South Carolina v. Barnes
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Appellant Steven Barnes was convicted of kidnapping and murdering Samuel Sturrup, for which he received the death sentence. The judge sentenced appellant to death for the murder, but imposed no sentence for kidnapping. On appeal, appellant contended the trial court erred: (1) in permitting his attorney to call a defense psychiatrist to testify regarding his right to represent himself and in denying his "Faretta" request; (2) in limiting voir dire and in qualifying Juror #203; and (3) in refusing to dismiss the indictments because of the State's failure to comply with the Interstate Agreement on Detainers (IAD) Act. Upon review of the matter, the Supreme Court found the trial judge applied the incorrect competency standard in denying appellant's Faretta request. The case was reversed and remanded for further proceedings.
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The Supreme Court of South Carolina
The State, Respondent,
v.
Steven Barnes, Appellant.
Appellate Case No. 2010-178247
ORDER
The petition for rehearing is denied, however, the original opinion and dissent are
withdrawn and the attached opinions substituted.
s/ Jean H. Toal
C.J.
s/ Costa M. Pleicones
s/ Donald W. Beatty
J.
s/ Kaye G. Hearn
January 15, 2014
J.
s/ John W. Kittredge
Columbia, South Carolina
J.
J.
THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
v.
Steven Barnes, Appellant.
Appellate Case No. 2010-178247
Appeal from Edgefield County
R. Knox McMahon, Circuit Court Judge
Opinion No. 27322
Heard February 5, 2013-Refiled January 15, 2014
REVERSED
Elizabeth Anne Franklin-Best of Blume Norris &
Franklin-Best LLC, and Chief Appellate Defender
Robert Michael Dudek, both of Columbia, for Appellant.
Attorney General Alan McCrory Wilson, Chief Deputy
Attorney General John W. McIntosh, Assistant Deputy
Attorney General Donald J. Zelenka and Senior Assistant
Attorney General Melody Jane Brown, all of Columbia,
and Solicitor Donald V. Myers, of Lexington, for
Respondent.
JUSTICE PLEICONES: Appellant was convicted of kidnapping and murdering
Samuel Sturrup (victim). The jury found two aggravating circumstances,
kidnapping1 and physical torture,2 and recommended a death sentence. The judge
sentenced appellant to death for the murder, and imposed no sentence for the
kidnapping. On appeal, appellant contends the trial court erred in permitting his
attorney to call a defense psychiatrist to testify regarding appellant's right to
represent himself and in denying his Faretta3 request, in limiting voir dire and in
qualifying Juror #203, and in refusing to dismiss the indictments because of the
State's failure to comply with the Interstate Agreement on Detainers (IAD) Act.4
We find the trial judge applied the incorrect competency standard in denying
appellant's Faretta request and reverse.
FACTS
Appellant was approximately twenty-three years old and living in Augusta,
Georgia, where he surrounded himself with high school students. Two of the high
school boys, Richard Cave and Antonio (Tony) Griffin testified that on Labor Day
2001, appellant called them to meet him at his "green house" in Augusta. The boys
were high school seniors, who enjoyed hanging out with appellant because, as
Cave testified, appellant had money, girls, and cars. When Cave and Griffin
arrived, they found victim already there, along with Charlene "China" Thatcher
and appellant's younger half-brother William Harris.
Appellant accused victim of stealing appellant's money, and was beating the victim
with his fists, a pole, and a shock absorber. China was also accused and hit, and
Griffin obeyed appellant's order to beat victim. As the night progressed, Harris left
and appellant called two South Carolina brothers, the Hunsbergers, to come to the
green house in Augusta. After the Hunsbergers arrived, everyone left for South
Carolina. Appellant, China, Griffin, and Cave followed the Hunsbergers in
appellant's car, with the victim in their car trunk, to a remote area of Edgefield
County. There, appellant ordered China, Griffin, and Cave to shoot the victim,
with appellant administering the coup de grace. Appellant told the others they
were as guilty as he, and all kept quiet until parts of victim's skeleton and other
identifying information were found in November 2001.
1
S.C. Code Ann. § 16-3-20(B)(b) (Supp. 2011).
S.C. Code Ann. § 16-3-20(B)(i) (Supp. 2011).
3
Faretta v. California, 422 U.S. 806 (1975).
4
S.C. Code Ann. §§ 17-11-10 et seq. (2003).
