maryland, 523
U.S. 185, 118 S. Ct. 1151, 140 L. Ed. 2d 294 (1998).
8.
THIRD-PARTY CONFESSIONS
The due process clause requires admission of the exculpatory confession of a third party offered through hearsay, even if state evidentiary rules prohibit its admission, where the evidence is reliable (a statement against penal interests) and highly relevant to a critical issue in the case.
Green v. Georgia, 442 U.S. 95, 99 S. Ct. 2150, 60 L. Ed. 2d 738 (1979); State v. Ard, 332 S.C.
370, 505 S.E.2d 328 (1998).
F.
BAIL BEFORE TRIAL
57
1.
RIGHT TO BAIL
All persons are bailable by sufficient sureties, but bail may be denied to those charged with capital offenses or offenses punishable by life imprisonment based on the nature and circumstances of the crime. S.C. Const. art. I, §15.
A criminal defendant cannot appeal the denial of bail pending trial. Parsons v. State, 289 S.C.
542, 347 S.E.2d 504 (1986). Orders admitting defendants to bail do not involve the merits. State v. Hill, 314 S.C. 330, 444 S.E.2d 255 (1994). a) Capital Defendants
The discretion to admit a capital defendant to bail should be exercised with utmost caution. State v. Hill, 314 S.C. 330, 444 S.E.2d 255 (1994). If bail is granted to a capital defendant, the court must make specific findings of fact with respect to the likelihood of flight and the dangerousness of the defendant. State v. Hill, 314 S.C. 330, 444 S.E.2d 255 (1994).
The State bears the burden of persuasion as to whether a capital defendant should be released on bail prior to trial. State v. Hill, 314 S.C. 330, 444 S.E.2d 255 (1994).
2.
AMOUNT OF BAIL
Excessive bail is prohibited under U.S. Const. amend. VIII and S.C. Const. art. I, §15. An amount which is greater than that reasonably calculated to insure the defendant's presence at trial is excessive. State v. Taylor, 255 S.C. 268, 178 S.E.2d 244 (1970).
The determination of amount of bail is within the discretion of the granting officer. State v.
Taylor, 255 S.C. 268, 178 S.E.2d 244 (1970).
3.
STATUTES REGULATING BAIL
Chapter 15 of Title 17 of the South Carolina Code of Laws controls bail, forfeiture of recognizances, and remission of forfeiture. Additionally, Chapter 53 of Title 38 of the South
Carolina Code of Laws regulates bail bondsmen.
G.
BAIL ON APPEAL
Service of a notice of appeal stays the execution of the sentence until the appeal is disposed of.
S.C. Code Ann. § 18-1-70 (1985).
58
However, the defendant must post bail. S.C. Code Ann. § 18-1-80 (1985).
Bail is not allowed when the defendant has been sentenced to death, life imprisonment, or imprisonment for more than ten years. S.C. Code Ann. § 18-1-90 (Supp. 2001).
The Supreme Court may in its discretion grant bail where the sentence exceeds ten years notwithstanding the provisions of S.C. Code Ann. § 18-1-90. State v. Whitener, 225 S.C. 244,
81 S.E.2d 784 (1954).
Where consecutive sentences are imposed which individually do not exceed ten years, the circuit court may set bail. Holmes v. State, 344 S.C. 41, 543 S.E.2d 537 (2001).
H.
REPRESENTATION BY COUNSEL
1.
GENERALLY
The Sixth Amendment right to counsel protects the integrity of the adversarial system of criminal justice by ensuring that all persons accused of crimes have access to effective assistance of counsel for their defense. State v. Quattlebaum, 338 S.C. 441, 527 S.E.2d 105 (2000).
A convicted defendant may not be imprisoned unless he was either represented by counsel or he knowingly, intelligently, and voluntarily waived the right to counsel. U.S. Const. amend. VI and amend. XIV; S.C. Const. art. I, §14; Scott v. Illinois, 440 U.S. 367, 99 S. Ct. 1158, 59 L. Ed. 2d
383 (1979); Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972).
A suspended sentence that may end up in the actual deprivation of a person’s liberty may not be imposed unless the defendant was represented by counsel. Alabama v. Shelton, ___ U.S. ___,
122 S.Ct. 1764 , 152 L.Ed.2d 888 (2002).
An indigent criminal defendant is entitled to appointed counsel. S.C. Code Ann. § 17-3-10
(1985); Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963); State v.
Boykin, 324 S.C. 552, 478 S.E.2d 689 (Ct. App. 1996).
An indigent capital defendant is entitled to two appointed attorneys. S.C. Code Ann. § 16-3-
26(B) (Supp. 2001); Bailey v. State, 309 S.C. 455, 424 S.E.2d 503 (1992).
Waiver of the right to counsel will not be presumed from a silent record. Carnley v. Cochran,
369 U.S. 506, 82 S. Ct. 884, 8 L. Ed. 2d 70 (1962).
2.
RIGHT TO COUNSEL
59
a) When Right Attaches
The Sixth Amendment right to counsel attaches when adversarial judicial proceedings have been initiated and at all critical stages. Michigan v. Jackson, 475 U.S. 625, 106 S. Ct. 1404, 89 L. Ed.
2d 631 (1986); Brewer v. Williams, 430 U.S. 387, 97 S. Ct. 1232, 51 L. Ed. 2d 424 (1977).
A critical stage is one at which procedural steps are taken or at which events transpire that are likely to prejudice the ensuing trial. State v. Williams, 263 S.C. 290, 210 S.E.2d 298 (1974).
The Sixth Amendment right does not attach simply because the defendant has been arrested or because the investigation has focused on him. Hoffa v. United States, 385 U.S. 293, 87 S. Ct.
408, 17 L. Ed. 2d 374 (1966). The U.S. Supreme Court has indicated the right attaches only
"post-indictment," at least in the questioning/statement area. See Michigan v. Harvey, 494 U.S.
344, 110 S. Ct. 1176, 108 L. Ed. 2d 293 (1990).
Once a defendant invokes his right to counsel at the initiation of adversarial judicial proceedings, he is not deemed to waive his right to counsel at subsequent custodial interrogation unless he initiates the contact. Michigan v. Jackson, 475 U.S. 625, 106 S. Ct. 1404, 89 L. Ed. 2d 631
(1986). The Sixth Amendment right applies to post-indictment interrogation only if the defendant invokes it after being given Miranda rights. Patterson v. Illinois, 487 U.S. 285, 108 S.
Ct. 2389, 101 L. Ed. 2d 261 (1988).
The State is not required to establish the waiver of the Sixth Amendment right to counsel when the defendant has invoked that right for a different offense in a different jurisdiction. The Sixth
Amendment right applies only to the offense for which the defendant has invoked it B it does not apply to questioning about other offenses. McNeil v. Wisconsin, 501 U.S. 171, 111 S. Ct. 2204,
115 L. Ed. 2d 158 (1991); State v. Howard, 295 S.C. 462, 369 S.E.2d 132 (1988).
The Sixth Amendment right to counsel is “offense-specific” and does not necessarily extend to offenses that are factually related to those that have actually been charged. Texas v. Cobb, 532
U.S. 162, 121 S. Ct. 1335, 149 L. Ed. 2d 321 (2001); Compare Assertion to Right of Counsel
(assertion of Fifth Amendment right on any charge prevents questioning on every charge).
(1) Not Critical Stages
The following stages are not critical stages for Sixth Amendment purposes:
Pre-arrest photo line-up. State v. Williams, 257 S.C. 257, 185 S.E.2d 529 (1971).
Post-arrest photo line-up. State v. Jones, 273 S.C. 723, 259 S.E.2d 120 (1979).
Post-arrest "show-up." State v. McLeod, 260 S.C. 445, 196 S.E.2d 645 (1973).
Fingerprinting. Campbell v. State, 256 S.C. 474, 182 S.E.2d 883 (1971).
60
Breathalyzer test. State v. Degnan, 305 S.C. 369, 409 S.E.2d 346 (1991).
Bail hearings. State v. Williams, 263 S.C. 290, 210 S.E.2d 298 (1974).
Psychiatric examination. State v. Hardy, 283 S.C. 590, 325 S.E.2d 320 (1985); see also § L.
Taking of handwriting exemplars. Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed.
2d 1178 (1967).
Courtroom "meeting" with State to determine what pro se motions defendant has filed and what relief he is seeking. State v. Buchanan, 279 S.C. 194, 304 S.E.2d 819 (1983).
(2) Critical Stages
The following stages are critical:
Post-indictment “show-up.” State v. Hoyte, 306 S.C. 561, 413 S.E.2d 806 (1992).
Physical line-up. Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967)
(post-indictment, pre-trial physical line-up); State v. Ford, 278 S.C. 384, 296 S.E.2d 866 (1982); but see Kirby v. Illinois, 406 U.S. 682, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972) (plurality opinion) (no right at post-arrest, pre-indictment line-up).
“In custody” line-up. State v. Singleton, 258 S.C. 125, 187 S.E.2d 518 (1972).
Arraignment. Moorer v. State, 244 S.C. 102, 135 S.E.2d 713 (1964).
Preliminary hearing. Coleman v. Alabama, 399 U.S. 1, 90 S. Ct. 1999, 26 L. Ed. 2d 387 (1970).
Polygraph examination. State v. Grizzle, 293 S.C. 19, 358 S.E.2d 388 (1987).
Sentencing, including opening of a sealed sentence. State v. McGuinn, 268 S.C. 112, 232 S.E.2d
229 (1977).
Probation revocation hearings. Salley v. State, 306 S.C. 213, 410 S.E.2d 921 (1991). b) Procedure for Appointing Counsel
The procedure for determining indigence, and for appointing counsel is found in Rules 602 and
608, SCACR, and the Defense of Indigents Act, S.C. Code Ann. §§ 17-3-10 through 330 (1985
& Supp. 2001). The appointment of private counsel under the Defense of Indigents Act shall be made or confirmed in a written order. Rule 602, SCACR.
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Indigent capital defendants are entitled to two attorneys, only one of whom may be a public defender. One of the appointed attorneys must have at least five years experience, at least three years of which must be in the actual trial of felony cases. S.C. Code Ann. § 16-3-26(B) (Supp.
2001). Failure to appoint attorneys qualified under this section is reversible error. State v.
Diddlemeyer, 296 S.C. 235, 371 S.E.2d 793 (1988), overruled on other grounds by State v.
Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991).
It is within the trial judge's discretion to appoint more than two attorneys in a capital case. State v. Sharpe, 239 S.C. 258, 122 S.E.2d 622 (1961), overruled on other grounds by State v.
Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991); State v. Cooper, 212 S.C. 61, 46 S.E.2d 545
(1948).
S.C. Code Ann. § 17-23-70, providing for the appointment of counsel for all persons charged with a capital offense, has been superseded by § 16-3-26(B), enacted in 1978, which provides for appointment for indigents only. State v. Brown, 289 S.C. 581, 347 S.E.2d 882 (1986). c) Representation by Non-Attorney
There is one situation in which a criminal defendant may be represented by a non-attorney. Rule
401, SCACR, permits law students to represent indigent defendants under the supervision of a licensed attorney.
The right of a defendant to proceed pro se is discussed at WAIVER OF RIGHT TO COUNSEL
d) No Right to Hybrid Representation
S.C. Const. art. I, §14, provides in part: "Any person charged with an offense shall enjoy the right to . . . be fully heard in his defense by himself or by his counsel or by both." While this section does not establish a right to "hybrid representation" (where both the defendant and his counsel have the right to examine witnesses), it is within the trial judge's discretion to allow the defendant to proceed pro se but require counsel to remain in the courtroom and assist the defendant. State v. Sanders, 269 S.C. 215, 237 S.E.2d 53 (1977).
Where the defendant proceeds pro se, the trial judge has the discretion to appoint stand-by counsel over the defendant's objection in order to assist with procedural and clerical matters.
McKaskle v. Wiggins, 465 U.S. 168, 104 S. Ct. 944, 79 L. Ed. 2d 122 (1984).
(1) Rescission of Right to Self-Representation
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The trial court did not err in refusing to allow pro se defendant to rescind the right of selfrepresentation and allow stand-by counsel to assume duties on the eve of the penalty phase of trial. State v. Reed, 332 S.C. 35, 503 S.E.2d 747 (1998).
(2) Pro Se Filings When Represented by Counsel
Substantive documents filed pro se by a defendant represented by counsel are not accepted unless submitted by counsel. State v. Stuckey, 333 S.C. 56, 508 S.E.2d 564 (1998). e) No Right to Choose Counsel
(1) Generally
There is a presumption in favor of the defendant's right to counsel of his choice; however, this presumption is not absolute. Wheat v. United States, 486 U.S. 153, 108 S. Ct. 1692, 100 L. Ed.
2d 140 (1988) (no Sixth Amendment violation where trial judge disqualified defendant’s chosen counsel even after defendant waived his chosen counsel's conflict of interest); State v. Sanders,
341 S.C. 386, 534 S.E.2d 696 (2000).
No abuse of discretion found in denying the defendant's motion to relieve the public defender and appoint other counsel where the record shows the public defender afforded adequate representation. State v. Marshall, 273 S.C. 552, 257 S.E.2d 740 (1979).
(2) Continuance
No abuse of discretion in the trial court's denial of a defendant's motion for a continuance (based on the original attorney's absence due to illness) where substitute counsel was present, stated that he was prepared, and performed adequately. Morris v. Slappy, 461 U.S. 1, 103 S. Ct. 1610, 75
L. Ed. 2d 610 (1983).
No abuse of discretion to deny defendant’s motion for a continuance made on the day of trial for the purpose of procuring new counsel, where defendant’s appointed counsel was present and prepared for trial. State v. Bennett, 259 S.C. 50, 190 S.E.2d 497 (1972).
No abuse of discretion to deny a continuance when the public defender “demonstrated the normal and customary degree of skill possessed by attorneys who are reasonably knowledgeable of criminal law.” State v. Pendergrass, 270 S.C. 1, 239 S.E.2d 750 (1977). f) Removal of counsel
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When removal of counsel is sought under Rule 3.7 of the Rules of Professional Conduct, an evidentiary hearing should be held as a procedural safeguard. This will enable the trial judge to fully assess counsel’s anticipated role as a necessary witness before restricting the defendant’s exercise of his right to counsel. It will also provide a record for meaningful review of the issue on appeal. State v. Sanders, 341 S.C. 386, 534 S.E.2d 696 (2000).
Trial judge did not err in failing to relieve counsel who had prosecuted defendant successfully 10 years previously. Counsel had no recollection of the case and only learned he had when solicitor checked the files and informed him of that fact. Court found no showing of any competing loyalties, actual conflict, or prejudice. State v. Childers , 358 S.C. 614, 595 S.E.2d 872 (Ct. App.
2004).
3.
WAIVER OF RIGHT TO COUNSEL
a) Pretrial Waiver
A criminal defendant has a constitutional right to proceed pro se. U.S. Const. amend. VI; Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).
Waiver of the right to counsel will not be presumed from a silent record. Carnley v. Cochran,
369 U.S. 506, 82 S. Ct. 884, 8 L. Ed. 2d 70 (1962); Pitt v. MacDougall, 245 S.C. 98, 138 S.E.2d
840 (1964). The record must show the defendant made a knowing, intelligent, and voluntary waiver after being informed of his right to retained or appointed counsel and after being warned of the traditional benefits associated with the right to counsel and the dangers and disadvantages of self-representation. Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562
(1975); State v. Bateman, 296 S.C. 367, 373 S.E.2d 470 (1988).
“The [defendant’s] request to proceed pro se must be clearly asserted by the defendant prior to trial. If the request to proceed pro se is made after trial has begun, the grant or denial of the right to proceed pro se rests within the sound discretion of the trial judge.” It is the responsibility of the trial judge to determine whether the request is made for purpose of delay or to gain tactical advantage, and whether the lateness of the request may hinder the administration of justice. As part of this determination, the trial judge should hold a hearing to assess the purpose behind the defendant’s request and what effect granting the request would have on the proceedings. State v.
Fuller, 337 S.C. 236, 523 S.E.2d 168 (1999). b) Waiver by conduct
(1) Non-indigent's Failure to Retain Counsel
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A non-indigent defendant waives his right if he fails to procure counsel after being given a reasonable period of time and/or fails to show why retained counsel is not present at trial. State v. Jacobs, 271 S.C. 126, 245 S.E.2d 606 (1978); State v. Gill, 355 S.C. 234, 584 S.E.2d 432 (Ct.
App. 2003).
(2) Failure to Appear and Keep in Touch
Waiver of the right to counsel may be inferred from the defendant's failure to keep in touch with his attorney and his failure to appear at trial. State v. Cain, 277 S.C. 210, 284 S.E.2d 779 (1981).
(3) During Trial
Whether to grant counsel's motion to be relieved or the defendant's request to proceed pro se made during trial is addressed to the trial judge's discretion. Compare State v. Jones, 270 S.C.
587, 243 S.E.2d 461 (1978) (defendant's request) with State v. Avery, 255 S.C. 570, 180 S.E.2d
190 (1971) (attorney's request). If the motion is granted, the court may in its discretion offer substitute counsel. State v. Jones, 270 S.C. 587, 243 S.E.2d 461 (1978).
I.
INDICTMENTS
1.
GENERALLY
"No person shall be held to answer for any crime unless on a presentment or indictment of a grand jury." S.C. Const. art. I, § 11; see also S.C. Code Ann. § 17-19-10 (1985).
Subject matter jurisdiction and the sufficiency of the indictment are two distinct concepts. The indictment is a notice document. Any insufficiency or defect in the indictment must be challenged before the jury is sworn. State v. Gentry, 363 S.C. 93, 610 S.E.2d 494 (2005).
Although the State Grand Jury Act empowers a State Grand Jury to investigate allegations of criminal activity for up to two years before it must be discharged, an investigation may be transferred to a subsequent State Grand Jury without depriving the State Grand Jury of subject matter jurisdiction to issue indictments. State v. Follin, 352 S.C. 235, 573 S.E.2d 812 (Ct. App.
2002).
A waiver of presentment must be in writing. Odom v. State, 350 S.C. 300, 566 S.E.2d 528
(2002).
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The signing of a sentencing sheet indicating that the defendant waived presentment of the indictment constitutes a written waiver of presentment. State v. Smalls, Op. No. 25988 (S.C.
Sup. Ct. filed May 23, 2005).
2.
Sufficiency
a) Generally
An indictment is sufficient if it apprises the defendant of the elements of the offense intended to be charged and informs the defendant of the circumstances he must be prepared to defend.
Locke v. State, 341 S.C. 54, 533 S.E.2d 324 (2000); Granger v. State, 333 S.C. 2, 507 S.E.2d 322
(1998).
Every indictment shall be deemed and judged sufficient and good in law which, in addition to allegations as to time and place, as required by law, charges the crime substantially in the language of the common law or of the statute prohibiting the crime or so plainly that the nature of the offense charged may be easily understood and, if the offense be a statutory offense, that the offense be alleged to be contrary to the statute in such case made and provided. S.C. Code
Ann. § 17-19-20 (1985).
An indictment is sufficient if the offense is stated with sufficient certainty and particularity to enable the court to know what judgment to pronounce, and the defendant to know what he is called upon to answer and whether he may plead an acquittal or conviction thereon. Browning v.
State, 320 S.C. 366, 465 S.E.2d 358 (1995).
The true test of the sufficiency of an indictment is not whether it could be made more definite and certain, but whether it contains the necessary elements of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet. Browning v. State,
320 S.C. 366, 465 S.E.2d 358 (1995).
An indictment phrased substantially in the language of the statute which creates and defines the offense is ordinarily sufficient. State v. Shoemaker, 276 S.C. 86, 275 S.E.2d 878 (1981).
Further, the sufficiency of an indictment "must be viewed with a practical eye; all the surrounding circumstances must be weighed before an accurate determination of whether a defendant was or was not prejudiced can be reached." State v. Adams, 277 S.C. 115, 125, 283
S.E.2d 582, 588 (1981).
An indictment charging in common law language without reference to the applicable statute in which the crime was codified constitutes adequate notice. State v. Brant, 278 S.C. 188, 293
S.E.2d 703 (1982).
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The failure to include an element of a statutory offense in the body of the indictment will not invalidate the indictment if specific reference is made to the statute in the body of the indictment.
State v. Owen, 346 S.C. 637, 552 S.E.2d 745 (2001). b) Time
Where time is not an essential element of the offense, the indictment need not specifically charge the precise time the offense allegedly occurred. State v. Ham, 259 S.C. 118, 191 S.E.2d 13
(1972); State v. Wingo, 304 S.C. 173, 403 S.E.2d 322 (Ct. App. 1991).
In such a case, however, the indictment must show the offense was committed prior to the finding of the indictment. State v. Gregory, 191 S.C. 212, 4 S.E.2d 1 (1939); State v. Wingo, 304
S.C. 173, 403 S.E.2d 322 (Ct. App. 1991). c) Description of Property
It is not necessary to describe the particular property taken in an armed robbery, especially where the evidence showed only an attempted armed robbery. State v. Hiott, 276 S.C. 72, 276 S.E.2d
163 (1981).
Where a defendant is charged with forging notes and mortgages, it is not necessary to set out the forged instruments verbatim in the indictment as long as they are sufficiently described. State v.
Simmons, 209 S.C. 531, 41 S.E.2d 217 (1947); S.C. Code Ann § 17-19-50 (1985) (averments of instrument of writing, print or figures in indictment). d) Victim's Name
When the charge is defrauding a partnership, it is not necessary to name the partners. State v.
Simmons, 209 S.C. 531, 41 S.E. 2d 217 (1947).
It is proper to allow the State to amend the indictment to show the true owner of stolen goods.
State v. Sweat, 221 S.C. 270, 70 S.E.2d 234 (1952); see also Richburg v. State, 260 S.C. 598,
197 S.E.2d 690 (1973) (incorrect name of murder victim); State v. McGill, 191 S.C. 1, 3 S.E.2d
257 (1939) (amendment of name of murder victim). e) Exceptions to Offense in Statute
An exception to a criminal offense must be negatived in the indictment only if the language of the exception must be regarded as descriptive of the offense. State v. Bermudez, 297 S.C. 230,
376 S.E.2d 258 (1989). If not, the exception is a matter of defense and need not be negatived in the indictment. State v. Bermudez, 297 S.C. 230, 376 S.E.2d 258 (1989).
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f) Surplusage
Where an indictment contains matters unnecessary to the description of an offense, the unnecessary language may be disregarded as surplusage, and no proof thereof is required. State v. Watts, 321 S.C. 158, 467 S.E.2d 272 (Ct. App. 1996) (citing State v. Alexander, 140 S.C. 325,
138 S.E. 835 (1927)); see also State v. Johnston, 149 S.C. 195, 146 S.E. 657 (1929) (the fact that an indictment contains unnecessary language does not render it defective). g) Murder
(1) Sufficiency
“Every indictment for murder shall be deemed and adjudged sufficient and good in law which, in addition to setting forth the time and place, together with a plain statement, divested of all useless phraseology, of the manner in which the death of the deceased was caused, charges that the defendant did feloniously, willfully and of his malice aforethought kill and murder the deceased.” S.C. Code Ann. § 17-19-30 (1985).
Allegations may state in the alternative the manner and instrumentality of death, or may state that death was caused by a means or instrumentality unknown. State v. Owens, 293 S.C. 161, 359
S.E.2d 275, cert. denied, 484 U.S. 982, 108 S. Ct. 496, 98 L. Ed. 2d 495 (1987).
A murder indictment is sufficient, even though it fails to allege malice aforethought, where the indictment references the murder statute. State v. Owen, 346 S.C. 637, 552 S.E.2d 745 (2001).
A murder indictment is not insufficient simply because it does not allege that the murder was committed “feloniously” and “willfully.” The General Assembly’s obvious intent with § 17-19-
30 was to simplify the writing of murder indictments, not “to burden the writing of murder indictments by requiring surplus words.” Joseph v. State, 351 S.C. 551, 571 S.E.2d 280 (2002).
(2) Capital Murder
A capital murder indictment need not allege the aggravating circumstances. State v. Butler, 277
S.C. 452, 290 S.E.2d 1 (1982). However, it is not improper to allege them. See State v.
Thompson, 278 S.C. 1, 292 S.E.2d 581, cert. denied, 456 U.S. 938, 102 S. Ct. 1996, 72 L. Ed. 2d
458 (1982).
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h) Burglary
An indictment for second degree burglary that failed to include any of the aggravating circumstances, which distinguished it from third degree burglary, was insufficient. Browning v.
State, 320 S.C. 366, 465 S.E.2d 358 (1995). i) Robbery
Indictment language "taking of goods and/or monies from the person or presence of" sufficiently alleged the substance of asportation, one of the elements of common-law robbery; because asportation merely meant the taking of an object with felonious intent. Locke v. State, 341 S.C.
54, 533 S.E.2d 324 (2000). j) Caption
(1) Generally
Because the caption of the indictment is not part of the finding of the grand jury, it can be corrected and amended at any time by the court. Wilson v. State, 327 S.C. 45, 488 S.E.2d 322
(1997).
Although the caption of an indictment should show the place and date at which the court was held and the indictment found, the omissions may be corrected by other parts of the indictment.
State v. Griffin, 277 S.C. 193, 285 S.E.2d 631 (1981).
The State may not support a conviction for an offense intended to be charged by relying on a caption to the exclusion of the language contained in the body of the indictment. State v.
Tabory, 262 S.C. 136, 202 S.E.2d 852 (1974). However, the caption can be relied on when scrutinizing an indictment for legal sufficiency when the caption is consistent with the charging language in the body of the indictment. State v. Wilkes , 353 S.C. 462, 578 S.E.2d 717 (2003).
(2) Conflict between Caption and Body
The plain language of an indictment is not to be ignored merely because its caption does not precisely conform with the wording on its face. Carter v. State, 329 S.C. 355, 495 S.E.2d 773
(1998); Crady v. State, 248 S.C. 522, 151 S.E.2d 670 (1966).
Where there is a conflict between the crime charged in the caption and that charged in the body, the defendant is properly tried and sentenced for the crime in the body of the indictment. Owen
69
v. State, 248 S.C. 233, 149 S.E.2d 600 (1966); Dukes v. State, 248 S.C. 227, 149 S.E.2d 598
(1966).
Where the body of the indictment contained five counts, but the back of it showed only four counts (in a different combination and order), and defendant pled guilty to all five counts, he was properly sentenced on those five. Crady v. State, 248 S.C. 522, 151 S.E.2d 670 (1966).
(a) Defendant's Misnomers
A defendant waives any misnomer in the indictment when he pleads to that indictment. State v.
O'Neal, 210 S.C. 305, 42 S.E.2d 523 (1947) (amendment to show defendant's real name allowed).
The fact the defendant's name is misspelled in one place on the indictment is not ground for an arrest of judgment. State v. Duestoe, 1 S.C. Law 377 (1 Bay) (1794). k) Other Counts
The language of each count must fully charge an offense and it is improper to look to the language of other counts to supplement. State v. Rector, 158 S.C. 212, 155 S.E. 385 (1930).
It is improper to look to other counts in the indictment to explain the intention of another. State v. Rector, 158 S.C. 212, 155 S.E. 385 (1930); State v. Banks, 84 S.C. 543, 66 S.E. 999 (1910).
3.
Capital Defendant
A capital defendant is entitled to be served with a copy of the indictment at least three days prior to trial. S.C. Code Ann. § 17-19-80.
This right is waived if not demanded at arraignment. State v. Saxon, 261 S.C. 523, 201 S.E.2d
114 (1973).
In determining when the three days have run, the day of demand is the first day. Therefore, if demand is made and a copy supplied on Monday, the defendant may properly be tried on
Thursday. State v. Wright, 140 S.C. 363, 138 S.E. 828 (1927). This case also indicates the defendant must tender the statutory copying fees when making his demand.
NOTE : It is doubtful that an indigent could be denied a copy for failure to tender these fees.
4.
JURISDICTION
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a) Presentment
When a trial court comes across an indictment that has not been true billed, the court may conduct an evidentiary hearing to determine whether the indictment was true billed; resubmit the indictment for grand jury consideration; effect a waiver of presentment of the indictment to the grand jury and, again, entertain the defendant’s plea; or simply allow withdrawal of the plea and proceed anew. State v. Grim, 341 S.C. 63, 533 S.E.2d 329 (2000). b) Multi-County Indictments
The victim was assaulted in County A and died in County B. The defendant was first indicted in
County A and then in County B. He was tried first and acquitted in County B. When the case was subsequently called in County A, his plea of autrefois acquit was overruled on the basis the first county to indict had exclusive jurisdiction. The Supreme Court reversed holding both counties have jurisdiction although defendant could have pled in abatement in County B and forced the first trial in County A. State v. Howell, 220 S.C. 178, 66 S.E.2d 701 (1951); see also
5.
ADEQUACY OF GRAND JURY PROCEEDINGS
There is a presumption of regularity in grand jury proceedings. Pringle v. State, 287 S.C. 409,
339 S.E.2d 127 (1986).
The fact the foreman signed the indictment gives rise to a presumption that the grand jury was sworn. State v. Griffin, 277 S.C. 193, 285 S.E.2d 631 (1981).
While it is preferable for the grand jury foreman to sign the true bill, the foreman’s signature is not essential to the validity of the indictment when it is in writing and published by the clerk.
Pringle v. State, 287 S.C. 409, 339 S.E.2d 127 (1986).
Where two separate indictments were prepared and then stapled together, and only the back of the second indictment was signed and stamped "True Bill," the defendant is properly indicted for both offenses. State v. Scott, 269 S.C. 438, 237 S.E.2d 886 (1977). a) Composition of Grand Jury
A grand jury organized under an unconstitutional act is not a lawful body, and its acts are nullities. State v. Edwards, 68 S.C. 318, 47 S.E. 395 (1904).
Where there are unqualified persons on the grand jury, the defendant should move to quash the indictment. State v. Bibbs, 192 S.C. 231, 6 S.E.2d 276 (1939). The presence of biased or
71
unqualified members does not render the actions of the grand jury void, however, and one may waive the right to complain either explicitly or by failing to raise the issue at the earliest possible time. State v. Hann, 196 S.C. 211, 12 S.E.2d 720 (1940) (express waiver); State v. Boyd, 56
S.C. 382, 34 S.E. 661 (1900).
No error in refusing a defendant's motion to quash the indictment on the basis a convicted felon was seated on the grand jury where the defendant did not show prejudice. State v. Plath, 277
S.C. 126, 284 S.E.2d 221 (1981).
The fact that older people were over-represented on the grand jury is not a ground for relief.
State v. Plath, 277 S.C. 126, 284 S.E.2d 221 (1981).
In order to show that an equal protection violation has occurred in the context of grand jury selection, the defendant must show that the procedure employed resulted in a substantial under-representation of the defendant’s race or of the identifiable group to which the defendant belongs. In order to show that an equal protection violation has occurred in grand jury selection:
(1) The defendant must establish that the group is one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or as applied.
(2) The defendant must prove the degree of underrepresentation, by comparing the proportion of the group in the total population to the proportion called to serve as grand jurors, over a significant period of time.
(3) A selection procedure that is susceptible of abuse or is not racially neutral supports the presumption of discrimination raised by the statistical showing. Castaneda v. Partida, 430 U.S. 482, 97 S. Ct. 1272, 51 L. Ed. 2d 498
(1977); State v. George, 331 S.C. 342, 503 S.E.2d 168
(1998).
(4) Once the defendant has shown substantial underrepresentation of his group, he has made out a prima facie case of discriminatory purpose, and the burden then shifts to the State to rebut that case. State v. George, 331
72
S.C. 342, 503 S.E.2d 168 (1998).
6.
MOTIONS TO QUASH THE INDICTMENT
a) Generally
Motions to quash an indictment must be made prior to the swearing of the jury when there are defects apparent on the face of the indictment. S.C. Code Ann. § 17-19-90 (1985).
A motion to quash an indictment addresses only the sufficiency of the indictment, not the sufficiency of the State’s evidence. State v. Crenshaw, 274 S.C. 475, 266 S.E.2d 61 (1980), cert. denied, 449 U.S. 883, 101 S. Ct. 236, 66 L. Ed. 2d 108 (1980); State v. Garrett, 305 S.C. 203,
406 S.E.2d 910 (Ct. App. 1991). b) Examples of Sufficient Grounds
Indictment was validly quashed where the indictment did not sufficiently charge an offense.
State v. Blackmon, 304 S.C. 270, 403 S.E.2d 660 (1991).
Indictment should have been quashed where the solicitor was the only witness before the grand jury. State v. Anderson, 312 S.C. 185, 439 S.E.2d 835 (1993).
Indictment should have been quashed where it was returned by a grand jury which did not consist of only qualified jurors. State v. Rector, 158 S.C. 212, 155 S.E. 385 (1930). c) Examples of Insufficient Grounds
The following grounds have been held insufficient to warrant quashing an indictment:
Speculation regarding potential abuses in grand jury proceedings cannot substitute as actual evidence of abuse to quash an indictment. State v. Thompson, 305 S.C. 496, 409 S.E.2d 420 (Ct.
App. 1991).
Where an indictment was not stamped "True Bill," but was signed by the foreman and evidence showed that the grand jury considered and acted on all indictments on that date, the lack of a stamp was a scrivener's error and the trial court correctly denied the motion to quash. See State v. Bultron, 318 S.C. 323, 457 S.E.2d 616 (Ct. App. 1995).
73
While it is preferable for the grand jury foreman to sign the True Billed indictment, the signature of the foreman is not essential to the validity of the indictment where it is in writing and published by the clerk. Pringle v. State, 287 S.C. 409, 339 S.E.2d 127 (1986).
The validity of an indictment is not affected by the character of the evidence considered by the grand jury and, if valid on its face, the indictment may not be challenged on the ground that the grand jury acted on the basis of incompetent evidence. United States v. Callandra, 414 U.S. 338,
94 S. Ct. 613, 38 L. Ed. 2d 561 (1974); State v. Williams, 301 S.C. 369, 392 S.E.2d 181 (1990);
State v. Williams, 263 S.C. 290, 210 S.E.2d 298 (1974) (hearsay); State v. Sanders, 251 S.C.
431, 163 S.E.2d 220 (1968) (no right to poll grand jurors to determine whether at least twelve found sufficient evidence);
The trial court properly refused a motion to quash the indictment based on pre-trial publicity.
State v. Holland, 261 S.C. 488, 201 S.E.2d 118 (1973);
Trial court was within its discretion to deny the motion to quash where a grand juror was a convicted felon because the defendant failed to show prejudice. State v. Plath, 277 S.C. 126, 284
S.E.2d 221 (1981).
7.
MOTIONS TO AMEND
a) Generally
The State is generally allowed to amend the indictment where the amendment does not change the nature of the offense charged. Motions to amend may be made prior to trial or during trial to conform the indictment to the proof. S.C. Code Ann. § 17-19-100 (1985); State v. Riddle, 301
S.C. 211, 391 S.E.2d 253 (1990).
This statute is to be given a liberal, non-technical application, and amendments which do not change the nature of the crime charged should be allowed. State v. Quarles, 261 S.C. 413, 200
S.E.2d 384 (1973).
Amendments to an indictment are permissible if: 1) they do not change the nature of the offense;
2) the charge is a lesser included offense of the crime charged on the indictment; or 3) the defendant waives presentment to the grand jury and pleads guilty. State v. Myers, 313 S.C. 391,
393, 438 S.E.2d 236, 237 (1993).
If the amendment operates as a surprise to the defendant, he should be granted a continuance upon his request. S.C. Code Ann. § 17-19-100 (1985).
Under some circumstances, such as where the proof shows a date other than that alleged in the indictment and the defendant relies on an alibi defense, the appropriate action should be to allow
74
the State to amend, declare a mistrial, and try the case at a later date. State v. Pierce, 263 S.C.
23, 207 S.E.2d 414 (1974).
An amendment that increases the penalty changes the nature of the offense. Weinhauer v. State,
334 S.C. 327, 513 S.E.2d 840 (1999) (amendment of the indictment for second degree burglary to reflect that the burglary was committed at night changed the classification of the offense from non-violent to violent and was, thus, a material change); Clair v. State, 324 S.C. 144, 478 S.E.2d
54 (1996) (amendment to the indictment, charging defendant with trafficking in cocaine weighing more than 100 and less than 200 grams, by charging defendant with trafficking in cocaine weighing more than 200 and less than 400 grams, changed nature of offense). b) Examples of Prohibited Amendments
The following amendments have been held to change the nature of the offense charged:
It was improper to amend the indictment for assault with intent to commit third-degree criminal sexual conduct to reflect a charge of assault with intent to commit first-degree criminal sexual conduct. Hope v. State, 328 S.C. 78, 492 S.E.2d 76 (1997).
Amendment to the indictment charging the defendant with trafficking in cocaine weighing more than 100 grams but less than 200 grams to reflect a charge of trafficking in cocaine weighing more than 200 grams but less than 400 grams changed the nature of the offense and increased the penalty. Clair v. State, 324 S.C. 144, 478 S.E.2d 54 (1996).
It was improper to amend an indictment for second degree arson to reflect a charge of arson of personal property since the defendant did not plead guilty and arson of personal property is not a lesser-included offense of second degree arson. The amendment changed the nature of the offense. State v. Myers, 313 S.C. 391, 438 S.E.2d 236 (1993).
Amendment of the indictment charging the defendant with second degree burglary to reflect that the burglary occurred in the nighttime changed the offense from non-violent to violent and thus, increased the penalty. Weinhauer v. State, 334 S.C. 327, 513 S.E.2d 840 (1999).
It was improper to amend a first-degree burglary indictment by substituting one aggravating circumstance for another. Although the amendment did not change the offense to one with increased penalty, the amendment was a material change with modified what the defendant was called upon to answer. State v. Lynch, 344 S.C. 635, 545 S.E.2d 511 (2001); see State v.
Guthrie, __ S.C. __, 572 S.E.2d 309 (Ct. App. 2002) (an amendment of a first-degree burglary indictment to allege an additional aggravating circumstance was an impermissible amendment).
8.
MOTIONS TO STRIKE
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It appears that portions of an indictment which constitute surplusage or which do not change the nature of the offense may be striken from the indictment. State v. Sanders, 251 S.C. 431, 163
S.E.2d 220 (1968) (language in the indictment charging the defendant of forgery "with force and arms" denotes the use of violence and it should have been stricken from the forgery indictment).
However, surplusage in an indictment may be treated as immaterial and, thus, there would be no need to strike the surplusage. State v. Alexander, 140 S.C. 325, 138 S.E. 835 (1927) (any words not absolutely necessary to the indictment would be treated as immaterial, and therefore need not be stricken out); State v. Watts, 321 S.C. 158, 467 S.E.2d 272 (Ct. App. 1996) (where an indictment contains matters unnecessary to the description of an offense, the unnecessary language may be disregarded as surplusage).
The State may elect to strike portions of an indictment, and then proceed on the remaining charges, where the indictment erroneously charges a defendant with misjoined statutory and common law offenses. State v. Horton, 209 S.C. 151, 39 S.E.2d 222 (1946) (indictment erroneously charged defendant with statutory and common law rape).
J.
ARRAIGNMENT
1.
GENERALLY
An arraignment consists of calling the defendant to court, reading the indictment to the defendant so that the defendant may understand the charge against the defendant, and requesting that the defendant enter an initial plea of guilty or not guilty. See State v. Brock, 61 S.C. 141, 39 S.E.
359 (1901).
Arraignment should precede selection of the jury. State v. Knotts, 129 S.C. 357, 123 S.E. 828
(1924).
While it is not necessary to arraign a misdemeanor, all persons charged with felonies should be arraigned. State v. Brock, 61 S.C. 141, 39 S.E. 359 (1901).
There is authority for the proposition that failure to arraign a defendant charged with an offense listed in S.C. Code Ann. § 14-7-1110 (Supp. 2001) (preemptory challenge statute) renders the conviction "invalid.” State v. Davis, 267 S.C. 283, 227 S.E.2d 662 (1976).
A valid arraignment can be conducted only by a court with proper jurisdiction over the offense.
Moorer v. State, 244 S.C. 102, 135 S.E.2d 713 (1964).
2.
SUCCESSIVE TRIALS
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On retrial after reversal of a conviction, it is not necessary to re-arraign the defendant where the same indictment is used. State v. Young, 319 S.C. 33, 459 S.E.2d 84 (1995); State v. Hewitt,
106 S.C. 409, 34 S.E.2d 764 (1945).
3.
SUPERSEDING INDICTMENTS
Where the defendant was properly arraigned on the first indictment, but was never arraigned on the superseding indictment containing identical charges, there was no violation of due process and the conviction was still valid. State v. Davis, 267 S.C. 283, 227 S.E.2d 662 (1976).
4.
WAIVER OF ARRAIGNMENT/TRIALS IN ABSENTIA
Arraignment is neither a constitutional nor a statutory right, but merely a formality. Thus, arraignment is subject to waiver. State v. Arial, 311 S.C. 35, 426 S.E.2d 751 (1993) (by proceeding to trial, defendant waived any objections to the lack of his arraignment).
In a misdemeanor case where the defendant voluntarily entered a not guilty plea and proceeded to trial without objection, the defendant waived any defect resulting from the failure to conduct a formal arraignment. State v. Mayfield, 235 S.C. 11, 109 S.E.2d 716 (1959); see also State v.
Brock, 61 S.C. 141, 39 S.E. 359 (1901).
A defendant may voluntarily waive the right to be present and may be tried in absentia upon a finding by the trial court that such person has received a notice of the right to be present and that a warning was given that the trial would proceed in the defendant’s absence upon a failure to attend. Rule 16, SCRCrimP.
Although arraignment is merely a formality, it is unclear whether a felon, particularly one charged with an offense listed in S.C. Code Ann. § 14-7-1110 (Supp. 2001) (peremptory challenge statute), can properly be tried in his absence unless he was previously arraigned. See
K.
PLEAS IN BAR
1.
GENERALLY
South Carolina recognizes two types of pleas in bar of prosecution: double jeopardy, U. S.
Const. amend. V, S.C. Const. art. I, § 12, S.C. Code Ann. § 17-23-10 (1985), and denial of the right to a speedy trial, U.S. Const. amend. VI, S.C. Const. art. I, § 14.
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2.
DOUBLE JEOPARDY
a) Generally
The double jeopardy clauses of the State and Federal constitutions afford the criminal defendant three protections: (1) against a second prosecution after an acquittal; (2) against a second prosecution after a conviction; and (3) against multiple punishments for the same offense. State v. Easler, 327 S.C. 121, 489 S.E.2d 617 (1997); State v. Blick, 325 S.C. 636, 481 S.E.2d 452 (Ct.
App. 1997) (administrative punishment by prison officials did not render subsequent judicial proceedings violative of the prohibition against double jeopardy).