2
China, Griffin, and Cave, all of whom testified in the guilt phase, were serving
eighteen-year sentences in Georgia for their assault of victim and faced the
potential for additional charges in Georgia and South Carolina.
ISSUE
Did the trial judge commit reversible error in denying
appellant's request to waive counsel and proceed pro se?
ANALYSIS
Appellant, whose competency to stand trial has never been in question, moved to
be allowed to proceed pro se on the Friday before the trial was to commence on
Monday, citing Faretta. Appellant was unequivocal that he was not seeking a
delay or a continuance. He asked for all relevant documents to be provided for his
review, and asked if he could possibly subpoena the Hunsbergers who were
incarcerated in Georgia. After being placed under oath, appellant told the court he
was thirty-two years old, had an 11th grade education, had been self-employed,
and that he understood the charges against him and the possible sentences. He
acknowledged having had an attorney in his other criminal cases, including one
before this same judge.5 Appellant acknowledged he understood he would be held
to the same standards as an attorney regarding the rules of court and of evidence.
The trial judge questioned appellant under oath about a specific rule of evidence,
his understanding of the prohibition of hybrid representation, his current mental
health status,6 and his familiarity with courtroom procedure and prior experience as
a criminal defendant. Appellant demonstrated an understanding of the process of
capital voir dire, stated his intention to pursue a third-party guilt defense at trial
and discussed the relevant case law, the burden of proof, and his right to testify.
5
This is a reference to appellant's conviction for throwing urine on an Edgefield
jailer. This Court granted certiorari to review the Court of Appeals' affirmance of
appellant's conviction and reversed. State v. Barnes, 402 S.C. 135, 739 S.E.2d 629
(2013).
6
Appellant acknowledged having been treated for post-traumatic stress disorder
after being tased by jailors. He testified that while that incident had led to
counseling, and that he had suffered "mental health while [he] was younger," he
was currently well.
Appellant also appeared to be familiar with the niceties of error preservation, for
example, the need to place objections and the court's rulings on the record.
The judge then inquired into appellant's reasons for wanting to proceed pro se.
Appellant answered that his request to proceed pro se was driven by trust issues,
and that he had another attorney or two in mind to use as standby counsel in lieu of
his appointed attorneys. As an example of the disagreement between appellant and
his attorneys leading to his loss of trust in them was their decision not to subpoena
the Hunsberger brothers because of counsels' belief that the brothers would invoke
their Fifth Amendment right not to testify. Appellant explained that if the brothers
did decline to testify, then he would use transcripts of their sworn testimony in the
Georgia proceedings under Rule 804(3), SCRE. Appellant also explained his
intent to refer to himself in the third person when examining witnesses. Finally,
appellant explained that he lost trust in his appointed attorneys because while he
had instructed them not to move for a continuance in order to preserve his IAD Act
request, he had learned that they had made such requests.
The judge concluded by telling appellant, "I think you're making a mistake, but
you have the right to make a mistake. I think you're making an unwise choice, but
you have the right to make an unwise choice. I would advise you not to do this . . .
." The judge asked appellant to reconsider the decision and discuss it again with
his appointed attorneys. Appellant agreed to do so. After a break, the judge told
the attorneys to provide the discovery materials to appellant for his review over the
weekend, and announced he was taking the Faretta motion under advisement until
Monday.
On Monday, the judge qualified the venire and set up voir dire panels before taking
up the Faretta request.
At the commencement of the hearing, one of appellant's attorneys (Tarr) referred
the court to Indiana v. Edwards, 554 U.S. 164 (2008), which holds that a state may
hold a defendant who seeks to represent himself at trial to a higher competency
standard than that required to stand trial. Tarr stated that "a couple of different
experts that we've hired to evaluate [appellant] for purposes of the sentence phase
are of the opinion that he is very competent to stand trial, but he lacks the
competency to waive his right to counsel and conduct the proceedings on his own."
Tarr had Dr. Price, a psychologist previously retained by the defense as a
mitigation witness, present and ready to testify regarding appellant's competency.
Appellant immediately objected to Dr. Price's testimony. First, he based his
objection on the "doctor/client" relationship and the attendant privilege. He
explained that he talked to Dr. Price only for penalty phase mitigation purposes,
and stated, "If I'd have known that he was going to be adverse to me, I wouldn't
have talked to him." Appellant then distinguished Edwards, pointing out that the
defendant in that case was before the trial judge on his second or third competency
to stand trial hearing when the waiver of counsel issue arose. Appellant continued:
In this case here, you know, this was never an issue. I brung
forth to you – I explained to you in detail when you asked me
questions the last time we spoke and I brought forth everything,
you know, just like you asked me to do. And the Edwards case
is totally different from the factual situation of my case.
And I object to Dr. Price getting on the stand, because, like I
say, I'm not giving him no permission to say anything in
regards to me, talking about me, because like I say, my
attorneys, that's part of my defense, you know, when we get to
the penalty phase. Once we get to that phase, then, you know, I
consent for him to furnish that information to the jury for
migation [sic].
The judge then asked if appellant was asking him to make a decision without
adequate information. Appellant answered with a qualified yes, saying that he was
entitled to due process and specifically denying his permission for Dr. Price to
testify about "things that had been in [appellant's] mental records for years." He
again emphasized the doctor/client relationship, and that Dr. Price represented him.
Tarr stated that neither he nor Mr. Harte (the lead attorney) nor Dr. Price were
"trying to be adversarial" but were instead trying to make the court aware of all the
issues. Appellant again objected to any expert testimony from Dr. Price except in
the penalty phase and suggested, "if you appoint a state official to conduct that
[competency to waive counsel] review, then that's a different story." The judge
responded that he did not know of any procedure that would allow him to do so.7
Attorney Harte responded that since Edwards failed to state the standard for
7
A trial judge has the inherent authority to order an independent examination of a
criminal defendant where necessary. Cf. State v. Cooper, 342 S.C. 389, 536 S.E.2d
870 (2000) (trial judge has inherent authority to require expert examination of
defendant and order state to pay in order to maintain integrity of judicial process).
competency to waive, it did not seem possible to order an evaluation. Appellant
reiterated that the question was Faretta because his was not an Edwards situation
as there is no indication that he, unlike the defendant Edwards, is "sick."
Following Dr. Price's testimony, the trial judge denied appellant's request to
proceed pro se based upon a finding that appellant did not meet the heightened
Edwards standard for competency to represent himself at trial. The judge then
noted that despite appellant's responses to the Faretta inquiry on Friday, the judge
was concerned by Dr. Price's testimony regarding appellant's competency.
Ultimately he ruled:
Given the doctor's testimony and his expert opinion that the
defendant has not knowingly and intelligently waived his right
to counsel,8 I find the defendant does not have a clear
understanding of the dangers of self-representation in the guilt
nor the sentencing phase of the trial.
I further find that the defendant does not knowingly,
intelligently understand the dangers inherent in selfrepresentation. I feel like I would not be fulfilling my
responsibilities under the law to an individual that deserves a
fair trial if I allow on this record, and I might add, my
observations of Mr. Barnes.
Mr. Barnes has always been during these proceedings respectful
to this Court and I've noted him to appear to be respectful,
although not necessarily pleased at times, with his attorneys.
However, he is prone to ramble. He's prone to act extrajudicious, and by that I mean not appropriate, but to act as if he
were conducting his defense on the streets, so to speak, and as
we all know, the courtroom is not the place for that kind of
decorum or demeanor. I think it would be abuse of my
discretion to allow him to represent himself in trying to do all I
can do to make sure Mr. Barnes in this very serious matter gets
a fair trial. So I'm denying your motion.
8
Note this is not the proper inquiry under Edwards, which does not involve the
merits of the Faretta waiver but rather the defendant's competency to represent
himself at trial.
And I might add, I have not seen anything but his attorneys
acting in his best interest throughout the proceedings, both
during the requests or expertise, motion hearings, status
conferences and otherwise.
Further, I would find that it appears Dr. Price also to be acting
not in Dr. Price's best interest but in Mr. Barnes' best interest.
With that being said, I will deny Mr. Barnes' motion under
Faretta versus California and deny his right to selfrepresentation and reaffirm the Court's appointment of Mr. Tarr
and Mr. Harte.
The dispositive issue in this appeal is whether South Carolina will adopt the higher
competency standard permitted by Edwards and thus alter the traditional Faretta
threshold inquiry which permits any defendant competent to stand trial to waive
his right to counsel. Since we choose not to adopt Edwards' higher standard for
competency to represent oneself at trial, and since the trial judge's denial of
appellant's request was predicated on this competency standard, we are compelled
to reverse. McKaskle v. Wiggins, 465 U.S. 168 (1984) (erroneous denial of Faretta
request is a structural error requiring automatic reversal).