Under traditional double jeopardy analysis, multiple punishment is not prohibited where each offense requires proof of a fact that the other does not. Thus, to determine whether there has been a double jeopardy violation, you look to see if the offenses have the same elements or if one offense is a lesser-included offense of the other. Blockburger v. United States, 284 U.S. 299, 52
S. Ct. 180, 76 L. Ed. 306 (1932); State v. Easler, 327 S.C. 121, 489 S.E.2d 617 (1997). b) Successive prosecutions
(1) Generally
Jeopardy attaches in a jury trial when the jury is impaneled and sworn. Crist v. Bretz, 437 U.S.
28, 98 S. Ct. 2156, 57 L. Ed. 2d 24 (1978); State v. Stephenson, 54 S.C. 234, 32 S.E. 305 (1899).
Jeopardy attaches in a bench trial when the first evidence is heard by the trial judge. Serfass v.
United States, 420 U.S. 377, 95 S. Ct. 1055, 43 L. Ed. 2d 265 (1975).
(2) Retrial.
Double jeopardy does not bar retrial after a mistrial if the mistrial was required by "manifest necessity." United States v. Sanford, 429 U.S. 14, 97 S. Ct. 20, 50 L. Ed. 2d 17 (1976); State v.
Prince, 279 S.C. 30, 301 S.E.2d 471 (1983).
Where the judge granted a mistrial after the jury had deliberated for a full day after a two day trial and had been given a charge pursuant to Allen v. United States, 164 U.S. 492 (1896), the mistrial constituted manifest necessity and retrial was not barred by double jeopardy. State v.
Robinson , 360 S.C. 187, 600 S.E.2d 100 (Ct. App. 2004).
The discovery of the murder victim’s body during the first trial meets the standard of “manifest necessity” so as to declare a mistrial because the evidence is extremely important and has the
78
possibility of exonerating as well as inculpating the accused. State v. Baum , 355 S.C. 209, 584
S.E.2d 419 (Ct. App. 2003).
The State’s failure to prove a complete chain of custody and the grant of defendant’s mistrial motion does not preclude a second trial since the prosecutors neglect did not rise to the level of goading or provoking defendant to move for a mistrial. State v. Mathis , 359 S.C. 450, 597
S.E.2d 872 (Ct. App. 2004).
Double jeopardy does not bar retrial where a conviction is set aside for a trial error. Lockhart v.
Nelson, 488 U.S. 33, 109 S. Ct. 285, 102 L. Ed. 2d 265 (1988).
Where the sole ground for setting aside the conviction is that there was insufficient evidence to support the conviction, then double jeopardy bars retrial. Lockhart v. Nelson, 488 U.S. 33, 109
S. Ct. 285, 102 L. Ed. 2d 265 (1988); State v. Gregorie, 339 S.C. 2, 528 S.E.2d 77 (2000).
Double jeopardy does prohibit seeking the death penalty on retrial if the death sentence was rejected by the jury in the first trial. This prohibition is limited to capital cases. Monge v.
California, 524 U.S. 721, 118 S. Ct. 2246, 141 L. Ed. 2d 615 (1998).
(3) Subsequent civil penalty
While double jeopardy usually operates to bar successive or multiple criminal prosecutions, it may also prevent the government from subjecting a defendant to both a criminal punishment and a civil sanction. State v. Price, 333 S.C. 267, 510 S.E.2d 215 (1998) (administrative suspension of a driver’s license for refusal to submit to a breath alcohol content test was not so punitive in purpose or effect as to constitute a criminal penalty for purposes of double jeopardy).
The Double Jeopardy Clause does not prohibit the imposition of any additional sanction that could be described as a punishment. The Clause protects against the imposition of multiple criminal punishments for the same offense, and only then when such occurs in successive pleadings. Hudson v. United States, 522 U.S. 93, 118 S. Ct. 488, 139 L. Ed. 2d 450 (1997).
Whether a punishment is civil or criminal, is initially a matter of statutory construction. A court must first ask whether the legislature, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other. Even where the legislature indicates that the penalty is civil, courts may further inquire into whether the statutory scheme was so punitive as to transform what was intended as a civil remedy into a criminal penalty.
Hudson v. United States, 522 U.S. 93, 118 S. Ct. 488, 139 L. Ed. 2d 450 (1997); State v. Price,
333 S.C. 267, 510 S.E.2d 215 (1998).
In determining whether a civil sanction is so punitive in nature as to have been transformed into a criminal sanction for the purposes of double jeopardy, it appears that trial courts should evaluate the following: (1) whether the sanction involves an affirmative disability or restraint;
79
(2) whether it has historically been regarded as a punishment; (3) whether it comes into play only on a finding of scienter; (4) whether its operation will promote the traditional aims of punishment B retribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether an alternative purpose to which it may rationally be connected is assignable for it; and (7) whether it appears excessive in relation to the alternative purpose assigned.
Hudson v. United States, 522 U.S. 93, 118 S. Ct. 488, 139 L. Ed. 2d 450 (1997); State v. Price,
333 S.C. 267, 510 S.E.2d 215 (1998)(appellate court standard).
(4) Serial Prosecutions
The Double Jeopardy Clause incorporates the doctrine of collateral estoppel. Thus, the collateral estoppel effect of the double jeopardy clause may bar later prosecutions where the State lost earlier prosecutions on the same facts. United States v. Dixon, 509 U.S. 688, 113 S. Ct. 2849,
125 L. Ed. 2d 556 (1993); Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469
(1970) (where defendant was acquitted on the charge of robbing one of several participants in a card game, defendant's double jeopardy rights were implicated when the State later chose to prosecute the robberies of the other participants separately).
Where the facts relied on to convict a defendant of trafficking in an earlier prosecution were not the same as the facts relied on to establish a later conviction for conspiracy to traffic did not implicate double jeopardy even though trial judge in first trial instructed jury that conspiracy was one way to prove the charge. State v. Gordon , 356 S.C. 143, 588 S.E.2d 105 (2003). c) Multiple Punishments
(1) Cumulative Punishment Authorized by Legislature
It is presumed that a legislature does not intend to impose two punishments where two statutory provisions proscribe the "same offense." The test for determining whether there are two offenses is whether each of the statutory provisions requires proof of a fact which the other does not.
Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). The United
States Supreme Court has often concluded that two statutes define the "same offense" where one is a lesser included offense of the other. Rutledge v. United States, 517 U.S. 292, 116 S. Ct.
1241, 134 L. Ed. 2d 419 (1996).
Where the legislature has specifically authorized cumulative punishment, the double jeopardy clauses are not offended. Missouri v. Hunter, 459 U.S. 359, 103 S. Ct. 673, 74 L. Ed. 2d 535
(1983).
To determine whether the legislature intended multiple punishments under different statutes where the intent is not otherwise clear from the face of the statute or its legislative history, the
80
test is whether each statute requires proof of a fact which the other does not. Blockburger v.
United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932); Matthews v. State, 300 S.C.
238, 387 S.E.2d 258 (1990).
(2) Greater and Lesser-Included Offenses
The prohibition against multiple punishments means a person may not be sentenced for both greater and lesser-included offenses arising out of the same incident. State v. Harkness, 288 S.C.
136, 341 S.E.2d 631 (1986).
In determining whether one crime is a lesser included offense of another, the test is whether the greater of the two offenses includes all of the elements of the lesser offense. If the lesser offense includes an element which is not included in the greater offense, then the lesser offense is not included in the greater offense. Hope v. State, 328 S.C. 78, 492 S.E.2d 76 (1997); State v.
Bland, 318 S.C. 315, 457 S.E.2d 611 (1995).
Although it is proper to submit both greater and lesser offenses to the jury, the defendant may not be sentenced for both offenses. The trial judge should instruct the jury that it may not find guilt on both the greater and lesser-included offenses. It appears that if this situation arises, the proper action is to sentence on the greater and vacate the conviction on the lesser. Matthews v. State,
300 S.C. 238, 387 S.E. 2d 258 (1990); State v. Scipio, 283 S.C. 124, 322 S.E. 2d 15 (1984).
There is no double jeopardy violation where a defendant is convicted of conspiracy and the substantive offense relating to the conspiracy. Harden v. State, 360 S.C. 405, 602 S.E.2d 48
(2004).
3.
SPEEDY TRIAL
a) Generally
A defendant has a right to a speedy trial under both the Federal and State constitutions. U. S.
Const. amend. VI; S.C. Const. art. I, § 14; State v. Chapman, 289 S.C. 42, 344 S.E.2d 611
(1986).
Whether or not a person accused of a crime has been denied his constitutional right to a speedy trial is a question to be answered in the light of the circumstances of each case. State v. Brazell,
325 S.C. 65, 480 S.E.2d 64 (1997).
In order to determine whether the defendant has been denied his constitutional speedy trial rights, a four part test is applied: (1) the length of the delay; (2) the reason the State asserts to justify the delay; (3) when and how the defendant asserted his right to a speedy trial; and (4)
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prejudice to the defendant. State v. Brazell, 325 S.C. 65, 480 S.E.2d 64 (1997) (citing Barker v.
Wingo, 407 U. S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972)); State v. Chapman, 289 S.C. 42,
344 S.E.2d 611 (1986). b) Pre-Indictment Delay
The Due Process Clause plays a limited role in protecting against oppressive pre-indictment delay. In order to determine if a pre-indictment delay has violated the Due Process Clause:
The defendant first has the burden of proving the pre-indictment delay caused substantial actual prejudice to the defendant’s right to a fair trial.
Second, if the defendant shows actual prejudice, the court must consider the prosecution's reasons for the delay and balance the justification for delay with any prejudice to the defendant.
If the court finds the delay was an intentional device to gain tactical advantage over the accused, the court should dismiss the indictment. State v. Brazell, 325 S.C. 65, 480 S.E.2d 64 (1997). c) Length of Delay
When calculating the length of the delay, the Court should only consider that time when the defendant's liberty was restricted and/or the defendant was under indictment. United States v.
Loud Hawk, 474 U.S. 302, 106 S. Ct. 648, 88 L. Ed. 2d 640 (1986); State v. Chapman, 289 S.C.
42, 344 S.E.2d 611 (1986). d) Reasons for Delay
Only that which is unreasonable, unnecessary, or the result of willful neglect should be considered as violative of the right to a speedy trial. State v. Chapman, 289 S.C. 42, 344 S.E.2d
611 (1986) (delay which was the result of docket congestion and the State's inability to locate a witness did not constitute unreasonable delay). e) Assertion of Right
The court found no denial of the right when the defendant's attorney consented to a continuance and did not assert the right for twenty-eight months. State v. Waites, 270 S.C. 104, 240 S.E.2d
651 (1978). f) Prejudice
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The burden is on the defendant to prove prejudice; a bald allegation will not suffice. State v.
Waites, 270 S.C. 104, 240 S.E.2d 651 (1978).
L.
GUILTY PLEA
1.
No Constitutional Right to Plea
A defendant has no constitutional right to plead guilty. Further, there is no constitutional impediment to a trial judge’s refusal to accept a guilty plea since the result is that the accused is subject to a trial by an impartial jury, which is a constitutional guarantee. U.S. Const. art. III, §
2; S.C. Const. art. I, § 14; State v. Easler, 322 S.C. 333, 471 S.E.2d 745 (Ct. App. 1996) aff’d as modified 327 S.C. 121, 489 S.E.2d 617 (1997).
2.
Requirements for guilty plea
The Due Process Clause requires guilty pleas be entered into voluntarily, knowingly and intelligently. Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L.Ed.2d 274 (1969).
The trial court must be certain that the defendant understands the charges and the consequences of the plea. The record must indicate the factual basis for the plea. Boykin v. Alabama, 395
U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); Roddy v. State, 339 S.C. 29, 528 S.E.2d 418
(2000); State v. Armstrong, 263 S.C. 594, 211 S.E.2d 889 (1975).
Before a court can accept a guilty plea, a defendant must be advised of the constitutional rights he or she is waiving. In addition to the requirements of Boykin, a defendant entering a guilty plea must be aware of the nature and crucial elements of the offense, the maximum and any mandatory minimum penalty, and the nature of the constitutional rights being waived. Anderson v. State, 342 S.C. 54, 535 S.E.2d 646 (2000); State v. Hazel, 275 S.C. 392, 271 S.E.2d 602
(1980); Dover v. State, 304 S.C. 433, 405 S.E.2d 391 (1991).
So long as there is a sufficient factual basis to support the crime for which the defendant was indicted, a plea to any lesser-included offense is allowed despite the fact that the factual basis for the plea does not precisely comport with the lesser offense. Anderson v. State, 342 S.C. 54, 535
S.E.2d 649 (2000).
5 th
and 6 th
Amendments do not require the State, before entering into a binding plea agreement with a criminal defendant, to disclose impeachment information relating to any informants or other witnesses. United States v. Ruiz, 536 U.S. 622, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002).
There is no need for the judge at a guilty plea where the defendant is proceeding pro se to inform the defendant that he may be waiving a valid defense and that he is being deprived of an
83
independent opinion on whether it is wise to plead guilty. The judge merely needs to inform the defendant of the charges against him, his right to be counseled regarding the plea, and the range of punishments attendant upon the entry of the guilty plea. Iowa v. Tovar, ___ U.S.___, 124
S.Ct. 1379, 158 L.Ed.2d 209 (2004).
M.
COMPETENCY AND SANITY
1.
GENERALLY
The question of the defendant's competency arises in two contexts: (1) whether he is competent to stand trial and (2) whether his mental condition at the time of the offense affects his culpability. The standards for determining these two issues are very different. Courts should also be careful to distinguish mental illness (which may come and go) from mental retardation (a permanent state), and recognize that a mentally retarded person may also suffer from mental illness. See S.C. Code Ann. § 44-23-410 (Supp. 2001).
2.
COMPETENCY TO STAND TRIAL
a) Generally
The test for determining whether a criminal defendant is competent to stand trial is "whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as a factual understanding of the proceedings against him." State v. Reed, 332 S.C. 35, 503 S.E.2d 747 (1998) (quoting Dusky v. United
States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960)); State v. Bell, 293 S.C. 391, 360
S.E.2d 706 (1987), cert. denied, 484 U.S. 1020, 108 S. Ct. 734, 98 L. Ed. 2d 682 (1988) (same standard applies to competency to continue trial).
The test is not whether the defendant is actually cooperating with his lawyer, but rather if he has the mental capacity to do so. State v. Reed, 332 S.C. 35, 503 S.E.2d 747 (1998); State v. Bell,
293 S.C. 391, 360 S.E.2d 706 (1987), cert. denied, 484 U.S. 1020, 108 S. Ct. 734, 98 L. Ed. 2d
682 (1988).
Even when the defendant is competent at the commencement of the trial, a trial court must always be alert to circumstances suggesting a change that would render the accused unable to meet the standards of competence to stand trial. Drope v. Missouri, 420 U.S. 162, 95 S. Ct. 896,
43 L. Ed. 2d 103 (1975).
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b) Statutory Authority
S.C. Code Ann. § 44-23-410 (Supp. 2001) provides that whenever a circuit court judge has reason to believe that a person on trial before the judge, charged with the commission of a criminal offense or civil contempt, is not fit to stand trial because the person lacks the capacity to understand the proceedings against him or to assist in his own defense as a result of a lack of mental capacity, the judge shall: order examination of the person by two examiners designated by the Department of Mental
Health if the person is suspected of having a mental illness or designated by the Department of
Disabilities and Special Needs if the person is suspected of being mentally retarded or having a related disability or by both sets of examiners if the person is suspected of having both mental illness and mental retardation or a related disability; the examination must be made within fifteen days after the receipt of the court's order and may be conducted in any suitable place unless otherwise designated by the court; or order the person committed for examination and observation to an appropriate facility of the
Department of Mental Health or the Department of Disabilities and Special Needs for a period not to exceed fifteen days.
Where insanity is interposed as a defense in a criminal prosecution, compulsory examination of the accused by experts for the purpose of determining his mental condition does not violate either the constitutional protection against self-incrimination or the constitutional guaranty of due process of law. State v. Locklair, 341 S.C. 352, 535 S.E.2d 420 (2000); State v. Myers, 220
S.C. 309, 67 S.E.2d 506 (1951). c) Burden of Proof
The defendant bears the burden of proving his incompetence by a preponderance of the evidence.
State v. Reed, 332 S.C. 35, 503 S.E.2d 747 (1998); State v. Nance, 320 S.C. 501, 466 S.E.2d
349, cert. denied, 518 U.S. 1026, 116 S. Ct. 2566, 135 L. Ed. 2d 1083 (1996). d) Guilty Plea
Due process prohibits the conviction of a person who is mentally incompetent. Jeter v. State,
308 S.C. 230, 417 S.E.2d 594 (1992) (citing Bishop v. United States, 350 U.S. 961, 76 S. Ct.
440, 100 L. Ed. 835 (1956)). This right cannot be waived by a guilty plea. Jeter v. State, 308
S.C. 230, 417 S.E.2d 594 (1992) (citing Pate v. Robinson, 383 U.S. 375, 86 S. Ct. 836, 15 L. Ed.
2d 815 (1966)).
The test of competency to enter a plea is the same as required to stand trial. Jeter v. State, 308
S.C. 230, 417 S.E.2d 594 (1992).
85
e) Procedure
The decision to order a competency examination rests in the trial judge's discretion. State v.
Drayton, 270 S.C. 582, 243 S.E.2d 458 (1978); State v. Bradshaw, 269 S.C. 642, 239 S.E.2d 652
(1977); State v. Buchanan, 302 S.C. 83, 394 S.E.2d 1 (Ct. App. 1990).
The court shall set a competency hearing after ordering an evaluation of defendant's competency under S.C. Code Ann. § 44-23-410. State v. Blair, 275 S.C. 529, 273 S.E.2d 536 (1981). f) Time
Where a defendant has been found competent, the mere fact that time elapses between the determination and the trial does not automatically require a re-evaluation. State v. Adams, 279
S.C. 228, 306 S.E.2d 208 (1983) (time lapse of two years); State v. Drayton, 270 S.C. 582, 243
S.E.2d 458 (1978) (time lapse of two and one half months). g) Constitutional and Evidentiary Issues
A custodial interrogation conducted by a court-appointed psychiatrist raises the same concerns as a custodial interrogation conducted by a police officer and therefore must be preceded by the same warnings Miranda requires a police officer to give. State v. Woomer, 278 S.C. 468, 299
S.E.2d 317 (1982).
Where the defendant introduces psychiatric evidence, however, the state may introduce in rebuttal psychiatric evidence obtained without compliance with the Fifth Amendment so long as the defendant's Sixth Amendment rights were respected. See Buchanan v. Kentucky, 483 U.S.
402, 107 S. Ct. 2906, 97 L. Ed. 2d 336 (1987).
Specific questions and answers on an MMPI, given during a competency examination, are not admissible. Hudgens v. Moore, 337 S.C. 333, 524 S.E.2d 105 (1999).
3.
SANITY AT THE TIME OF OFFENSE
a) Generally
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In South Carolina, the M'Naughten test is the standard for determining whether a defendant's mental condition at the time of the offense rendered him criminally responsible. S.C. Code Ann.
§ 17-24-10 (1985 & Supp. 2001); State v. South, 310 S.C. 504, 427 S.E.2d 666 (1993).
(1) Affirmative Defense
Insanity is an affirmative defense to a prosecution for a crime. State v. Lewis, 328 S.C. 273, 494
S.E.2d 115 (1997).
South Carolina Code Ann. § 17-24-10(A) (1985 & Supp. 2001) provides that “[i]t is an affirmative defense to a prosecution for a crime that, at the time of the commission of the act constituting the offense, the defendant, as a result of mental disease or defect, lacked the capacity to distinguish moral or legal right from moral or legal wrong or to recognize the particular act charged as morally or legally wrong.”
(2) Burden of Proof
The defendant has the burden of proving the defense of insanity by a preponderance of the evidence. S.C. Code Ann. § 17-24-10(B) (1985 & Supp. 2001).
In every criminal case, it is presumed the defendant is sane. State v. Lewis, 328 S.C. 273, 494
S.E.2d 115 (1997).
(3) Evidence
Evidence of a mental disease or defect that is manifested only by repeated criminal or other antisocial conduct is not sufficient to establish the defense of insanity. S.C. Code Ann. §
17-24-10(C) (1985 & Supp. 2001).
(4) Not Guilty by Reason of Insanity
For commitment of a defendant found not guilty by reason of insanity, see S.C. Code Ann. § 17-
24-40 (1985).
For length of confinement or supervision of defendant found not guilty by reason of insanity, see
S.C. Code Ann. § 17-24-50 (1985). b) Guilty But Mentally Ill
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South Carolina also recognizes a verdict of "guilty but mentally ill." S.C. Code Ann. § 17-24-20
(1985 & Supp. 2001).
(1) Generally
A defendant is guilty but mentally ill if, at the time of the commission of the act constituting the offense, he had the capacity to distinguish right from wrong or to recognize his act as being wrong as defined in section 17-24-10(A), but because of mental disease or defect he lacked sufficient capacity to conform his conduct to the requirements of the law. S.C. Code Ann. §
17-24-20(A) (1985 & Supp. 2001).
(2) Burden of Proof
To return a verdict of "guilty but mentally ill" the burden of proof is upon the State to prove beyond a reasonable doubt to the trier of fact that the defendant committed the crime, and the burden of proof is upon the defendant to prove by a preponderance of evidence that when he committed the crime he was mentally ill as defined in South Carolina Code Ann. § 17-24-20 (A).
S.C. Code Ann. § 17-24-20(B) (1985 & Supp. 2001).
(3) Sentencing
A verdict of guilty but mentally ill does not absolve a defendant of guilt. State v. Hornsby, 326
S.C. 121, 484 S.E.2d 869 (1997).
A defendant found guilty but mentally ill must be sentenced as provided by law for a defendant found guilty. State v. Hornsby, 326 S.C. 121, 484 S.E.2d 869 (1997).
However, under the guilty but mentally ill statute, a defendant found guilty but mentally ill is entitled to immediate treatment and evaluation. S.C. Code Ann. § 17-24-70 (1985 & Supp.
2001); State v. Hornsby, 326 S.C. 121, 484 S.E.2d 869 (1997). c) Funds for Experts
It appears where an indigent defendant seeks psychiatric assistance to establish an insanity defense and there is evidence this is a potentially viable defense, the state is constitutionally mandated to provide the defendant with access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.
See Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985) (cited with approval by Bailey v. State, 309 S.C. 455, 424 S.E.2d 503 (1992)).
88
d) Caps on Fees
S.C. Code Ann. § 17-3-80 (1985 and Supp. 2001) appears to place a cap on expert witness fees of $2,000 in a non-capital case that are to be paid by the State, and requires an order authorizing expenditure of these fees prior to incurring these expenses.
In capital cases the amount paid by the State is capped at $20,000, and the statute allows authorizations to be made nunc pro tunc as well as prior to the incursion of the expense. S.C.
Code Ann. § 16-3-26(C) (1985 & Supp. 2001).
Under Bailey v. State, 309 S.C. 455, 424 S.E.2d 503 (1992), the county would appear to be responsible for necessary expert fees in excess of the caps. e) Privileged Communications
The attorney-client privilege extends to communications between the client and a psychiatrist retained to aid in the preparation of a case. State v. Thompson, 329 S.C. 72, 495 S.E.2d 437
(1998); State v. Hitopoulus, 279 S.C. 549, 309 S.E.2d 747 (1983).
(1) Balancing Test
A balancing test has been adopted to determine the extent to which the attorney-client privilege extends to a communications by a client to a non-lawyer. Under this test, a court, in determining whether the attorney-client privilege extends to communications between a client and a non-lawyer, must balance two factors: the need of the attorney for the assistance of the non-lawyer to effectively represent his client, and the increased potential for inaccuracy in the search for truth as the trier of fact is deprived of valuable witnesses. State v. Thompson, 329 S.C. 72, 495 S.E.2d 437 (1998).
However, before reaching this test, a court must ascertain whether the communication is confidential in nature. State v. Thompson, 329 S.C. 72, 495 S.E.2d 437 (1998).
4.
WAIVER OF CONSTITUTIONAL RIGHTS
A waiver of a constitutional right requires a showing on the record that the defendant made the waiver knowingly and intelligently. State v. Arthur, 296 S.C. 495, 374 S.E.2d 291 (1988), modified, State v. Orr, 304 S.C. 185, 403 S.E.2d 623 (1991); see State v. Davis, 309 S.C. 326,
422 S.E.2d 133 (1992) (defendant competent to waive Miranda rights).
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Special care must be taken when obtaining waivers of important constitutional rights from any defendant, but especially from one who is mentally retarded. See State v. Arthur, 296 S.C. 495,
374 S.E.2d 291 (1988), modified, State v. Orr, 304 S.C. 185, 403 S.E.2d 623 (1991) (valid waiver not established by mentally retarded defendant's bare assent to leading questions).
Mental deficiency alone is not sufficient to render a defendant's waiver of his constitutional rights involuntary but is a factor to be considered along with all of the other attendant facts and circumstances in determining the voluntariness of the waiver. State v. Doby, 273 S.C. 704, 258
S.E.2d 896 (1979), cert. denied, 444 U.S. 1048, 100 S. Ct. 739, 62 L. Ed. 2d 735 (1980).
The knowing and voluntary waiver requirement must be satisfied by a full record, and may be established by colloquy between the court and the accused himself, between the court and counsel for the accused, or both. State v. Davis, 309 S.C. 326, 422 S.E.2d 133 (1992).
5.
CONFESSIONS
Mental deficiency alone is not sufficient to render a confession involuntary but is a factor to be considered along with all of the other attendant facts and circumstances in determining the voluntariness of the confession. State v. Doby, 273 S.C. 704, 258 S.E.2d 896 (1979), cert. denied, 444 U.S. 1048, 100 S. Ct. 739, 62 L. Ed. 2d 735 (1980); see also State v. Hughes, 336
S.C. 585, 521 S.E.2d 500 (1999) (a defendant's mental condition in and of itself does not render a statement involuntary in violation of due process).
The defendant is entitled to present evidence of his impairment to the jury for its consideration in determining voluntariness. State v. Callahan, 263 S.C. 35, 208 S.E.2d 284 (1974); State v. Cain,
246 S.C. 536, 144 S.E.2d 905 (1965).
N.
DISCOVERY
1.
GENERALLY
a) Brady
Suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. State v. Taylor, 333 S.C. 159, 508 S.E.2d 870 (1998) (citing
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)).
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A defendant can rely on the state’s assertion it has fully complied with Brady and need not do separate investigation to prove it has not done so. Banks v. Dretke, ___ U.S. ___, 124 S.Ct.
1256, 157 L.Ed.2d. 1166 (2004).
Where defendant makes a threshold showing that the evidence he seeks is material within the meaning of Brady and Rule 5, SCRCrimP, the trial judge should conduct a hearing. State v.
Proctor , ___ S.C. ___, 595 S.E.2d. 476 (2004).
(1) Disclosure
Brady only requires disclosure of evidence which is both favorable to the accused and material to guilt or punishment. State v. Taylor, 333 S.C. 159, 508 S.E.2d 870 (1998) (citing United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985)).
(2) Material
(a) Trial
Evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. United States v.
Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976); State v. Proctor , ___ S.C. ___, 595
S.E.2d. 476 (2004); State v. Taylor, 333 S.C. 159, 508 S.E.2d 870 (1998).
(b) Guilty Plea
The standard for deciding the materiality of a Brady violation in the context of a guilty plea is essentially the same standard that is applied in the context of a trial: A Brady violation is material when there is a reasonable probability that, but for the government's failure to disclose
Brady evidence, the defendant would have refused to plead guilty and gone to trial. Gibson v.
State, 334 S.C. 515, 514 S.E.2d 320 (1999).
(3) Reasonable Probability
A reasonable probability is a probability sufficient to undermine confidence in the outcome.
State v. Taylor, 333 S.C. 159, 508 S.E.2d 870 (1998) (citing United States v. Bagley, 473 U.S.
667, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985)).
(4) Duty to Disclose
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The prosecution has the duty to disclose regardless of whether the defendant makes a specific request. United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985); State v. Kennerly, 331 S.C. 442, 503 S.E.2d 214 (Ct. App. 1998), aff’d, 337 S.C. 617, 524 S.E.2d 837
(1999).
(5) Impeachment Evidence
Impeachment evidence, as well as exculpatory evidence, falls within the Brady rule. United
States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985); State v. Kennerly, 331
S.C. 442, 503 S.E.2d 214 (Ct. App. 1998), aff’d, 337 S.C. 617, 524 S.E.2d 837 (1999).
Evidence which may be used to impeach a witness's credibility is favorable to an accused and should be disclosed. State v. Hinson, 293 S.C. 406, 361 S.E.2d 120 (1987) (citing Giglio v.
United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972)).
The State's nondisclosure of a promise of immunity to a material witness, when reliability is outcome determinative, may be a violation of due process. State v. Johnson, 306 S.C. 119, 410
S.E.2d 547 (1991) (citing Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104
(1972)). b) Rule 5, SCRCrimP
(1) Generally
Rule 5, SCRCrimP, governs the disclosure of evidence in criminal cases.
The general rule is that absent statute or court rule, there is no right to discovery in a criminal case. State v. Childs, 299 S.C. 471, 385 S.E.2d 839 (1989).
(2) Possession
If the prosecution does not have the material or evidence sought by the defense actually in its possession, disclosure is not required under Rule 5(a)(1)(C), SCRCrimP. State v. Gulledge, 326
S.C. 220, 487 S.E.2d 590 (1997).
The only exception to actual possession is where the evidence is in the possession of another government agency. State v. Gulledge, 326 S.C. 220, 487 S.E.2d 590 (1997).
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(3) Continuing Duty to Disclose
“If, prior to or during trial, a party discovers additional evidence or material previously requested or ordered, which is subject to discovery or inspection under this rule, he shall promptly notify the other party or his attorney or the court of the existence of the additional evidence or material.” Rule 5(c), SCRCrimP.
(4) Failure to Comply with Request
“If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing evidence not disclosed, or it may enter such other order as it deems just under the circumstances. The court may specify the time, place and manner of making the discovery and inspection and may prescribe such terms and conditions as are just.” Rule 5(d)(2), SCRCrimP.
2.
FAILURE TO PRESERVE EVIDENCE
The State does not possess an absolute duty to preserve potentially useful evidence which could be subjected to tests which might exonerate a defendant. State v. Mabe, 306 S.C. 355, 412
S.E.2d 386 (1991) (citing Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d
281 (1988)).
A defendant must demonstrate either that 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. State v. Mabe, 306 S.C. 355, 412 S.E.2d 386 (1991).
Where witness gave initial statement that was destroyed by police and witness then gave second statement, there was no evidence the statement was intentionally destroyed where police testified the first unfinished statement was thrown away after witness admitter it was not the complete truth. State v. Hutton , 358 S.C. 622, 595 S.E.2d 876 (Ct. App. 2004). Further, there was nothing to indicate the statement had any exculpatory value that was apparent before the statement was destroyed and defense counsel was given a complete opportunity to cross-examine and impeach witness before the jury.
A defendant’s conviction was reversed because his due process rights were violated when material evidence was destroyed. State v. Jackson, 302 S.C. 313, 396 S.E.2d 101 (1990).
3.
INFORMANTS
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As a general rule, the State may withhold the names of informants. State v. Hayward, 302 S.C.
75, 393 S.E.2d 918 (1990). However, disclosure may be required when the informant is a participant in, or a material witness to, a criminal transaction. State v. Hayward, 302 S.C. 75,
393 S.E.2d 918 (1990).
4.
STATEMENTS
S.C. Code Ann. §§ 19-1-80 and 90 (1985) preclude the examination of any witness in a criminal proceeding about a written statement formerly given to a government employee unless the witness was given a copy of the statement at the time it was made. See also S.C. Code Ann. § 8-
15-50 (1986) (public employee taking statement in investigation shall give copy to person making statement).
Although S.C. Code Ann. § 19-1-90 (1985) indicates such a written statement is otherwise inadmissible, the Court has allowed its use where the defendant received his copy three weeks after it was taken, which was four months prior to trial. State v. Butler, 277 S.C. 452, 290 S.E.2d
1 (1982); see also Bannister v. State, 333 S.C. 298, 509 S.E.2d 807 (1998) (Court found no reversible error when respondent was provided with a copy of his statement on the morning of trial. The Court found that there was no evidence respondent did not have adequate time to review the statement in preparation for trial). a) Oral Statement
An oral statement is not within the purview of these statutes. State v. Smith, 286 S.C. 406, 334
S.E.2d 277 (1985). b) Waiver of Rights Form
A waiver of rights form is not a written statement within the meaning of these statutes. State v.
Smith, 286 S.C. 406, 334 S.E.2d 277 (1985).
5.
State Grand Jury Impanelment Documents
State grand jury impanelment documents, including the State’s petition, supporting materials, and the impaneling judge’s order, may be released to a defendant, on a timely request, to determine whether the state grand jury was legally established or suffered from any irregularity which implicates the defendant’s constitutional right to have his case considered by a properly constituted grand jury. The burden of proof is on the State to demonstrate why the documents should not be released. The State may redact information not related to the defendant’s case or
94
information concerning other persons or matters under consideration by the State grand jury.
However, a defendant must challenge the legality and sufficiency of the process of the state grand jury before the jury renders a verdict in order to preserve the error for direct appellate review. Evans v. State, 363 S.C. 495, 611 S.E.2d 510 (2005).
6. Psychological Evaluation of the Victim
A trial judge may order a victim to submit to psychological evaluation when the defendant shows a compelling need for the evaluation. The trial judge should consider: (1) the nature of the examination requested and the intrusiveness inherent in the examination; (2) the victim’s age; (3) the resulting physical and/or emotional effects of the examination on the victim; (4) the probative value of the examination to the issue before the court; (5) the remoteness in time of the examination to the alleged criminal act; and (6) the evidence already available for the defendant’s use. In re Michael H.,
360 S.C. 540, 602 S.E.2d 729 (2004).
O.
MOTIONS FOR SEVERANCE
1.
CO-DEFENDANTS
a) Generally
Motions for a severance and separate trial are addressed to the discretion of the trial court. State v. Nichols, 325 S.C. 111, 481 S.E.2d 118 (1997). Absent a showing of an abuse of discretion, this Court will not disturb the trial court's ruling on appeal. Id.
The general rule allowing joint trials applies with equal force when a defendant's severance motion is based upon the likelihood that he and a co-defendant will present mutually antagonistic defenses. State v. Dennis, 337 S.C. 275, 523 S.E.2d 173 (1999).
Criminal defendants who are jointly tried for murder are not entitled to separate trials as a matter of right. State v. Nichols, 325 S.C. 111, 481 S.E.2d 118 (1997); State v. Boys, 302 S.C. 545, 397
S.E.2d 529 (1990); State v. Crowe, 258 S.C. 258, 188 S.E.2d 379 (1972).
When ruling upon a motion to sever in a capital case, the trial court must consider the effect of a joint trial on each defendant at both the guilt and sentencing phases. See State v. Howard, 295
S.C. 462, 369 S.E.2d 132 (1988). This is especially true when there are confessions involved.
State v. Bellamy, 293 S.C. 103, 359 S.E.2d 63 (1987), overruled on other grounds by State v.
Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991). See CO-DEFENDANT'S CONFESSION.
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b) Grounds
Denials on the following grounds have been held to be proper:
Antagonistic defense. State v. Dennis, 337 S.C. 275, 523 S.E.2d 173 (1999); State v. Brown,
108 S.C. 490, 95 S.E. 61 (1918).
Co-defendants cannot agree how to divide jury strikes. State v. Francis, 152 S.C. 17, 149 S.E.
348 (1929).
Co-defendants have different trial strategies and some evidence admissible against one but not the other. State v. Harvey, 253 S.C. 328, 170 S.E.2d 657 (1969).
To make co-defendant available to testify. State v. Allen, 269 S.C. 233, 237 S.E.2d 64 (1977).
One co-defendant will put up evidence and thereby deprive others of right to open and close in arguments to the jury. State v. Crowe, 258 S.C. 258, 188 S.E.2d 379 (1972).
2.
MULTIPLE COUNTS
Charges can be joined in the same indictment and tried together where they: (1) arise out of a single chain of circumstances, (2) are proved by the same evidence, (3) are of the same general nature, and (4) no real right of the defendant has been prejudiced. State v. Tucker, 324 S.C. 155,
478 S.E.2d 260 (1996).
Where all offenses are of the same general nature and involve connected transactions closely related in kind, place, and character, the decision to try them together rests in the court's discretion. See, e.g., State v. Smith, 322 S.C. 107, 470 S.E.2d 364 (1996) (assault and battery of a high and aggravated nature and murder); State v. Williams, 263 S.C. 290, 210 S.E.2d 298
(1974) (assault and battery with intent to kill and murder).
It is improper to try different charges together where the crimes do not arise out of a single chain of circumstances and require different evidence. See, e.g., State v. Middleton, 288 S.C. 21, 339
S.E.2d 692 (1986) (two murders); State v. Tate, 286 S.C. 462, 334 S.E.2d 289 (Ct. App. 1985)
(identical but unrelated forgeries).
It is proper to try together all crimes arising from a single uninterrupted crime spree. State v.
Woomer, 276 S.C. 258, 277 S.E.2d 696 (1981), overruled on other grounds by State v. Torrence,
305 S.C. 45, 406 S.E.2d 315 (1991).
P.
MOTIONS IN LIMINE
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1.
GENERALLY
The purpose of a motion in limine is to prevent disclosure of potentially prejudicial matter to the jury. A ruling on the motion is not the ultimate disposition on the admissibility of evidence; such ruling is subject to change based upon developments during trial. State v. Floyd, 295 S.C. 518,
369 S.E.2d 842 (1988) (where judge's pre-trial ruling was based on fact that bias was conceded but witness at trial denied bias, no error in changing ruling).
2.
EFFECT
A ruling in limine is not a final ruling on the admissibility of evidence. State v. Burton, 326 S.C.
605, 486 S.E.2d 762 (Ct. App. 1997).
Unless an objection is made at the time the evidence is offered and a final ruling is made, the issue is not preserved for review. State v. Hughes, 336 S.C. 585, 521 S.E.2d 500 (1999); State v.
Schumpert, 312 S.C. 502, 435 S.E.2d 859 (1993). Because the evidence developed during trial may warrant a change in the ruling, the losing party must renew his objection at trial when the evidence is presented in order to preserve the issue for appeal. State v. Burton, 326 S.C. 605,
486 S.E.2d 762 (Ct. App. 1997).
3.
IMPEACHMENT EVIDENCE
A judge is not required to rule on the issue of which of the defendant's prior offenses would be admissible to impeach him prior to trial, but may properly postpone such ruling until the defendant chooses to take the stand. State v. Bridges, 278 S.C. 447, 298 S.E.2d 212 (1982).
Q.
RECUSAL
1.
GENERALLY
Recusal is required when the judge is related to either party within the sixth degree. S.C. Code
Ann. § 14-1-130 (1976). It appears that under this statute, degrees should be determined by counting up from the judge to the common ancestor, and then down to the party. See Ex parte
Kreps, 61 S.C. 29, 39 S.E. 181 (1901) (relying in part on now repealed probate statute).
2.
CODE OF JUDICIAL CONDUCT
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The Code of Judicial Conduct, Canon 3C, requires a judge to disqualify himself in certain circumstances, but allows him to hear certain cases with full disclosure and the written consent of all parties and all lawyers. See Rule 501, SCACR.
Absent circumstances requiring a judge’s recusal under Canon 3C of the Code of Judicial
Conduct, there is no prejudice in having the same judge preside over an individual’s trial and post-conviction relief hearing. Floyd v. State, 303 S.C. 298, 400 S.E.2d 145 (1991).
3.
IMPROPER REMARKS
In determining whether to disqualify himself, the judge should accept the factual basis as true and then consider the legal sufficiency of these facts. An alleged improper remark must be considered in context in determining whether it demonstrates sufficient bias or prejudice to require disqualification. Shaw v. State, 276 S.C. 190, 277 S.E.2d 140 (1981).
4.
OTHER LITIGATION
The fact that a defendant has previously been tried or sentenced by the same judge in an unrelated case does not require recusal. State v. Cabiness, 273 S.C. 56, 254 S.E.2d 291 (1979).
However, if in passing sentence at the first trial the judge expressed his personal opinion that the defendant was guilty, then the judge should not preside at a retrial. State v. Atterberry, 134 S.C.
392, 133 S.E. 101 (1926).
The fact the defendant has filed a lawsuit against the judge does not necessarily require recusal, especially where there is no evidence the judge was prejudiced. State v. Loftin, 278 S.C. 618,
300 S.E.2d 480 (1983).
R.
RECANTING TESTIMONY
Generally, recanted testimony is considered unreliable and should be subjected to close scrutiny.
State v. Porter, 269 S.C. 618, 239 S.E.2d 641 (1977); State v. Barton, 325 S.C. 522, 481 S.E.2d
439 (Ct. App. 1997).
S.
MOTIONS FOR CONTINUANCE
Motions for a continuance are addressed to the trial judge's discretion. State v. Babb, 299 S.C.
451, 385 S.E.2d 827 (1989).
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A continuance should be granted when the State fails to disclose evidence until the eve of trial and the defendant makes a satisfactory showing that testing the new evidence could produce important exculpatory proof. State v. Tanner, 299 S.C. 459, 385 S.E.2d 832 (1989).
Limitations on the authority to grant continuances and the conditions upon which certain continuances may be granted are found in Rule 7, SCRCrimP.
T.
MOTIONS REGARDING PUBLICITY
1.
CHANGE OF VENUE
Generally, the decision to grant a change of venue is addressed to the sound discretion of the trial judge. State v. Patterson, 324 S.C. 5, 482 S.E.2d 760 (1997); State v. Caldwell, 300 S.C. 494,
388 S.E.2d 816 (1990).
When jurors have been exposed to pre-trial publicity, a denial of a change of venue is not error when the jurors are found to have the ability to set aside any impressions or opinions and render a verdict based on the evidence presented at trial. Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6
L. Ed. 2d 751 (1961); State v. Manning, 329 S.C. 1, 495 S.E.2d. 191 (1997); State v. Ayers, 284
S.C. 266, 325 S.E.2d 579 (Ct. App. 1985).
Mere exposure to pre-trial publicity does not automatically disqualify a prospective juror. State v. Manning, 329 S.C. 1, 495 S.E.2d. 191 (1997). The relevant question is not whether the community remembered the case, but whether the jurors had such fixed opinions that they could not impartially judge the guilt of the defendant. State v. Tucker, 324 S.C. 155, 478 S.E.2d 260
(1996).
If a change of venue is sought on the basis of pre-trial publicity, the general practice is to postpone ruling on that motion until voir dire is complete. State v. Manning, 329 S.C. 1, 495
S.E.2d. 191 (1997).
A prospective juror's knowledge about the case does not per se disqualify the juror. State v.
Manning, 329 S.C. 1, 495 S.E.2d 191 (1997). See also, CHALLENGES FOR CAUSE.