A South Carolina criminal defendant has the constitutional right to represent
himself under both the federal and state constitutions.9 State v. Starnes, 388 S.C.
590, 698 S.E.2d 604 (2010). A capital defendant, like any other criminal
defendant, may waive his right to counsel. State v. Starnes, supra; State v. Brewer,
328 S.C. 117, 492 S.E.2d 97 (1997). So long as the defendant makes his request
prior to trial, the only proper inquiry is that mandated by Faretta. State v. Winkler,
388 S.C. 574, 698 S.E.2d 596 (2010).
Recognizing that it may be to the defendant's detriment to be allowed to proceed
pro se, his knowing, intelligent and voluntary decision "must be honored out of
that respect for the individual which is the lifeblood of the law." Faretta, 422 U.S.
at 834. Under Faretta, the trial judge has the responsibility to make sure that the
defendant is informed of the dangers and disadvantages of self-representation, and
9
U.S. Const. am. 6; S.C. Const. art. I, § 14.
that he makes a knowing and intelligent waiver of his right to counsel. State v.
Reed, 332 S.C. 35, 41, 503 S.E.2d 747, 750 (1998).
In Edwards, the United States Supreme Court held that "the Constitution permits
states to insist upon representation by counsel for those competent enough to stand
trial under Dusky10 but who still suffer from severe mental illness to the point
where they are not competent to conduct trial proceedings by themselves."
Edwards, 554 U.S. at 178. Since the Court merely agreed that states could set a
higher standard for self-representation at trial without offending the federal
constitution, it declined to adopt a federal constitutional competency standard. Id.
We decline to impose a higher competency standard upon an individual who
wishes to waive his right to an attorney and represent himself at trial than that
required for the waiver of other fundamental constitutional rights afforded a
criminal defendant, such as the right against compulsory self-incrimination; the
right to trial by jury; and the right to confront one's accusers. See Boykin v.
Alabama, 395 U.S. 238 (1969). A defendant who is competent to stand trial is also
competent to waive these fundamental rights and plead guilty. Sims v. State, 313
S.C. 420, 438 S.E.2d 253 (1993). We do not find public policy supports a
distinction between a defendant who wishes to plead guilty and the defendant who
wishes to proceed to trial as the Sixth Amendment guarantees every criminal
defendant the "right to proceed without counsel when he voluntarily and
intelligently elects to do so." Faretta, 422 U.S. at 807.11
10
Dusky v. United States, 362 U.S. 402 (1960).
The dissent does not adopt the Edwards standard, which is predicated on the
defendant's severe mental illness, but instead crafts a new test for capital cases only
where the trial judge is to assess the defendant's "mental and psychiatric history,
demeanor, and the importance of the impending trial" and weigh those findings
against the defendant's request that he be allowed to waive his right to counsel.
The dissent would allow the trial judge to deny a capital defendant's request to
proceed pro se if the trial judge believes that allowing self-representation would
make the proceeding less fair or the verdict not "especially reliable." The dissent's
formulation of the analytical framework for deciding whether to allow a capital
defendant to waive his right to counsel is not constitutionally sound, and reflects
the rationale we rejected in State v. Brewer, 328 S.C. 117, 492 S.E.2d 97 (1997).
11
The judge erred in applying the Edwards competency standard to appellant's
request to waive his right of counsel and proceed pro se. Accordingly, we are
constrained to reverse. McKaskle, supra.
CONCLUSION
Since the Faretta error mandates reversal, we need not reach any of appellant's
other issues save that alleging he was entitled to dismissal of all charges under the
IAD Act. On the face of this record, it appears appellant waived his speedy trial
rights under this Act, and we therefore decline to reverse on this ground. See New
York v. Hill, 528 U.S. 110 (2000).
Appellant's convictions and sentence are
REVERSED.
BEATTY and HEARN, JJ., concur. TOAL, C.J., dissenting in a separate
opinion in which KITTREDGE, J., concurs.
CHIEF JUSTICE TOAL: I respectfully dissent. I would affirm Appellant's
conviction and sentence.
ISSUES PRESENTED
I.
Whether the trial court erred in denying Appellant's pre-trial
request to represent himself pursuant to Faretta v. California.
II.
Whether the trial court violated Appellant's Due Process rights
by relying on the pre-trial testimony of a doctor retained by
Appellant's defense counsel in anticipation of exclusive use
during the trial's mitigation phase.
III.
Whether the trial court erred by limiting Appellant's trial
counsel's voir dire regarding the views of potential jurors
regarding the death penalty.
IV.
Whether the trial court erred in finding Juror #203 unqualified
to sit as a juror.
V.
Whether the trial court erred in refusing to dismiss the State's
indictments against Appellant due to the State's alleged failure
to comply with the Interstate Agreement on Detainers Act
(IAD).
ANALYSIS
I.
Faretta v. California
The majority concludes that the trial court erred in applying the Indiana v.
Edwards competency standard to Appellant's request to waive his right to counsel
and proceed pro se. I disagree.
In Indiana v. Edwards, the United States Supreme Court clarified the limits
of a defendant's right to self-representation and made it clear that Faretta v.
California, 422 U.S. 806 (1975), and its progeny, do not stand for the proposition
that the right to self-representation trumps other valid constitutional considerations.
554 U.S. 164, 175 (2008) ("[T]he nature of the problem before us cautions against
the use of a single mental competency standard for deciding both (1) whether a
defendant who is represented by counsel can proceed to trial and (2) whether a
defendant who goes to trial must be permitted to represent himself."). Instead,
self-representation rights must be assessed against the judiciary's responsibility to
ensure the fundamental fairness and integrity of trial proceedings.
The Supreme Court's decision in Indiana v. Edwards explained that a
defendant may be competent to stand trial, but not competent to conduct her
defense at trial, and that trial courts may investigate this variance in competency.
In my view, this principle applies uniformly across the spectrum of criminal trials.
The facts and circumstances of Indiana v. Edwards did not concern a capital
proceeding but, from my perspective, these competency considerations become
even more pronounced in the capital context in view of the Supreme Court's
mandate that these trials include heightened reliability. See, e.g., Woodson v.
North Carolina, infra ("Because of the qualitative difference, there is a
corresponding difference in the need for reliability in the determination that death
is the appropriate punishment in a specific case.").
The framework and determinations examined by the majority in Indiana v.
Edwards not only guard against compromising the rights of capital defendants
whose mental competency is at issue, but protect the integrity of the judicial
system as a whole. Thus, I would hold that South Carolina trial courts may "insist
upon representation by counsel for those competent enough to stand trial . . . but
who still suffer from mental illness to the point where they are not competent to
conduct trial proceedings by themselves." See Edwards, 554 U.S. at 177–78.
In Faretta, the United States Supreme Court explained that "the Sixth
Amendment does not provide merely that a defense shall be made for the accused;
it grants to the accused personally the right to make his defense." In that case,
Anthony Faretta sought to represent himself against charges of grand theft. 422
U.S. at 807. Questioning by the trial court revealed that Faretta had previously
represented himself in a criminal prosecution, possessed a high school education,
and that Faretta did not want representation from what he described as a public
defender office "very loaded down with . . . a heavy case load." Id. The trial court
granted Faretta's waiver of assistance of counsel, but indicated that the court would
reverse the ruling if it later appeared that Faretta could not adequately represent
himself. Id.
Several weeks later, the trial court held a hearing and inquired into Faretta's
ability to conduct his own defense, questioning Faretta specifically regarding the
hearsay rule, and state law covering jury voir dire. Id. at 808. The trial court ruled
that based on Faretta's answers and demeanor, he had not made an intelligent and
knowing waiver of his right to assistance of counsel. Id. at 808–09. The trial court
also held that Faretta did not have a constitutional right to conduct his own
defense. Id. at 809–10. The trial court rejected Faretta's subsequent requests to
represent himself, and required that only a public defender conduct Faretta's
defense. Id. at 810–11. The jury found Faretta guilty. Id. at 811. The California
Court of Appeal affirmed the trial court's ruling, and the California Supreme Court
denied review. Id. at 811–12. The United States Supreme Court reversed, holding:
There can be no blinking the fact that the right of an accused to
conduct his own defense seems to cut against the grain of this Court's
decisions holding that the Constitution requires that no accused can be
convicted and imprisoned unless he has been accorded the right to the
assistance of counsel. For it is surely true that the basic thesis of those
decisions is that the help of a lawyer is essential to assure the
defendant a fair trial. And a strong argument can surely be made that
the whole thrust of those decisions must inevitably lead to the
conclusion that a State may constitutionally impose a lawyer upon
even an unwilling defendant . . . . But it is one thing to hold that every
defendant, rich or poor, has the right to the assistance of counsel, and
quite another to say that a State may compel a defendant to accept a
lawyer he does not want. The value of state-appointed counsel was not
unappreciated by the Founders, yet the notion of compulsory counsel
was utterly foreign to them. And whatever else may be said of those
who wrote the Bill of Rights, surely there can be no doubt that they
understood the inestimable worth of free choice.