The moving party bears the burden of showing actual juror prejudice as a result of such publicity. State v. Manning, 329 S.C. 1, 495 S.E.2d. 191 (1997); see also Davenport v. Summer,
269 S.C. 382, 237 S.E.2d 494 (1977) (conclusory affidavits of local residents insufficient to require change of venue); Cantey v. Coates, 262 S.C. 259, 203 S.E.2d 673 (1974) (in deciding whether to change venue, the court cannot rely on beliefs, opinions, and conclusions of witnesses).
S.C. Code Ann. § 17-21-80 (1985) permits a judge to change venue for the purpose of selecting a jury, and then return the "foreign" jury to the original venue for trial.
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2.
"GAG ORDERS"
There is no absolute prohibition of pre-trial "gag orders" which limit the media's right to publish information. There is a heavy burden, however, on the party seeking this prior restraint, and before issuing such an order the court should consider four factors:
Is there a clear threat to the fairness of the trial?
Is the threat posed by the actual publicity sought to be restrained?
Are there no less restrictive alternatives available?
Would previous publicity or publicity from unrestrained sources render the gag order ineffective?
Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 96 S. Ct. 2791, 49 L. Ed. 2d 683 (1976).
3.
CLOSURE OF PROCEEDINGS
a) Generally
"All courts shall be public. . . ." S.C. Const. art. I, § 9. In addition, the Sixth Amendment provides to the defendant a personal right to a public trial. U.S. Const. amend. VI; Waller v.
Georgia, 467 U.S. 39, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984).
The First Amendment implicitly guarantees both the public and the press access to criminal trials and creates a presumption that trials are open to the public. Press-Enterprise Co. v. Superior
Court, 478 U.S. 1, 106 S. Ct. 2735, 92 L. Ed. 2d. 1 (1986) (Press-Enterprise II); Press-Enterprise
Co. v. Superior Court, 464 U.S. 501, 104 S. Ct. 819, 823, 78 L. Ed. 2d 629 (1984) (Press
Enterprise I).
Even when the First Amendment right of public access to criminal proceeding attaches, it is qualified, not absolute. Ex parte The Island Packet, 308 S.C. 198, 417 S.E.2d 575 (1992). b) Objection to Closure
The accused who opposes the public's right of access bears the burden of proof to justify closure.
Ex parte The Island Packet, 308 S.C. 198, 417 S.E.2d 575 (1992). This allocation of the burden of proof is consistent with the general rule that “[c]losed proceedings . . . must be rare and only
100
for cause shown that outweighs the value of openness.” Id. (quoting Press-Enterprise I, 464 U.S.
501, 104 S. Ct. 819, 823, 78 L. Ed. 2d 629 (1984)).
Where a party seeks to close a trial over the defendant's objection, the moving party bears a heavy burden. That party must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary, the trial court must consider reasonable alternatives, and it must make findings adequate to support the closure. Waller v. Georgia, 467 U.S. 39, 104
S. Ct. 2210, 81 L. Ed. 2d 31 (1984).
In determining whether the First Amendment requires public access to a criminal proceeding when the accused opposes it, the trial court must decide: (1) whether there exists a right of access to the particular type of proceeding in question; and (2) whether the rights of the accused override that right. Ex parte The Island Packet, 308 S.C. 198, 417 S.E.2d 575 (1992) (citing
Press-Enterprise II, 478 U.S. 1, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986)).
In determining whether there is a right of access to the type of proceeding in question, the court may consider: (1) whether the proceeding has historically been an open one; and (2) whether public scrutiny plays a significant role in the functioning of the proceeding. Press-Enterprise II,
478 U.S. 1, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986).
Criminal defendant's anxiety about press coverage cannot justify closure of proceedings to which the public has a qualified First Amendment right of access. Lessening defendant's anxiety does not promote a higher value than the protection of the public's constitutional right of access. See
Ex parte The Island Packet, 308 S.C. 198, 417 S.E.2d 575 (1992). c) Exclusion of the Press
Excluding the press is a drastic measure which requires express findings upon the record. Steinle v. Lollis, 279 S.C. 375, 307 S.E.2d 230 (1983).
To justify closure of a pre-trial hearing, the court must make specific findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. In re Greenville
News, 332 S.C. 394, 505 S.E.2d 340 (1998); Ex parte First Charleston Corp., 329 S.C. 31, 495
S.E.2d 423 (1998).
Where the accused asserts his right to a fair trial to justify closure, the court must make specific findings: (1) that there is a substantial probability of prejudice from publicity that closure would prevent; and (2) there are no reasonable alternatives to closure that would adequately protect the defendant's fair trial rights. Press-Enterprise II, 478 U.S. 1, 106 S. Ct. 2735, 92 L. Ed. 2d 1
(1986). d) Preliminary Proceedings
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The presumption in favor of public access to judicial proceedings applies to preliminary proceedings as well as to the trial itself. See, e.g., Press-Enterprise I, 464 U.S. 501, 104 S. Ct.
819, 78 L. Ed. 2d 629 (1984) (voir dire); Ex parte First Charleston Corp., 329 S.C. 31, 495
S.E.2d 423 (1998) (bond hearing); Ex parte Columbia Newspapers, Inc., 286 S.C. 116, 333
S.E.2d 337 (1985) (family court transfer hearing); Steinle v. Lollis, 279 S.C. 375, 307 S.E.2d 230
(1983) (preliminary hearings).
U.
CONSTITUTIONAL CHALLENGES TO GRAND JURY AND PETIT
JURY VENIRE
1.
GRAND JURY: EQUAL PROTECTION
A defendant's equal protection rights are violated when his indictment is returned by a grand jury from which members of the defendant's race are systematically excluded. U.S. Const. amend.
XIV; Vasquez v. Hillery, 474 U.S. 254, 106 S. Ct. 617, 88 L. Ed. 2d 598 (1986); State v. George,
323 S.C. 496, 476 S.E.2d 903 (1996).
Substantial under-representation of persons of the defendant's race, or other identifiable groups as the result of purposeful discrimination, is a violation of equal protection. Castaneda v.
Partida, 430 U.S. 482, 97 S. Ct. 1272, 51 L. Ed. 2d 498 (1977); State v. George, 323 S.C. 496,
476 S.E.2d 903 (1996); State v. Moultrie, 273 S.C. 532, 257 S.E.2d 730 (1979).
Equal protection is violated if members of the defendant's race are systematically excluded from becoming foreperson of the grand jury. Rose v. Mitchell, 443 U.S. 545, 99 S. Ct. 2993, 61 L.
Ed. 2d 739 (1979).
2.
PETIT JURY: FAIR CROSS-SECTION
The Sixth and Fourteenth Amendments require the petit jury venire (not the jury actually selected) to represent a fair cross-section of the community. U.S. Const. amend. VI and amend
XIV. See, e.g., Taylor v. Louisiana, 419 U.S. 522, 95 S. Ct. 692, 42 L. Ed. 2d 690 (1975)
(systematic exclusion of women from jury pool violates fair cross-section requirement).
A violation of this constitutional requirement is shown by establishing: (1) the group is
"distinctive" within the community; (2) representation in the venire is not fair and reasonable in relation to the number of members of the group in the community; and (3) the underrepresentation is due to systematic exclusion. Duren v. Missouri, 439 U.S. 357, 99 S. Ct. 664, 58
L. Ed. 2d 579 (1979); State v. Patterson, 324 S.C. 5, 482 S.E.2d 760 (1997). In order to establish a violation, the defendant need not be a member of the distinctive group. Duren v. Missouri, 439
U.S. 357, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979).
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V.
TRIAL IN ABSENCE
See Failure to Appear and Keep in Touch
2.
TRIAL PROCEEDINGS
A.
PETITE JURY VENIRE QUALIFICATIONS
1.
STATUTORY DISQUALIFICATIONS
Persons who are not citizens of the United States; persons who are not citizens and residents of that county. S.C. Code Ann. § 14-7-130 (1976 & Supp. 2001); see also S.C. Const. art. V, § 22.
Persons convicted of state or federal offense punishable by imprisonment for more than one year, and no restoration of civil rights. S.C. Code Ann. § 14-7-810(1) (1976 & Supp. 2001).
Unable to read, write, speak, or understand the English language. S.C. Code Ann. § 14-7-810(2)
(1976 & Supp. 2001).
Incapable by mental or physical infirmities to render efficient jury service. (Legal blindness does not disqualify an otherwise qualified juror.) S.C. Code Ann. § 14-7-810(3) (1976 & Supp.
2001).
Less than a sixth grade education or its equivalent. S.C. Code Ann. § 14-7-810(4) (1976 &
Supp. 2001).
Employed as a clerk of court, deputy clerk of court, constable, probate judge, county commissioner, sheriff, magistrate or other county officer, or any person employed within the walls of any courthouse. S.C. Code Ann. § 14-7-820 (1976 & Supp. 2001).
Highway patrolmen are disqualified from jury service under § 14-7-820 because they are functionally equivalent to deputy sheriffs. State v. Cooper, 291 S.C. 332, 353 S.E.2d 441 (1986), overruled on other grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991).
A special deputy sheriff appointed only to serve process is not disqualified as a juror pursuant to
§ 14-7-820. Bryant v. State, 264 S.C. 157, 213 S.E.2d 451 (1975).
103
A potential juror employed in any capacity within a courthouse must be disqualified. State v.
Reed, 293 S.C. 515, 362 S.E.2d 13 (1987), overruled on other grounds by State v. Torrence, 305
S.C. 45, 406 S.E.2d 315 (1991).
Persons who served as members of the grand jury at which the indictment for the crime charged was made. S.C. Code Ann. § 14-7-830 (Supp. 2001).
Persons who have previously served on jury duty this calendar year, except that magistrate court jury service (municipal/federal) does not disqualify the juror. S.C. Code Ann. § 14-7-850 (1976
& Supp. 2001).
2.
EXEMPTIONS ON REQUEST BY JUROR
Persons 65 years of age and over. S.C. Code Ann. § 14-7-840 (1976 and Supp. 2001).
A woman who has custody of a child under the age of 7 years who has the duty of care for that child, and who states under oath that she is unable to provide adequate care for the child while performing jury duty. S.C. Code Ann. § 14-7-860 (Supp. 2001).
Persons who served as jurors in either of the previous two calendar years, except that the exemption is not available for prior magistrate court jury service. S.C. Code Ann. § 14-7-850
(Supp. 2001).
Upon “good and sufficient cause” as determined by the trial judge. S.C. Code Ann. § 14-7-860
(Supp. 2001).
Students, during a school term; school-related employees, during a school term. S.C. Code Ann.
§ 14-7-845 (Supp. 2001).
All penitentiary employees shall be exempt. S.C. Code Ann. § 24-3-930 (1976).
An exemption from jury duty is not a disqualification to act as a juror, but is a personal privilege that the juror may claim or waive. State v. Hughey, 339 S.C. 439, 529 S.E.2d 721 (2000).
B.
VOIR DIRE
1.
SCOPE AND CONDUCT
a) Generally
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Voir dire is allowed regarding the juror’s relation to the parties, interest in the cause, formed opinion, bias, or prejudice. S.C. Code Ann. § 14-7-1020 (1976 & Supp. 2001).
The manner in which voir dire is conducted and the scope of voir dire beyond the bounds of §
14-7-1020 are matters within the trial judge's discretion. State v. Tucker, 334 S.C. 1, 512 S.E.2d
99 (1998).
Although the method of examining prospective jurors under § 14-7-1020 is left to the trial court's sound discretion, it is the better practice in non-capital cases for the judge to conduct the voir dire. State v. Brown, 274 S.C. 592, 266 S.E.2d 415 (1980).
A defendant is entitled to specific questions only if the failure to ask them would render his trial
"fundamentally unfair." See State v. Tucker, 334 S.C. 1, 512 S.E.2d 99 (1998) (citing Mu'Min v.
Virginia, 500 U.S. 415, 111 S. Ct. 1899, 1905, 114 L. Ed. 2d 493 (1991)).
Deference is given to the trial judge's view of the potential jurors' credibility, since he had the opportunity to view their demeanor. See State v. Gardner, 332 S.C. 389, 505 S.E.2d 338 (1998).
Trial judge’s excusing juror who arrived after voir dire was within judge’s discretion. See State v. Lowery, 332 S.C. 261, 503 S.E.2d 794 (Ct. App. 1998).
The judge’s ultimate consideration in juror qualification is that the jurors be unbiased, impartial, and able to carry out the law as it is explained to them. Where the judge instructs the jury to notify him of any bias or prejudice, the jury is presumed to follow this instruction. See State v.
Dunlap, 346 S.C. 312, 550 S.E.2d 889 (Ct. App. 2001) (the trial judge did not err in denying defendant’s motion to dismiss the entire jury on the ground that the qualifying judge’s comment tainted to entire jury; the trial judge questioned the jurors regarding their ability to render a fair verdict and instructed them to notify him of any bias or prejudice).
Trial judge cannot dismiss a potential juror for failing to take a religious oath, and defendants were denied a fair trial as the result of the erroneous dismissal. State v. Floyd , 353 S.C. 55, 577
S.E.2d 215 (2003). b) Capital Cases
Notwithstanding the provisions of § 14-7-1020, in cases involving capital punishment a person called as a juror must be examined by the attorney for the defense. S.C. Code Ann. § 16-3-
20(D)(1985 & Supp. 2001).
105
Although a capital defendant has the statutory right during voir dire to examine jurors through counsel, this does not enlarge the scope of voir dire otherwise permitted. State v. Hill, 331 S.C.
94, 501 S.E.2d 122 (1998).
The manner in which questions are pursued and the scope of any additional voir dire during capital cases are matters of trial court discretion. State v. Hill, 331 S.C. 94, 501 S.E.2d 122
(1998).
A judge did not abuse his discretion by refusing to allow a defendant to question and attempt to rehabilitate a juror who stated unequivocally that because of her religious believes she would not be able to convict a criminal under any circumstances. Such a person is disqualified by law because she would be unable to fulfill her duties as a juror or apply the law as it is given to her by the court. State v. Wise , 359 S.C. 14, 596 S.E.2d 475 (2004). c) Specific inquiries
(1) Racial bias
Where the circumstances present a significant likelihood that racial prejudice might affect the trial, a defendant is entitled to have prospective jurors interrogated on the issue of racial bias.
Ham v. South Carolina, 409 U.S. 524, 93 S. Ct. 848, 35 L. Ed. 2d 46 (1973).
Absent special circumstances, the requirement of "bias or prejudice" is met through a general voir dire as to bias and prejudice. State v. Cason, 317 S.C. 430, 454 S.E.2d 888 (1995).
The mere fact that the defendant is black and the victim is white does not require inquiry into potential jurors' racial bias. Ristiano v. Ross, 424 U.S. 589, 96 S. Ct. 1017, 47 L. Ed. 2d 258
(1976); State v. Gibbs, 267 S.C. 365, 228 S.E.2d 104 (1976).
However, a capital defendant accused of an interracial crime is entitled to have prospective jurors informed of the race of the victim and questioned on the issue of racial bias. Turner v.
Murray, 476 U.S. 28, 106 S. Ct. 1683, 90 L. Ed. 2d 27 (1986).
The trial judge retains discretion as to the form and number of questions on the subject of racial bias. State v. Patterson, 299 S.C. 280, 384 S.E.2d 699 (1989), vacated on other grounds, 493
U.S. 1013, 111 S. Ct. 2253, 114 L. Ed. 2d 707 (1991).
(2) Other
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It is improper to question a juror about what type of witness the juror would believe. State v.
Southerland, 316 S.C. 377, 447 S.E.2d 862 (1994); State v. Adams, 279 S.C. 228, 306 S.E.2d
(1983), overruled on other grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991).
2.
CHALLENGES FOR CAUSE
a) Generally
The decision whether to excuse a juror for cause is committed to the sound discretion of the trial court. State v. Drayton, 293 S.C. 417, 361 S.E.2d 329 (1987).
The entire colloquy in voir dire, not isolated portions, determines a juror's qualification to serve.
State v. Truesdale, 285 S.C. 13, 328 S.E.2d 53 (1984). b) Time
An objection to a juror is waived "if not made before the juror is empaneled for or charged with the trial of the prosecution." S.C. Code Ann. § 14-7-1030 (1976 & Supp. 2001).
S.C. Code Ann. § 14-7-1030 (1976 & Supp. 2001) applies only to objections of which the party has knowledge or which by the exercise of due diligence could have known. State v. Williams,
266 S.C. 325, 223 S.E.2d 38 (1976).
Once a juror is accepted with knowledge of a potential objection to qualification, the defendant may not have the juror removed on the basis of that objection. State v. Elmore, 300 S.C. 130,
386 S.E.2d 769 (1989). c) Grounds
(1) Bias and Prejudice
The trial court has a duty to ensure that every juror is unbiased, fair and impartial. State v.
Powers, 331 S.C. 37, 501 S.E.2d 116 (1998).
When a juror states unequivocally that he is not conscious of any bias or prejudice and that he can give both the defendant and the State a fair and impartial trial and render a verdict according to the law and evidence, there is no abuse of discretion in the decision to qualify the juror. State v. Hardee, 279 S.C. 409, 308 S.E.2d 521 (1983).
107
A prospective juror shown through voir dire to exhibit racial bias must be disqualified. State v.
Green, 301 S.C. 347, 392 S.E.2d 157 (1990).
(2) Prior Knowledge
Even though a prospective juror may have heard details about the case, it is sufficient that he can put aside an impression or opinion and render a verdict based on the evidence presented in court.
Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961); DeLee v. Knight, 266 S.C.
103, 221 S.E.2d 844 (1975).
Mere exposure to pretrial publicity does not automatically disqualify a prospective juror. State v.
Manning, 329 S.C. 1, 495 S.E.2d. 191 (1997). See also, MOTIONS REGARDING PUBLICITY.
A defendant's mere assertion that the jurors could have been subconsciously affected by media exposure is insufficient to show prejudice. State v. Owens, 293 S.C. 161, 359 S.E.2d 275 (1987), overruled in part on other grounds by State v. Osborne, 335 S.C. 172, 516 S.E.2d 210 (1999).
(3) Relationship to Victim or Witness
The mere fact that a person was a friend or acquaintance of the victim in a murder case does not render the juror incompetent. State v. Jones, 298 S.C. 118, 378 S.E.2d 594 (1989).
There is no rule of law disqualifying a juror because of his relationship to a witness. State v.
Owens, 277 S.C. 189, 284 S.E.2d 584 (1981).
(4) Relationship to Police Officer
A juror is not automatically disqualified because of his relationship to a police officer. State v.
Dingle, 279 S.C. 278, 306 S.E.2d 223 (1983).
(5) Relationship to Counsel
The mere fact that a prospective juror is a friend or relative of the prosecuting attorney does not per se disqualify him. See State v. Franklin, 267 S.C. 240, 226 S.E.2d 896 (1976); State v.
Nicholson, 221 S.C. 399, 70 S.E.2d 632 (1952).
(6) Co-defendant’s Jury
A person who served on the jury, which convicted a co-defendant, is disqualified. State v. James,
34 S.C. 49, 12 S.E. 657 (1891).
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3.
PEREMPTORY CHALLENGES
a) Generally
Generally, peremptory challenges may be exercised with or without reason. State v. Thompson,
276 S.C. 616, 281 S.E.2d 216 (1981). But see, CONSTITUTIONAL CHALLENGES TO
GRAND JURY AND PETIT JURY VENIRE.
b) Number
The number of peremptory challenges available to the State and the defendant in a criminal case is dependent upon the nature of the crimes and the number of defendants being tried. S.C. Code
Ann. § 14-7-1110 (1976 & Supp. 2001).
The State is allowed one peremptory challenges and the defendant is allowed two of alternate jurors in a criminal case. S.C. Code Ann. § 14-7-1120 (1976 & Supp. 2001).
Under § 14-7-1110, a defendant is allowed ten peremptory challenges only for those crimes specifically enumerated; for all other crimes, five peremptory challenges are allowed. State v.
Lambert, 276 S.C. 398, 279 S.E.2d 364 (1981); State v. Miller, 258 S.C. 573, 190 S.E.2d 23
(1972).
When multiple charges against a single defendant are consolidated for trial, he is entitled to a total of ten peremptory challenges if any of the crimes enumerated in §14-7-1110 is present and a total of five if not. State v. Martin, 293 S.C. 46, 358 S.E.2d 697 (1987). c) Time
A juror may be peremptorily challenged at any time before they are sworn. State v. Martin, 155
S.C. 495, 152 S.E. 738 (1930). d) Batson
(1) Generally
109
The Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race. Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986); Purkett v. Elem, 514 U.S. 765, 115 S. Ct. 1769, 131 L. Ed. 2d 834 (1995).
The Fourteenth Amendment also bars gender based discrimination in the exercise of peremptory challenges. J.E.B. v. Alabama, 511 U.S. 127, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994); see also
State v. Haigler, 334 S.C. 623, 515 S.E.2d 88 (1999); State v. Casey, 325 S.C. 447, 481 S.E.2d
169 (Ct. App. 1997).
A Batson hearing is conducted in the following manner. First, the trial judge must hold a Batson hearing when members of a cognizable racial group or gender are struck and the opposing party requests a hearing. Second, the proponent of the strike must present a race- or gender-neutral explanation. At this second step, the proponent of the strike no longer is required to offer a reason that is race or gender-neutral and clear, reasonably specific, and legitimate. The reason must only be race- or gender-neutral. Third, the opponent of the strike must show that the race- or gender-neutral explanation given was mere pretext. State v. Adams, 322 S.C. 114, 124, 470
S.E.2d 366, 372 (1996) (adopting the Batson procedure set forth in Purkett v. Elem, 514 U.S. 765,
115 S. Ct. 1769, 131 L. Ed. 2d 834 (1995)).
(2) Who Can Challenge a Strike
The use of a particular peremptory strike may be challenged by any party. See Edmonson v.
Leesville Concrete Co., 500 U.S. 614, 111 S. Ct. 2077, 114 L. Ed. 2d 660 (1991).
A party has standing to object to race-based peremptory strikes of venire persons even if the challenging party and the potential juror are not of the same race. Powers v. Ohio, 499 U.S. 400,
111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991); State v. Chapman, 317 S.C. 302, 454 S.E.2d 317
(1995).
Likewise, the State may challenge the exercise of strikes. See State v. Hicks, 330 S.C. 207, 499
S.E.2d 209 (1998).
(3) Prima Facie Case
A prima facie case of discrimination can be established merely by a request for a Batson hearing and that "distinctions of whether one is a member of a cognizable group are no longer applicable."
State v. Chapman, 317 S.C. 302, 454 S.E.2d 317 (1995).
The motion must be made after the jury is selected but before it is sworn. The hearing is to be held out of the presence of the jury panel and the jury venire. State v. Jones, 293 S.C. 54, 358
S.E.2d 701 (1987).
110
(4) Racial or Gender Neutral Explanation
When a party objects to a jury strike, the proponent of the strike must offer a facially race- or gender-neutral explanation. This explanation is not required to be persuasive or even plausible.
State v. Adams, 322 S.C. 114, 470 S.E.2d 366 (1996).
To determine whether a Batson violation has occurred there must be an examination of the totality of the facts and circumstances in the record surrounding the strike. State v. Ford, 334 S.C. 59,
512 S.E.2d 500 (1999).
A race- or gender-neutral explanation cannot be established by merely denying any discriminatory motive. See State v. Tomlin, 299 S.C. 294, 384 S.E.2d 707 (1989).
Unless discriminatory intent is inherent in the proffered explanation, it will likely be deemed race neutral. State v. Green, 306 S.C. 94, 409 S.E.2d 785 (1991).
(5)
“Mere Pretext”
Once the proponent states a reason that is race-neutral or gender-neutral, the burden is on the party challenging the strike to show the explanation is mere pretext or the reason given for the strike is so fundamentally implausible as to constitute mere pretext. Purkett v. Elem, 514 U.S.
765, 115 S. Ct. 1769, 131 L. Ed. 2d 834 (1995); State v. Adams, 322 S.C. 114, 470 S.E.2d 366
(1996).
The trial judge’s findings of purposeful discrimination rest largely on his evaluation of demeanor and credibility, which is given great deference. State v. Haigler, 334 S.C. 623, 515 S.E.2d 88
(1999).
In some situations, the race- or gender-neutral explanation given by the proponent may be so fundamentally implausible that the explanation was mere pretext even without a showing of disparate treatment. State v. Adams, 322 S.C. 114, 470 S.E.2d 366 (1996).
Generally, one shows pretext by demonstrating that similarly situated jurors of other races or genders were seated. State v. Tucker, 334 S.C. 1, 512 S.E.2d 99 (1998).
However, the uneven application of a neutral reason does not automatically result in a finding of invidious discrimination if the strike's proponent provides a race- or gender-neutral explanation for the inconsistency. State v. Kelley, 319 S.C. 173, 460 S.E.2d 368 (1995) (state provided a racially neutral explanation for why the solicitor did not strike a juror with similar characteristics to one previously stricken).
111
The ultimate question which the trial court resolves under this step is whether the movant has met his burden in demonstrating purposeful discrimination. State v. Adams, 322 S.C. 114, 470 S.E.2d
366 (1996).
The composition of the jury panel is a factor that may be considered when determining whether a party engaged in purposeful discrimination. State v. Dyar, 317 S.C. 77, 452 S.E.2d 603 (1994).
(6) Examples
(a) Reasons Found Valid
Acquaintance with one of defendant's attorneys. State v. Lewis, 293 S.C. 107, 359 S.E.2d 66
(1987);
An attorney’s personal knowledge of and relationship with a prospective juror. State v. Ford, 334
S.C. 59, 512 S.E.2d 500 (1999);
Possible criminal records. State v. Martinez, 294 S.C. 72, 362 S.E.2d 641 (1987), overruled in part on other grounds by Payton v. Kearse, 329 S.C. 51, 495 S.E.2d 205 (1998);
Unemployment. State v. Green, 306 S.C. 94, 409 S.E.2d 785 (1991);
Vacillating responses to voir dire questions regarding the death penalty and perceived attitudes toward it. State v. Elmore, 300 S.C. 130, 386 S.E.2d 769 (1989); State v. Howard, 295 S.C. 462,
369 S.E.2d 132 (1988).
(b) Reasons Found Invalid
Juror "shucked and jived." State v. Tomlin, 299 S.C. 294, 384 S.E.2d 707 (1989);
Black jurors were patients of a doctor who was a defense witness where a white juror, who was also a patient, was seated. State v. Oglesby, 298 S.C. 279, 379 S.E.2d 891 (1989);
Juror "herself has not had any problems but she comes from a family that's had some problems with the law and she's kind of what we refer to as a redneck variety, so to speak" (emphasis in original). Payton v. Kearse, 329 S.C. 51, 495 S.E.2d 205 (1998).
(7)
“Tainted” Approach
112
It is inappropriate to apply the dual motivation doctrine in the Batson context. Once any discriminatory reason has been uncovered --- either inherent or pretextual --- this reason taints the entire jury selection procedure. Any consideration of discriminatory factors in this decision is in direct contravention of the purpose of Batson which is to ensure peremptory strikes are executed in a nondiscriminatory manner." Payton v. Kearse, 329 S.C. 51, 495 S.E.2d 205 (1998).
A fundamentally implausible or pretextual reason for a strike taints any other legitimate reason for the strike. State v. Haigler, 334 S.C. 623, 515 S.E.2d 88 (1999).
(8) Result
If the trial court determines that the requirements of Batson have been violated, the process of selecting the jury must begin de novo. State v. Adams, 322 S.C. 114, 470 S.E.2d 366 (1996).
A juror's equal protection rights are not violated if a trial judge quashes a jury panel after erroneously finding that a Batson violation has occurred. State v. Adams, 322 S.C. 114, 470
S.E.2d 366 (1996).
Where the trial judge improperly quashes a jury panel, the defendant's fair trial rights were not violated. A defendant has no right to trial by any particular jury. E.g., State v. Caldwell, 300 S.C.
494, 388 S.E.2d 816 (1990). No prejudice to the defendant resulted from the judge's error. State v. Adams, 322 S.C. 114, 470 S.E.2d 366 (1996).
When trial judge properly finds a Batson violation and the original panel is quashed, there is no error in refusing to allow the use of a peremptory strike against a venire person previously stricken improperly, or in the judge allowing the seating of the improperly stricken jurors from first panel. State v. Lewis, 363 S.C. 37, 609 S.E.2d 515 (2005); State v. Franklin, 318 S.C.
47, 456 S.E.2d 357 (1995).
Trial judge did not err in seating juror improperly struck by defense for gender reasons rather than quashing the panel and beginning anew. Court concluded case was subject to harmless error review and no prejudice resulted from the failure to select a jury de novo. Defendant’s right to exercise peremptory strikes was not impaired and the selection process provided the defendant with the same choices he enjoyed in the first instance, with the exception of the unconstitutional strike of the one juror. State v. Heyward, ___ S.C. ___. 594 S.E.2d 148 (2004).
4.
ALTERNATE JURORS
Whenever, in the opinion of a presiding judge, the trial of a criminal case is likely to be protracted, the court may, immediately after the jury is impaneled and sworn, direct the calling of one or two additional jurors in its discretion, to be known as alternate jurors. These jurors must be drawn from the same source, in the same manner, have the same qualifications, and be subject
113
to the same examination and challenge as the jurors already sworn. S.C. Code Ann. § 14-7-320
(1976 & Supp. 2001).
In criminal cases the prosecution is entitled to one and the defendant to two peremptory challenges for each alternate juror called under the provisions of S.C. Code Ann. § 14-7-320.
C.
OPENING STATEMENTS
1.
GENERALLY
Opening statements serve to inform the jury of the general nature of the action and the defenses involved in the case so they will be better prepared to understand the evidence presented. State v.
Brown, 277 S.C. 203, 284 S.E.2d 777 (1981).
The granting of an opening statement is within the trial judge's discretion. State v. Brown, 277
S.C. 203, 284 S.E.2d 777 (1981).
2.
TIMING
The timing of opening statements is within the trial judge's discretion. State v. Brown, 277 S.C.
203, 284 S.E.2d 777 (1981).
3.
SCOPE
The scope of opening statement is within the trial judge's discretion. State v. Harris, 275 S.C.
463, 272 S.E.2d 636 (1980).
There was no abuse of discretion in denying defense counsel the right to summarize evidence in the opening statement when the solicitor did not outline the facts and where defendant's version of the facts was ably stated in his closing, so that no abuse of discretion nor prejudice to defendant was demonstrated. State v. Harris, 275 S.C. 463, 272 S.E.2d 636 (1980).
4.
SOLICITOR'S COMMENTS
Solicitor's opening statement urging the jury to listen to defense witnesses and the "two stories" was merely a suggestion that the defendant would present witnesses, not a comment that the defendant would testify. The trial judge's curative instruction rendered a mistrial unnecessary.
State v. Dawkins, 297 S.C. 386, 377 S.E.2d 298 (1989).
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D.
SEQUESTRATION OF WITNESSES
1.
GENERALLY
The purpose of sequestration is to afford a means of discovering discrepancies in the different accounts which the witnesses may give of the same transaction. Anonymous, 19 S.C. (1 Hill) 251
(1833).
At the request of a party the court may order witnesses excluded so that they cannot hear the testimony of other witnesses, and the court may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause. Rule
615, SCRE.
A motion to sequester witnesses is addressed to the sound discretion of the trial judge and his ruling will not be disturbed absent an abuse of discretion. State v. Sullivan, 277 S.C. 35, 282
S.E.2d 838 (1981).
Mere opportunity for State's witnesses to compare testimony was insufficient to compel sequestration and, absent a showing that a witness was intimidated or coerced by presence of other witnesses, refusal to sequester State's witnesses was not an abuse of discretion. State v.
Sullivan, 277 S.C. 35, 282 S.E.2d 838 (1981).
2.
ENFORCEMENT
When a sequestration order is in effect, the trial judge has discretion to allow a witness to remain in the courtroom to assist the prosecution. State v. Lee, 255 S.C. 309, 178 S.E.2d 652 (1971).
Whether a witness, who has been present during a portion of trial when witnesses have been ordered sequestered, should be permitted to testify is a matter for the discretion of the trial judge.
State v. Cabbagestalk, 281 S.C. 35, 314 S.E.2d 10 (1984); State v. Fulton, 333 S.C. 359, 509
S.E.2d 819 (Ct. App. 1998).
The defendant was not entitled to a mistrial based on a violation of a sequestration order by a
State's witness when the witness' presence during opening arguments triggered the witness' memory about what the defendant was wearing at the time he purchased the car that was used in the robbery and the witness admitted during cross-examination that he did not remember the distinctive outerwear that the purchaser of the vehicle was wearing until it was mentioned during opening arguments. State v. Tisdale, 338 S.C. 607, 527 S.E.2d 389 (Ct. App. 2000).
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E.
ADMISSIBILITY OF EVIDENCE
1.
GENERALLY
The admission or exclusion of evidence is within the trial judge's discretion. State v. Bailey, 276
S.C. 32, 274 S.E.2d 913 (1981).
All relevant evidence is admissible, except as otherwise provided by the Constitution of the
United States, the Constitution of the State of South Carolina, statutes, the South Carolina Rules of Evidence, or by other rules promulgated by the Supreme Court of South Carolina. Evidence which is not relevant is not admissible. Rule 402, SCRE.
Evidence is relevant and admissible if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Rule 401, SCRE.
Nevertheless, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Rule 403, SCRE. Unfair prejudice means an undue tendency to suggest decision on an improper basis. State v. Alexander, 303 S.C. 377, 401 S.E.2d 146 (1991).
The prejudicial effect of testimony that defendant spoke with insurance agent about getting insurance on her husband, the murder victim, where the only evidence was that she inquired about a policy, and never followed through on confirming quotes and obtaining her husband’s approval for a policy. State v. Douglas , 359 S.C. 187, 597 S.E.2d
(Ct. App. 2004).
2.
DEMONSTRATIVE EVIDENCE
a) Taped confessions
A taped confession is properly admitted where there is evidence in the record that the defendant received Miranda warnings, he understood his rights, he waived those rights and the confession was freely, voluntarily and intelligently given. State v. Chaffee, 285 S.C. 21, 328 S.E.2d 464
(1984)(involved videotaped confession and reenactment of the crime); State v. Valenti, 265 S.C.
380, 218 S.E.2d 726 (1975)(involved the admission of a tape recording and a written statement containing the confession and admissions of the defendant; defendant signed the written statement and admitted the voice on the tape sounded like his own).
A sufficient foundation existed to admit a taped confession where officer who recorded it identified the cassette and stated it had been in police custody since recorded. State v. Tyner, 273
S.C. 646, 258 S.E.2d 559 (1979).
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b) Photographs
(1) Generally
The determination of relevancy and materiality of a photograph is left to the sound discretion of the trial judge. The trial judge should exclude the photograph if it is calculated to arouse the sympathy or prejudice of the jury or is irrelevant or unnecessary to substantiate facts. State v.
Johnson, 338 S.C. 114, 525 S.E.2d 519 (2000); State v. Kelsey, 331 S.C. 50, 502 S.E.2d 63
(1998); State v. Powers, 331 S.C. 37, 501 S.E.2d 116 (1998).
The probative value of the photograph must outweigh any unfair prejudice. State v. Gay, 343
S.C. 543, 541 S.E.2d 541 (2001); see Rule 403, SCRE (relevant evidence may be excluded if the danger of unfair prejudice substantially outweighs its probative value).
To constitute unfair prejudice, the photographs must create a tendency to suggest a decision on an improper basis, commonly, though not necessarily, an emotional one. State v. Johnson, 338 S.C.
114, 525 S.E.2d 519 (2000); State v. Kelley, 319 S.C. 173, 460 S.E.2d 368 (1995).
There is no abuse of discretion if the offered photograph serves to corroborate testimony or substantiate facts. State v. Powers, 331 S.C. 37, 501 S.E.2d 116 (1998); see also Rule 401, SCRE
(evidence is relevant if it has a direct bearing upon and tends to establish or make more or less probable the matter in controversy).
Photograph of victim and boyfriend was relevant to establish that broken eyeglasses found in a tunnel 20 feet away from the body were actually the victim's eyeglasses and to establish a struggle had occurred in the tunnel. State v. Gay, 343 S.C. 543, 541 S.E.2d 541 (2001).
Photograph of victim’s children was relevant to proving that a purse found at the scene belonged to the victim and served to corroborate the co-defendant’s version of events. State v. Johnson,
338 S.C. 114, 525 S.E.2d 519 (2000).
Photographs of various bone and bomb fragments and clothing found at scene corroborated other testimony concerning condition of victim's body as first discovered by police at the crime scene and clearly supported testimony that a bomb detonated in victim's mouth. State v. Kelsey, 331
S.C. 50, 502 S.E.2d 63 (1998).
(2) Victim's body - in non-capital cases or guilt phase of capital cases
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Crime scene photographs of victim’s body which were in color but were not close-ups. State v.
Brazzell, 325 S.C. 65, 480 S.E.2d 64 (1997).
Photographs of victim in his hospital bed with stab wounds to his hands, abdomen, right shoulder, and face, which had been cleaned State v. Nance, 320 S.C. 501, 466 S.E.2d 349 (1996).
Photographs, including two photographs of the victim's nude body lying on the living room floor with her face and body visibly swollen from the beating, and photographs showing blood smeared on the walls and floor, as well as a video showing the crime scene. State v. Kelley, 319 S.C. 173,
460 S.E.2d 368 (1995).
Black and white photograph of victim's right upper chest with breast exposed showing location of bullet wound. State v. Todd, 290 S.C. 212, 349 S.E.2d 339 (1986).
Black and white photograph of victim's face admissible in assault prosecution. State v. Stallings,
253 S.C. 451, 171 S.E.2d 588 (1969).
(3) Authentication
Normally it is sufficient to justify admittance of photographs into evidence if a person familiar with the scene can say the pictures truly represent the scene involved. State v. Campbell, 259
S.C. 339, 191 S.E.2d 770 (1972); Rule 901, SCRE. c) Videotape
(1) Crime scene
In State v. Powers, 331 S.C. 37, 501 S.E.2d 116 (1998), it was held that a videotape of the crime scene which depicted the victim's body exactly as police found it, was not unduly gruesome and it permitted the jury to gain a true perspective of the scene precisely as the defendant left it.
Accordingly, it was properly admitted.
(2) Testimony of child witnesses and other special needs witnesses
See Minors and Minors in Sexual Abuse Cases.
(3) Confessions
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Defendant's videotaped confessions and crime reenactments were admissible where Miranda warnings were given and the defendant acted voluntarily, knowingly, and intelligently. State v.
Chaffee, 285 S.C. 21, 328 S.E.2d 464 (1984), overruled on other grounds by State v. Torrence,
305 S.C. 45, 406 S.E.2d 315 (1991).
(4)
Interview with State’s witness
Videotaped interview with State’s witness while walking through the crime scene with police and discussing the sequence of events which occurred on the day of the shooting did not contain objectionable questions and comments and was therefore properly admitted by the trial judge.
State v. Stroman, 281 S.C. 508, 316 S.E.2d 395 (1984). d) Closed Circuit Television
See Minors and Minors in Sexual Abuse Cases.
e) Tangible objects
(1) Chain of custody - fungible items
Because fungible items such as drugs or blood samples are not readily identifiable and may be easily tampered with, the party offering such items into evidence must establish a chain of custody as far as practicable. State v. Glenn, 328 S.C. 300, 492 S.E.2d 393 (Ct. App. 1997); State v. Johnson, 318 S.C. 194, 456 S.E.2d 442 (Ct. App. 1995)(certiorari denied November 15, 1995).
Where the analyzed substance has passed through several hands, the evidence must not leave it to conjecture as to who had it and what was done with it between the taking and analysis. While the party offering the evidence need not negate all possibility of tampering, a complete chain of custody tracing possession of the substance from the time it is taken to the time of final analysis must be established as far as practicable. The identity of the persons who have handled the evidence must be established. State v. Taylor, 360 S.C. 18, 598 S.E.2d 735 (Ct. App. 2004).
Blood alcohol results. State v. Smith, 326 S.C. 39, 482 S.E.2d 777 (1997); State v. Cribb, 310
S.C. 518, 426 S.E.2d 306 (1992); State v. Williams, 301 S.C. 369, 392 S.E.2d 181 (1990); State v.
Priester, 301 S.C. 165, 391 S.E.2d 227 (1990); State v. Williams, 297 S.C. 290, 376 S.E.2d 773
(1989).
Drug analysis. State v. Singleton, 319 S.C. 312, 460 S.E.2d 573 (1995); State v. Joseph, 328 S.C.
352, 491 S.E.2d 275 (Ct. App. 1997)(certiorari dismissed as improvidently granted March 17,
1999).
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Testimony as to the care and handling of a piece of evidence while in the care of someone in the chain of custody is not necessary to establish a chain of custody, but goes instead to the weight of the evidence. State v. Carter, 344 S.C. 419, 544 S.E.2d 835 (2001) (where the State established a complete chain of custody, evidence of discrepancy in the contents of a package went to the weight of the evidence); State v. Smith, 326 S.C. 39, 482 S.E.2d 777 (1997)(evidence of storage of blood sample in trooper’s home); State v. Kahan, 268 S.C. 240, 233 S.E.2d 293 (1977)(care and handling of piece of evidence kept in evidence locker); State v. Johnson, 318 S.C. 194, 456
S.E.2d 442 (Ct. App. 1995) (discrepancy in dates in chain of custody); State v. Wells, 336 S.C.
223, 426 S.E.2d 814 (Ct. App. 1992)(handling of victim’s clothing while in SLED’s central evidence holding room; identity of person in autopsy office who gave officer bag of victim’s clothing).
Rule 6(a), SCRCrimP, provides that under certain conditions, a report signed by a chemist or analyst is admissible to establish that the material is or contains the substance or substances stated without the necessity of the chemist or analyst personally being present or appearing in court.
However, the rule also provides that the trial court shall require the presence of the chemist or analyst upon proper objection by the defendant. Rule 6 does not supplant the general law governing chain of custody requirements, but instead simply provides an alternate means of establishing a chain of custody by authorizing, under proper circumstances, the admission of reports and affidavits in lieu of live testimony. State v. Joseph, 328 S.C. 352, 491 S.E.2d 275 (Ct.
App. 1997).
(2) Chain of custody - non-fungible items
While the chain of custody requirement is strict where fungible evidence is involved, where the issue is the admissibility of non-fungible evidence --- that is, evidence that is unique and identifiable --- the establishment of a strict chain of custody is not required. If the offered item possesses characteristics which are fairly unique and readily identifiable, and if the substance of which the item is composed is relatively impervious to change, the trial court is viewed as having broad discretion to admit the item merely on the basis of testimony that it is the item in question and is in a substantially unchanged condition. State v Glenn, 328 S.C. 300, 492 S.E.2d 393 (Ct.
App. 1997) (porcelain fragment unique and readily identifiable, and thus no requirement of strict chain of custody; instead, the fragment was admissible upon a proper showing of relevance and identification).