Id. at 832–33. The Supreme Court held that an accused who manages his own
defense relinquishes many of the benefits associated with counsel, and thus, must
"knowingly and intelligently" resign those benefits. Id. at 835. However, the
Supreme Court explained that the defendant's technical legal knowledge is not
relevant to an assessment of his "knowing exercise of his right to defend himself."
Id. at 835–36 ("In forcing Faretta, under these circumstances to accept against his
will a state-appointed public defender, the California courts deprived him of his
constitutional right to conduct his own defense.").
In McKaskle v. Wiggins, 465 U.S. 168 (1984), the Supreme Court analyzed
an important limitation on a defendant's right to self-representation: the role of
standby counsel. In that case, the defendant, Carl Wiggins, claimed that a pro se
defendant could insist on presenting his own case completely free from any
involvement by standby counsel. Id. at 176. Wiggins's argument relied on the
Faretta decision's sole reference to standby counsel:
Of course, a State may—even over objection by the accused—appoint
a "standby counsel" to aid the accused if and when the accused
requests help, and to be available to represent the accused in the event
that termination of the defendant's self-representation is necessary.
Id. (citation omitted). Wiggins argued that the "if and when" language defined the
limits on standby counsel's role, and that Faretta did not allow standby counsel to
argue with the defendant, make motions to the court contrary to the defendant's
wishes, or take other steps not specifically approved by the defendant. Id.
The Supreme Court disagreed, and held that the Faretta decision did not
intend for an absolute bar on standby counsel's unsolicited participation. Id. at
176–77 ("The right to appear pro se exists to affirm the dignity and autonomy of
the accused and to allow the presentation of what may, at least occasionally, be the
accused's best possible defense. Both of these objectives can be achieved without
categorically silencing standby counsel."). However, the Supreme Court did set
two bright line rules for the participation of standby counsel: first, the pro se
defendant is entitled to preserve actual control over the case presented to the jury,
and second, participation by standby counsel must not destroy the jury's perception
that the defendant is representing himself. Id. at 178.
From my perspective, in setting a limitation on a defendant's Sixth
Amendment right to self-representation, the Supreme Court recognized that this
important trial right must be balanced against the overarching principles that the
defendant receive a fair trial, and that courts be allowed to conduct reasonable and
orderly proceedings. See McKaskle, 465 U.S. at 183–84 ("Nor does the
Constitution require judges to take over chores for a pro se defendant that would
normally be attended to by trained counsel as a matter of course. Faretta
recognized as much. The right of self-representation is not a license to abuse the
dignity of the courtroom. Neither is it a license not to comply with relevant rules
of procedural and substantive law." (citation omitted)); see also Martinez v. Court
of Appeal of Cal., Fourth Appellate Dist., 528 U.S. 152, 162 (2000) ("[T]he
government's interest in ensuring the integrity and efficiency of the trial at times
outweighs the defendant's interest in acting in his own lawyer.").
In addition to the self-representation overlay supplied by Faretta, McKaskle,
and Martinez, the facts of the instant case must be analyzed in light of the Supreme
Court's requirement that capital trials carry an element of enhanced reliability
distinct from other criminal proceedings.
In Woodson v. North Carolina, 428 U.S. 280 (1976), the United States
Supreme Court explained:
This conclusion rests squarely on the predicate that the penalty of
death is qualitatively different from a sentence of imprisonment,
however long. Death, in its finality, differs more from life
imprisonment than a 100-year prison term differs from one of only a
year or two. Because of that qualitative difference, there is a
corresponding difference in the need for reliability in the
determination that death is the appropriate punishment in a specific
case.