(3) Connection to defendant
Items of evidence need not have been within defendant's exclusive control or possession so long as he had distinctive relationship to the property. The question of admissibility is whether the facts and circumstances surrounding their discovery would support an inference that the defendant was in possession. State v. Jackson, 265 S.C. 278, 217 S.E.2d 794 (1975)(evidence
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identifying wallet as one stolen and pistol as one used in robbery and evidence that both items were found in passenger compartment of car occupied by defendant and two companions two days after robbery was sufficient to allow their introduction into evidence).
Evidence connecting items to the defendant can either be direct or circumstantial. Furthermore, the rule is that definite or certain evidence is not required. All that is required is that evidence be sufficient to afford a basis for a reasonable inference on a point in issue. Once a basis for a reasonable inference is provided, the demonstrative evidence is rendered admissible. The jury is then left to determine what weight it will give the evidence. State v. Bell, 302 S.C. 18, 393 S.E.2d
364 (1990), cert. denied, 498 U.S. 881, 111 S. Ct. 227, 112 L. Ed. 2d 182 (1990)(women's underwear taken from defendant's bedroom admissible because similar to the kind murder victim was wearing);
State v. McConnell, 290 S.C. 278, 350 S.E.2d 179 (1986) (various bullets not connected to the defendant were improperly admitted);
State v. Quillien, 263 S.C. 87, 207 S.E.2d 814 (1974) (pistol properly admitted when witness testified defendant threw a pistol from the car, police chasing the car saw an object thrown from the car, and police recovered pistol two hours later along the road where the chase occurred);
State v. Smith, 307 S.C. 376, 415 S.E.2d 409 (Ct. App. 1992) (certiorari dismissed as improvidently granted November 10, 1993)(testimony that police found ax where anonymous caller said it would be, ax had blood on it as well as hairs consistent with victim’s, victim’s wounds were consistent with ax and dispatcher identified defendant as anonymous caller who said ax was murder weapon and who told dispatcher where it could be found was sufficient to afford basis for forming reasonable inference defendant used ax to murder victim).
(4) Condition of evidence
Before a physical object connected with the commission of a crime may properly be admitted in evidence there must be a showing that the object is in substantially the same condition as when the crime was committed. This determination is to be made by the trial judge.
Factors to be considered in making this determination include the nature of the article, the circumstances surrounding the preservation and custody of it, and the likelihood of intermeddlers tampering with it.
If upon the consideration of such factors the trial judge is satisfied that in reasonable probability the article has not been changed in important respects, he may permit its introduction in evidence.
State v. Hayden, 268 S.C. 214, 232 S.E.2d 889 (1977) (no error in admitting seized cocaine that may have been tampered with where result would be only a reduction in amount).
State v. Bendoly, 273 S.C. 47, 254 S.E.2d 287 (1979) (contents of the automobile were properly admitted into evidence where automobile was towed from scene of arrest to police impounding
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lot where it was locked, impounding lot was enclosed by cyclone fence topped with barbed wire, keys needed to unlock automobile were in constant possession of police and there was only a short interval of approximately three hours between time automobile was impounded and time it was inventoried). f) Voice identification
A witness' identification of a person based on having heard the person’s voice is regarded as legitimate and competent evidence to establish identity in criminal cases. A witness is not required to be an expert or have training in voice identification before so testifying.
Testimony by a witness that the witness recognized the accused by voice is admissible, provided the witness has some basis for comparison of the accused's voice with the voice identified as that of the accused. State v. Plyler, 275 S.C. 291, 270 S.E.2d 126 (1980).
The identity of the party with whom the witness talked need not be known at the time of the conversation, but is sufficient if knowledge enabling the witness to identify the other party is later obtained. The basis for comparison of the accused's voice with the voice identified as that of the accused may be satisfied if the witness acquires his knowledge of the accused's voice after the event testified to by the witness. State v. Porter, 251 S.C. 393, 162 S.E.2d 843 (1968), cert. denied, 393 U.S. 1079, 89 S. Ct. 859, 21 L. Ed. 2d 773 (1969).
State v. Stewart, 275 S.C. 447, 272 S.E.2d 628 (1980) (witness' identification of a robber based on the robber's distinctive voice was properly admitted when the voice was heard again by chance six months after the robbery).
State v. Smith, 307 S.C. 376, 415 S.E.2d 409 (Ct. App. 1992)(certiorari dismissed as improvidently granted November 10, 1993)(dispatcher’s description of anonymous caller's voice and her recognition of defendant’s voice as that of the anonymous caller when he came to the sheriff’s office to speak to detectives less than twenty-four hours later was sufficient testimony as to the recognition of defendant's voice).
The fact that the witness is not absolutely certain of the identity of the anonymous caller does not affect the admissibility of the identification of the voice. State v. Smith, 307 S.C. 376, 415 S.E.2d
409 (Ct. App. 1992)(certiorari dismissed as improvidently granted November 10, 1993), citing
State v. Steadman, 216 S.C. 579, 59 S.E.2d 168 (1950) (the credibility of voice identification testimony was for the jury), cert. denied 340 U.S. 850, 71 S. Ct. 78, 95 L. Ed. 623 (1950) and 29
Am.Jur.2d Evidence ' 368 at 417 (the general rule is that mere uncertainty on the part of a witness identifying an accused by voice recognition affects only the weight and not the admissibility of the testimony).
The identification is also competent when made by use of a recording device. State v. Hester, 137
S.C. 145, 134 S.E. 885 (1926).
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3.
BEST EVIDENCE
The "best evidence rule" provides that when the contents of a writing are sought to be proved, the original document must be produced unless some reason can be shown for its unavailability.
Penton v. J.F. Cleckley & Co., 326 S.C. 275, 486 S.E.2d 742 (1997).
In a restitution hearing in a prosecution for breach of trust, the admission of a handwritten summary of the corporate victim's daily transactions and shortages into evidence did not violate the best evidence rule, as defendant's counsel knew prior to the hearing that the State intended to use the summary as the sole evidence of financial loss caused to the victim by the defendant, the prosecution informed counsel that the victim would allow counsel to inspect and copy documents used in preparing the summary, and at the hearing the defendant was allowed to cross-examine the victim's owner, who prepared the summary, on the accuracy of the summary. State v.
Gulledge, 326 S.C. 220, 487 S.E.2d 590 (1997).
In a murder case, the State attempted to introduce a life insurance application to show the accused would benefit from the death of the victim. However, the court held the policy was the best evidence and should be submitted rather than the application. State v. Hartfield, 272 S.C. 407,
252 S.E.2d 139 (1979).
In State v. Miller, 260 S.C. 1, 193 S.E.2d 802 (1972), the Court held the best evidence did not apply to exclude testimony regarding twenty dollar bills which were taken in a robbery, and which were later found missing from a police locker, since the testimony related to the identity of the bills and not to their contents as written instruments, and the bills had apparently been stolen and were not available at the trial.
When it is necessary to establish a date of birth in a criminal case, a certificate of birth or other official record is not necessarily required, but can instead be established through the testimony of a person having actual knowledge thereof. State v. Bailey, 253 S.C. 304, 170 S.E.2d 376 (1969);
State v. Wagstaff, 202 S.C. 443, 25 S.E.2d 484 (1943).
4.
EVIDENCE OF DEFENDANT’S CHARACTER
a) Generally
Under Rule 404(a)(1), SCRE, an accused may introduce evidence as to a pertinent character trait regardless of whether or not the accused testifies at trial. The rule permits such evidence when a defendant demonstrate possession of a character trait that relates to the alleged offense - a
“pertinent” character trait. State v. Mizell, 332 S.C. 273, 504 S.E.2d 338 (Ct. App.
1998)(certiorari denied April 6, 1999); see also State v. Hallman, 298 S.C. 172, 379 S.E.2d 115
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(1989)(appropriate proof of character is to establish defendant's general reputation as to the particular trait involved, such as morality; in a criminal sexual conduct prosecution, trial judge improperly restricted character evidence to matters indicating truth and veracity).
Once the defendant introduces evidence as to a pertinent character trait, evidence may be offered by the State to rebut the accused's character trait evidence. The State is restricted to showing bad character only for the traits focused on by the accused. See Rule 404(a)(1), SCRE; State v.
Council, 335 S.C. 1, 515 S.E.2d 508 (1999); State v. King, 334 S.C. 504, 514 S.E.2d 578 (1999);
State v. Major, 301 S.C. 181, 391 S.E.2d 235 (1990)(defendant put his good character in issue in a drug prosecution by asserting he had nothing to do with drug activity at a certain night spot and by denying he sold drugs); State v. Nelson, 331 S.C. 1, 501 S.E.2d 716 (1998); State v. Reeves,
301 S.C. 191, 391 S.E.2d 241 (1990); State v. Allen, 266 S.C. 468, 224 S.E.2d 881 (1976), overruled on other grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991), and overruled on other grounds by State v. Evans, 307 S.C. 477, 415 S.E.2d 816 (1992); State v.
Gilbert, 196 S.C. 306, 13 S.E.2d 451 (1941). b) Truth and veracity
Evidence of an accused’s reputation for truth and veracity can become admissible when the accused’s character for truthfulness has been attacked. Otherwise, in order for a defendant’s character for truthfulness to be admissible, truthfulness must be a trait pertinent to the offense charged. State v. Weaverling, 337 S.C. 460, 523 S.E.2d 787 (Ct. App. 1999); State v. Mizell, 332
S.C. 273, 504 S.E.2d 338 (Ct. App. 1998)(certiorari denied April 6, 1999). c) Evidence relevant for other purposes
While the State may not attack a defendant's character unless the accused has placed it in issue, relevant evidence admissible for other purposes need not be excluded merely because such evidence incidentally reflects upon the defendant's reputation. State v. Faulkner, 274 S.C. 619,
266 S.E.2d 420 (1980) (testimony that defendant's name was on a list of persons from whom undercover police were trying to buy drugs was admissible to identify the defendant).
5.
EVIDENCE OF OTHER BAD ACTS (LYLE)
a) Exceptions to inadmissibility
Generally, evidence of other bad acts is not admissible to show criminal propensity or to demonstrate the accused is a bad person. However, such evidence is admissible to show motive, identity, the existence of a common scheme or plan, the absence of mistake or accident, or intent.
Rule 404(b), SCRE; State v. Beck, 342 S.C. 129, 536 S.E.2d 679 (2000); State v. Dickerson, 341
S.C. 391, 535 S.E.2d 119 (2000); State v. Brooks, 341 S.C. 57, 533 S.E.2d 325 (2000); State v.
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Smith, 337 S.C. 27, 522 S.E.2d 598 (1999); State v. King, 334 S.C. 504, 514 S.E.2d 578 (1999);
State v. Nelson, 331 S.C. 1, 501 S.E.2d 716 (1998); State v. Lyle, 125 S.C. 406, 118 S.E. 803
(1923).
(1) Common Scheme or Plan.
For the common scheme or plan exception to apply, a close degree of similarity or connection between the prior bad act and the crime is necessary.
The following cases involved prior bad acts which were similar to the crime for which the defendant was on trial: State v. Cheeseboro, 346 S.C. 526, 552 S.E.2d 300 (2001); State v.
Raffaldt, 318 S.C. 110, 456 S.E.2d 390 (1995).
In the following cases, there was insufficient testimony of similarities between the prior bad act and the crime for which the defendant was on trial: State v. Hough, 325 S.C. 88, 480 S.E.2d 77
(1997); State v. Timmons, 327 S.C. 48, 52, 488 S.E.2d 323 (1997); State v. Jenkins, 322 S.C. 414,
472 S.E.2d 251 (1996) State v. Parker, 315 S.C. 230, 433 S.E.2d 831 (1993); State v. Berry, 332
S.C. 214, 503 S.E.2d 770 (Ct. App. 1998); State v. Tutton , 354 S.C. 319, 580 S.E.2d 186 (Ct.
App. 2003). b) Standard of proof
If the prior bad act was not the subject of a conviction, it must be established by clear and convincing evidence to be admissible. State v. Beck, 342 S.C. 129, 536 S.E.2d 679 (2000); State v. Dickerson, 341 S.C. 391, 535 S.E.2d 119 (2000); see also State v. Wilson, 345 S.C. 1, 545
S.E.2d 827 (2001) (the appellate court is bound by the trial court’s finding that a prior bad act was proved by clear and convincing evidence, unless this finding is clearly erroneous); State v. Aiken,
322 S.C. 177, 470 S.E.2d 404 (Ct. App. 1996)(Court of Appeals held defendant's prior bad acts established by clear and convincing evidence where witness testified he had direct knowledge because he and defendant committed prior bad acts together). c) Relevance
Evidence sought to be introduced under Lyle must logically relate to the crime with which the defendant has been charged. State v. Beck, 342 S.C. 129, 536 S.E.2d 679 (2000); State v. Brooks,
341 S.C. 57, 533 S.E.2d 325 (2000); State v. King, 334 S.C. 504, 514 S.E.2d 578 (1999).
Such evidence is admissible if "logically relevant" to establish a material fact or element of the crime; it need not be "necessary" to the State's case in order to be admitted. State v. Bell, 302
S.C. 18, 393 S.E.2d 364, cert. denied, 498 U.S. 881, 111 S. Ct. 227, 112 L. Ed. 2d 182 (1990).
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Evidence is relevant if it tends to establish or make more or less probable some matter at issue upon which it directly or indirectly bears. State v. Bell, 302 S.C. 18, 393 S.E.2d 364, cert. denied,
498 U.S. 881, 111 S. Ct. 227, 112 L. Ed. 2d 182 (1990).
If the court does not clearly perceive the connection between the extraneous criminal transaction and the crime charged, that is, its logical relevancy, the accused should be given the benefit of the doubt, and the evidence should be rejected. State v. Brooks, 341 S.C. 57, 533 S.E.2d 325 (2000);
State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923).
Evidence of other crimes is admissible to establish a material fact or element of the crime charged. State v. Benton, 338 S.C. 151, 526 S.E.2d 228 (2000)(defendant’s two prior burglary convictions offered to prove statutory element of first degree burglary, not to suggest defendant was bad person or committed present burglary because he had committed prior burglaries).
However, the trial judge must still determine whether the probative value of the evidence outweighs its prejudicial effect. See State v. James , 355 S.C. 25, 583 S.E.2d 745 (2003) (trial judge erred in admitting evidence of seven prior burglary convictions, even though the first degree burglary statute lists two or more prior convictions as an element of the crime, when the probative value of entering all seven convictions was outweighed by its prejudicial effect to the defendant).
The following cases address the relevance of evidence of drug use to the crime charged.
Drug use as evidence of defendant’s identity. State v. Dickerson, 341 S.C. 391, 535 S.E.2d 119
(2000).
Drug use as evidence of motive. State v. Hough, 325 S.C. 88, 480 S.E.2d 77 (1997); State v.
Adams, 322 S.C. 144, 470 S.E.2d 366 (1996); State v. Coleman, 301 S.C. 57, 389 S.E.2d 659
(1990); State v. Gilchrist, 329 S.C. 621, 496 S.E.2d 424 (Ct. App. 1998).
Drug use irrelevant because did not occur contemporaneously with the crime for which the defendant was being tried. State v. Smith, 309 S.C. 442, 424 S.E.2d 496 (1992); State v. Bolden,
303 S.C. 41, 398 S.E.2d 494 (1990). d) Probative value
Even though the evidence is clear and convincing and falls within a Lyle exception, it must be excluded if its probative value is substantially outweighed by the danger of unfair prejudice to the defendant. Unfair prejudice means an undue tendency to suggest decision on an improper basis.
Rule 403, SCRE; State v. Beck, 342 S.C. 129, 536 S.E.2d 679 (2000); State v. Dickerson, 341
S.C. 391, 535 S.E.2d 119 (2000). The determination of the prejudicial effect of prior bad act evidence must be based on the entire record and the result will generally turn on the facts of each case. State v. Brooks, 341 S.C. 57, 533 S.E.2d 325 (2000).
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e) Harmless error
Details of prior bad act evidence inadmissible under Lyle are deemed harmless beyond a reasonable doubt where they are minimal. State v. Burton, 326 S.C. 605, 486 S.E.2d 762 (1997)
(witness did not identify the perpetrator nor give any details as to the alleged sexual abuse, and thus, any alleged error in allowing the testimony is harmless in light of other testimony); State v.
Forney, 321 S.C. 353, 468 S.E.2d 641 (1996). Error is harmless where it could not reasonably have affected the result of the trial. State v. Charping, 313 S.C. 147, 437 S.E.2d 88 (1993).
6.
IMPEACHMENT EVIDENCE.
When an accused takes the witness stand, he becomes subject to impeachment like any other witness. Regardless of whether the accused offers evidence of his good character, he may be cross-examined about past transactions that affect his credibility and about prior bad acts, not the subject of a conviction, which go to credibility, but if accused denies the prior misconduct, state must accept the answer. State v. Major, 301 S.C. 181, 391 S.E.2d 235 (1990).
Rule 609(a)(1), SCRE, provides a two-part test for determining whether a defendant’s prior convictions can be used to impeach him: (1) the prior crime must have been punishable by death or imprisonment in excess of one year, and (2) the court must determine that the probative value of admitting the evidence outweighs its prejudicial effect to the accused. This rule eliminates the necessity of determining whether a crime is one of moral turpitude. Green v. State, 338 S.C. 428,
527 S.E.2d 98 (2000).
The following factors, along with other relevant factors, should be considered when weighing the probative value of the prior convictions against their prejudicial effect to the accused:
Impeachment value of the prior crime;
Point in time of conviction and defendant’s subsequent history;
Similarity between past crime and charged crime;
Importance of defendant’s testimony;
Centrality of credibility issue.
Green v. State, 338 S.C. 428, 527 S.E.2d 98 (2000); State v. Colf, 337 S.C. 622, 525 S.E.2d 246
(2000).
Evidence of a prior conviction under Rule 609, SCRE, is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the
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confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its probative effect. Rule 609(b), SCRE. The trial court must conduct a balancing test and articulate for the record specific facts and circumstances in order to overcome Rule 609(b)’s presumption against admissibility.
Rule 609(a)(2), SCRE states that crimes of dishonesty are admissible against any witness, and it does not require the balancing test. The Court of Appeals held that an armed robbery conviction was properly admitted against the defendant because it was a crime of dishonesty. State v. Al-
Amin , 353 S.C. 405, 578 S.E.2d 32 (Ct. App. 2003). The Court noted that federal courts have strictly construed the section, but that many state courts have held that robbery is a crime of dishonesty.
7.
SCIENTIFIC EVIDENCE
a) Generally
Rule 702, SCRE, states that if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
When admitting scientific evidence under Rule 702, SCRE, the trial judge must find the evidence will assist the trier of fact, the expert witness is qualified, and the underlying science is reliable.
State v. Council, 335 S.C. 1, 515 S.E.2d 508 (1999).
The trial judge should apply the factors set forth in State v. Jones, 273 S.C. 723, 259 S.E.2d 120
(1979) to determine reliability. Under the Jones standard, the trial court looks at several factors, including:
(1) the publications and peer review of the technique;
(2) prior application of the method to the type of evidence involved in the case;
(3) the quality control procedures used to ensure reliability; and
(4) the consistency of the method with recognized scientific laws and procedures.
State v. Council, 335 S.C. 1, 515 S.E.2d 508 (1999).
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If the evidence is admissible under Rule 702, SCRE, the trial judge should determine if its probative value is outweighed by its prejudicial effect. Rule 403, SCRE; State v. Council, 335
S.C. 1, 515 S.E.2d 508 (1999).
Once the evidence is admitted under these standards, the jury may give it such weight as it deems appropriate. State v. Council, 335 S.C. 1, 515 S.E.2d 508 (1999). b) DNA evidence
Like other scientific evidence, DNA evidence may be admitted subject to relevancy, prejudice, and other challenges to its admissibility. State v. Register, 323 S.C. 471, 476 S.E.2d 153 (1996);
State v. Ford, 301 S.C. 485, 392 S.E.2d 781 (1990); State v. Hyman, 322 S.C. 59, 471 S.E.2d 466
(Ct. App. 1996).
The procedure set out in State v. Council, 335 S.C. 1, 515 S.E.2d 508 (1999) is used to determine the admissibility of DNA testing procedures which have not yet been recognized as reliable and admissible in previous cases.
DNA print testing and the process of restriction fragment length polymorphism (RFLP) analysis have been recognized as reliable and admissible without first holding a Jones hearing, subject to attack for relevancy or prejudice. Challenges to the methods used should be addressed to the weight or probative value of the evidence and not to its admissibility. State v. Register, 323 S.C.
471, 476 S.E.2d 153 (1996); State v. Ford, 301 S.C. 485, 392 S.E.2d 781 (1990).
In order for DNA evidence to be excluded, the trial court must find that it was so tainted as to be totally unreliable. State v. Register, 323 S.C. 471, 476 S.E.2d 153 (1996). c) Polygraph
The South Carolina Supreme Court has consistently held the results of polygraph examinations are generally not admissible because the reliability of the tests is questionable. State v. Council,
335 S.C. 1, 515 S.E.2d 508 (1999); State v. Wright, 322 S.C. 253, 471 S.E.2d 700 (1996); State v.
Copeland, 278 S.C. 572, 300 S.E.2d 63 (1982).
Further, the Court has declined to admit in mitigation the results of a polygraph exam offered during the penalty phase of a trial. State v. Copeland, 278 S.C. 572, 300 S.E.2d 63 (1982).
However, in light of the adoption of the SCRE, the Court held in State v. Council, 335 S.C. 1, 515
S.E.2d 508 (1999) that the admissibility of this type of scientific evidence should be analyzed under Rules 403 and 702, SCRE and the standard for admitting scientific evidence set forth in
State v. Jones, 273 S.C. 723, 259 S.E.2d 120 (1979).
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In United States v. Scheffer, 523 U.S. 303, 118 S. Ct. 1261, 140 L. Ed. 2d 413 (1998), the United
States Supreme Court, finding there is no consensus that polygraph evidence is reliable and that the scientific community remains extremely polarized about the reliability of polygraph techniques, held a per se rule against the admission of polygraph evidence does not violate a defendant's right to present relevant evidence in his defense as guaranteed by the U.S.
Constitution.
Evidence regarding the defendant's willingness or refusal to submit to a polygraph examination is inadmissible. State v. Johnson, 334 S.C. 78, 512 S.E.2d 795 (1999)(mere inadvertent mention of offer to take polygraph examination did not result in error; further, extensive curative instruction given by trial judge cured any possible prejudice caused by brief mention of offer of polygraph examination); State v. McGuire, 272 S.C. 547, 253 S.E.2d 103 (1979) (trial judge failed to ensure no improper inference was created by the mention of an offer to take a polygraph exam). d) Hypnosis
It is the general rule that testimony as to the results of hypnotic examination is not admissible if offered for the truth of the matter asserted. State v. Evans, 316 S.C. 303, 450 S.E.2d 47 (1994);
State v. Pierce, 263 S.C. 23, 207 S.E.2d 414 (1974). Pierce is limited to the testimony of persons other than the declarant when that testimony is to be admitted for the truth of the matter asserted.
Pierce does not prohibit a declarant from testifying according to his own recollection.
To determine whether the admission of post-hypnotic testimony from the declarant violates the
Confrontation Clause, the trial court must examine whether hypnosis affected the witness's ability to testify and respond freely to cross-examination. If post-hypnotic testimony is shown to be independent of the dangers associated with hypnosis, the admission of the testimony does not violate the Confrontation Clause. State v. Evans, 316 S.C. 303, 450 S.E.2d 47 (1994).
To determine whether a witness's testimony is independent of the dangers associated with hypnosis, a court must examine whether:
1) the witness's trial testimony was generally consistent with pre-hypnotic statements;
2) considerable circumstantial evidence corroborates the witness's post-hypnotic testimony; and
3) the witness's responses to examination by counsel generally were not the automatic responses of a preconditioned mental process.
State v. Evans, 316 S.C. 303, 450 S.E.2d 47 (1994).
Any determination as to the admissibility of post-hypnotic testimony should be made in camera.
If the trial judge determines that such evidence is admissible, the parties may fully explore questions of credibility before the jury. State v. Evans, 316 S.C. 303, 450 S.E.2d 47 (1994).
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e) Statistics
Population frequency statistics for DNA test results are also admissible and are subject to attack for relevance or prejudice. They jury should be allowed to make its own determination as to whether the statistics are believable. State v. Register, 323 S.C. 471, 476 S.E.2d 153
(1996)(evidence establishing statistical probability of defendant matching DNA found on victim was admissible); State v. Dinkins, 319 S.C. 415, 462 S.E.2d 59 (1995); State v. Hyman, 322 S.C.
59, 471 S.E.2d 466 (Ct. App. 1996). f) Breathalyzer testing
Prior to admitting the results of a breathalyzer test, the State may be required to prove:
(1) the machine was in proper working order at the time of the test;
(2) the correct chemicals had been used;
(3) the accused was not allowed to put anything in his mouth for twenty minutes prior to the test; and
(4) the test was administered by a qualified person in the proper matter.
State v. Parker, 271 S.C. 159, 163, 245 S.E.2d 904, 906 (1978).
Although the trial court denied Salisbury’s motion to have an in camera hearing on the propriety of the breathalyzer procedures, the State proved all the relevant Parker criteria prior to the introduction of the breathalyzer results. Accordingly, the trial court property admitted the breathalyzer results into evidence and was not required to conduct an in camera hearing to make this determination. State v. Salisbury, 330 S.C. 250, 498 S.E.2d 655 (Ct. App. 1998), aff’d as modified, 343 S.C. 520, 541 S.E.2d 247 (2001); see also State v. Silver, 307 S.C. 326, 414 S.E.2d
813 (Ct. App. 1992), aff'd as modified, 314 S.C. 483, 431 S.E.2d 250 (1993) (criminal defendant does not have an absolute right to a pretrial, in camera hearing and ruling on an in limine motion to exclude breathalyzer results in a DUI trial).
The precautions in Parker do not apply to the offer and refusal of a breathalyzer test. Rather, the
Parker precautions are intended to insure that the results of the breathalyzer test if given are accurate and reliable as evidence at trial. The question of validity of test methods employed by a breath test operator does not arise until a test is given and its results are offered as evidence. State v. Jansen, 305 S.C. 320, 408 S.E.2d 235 (1991).
Evidence that the simulator test was not run inconformity with S.C. Code Ann. § 56-5-2950(a) goes to the weight, not the admissibility, of breathalyzer test results. State v. Huntley, 349 S.C. 1,
562 S.E.2d 472 (2002).
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g) Out-of-court tests or experiments
To be admissible, an out-of-court test or experiment must be made under conditions similar to those prevailing at the time of the occurrence involved in the controversy. The conditions need not be identical but must be substantially similar. State v. Kahan, 268 S.C. 240, 233 S.E.2d 293
(1977)(gunpowder residue tests performed on victim’s gown).
Where tests or analyses are conducted, the cogent elements are the results, methods used, and qualifications of the tester. The method used and the qualifications of the tester give the results their veracity. Accordingly, where the results of a test or analysis are offered to prove an essential element of a crime or to connect a defendant with a crime, the person who conducted the test or analysis must substantiate the result. Otherwise, the effect of their admission would be to allow a witness to testify without being subject to cross-examination, and thus deprive the accused of his constitutional right to be confronted with and to cross-examine the witness against him. State v.
James, 255 S.C. 365, 179 S.E.2d 41 (1971)(testimony of two doctors as to the arsenic content of victim’s urine was based solely upon a report of a chemical analysis made by a third party who was not called as a witness).
8.
OPINION EVIDENCE
a) Lay Witnesses
(1) Generally
A witness may not testify to a matter unless evidence is introduced sufficient to support a finding the witness has personal knowledge of the matter. Rule 602, SCRE.
The opinion or inference of a lay witness is admissible if it is a) rationally based on the perception of the witness, b) helpful to the determination of a fact in issue, and c) does not require special knowledge. Rule 701, SCRE; State v. Williams, 321 S.C. 455, 469 S.E.2d 49 (1996).
Conclusions or opinions of lay witnesses should be ruled inadmissible only when they are superfluous in the sense that they will be of no value to the jury. State v. McClinton, 265 S.C.
171, 217 S.E.2d 584 (1975).
(2) Examples
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A statement that a confession is free and voluntary is not inadmissible as amounting to a conclusion or an opinion of the witness where the circumstances surrounding the confession are in evidence. State v. Saxon, 261 S.C. 523, 201 S.E. 2d 114 (1973).
A lay witness is perfectly competent to express an opinion as to fear on the part of another, provided the opinion is predicated upon observation of appearance or conduct and not merely upon statements of the party said to be afraid. State v. Bottoms, 260 S.C. 187, 195 S.E.2d 116
(1973).
A non-expert may identify a substance as blood. State v. Edwards, 194 S.C. 410, 10 S.E.2d 587
(1940).
A police officer who is not qualified as an expert witness may only testify regarding direct observations and may not give any opinions as to the cause of an accident. State v. Kelly, 285
S.C. 373, 329 S.E.2d 442 (1985). b) Expert Testimony
(1) Generally
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
Rule 702, SCRE.
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. Rule 703, SCRE.
Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. Rule 704, SCRE.
An expert’s opinion may be based on hearsay evidence so long as it is of a type reasonably relied upon by other experts in the field. State v. Hutto, 325 S.C. 221, 481 S.E.2d 432 (1997).
An expert may give an opinion based upon personal observations or in answer to a properly framed hypothetical question that is based on facts supported by the record. State v. Burton, 302
S.C. 494, 397 S.E.2d 90 (1990).
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Although judge did not abuser his discretion in ruling expert could not testify regarding specific cases regarding coerced confessions, the record reflected that he in fact was allowed to testify about specific cases of false confession. State v. Myers , 359 S.C. 40, 596 S.E.2d 488 (2004).
(2) Qualification
The qualification of a witness as an expert falls largely within the discretion of the trial judge. It is incumbent upon the party offering the expert to show that the witness possesses the requisite learning, skill, or practical experience to enable him to give opinion testimony. Defects in the amount and quality of education or experience go to the weight to be accorded the expert's testimony and not its admissibility. State v. Myers, 301 S.C. 251, 391 S.E.2d 551 (1990).
NOTE : Rule of Evidence 702 governs admissibility of scientific opinion evidence. In Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), on remand, 43 F.3d 1311 (9 th
Cir. 1995), cert. denied, 516 U.S. 869, 116 S. Ct. 189, 133 L. Ed. 2d
126 (1995), the Supreme Court adopted a new federal standard for determining the admissibility of scientific evidence. The decision indicated the adoption of the Federal Rules of Evidence, particularly Rule 702, necessitated the new approach. Id.
Although Rule 702 of the Federal Rules of Evidence is identical to Rule 702, SCRE, our Supreme
Court declined to adopt the Daubert standard, instead relying on Rule 702. When admitting scientific evidence under Rule 702, the trial judge must find the evidence will assist the trier of fact, the expert witness is qualified, and the underlying science is reliable. If the evidence is admissible under Rule 702, the trial judge should determine if its probative value is outweighed by its prejudicial effect. Rule 403, SCRE. Once the evidence is admitted under these standards, the jury may give it such weight as it deems appropriate. State v. Council, 335 S.C. 1, 515 S.E.2d
508 (1999).
(3) Examples of Subjects for Expert Testimony
“Barefoot insole impression” evidence is not admissible. State v. Jones, 343 S.C. 562, 541 S.E.2d
813 (2001).
Blood splatter patterns. State v. Myers, 301 S.C. 251, 391 S.E.2d 551 (1990).
Forensic toxicology. State v. Nathari, 303 S.C. 188, 399 S.E.2d 597 (Ct. App. 1990).
Bite mark testimony. State v. Jones, 273 S.C. 723, 259 S.E.2d 120 (1979).
DNA print identification. State v. Ford, 301 S.C. 485, 392 S.E.2d 781 (1990).
Battered wife (woman) syndrome. State v. Hill, 287 S.C. 398, 339 S.E.2d 121 (1986).
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Fingerprint made by wet finger (as opposed to dry finger) placed in blood. State v. Bellamy, 296
S.C. 478, 374 S.E.2d 180 (1988).
Tool marks and typewriter identification. State v. Edens, 272 S.C. 130, 250 S.E.2d 116 (1978).
Ballistics. State v. Turner, 117 S.C. 470, 109 S.E. 119 (1921).
Handwriting evidence. State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923).
(4) Behavioral Science Expert Opinions in Sexual Abuse
Case
Both expert testimony and behavioral evidence are admissible as rape trauma evidence to prove a sexual offense occurred where the probative value of the evidence outweighs its prejudicial effect.
State v. Schumpert, 312 S.C. 502, 435 S.E.2d 859 (1993).
Expert behavioral science testimony not subject to challenge for reliability may still be challenged on the ground that its probative value is outweighed by its prejudicial effect. State v. Morgan,
326 S.C. 503, 485 S.E.2d 112 (Ct. App. 1997).
Psychotherapist with a specialty in child sexual abuse may be qualified to give an opinion in regard to post traumatic stress disorder resulting from sexual abuse. State v. Henry, 329 S.C. 266,
495 S.E.2d 463 (Ct. App. 1997).
(5) Bloodhounds
The action of bloodhounds which were placed on the supposed track of the offender is admissible as evidence provided that the dogs are allowed to follow their instincts free and untrampled by their handlers. See State v. Jordan, 258 S.C. 340, 188 S.E.2d 780 (1972).
The testimony of the bloodhound handler provided a sufficient foundation for the admissibility of the actions of bloodhounds at the crime scene. The handler testified that he had "run" bloodhounds for Greenville County for eleven to twelve years, the dogs had the characteristics of acuteness in scent as well as the power of discrimination between human and other scents, he found the bloodhounds to be reliable, and he had been qualified as an expert witness between ten to fifteen times in prior court proceedings. See State v. Childs, 299 S.C. 471, 385 S.E.2d 839
(1989). c) Court's Witness
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In extraordinary circumstances, the court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross- examine the witnesses. Before calling a court's witness, the court shall afford the parties a hearing on the matter outside the presence of the jury.
Rule 614, SCRE.
9.
HEARSAY
a) Definition
Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Rule 801(c), SCRE.
Hearsay is not admissible except as provided by the Rules of Evidence or by other rules prescribed by the Supreme Court of this State or by statute. Rule 802, SCRE.
Wordless conduct, such as a nod of the head or pointed finger, may be hearsay if intended as a communication. State v. Williams, 285 S.C. 544, 331 S.E.2d 354 (Ct. App. 1985).
An officer-witness may testify as to information received because an out of court statement is not hearsay if it is offered for the limited purpose of explaining why a government investigation was undertaken. State v. Brown, 317 S.C. 55, 451 S.E.2d 888 (1994); see also Caprood v. State, 338
S.C. 103, 525 S.E.2d 514 (2000). b) Non-Hearsay
(1) Not admitted to prove truth of matter asserted
A statement that is not offered to prove the truth of the matter asserted should not be excluded as hearsay. Rule 801(c), SCRE.
A statement linking the defendant to previous crimes, intended to show a motive for the present crime and not his involvement with the prior crimes, was not hearsay. State v. Blackburn, 271
S.C. 324, 247 S.E.2d 334 (1978); see also Caprood v. State, 338 S.C. 103, 525 S.E.2d 514 (2000).
Testimony of a co-defendant that third parties told him the defendant had threatened to kill him was not hearsay when offered to show the co-defendant's state of mind and the reason he bought a gun and not to prove the defendant wanted to kill him. State v. Lewis, 293 S.C. 107, 359 S.E.2d
66 (1987).
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Testimony about an overheard conversation was not hearsay because its purpose was to place the defendant at the crime scene. State v. Plyler, 275 S.C. 291, 270 S.E.2d 126 (1980).
Audio tapes were not offered to prove the veracity of any statements made during the recorded conversations between the defendant and the third party. The tapes were offered to show that the defendant had been led to believe he worked for the CIA and therefore, did not have criminal intent for his actions. Because the tapes would have added credence to the defendant’s defense that he lacked criminal intent, and they were not hearsay, the trial court should not have excluded them. State v. Blurton, 342 S.C. 500, 537 S.E.2d 291 (Ct. App. 2000), rev’d on other grounds,
352 S.C. 203, 573 S.E.2d 802 (2002).
Police officer’s testimony that an anonymous bystander told him he saw the defendant driving the victim’s car was not hearsay because it was not offered for the truth of the matter asserted, but rather to explain the officer’s reasoning in going to the defendant’s home. State v. Thompson,
352 S.C. 552, 575 S.E.2d 77 (Ct. App. 2003).
(2) Rule 801(d)(1), SCRE. Prior Statement by Witness.
(a) Prior Inconsistent Statement
A prior inconsistent statement may be used as substantive evidence when the declarant testifies at trial and is subject to cross-examination. State v. Copeland, 278 S.C. 572, 300 S.E.2d 63 (1982);
Rule 801(d)(1)(A), SCRE.
When the declarant refuses to admit the statement imputed to him, however, the accused is denied effective cross-examination in violation of his confrontation rights and the statement is not admissible. State v. Pfirman, 300 S.C. 84, 386 S.E.2d 461 (1989).
(b) Prior Consistent Statement
Defendant’s prior consistent statement that he shot the victims by accident was inadmissible where defendant was not available to be cross-examined due to attorney-client privilege. The statement was also not made before the defendant had motive to fabricate a defense, since the warrant for his arrest was already issued. State v. Ard, 332 S.C. 370, 505 S.E.2d 328 (1998), overruled in part on other grounds by State v. Schafer, 340 S.C. 291, 531 S.E.2d 524 (2000); Rule
801(d)(1)(B), SCRE; see also State v. Fulton, 333 S.C. 359, 509 S.E.2d 819 (Ct. App. 1998)(letter written was inadmissible, even for rehabilitative purposes, where the letter was written after defendant was arrested).
The trial court erred in allowing evidence of a prior consistent statement to rehabilitate the witness where the witness was merely cross-examined about an inconsistent statement, but not
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accused of recent fabrication. State v. Saltz, 346 S.C. 114, 551 S.E.2d 240 (2001); see State v.
Jarrell, 350 S.C. 90, 564 S.E.2d 362 (Ct. App. 2002).
(c) Pre-trial Identifications.
Statements regarding pre-trial identifications, which are not the product of unconstitutional procedures, are admissible. State v. Gambrell, 274 S.C. 587, 266 S.E.2d 78 (1980); Rule
801(d)(1)(C), SCRE.
(d) Declaration by Victim of Criminal Sexual Conduct.
In criminal sexual conduct cases, a prior consistent statement made by a testifying victim is not considered to be hearsay if the statement is "limited to the time and place of the incident." Rule
801(d)(1)(D), SCRE. See also, State v. Whisonant, 335 S.C. 148, 515 S.E.2d 768 (Ct. App.
1999)(testimony by victim’s stepmother included details of defendant’s actions and therefore was inadmissible); State v. Burroughs, 328 S.C. 489, 492 S.E.2d 408 (Ct. App. 1997).
(3) Admission by Party-opponent.
(a) Party’s Own Statement
Capital defendant's testimony from his prior trial was not hearsay in context of resentencing proceeding, but rather, such testimony was admissible as admission by party-opponent. State v.
Tucker, 334 S.C. 1, 512 S.E.2d 99, cert. denied, 527 U.S. 1042, 119 S. Ct. 2407, 144 L. Ed. 2d
805 (1999); Rule 801(d)(2)(A), SCRE.
(b) Party Has Manifested an Adoption or Belief in
Statement’s Truth.
Statements made in the presence of the accused by a third person are admissible as evidence when the accused remains silent and does not deny such statements. State v. Knoten, 347 S.C. 296, 555
S.E.2d 391 (2001); State v. Smith, 328 S.C. 622, 493 S.E.2d 506 (Ct. App. 1997); Rule
801(d)(2)(B), SCRE.
(c) Statement by Co-Conspirator in Furtherance of the
Conspiracy.
The acts and declarations of any conspirator made during the conspiracy and in furtherance thereof are deemed to be the acts and declarations of every other conspirator and are admissible against all. State v. Sullivan, 277 S.C. 35, 282 S.E.2d 838 (1981).
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The out-of-court admission to a crime was not admissible against declarant’s co-defendant under co-conspirator hearsay exception since the admission was not in furtherance of the conspiracy.
State v. Anders, 331 S.C. 474, 503 S.E.2d 443 (1998).
Admission of a co-conspirator's statement is allowed only where there is evidence of the conspiracy independent of the statement sought to be admitted. The fact that a defendant was indicted for criminal conspiracy is not sufficient in itself to establish a conspiracy since an indictment is not evidence of the crime charged. State v. Gilchrist, 342 S.C. 369, 536 S.E.2d 868
(2000). c) Exceptions to Hearsay Rule: Availability of Declarant
Immaterial. Rule 803, SCRE.
(1) Present Sense Impression.
A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. Rule 803(1), SCRE.
The former res gestae exception largely combined the current requirements of subsections (1) present sense impression and (2) excited utterance. See State v. Burdette, 335 S.C. 34, 515
S.E.2d 525 (1999).
A statement made by the victim that he intended to meet the defendant in the future does not qualify as a present sense impression for admissibility under Rule 803(1). State v. Griffin, 339
S.C. 74, 528 S.E.2d 668 (2000).
Victim's statement to police and nurse approximately ten hours after incident was inadmissible as present sense impression. State v. Burroughs, 328 S.C. 489, 492 S.E.2d 408 (Ct. App. 1997).
(2) Excited Utterance.
A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. Rule 803(2), SCRE.
The rationale behind the excited utterance exception is that the startling event suspends the declarant's process of reflective thought, thus reducing the likelihood of fabrication. In determining whether a statement falls within the excited utterance exception, the totality of the circumstances is viewed. State v. Hill, 331 S.C. 94, 501 S.E.2d 122 (1998).
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Whether a statement is admissible under the excited utterance exception to the hearsay rule depends on the circumstances of each case and the determination is generally left to the sound discretion of the trial court. State v. Burdette, 335 S.C. 34, 515 S.E.2d 525 (1999).
Where it is unknown whether declarant's statement was made under the stress of excitement caused by the event, the statement may not be admissible as an excited utterance. State v. Garcia,
334 S.C. 71, 512 S.E.2d 507 (1999).
In determining whether a statement was made “under the stress of the excitement,” the court may consider the passage of time between the startling event and the statement, the declarant’s demeanor, the declarant’s age, and the severity of the startling event. State v. Sims, 348 S.C. 16,
558 S.E.2d 518 (2002).
(3) Then Existing Mental, Emotional, or Physical Condition.
A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will. Rule 803(3),
SCRE.
Consequently, while the present state of the declarant's mind is admissible as an exception to hearsay, the reason for the declarant's state of mind is not. State v. Garcia, 334 S.C. 71, 512
S.E.2d 507 (1999).
A statement by the victim that he or she planned to meet the defendant at the time or place of the murder is admissible under Rule 803(3) as evidence of the declarant's then-existing state of mind.
State v. Griffin, 339 S.C. 74, 528 S.E.2d 668 (2000).
(4) Statements for Purposes of Medical Diagnosis or
Treatment.
Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment; provided, however, that the admissibility of statements made after commencement of the litigation is left to the court's discretion. Rule 803(4), SCRE.
A statement that the victim had been raped or that the assailant had hurt the victim in a particular area would be pertinent to the diagnosis and treatment of the victim. However, the fact that the defendant asked if he could have a hug before he assaulted the victim in no way can be viewed as
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"reasonably pertinent" to the victim's diagnosis or treatment. State v. Burroughs, 328 S.C. 489,
492 S.E.2d 408 (Ct. App. 1997).
(5) Recorded Recollection.
A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party. Rule
803(5), SCRE.
The provision in the rule limiting the introduction of the writing to when it is offered by an adverse party is a change in South Carolina Law. See Ellis v. Oliver, 323 S.C. 121, 473 S.E.2d
793 (1996)(recognizing the difference between prior law and current rules).
(6) Records of Regularly Conducted Activity.
A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness; provided, however, that subjective opinions and judgments found in business records are not admissible. The term "business" as used in this subsection includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. Rule 803(6), SCRE.
Admission of police fingerprint records does not violate the prohibition against hearsay, either under the public records exception, S.C. Code Ann. §30-1-10 (1991), or the business records exception, S.C. Code Ann. §19-5-510 (1976). A party must still satisfy the usual requirements of authentication. State v. Rich, 293 S.C. 172, 359 S.E.2d 281 (1987).
In a prosecution for violating § 44-29-145, knowingly exposing another to the Human
Immunodeficiency Virus, defendant’s HIV test results and counseling information, which were maintained by DHEC pursuant to § 44-29-135, were admissible as business records. Ex parte the
Department of Health & Environmental Control, 350 S.C. 243, 565 S.E.2d 293 (2002).
(7) Absence of Entry in Records Kept in Accordance With the Provisions of Subsection (6).
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Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance with the provisions of subsection (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness. Rule 803(7), SCRE.
(8) Public Records and Reports.
Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duly imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel; provided, however, that investigative notes involving opinions, judgments, or conclusions are not admissible. Rule 803(8), SCRE.
(9) Records of Vital Statistics.
Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law. Rule 803(9), SCRE.
Prior case law limited admissions of such reports to matters within the knowledge of the person making the report. Williams v. Metropolitan Life Ins. Co., 116 S.C. 277, 108 S.E. 110 (1921).
(10) Absence of Public Record or Entry.
To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with Rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry. Rule 803(10),
SCRE.
(11) Records of Religious Organizations.
Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization. Rule 803(11), SCRE.
(12) Records of Documents Affecting an Interest in
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Property.
The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office. Rule 803(14), SCRE.
See also, S.C. Code Ann. § 19-5-10 (1985 & Supp. 2001)(admissibility of certified copies).
(13) Statements in Documents Affecting an Interest in
Property.
A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document. Rule 803(15), SCRE.
(14) Learned Treatises.
To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits. This rule is in addition to any statutory provisions on this subject. Rule 803(18), SCRE.
This section changes and expands prior South Carolina law which held that medical books were not admissible into evidence except as set forth in S.C. Code Ann. § 19-5-410 (1985) repealed by
1995 Act No. 104, § 7, eff. September 3, 1995.
(15) Reputation Concerning Personal or Family History.
Reputation among members of a person's family by blood, adoption, or marriage, or among a person's associates, or in the community, concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history. Rule 803(19), SCRE.
(16) Reputation as to Character.
Reputation of a person's character among associates or in the community. Rule 803(21), SCRE.
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(17) Judgment of Previous Conviction.
Evidence of a final judgment (to include final judgments in juvenile delinquency matters), entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the Government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility. Rule
803(22), SCRE. d) Exceptions to Hearsay: Declarant Unavailable. Rule 804,
SCRE.
(1) Definition of Unavailability. Rule 804(a), SCRE.
"Unavailability as a witness" includes situations in which the declarant: is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement; or persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so; or testifies to a lack of memory of the subject matter of the declarant's statement; or is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means.
A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.
Defendant who chooses not to testify in accordance with his Fifth Amendment privilege against self-incrimination was not "unavailable," and therefore, defendant’s statement could not be introduced. State v. Terry, 339 S.C. 352, 529 S.E.2d 274 (2000).
(2) Hearsay Exceptions. Rule 804(b), SCRE.
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The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(a) Former Testimony.
Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
(b) Statement Under Belief of Impending Death.
In a prosecution for homicide, a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.
A declarant does not have to express, in direct terms, his awareness of his condition for his statement to be admissible as a dying declaration. The necessary state of mind can be inferred from the facts and circumstances surrounding the declaration. Repeated questioning by the declarant concerning whether he is going to live, a less than reassuring answer, the nature of the wound, and the declarant's critical condition are circumstances that indicate the declarant's awareness of approaching death. State v. McHoney, 344 S.C. 85, 544 S.E.2d 30 (2001).
(c) Statement Against Interest.
A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
A non-self-inculpatory statement, which is collateral to a self-inculpatory statement, is not admissible under Rule 804(b)(3), SCRE as a statement made by an unavailable declarant against his penal interest. Where witness testified regarding a statement by a deceased individual that subjected both the deceased and the defendant to criminal liability for different crimes, the statements regarding the defendant were inadmissible. State v. Fuller, 337 S.C. 236, 523 S.E.2d
168 (1999).
However, if offered to exculpate the accused in a criminal trial, statements against interest are admissible only if corroborating evidence clearly indicates the trustworthiness of the statements.
An abuse of discretion standard is applied to a trial judge's ruling on the issue of whether a
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statement is admissible as a declaration against penal interest. State v. Forney, 321 S.C. 353, 468
S.E.2d 641 (1996).
The corroboration requirement is a preliminary determination as to the statement’s admissibility, not an ultimate determination as to the statement’s truth. The decision as to admission is within the trial court's discretion after considering the totality of the circumstances under which a declaration against penal interest was made. State v. Kinloch, 338 S.C. 385, 526 S.E.2d 705
(2000).
"The question under Rule 804(b)(3) is always whether the statement was sufficiently against the declarant's penal interest 'that a reasonable person in the declarant's position would not have made the statement unless believing it to be true,' and this question can only be answered in light of all the surrounding circumstances." State v. Prioleau, 339 S.C. 605, 529 S.E.2d 561 (Ct. App.
2000)(quoting Williamson v. United States, 512 U.S. 594, 114 S. Ct. 2431, 129 L. Ed. 2d 476
(1994)), cert. granted, October 6, 2000.
(d) Statement of Personal or Family History.
(A) A statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or
(B) a statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other's family as to be likely to have accurate information concerning the matter declared. e) Hearsay Within Hearsay. Rule 805, SCRE.
Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in the rules. f) Attacking and Supporting Credibility of Declarant. Rule
806, SCRE.
When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E) has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness.
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Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain.
If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.
10.
PRIVILEGED COMMUNICATIONS
a) Attorney-Client
The purpose of the attorney-client privilege is to "encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice." Jaffee v. Redmond, 518 U.S. 1, 116 S. Ct. 1923, 135
L.Ed.2d 337 (1996).
This privilege belongs to the client and survives his death. Swidler & Berlin v. United States.,
524 U.S. 399, 118 S. Ct. 2081, 141 L.Ed.2d 379 (1998).
The client may waive it. State v. Doster, 276 S.C. 647, 284 S.E.2d 218 (1981). Not every communication within the attorney-client relationship is privileged. Id. The privilege does not extend to communications in furtherance of criminal, tortious, or fraudulent conduct. Id.
Whether a communication is privileged is for the trial judge to decide after a preliminary inquiry into all the facts and circumstances. State v. Love, 275 S.C. 55, 271 S.E.2d 110 (1980).
Generally, the party asserting the privilege must raise it. State v. Love, 275 S.C. 55, 271 S.E.2d
110 (1980).
In the event of a prosecutor, or other person, eavesdropping on communications between an attorney and client, a defendant must show either 1) deliberate prosecutorial misconduct or 2) prejudice to make out a violation of the Sixth Amendment, but not both. Deliberate prosecutorial misconduct raises an irrebuttable presumption of prejudice. The content of the protected communication is not relevant. The focus must be on the misconduct. In cases involving unintentional intrusions into the attorney-client relationship, the defendant must make a prima facie showing of prejudice to shift the burden to the prosecution to prove the defendant was not prejudiced. State v. Quattlebaum, 338 S.C. 441, 527 S.E.2d 105 (2000).
The attorney-client privilege is not extended to communications with “jailhouse lawyers.” State v. Owens, 309 S.C. 402, 424 S.E.2d 473 (1992).
The attorney-client privilege extends to communications between the client and a psychiatrist retained to aid in the preparation of a case. In determining whether the attorney-client privilege
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extends to communications between a client and a non-lawyer, the court must balance two factors: (1) the need of the attorney for the assistance of the non-lawyer to effectively represent his client, and (2) the increased potential for inaccuracy in the search for trust as the trier of fact is deprived of valuable witnesses. However, before reaching this test, a court must ascertain whether the communication is confidential in nature. State v. Hitopoulus, 279 S.C. 549, 309
S.E.2d 747 (1983); see also State v. Smith, 286 S.C. 406, 334 S.E.2d 277 (1985), overruled in part on other grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991).
In criminal cases, communications made by a defendant to a psychiatrist in order to equip the psychiatrist with the necessary information to provide the defendant's attorney with the tools to aid him in giving his client proper legal advice are within the scope of the attorney-client privilege. Privilege applies even where it is known that the communication may be used in pleanegotiations. State v. Thompson, 329 S.C. 72, 495 S.E.2d 437 (1998). b) Husband-Wife
No husband or wife in a criminal proceeding shall be required to disclose any communication made by one to the other during the marriage. The privilege does not apply in a proceeding involving child abuse, the death of a child, criminal sexual conduct with a minor, or a lewd act upon a minor. S.C. Code Ann. § 19-11-30 (1976 & Supp. 2001).
The privilege belongs to the particular witness and is unaffected by any objection of the spouse.
State v. Motes, 264 S.C. 317, 215 S.E.2d 190 (1975).
Defendant's actions in assaulting his common-law wife were not "communications," as required for witness to invoke marital communication privilege. State v. Govan, 320 S.C. 392, 465 S.E.2d
574 (Ct. App. 1995).
Admitting a defendant’s wife’s statement made to the police during an interrogation violates the
Confrontation Clause when the wife does not testify invoking the marital privilege. The
Confrontation Clause, providing that accused has right to confront and cross-examine witnesses against him, applies not only to in-court testimony, but also to out-of-court statements introduced at trial, regardless of admissibility of statements under law of evidence. Crawford v. Washington,
___ U.S. ___, 124 S.Ct. 1354, 158 L.Ed.2d. 177 (2004), abrogating Ohio v. Roberts, 448 U.S. 56,
100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). c) Priest-Penitent
This privilege applies to confidential communications properly entrusted to a duly ordained priest, minister, or rabbi in his professional capacity and which are necessary and proper to enable him to discharge the functions of his office according to the practice and discipline of his church or
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religious body. The privilege may be waived by the one entitled to assert it. S.C. Code Ann. §
19-11-90 (1976).
In prosecution for murder of priest, decedent's records were protected from discovery by defendant under the priest-penitent privilege where information sought related to a collateral matter which could not have thrown any light on the killing. State v. Franklin, 267 S.C. 240, 226
S.E.2d 896 (1976). d) Mental Health Professional - Patient
A mental health provider may not reveal the confidences of his patients, limited by numerous exceptions. S.C. Code Ann. § 19-11-95 (Supp. 2001). One exception is that the provider shall reveal confidences when under court order for good cause shown to the extent that the patient's care and treatment or the nature and extent of the patient’s mental illness or emotional condition are reasonably at issue in a proceeding.
Psychiatrists are not "providers" under this statute. S.C. Code Ann. § 19-11-95(D)(1) (Supp.
2001).
In a capital case, the jury is required to assess the defendant’s character. The defendant’s mental and emotional status were "reasonably at issue" in the proceeding and the trial court properly ordered disclosure pursuant to § 19-11-95(D). State v. Terry, 339 S.C. 352, 529 S.E.2d 274
(2000).
A court-ordered examination to determine the sanity of a defendant cannot be used for any purposes other than that ordered by the court. A defendants confessions during the course of the examination cannot be revealed over the protests of the accused. State v. Myers, 220 S.C. 309, 67
S.E.2d 506 (1951).
Results of the MMPI-A test administered during a competency evaluation are not admissible as impeachment evidence. See Hudgins v. Moore, 337 S.C. 333, 524 S.E.2d 105 (1999)(PCR appeal finding trial counsel ineffective for failing to object to admission of MMPI-A test results). e) Physician-Patient
There is no physician-patient privilege in South Carolina. Peagler v. Atlantic Coast Line R.R.
Co., 232 S.C. 274, 101 S.E.2d 821 (1958). f) Probation Officer
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Under S.C. Code Ann. § 21-24-290, information provided to probation officers is inadmissible for impeachment or any other purpose regardless of its voluntariness. The statute is clear and is not subject to judicially-crafted rules regarding the admissibility of unconstitutionally seized evidence. State v. Hook , 356 S.C. 421, 590 S.E.2d 25 (2003). g) Guardian ad Litem-Ward
Court of Appeals refused to create a privilege for communications between a guardian ad litem and his ward, except where specifically recognized by statute. State v. Good, 308 S.C. 313, 417
S.E.2d 643 (Ct. App. 1992).
11.
JURY VIEW
The trial judge has no discretion to order a jury view unless requested by either party. Gossett v.
State, 300 S.C. 473, 388 S.E.2d 804 (1990), citing S.C. Code Ann. § 14-7-1320 (1976) (jury view may be had "at the request of either party").
A jury view of the scene is not a taking of testimony. Constitutional protections are not implicated or denied when the trial judge in fact accompanies the jury in the absence of defendants and their counsel, there having been neither an objection to the arrangement nor even a request to be taken along. State v. Plath, 281 S.C. 1, 313 S.E.2d 619 (1984).
Because the jury view is not evidence, where the defendant presents no other testimony, the defendant is entitled to the last closing argument. State v. Mouzon, 326 S.C. 199, 485 S.E.2d 199
(1997).
12.
RAPE SHIELD STATUTE
In criminal sexual conduct prosecutions under S.C. Code Ann. §§ 16-3-652 through 656, the court shall not admit evidence of the victim's sexual conduct. This section is limited by specified exceptions. S.C. Code Ann. § 16-3-659.1 (1985).
Rape shield statute or rule is not a blanket exclusion of evidence concerning alternative sources of a child victim's sexual knowledge. Evidence of a child victim's prior sexual experience is relevant to demonstrate that the defendant is not necessarily the source of the victim's ability to testify about alleged sexual conduct. Evidence admitted because defendant’s defense was that the allegations were completely untrue, it was critical for him to show that the young victims possessed the knowledge necessary to fabricate the allegations. State v. Grovenstein, 340 S.C.
210, 530 S.E.2d 406 (Ct. App. 2000) cert. granted, January 26, 2001.
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Proffered evidence of the victim's sexual conduct is admissible where essential to a full and fair determination of the defendant's guilt and offered for purposes other than to attack the victim's character. State v. Finley, 300 S.C. 196, 387 S.E.2d 88 (1989).
The trial court improperly excluded evidence of the victim's homosexuality in the defendant's prosecution for first degree CSC and other charges where the defendant offered the evidence simply to impeach the credibility of the victim who denied his homosexuality on direct examination. State v. Lang, 304 S.C. 300, 403 S.E.2d 677 (Ct. App. 1991)
13.
WRITTEN STATEMENTS MADE TO PUBLIC OFFICIALS
No witness in any preliminary hearing or in any criminal judicial proceeding of any kind shall be examined or cross-examined concerning a written statement formerly made and given to any person employed by this State unless it first be shown that at the time of the making of the statement the witness was given an exact copy of the statement, and that before his examination or cross-examination the witness was given a copy of the statement and allowed a reasonable time in which to read it. S.C. Code Ann. § 19-1-80 (1985).
The question of compliance with the statute is a factual issue for the jury to decide where testimony on compliance is in conflict. State v. Bullock, 235 S.C. 356, 111 S.E.2d 657 (1959), overruled on other grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991).
First degree burglary defendant was not prejudiced by State's failure to give him copy of his statement until morning of trial since there was no evidence that defendant did not have adequate time to review statement in preparation for trial. Bannister v. State, 333 S.C. 298, 509 S.E.2d 807
(1998).
The statutory requirements are satisfied if a copy of the statement is given to the witness within a reasonable time after its making and far enough in advance to permit the witness to read it before being examined or cross-examined concerning it. State v. Jones, 228 S.C. 484, 91 S.E.2d 1
(1956); State v. Butler, 277 S.C. 452, 290 S.E.2d 1 (1982), overruled on other grounds by State v.
Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991).
This statute does not apply to an oral statement. State v. Smith, 286 S.C. 406, 334 S.E.2d 277
(1985), overruled in part on other grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315
(1991).
Nor does it apply to tape recordings. State v. Mikell, 257 S.C. 315, 185 S.E.2d 814 (1971).
A waiver of rights form is not a "written statement" under §19-1-80. State v. Smith, 286 S.C.
406, 334 S.E.2d 277 (1985), overruled in part on other grounds by State v. Torrence, 305 S.C. 45,
406 S.E.2d 315 (1991).
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The "witness" referred to in the statute means the person who made the written statement, and not to any other witness who may be examined concerning the statement. State v. Jones, 228 S.C.
484, 91 S.E.2d 1 (1956), overruled on other grounds by State v. Torrence, 305 S.C. 45, 406
S.E.2d 315 (1991).
F.
WITNESSES
1.
COMPETENCY
a) Generally
Every person is competent to be a witness except as otherwise provided by statute or these rules.
Rule 601(a), SCRE.
To be competent to testify, a witness must have the ability to: (1) perceive the event with a substantial degree of accuracy, (2) remember it, (3) communicate about it intelligibly, and (4) be mindful of the duty to tell the truth under oath. State v. Needs, 333 S.C. 134, 508 S.E.2d 857
(1998).
A sense of duty to tell the truth need not be based upon religious belief. A trial court may be satisfied that a witness is morally accountable to tell the truth if the witness knows the difference between right and wrong, knows that it is wrong to lie, and fears being punished if he does lie.
State v. Green, 267 S.C. 599, 230 S.E.2d 618 (1976).
Courts presume a witness to be competent. Bias or other defects in a witness’ testimony may affect a witness’ credibility and are to be weighed by the fact finder. State v. Needs, 333 S.C.
134, 508 S.E.2d 857 (1998).
The party opposing the witness has the burden of proving a witness is incompetent. State v.
Needs, 333 S.C. 134, 508 S.E.2d 857 (1998).
If a party objects to the competency of a witness, the trial court has a duty to make an examination of the witness. In re Robert M., 294 S.C. 69, 362 S.E.2d 639 (1987).
The determination of a witness’ competency to testify is a question for the trial court, and the trial court’s decision will not be overturned absent an abuse of discretion. State v. Needs, 333 S.C.
134, 508 S.E.2d 857 (1998).
The competency determination should be based on the judge’s personal observations of the witness while that witness is being questioned. State v. Camele, 293 S.C. 302, 360 S.E.2d 307
(1987).
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An incompetent witness may be prevented from testifying even after the witness has been called and sworn. State v. Pitts, 256 S.C. 420, 182 S.E.2d 738 (1971).
After the trial court properly has determined a witness is competent, the resolution of the credibility of the witness is within the province of the jury. State v. Needs, 333 S.C. 134, 508
S.E.2d 857 (1998). b) Immunity or Leniency.
The promise of immunity or leniency does not affect a witness’ competency. State v. Blackburn,
271 S.C. 324, 247 S.E.2d 334 (1978). c) Minors
In South Carolina, there is no fixed age a person must attain to be a competent witness. State v.
Lambert, 276 S.C. 398, 279 S.E.2d 364 (1981).
The test to determine if a minor senses a duty to tell the truth is whether the child is aware of right and wrong and understands the probable punishment for lying. State v. Hudnall, 293 S.C. 97, 359
S.E.2d 59 (1987).
The trial judge should be physically present during the competency hearing of a child of very tender years if that child’s testimony is to be introduced through a video taped deposition. State v. Hudnall, 293 S.C. 97, 359 S.E.2d 59 (1987).
A defendant’s right to effective cross-examination was not violated by exclusion from pre-trial competency hearing for a minor in a criminal sexual conduct case because the defendant’s right to cross-examination at trial was not hindered. Starnes v. State, 307 S.C. 247, 414 S.E.2d 582
(1991).
See also, Minors in Sexual Abuse Cases.
2.
INVOKING FIFTH AMENDMENT PRIVILEGE
a) Calling witness who will invoke privilege
A witness may not be called by either the State or the defendant solely for the sake of having the witness invoke the Fifth Amendment privilege against self-incrimination if the purpose is to
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permit the jury to infer wrongdoing from the invocation. State v. Hughes, 328 S.C. 146, 493
S.E.2d 821 (1997). b) Witness Who Professes Innocence
A witness who professes complete innocence has the right to invoke the Fifth Amendment privilege against self-incrimination. Ohio v. Reiner, 532 U.S. 17, 121 S. Ct. 1252, 149 L. Ed. 2d
158 (2001). c) Handwriting samples
The State may require a defendant to provide a handwriting sample without violating his right against self-incrimination. State v. Frasier, 341 S.C. 546, 534 S.E.2d 711 (Ct. App. 2000). d) Physical Characteristics
Exhibition of a defendant’s physical characteristics does not implicate the defendant’s privilege against self-incrimination because such an exhibition is not testimonial. State v. Hart, 306 S.C.
344, 412 S.E.2d 380 (1991).
3.
EXAMINATION
a) Testimony of child witnesses and other special needs witnesses
The circuit or family court must treat sensitively witnesses who are very young, elderly, handicapped, or who have special needs by using closed or taped sessions when appropriate. The prosecuting agency or defense attorney must notify the court when a victim or witness deserves special consideration. S.C. Code Ann. § 16-3-1550(E). b) Direct Examination
Generally, a party cannot ask leading questions on direct. Rule 611(c), SCRE.
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The true test of whether a question is leading and therefore improper is whether it suggests the answer. State v. Tyner, 273 S.C. 646, 258 S.E.2d 559 (1979); State v. Cook, 204 S.C. 295, 28
S.E.2d 842 (1944).
The trial judge has wide discretion when ruling on an objection to a question on the ground it is leading. State v. Cook, 204 S.C. 295, 28 S.E.2d 842 (1944).
Leading questions may be allowed in the following instances:
As necessary to develop a witness’ testimony. Rule 611(c), SCRE.
Child witnesses, particularly about delicate matters. State v. Hale, 284 S.C. 348, 326 S.E.2d 418
(Ct. App. 1985).
To examine a hostile witness, an adverse party, or a witness identified with an adverse party.
Rule 611(c), SCRE. c) Cross Examination
(1) Right to cross
Generally, the constitutional right to cross-examine the state’s witnesses is guaranteed by the
Sixth and Fourteenth Amendments. State v. McCoy, 274 S.C. 70, 261 S.E.2d 159 (1979).
(2) Scope
A witness may be cross-examined on any matter relevant to any issue in the case, including credibility. Rule 611(b), SCRE.
The scope of cross-examination is within the discretion of the trial judge, whose decision will not be reversed on appeal absent a showing of prejudice. State v. Colf, 337 S.C. 622, 525 S.E.2d 246
(2000).
The Confrontation Clause guarantees a defendant the opportunity to cross-examine a witness on such matters as bias, the witness’ lack of care and attentiveness, poor eyesight, and the fact the witness has a bad memory. United States v. Owens, 484 U.S. 554, 108 S. Ct. 838, 98 L. Ed. 2d
951 (1988).
Considerable latitude is allowed in the cross- examination of a witness to test the witness' memory, bias, prejudice, interest, or credibility. State v. Smith, 263 S.C. 150, 208 S.E.2d 533
(1974).
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(3) Limitations on Scope
The trial court may impose reasonable limits on cross-examination based on concerns about such things as harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant. State v. Jenkins, 322 S.C. 360, 474 S.E.2d 812 (Ct. App.
1996).
Before a defendant can be prohibited from attempting to demonstrate the bias of a witness, the record must clearly show that the cross-examination would have been inappropriate. State v.
Graham, 314 S.C. 383, 444 S.E.2d 525 (1994).
(4) Waiver
The right to cross-examine a witness may be waived if a party does not make an effort to do so.
State v. Johnson, 249 S.C. 1, 152 S.E.2d 669 (1967).
(5) Confrontation Clause
A showing of the unavailability of a hearsay declarant is not required when the utility of trial confrontation is remote. State v. Hutto, 325 S.C. 221, 481 S.E.2d 432 (1997).
The remoteness of the utility of trial confrontation may be inferred by the objecting party’s failure to subpoena the hearsay declarant and the evidence falls within a firmly rooted hearsay exception.
State v. Hutto, 325 S.C. 221, 481 S.E.2d 432 (1997).
The Confrontation Clause, providing that accused has right to confront and cross-examine witnesses against him, applies not only to in-court testimony, but also to out-of-court statements introduced at trial, regardless of admissibility of statements under law of evidence. The Sixth
Amendment demands that where testimonial evidence is at issue, the unavailability of the witness and a prior opportunity for cross-examination of that witness. This ruling is subject to harmless error analysis. Crawford v. Washington, ___ U.S. ___, 124 S.Ct. 1354, 158 L.Ed.2d. 177 (2004) abrogating Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). d) Re-direct
The scope of redirect rests in the discretion of the trial court. State v. Stroman, 281 S.C. 508, 316
S.E.2d 395 (1984).
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A witness is entitled to bring out on redirect all of the surrounding facts regarding testimony given under cross- examination. State v. Stroman, 281 S.C. 508, 316 S.E.2d 395 (1984).
The court may allow redirect on an issue notwithstanding the fact that the issue was not raised on cross-examination. State v. Barrs, 257 S.C. 193, 184 S.E.2d 708 (1971). e) Re-cross
The right to, and scope of, re-cross examination is within the sound discretion of the trial court.
Liberty Mut. Ins. Co. v. Gould, 266 S.C. 521, 224 S.E.2d 715 (1976). f) Reply Testimony
The admission of reply testimony is within the sound discretion of the trial judge; there is no abuse of discretion if the testimony is in rebuttal and is arguably contradictory of and in reply to earlier testimony. State v. Todd, 290 S.C. 212, 349 S.E.2d 339 (1986).
If at least some of the reply testimony rebuts earlier testimony, the reply does not amount to a reopening of the party’s case. State v. Farrow, 332 S.C. 190, 504 S.E.2d 132 (Ct. App. 1998). g) Examination by the Court
The trial judge has discretion to examine a witness if a determination is made that additional questioning is necessary to bring out all the testimony and ascertain the truth. State v. Chasteen,
228 S.C. 88, 88 S.E.2d 880 (1955). h) Minors in Sexual Abuse Cases
In determining whether a minor should testify outside the presence of the defendant in a sexual abuse case, the trial judge must (1) make a case-specific determination of the necessity for videotaped or closed circuit television testimony, (2) place the child in as close to a courtroom setting as possible, and (3) enable the defendant to see and hear the child, to have counsel present both in the courtroom and with him, and to communicate with counsel. State v. Murrell, 302 S.C.
77, 393 S.E.2d 919, (1990).
The necessity requirement is met by a showing that the child will be traumatized by the presence of the defendant, not by the courtroom or others in the courtroom, and evidence that a child will be simply nervous or excited or is reluctant to testify is insufficient. State v. Lewis, 324 S.C. 539,
478 S.E.2d 861 (Ct. App. 1996).
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In making the determination of necessity, the trial court may consider the testimony of expert witnesses, parents, other relatives, other concerned and relevant parties, and the child. State v.
Lewis, 324 S.C. 539, 478 S.E.2d 861 (Ct. App. 1996).
A finding of necessity may be supported by expert testimony alone. State v. Lewis, 324 S.C. 539,
478 S.E.2d 861 (Ct. App. 1996).
The necessity requirement is met by in camera testimony from child and mother relating child’s fear of defendant. State v. Cooper, 291 S.C. 351, 353 S.E.2d 451 (1987).
The trial court must be specific as to each child in indicating the evidence supporting a ruling that the child will be traumatized by facing the defendant. State v. Bray, 342 S.C. 23, 535 S.E.2d 636
(2000).
A decision as to whether to utilize a videotape procedure is subject to reversal only if it is shown that the trial judge abused his discretion in making such a decision or failed to follow the appropriate procedure upon deciding that a witness was entitled to special protection. State v.
Bray, 342 S.C. 23, 535 S.E.2d 636 (2000).
Unavailability under § 19-1-180 requires a finding that the child will suffer severe trauma by testifying under all three of the following methods: in person at the hearing, by videotape, or by a closed-circuit television. Richland County D.S.S. v. Earles, 330 S.C. 24, 496 S.E.2d 864 (1998).
The trial judge may order a child victim of sexual assault to submit to an independent psychological examination where the requesting party has presented a compelling need or reason for the additional examination. The judge should consider: (1) the nature of the examination and the intrusiveness inherent in that examination; (2) the victim’s age; (3) the resulting physical and/or emotional effects of the examination of the victim; (4) the probative value of the examination to the issue before the court; (5) the remoteness in time of the examination to the alleged criminal act; and (6) the evidence already available for the defendant’s use. A judge’s discretion to order a psychological examination is limited to cases in which a child is the complaining witness. In the Interest of Michael H.
, 360 S.C. 540, 602 S.E.2d 729 ( 2004).
i) Pitting Witnesses
It is improper for the solicitor to cross-examine a witness in such a manner as to force the witness to attack the veracity of another witness. State v. Kelsey, 331 S.C. 50, 502 S.E.2d 63 (1998).
Pitting may be improper even if it occurs only once. State v. Bryant, 316 S.C. 216, 447 S.E.2d
852 (1994).
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Pitting constitutes reversible error only if the defendant is unfairly prejudiced. Burgess v. State,
329 S.C. 88, 495 S.E.2d 445 (1998).
A defendant will be prejudiced by pitting if the defendant’s credibility is a central issue. State v.
Bryant, 316 S.C. 216, 447 S.E.2d 852 (1994). j) Writing Used to Refresh Memory
If a witness uses a writing to refresh memory either (1) while testifying or (2) before trial, if the court determines it is necessary in the interests of justice, an adverse party has a right to inspect the writing, cross-examine the witness about writing, and introduce portions of the writing related to the testimony of the witness. Rule 612, SCRE.
4.
IMPROPER INTIMIDATION OF A WITNESS
In a case with possible multiple defendant’s, if a solicitor advises one of the potential defendants that he might lose his plea agreement if he talks to one of the other defendant's attorneys, the second defendant’s right to present his case might be violated and reversible error results if prejudice is shown. State v. Williams, 326 S.C. 130, 485 S.E.2d 99 (1997).
5.
IMPEACHMENT
a) Credibility Generally
A witness’ general reputation for truth and veracity is placed in issue when the witness takes the stand. State v. Major, 301 S.C. 181, 391 S.E.2d 235 (1990). b) Admissibility of Evidence Attacking Credibility
In determining whether evidence attacking the credibility of a witness should be admitted, the court should consider the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and the overall strength of the prosecution’s case. State v. Beckham, 334 S.C. 302,
513 S.E.2d 606 (1999). c) Character and Reputation
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Opinion and reputation evidence concerning the witness’ character for untruthfulness is admissible. Rule 608(a), SCRE.
Opinion and reputation evidence supporting a witness’ truthfulness is admissible only if the witness’ character for truthfulness has been attacked. Rule 608(a), SCRE. d) Prior Bad Acts
In the discretion of the trial court and if probative of truthfulness or untruthfulness, a party may inquire into specific instances of a witness’ past conduct. Rule 608(b), SCRE.
Examples of misconduct which are clearly probative of truthfulness or untruthfulness are forgery, bribery, false pretenses, and embezzlement. State v. Kelsey, 331 S.C. 50, 502 S.E.2d 63 (1998).
Extrinsic evidence concerning a witness’ past conduct is not admissible. Rule 608(b), SCRE.
The cross-examiner must accept the accused’s answer concerning prior bad acts, and a denial may not be contradicted. Rule 608, SCRE; State v. Major, 301 S.C. 181, 391 S.E.2d 235 (1990).
Where a defendant is allowed to withdraw a guilty plea, the defendant may not be impeached by the withdrawn plea at the subsequent trial. State v. Mathis, 287 S.C. 589, 340 S.E.2d 538 (1986). e) Prior Bad Acts of Defendant
See EVIDENCE OF DEFENDANT’S CHARACTER.
f) Impeachment by Evidence of Conviction of Crime
Evidence of a conviction for a crime punishable by death or imprisonment in excess of one year is admissible if the court determines that its probative value outweighs its prejudicial effect to the accused. Rule 609(a)(1), SCRE.
Evidence of a conviction for crime involving dishonesty or false statement shall be admissible.
Rule 609(a)(2), SCRE.
Conviction includes a conviction resulting from a trial, any type of plea, including nolo contendere, or a plea pursuant to North Carolina v. Alford, 400 U.S. 23 (1970).
Note: Evidence of a conviction is not admissible if more than ten years has elapsed since the later of the date of conviction or of the release of the witness from confinement imposed for that conviction, unless the court determines, in the interest of justice, that the probative value of the conviction substantially outweigh its prejudicial effect. Rule 609(b), SCRE
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Note: Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.
Rule 609(c), SCRE.
Note: The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible. Rule 609(e), SCRE.
Trial judge erred by allowing impeachment with prior convictions that were more than ten years old where trial judge did not conduct a balancing test and did not articulate for the record specific facts and circumstances to overcome Rule 609(b)'s presumption against admissibility. State v.
Colf, 337 S.C. 622, 525 S.E.2d 246 (1998).
The State will bear the burden of establishing facts and circumstances sufficient to overcome substantially the presumption that convictions over ten years old are not admissible. State v. Colf,
337 S.C. 622, 525 S.E.2d 246 (2000).
Factors that a trial court may apply in balancing the prejudice and probity of past convictions include: the impeachment value of the prior crime; the point in time of the conviction and the witness’ subsequent history; the similarity between the past crime and the charged crime; the importance of the defendant’s testimony; the centrality of the credibility issue; the defendant’s age and circumstances; the length of the defendant’s criminal record; the likelihood the defendant would not testify; and the facts surrounding the conviction. State v. Colf, 337 S.C. 622, 525
S.E.2d 246 (2000).
A witness may be impeached by a juvenile adjudication if conviction for the crime would be admissible to attack the credibility of an adult. Rule 609(d), SCRE. g) Impeachment of Own Witness
The credibility of a witness may be attacked by any party, including the party calling the witness.
Rule 607, SCRE. h) Former Testimony
Testimony given under oath at a previous trial whose result is subsequently invalidated is admissible as impeachment evidence. State v. Brown, 296 S.C. 191, 371 S.E.2d 523 (1988). i) Unconstitutionally Seized Evidence
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Unconstitutionally seized evidence is admissible for impeachment, including statements taken in violation of Miranda or the Fifth Amendment right to counsel. State v. Brown, 296 S.C. 191, 371
S.E.2d 523 (1988).
An involuntary confession is never admissible, even for impeachment purposes. State v. Victor,
300 S.C. 220, 387 S.E.2d 248 (1989). j) Collateral Matters
Generally, when a witness denies an act involving a matter collateral to the case in chief, the inquiring party is not permitted to introduce contradictory evidence to impeach the witness. State v. Gore, 299 S.C. 368, 384 S.E.2d 750 (1989). k) Prior Inconsistent Statement
Extrinsic evidence of a prior inconsistent statement is admissible only if the witness is advised of the substance of the statement, the time and place is was given, and to whom the statement was made, and is given a chance to explain or deny the statement. Rule 613(b), SCRE.
If the witness admits the prior inconsistent statement, the witness is impeached, and extrinsic evidence of the statement, including the statement itself, is inadmissible. Rule 613(b), SCRE.
As long as the witness has time to prepare for trial after receiving a copy of a prior written statement, a violation of S.C. Code Ann. § 19-1-80 (1985) is not reversible error. Bannister v.
State, 333 S.C. 298, 509 S.E.2d 807 (1998).
Reversible error occurred where the trial court allowed a solicitor to publish during crossexamination first hand knowledge about an alleged prior inconsistent statement made to solicitor, when there was no factual basis for the assertions in the record and no extrinsic evidence available to prove them in event of a denial by the witness. State v. Sierra, 337 S.C. 368, 523 S.E.2d 187
(Ct. App. 1999).
See §.10.b.(3), supra, re: prior inconsistent statement as substantive evidence.
6.
EXPERT WITNESSES.
G.
MOTIONS FOR MISTRIAL
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1.
GENERALLY
The grant or refusal of a mistrial motion is within the trial judge's sound discretion. This power ought to be used with the greatest of caution under urgent circumstances and for very plain and obvious causes. State v. Prince, 279 S.C. 30, 301 S.E.2d 471 (1983); State v. Kirby, 269 S.C. 25,
236 S.E.2d 33 (1977).
A mistrial should not be granted unless absolutely necessary. State v. Council, 335 S.C. 1, 515
S.E.2d 508 (1999); State v. Wasson, 299 S.C. 508, 386 S.E.2d 255 (1989).
Instead, the trial judge should exhaust other methods to cure possible prejudice before aborting a trial. State v. Council, 335 S.C. 1, 515 S.E.2d 508 (1999); State v. Wasson, 299 S.C. 508, 386
S.E.2d 255 (1989).
In order to receive a mistrial, the defendant must show error and resulting prejudice. State v.
Harris, 340 S.C. 59, 530 S.E.2d 626 (2000).
Among the factors to be considered in ordering a mistrial are the character of the testimony, the circumstances under which it was offered, the nature of the case, and the other testimony in the case. State v. Howard, 296 S.C. 481, 374 S.E.2d 284 (1988).
A motion for mistrial must be contemporaneous such that the trial judge can attempt to correct an alleged error during the trial. The failure to make a contemporaneous objection to an alleged trial error cannot later be bootstrapped by a motion for mistrial. State v. Lynn, 277 S.C. 222, 284
S.E.2d 786 (1981) (where the State’s witness introduced evidence about the defendant’s bad moral character without objection, defense counsel cannot later revisit the issue in a motion for mistrial at the end of the State’s case).
A motion for mistrial is inappropriate where there is a completed trial, the jury has reached a verdict, and the jury has been discharged. State v. Johnson, 248 S.C. 153, 149 S.E.2d 348 (1966).
2.
GROUNDS FOR MISTRIAL
a) Admission of Incompetent Evidence
A mistrial should not be ordered in every case where incompetent evidence is received and later stricken out. State v. Simpson, 325 S.C. 37, 479 S.E.2d 57 (1996)(in murder prosecution, it was not an abuse of discretion to fail to order a mistrial for reading a witness' statement to police that he was afraid that defendant would come back and shoot them "too," though the State had agreed to omit the word "too" during the motion in limine hearing, where the judge gave a curative instruction to disregard the incompetent evidence because it was speculative).
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An instruction to disregard objectionable evidence usually is deemed to have cured the error in its admission unless on the facts of the particular case it is probable that notwithstanding such instruction the accused was prejudiced. State v. Crim, 327 S.C. 254, 489 S.E.2d 478 (1997). See
b) Ex parte Communications
Ex parte communications are grossly improper and may warrant the granting of a mistrial.
However, where the trial judge and the solicitor do not have a substantive discussion regarding the defendant’s trial the defendant may not be entitled to a mistrial. State v. Skipper, 285 S.C. 42,
328 S.E.2d 58 (1985), reversed on other grounds, 476 U.S. 1, 106 S. Ct. 1669, 90 L.E.2d 1 (1986)
(communication between trial judge and the State's attorney during jury deliberations was not improper ex parte communication so as to entitle defendant to mistrial where there was no substantive discussion of defendant's trial, but rather, trial judge requested legal authorities on points of law).
A party must still show prejudice by the ex parte communication in order to obtain a mistrial. See
State v. Dingle, 279 S.C. 278, 306 S.E.2d 223 (1983). c) Outside Influences on Jury
Whether a mistrial should be declared where there has been communication between jurors and outsiders is a matter resting within the trial court's sound discretion. State v. McDaniel, 275 S.C.
222, 268 S.E.2d 585 (1980).
A defendant must show prejudice resulting from the outside influence on the jury in order to obtain a mistrial. See State v. Carrigan, 284 S.C. 610, 328 S.E.2d 119 (Ct. App. 1985).
In a criminal prosecution, the conduct of the jurors should be free from all extraneous or improper influences. Misconduct that does not affect the jury's impartiality will not undermine the verdict.
State v. Kelly, 331 S.C. 132, 502 S.E.2d 99 (1998).
Relevant factors to be considered in determining whether outside influences have affected the jury are: the number of jurors exposed; the weight of the evidence properly before the jury; and, the likelihood that curative measures were effective in reducing the prejudice.
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State v. Kelly, 331 S.C. 132, 502 S.E.2d 99 (1998). d) Trial Publicity
When a newspaper article appears during the course of a trial, before granting a mistrial the trial judge must determine whether the defendant has been prejudiced by the jurors' reading of the article. State v. Wasson, 299 S.C. 508, 386 S.E.2d 255 (1989). The judge should exhaust other
methods to cure the prejudice before aborting a trial. Id. See CURATIVE INSTRUCTIONS
e) Juror Misconduct
The trial judge has broad discretion in assessing allegations of juror misconduct. State v. Aldret,
333 S.C. 307, 509 S.E.2d 811 (1999).
It is within the trial judge’s discretion whether to grant a mistrial in cases of juror misconduct, but a mistrial is not warranted where the juror’s actions have not prejudiced the defendant. The burden is on the defendant to show error and resulting prejudice. Juror misconduct which does not affect the impartiality of the jury will not undermine the verdict. State v. Grovenstein, 335
S.C. 347, 517 S.E.2d 216 (1999) (the burden is on the defendant to prove prejudice by the juror’s actions).
The general test for evaluating alleged juror misconduct is whether there in fact was misconduct, and if so, whether any harm resulted to the defendant as a consequence. State v. Smith, 338 S.C.
66, 525 S.E.2d 263 (Ct. App. 1999).
Relevant factors to be considered in determining whether the misconduct has affected the jury are: the number of jurors exposed; the weight of the evidence properly before the jury; and, the likelihood that curative measures were effective in reducing the prejudice. State v. Kelly, 331
S.C. 132, 502 S.E.2d 99 (1998).
Juror testimony is admissible involving internal misconduct in cases involving internal misconduct where necessary to ensure fundamental fairness. External influence on a jury involves situations where jurors receive information during deliberations from some outsider source. Where juror revealed incorrect sentencing information during deliberations there was no error in failing to grant a new trial since it was given to the jury by a fellow juror who had acquired the information from her own personal experience. State v. Galbreath , 359 S.C. 398,
597 S.E.2d 845 (Ct. App. 2004).
(1) Examples of Juror Misconduct
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(a) Sleeping Juror
See State v. Smith, 338 S.C. 66, 525 S.E.2d 263 (Ct. App. 1999) (trial judge found that a juror with her eyes closed was not asleep because the trial judge observed her taking notes; thus, it was not error for the trial judge to take no action on the matter); State v. Hurd, 325 S.C. 384, 480
S.E.2d 94 (Ct. App. 1996) (conviction reversed where the trial judge failed to question juror who appeared to be asleep during the trial so that the trial judge could take appropriate further action.
(b) Conducting Independent Research
See State v. Harris, 340 S.C. 59, 530 S.E.2d 626 (2000) (although juror’s action of conducting legal research was misconduct, there was no prejudice where the juror was only exposed to
(c) Conducting Premature Deliberations
Premature deliberations constitutes misconduct, but the claimed error was not preserved where there was no indication in the record that the defendant asked the trial court to question jurors regarding the problem; had such a request been timely made the trial court could have voir dired the jury to determine if, in fact, there had been premature deliberations and whether the defendant
had been prejudiced thereby. State v. Aldret, 333 S.C. 307, 509 S.E.2d 811 (1999); see Premature
(d) Contact with Outsiders
See State v. Carrigan, 284 S.C. 610, 328 S.E.2d 119 (Ct. App. 1985) (the mere fact that a conversation between a juror and the State’s witness occurred did not necessarily prejudice the defendant). See re: Grounds for Mistrial, Outside Influence on Jury.
(e) Racial remarks
State v. Hunter, 320 S.C. 85, 463 S.E.2d 314 (1995) (although a juror’s use of racial slurs during deliberations is highly improper and a verdict tainted by racial prejudice may be shown by evidence of internal juror misconduct, there was no showing of prejudice in this case where there was no showing that racial prejudice played a part in the deliberations).
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f) Information Undisclosed on Voir Dire
A new trial is required only when the court finds the intentionally concealed information would have supported a challenge for cause or would have been a material factor in the use of the party's peremptory challenges. The inquiry must focus on the character of the concealed information, not on the mere fact that a concealment occurred. State v. Kelly, 331 S.C. 132, 502 S.E.2d 99 (1998);
State v. Gulledge, 277 S.C. 368, 287 S.E.2d 488 (1982).
Whether a juror’s failure to respond is intentional is a fact intensive determination which must be made on a case-by-case basis. State v. Sparkman , 358 S.C. 491, 596 S.E.2d 375 (2004).
A defendant may be denied his right to an impartial jury where there is no justification for a juror’s failure to disclose information which would have supported a challenge for cause on voir dire. State v. Woods, 345 S.C. 583, 550 S.E.2d 282 (2001).
Where juror unintentionally failed to disclose he knew relative of defendant who lived across the street from lot on which juror planned to build his personal residence, and discussed the consequences of a guilty verdict or imposition of the death penalty, the judge properly excused the juror for cause, not because he concealed information on voir dire but because the juror discussed the personal effect of a possible verdict. State v. Simmons , 360 S.C. 33, 599 S.E.2d
448 (2004). g) Solicitor’s Arguments
The granting of a mistrial based upon a prosecutor's argument is largely discretionary with the trial court. State v. Craig, 267 S.C. 262, 227 S.E.2d 306 (1976). A curative instruction for the jury to disregard the solicitor’s comments usually is deemed to have cured the error in its
admission. State v. Dawkins, 297 S.C. 386, 377 S.E.2d 298 (1989). See CURATIVE
“Golden Rule” arguments where the solicitor, where solicitor asks jurors to become advocates for the victim by speaking for her instead of maintaining their neutral role as jurors are improper.
Because the judge did not give a curative instruction after defense counsel requested one, the improper argument was prejudicial and required reversal of the jury verdict. State v. Reese , 359
S.C. 260, 597 S.E.2d 169 (Ct. App. 2004). h) Prejudicial Comments by the Court
Where the court makes comments in the jury’s presence which indicate a lack of neutrality and indicate his opinion as to the weight or sufficiency of evidence, the credibility of witnesses, the guilt of the accused, or as to the controverted facts, the defendant is entitled to a mistrial when a
167
curative instruction will not likely cure the error. State v. Campbell, 297 S.C. 24, 374 S.E.2d 668
(1988); State v. Kennedy, 272 S.C. 231, 250 S.E.2d 338 (1978) (court characterized defendant's upcoming testimony as "lies"). i) Jury Unable to Reach Verdict
Generally, if the jury returns without a verdict, the judge may declare a mistrial or may urge the jury to continue its deliberations. State v. Bennett, 259 S.C. 50, 190 S.E.2d 497 (1972); see
The trial judge cannot send a hung jury out a third time without its consent unless the jury asks the court for some further explanation of the law. S.C. Code Ann. § 14-7-1330 (1976).
However, when a jury has twice indicated it is deadlocked, the trial judge should diplomatically discuss with the jury whether further deliberations could be beneficial. The jury's consent to resume or to discontinue deliberations is determined, either expressly or impliedly, by its response to the trial judge's comments. Buff v. South Carolina Dept. of Transp., 342 S.C. 416, 537 S.E.2d
279 (2000).
Where the jury has failed to reach a verdict on any count in a multiple count indictment, a new trial of the entire case is necessary to arrive at a verdict on that particular count. State v. Pauling,
322 S.C. 95, 470 S.E.2d 106 (1999).
A verdict of guilty on one count without mentioning a second count operates as an acquittal on the second count. State v. Langston, 265 S.C. 74, 216 S.E.2d 875 (1975).
3.
CURATIVE INSTRUCTIONS
a) Incompetent Evidence
Generally, an instruction to disregard incompetent evidence and not to consider it for any purpose during deliberation is deemed to have cured any alleged error in its admission. See State v.
Kelsey, 331 S.C. 50, 502 S.E.2d 63 (1998).
A mere general remark excluding the evidence does not cure the error. State v. Howard, 296 S.C.
481, 374 S.E.2d 284 (1988); State v. Smith, 290 S.C. 393, 350 S.E.2d 923 (1986). b) Improper Arguments
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Where the State makes improper arguments regarding the defendant’s failure to testify or present a defense, an instruction that the jury should not consider the defendant’s failure to testify or present a defense for any purpose during deliberations is deemed to have cured the error. See
State v. Cooper, 334 S.C. 540, 514 S.E.2d 584 (1999)(trial judge gave immediate curative instruction upon defense counsel’s objection and further charged the jury after closing arguments that the defendant did not have the burden of proving innocence and the jury could not consider
the defendant's failure to testify in its deliberations). See Solicitor’s Arguments.
However, it is reversible error to fail to give an immediate curative instruction upon defense counsel’s objection to the improper argument. See State v. Sweet, 342 S.C. 342, 536 S.E.2d 91
(Ct. App. 2000) (trial judge erred by not giving a curative instruction immediately after defense counsel’s objection to an improper argument).
A curative instruction may not cure the error if, on the facts of the particular case, it is probable that the defendant was prejudiced notwithstanding the trial court’s curative instruction. See State v. Reid, 324 S.C. 74, 476 S.E.2d 695 (1996) (instruction given by trial court that the defendant had a right to remain silent and that his silence could not be used against him during the trial court’s general charge to the jury was not sufficient to cure the improper comments by the solicitor regarding the defendant’s lack of remorse).
(1) Examples of Improper Arguments
When the accused asserts a constitutional right, it is impermissible for the State to comment upon the assertion of that right. State v. Johnson, 293 S.C. 321, 360 S.E.2d 317 (1987) (comment on post-arrest silence).
The solicitor may not comment directly or indirectly on the defendant’s failure to testify or failure to present a defense. State v. Cooper, 334 S.C. 540, 514 S.E.2d 584 (1999); See State v. Primus,
349 S.C. 576, 564 S.E.2d 103 (2002) (although the defendant actively pursued an alibi defense by giving a statement to the police detailing an alibi, cross-examining witnesses about his alibi, and requesting an alibi charge, the defendant presented no witnesses and did not testify; accordingly, it was improper for the solicitor to comment on his failure to call alibi witnesses); State v. King,
349 S.C. 142, 561 S.E.2d 640 (Ct. App. 2002) (it is permissible for a solicitor to comment that evidence is uncontradicted where the defendant is not the only person who could contradict the evidence).
It is improper for the solicitor to comment on a defendant’s lack of remorse. State v. Reid, 324
S.C. 74, 476 S.E.2d 695 (1996).
A closing argument that refers to preliminary determinations of fact and which indicates that any decision will be reviewed on appeal lessens the jury's sense of responsibility and is improper.
State v. Thomas, 287 S.C. 411, 339 S.E.2d 129 (1986) (solicitor improperly informed the jury that the case had already been examined and factual determinations were made by the grand jury,
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factual determinations were made at the preliminary hearing, and an appellate court would later review the jury’s findings).
The prosecution may not argue that "reasonable doubt" is something defense lawyers use to free guilty defendants and a defense that criminals use only when they have no other. State v. Portee,
278 S.C. 260, 294 S.E.2d 421 (1982).
It is improper for a solicitor to comment on the defendant's failure to call a particular witness where the defendant has not presented a defense. State v. Simmons, 267 S.C. 479, 229 S.E.2d
597 (1976). However, where a defendant presents evidence at trial, the prosecutor may comment on the defendant's failure to present the testimony of seemingly accessible witnesses who are or should be aware of relevant information. Douglas v. State, 332 S.C. 67, 504 S.E.2d 307 (1998).
A solicitor’s closing argument which repeatedly urged the jurors to identify with the victim when adjudging the guilt of the accused improperly appealed to the passion and prejudice of the jury and denied the defendant of a fair trial. State v. McDaniel, 320 S.C. 33, 462 S.E.2d 882 (Ct. App.
1995).
A prosecutor’s use of a nickname can deprive the defendant of a fair trial if the use of the nickname is so excessive and repetitious as to infect the entire trial with unfairness. State v. Day,
341 S.C. 410, 535 S.E.2d 431 (2000)(solicitor referred to the defendant’s “outlaw” tattoo twentythree times for no other purpose than to attack his character).
A solicitor's argument was outside the record when he stated he did not call two potential witnesses because there was nothing probative in their statements. This assertion effectively allowed the solicitor to give testimony. State v. Coleman, 301 S.C. 57, 389 S.E.2d 659 (1990).
Likewise, a solicitor may not vouch for the credibility of a witness based on personal knowledge or other information outside the record. Matthews v. State, 350 S.C. 272, 565 S.E.2d 766 (2002). c) Trial Publicity
If the court determines a newspaper article appearing during the trial was prejudicial to the defendant, the court must determine if any of the jurors read the article and, if so, must invoke appropriate curative measures. State v. Wasson, 299 S.C. 508, 386 S.E.2d 255 (1989). These measures include cautionary instructions or substitution of jurors. Id.
The determination of what curative measures are appropriate in a given case rests in the sound discretion of the trial judge. Id; see also S., infra, re: Motions Regarding Publicity.
H.
DIRECTED VERDICT MOTIONS
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1.
Generally
When ruling on a criminal defendant's motion for a directed verdict, a trial court is concerned with the existence of evidence, not its weight. State v. Wiggins, 330 S.C. 538, 500 S.E.2d 489
(1998) (citing State v. Long, 325 S.C. 59, 480 S.E.2d 62 (1997)). If there is any direct or substantial circumstantial evidence reasonably tending to prove the guilt of the accused or from which guilt may be fairly and logically deduced, the case should be submitted to the jury. State v.
Johnson, 334 S.C. 78, 512 S.E.2d 795 (1999). The trial court should grant a directed verdict motion where a jury would be speculating as to the accused's guilt or where the evidence is sufficient only to raise a mere suspicion of guilt. State v. Buckmon, 347 S.C. 316, 555 S.E.2d
402 (2001); State v. Ballenger, 322 S.C. 196, 470 S.E.2d 851 (1996).
Where the case is based purely on circumstantial evidence, the trial judge is required to submit the case to the jury if there is any substantial evidence which reasonably tends to prove the guilt of the accused, or from which his guilt may be fairly and logically deduced. State v. Martin, 340
S.C. 597, 533 S.E.2d 572 (2000). The trial judge should grant a directed verdict motion when the evidence merely raises a suspicion that the accused is guilty. Id.
2.
Credibility of Witness as Issue
A motion for directed verdict is properly refused where the determination of guilt is dependent upon the credibility of the witnesses which is a question of weight of the evidence to be determined by the fact finder. State v. Wharton, 263 S.C. 437, 211 S.E.2d 237 (1975), overruled on other grounds by State v. Evans, 307 S.C. 477, 415 S.E.2d 816 (1992); State v. Pitts, 256 S.C.
420, 182 S.E.2d 738 (1971).
3.
Corpus Delecti
The corpus delicti of a crime is the body, foundation, or substance of the crime, which ordinarily includes two elements: the act and the criminal agency of the act. Black’s Law Dictionary 344
(6 th
Ed. 1990).
A directed verdict should be granted if there is no proof aliunde of the corpus delicti aside from the defendant's out-of-court confession. Corpus delicti may be proved by circumstantial evidence. State v. Lowery, 332 S.C. 261, 503 S.E.2d 794 (Ct. App. 1998); see also State v.
Williams, 321 S.C. 381, 468 S.E.2d 565 (1996) (If there is any evidence tending to establish the corpus delicti , then it is the duty of the trial court to pass that question on to the jury).
The corroboration rule is satisfied if the State provides sufficient independent evidence which serves to corroborate the defendant’s extra-judicial statements and, together with such statements, permits a reasonable belief that such a crime occurred. State v. Osborne, 335 S.C. 172, 516
S.E.2d 201 (1999).
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I.
RE-OPENING THE EVIDENCE
It is within the sound discretion of the trial judge to allow the state to reopen its case to prove an essential element of the offense charged. State v. Humphery, 276 S.C. 42, 274 S.E.2d 918
(1981); State v. Green, 350 S.C. 580, 567 S.E.2d 505 (Ct. App. 2002).
The court may in its discretion permit evidence to be given after argument has begun and progressed to cure an accidental omission. State v. Thomas, 42 S.C.L. (8 Rich.) 295 (1855).
J.
CLOSING ARGUMENT
The solicitor's closing argument must be based upon the principle that the solicitor’s duty is not merely to convict, but to see justice done. State v. Linder, 276 S.C. 304, 278 S.E.2d 335 (1981).
The argument must be carefully tailored not to arouse the passion or prejudice of the jury or appeal to personal bias. Id. The solicitor must stay within the record and its reasonable inferences. Id. However, a solicitor has a right to state the solicitor’s version of the testimony and to comment on the weight to be given such testimony. State v. Cooper, 334 S.C. 540, 514
S.E.2d 584 (1999).
Not every improper argument requires reversal where it is not prejudicial to the defendant. See
State v. Cooper, 334 S.C. 540, 514 S.E.2d 584 (1999). However, a prosecutor's comments deprive the accused of due process of law where the comments so infected the trial with unfairness as to make the resulting conviction a denial of due process. State v. Day, 341 S.C.
410, 535 S.E.2d 431 (2000).
No attorney in closing argument shall address or refer to by name or otherwise any member of the jury, or otherwise make a personal appeal to the jury. Rule 22, SCRCrimP.
Under § 16-3-28 (Supp. 2001), a capital defendant has the right to address the jury regarding all charges, not just those charges that carry a possible death sentence. Cooper v. Moore, 351 S.C.
207, 569 S.E.2d 330 (2002).
K.
MOTIONS TO ELECT
When several offenses charged grow out of the same transaction then the solicitor is not required to elect which charge to proceed on State v. Perry , 358 S.C. 633, 595 S.E.2d 883 (Ct. App. 2004).
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L.
JURY CHARGES
1.
GENERALLY
The law charged must be current and correct. State v. Foust, 325 S.C. 12, 479 S.E.2d 50 (1996);
State v. Robinson, 306 S.C. 399, 412 S.E.2d 411 (1991).
Only the law applicable to the case should be charged, as the purpose of jury instructions is to enlighten the jury. Providing instructions to the jury which do not fit the facts of the case may tend to confuse the jury. State v. Lee, 298 S.C. 362, 380 S.E.2d 834 (1989).
It is error to give instructions which may confuse or mislead the jury. The test is what a reasonable juror would understand the charge to mean. State v. Bell, 305 S.C. 11, 406 S.E.2d 165
(1991); State v. Rothell, 301 S.C. 168, 391 S.E.2d 228 (1990).
When an incorrect charge is given, the court must withdraw it; merely superimposing a correct statement of law over an erroneous charge only fosters confusion and prejudice. State v.
Robinson, 306 S.C. 339, 412 S.E.2d 411 (1991).
Where the charge contains both the correct and incorrect law, an appellate court must assume the jury followed the incorrect charge. To determine whether the error was harmless, the court must determine beyond a reasonable doubt that the error complained of did not contribute to the verdict. State v. Buckner, 341 S.C. 241, 534 S.E.2d 15 (Ct. App. 2000).
The harmless error rule applies to a jury instruction that omits an element of an offense. Neder v.
United States, 527 U.S. 1, 119 S. Ct. 1827, 144 L. Ed. 2d 45 (1999).
2.
REQUESTS
Requests to charge are to be submitted at the close of the evidence or at any earlier time the judge may reasonably direct. All requests must include accurate citations to authority relied upon. Rule
20, SCRCrimP.
A party is not prohibited from asking for further instructions after the charge conference. State v.
Nichols, 325 S.C. 111, 481 S.E.2d 118 (1997).
It is error to refuse a requested charge on an issue raised by the indictment and the evidence presented at trial if it is a correct statement of law. Frasier v. State, 306 S.C. 158, 410 S.E.2d 572
(1991); State v. Austin, 299 S.C. 456, 385 S.E.2d 830 (1989); State v. Kimbrell, 294 S.C. 51, 362
S.E.2d 630 (1987).
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It is not error to deny a requested charge when the substance of the requested charge is included in the charge as given. State v. Austin, 299 S.C. 456, 385 S.E.2d 830 (1989); State v. McDowell,
272 S.C. 203, 249 S.E.2d 916 (1978).
3.
CHARGE ON FACTS
Judges shall not charge juries with respect to matters of fact, but shall declare the law. S.C.
Const. art. V, § 21.
Generally, the trial judge must refrain from all comment which tends to indicate an opinion regarding the weight or sufficiency of the evidence, the credibility of witnesses, the guilt of the accused, or facts in controversy. State v. Brisbon, 323 S.C. 324, 474 S.E.2d 433 (1996); State v.
Ates, 297 S.C. 316, 377 S.E.2d 98 (1989); State v. Kennedy, 272 S.C. 231, 250 S.E.2d 338
(1978).
Facts that are not in dispute may be stated in the charge. State v. Arther, 290 S.C. 291, 350
S.E.2d 187 (1986) (reference to defendant's statement as "confession"); State v. Norris, 270 S.C.
552, 243 S.E.2d 440 (1978)(charge containing weights and ages of defendant and victim).
The trial judge may use hypothetical or supposed facts for illustrating some principle of law as long as the instruction is framed so that the jurors do not assume the facts have been proved.
State v. Young, 238 S.C. 115, 119 S.E. 2d 504, cert. denied, 368 U.S. 868, 82 S. Ct. 101, 7 L. Ed.
2d 65 (1961); State v. Higgins, 215 S.C. 153, 54 S.E.2d 553 (1949).
The trial judge may state a legal conclusion which would result if the jury found certain facts.
State v. Clamp, 225 S.C. 89, 80 S.E.2d 918 (1954).
The trial judge’s charge that certain portions of the defendant’s statement had been omitted as required by law was merely an explanation of what had been done procedurally to the statement and was not a comment on the weight, sufficiency, or credibility of the evidence. State v. Lewis,
293 S.C. 107, 359 S.E.2d 66 (1987).
Requested limiting charge stating that results of DNA tests have been expressed in mathematical ratios and these ratios should not be used as a mathematical ratio of whether the defendant is guilty or not guilty was properly refused as a comment on the DNA evidence. State v. Hyman,
322 S.C. 59, 471 S.E.2d 466 (Ct. App. 1996).
Charge that jury should consider the absence of motive in weighing the question of guilt is an improper charge on the facts. State v. Hartley, 307 S.C. 239, 414 S.E.2d 182 (Ct. App. 1992).
An instruction that the testimony of a co-defendant or accomplice should be carefully scrutinized is an impermissible charge on the facts. State v. Collins, 266 S.C. 566, 225 S.E.2d 189 (1976);
State v. Bagwell, 201 S.C. 387, 23 S.E.2d 244 (1942).
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4.
OBJECTIONS TO THE CHARGE
The parties must be given an opportunity to object to the giving of, or failure to give, instructions before the jury retires, but out of the presence of the jury. Objections must distinctly state the matter objected to and the grounds for the objection. Rule 20, SCRCrimP; S.C. Code Ann. § 17-
23-100 (1985).
5.
RESPONSE TO JURY QUESTIONS
It is sufficient for the court to charge only those matters necessary to answer the jury's request.
State v. Nichols, 325 S.C. 111, 481 S.E.2d 118 (1997); State v. Barksdale, 311 S.C. 210, 428
S.E.2d 498 (Ct. App. 1993).
6.
REASONABLE DOUBT
The trial court should charge the jury that the accused is presumed innocent and that the State has the burden of proving guilt beyond a reasonable doubt. State v. Johnson, 156 S.E. 351 (1930).
1
It is not necessary that the court define the term "reasonable doubt". State v. Adams, 322 S.C.
114, 470 S.E.2d 366 (1996); State v. Johnson, 315 S.C. 485, 445 S.E.2d 637 (1994).
The term reasonable doubt may be best understood when the jury is simply instructed to give it its plain and ordinary reason. State v. Manning, 305 S.C. 413, 409 S.E.2d 372 (1991), cert. denied,
503 U.S. 914, 112 S. Ct. 1282, 117 L. Ed. 2d 507 (1992)(suggesting charge that a reasonable doubt is a doubt that would cause a reasonable person to hesitate to act); see also State v. Darby,
324 S.C. 114, 477 S.E.2d 710 (1996)(endorsing optional reasonable doubt charge developed by the Federal Judicial Center and cited in Victor v. Nebraska, 511 U.S. 1, 114 S. Ct. 1239, 127 L.
Ed. 2d 583 (1994)).
An improper reasonable doubt instruction is not subject to harmless error analysis. Sullivan v.
Louisiana, 508 U.S. 275, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993).
7.
PRESUMPTIONS
1 Not reported in the South Carolina Reports.
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a) Generally
Instructions which constitute either a burden-shifting presumption or a conclusive presumption are unconstitutional. Evidentiary presumptions must be charged as permissive inferences with specific instructions that the jury may accept or reject them. Francis v. Franklin, 471 U.S. 307,
105 S. Ct. 1965, 85 L. Ed. 2d 344 (1985); Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450,
61 L. Ed. 2d 39 (1979); State v. Neva, 300 S.C. 450, 388 S.E.2d 791 (1990).
Words such as "rebuttable" should not be used in any jury charge. State v. Patrick, 289 S.C. 301,
345 S.E.2d 481 (1986).
It is error to charge that a prima facie case may be rebutted by other evidence. State v. Neva, 300
S.C. 450, 388 S.E.2d 791 (1990). b) Malice
The suggested charge on malice inferred from the use of a deadly weapon is set out in State v.
Elmore, 279 S.C. 417, 308 S.E.2d 781 (1983).
8.
INTENT
If a statute is silent as to the mental state required, the State must at least prove that the defendant was criminally negligent. State v. Taylor, 323 S.C. 162, 473 S.E.2d 817 (Ct. App. 1996).
Specific intent to kill is not an element of assault and battery with intent to kill. State v. Sutton,
340 S.C. 393, 532 S.E.2d 283 (2000).
Generally, attempts are specific intent crimes. State v. Sutton, 340 S.C. 393, 532 S.E.2d 283
(2000).
It is error to instruct jury that the defendant must have been at least criminally negligent to prove trafficking since trafficking statute required the defendant to have acted knowingly. State v.
Taylor, 323 S.C. 162, 473 S.E.2d 817 (Ct. App. 1996).
The State must prove that the defendant was at least criminally negligent to prove manufacturing, distributing, or dispensing a controlled substance. State v. Ferguson, 302 S.C. 269, 395 S.E.2d
182 (1990).
Malicious injury to personal property requires an intent to harm property. Where property is damaged in an attempt to harm a person, the intent to harm the person cannot be transferred to the property. State v. Bryant, 316 S.C. 216, 447 S.E.2d 852 (1994).
176
9.
DEFENDANT'S FAILURE TO TESTIFY
Upon request, the defendant has a right to have the trial court instruct the jury that his failure to testify in his defense cannot be considered against him. State v. White, 243 S.C. 238, 133 S.E.2d
320 (1963).
While the failure to give a no adverse inference charge, absent a request, is not in itself reversible error, the better course is to give a no adverse inference charge in both the guilt and penalty phases of a capital trial when the defendant chooses not to testify. State v. Arther, 290 S.C. 291,
350 S.E.2d 187 (1986).
10.
DEFENDANT'S FAILURE TO APPEAR AT TRIAL
When a defendant is tried in his absence, the trial court should instruct the jury that the defendant's failure to appear may not be construed as an admission of guilt. State v. Jackson, 301
S.C. 49, 389 S.E.2d 654 (1990).
When the defendant fails to return to court after the trial has begun, an instruction that the defendant’s absence cannot be construed as an admission of guilt is required. McFadden v. State,
342 S.C. 637, 539 S.E.2d 391 (2000).
11.
CIRCUMSTANTIAL EVIDENCE
a) Generally
When the state relies in whole or in part on circumstantial evidence for conviction, the trial court must instruct the jury on circumstantial evidence. State v. Grippon, 327 S.C. 79, 489 S.E.2d 462
(1997).
If a proper reasonable doubt instruction is given, a jury need not be instructed that the circumstantial evidence must be so strong as to exclude every reasonable hypothesis other than guilt. State v. Grippon, 327 S.C. 79, 489 S.E.2d 462 (1997).
The well-established Edwards circumstantial evidence charge that the circumstantial evidence must point conclusively to the guilt of the accused to the exclusion of every other reasonable hypothesis is still valid. State v. Needs, 333 S.C. 134, 508 S.E.2d 857 (1998); State v. Edwards,
298 S.C. 272, 379 S.E.2d 888 (1989). But see State v. Cherry, 348 S.C. 281, 559 S.E.2d 297 (Ct.
App. 2001) (three different opinions on the necessity for an Edwards charge where a Grippon charge is given).
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b) Definitions
(1) Direct Evidence
Evidence based on actual knowledge which proves a fact without inference or presumption.
Direct evidence immediately establishes the main fact to be proved. State v. Salisbury, 343 S.C.
520, 541 S.E.2d 247 (2001).
(2) Circumstantial Evidence
Evidence which immediately establishes collateral facts from which the main fact may be inferred. Circumstantial evidence is typically characterized by inference or presumption.
Circumstantial evidence is evidence based on inference and not on personal knowledge or observation. State v. Salisbury, 343 S.C. 520, 541 S.E.2d 247 (2001). c) Examples of Direct Evidence
(1) Voice Identification
For purposes of determining whether the charge must be given, voice identification is direct, not circumstantial, evidence. State v. Plyer, 275 S.C. 291, 270 S.E.2d 126 (1980).
(2) DUI
Police officers’ personal observations and opinions of the defendant’s actions, appearance, and condition constitute direct evidence because it is based on the officers’ actual knowledge of the situation and requires no inference by the jury. State v. Salisbury, 343 S.C. 520, 541 S.E.2d 247
(2001).
12.
LIMITING INSTRUCTIONS
The State does not have to stipulate to the existence of prior burglary or housebreaking convictions as an element of first degree burglary. If requested, the trial judge should give a limiting instruction on the use of the prior convictions. State v. Benton, 338 S.C. 151, 526 S.E.2d
228 (2000); But see State v. James , 355 S.C. 25, 583 S.E.2d 745 (2003) (trial judge erred in admitting evidence of seven prior burglary convictions, even though the first degree burglary statute lists two or more prior convictions as an element of the crime, when the probative value of entering all seven convictions was outweighed by its prejudicial effect to the defendant).
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When evidence of other crimes is admitted for a specific purpose, the trial judge is required to instruct the jurors to limit their consideration of the evidence for the particular purpose for which it is offered. State v. Smalls, 260 S.C. 44, 194 S.E.2d 188 (1973).
Defendant's entitlement to a limiting charge with regard to evidence of prior convictions admitted for impeachment purposes is not limited to cases where prior convictions are for similar crimes, although prejudice is even more egregious in such cases. State v. Bryant, 307 S.C. 458, 415
S.E.2d 806 (1992).
13.
CREDIBILITY OF WITNESS
The trial judge did not commit an abuse of discretion in refusing to instruct the jury to consider the interest or bias of a witness and to observe the witness’ demeanor where a general charge on credibility of witnesses was given. State v. Bamberg, 270 S.C. 77, 240 S.E.2d 639 (1977); State v. Steadman, 257 S.C. 528, 186 S.E.2d 712 (1972).
An instruction that the testimony of a co-defendant or accomplice should be carefully scrutinized is an impermissible charge on the facts. State v. Collins, 266 S.C. 566, 225 S.E.2d 189 (1976);
State v. Bagwell, 201 S.C. 387, 23 S.E.2d 244 (1942). The law as to accomplice testimony is the same as to the testimony of any other witness. State v. Bagwell, 201 S.C. 387, 23 S.E.2d 244
(1942).
14.
IMPEACHMENT
When the State introduces evidence of a conviction (or prior bad act) to impeach the defendant's testimony, the trial court must give the jury a limiting instruction that the conviction (or prior bad act) cannot be used as evidence of guilt but is admissible for impeachment only. State v. Staley,
294 S.C. 451, 365 S.E.2d 729 (1988); State v. Brown, 296 S.C. 191, 371 S.E.2d 523 (1988).
The entitlement to a limiting instruction is not limited to cases where the prior crimes are similar to those for which the defendant is on trial. State v. Bryant, 307 S.C. 458, 415 S.E.2d 806 (1992).
No error in failing to give a limiting instruction where the evidence of the other crime is admissible on the main issue; the evidence is of acts which may have been done in furtherance of motive or intent; or the evidence has a direct bearing on, or relation to, the commission of the crime itself, so as to form part of the res gestae. State v. Johnson, 306 S.C. 119, 410 S.E.2d 547
(1991).
A limiting instruction must be given when prior convictions are introduced by the defendant on direct examination in anticipation of the State's use for impeachment. State v. Smalls, 260 S.C.
44, 194 S.E.2d 188 (1973).
179
It was error to give a limiting instruction where the defendant denied the convictions, there was no evidence of the prior convictions, and the defendant objected to a limiting instruction. State v.
Outlaw, 307 S.C. 177, 414 S.E.2d 147 (1992).
15.
PRIOR INCONSISTENT STATEMENTS
Because a prior inconsistent statement of a witness may be used as substantive evidence, when the declarant testifies at trial and is subject to cross-examination, it is error to give a jury instruction limiting its use to impeachment purposes. State v. Caulder, 287 S.C. 507, 339 S.E.2d
876 (Ct. App. 1986).
16.
DEFENDANT'S CHARACTER
Generally, when there is evidence of good character, a defendant is entitled to an instruction that evidence of good character and good reputation may, in and of itself, create a doubt as to guilt and should be considered by the jury, along with all the other evidence, in determining the guilt or innocence of the defendant. The good reputation of the defendant, if proved, may be taken into consideration by the jury in determining whether the defendant committed the crime charged.
State v. Green, 278 S.C. 239, 294 S.E.2d 335 (1982); State v. Harrison, 343 S.C. 165, 539 S.E.2d
71 (Ct. App. 2000).
17.
OFFENSES/ELEMENTS OF OFFENSES
a) Accessory after the fact
A defendant who is merely present at the scene of a crime may be convicted as an accessory if he thereafter aids the perpetrator in covering it up or escaping from the crime. Absence is not an essential element of the offense of accessory after the fact; at the scene will not preclude an accessory verdict where the defendant becomes involved after commission of the substantive offense. State v. Collins, 329 S.C. 23, 495 S.E.2d 202 (1998).
A defendant who is not charged with being an accessory is not entitled to an accessory instruction unless the evidence points to an exclusionary situation eliminating the defendant from having participated in the crime as a principal. State v. Good, 315 S.C. 135, 432 S.E.2d 463 (1993). b) ABHAN
180
It is error to instruct jurors to equate ABHAN with voluntary manslaughter without the death of the victim in order to help the jurors distinguish between ABHAN and ABIK. State v. Pilgrim,
326 S.C. 24, 482 S.E.2d 562 (1997). c) Armed Robbery
Under S.C. Code Ann. § 16-11-330(A) (Supp. 2001), words alone are insufficient to establish the element of “representation with a deadly weapon.” State v. Muldrow, 348 S.C. 264, 559 S.E.2d
847 (2002).
There is no requirement that an armed robbery indictment contain an allegation of the intent to permanently deprive the owner of the property. The intent to permanently deprive the owner of the property is implicit in the definition of armed robbery. Broom v. State, 351 S.C. 219, 569
S.E.2d 336 (2002).
Strong arm robbery is the taking of something of value from a person or in the immediate presence of a person by violence or intimidation. When determining whether a the robbery was committed with intimidation, the trial court should determine whether an ordinary, reasonable person in the victim’s position would feel a threat of bodily harm from the perpetrator’s act.
State v. Rosemond , 356 S.C. 426, 589 S.E.2d 757 (2003).
Illegal drugs may be the subject of an armed robbery. State v. Gentry, 363 S.C. 93, 610 S.E.2d
494 (2005). d) Attempt to Commit a Misdemeanor
An attempt to commit a misdemeanor is not an indictable offense. State v. Redmon, 121 S.C.
139, 113 S.E.2d 467 (1922). e) Breach of Peace
It is not necessary that an act have in itself any element of violence in order to constitute a breach of peace. Whether or not an act constitutes a breach of peace depends on the time, the place and the nearness of other persons. State v. Peer, 320 S.C. 546, 466 S.E.2d 375 (Ct. App. 1996). f) Breaking Into a Motor Vehicle
One who enters, without breaking, into the engine compartment of a vehicle to remove the drive shaft did not attempt to break into the vehicle and could not be convicted under § 16-13-160 of
181
breaking or attempting to break into a motor vehicle. State v. Gore, 318 S.C. 157, 456 S.E.2d 419
(Ct. App. 1995). g) Burglary
Stealing a weapon in the course of a burglary suffices to make one armed with a deadly weapon and to make the burglary first degree. State v. McCaskill, 321 S.C. 283, 468 S.E.2d 81 (Ct. App.
1996).
First-degree burglary under S.C. Code Ann. § 16-11-311(A) requires two prior convictions for burglary or housebreaking. Out of state convictions for burglary and housebreaking are sufficient under the statute. State v. Zulfer, 345 S.C. 258, 547 S.E.2d 885 (Ct. App. 2001).
Where circumstances of aggravation for first degree burglary are that the defendant had two prior convictions for burglary or housebreaking or both, the probative value of additional prior convictions must be weighed against their probative value and normally should not be admitted into evidence. State v. Keenon , 356 S.C. 457 590 S.E.2d 34 (2003). h) Criminal Sexual Conduct
The circumstances of aggravation for ABHAN are not sufficient to satisfy the aggravated force requirement of first degree CSC. State v. Green, 327 S.C. 581, 491 S.E.2d 263 (1997). i) Cross Burning
Cross burning statute, § 16-7-120, is invalid, and intimidation by incendiary statute, § 16-11-550, is inapplicable to cross burnings because this violates the First Amendment. State v. Ramsey, 311
S.C. 555, 430 S.E.2d 511 (1993). j) Display of Weapon During Violent Crime
Section 16-23-490 does not apply when a person visibly displays what appears to be a knife; the weapon must, in fact, be a knife. Williams v. State, 306 S.C. 89, 410 S.E.2d 563 (1991). k) Distribution of Controlled Substances
The mental element of distribution of a controlled substance may be shown by proof of criminal negligence. State v. Ferguson, 302 S.C. 269, 395 S.E.2d 182 (1990).
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l) DUI
DUI statute applies to person driving a motor vehicle in the driveway of a private residence.
Owner does not have to give written consent under § 56-5-6310 for DUI statute to be applicable to private road. State v. Allen, 314 S.C. 539, 431 S.E.2d 563 (1993).
Law enforcement officers are not required to advise out-of-state motorists of the consequences in their respective states of refusing the breathalyzer test in this state. Percy v. S.C. Dep’t of
Highways and Pub. Transp., 315 S.C. 383, 434 S.E.2d 264 (1993).
It is not error for the trial judge to charge that a moped is a motor vehicle under the DUI statute, §
56-5-2930. State v. Singleton, 319 S.C. 312, 460 S.E.2d 573 (1995).
Under § 56-5-2946, an officer need not offer a breath test as the first option, nor must a medical opinion that a breath test is not feasible be obtained, before ordering a blood test or sample. State v. Long, 363 S.C. 360, 610 S.E.2d 809 (2005). m) Dwelling Houses
A boat in which a person lodges is included in the definition of dwelling house in § 16-11-10 for arson and burglary. State v. Myers, 313 S.C. 391, 438 S.E.2d 236 (1993).
A mobile home is a dwelling house under § 16-11-10. State v. Glenn, 297 S.C. 29, 374 S.E.2d
671 (1988).
A fully screened porch is a dwelling house under §§ 16-11-10 and 16-11-310. State v. Stone, 350
S.C. 442, 567 S.E.2d 244 (2002).
A motel room is a dwelling under §§ 16-11-10 and 16-11-310. State v. White, 349 S.C. 33, 562
S.E.2d 305 (2002). n) Involuntary Manslaughter
Involuntary manslaughter instruction is required where there is evidence indicating guilt of that offense. Casey v. State, 305 S.C. 445, 409 S.E.2d 391 (1991).
A defendant charged with a homicide committed during the commission of a felony is not entitled to an instruction that the jury may convict of both the felony and involuntary manslaughter. This would be an incorrect statement of the law. However, because the rule against inconsistent
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verdicts has been abolished, the jury may return a verdict of guilty of involuntary manslaughter and the felony. State v. Avery, 333 S.C. 284, 509 S.E.2d 496 (1999).
Where the State introduced defendant’s statement from which jury could infer defendant’s intent was to threaten to kill himself and did not point or present the gun to her, jury could find shooting of gun was unintentional and defendant was entitled to a charge on involuntary manslaughter.
State v. Reese , 359 S.C. 260, 597 S.E.2d 169 (Ct. App. 2004). o) Kidnapping
The mens rea of knowledge, not of purpose, is required for kidnapping. State v. Jefferies, 313
S.C. 13, 446 S.E.2d 427 (1994). p) Pointing or Presenting a Firearm
The law against pointing or presenting a firearm does not limit the right of self-defense and does not apply to theatrical or other similar performances. S.C. Code Ann. § 16-23-410. q) Resisting Arrest
An arrest is not complete until the arrestee is properly confined in jail. Therefore, an attempt to avoid being placed in a cell could support a conviction for resisting arrest. State v. Dowd, 306
S.C. 268, 411 S.E.2d 428 (1991).
Where the defendant testifies he did not resist arrest, a request to charge that the defendant has the right to resist an unlawful arrest is properly refused. State v. Galloway, 305 S.C. 258, 407 S.E.2d
662 (Ct. App. 1991).
Assaulting a police officer while resisting arrest conviction was proper where the defendant was in custody on other charges but had just been served with additional arrest warrants and was at a bond hearing on the new charges when the assault occurred since the arrest on the new charges had not been consummated. State v. Garvin, 341 S.C. 122, 533 S.E.2d 591 (Ct. App. 2000). r) Stalking and Harassment
Stalking and harassment do not include words or conduct that is protected by the Constitution of this State or the United States and do not apply to law enforcement officers or process servers performing their official duties. S.C. Code Ann. § 16-3-1700(A) and (B).
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s) Unlawful Carrying of Pistol
In a prosecution for unlawful carrying of a pistol, the defendant has the burden of proving that he falls within an exception to the law. The State is not required to negate each exception to the offense. State v. Clarke, 302 S.C. 423, 396 S.E.2d 827 (1990).
18.
LESSER INCLUDED OFFENSES
a) Generally
A request to charge on a lesser included offense is properly refused when there is no evidence that the defendant committed the lesser rather than the greater offense. State v. Johnson, 324 S.C. 38,
476 S.E.2d 681 (1996); State v. Goldenbaum, 294 S.C. 455, 365 S.E.2d 731 (1988).
The test for determining when a crime is a lesser included offense of the crime charged is whether the greater of the two offenses includes all the elements of the lesser offense. State v. McFadden,
342 S.C. 629, 539 S.E.2d 387 (2000); State v. Bland, 318 S.C. 315, 457 S.E.2d 611 (1995). But see State v. Elliott, 346 S.C. 603, 552 S.E.2d 727 (2001) (although ABHAN and ACSC do not satisfy the elements test, the Court treats ABHAN as a lesser included offense of ACSC); State v.
Primus, 349 S.C. 576, 564 S.E.2d 103 (2002) (holding that ABHAN and CSC are lesser-included offenses, in light of State v. Elliott). b) Specific Offenses
Unlawful carrying of a pistol is not a lesser included offense of possession of a firearm or knife during the commission of a violent crime. State v. Kirby, 325 S.C. 390, 481 S.E.2d 150 (Ct. App.
1996).
Third degree criminal sexual conduct (CSC) under § 16-3-654(1)(b)(mentally defective victim) is not a lesser included offense of first degree CSC. State v. McFadden, 342 S.C. 629, 539 S.E.2d
387 (2000).
Lewd act is not a lesser included offense of first degree assault with intent to commit criminal sexual conduct with a minor. State v. Brock, 335 S.C. 267, 516 S.E.2d 212 (Ct. App. 1999).
Lewd act is not a lesser included offense of first degree criminal sexual conduct with a minor.
Campbell v. State, 342 S.C. 100, 535 S.E.2d 928 (2000).
Entering without breaking is not a lesser included offense of first degree burglary. Hope v. State,
328 S.C. 78, 492 S.E.2d 76 (1997).
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ABHAN is a lesser included offense of assault with intent to commit criminal sexual conduct.
State v. Elliott, 346 S.C. 603, 552 S.E.2d 727 (2001).
ABHAN is a lesser included offense of CSC. State v. Primus, 349 S.C. 576, 564 S.E.2d 103
(2002).
AHAN is a lesser included offense of first degree CSC and assault with intent to commit CSC with a minor. State v. Murphy, 322 S.C. 321, 471 S.E.2d 739 (Ct. App. 1996).
Where the undisputed evidence is that the amount of drugs involved exceeds the minimum trafficking amount, then only the trafficking charge should be submitted to the jury. State v.
Raffaldt, 318 S.C. 110, 456 S.E.2d 390 (1995); State v. Grandy, 306 S.C. 224, 411 S.E.2d 207
(1991).
Assault and battery and ABHAN are not lesser included offenses of murder where there is no dispute that the victim died as a result of the battery. State v. Fields, 314 S.C. 144, 442 S.E.2d
181 (1994).
Solicitation is not a lesser included offense of conspiracy. State v. Prince, 316 S.C. 57, 447
S.E.2d 177 (1993).
Reckless homicide, involuntary manslaughter, and reckless driving are not lesser included offenses of felony DUI. State v. Cribb, 310 S.C. 518, 426 S.E.2d 306 (1992).
Receiving stolen goods is not a lesser included offense of larceny. State v. Martin, 278 S.C. 256,
294 S.E.2d 345 (1982).
DUS and driving while an habitual offender are separate offenses with separate elements. State v.
Moyd, 321 S.C. 256, 468 S.E.2d 7 (Ct. App. 1996).
Purse snatching is not a lesser included offense of robbery. State v. Bland, 318 S.C. 315, 457
S.E.2d 611 (1995).
Joyriding (use of a vehicle without permission) is a lesser included offense of grand larceny of a motor vehicle. Kerrigan v. State, 304 S.C. 561, 406 S.E.2d 160 (1991).
PWID a counterfeit controlled substance is not a lesser included offense of PWID a controlled substance. Murdock v. State, 308 S.C. 143, 417 S.E.2d 543 (1992).
Petty larceny is a lesser included offense of robbery. State v. Austin, 299 S.C. 456, 385 S.E.2d
830 (1989).
Grand larceny is not a lesser included offense of armed robbery. State v. Parker, 351 S.C. 567,
571 S.E.2d 288 (2002); Joseph v. State, 351 S.C. 551, 572 S.E.2d 309 (2002).
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Simple assault is a lesser included offense of criminal domestic violence. State v. LaCoste, 347
S.C. 153, 553 S.E.2d 464 (Ct. App. 2001).
Possession of cocaine is a lesser included offense of possession of crack cocaine. State v.
Timmons, 349 S.C. 389, 563 S.E.2d 657 (2002).
Pointing and presenting a firearm is not a lesser included offense of assault with intent to kill.
State v. Burton , 356 S.C. 259, 589 S.E.2d 6 (2003).
Tampering with a motor vehicle is not a lesser-included offense of breaking into a motor vehicle.
State v. Arthur , ___ S.C. ___, 593 S.C. 522 (Ct. App. 2004).
19.
DEFENSES
a) Insanity
The defendant has the burden to prove the defense of insanity by a preponderance of the evidence.
S.C. Code Ann. § 17-24-10 (B) (1985 & Supp. 2001).
A requested charge on insanity is properly refused where there is no evidence to show the defendant was insane at the time of the crime. State v. Lewis, 328 S.C. 273, 494 S.E.2d 114
(1997).
A defendant suffering from mental illness is not entitled to a charge on insanity on the basis of lay testimony that does not specifically go to the question of whether the defendant knew right from wrong. State v. Lewis, 328 S.C. 273, 494 S.E.2d 114 (1997).
It is error to give a commitment instruction advising the jury of the possibility of the defendant’s release from custody if the jury returns a verdict of not guilty by reason of insanity. State v.
Huiett, 271 S.C. 205, 246 S.E.2d 862 (1978).
A jury need not be instructed that a not guilty by reason of insanity verdict would result in hospitalization until release by court order. State v. Rimert, 315 S.C. 527, 446 S.E.2d 400 (1994).
A defendant who presented evidence that his use of drugs had caused permanent and irreversible brain damage which manifested itself in a mental illness is entitled to present a defense of insanity or guilty but mentally ill. State v. Hartfield, 300 S.C. 469, 388 S.E.2d 802 (1990).
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b) Guilty but Mentally Ill
Upon a plea of guilty but mentally ill, the defendant has the burden to prove mental illness at the time of the crime by a preponderance of the evidence. S.C. Code Ann. § 17-24-20 (B) (1985 &
Supp. 2001).
It is proper to refuse a charge that a defendant who is adjudged mentally ill may be committed to the State Hospital for treatment. State v. Valenti, 265 S.C. 380, 218 S.E.2d 726 (1975).
Where the jury is instructed on the mens rea and is properly apprised of the legal standards to determine insanity and mental illness, there is no error in refusing to charge that guilty and guilty but mentally ill verdicts both have the same mens rea and sentencing consequences. State v.
Hornsby 326 S.C. 121, 484 S.E.2d 869 (1997). c) Self-Defense
(1) Elements
The elements of self-defense are: (1) the defendant was without fault in bringing on the difficulty;
(2) the defendant must have actually believed he was in imminent danger of losing his life or sustaining serious bodily injury, or he actually was in such imminent danger; (3) if the defense is based on the defendant's actual belief of imminent danger, a reasonable prudent man of ordinary firmness and courage would have entertained the same belief. If the defendant actually was in imminent danger, the circumstances were such as would warrant a man of ordinary prudence, firmness and courage to strike the fatal blow in order to save himself from serious bodily harm or losing his own life; and (4) the defendant had no other probable means of avoiding the danger of losing his own life or sustaining serious bodily injury than to act as he did in this particular instance. State v. Davis, 282 S.C. 45, 317 S.E.2d 452 (1984).
(2) Burden of Proof
The defendant need not establish self-defense by the preponderance of the evidence, but must merely produce evidence which creates a reasonable doubt. State v. Bellamy, 293 S.C. 103, 359
S.E.2d 63 (1987)(rejecting holding in Martin v. Ohio, 480 U.S. 228, 107 S. Ct. 1098, 94 L. Ed. 2d
267 (1987), that a state may require a defendant to prove self-defense by a preponderance of the evidence); see also State v. Wiggins, 330 S.C. 538, 500 S.E.2d 489 (1998)(the State must disprove self-defense, once raised by the defendant, beyond a reasonable doubt).
When self-defense is properly submitted to the jury, the defendant is entitled to a charge, if requested, that the State has the burden of disproving self-defense by proof beyond a reasonable
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doubt. State v. Burkhart, 350 S.C. 252, 565 S.E.2d 298 (2002); State v. Addison, 343 S.C. 290,
540 S.E.2d 449 (2000).
(3) Charge to be Based on Evidence
The State v. Davis, 282 S.C. 45, 317 S.E.2d 452 (1984), self-defense charge is not exclusive. The trial court should fashion a charge based on the circumstances of the case in accordance with the common law of self-defense. State v. Fuller, 297 S.C. 440, 377 S.E.2d 328 (1989).
The trial judge's failure to charge on the specific elements of self-defense that are applicable in a case constitutes reversible error. State v. Day, 341 S.C. 410, 535 S.E.2d 431 (2000). See State v.
Nichols, 325 S.C. 111, 481 S.E.2d 118 (1997)(error in failing to charge jury on the right to act on appearances because the defendant testified he thought he had seen a shiny object in the victim’s hand; the relevance of prior difficulties between the victim and the defendant; and that the defendant did not have to wait before acting in self-defense); State v. Fuller, 297 S.C. 440, 377
S.E.2d 328 (1989)(error in failing to charge on the right to act on appearances; that words accompanied by hostile acts may, depending on the circumstances, establish a plea of self-defense; and that there is no duty to retreat if by doing so the defendant would increase his danger of being killed or suffering serious bodily injury).
(4) Right to Act on Appearances
A defendant must show that he believed he was in imminent danger, not that he was actually in such danger, because he had the right to act on appearances, and under the circumstances as they appeared to him, he believed he was in such danger and a reasonable prudent man of ordinary firmness and courage would have entertained the same belief. State v. Fuller, 297 S.C. 440, 377
S.E.2d 328 (1989).
The right to act on appearances is not limited to the situation where the defendant testifies he mistakenly thought he saw a weapon in the victim’s hand. While an appearance charge is appropriate when the defendant erroneously believes he sees the victim with a weapon, it has been applied elsewhere. State v. Starnes, 340 S.C. 312, 531 S.E.2d 907 (2000).
(5) Business Proprietor Assaulted by Trespasser
If, in the legitimate exercise in good faith of the right by a proprietor to eject a trespasser from his premises, the proprietor is assaulted by the trespasser and subjected to the danger of losing his life or of receiving serious bodily harm as would justify the killing of the assailant under the right of self-defense, the proprietor would have the right to self-defense. State v. Wiggins, 330 S.C. 489,
500 S.E.2d 489 (1998); State v. Brooks, 252 S.C. 504, 167 S.E.2d 307 (1969).
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Whether the defendant was acting in good faith in attempting to eject the victim, and while so doing the victim assaulted the defendant, are questions of fact for jury determination. State v.
Wiggins, 330 S.C. 489, 500 S.E.2d 489 (1998); State v. Brooks, 252 S.C. 504, 167 S.E.2d 307
(1969).
(6) Duty to Retreat
A person attacked on his own premises, without fault, has the right to claim immunity from the duty to retreat. State v. Long, 325 S.C. 59, 480 S.E.2d 62 (1997).
The absence of a duty to retreat extends to the curtilage of a home. State v. Wiggins, 330 S.C.
489, 500 S.E.2d 489 (1998)(curtilage includes outbuildings, yard around dwelling, garden).
The absence of a duty to retreat on one’s place of business applies to the business parking lot.
State v. Wiggins, 330 S.C. 489, 500 S.E.2d 489 (1998).
(7) Defense of Others
Under the theory of defense of others, one is not guilty of taking the life of an assailant who assaults a friend, relative, or bystander if that friend, relative, or bystander would likewise have the right to take the life of the assailant in self-defense. State v. Long, 325 S.C. 59 , 480 S.E.2d
62 (1997).
In order for the trial court to give a defense of others charge, there must be some evidence that the defendant was indeed lawfully defending others. State v. Starnes, 340 S.C. 312, 531 S.E.2d 907
(2000); Douglas v. State, 332 S.C. 67, 504 S.E.2d 307 (1998).
(8)
Battered Woman’s Syndrome
When evidence of battered woman syndrome is presented, a defendant may be entitled to an instruction on self-defense. Robinson v. State, 308 S.C. 74, 417 S.E.2d 88 (1992).
Often a battered woman will kill an abuser during a confrontation when the man clearly is the aggressor, so the first element is satisfied. It may be possible to characterize a battered woman as the victim of a continuing assault at the hands of her batterer. When this is the case, the first element of self-defense may be satisfied even though the battered woman acts at a time when the batterer is not physically abusing her.
Depending upon the facts of each case, the second element of self-defense also may be satisfied when a battered woman believes she is in imminent danger of death or serious bodily harm even though her batterer is not physically abusing her when she acts. This is because battered women
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can experience a heightened sense of imminent danger arising from the perpetual terror of physical and mental abuse. Often the terror does not wane, even when the batterer is absent or asleep.
As to the third element, where torture appears interminable and escape impossible, the belief that only the death of the batterer can provide relief may be reasonable in the mind of a person of ordinary firmness.
As to the fourth element, a battered woman who is held hostage by her batterer may have no other means of avoiding a battering than to kill her batterer in self-defense. Moreover, a battered woman often may be able to claim the inapplicability of this element of self-defense because she acts while on her own premises, and has no duty to retreat.
Robinson v. State, 308 S.C. 74, 417 S.E.2d 88 (1992).
(9) Self-Defense and Accident
Where a defendant claims being armed in self-defense while also claiming the shooting was accidental, the combination of events can place the shooting in the context of self-defense.
Because the defense of accident is not applicable unless the defendant was acting lawfully, it is necessary to instruct the jury as to what constitutes a lawful enterprise. State v. McCaskill, 300
S.C. 256, 387 S.E.2d 268 (1990)(error in failing to charge that if the defendant lawfully armed herself in self-defense because of a threat to her safety created by the decedent, and the gun accidentally discharged, the jury would have to find her not guilty); State v. Chatman, 336 S.C.
149; 519 S.E.2d 100 (1999)(if the defendant was not acting in self-defense, then he could not have been acting lawfully and he was not entitled to an accident charge).
(10) Self-Defense and Voluntary Manslaughter
Self-defense and voluntary manslaughter are not mutually exclusive and should both be submitted to the jury if supported by the evidence. State v. Wiggins, 330 S.C. 538, 500 S.E.2d 489 (1998).
(11) Self-Defense and Involuntary Manslaughter
No error in failing to charge involuntary manslaughter when defendant claims intentional shooting in self-defense and that he was acting lawfully, but recklessly. State v. Pickens, 320
S.C. 528, 466 S.E.2d 364 (1996).
(12) Self-Defense and Mutual Combat
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To constitute "mutual combat" there must exist a mutual intent and willingness to fight and this intent may be manifested by the acts and conduct of the parties and the circumstances attending and leading up to the combat. State v. Graham, 260 S.C. 449, 196 S.E.2d 495 (1973).
The mutual combat doctrine is triggered when both parties contribute to the resulting fight. If the defendant is engaged in mutual combat, self-defense is unavailable unless the defendant withdraws from the conflict before the killing occurs. In this case, the evidence was insufficient to warrant the jury charge on mutual combat, where there was no evidence that victim was willing to engage in an armed encounter with defendant, there was no evidence victim knew that defendant was armed with a knife, and there was no pre-existing ill-will or dispute between the parties.
State v. Taylor , 356 S.C. 227, 589 S.E.2d 1 (2003).
(13) Self-Defense and Accident
Even though the defendant unlawfully possessed a weapon, if the defendant was entitled to be armed in self-defense when the gun went off, the defendant is entitled to an instruction on the defense of accident. State v. Burriss, 334 S.C. 256, 513 S.E.2d 104 (1999). d) Alibi
An alibi charge is required when there is evidence that the defendant could not have performed the criminal act because he was in another place at the time of its commission, thus making it impossible for him to have been at the scene of the crime. State v. Robbins, 275 S.C. 373, 271
S.E.2d 319 (1980).
Failure to give an alibi charge where the defendant claims to be at another place is reversible error. Riddle v. State, 308 S.C. 361, 418 S.E.2d 308 (1992).
An alibi charge is not required when the defendant merely denies committing the crime. State v.
Robbins, 275 S.C. 373, 271 S.E.2d 319 (1980).
An alibi charge is not required if the defendant merely denies he was present at the scene when the crime was committed. State v. Diamond, 280 S.C. 296, 312 S.E.2d 550 (1984).
It is error to instruct the jury that alibi is an affirmative defense which must be proved by a preponderance of the evidence. State v. McGhee, 137 S.E. 256, 135 S.E. 59 (1926). e) Entrapment
The law of entrapment should be charged when there is evidence that the defendant was induced, tricked, or incited to commit a crime which he would not otherwise have committed. State v.
Johnson, 295 S.C. 215, 367 S.E.2d 700 (1988).
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The defense of entrapment is not available to a defendant exhibiting a predisposition to commit a crime independent of governmental inducement and influence. State v. Johnson, 295 S.C. 215,
367 S.E.2d 700 (1988). f) Duress
To support a charge on duress, the degree of coercion must be present, imminent, and of such a nature as to induce a well-grounded apprehension of death or serious bodily harm if the act is not done. Coercion is no defense if there is any reasonable way, other than committing the crime, to escape the threat of harm. The fear of injury must be reasonable. State v. Benjamin, 345 S.C.
470, 549 S.E.2d 258 (2001); State v. Robinson, 294 S.C. 120, 363 S.E.2d 104 (1987). g) Necessity
In order to prove necessity, the defendant must show that:
(1) there is a present and imminent emergency arising without fault on the part of the defendant;
(2) the emergency is of such a nature as to induce a well-grounded apprehension of death or serious bodily harm if the act is not done; and (3) there is no other reasonable alternative, other than committing the crime, to avoid the threat of harm.
Necessity is an affirmative defense which must be established by a preponderance of the evidence. State v. Cole, 304 S.C. 47, 403 S.E.2d 117 (1991)(defense available to one charged with DUS).
In order to prove necessity in escape cases based on lack of medical treatment, a prisoner who is in need of emergency medical treatment to avoid death or immediate, serious permanent bodily injury must show: (1) the prisoner informed prison officials of the condition, in writing, unless admitted by the prison officials, and was been denied professional medical care; (2) there was no time to resort to the courts; (3) the escape was without use or threat of use of force; (4) the escapee promptly sought professional medical treatment; (5) the treating physician or, if he is unavailable, a physician responding to a hypothetical question testifies the prisoner was actually in danger of death or immediate serious permanent bodily injury unless the prisoner was given prompt professional medical treatment; and (6) after seeing the physician, the prisoner immediately surrendered himself to the authorities. State v. Worley, 265 S.C. 551, 220 S.E.2d
242 (1975).
193
In escape cases, the defense of necessity based on threats is available only if the prisoner shows:
(1) the prisoner was faced with a specific threat of death, forcible sexual attack, or substantial bodily injury in the immediate future; (2) there was no time for a complaint to the authorities or there was a history of futile complaints which make any relief from such complaints illusory; (3) there was no time or opportunity to resort to the courts; (4) there is no evidence of force or violence used towards prison personnel or other "innocent" persons in the escape; and (5) the prisoner immediately reported to the proper authorities when he attained a position of safety from the immediate threat. State v. Henderson, 298 S.C. 331, 380 S.E.2d 817 (1989). h) Intoxication
There was no prejudicial error in charging the jury that voluntary intoxication is not a defense when there was some evidence showing that the defendant had been drinking prior to the crime even though the defendant did not present intoxication as a defense. State v. Todd, 290 S.C. 212,
349 S.E.2d 339 (1986). i) Right to Resist Unlawful Arrest
An instruction on the right to resist an unlawful arrest was required where the defendant’s evidence showed that, at the time of the killing, the defendant was unaware that the victim was a police officer. State v. McGowan, 347 S.C. 618, 557 S.E.2d 657 (2001);
State v. Jackson, 227 S.C. 271, 87 S.E.2d 681 (1955). j) Habitation
The defense of habitation is analogous to self-defense and should be charged when the defendant presents evidence that he was defending himself from imminent attack on his own premises.
State v. Sullivan, 345 S.C. 169, 547 S.E.2d 183 (2001).
20.
IDENTIFICATION
Identification instruction set forth in United States v. Telfaire, 469 F.2d 552 (D.C. App. 1972), emphasizes the importance of a special identification instruction where the only evidence is the sole testimony of an eyewitness or victim. State v. Jones, 344 S.C. 48, 543 S.E.2d 541 (2001);
State v. Jones, 273 S.C. 723, 259 S.E.2d 120 (1979)(Telfaire instruction is unnecessary where the case does not involve a single witness identification).
Where the instructions given by the court adequately focused the attention of the jury on the necessity for a finding that the testimony identified defendant as the offender beyond a reasonable doubt, the defendant suffers no prejudice from the failure to give a Telfaire identification
194
instruction. State v. Robinson, 274 S.C. 198, 262 S.E.2d 729 (1980); State v. Motes, 264 S.C.
317, 215 S.E.2d 190 (1975).
21.
PRIOR KNOWLEDGE
Prior knowledge that a crime is going to be committed, without more, is not sufficient to make a person guilty of that crime. State v. Franklin, 299 S.C. 133, 382 S.E.2d 911 (1989).
Mere knowledge that the principal is going to commit an offense, even when coupled with presence at the commission of the crime, is insufficient to convict one as a principal. State v.
Franklin, 299 S.C. 133, 382 S.E.2d 911 (1989).
22.
MERE PRESENCE
Mere presence instructions are required when the evidence supports the conclusion that the defendant was merely present at the scene where contraband was found and it was questionable whether the defendant had a right to exercise dominion and control over the contraband. Brunson v. State, 324 S.C. 117, 477 S.E.2d 711 (1996); State v. Austin, 299 S.C. 456, 385 S.E.2d 830
(1989); State v. Stokes, 339 S.C. 154, 528 S.E.2d 430 (Ct. App. 2000).
A mere presence charge is not required when the State's evidence tends to show the defendant had actual possession and control of the drugs and the defense is that he was framed. State v. Lee,
298 S.C. 362, 380 S.E.2d 834 (1989).
If there is a doubt over whether the defendant is guilty as an accomplice to a crime, the trial court may be required to instruct the jury that "a person must personally commit the crime or be present at the scene of the crime and intentionally, or through a common design, aid, abet, or assist in the commission of that crime through some overt act." State v. Austin, 299 S.C. 456, 385 S.E.2d 830
(1989); State v. Stokes, 339 S.C. 154, 528 S.E.2d 430 (Ct. App. 2000).
23.
STATEMENTS
Jurors need not be instructed that they must make a separate finding that the defendant received and understood Miranda warnings before determining that the defendant’s statements were voluntarily given. State v. Davis, 309 S.C. 326, 422 S.E.2d 133 (1992).
Where there was evidence that the defendant’s statement was involuntary, a Jackson v. Denno hearing must be held and the issue of voluntariness must be submitted to the jury. State v. Victor,
300 S.C. 220, 387 S.E.2d 248 (1989).
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24.
FLIGHT
Although evidence of flight is proper as some evidence of guilty knowledge and intent, and counsel may argue the inferences from flight to the jury, it is error to charge the jury on the law of flight. State v. Grant, 275 S.C. 404, 272 S.E.2d 169 (1980).
25.
PUNISHMENT
a) Generally
Where the right to fix punishment is exclusively within the province of the court, it is not error to refuse an instruction regarding punishment since information as to the penalty does not aid the jury in determining whether the defendant committed the crime charged. State v. McGee, 268
S.C. 618, 235 S.E.2d 715 (1977).
Where the right to fix the punishment or make a recommendation regarding punishment rests with the jury, it is error for the Court not to instruct the jury in that respect. State v. McGee, 268 S.C.
618, 235 S.E.2d 715 (1977). This rule does not apply, however, to the guilt phase of a bifurcated trial. State v. Bell, 293 S.C. 391, 360 S.E.2d 706 (1987)(it is not error to refuse to instruct the jury regarding punishment at the guilt phase of a capital trial).
Because the consequences of the verdict are of no concern to the jury, it is not error to refuse to charge the consequences of each available verdict. State v. Poindexter, 314 S.C. 490, 431 S.C.
254 (1993). b) Parole
A jury determining the guilt of a defendant should be neither invited nor permitted to speculate upon the possible effect of parole upon a conviction. State v. Brooks, 271 S.C. 355, 247 S.E.2d
436 (1978).
26.
MISCELLANEOUS
a) Adverse Inference from Failing to Call Witnesses
Although argument may be made on the adverse inference from failing to produce a material witness, it is improper to charge the jury on this adverse inference. State v. Hammond, 270 S.C.
347, 242 S.E.2d 411 (1978).
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b) Jury Questions
Judge’s response to jurors’ question as to why a search warrant had been issued to “use your own judgment” improperly encouraged jurors to speculate on the basis for the search warrant and, thus, consider facts not in evidence. Judge should have instructed the jury that because the underlying reason for the search warrant was not presented at trial, the jury should not consider it in its deliberations. State v. Mollison, 319 S.C. 41, 459 S.E.2d 88 (Ct. App. 1995). c) Jury Conduct
Instructions that jurors could discuss the case among themselves during lunch are inherently prejudicial in that they invite the jurors to begin deliberations before the close of the case. Jurors should be admonished not to discuss the case with anyone, including each other, prior to the submission of the case to them. Gallman v. State, 307 S.C. 273, 414 S.E.2d 780 (1992).
27.
ALLEN (DYNAMITE) CHARGE
a) Generally
The trial judge has a duty to urge the jurors to reach a verdict, but he may not coerce them. State v. Pauling, 322 S.C. 95, 470 S.E.2d 106 (1996).
The factors to be considered in determining whether an Allen charge is coercive include the length of the deliberations prior to the charge, the length of deliberations following the charge, and the total length of deliberations. State v. Williams, 344 S.C. 260, 543 S.E.2d 260 (Ct. App.
2001).
Factors to be considered in determining whether an Allen charge is coercive include the charge in its entirety and in context; suggestions or threats that the jury would be kept until unanimity is reached; suggestions or commands that the jury must agree; indications that the trial court knew the numerical division of the jury; indications that the charge was directed at the minority; the length of deliberations following the charge; the total length of deliberations; whether the jury requested additional instruction; and other indications of coercion. Tucker v. Catoe, 221 F.3d 600
(4 th
Cir. 2000). b) No Coercion Found
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It is not coercion to charge that failure to reach a verdict will require a new trial at additional expense. State v. Pauling, 322 S.C. 95, 470 S.E.2d 106 (1996); State v. Ayers, 284 S.C. 266, 325
S.E.2d 579 (Ct. App. 1985).
Where the trial judge specifically stated that every juror has a right to his own opinion and need not give it up merely for the purpose of reaching agreement, no coercion occurred. State v.
Singleton, 319 S.C. 312, 460 S.E.2d 573 (1995); State v. Hale, 284 S.C. 348, 326 S.E.2d 418 (Ct.
App. 1985).
Charge given after jury deliberated nine hours that if the defendant is entitled to a verdict, he is entitled to it now and that if the State is entitled to a verdict, it is entitled to that verdict now and not at some later date was not coercive. State v. Lynn, 277 S.C. 222, 284 S.E.2d 786 (1981). c) Coercion Found
The trial judge cannot threaten to keep the jurors in the jury room all night if they do not agree.
State v. Simon, 126 S.C. 437, 120 S.E. 230 (1923).
The trial judge cannot direct the Allen charge to the minority voters on the jury panel. State v.
Elmore, 279 S.C. 417, 308 S.E.2d 781 (1983); Dawson v. State, 352 S.C. 15, 572 S.E.2d 445
(2002).
An Allen charge which does not specifically instruct both the minority and the majority to reconsider their positions is reversible error. United States v. Burgos, 55 F.3d 933 (4 th
Cir. 1995).
28.
DEATH PENALTY CASES
In a capital case, where the State places the defendant’s future dangerousness at issue and the only available alternative sentence to the death penalty is life imprisonment without parole, due process entitles the defendant to inform the jury he is parole ineligible. Simmons v. South
Carolina, 512 U.S. 154, 114 S. Ct. 2187, 129 L. Ed. 2d 133 (1994).
Whenever future dangerousness is at issue in a capital sentencing proceeding under South
Carolina’s new scheme where the only sentencing alternative to death is life without parole, due process requires that the jury be informed, either by jury instruction or argument by counsel, that a life sentence carries no possibility of parole. Kelly v. South Carolina, 534 U.S. 246, 122 S.Ct.
726, 151 L.Ed.2d 670 (2002); Shafer v. South Carolina, 532 U.S. 36, 121 S.Ct. 1263, 149 L.Ed.2d
178 (2001); State v. Stone, 350 S.C. 442, 567 S.E.2d 244 (2002).
Pursuant to S.C. Code Ann. § 16-3-20 (Supp. 2001), when requested by the State or the defendant, the judge must charge the jury in his instructions that life imprisonment means until the death of the defendant without the possibility of parole. Further, in cases where the defendant
198
is eligible for parole, the judge must charge the applicable parole eligibility statute. See State v.
Shafer, 352 S.C. 191, 573 S.E.2d 796 (2002) (“[G]iven the United States Supreme Court’s decision in Kelly, the better practice is for trial judges to give the capital sentencing jury a parole eligibility charge whether it is requested or not.”).
Where evidence of prior crimes is introduced in the sentencing stage, the court must instruct the jury that the evidence can only be considered as to the defendant’s characteristics and not as proof of the alleged statutory aggravating circumstance. State v. Young, 305 S.C. 380, 409 S.E.2d 352
(1991).
Where there is evidence that the defendant was intoxicated at the time of the crime, the trial judge must instruct the jury of the statutory mitigating circumstance that the murder was committed while the defendant was under the influence of mental or emotional disturbance. State v. Stone,
350 S.C. 442, 567 S.E.2d 244 (2002); State v. Young, 305 S.C. 380, 409 S.E.2d 352 (1991).
Failure to charge the mitigating circumstance that the defendant was suffering from a mental disorder at the time of the murder when there is testimony that the defendant had an antisocial or psychopathic personality is error. State v. Caldwell, 300 S.C. 494, 388 S.E.2d 816 (1990).
Records of prior convictions used to establish aggravating circumstances at first trial are insufficient to establish aggravating circumstances at resentencing hearing. The resentencing jury must be instructed on the elements of the offenses before it can rely on them as aggravating circumstances. State v. Riddle, 301 S.C. 68, 389 S.E.2d 665 (1990).
M.
CONDUCT OF JUDGE
1.
EXPRESSION OF OPINION
A trial judge must act with absolute impartiality in the performance of judicial duties. State v.
Cooper, 334 S.C. 540, 514 S.E.2d 584 (1999); State v. Pace, 316 S.C. 71, 447 S.E.2d 186 (1994);
Canon 3 of Rule 501, SCACR.
The judge must refrain from all comment which tends to indicate his opinion on the weight or sufficiency of evidence, the credibility of witnesses, the guilt of the accused, or the facts in controversy. State v. Ates, 297 S.C. 316, 377 S.E.2d 98 (1989); Sosebee v. Leeke, 293 S.C. 531,
362 S.E.2d 22 (1987); State v. Smith, 288 S.C. 329, 342 S.E.2d 600 (1986); State v. Robinson,
274 S.C. 198, 262 S.E.2d 729 (1980).
Remarks made while passing on the admissibility of evidence or on motions are generally not improper unless made in such manner or under such circumstances as to impress upon the jury the judge's opinion regarding some vital fact in issue. State v. Deas, 202 S.C. 9, 23 S.E.2d 820
(1943).
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a) Examples of Improper Comments
In a rape case, the trial judge improperly told the jury every woman has the right to walk down the street unmolested and the law does not view rape with any lightness. State v. Thorne, 237
S.C. 248, 116 S.E.2d 854 (1960).
In an assault and battery case, the trial judge improperly warned the defendants not to make threats or harm anyone. State v. Cook, 295 S.C. 421, 368 S.E.2d 907 (1988).
A trial judge impermissibly suggested that the relationship between an undercover agent and a police informant was not so close as the defense was trying to indicate and the trial judge’s comments clearly indicated that the trial judge believed that the defendant was guilty. State v.
Campbell, 297 S.C. 24, 374 S.E.2d 668 (1988).
In prosecution for grand larceny, the trial judge impermissibly commented on the facts by stating a camera worth $500 four months before the theft was surely worth $200 at the time of the theft.
State v. Ates, 297 S.C. 316, 377 S.E.2d 98 (1989).
2.
COMMENTS TO COUNSEL
The trial judge should not make comments in front of the jury which tend to impugn the credibility of defense counsel. State v. Pace, 316 S.C. 71, 447 S.E.2d 186 (1994).
Routine interactions with counsel regarding evidentiary rulings or admonitions to proceed normally do not involve any improper, personal comment about defense counsel and would not tend to impugn counsel’s character. State v. Cooper, 334 S.C. 540, 514 S.E.2d 584 (1999); State v. DeBerry, 250 S.C. 314, 157 S.E.2d 637 (1967) (judge's admonition to counsel to be brief and stop wasting the court's time was within the discretion given him to conduct the trial and prevent unnecessary repetition). a) Examples of Improper Comments to Counsel
During the course of closing argument by defense counsel and in the presence of the jury, the trial judge threatened counsel with a jail sentence and counsel proceeded no further with argument.
This conduct warranted reversal. State v. Simmons, 267 S.C. 479, 229 S.E.2d 597 (1976).
Trial judge's comments to jury upon female defense counsel's age and gender deprived defendant of fair trial, where remarks of court tended to impugn credibility of counsel and to diminish her in her defense of defendant in eyes of jury. State v. Pace, 316 S.C. 71, 447 S.E.2d 186 (1994).
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3.
CONTROL OF DEFENDANT
Trial judges confronted with disruptive, disorderly, and disrespectful defendants must be given sufficient discretion to meet the circumstances of each case. Illinois v. Allen, 397 U.S. 337, 343,
90 S. Ct. 1057, 25 L. Ed. 2d 353,(1970).
A defendant may properly be excluded when his conduct is disruptive or is interfering with the
progress of the trial. State v. Bell, 293 S.C. 391, 360 S.E.2d 706 (1987). See PRESENCE OF
Whether a defendant is restrained during trial is within the trial judge's discretion. The trial judge is to balance the prejudicial effect of shackling with the considerations of courtroom decorum and security. State v. Tucker, 320 S.C. 206, 464 S.E.2d 105 (1995).
4.
CONTROL OF WITNESS
A trial judge has the inherent power to maintain order and decorum in his courtroom. “Generally, the act of a judge in a criminal case in admonishing, rebuking or warning a witness because of the latter’s language or conduct is not such misconduct as to require a new trial. The court may reprove or rebuke a witness for levity or profanity, and it is proper to correct the volubility of a witness and admonish those who show hesitation, reluctance, or evasion.” State v. Beckham, 334
S.C. 302, 513 S.E.2d 606 (1999).
5.
CONTROL OF JURORS
a) Separation of the Jury.
If it appears that jury deliberations may extend into the night, the trial judge has discretion to order that the jury be taken to suitable sleeping quarters and the jury shall resume their deliberations in the morning. The jury shall be kept together, separate from the public. Any juror or jurors may be separated for the night from any other juror or jurors. Rule 23, SCRCrimP.
"The plain language of the rule gives the trial court discretion as to whether a jury should be dispersed overnight during deliberations." State v. Evans, 309 S.C. 471, 476, 424 S.E.2d 512,
515 (Ct. App. 1992).
The judge has discretion to separate jurors or keep them together during a trial. State v.
Vanderhorst, 257 S.C. 114, 184 S.E.2d 540 (1971).
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b) Alternate Left in Jury Room
The trial judge must dismiss the alternate before the jury is sent to the jury room for deliberations.
If an alternate is found to have been permitted into the jury room, the trial judge should: (1) remove the alternate from the jury room and inquire as to the extent of that juror’s participation;
(2) conduct such voir dire as is necessary of the remaining jury panel to ascertain prejudice and, if practicable, tailor instructions requiring the jury to disregard the alternate’s input and in essence, requiring the jury to begin deliberation anew; and (3) if the trial court finds that deliberations have proceeded too far, or that the alternate’s impact upon remaining jury members may not be remedied, a mistrial should be had and a new trial ordered. State v. Grovenstein, 335 S.C. 347,
517 S.E.2d 216 (1999).
The burden is on the defendant to prove that the defendant was denied a fair trial due to an alternate’s presence in the jury room. State v. Grovenstein, 335 S.C. 347, 517 S.E.2d 216 (1999).
c) Premature Deliberations
The judge may not make comments inviting the jury to discuss the case until it is submitted to them. State v. Joyner, 289 S.C. 436, 346 S.E.2d 711 (1986).
If an allegation of premature deliberations arises during trial:
The judge should conduct a hearing to ascertain if premature deliberations occurred and if the deliberations were prejudicial.
If requested, the judge may voir dire the jurors and, if practicable, tailor a cautionary instruction to correct the problem.
If the judge determines that the deliberations were prejudicial, the findings should be set forth in the record and a new trial should be ordered. State v. Aldret, 333 S.C. 307, 509 S.E.2d 811
If the premature deliberations do not become apparent until after the jury’s verdict:
The judge may consider affidavits and, if the judge finds the affidavits credible and indicative of premature deliberations, an evidentiary hearing should be held to assess whether the premature deliberations in fact occurred and whether they affected the verdict.
The trial court may, upon request of the moving party, reassemble the jurors and conduct voir dire to ascertain the nature and extent of the premature deliberations.
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If the court determines the misconduct did not occur, or that it was not prejudicial, adequate findings should be made so that the determination may be reviewed. If the court is convinced premature deliberations did, in fact, occur, but finds it impossible to conduct an adequate posttrial inquiry due to the passage of time, a new trial may be ordered. State v. Aldret, 333 S.C. 307,
509 S.E.2d 811 (1999). See Juror Misconduct.
d) Trial Judge Prohibited from Entering Jury Room
Trial judge may not enter the jury room, even in the presence of counsel. State v. Elmore, 279
S.C. 417, 308 S.E.2d 781 (1983), overruled on other grounds by State v. Torrence, 305 S.C. 45,
406 S.E.2d 315 (1991). e) Note-Taking
The trial judge has discretion to allow jurors to take notes. State v. South, 285 S.C. 529, 331
S.E.2d 775 (1985). f) Questions from the Jury
While allowing questioning of witnesses by the jury is within the trial judge’s discretion, it is discouraged. Day v. Kilgore, 314 S.C. 365, 444 S.E.2d 515 (1994).
If the trial judge decides to allow questions by the jury, the following procedure must be strictly followed:
The jury shall be admonished not to engage in premature deliberations, shall be sent to the jury room, and shall reduce the questions to writing.
Outside the presence of the jury, the judge shall then read the question on the record, entertain objections from counsel, and determine whether the question is proper.
If the question is improper, the trial judge will not allow the question. If the question is proper, the trial judge must independently review the question and make a determination of whether the question may lead the jury out of their normal role of passive finders of fact and into the role of advocate. Day v. Kilgore, 314 S.C. 365, 444 S.E.2d 515 (1994). g) Sleeping Juror
203
The decision to dismiss a sleeping juror and replace the juror with an alternate lies within the sound discretion of the trial judge. State v. Smith, 338 S.C. 66, 525 S.E.2d 263 (Ct. App. 1999);
State v. Hurd, 325 S.C. 384, 480 S.E.2d 94 (Ct. App. 1996).
The trial court should at least attempt to make a determination of whether a juror is asleep or not.
If the court determines that the juror is awake, then no further action need be taken. If the juror was asleep, the trial court may need to recharge the entire jury or replace the juror. The defense will bear the burden of proving that the juror was actually sleeping and if the defendant fails to request direct examination of the juror, that waives any complaint on appeal. State v. Smith, 338
S.C. 66, 525 S.E.2d 263 (Ct. App. 1999); State v. Hurd, 325 S.C. 384, 480 S.E.2d 94 (Ct. App.
1996).
In the cases involving jury instructions, the trial judge may either recharge the entire jury or replace the juror. State v. Hurd, 325 S.C. 384, 480 S.E.2d 94 (Ct. App. 1996). h) Privacy of Jurors Regarding Juror Misconduct
Closure of the record is proper only if it is essential to preserve higher values and is narrowly tailored to serve that interest. Thus, post-trial allegations of juror misconduct can be publicly disclosed. Ex parte Greenville News, 326 S.C. 1, 482 S.E.2d 556 (1997) (under the particular facts of Ex parte Greenville News and because jurors were assured their depositions would be confidential based on the judge’s order sealing the record, juror privacy was preserved by disclosure of the sealed information with redaction of jurors' names and identifying information). i) Juror’s independent research
The trial court should stress to jurors that they may not conduct independent research or investigation, but must rely solely on the judge’s instruction for the law and the evidence presented in court for the facts. State v. Harris, 340 S.C. 59, 530 S.E.2d 626 (2000).
The determination of whether extraneous material received by a juror during the course of the trial is prejudicial is a matter for determination by the trial court. See also State v. Kelly, 331 S.C.
132, 502 S.E.2d 99 (1998) (although it was improper for a juror to bring a religious pamphlet regarding the death penalty into deliberations, no mistrial was necessary because the trial judge took appropriate curative measures by replacing the juror).
6.
CONTROL OF MEDIA
a) Generally
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Exclusion of the press from judicial proceedings is a drastic measure calling for a careful weighing of the interests affected. A judge should require the moving party to establish good and sufficient cause before closing a proceeding. The judge must exercise sound judicial discretion and must make express findings upon the record before closing a proceeding to the media.
Steinle v. Lollis, 279 S.C. 375, 307 S.E.2d 230 (1983).
The presiding judge may refuse, limit, or terminate media coverage of an entire case, portions of the case, or testimony of particular witnesses as may be required in the interest of justice. Rule
605, SCACR.
In determining whether to close court proceedings, the presiding judge must balance the interest of the media with the rights of the parties. Ex parte Columbia Newspapers, Inc., 286 S.C. 116,
333 S.E.2d 337 (1985).
The trial judge must determine whether there exists a First Amendment right to public access to the proceeding and whether the rights of the accused override it. Ex parte The Island Packet, 308
S.C. 198, 417 S.E.2d 575 (1992).
To determine whether a First Amendment right to access exists, the trial judge must evaluate (1) whether the proceeding has historically been an open one; and (2) whether public scrutiny plays a significant role in the functioning of the proceeding. Ex parte The Island Packet, 308 S.C. 198,
417 S.E.2d 575 (1992).
After the threshold determination has been made that a qualified First Amendment right to access applies, the trial judge must consider if the rights of the accused override it. To justify closure, the trial judge must make specific findings that closure is essential preserve higher values and is narrowly tailored to serve that interest. Ex parte The Island Packet, 308 S.C. 198, 417 S.E.2d 575
(1992).
Where the accused asserts his right to a fair trial to justify closure, the court must make specific findings (1) that there is a substantial probability of prejudice from publicity that closure would prevent, and (2) there are no reasonable alternatives to closure that would adequately protect the defendant’s fair trial rights. Ex parte The Island Packet, 308 S.C. 198, 417 S.E.2d 575 (1992).
An accused who opposes the public’s right of access to a criminal proceeding bears the burden of proof to justify closure. Ex parte The Island Packet, 308 S.C. 198, 417 S.E.2d 575 (1992).
The presiding judge may also place additional reasonable restrictions, or prohibit altogether, photographing, recording, or broadcasting in court facilities other than the courtroom. Rule 605,
SCACR.
Media representatives must give reasonable notice to the presiding judge of a request to cover a proceeding. In the absence of reasonable notice, the presiding judge may refuse to permit media coverage, after giving due regard for the public educational benefits flowing from the photographing and recording of court proceedings. Media representatives may use video, still cameras, or recorders to cover proceedings in the courts of this State. Rule 605, SCACR.
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b) Examples
In cases involving the protection of witnesses, press exclusion must only be as broad as are the needs of the witnesses under the peculiar circumstances of the case. State v. Sinclair, 275 S.C.
608, 274 S.E.2d 411 (1981) (in a case involving an alleged lewd act upon a minor, the trial court appropriately excluded the public only when the minor testified).
A presumption of openness applies to pre-trial jury voir dire proceedings and also extends to posttrial hearings regarding alleged juror misconduct. See Ex parte Greenville News, 326 S.C. 1, 482
S.E.2d 556 (1997).
7.
CONTEMPT POWER
The power to punish for contempt is inherent in all courts and is essential to the preservation of order in judicial proceedings. Direct contempt occurs when a person’s conduct interferes with judicial proceedings, when a person exhibits disrespect for the court, or when one hampers judicial proceedings. State v. Havelka, 285 S.C. 388, 330 S.E.2d 288 (1985) (the trial court’s finding of contempt for inappropriate dress was reversed when the defendant was not disruptive and had no notice that the attire was inappropriate).
Constructive contempt occurs outside the court's presence or hearing but nevertheless tends to impede or prevent the due administration of justice. State v. Kennerly, 337 S.C. 617, 524 S.E.2d
837 (1999).
The court is present wherever any of its constituent parts is engaged in the prosecution of the business of the court according to the law. The jury pool constitutes an integral constituent part of the court and contemptuous acts within their sight or hearing will constitute direct contempt.
State v. Kennerly, 337 S.C. 617, 524 S.E.2d 837 (1999).
N.
PRESENCE OF DEFENDANT
1.
GENERALLY
An accused has a constitutional right to be present at every stage of his trial, but the trial judge may exclude the defendant when the defendant’s conduct is disruptive or is interfering with the progress of the trial. State v. Bell, 293 S.C. 391, 360 S.E.2d 706 (1987). Further, a defendant’s presence is not necessary at a stage in a criminal proceeding which is not critical to the outcome.
State v. Caldwell, 300 S.C. 494, 388 S.E.2d 816 (1990).
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2.
PRESENCE AT PARTICULAR STAGES
a) Presentation of Evidence
A defendant has a right to be present during the presentation of evidence. See State v. Lewis, 324
S.C. 539, 478 S.E.2d 861 (Ct. App. 1996) (error for judge to exclude defendant during the testimony of the underage victim). b) Jury View
A jury view of the scene is not a taking of evidence. State v. Mouzon, 326 S.C. 199, 485 S.E.2d
918 (1997); Gossett v. State, 300 S.C. 473 , 388 S.E.2d 804 (1990). Thus, there was no error in the absence of defendant or counsel at the jury view where neither the defendant nor counsel requested defendant’s presence, where there was no objection to defendant’s absence, and where the trial judge accompanied the jury. State v. Plath, 281 S.C. 1, 313 S.E.2d 619 (1984). c) Motion for Change of Venue/Continuance
The defendant need not be personally present at a hearing on motions for change of venue and continuance. State v. Faries, 125 S.C. 281, 118 S.E. 620 (1923). d) Additional Instructions
Where the court gives further instructions to a jury, the court should have the defendant present.
State v. Smart, 278 S.C. 515, 299 S.E.2d 686 (1982), overruled on other grounds by State v.
Torrence, 305 S.C. 46, 406 S.E.2d 315 (1991). e) Motion to be Relieved as Counsel
While the better practice is to have the defendant present at a hearing on counsel's motion to be relieved, his presence, where not critical to the trial's outcome, is not necessary. State v.
Caldwell, 300 S.C. 494, 388 S.E.2d 816 (1990). f) Voir Dire
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Defendant has a right to be present when a trial judge conducts voir dire during the course of the trial to determine the jury's continued impartiality. State v. Rivers, 294 S.C. 123, 363 S.E.2d 105
(1987). g) Motion for Sentence Reduction
A post-trial motion for reduction of a sentence is not a critical stage of the proceedings and there was no error in proceeding without the presence of the defendant. State v. Bradley, 324 S.C. 387,
478 S.E.2d 537 (Ct. App. 1996). h) Motion for a New Trial
Because a motion for a new trial occurs after the conclusion of the defendant’s trial, it is not necessary that the defendant be present at the hearing on the motion. State v. Corn, 224 S.C. 74,
77 S.E.2d 354 (1953). i) Jackson v. Denno Hearing
A Jackson v. Denno hearing on the admissibility of defendant’s statements is critical to the outcome of the criminal proceeding. State v. Shuler, 344 S.C. 604, 545 S.E.2d 805 (2001).
O.
VERDICT
1.
GENERALLY
A verdict of a jury should be presented in open court by the jury, properly published, assented to by all the jury, received by the court, and ordered placed on the record before the final discharge of the jury. State v. Bilton, 156 S.C. 324, 153 S.E. 269 (1930).
2.
FORM AND SUFFICIENCY
a) Generally
It is approved practice to have the verdict written on the indictment and signed by the foreman although there is no statutory requirement to do so and a verdict of a jury orally presented in open court, properly published and assented to by the jury, is legal and binding. Town of North
Augusta v. Fennell, 221 S.C. 112, 69 S.E.2d 121 (1952).
208
There is no statute or rule of court changing common-law rule that criminal verdicts are oral.
State v. Waring, 109 S.C. 52, 95 S.E. 143 (1918). b) Special Findings
The court has the right to direct the jury to find a special verdict in writing upon any or all of the issues. State v. Wells, 162 S.C. 509, 161 S.E. 177 (1931). c) Co-Defendants
The verdict must be clear as to each defendant; however, an acquittal of one does not necessitate an acquittal of the others even if the evidence is the same. State v. Rush, 129 S.C. 43, 123 S.E.
765 (1924).
Assuming that there was evidence sufficient to convict, and that it was identically the same as to the guilt of each defendant jointly indicted, because the jury, in the exercise of their exclusive prerogative to decide the facts, see fit to acquit one and convict the others, it is not apparent why such a finding should impose any duty on the court to set aside the verdict as to the parties convicted. State v. Thompkins, 220 S.C. 523, 68 S.E.2d 465 (1951). d) Multiple Count Indictments
Where the jury has failed to reach a verdict on any count in a multiple count indictment, a new trial of the entire case is necessary to arrive at a verdict on that particular count. State v. Pauling,
322 S.C. 95, 470 S.E.2d 106 (1996).
A verdict of guilty on one count without mentioning a second count operates as an acquittal on the second count. State v. Langston, 265 S.C. 74, 216 S.E.2d 875 (1975); see also subsection a iv
(3). e) Greater and Lesser Included Offenses
Under the constitutional prohibition against double jeopardy, a defendant cannot be punished for an offense and a lesser included offense established by the same acts. State v. Spann, 279 S.C.
399, 308 S.E.2d 518 (1983).
In determining whether acts arising out of the same transaction constitute separate and distinct offenses, the test generally applied is whether the evidence necessary to support one of the offenses charged is sufficient to procure a legal conviction of the other. If each offense charged
209
involves proof of a necessary element which the other does not, the offenses are separate and distinct so as to permit trial and conviction under the same indictment, although they arise out of the same transaction. State v. Greuling, 257 S.C. 515, 186 S.E.2d 706 (1972).
A defendant may be convicted of two separate crimes arising from the same conduct without being subjected to double jeopardy, where her conduct consists of two "distinct" offenses. State v. Pace, 337 S.C. 407, 523 S.E.2d 466 (Ct. App. 1999). f) Inconsistent Verdicts
The Court has abolished the rule prohibiting inconsistent verdicts. State v. Alexander, 303 S.C.
377, 401 S.E.2d 146 (1991).
A defendant convicted by a jury on one count cannot attack the conviction because it was inconsistent with the verdict of acquittal on another count. State v. Alexander, 303 S.C. 377, 401
S.E.2d 146 (1991).
For example, conspiracy to commit murder and manslaughter are not inconsistent because it is not mandatory that the purpose of the conspiracy be accomplished to establish the existence of the conspiracy. State v. Greuling, 257 S.C. 515, 186 S.E.2d 706 (1972).
3.
POLLING THE JURY
a) Generally
Until a verdict has been published and recorded, it may be recalled and altered by the jury. If it is made known to the court when it is time to render the verdict that any juror does not assent to it, the verdict cannot be received and the jury should retire to their room until they have agreed.
State v. Linder, 276 S.C. 304, 278 S.E.2d 335 (1981). b) When Required
The trial judge must be satisfied that the verdict is unanimous. Whether a poll of the jury will be conducted is discretionary with the trial judge unless a polling is requested. If the request is made, a poll must be taken.
State v. Linder, 276 S.C. 304, 278 S.E.2d 335 (1981).
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c) Manner of Polling
The manner of polling is within the court's discretion, and no particular phrasing or form of question is required. It is not proper to inquire into the juror's reasons for concurring. State v.
Roper, 274 S.C. 14, 260 S.E.2d 705 (1979).
4.
AMENDMENT OR CORRECTION BY THE JURY
a) Generally
After a jury has returned their verdict, been discharged, and separated, they cannot be recalled to alter or amend it. State v. Dawkins, 32 S.C. 17, 10 S.E. 772 (1890).
However, notwithstanding a formal discharge, a jury may be reassembled so long as it remains an essentially undispersed unit, and has not been subjected to any outside influence between the discharge and the reassembly. State v. Myers, 318 S.C. 549, 459 S.E.2d 304 (1995). b) Non-assent
Where a juror's equivocal, ambiguous, inconsistent, or evasive answers leave doubt whether the juror has assented to the verdict, but the juror’s answers are not such as to indicate involuntariness or coercion, it is generally held that a subsequent answer which indicates clear and unequivocal assent, either on further interrogation or after further deliberation, will cure the defect. State v.
Roper, 274 S.C. 14, 260 S.E.2d 705 (1979).
Where a jury publishes the verdict, but on being individually polled, a member or members of the jury do not assent to the published verdict, the court may send the jury back to amend the verdict to conform to the finding. State v. Linder, 276 S.C. 304, 278 S.E.2d 335 (1981); Sanders v.
Charleston Consolidated Railway and Lighting Co., 154 S.C. 220, 151 S.E. 438 (1930). c) Incomplete Verdict
Where the jury returns an incomplete verdict, the court may, before the verdict is recorded and the jury dispersed, direct the jury to retire to reconsider it. State v. Corley, 13 S.C. 1 (1880). d) Trial Judge
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The court may not supply a finding that the jury did not make nor may it suggest or direct the jury to change the verdict in substance. State v. Norris, 65 S.C. 287, 43 S.E. 791 (1903).
Where there is competent evidence to sustain jury's verdict, the trial judge may not substitute his judgment for that of jury and overturn that verdict. State v. Miller, 287 S.C. 280, 337 S.E.2d 883
(1985).
P.
POST TRIAL MOTIONS
1.
GENERALLY
Except for motions for new trials based on after discovered evidence, post trial motions shall be made within ten (10) days after the imposition of the sentence. In cases involving appeals from convictions in magistrate's or municipal court, post trial motions shall be made within ten (10) days after receipt of written notice of entry of the order or judgment disposing of the appeal. The time for appeal for all parties shall be stayed by a timely post trial motion and shall run from the receipt of written notice of entry of the order granting or denying such motion. Rule 29,
SCRCrimP. See also, After Discovered Evidence.
2.
SUFFICIENCY OF THE EVIDENCE
The only post-verdict fact-based remedy in a criminal case is a motion for a new trial. State v.
Dasher, 278 S.C. 395, 297 S.E.2d 414 (1982).
There is no J.N.O.V. in a criminal case. State v. Dasher, 278 S.C. 395, 297 S.E.2d 414 (1982).
3.
VERDICT IN ARREST OF JUDGMENT
Following a guilty verdict in a criminal case, a defendant may move for verdict in arrest of judgment to prevent entry of judgment on the grounds of the insufficiency of the indictment or some other fatal defect appearing on the face of the record. State v. Miller, 287 S.C. 280, 337
S.E.2d 883 (1985).
Where judgment is arrested for a fatal defect in the indictment, the prisoner is not entitled to discharge, but the prisoner may be retried upon a new indictment for the same offense. State v.
Holley, 3 S.C.L. (1 Brev.) 35 (1800).
4.
NEW TRIAL
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a) Generally
The grant or refusal of a new trial motion is within the trial judge's discretion and will not be disturbed absent clear abuse of discretion. State v. Simmons, 279 S.C. 165, 303 S.E.2d 857
(1983).
A trial court's denial of a new trial motion will not be disturbed on review absent a showing of an abuse of discretion which results in prejudice to the defendant. State v. Kelly, 331 S.C. 132, 502
S.E.2d 99 (1998). b) Grounds for new trial
(1) Sufficiency of the evidence
The trial judge may grant a new trial upon the facts even in the face of conflicting evidence that would prevent a directed verdict, but he may not, in the face of conflicting evidence, enter a verdict different from that of the jury based upon his own assessment of the facts. State v.
Dasher, 278 S.C. 395, 297 S.E.2d 414 (1982).
(2) Fair Trial
The trial judge may grant a new trial on the ground the defendant did not receive a fair and impartial trial. State v. Thompson, 122 S.C. 407, 115 S.E. 326 (1922); State v. Kennedy, 272
S.C. 231, 250 S.E.2d 338 (1978).
(3) Juror Misconduct
Generally, it is within the trial judge’s discretion whether to grant a new trial in cases of juror misconduct, but a new trial is not warranted where the juror’s actions have not prejudiced the defendant. The burden is on the defendant to show error and resulting prejudice. Juror misconduct which does not affect the impartiality of the jury will not undermine the verdict. State v. Harris,
340 S.C. 59, 530 S.E.2d 626 (2000).
A new trial was not warranted where a juror’s research concerning the definition of "malice aforethought" was consistent with the judge’s instructions and, thus, the defendant was not prejudiced. State v. Harris, 340 S.C. 59, 530 S.E.2d 626 (2000).
The general test for evaluating alleged juror misconduct is whether there in fact was misconduct, and if so, whether any harm resulted to the defendant as a consequence. State v. Smith, 338 S.C.
66, 525 S.E.2d 263 (Ct. App. 1999).
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Relevant factors to be considered in determining whether the misconduct has affected the jury are: the number of jurors exposed; the weight of the evidence properly before the jury; and the likelihood that curative measures were effective in reducing the prejudice. State v. Kelly, 331
S.C. 132, 502 S.E.2d 99 (1998).
The trial judge may grant a new trial where a juror fails to respond to voir dire questioning and the court finds the concealed information would have supported a challenge for cause or would have been a material factor in the use of peremptory challenges. State v. Gulledge, 277 S.C. 368,
287 S.E.2d 488 (1982).
For example, the Court of Appeals found a defendant was denied his constitutional right to an impartial jury, where a juror failed to disclose her work with a victim's advocacy program through the local solicitor's office, despite having been specifically asked on voir dire about having contributed to or supported any victims' rights organizations. State v. Woods, 338 S.C. 561, 527
S.E.2d 128 (S.C. Ct. App. 2000).
Private communication of court official to members of the jury cannot be tolerated if the sanctity of the jury system is to be maintained. When there has been such a communication, a new trial must be granted unless it clearly appears that the subject matter of communication was harmless and could not have affected verdict. State v. Cameron, 311 S.C. 204, 428 S.E.2d 10 (Ct. App.
1993).
(4) Impeachment of Jury's Verdict
Generally, juror testimony is inadmissible to impeach a jury verdict. State v. Hunter, 320 S.C. 85,
463 S.E.2d 314 (1995). However, juror testimony or affidavits are admissible to prove an allegation of extraneous information or influence. Id; see also Rule 606(b), SCRE, (testimony or affidavit of juror is admissible to demonstrate that outside prejudicial information was brought to jury's attention or that outside influence was placed on any juror).
Juror testimony is also competent in cases involving internal misconduct where necessary to ensure fundamental fairness. State v. Hunter, 320 S.C. 85, 463 S.E.2d 314 (1995).
Jurors' affidavits that they had "grave doubts" that defendant was guilty are not admissible. State v. Parris, 163 S.C. 295, 161 S.E. 496 (1931).
Jurors' affidavits that they did not understand or were misled by the charge are not admissible.
State v. Cash, 138 S.C. 167, 136 S.E. 222 (1927).
Juror's testimony that court's charge coerced them into finding a verdict is not admissible. State v.
Shuman, 106 S.C. 150, 90 S.E. 596 (1916).
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Juror's affidavit that although he doubted defendant's guilt he agreed to the verdict believing defendant would receive a lesser sentence is not admissible. State v. Bennett, 40 S.C. 308, 18
S.E. 886 (1894).
(5) After Discovered Evidence
A motion for a new trial based on after discovered evidence may be made within a reasonable period of time after the discovery of the evidence. The motion may not be made while the case is on appeal unless the appellate court, upon motion, suspends the appeal and grants leave to make the motion. Rule 29, SCRCrimP.
A motion for a new trial based on after discovered evidence is addressed to the sound discretion of the trial judge. The granting of a new trial because of after discovered evidence is not favored, and this Court will sustain the lower court's denial of such a motion unless there appears an abuse of discretion. State v. Irvin, 270 S.C. 539, 243 S.E.2d 195 (1978).
The credibility and weight of newly-discovered evidence is for the circuit court to determine.
State v. Porter, 269 S.C. 618, 239 S.E.2d 641 (1977).
In order to warrant the granting of a new trial on the ground of after discovered evidence, it must appear:
(1) that the evidence is such as will probably change the result if a new trial is granted;
(2) that it has been discovered since the trial;
(3) that it could not have been discovered before the trial by the exercise of due diligence.
(4) that it is material to the issue; and
(5) not merely cumulative or impeaching.
State v. Spann, 334 S.C. 618, 513 S.E.2d 98 (1999).
Q.
TRIAL IN ABSENCE
1.
GENERALLY
Except in capital cases, a person indicted for a misdemeanor or felony may voluntarily waive his right to be present and may be tried in his absence upon a finding by the court that (1) he has received notice of his right to be present, and (2) a warning was given that the trial would proceed in his absence. Rule 16, SCRCrimP.
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2.
FINDING REQUIRED
The trial judge must make a finding on the record that the defendant received: (1) notice of his right to be present at trial; and (2) a warning that he would be tried in his absence should he fail to attend. State v. Ritch, 292 S.C. 75, 354 S.E.2d 909 (1987).
Without notice of the charges, the accused cannot be deemed to have made a knowing and voluntary election to be absent. State v. Goode, 299 S.C. 479, 385 S.E.2d 844 (1989).
3.
NOTICE OF TRIAL
a) Sufficiency
General notice given by courts of general session stating in which term an individual will be tried is sufficient to enable that individual to effectively waive his right to be present. State v. Goode,
299 S.C. 479, 385 S.E. 2d 844 (1989).
Notice of indictment on one offense does not suffice as adequate notice for the defendant's subsequent indictment and trial on a separate offense arising out of the same transaction or set of facts. State v. Goode, 299 S.C. 479, 385 S.E.2d 844 (1989).
Rights of an accused under State and Federal Constitutions to be informed of nature and cause of accusations and to be confronted with witnesses against him are personal to accused and it is accused, not his counsel, who must be informed of those rights. State v. Green, 269 S.C. 657, 239
S.E.2d 485 (1977). b) Evidence
Where presumption that defendant received notice of trial date was not rebutted, trial court did not abuse its discretion in denying motion for a continuance made by defendant's appointed counsel when defendant failed to appear for trial. State v. Langston, 275 S.C. 439, 272 S.E.2d 436
(1980).
Constitutional rights of defendant to be informed of nature and cause of accusations and to be confronted with witnesses against him were violated and required reversal of conviction where defendant was not served with an arrest warrant or indictment, was not arraigned on charge for which he was convicted, and was never advised by any official or lawful authority of charge against him. State v. Green, 269 S.C. 657, 239 S.E.2d 485 (1977).
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4.
JURY INSTRUCTION REQUIRED
When a defendant is tried in his absence, the trial court should instruct the jury that the defendant's failure to appear may not be construed as an admission of guilt. State v. Jackson, 301
S.C. 49, 389 S.E.2d 654 (1990); overruling State v. Johnson, 213 S.C. 241, 49 S.E.2d 6 (1948) (In trial of defendant in absentia, it is not mandatory that trial judge instruct jury that absence should in no way be construed as admission of defendant's guilt, but jury will be presumed to know that if absence of defendant could be an admission of guilt, a trial would be unnecessary).
When the defendant appears but does not remain for the trial after jury selection, a Jackson instruction is still required. McFadden v. State, 342 S.C. 637, 539 S.E.2d 391 (2000).
3.
SENTENCING IN NON-CAPITAL CASES
A.
BASIC GUIDELINES
1.
GENERALLY
S.C. Const. art. I, §15, and U.S. Const. amend. VIII prohibit the infliction of cruel and unusual punishment.
The trial judge has discretion to impose a sentence which is within the limits prescribed by statute. Stockton v. Leeke, 269 S.C. 459, 237 S.E.2d 896 (1977).
When there is discretion as to punishment, the trial court may hear evidence in aggravation or mitigation. State v. Cantrell, 250 S.C. 376, 158 S.E.2d 189 (1967); State v. Adcock, 194 S.C.
234, 9 S.E.2d 730 (1940).
A trial judge has authority to alter, amend, or modify a sentence he has imposed only within the same term of court and upon notice to the state. State v. Smith, 276 S.C. 494, 280 S.E.2d 200
(1981). Each week constitutes a separate term. Id.
A sealed sentence does not become the judgment of the court until it is opened and read to the defendant. State v. Jackson, 290 S.C. 435, 351 S.E.2d 167 (1986).
2.
FELONIES
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a) Punishment When Unspecified.
Where no punishment is specified by statue the sentence for a felony is from three months to ten years. S.C. Code Ann § 17-25-20 (1985). b) Attempted Felonies
Generally, attempted felonies are considered misdemeanors. State v. Storgee, 277 S.C. 412, 288
S.E.2d 397 (1982).
3.
MISDEMEANORS
When no special punishment is provided for a misdemeanor, the sentence shall not exceed ten
(10) years. State v. Mims, 286 S.C. 553, 335 S.E.2d 237 (1985).
4.
CREDIT FOR TIME SERVED
In every case in computing the time served by a prisoner, full credit against the sentence shall be given for time served prior to trial and sentencing. S.C. Code Ann. § 24-13-40 (1989).
Defendant, who was jailed in another county on unrelated charges and had "hold" place on him for current robbery charge, was entitled to credit for time served from date on which sheriff's department issued warrant for his arrest for robbery; at time sheriff's department issued warrant for his arrest, defendant was confined, through the "hold," and charged with robbery. Blakeney v.
State, 339 S.C. 86, 529 S.E.2d 9 (2000).
Prisoner who was arrested for grand larceny and property offense, jailed, released on bond, and then rearrested and jailed four days later for separate offenses, was entitled to credit as to larceny and property offenses for time served following second arrest pursuant to plain terms of statute governing computation of time served, where prisoner was still awaiting trial and sentencing on all offenses at time of second arrest and was not escapee. Allen v. State, 339 S.C. 393 529 S.E.2d
541 (2000).
For purposes of calculating credit for time served, persons released on appeal bond commence service of their sentences when they submit to the custody of the South Carolina Department of
Corrections (SCDOC), and not upon affirmance of their convictions. Robinson v. State, 329 S.C.
65, 495 S.E.2d 433 (1998) overruling State v. Furman, 288 S.C. 243, 341 S.E.2d 795 (1986).
A defendant is not entitled to time served while on house arrest. State v. Higgins , ___ S.C. ___,
593 S.E.2d 180 (Ct. App. 2004)
218
B.
SUSPENSION OF SENTENCE
1.
GENERALLY
The power to suspend a sentence must be exercised at the time sentence is imposed. State v. Best,
257 S.C. 361, 186 S.E.2d 272 (1972).
The judge may condition suspension upon service of part of the sentence. State v. Best, 257 S.C.
361, 186 S.E.2d 272 (1972); Sanders v. McDougall, 244 S.C. 160, 135 S.E.2d 836 (1964).
2.
FELONIES
After a conviction or plea for a felony offense, except felonies punishable by death or life imprisonment, the judge may suspend the imposition or execution of a sentence and place the defendant on probation. S.C. Code Ann. § 24-21-410 (1989 & Supp. 2001); State v. Brown, 284
S.C. 407, 326 S.E.2d 410 (1985).
3.
MISDEMEANORS
Suspension of sentences in misdemeanor cases is within the trial judge’s discretion. S.C. Code
Ann. § 17-25-100 (1985).
4.
PERIOD OF SUSPENSION
Generally, the length of suspension is not limited; however, suspension of the sentence conditioned on probation may not exceed five years. S.C. Code Ann. § 24-21-440 (1989 & Supp.
2001); see also S.C. Code Ann. §§ 17-25-100 and 110 (1985).
C.
PROBATION
1.
GENERALLY
At the time of sentencing for any crime not punishable by death or life imprisonment, the judge of a court of record may suspend the sentence and order probation or impose a fine and order probation. S.C. Code Ann. § 24-21-410 (1989 & Supp. 2001).
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2.
TIME
Probation must be ordered at the time the sentence is imposed. The trial judge may not sentence a defendant to imprisonment and at a later time suspend the remainder of the sentence and order probation. State v. Best, 257 S.C. 361,186 S.E.2d 272 (1972).
Once the trial court places a defendant on probation, it may modify or terminate the probationary sentence at any time. Shannon v. Young, 272 S.C. 61, 248 S.E.2d 914 (1978).
3.
PERIOD OF PROBATION
The period of probation shall not exceed five years and may be continued or extended within that limit. S.C. Code Ann. § 24-21-440 (1989 & Supp. 2001).
The maximum probationary period is five years even where concurrent sentences are given, each with five years probation. Maxey v. Manning, 224 S.C. 320, 78 S.E.2d 633 (1953).
When a probationer is sentenced pursuant to S.C. Code Ann § 24-21-560(C) (Supp. 2001) to one year imprisonment for violating the conditions of his community supervision program (CSP), his probationer period cannot tolled until his release from CSP. Section 24-21-560(E) provides that a
“prisoner who successfully completes a [CSP] pursuant to this section has satisfied his sentence and must be discharged from his sentence.” State v. Dawkins, 352 S.C. 162, 573 S.E.2d 783
(2002).
4.
CONDITIONS OF PROBATION
a) Generally
(1) Statutory
Conditions of probation set forth in S.C. Code Ann. § 24-21-430 (1989 & Supp. 2001) include such things as avoiding unlawful acts and disreputable persons and places, working at suitable employment, submitting to restrictions on freedom, and supporting dependents.
(2) Other
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Conditions of probation must be reasonable. A condition is unreasonable if the burden it imposes is greatly disproportionate to any rehabilitative function. Beckner v. State, 296 S.C. 365, 373
S.E.2d 469 (1988) (prohibiting defendant from entering any business which sells alcohol).
A condition of probation is void if it violates public policy, even if the defendant agrees to it.
State v. Brown, 284 S.C. 407, 326 S.E.2d 410 (1985) (castration). b) Restitution
(1) When Required
If a sentence for the unlawful taking, receiving, or malicious injury to another's property is less than the maximum, a portion of the sentence may be suspended and the defendant placed on probation if he makes restitution to the victim. S.C. Code Ann. § 17-25-125 (1985).
(2) Evidentiary Basis
Restitution may be ordered only upon an evidentiary basis in the record; the amount should be based on actual damages suffered and the defendant's ability to pay. State v. Bynes, 304 S.C. 62,
403 S.E.2d 126 (Ct. App. 1991).
A restitution hearing is part of the sentencing proceeding, and thus, the trial court may consider information which may be inadmissible under evidentiary rules. State v. Gulledge, 326 S.C. 220,
485 S.E.2d 923 (1997).
(3) Factors
The trial judge has broad discretion in determining the manner, method, and amount of restitution.
S.C. Code Ann. § 17-25-322 (Supp. 2001). The judge may consider the following factors:
(1) the financial resources of the defendant and the victim and the burden that the manner or method of restitution will impose upon the victim or the defendant;
(2) the ability of the defendant to pay restitution on an installment basis or on other conditions to be fixed by the court;
(3) the anticipated rehabilitative effect on the defendant regarding the manner of restitution or the method of payment;
(4) any burden or hardship upon the victim as a direct or indirect result of the defendant's criminal acts;
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(5) the mental, physical and financial well-being of the victim. S.C. Code Ann. § 17-25-322 (B).
The judge must make specific findings of the underlying facts and circumstances on the record.
S.C. Code Ann. § 17-25-322 (C). c) Period of Restitution
Restitution payments may not extend past the end of the defendant’s active sentence and period of probation or parole. S.C. Code Ann. § 17-25-323 (B) (Supp. 2001); State v. Gregory,
Unpublished Opinion # 2001-UP-198 (S.C. Ct. App. filed April 9, 2001). d) Reparation
As a condition of probation, the defendant may be ordered to pay the debt, or a portion thereof, owed to the Victim's Compensation Fund for awards made by the Fund. S.C. Code Ann. § 16-3-
1260 (2) (1985 & Supp. 2001).
Reparation may be ordered only upon an evidentiary basis apparent in the record; the amount should be based on actual damages suffered and the defendant's ability to pay. State v. Wilson,
274 S.C. 352, 264 S.E.2d 414 (1980). e) Revocation
Probation may not be revoked unless offender is on notice of special conditions of the probation.
Probation order which stated probationer was to “obtain treatment” for his problem was not sufficiently clear to revoke probation because it did not specifically order him to complete treatment. State v. Brown , 394 S.C. 414, 563 S.E.2d 339 (Ct. App. 2002) certiorari dismissed as improvidently granted State v. Brown , 356 S.C. 301, 589 S.E.2d 188 (2003).
A probationer may have his probation revoked based on facts underlying charge for which he has not been convicted. State v. Williamson , 356 S.C. 507, 589 S.E.2d 787 (Ct. App. 2003). f) Guilty but Mentally Ill
The judge may impose conditions on probation he considers necessary for the safety of the defendant and the community. S.C. Code Ann. § 17-24-70 (1985 & Supp. 2001).
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D.
FINES
1.
GENERALLY
S.C. Const. art. I § 15, and U.S. Const. amend. VIII prohibit the imposition of excessive fines.
Generally, the court has discretion to impose a fine within the limits prescribed by a statute.
When the statute does not designate a maximum penalty, the court's power to impose a fine is limited by the constitutional prohibition against excessive fines. Singletary v. Wilson, 191 S.C.
153, 3 S.E.2d 802 (1939).
Where a statute provides for punishment by fine or imprisonment, the court has the discretion to order either or give the defendant his choice. However, a sentence to both fine and imprisonment is illegal. State v. Petty, 245 S.C. 40, 138 S.E.2d 643 (1964).
2.
INDIGENT DEFENDANTS
A reasonable payment schedule must be made for an indigent defendant; no indigent shall be imprisoned for inability to pay the fine in full at the time of conviction. S.C. Code Ann. § 17-25-
350 (1985).
3.
APPORTIONMENT OF FINE AFTER PART OF SENTENCE
SERVED
If a defendant serves part of a sentence that provided for a fine in the alternative, he may pay a fine proportionate to the remaining sentence to obtain his release. S.C. Code Ann. § 17-25-360
(1985).
E.
RESTITUTION OF STOLEN GOODS
If a person is found guilty of robbing or taking away any money, goods or chattels from another the judge shall award writs of restitution for such money, goods and chattels. S.C. Code Ann. §
17-25-120 (1985).
F.
CONCURRENT SENTENCES
Sentences imposed by the same court are concurrent unless expressly ordered to run consecutively. State v. Furman, 288 S.C. 243, 341 S.E.2d 795 (1986).
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Imposition of a concurrent sentence does not cure an erroneous conviction. Ball v. United States,
470 U.S. 856, 105 S. Ct. 1668, 84 L. Ed. 2d 740 (1985).
G.
CONSECUTIVE SENTENCES
Consecutive sentences must be expressly imposed. State v. Furman, 288 S.C. 243, 341 S.E.2d
795 (1986).
Sentences imposed by different sovereignties run consecutively unless specified otherwise. State v. Furman, 288 S.C. 243, 341 S.E.2d 795 (1986).
H.
ENHANCED SENTENCES
1.
GENERALLY
In seeking an enhanced penalty for a second or subsequent offense, the state need not prove the legality of the prior conviction. The state's burden is to prove only that a prior conviction exists for an offense that occurred prior to the offense tried. DeWitt v. South Carolina Dep't of
Highways & Pub. Transp., 274 S.C. 184, 262 S.E.2d 28 (1980).
Where the State seeks to enhance defendant’s sentence based on a prior conviction, once the State proves the existence of a prior conviction, defendant has the burden of proving that the prior conviction is constitutionally defective or otherwise invalid by a preponderance of the evidence.
State v. Payne, 332 S.C. 266, 504 S.E.2d 335 (Ct. App. 1998).
Prior uncounseled conviction may be used for enhancement of current offense, even if defendant was not actually incarcerated on the prior conviction. State v. Chance, 304 S.C. 406, 405 S.E.2d
375 (1991).
It is not a violation of the ex post facto clauses of the State and Federal Constitutions for the legislature to enhance punishment for an offense based on a prior conviction even though the enhancement provision was not in effect at the time of the previous offense. State v. Dabney, 301
S.C. 271, 391 S.E.2d 563 (1990). See State v. Jones, 344 S.C. 48, 543 S.E.2d 541 (2001)
(sentencing a defendant under the “two strikes” law where defendant’s earlier conviction occurred prior to the law’s passage did not constitute a violation of the separation of powers doctrine, did not constitute cruel and unusual punishment, and did not constitute a violation of the ex post facto clause). See State v. White, 349 S.C. 33, 562 S.E.2d 305 (2002) (upholding the “two strikes” law against an Eighth Amendment attack).
224
Trial judge erred in sentencing defendant to an enhanced sentence for escape where indictment did not allege he was captured outside South Carolina, an aggravator under the statute, relying on
Apprendi v. New Jersey, 530 U.S. 466 (2000). State v. Simuel , ___ S.C. ___, 593 S.E.2d 178 (Ct.
App. 2004).
Where defendant admitted no facts regarding crime during guilty plea proceeding and judge imposed sentence over the maximum based on a finding defendant acted with deliberate cruelty,
Sixth Amendment was violated. Under Apprendi and Ring, enhancement factors must be found by a jury, the defendant must stipulated to the facts leading to enhancement, or waive jury consideration. Blakely v. Washington, 2004 WL 1402697, U.S.Wash., June 24, 2004.
MOTION TO RECONSIDER
Trial court's increase of defendant's sentence upon his motion for reconsideration violated due process. State v. Higgenbottom, 344 S.C. 11, 542 S.E.2d 718 (2001).
2.
EFFECT OF PARDON
"Any conviction," as used in statute providing for enhanced punishment for each subsequent driving under influence (DUI) conviction, did not include pardoned conviction, and thus, pardoned conviction could not be used to enhance current offense; pardon statute provided full pardon from all legal consequences of crime and conviction, and sentence enhancement was forbidden collateral legal consequence of pardoned conviction. State v. Baucom, 340 S.C. 339,
531 S.E.2d 922 (2000).
3.
HABITUAL OFFENDER ACTS
a) Generally
In determining the number of offenses for the purpose of imposition of sentence, the court shall treat as one offense any number of offenses which have been committed at times so closely connected in point of time that they may be considered as one offense, notwithstanding under the law they constitute separate and distinct offenses. S.C. Code Ann. § 17-25-50 (1985 & Supp.
2001).
Section 17-25-45(F) does not abrogate § 17-25-50’s mandate to treat offenses closely connected in point of time as one offense. Section 17-25-45(F) (1985 & Supp. 2001), which states that “for purposes of determining a prior conviction under this section only, a prior conviction shall mean the defendant has been convicted of a most serious or serious offense . . . on separate occasion, prior to the present adjudication” does not define prior conviction, but merely limits the prior
225
convictions which may trigger the life without parole provisions of § 17-25-45. State v. Woody,
345 S.C. 34, 545 S.E.2d 521 (Ct. App. 2001).
A trial judge must consider S.C. Code Ann. § 17-25-45 in conjunction with S.C. Code Ann. § 17-
25-50 to consider whether two separate convictions for trafficking should be considered as having occurred so closely in point of time as to be treated as one offense. State v. Woody , 359 S.C. 1,
596 S.E.2d 907 (2004); State v. Gordon, 356 S.C. 143, 588 S.E.2d 105 (2003).
Where a defendant has been convicted on 2 or more counts for the violation of the Controlled
Substance Act arising out of simultaneous acts committed in the course of a single incident, the conviction will be considered as only one for the purpose of sentencing upon a subsequent conviction for a violation of the Controlled Substance Act. State v. Boyd, 288 S.C. 206, 341
S.E.2d 144 (Ct. App. 1986).
Where the indictment charged the defendant with the commission of two separate and distinct crimes, each involving distinct elements not included in the other, and he was convicted on both, it was entirely proper for the court to impose sentence on each count. State v. Muldrow, 259 S.C.
414, 192 S.E.2d 211 (1972).
If during the service of a sentence, it becomes apparent that the defendant had been convicted of one or more crimes which were not taken into account at the time of the imposition of the original sentence, the court is authorized to issue a rule directed to the defendant requiring him to show cause before the court, not less than ten days from the granting of the rule, why the former sentence should not be revoked and the defendant be sentenced as required if all of the convictions had been brought to the attention of the court at the time of the imposition of the original sentence. S.C. Code Ann. § 17-25-60 (1985).
NOTE: There are no reported cases analyzing this statute. b) Violent Crimes
Any person convicted of a most serious offense must be sentenced to a term of imprisonment for life without the possibility of parole if that person has one or more prior convictions for a most serious offense, a federal or out of state conviction for an offense that would be classified as a most serious offense, or any combination of the above mentioned offenses, except in cases in which the death penalty is imposed. S.C. Code Ann. § 17-25-45 (A) (1985 & Supp. 2001)
(emphasis added).
Any person convicted of a serious offense must be sentenced to a term of imprisonment for life without the possibility of parole if that person has two or more prior convictions for a serious offense, a most serious offense, a federal or out of state conviction that would be classified as a serious offense or most serious offense or any combination of the above mentioned offenses,
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except in cases in which the death penalty is imposed. S.C. Code Ann. § 17-25-45(B) (1985 &
Supp. 2001) (emphasis added).
A juvenile adjudication is not included in the statute’s definition of “conviction.” Accordingly, a juvenile adjudication of delinquency for a crime defined as a most serious offense does not trigger
§ 17-24-45(A)’s life without parole provisions. State v. Ellis, 345 S.C. 175, 547 S.E.2d 490
(2001). But cf. State v. Standard, 351 S.C. 199, 569 S.E.2d 325 (2002) (upholding an enhanced sentence based upon a burglary committed when the defendant was a minor where the defendant was tried and adjudicated as an adult). c) Notice
Where the solicitor is required to seek or determines to seek sentencing of a defendant under this section, written notice must be given by the solicitor to the defendant and defendant's counsel not less than ten days before trial. S.C. Code Ann. § 17-25-45(H) (Supp. 2001).
Where the State gives written notice, but must re-indict due to a defect in the indictment, the defendant has actual notice of the State’s intent and is properly sentenced under the statute. State v. Washington, 388 S.C. 392, 526 S.E.2d 709 (2000). Cf. State v. Johnson, 347 S.C. 67, 552
S.E.2d 339 (Ct. App. 2001) (where the defendant never received written notice of the State’s intent to seek a sentence of life without the possibility of parole, the defendant’s actual notice was insufficient).
4.
ENHANCED DRUG SENTENCING
For purposes of enhanced drug sentencing, it is irrelevant whether the defendant was convicted of the first offense before commission of or indictment for the second offense. The relevant inquiry is whether at the time of sentencing the defendant was convicted of a prior offense. State v.
Patterson, 272 S.C. 2, 249 S.E.2d 770 (1978); S.C. Code Ann. § 44-53-470 (1985); see also Scott v. State, 334 S.C. 248, 513 S.E.2d 100 (1999) (bond forfeiture is not the equivalent of a conviction under § 44-53-470); Rainey v. State, 307 S.C. 150, 414 S.E.2d 131 (1992) (in a conflict between two sentence enhancement statutes, the more specific statute controls).
The Court of Appeals has held that convictions on two or more counts of violating the Controlled
Substance Act, S.C. Code Ann. §§ 44-53-110 to 590 (1985 & Supp. 2000), which arise out of simultaneous acts committed in the course of a single incident, are considered as only one for purposes of enhanced sentencing under the Act. State v. Boyd, 288 S.C. 206, 341 S.E.2d 144 (Ct.
App. 1986).
5.
DUS
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Enhanced punishment for DUS applies only if the prior DUS conviction was based on a suspension for DUI. S.C. Code Ann. § 56-1-460 (1976 & Supp. 2001); State v. Fowler, 298 S.C.
294, 379 S.E.2d 899 (1989).
I.
YOUTHFUL OFFENDER ACT (YOA)
1.
GENERALLY
A Youthful Offender is an offender who is under seventeen years of age and has been bound over for proper criminal proceedings to the court of general sessions pursuant to § 20-7-7605 for allegedly committing an offense that is not a violent crime, as defined in § 16-1-60, and that is a misdemeanor, a Class E or F felony, as defined in § 16-1-20, or a felony which provides for a maximum term of imprisonment of less than fifteen years. S.C. Code Ann. § 24-19-10 (d)(i)
(1989 & Supp. 2001).
A Youthful Offender is also any person who is seventeen but less than twenty-five years of age at the time of conviction for an offense that is not a violent crime, as defined in § 16-1-60, and that is a misdemeanor, a Class E or F felony or a felony which provides for a maximum term of imprisonment of 15 years or less. S.C. Code Ann. § 24-19-10 (d)(ii) (1989 & Supp. 2001).
For purposes of the YOA, a conviction is a judgment in a verdict or finding of guilty, plea of guilty or plea of nolo contendere to a criminal charge where the imprisonment may be at least one year, but excluding all offenses in which the maximum punishment provided by law is death or life imprisonment. S.C. Code Ann. § 24-19-10 (f) (1989 & Supp. 2001); State v. Burton, 301 S.C.
305, 391 S.E.2d 583 (1990).
A YOA defendant must be sentenced pursuant to S.C. Code Ann. § 24-19-50 (1989 & Supp.
2001). Creel v. State, 262 S.C. 558, 206 S.E.2d 825 (1974). The trial judge has complete discretion to impose a sentence under any subsection of § 24-19-50. Id.; Bethea v. State, 262
S.C. 255, 204 S.E.2d 12 (1974).
Additionally, no person may receive a youthful offender sentence more than once. S.C. Code
Ann. § 24-19-50(5) (1989 & Supp. 2001).
Pursuant to S.C. Code Ann. § 24-19-110 (1989 & Supp. 2001), the Youthful Offender Division may conditionally release a youthful offender. Until the offender is unconditionally discharged, he remains under the supervision of the division. State v. Proctor, 345 S.C. 299, 546 S.E.2d 673
(Ct. App. 2001).
2.
SENTENCING AS AN ADULT
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Upon conviction, the judge has several options in sentencing the youthful offender. The trial judge may: (1) suspend the sentence and place the youthful offender on probation; (2) release the youthful offender to the custody of the Youthful Offender Division before sentencing for an observation and evaluation period of not more than sixty days; (3) if the youthful offender is under the age of twenty-one, without his consent, sentence the youthful offender indefinitely to the custody of the Department of Corrections for treatment and supervision until discharged by the Youthful Offender Division, the period of custody not to exceed six years. If the offender is twenty-one years of age but less than twenty-five years of age, he may be sentenced if he consents in writing; (4) sentence the offender as an adult if the court finds that the offender will not derive benefit from treatment. S.C. Code Ann. § 24-19-50 (1), (2), (3) & (4) (1989 & Supp. 2001). If a judge elects to sentence a youthful offender as an adult under S.C. Code Ann. § 24-19-50 (4)
(1989 & Supp. 2001), the better policy is to make an explicit finding for the record that the defendant will receive no benefit from youthful offender treatment. Bell v. Leake, 266 S.C. 563,
225 S.E.2d 188 (1976); Powell v. State, 262 S.C. 592, 206 S.E.2d 883 (1974).
3.
EXCLUSIONS
The legislature has specifically excluded YOA sentences from convictions which carry a sentence of less than one year or a maximum sentence of death or life imprisonment as well as armed robbery. See S.C. Code Ann. § 24-19-10 (f) (1989 & Supp. 2001); State v. Burton, 301 S.C. 305,
391 S.E.2d 583 (1990) (person convicted for possession with intent to distribute crack cocaine may receive YOA sentence); State v. Cutler, 274 S.C. 376, 264 S.E.2d 420 (1980) (the age of conviction determines whether or not one may be sentenced under the YOA for armed robbery).
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