Id. at 305 (concluding that capital cases required an individualized sentencing
determination encompassing the character and record of the accused); see also
Thompson v. Oklahoma, 487 U.S. 815, 856 (1988) ("Among the most important
and consistent themes in this Court's death penalty jurisprudence is the need for
special care and deliberation in decisions that may lead to the imposition of that
sanction. The Court has accordingly imposed a series of unique substantive and
procedural restrictions designed to ensure that capital punishment is not imposed
without the serious and calm reflection that ought to precede any decision of such
gravity and finality."); Jonathan DeSantis, David Versus Goliath: Prohibiting
Capital Defendants From Proceeding Pro Se, 49 No. 1 Crim. Law Bulletin ART 5,
at 1 (2013) ("It has long been recognized that a capital trial requires 'heightened
reliability' with regards to both guilty verdicts and death sentences." (citing Beck v.
Alabama's12 extension of the "heightened reliability" doctrine originally required
for capital sentences to capital verdicts.)).
The heightened reliability required of capital verdicts and sentences has led
states to adopt stringent requirements for attorneys representing defendants facing
the ultimate punishment. For example, Florida requires attorneys serve as lead
12
447 U.S. 625, 638 (1980).
counsel in at least nine jury trials of "serious and complex cases which were tried
to completion," have demonstrated "necessary proficiency and commitment which
exemplify the quality of representation appropriate to capital cases," and attend a
continuing legal education program, within the last two years, devoted to capital
defense. Desantis, supra, at 3. In South Carolina, section 16-3-26 of the South
Carolina Code provides that indigent defendants facing a capital trial must receive
at least two court-appointed attorneys. One of the attorneys must have at least five
years' experience as a licensed attorney, and at least three years in the actual trial of
felony cases. S.C. Code Ann. § 16-3-26 (B)(1) (2003). That section also vests this
Court with the authority to "promulgate guidelines on the expertise and
qualifications necessary for attorneys to be certified as competent to handle death
penalty cases." Id. § 16-3-26(F); see Rule 421, SCACR ("There shall be two
classes of attorneys certified to handle death penalty cases: lead counsel and
second counsel . . . . Lead counsel shall have at least five years' experience as a
licensed attorney and at least three years' experience in the actual trial of felony
cases.").
Obviously, a criminal defendant who waives his right to counsel, and elects
to proceed pro se, loses the benefit of counsel equipped with the type of special
qualifications discussed supra, and this fact could make the difference in the
conduct and outcome of his trial. However, this decision is constitutionally
permissible provided the defendant makes a knowing and intelligent waiver of the
benefit. Nevertheless, in my view, the defendant's right to self-representation is
not absolute, and as discussed supra, courts may place reasonable restrictions on
that right. For example, the Supreme Court has held that trial courts may curtail
that right in the interest of providing the defendant with a fair trial, and ensuring
that the proceedings do not become a mockery of the criminal justice system. See,
e.g., Martinez, 528 U.S. at 162 (holding that states may restrict a defendant's selfrepresentation guarantees in recognition of the government's interests in preserving
the integrity and efficiency of the process).
These considerations become even more pronounced in the capital context
where trials must contain an indicia of reliability higher than any other criminal
trial, and where a criminal defendant is likely at a significant disadvantage in
meeting the demands of adequate representation. See, e.g., Desantis, supra, at 4
("Incarcerated capital defendants electing to proceed pro se also face the prospect
of conducting a mitigation investigation from within the confines of prison . . . .
[S]ome of the requirements for capital defense counsel detailed in the ABA
Standards, such as visiting the scene of the alleged crime, are inherently
unavailable to incarcerated defendants.").
In the instant case, Appellant's trial counsel began the self-representation
colloquy with the trial court by explaining that different experts hired to evaluate
Appellant believed he was "very competent" to stand trial, but lacked the
competency to waive his right to counsel and conduct the proceedings on his own.
One of these experts, Dr. David Price, testified that Appellant failed to finish high
school, and has an intelligence quotient at the "very low part of the low/average
range of intellectual functioning." Price also stated that Appellant had a significant
psychiatric history including psychiatric disorders, admissions, post-traumatic
disorder, paranoia, cognitive difficulties and lapses, and issues with judgment and
decision-making. According to Price, these issues interacting with each other
impaired Appellant's ability to knowingly and intelligently waive his right to
counsel in this case. The trial court denied Appellant's motion to proceed pro se,
holding:
Given the doctor's testimony and his expert opinion that the defendant
has not knowingly and intelligently waived his right to counsel, I find
the defendant does not have a clear understanding of the dangers of
self-representation in the guilt nor the sentencing phase of the trial. I
further find that the defendant does not knowingly, intelligently
understand the dangers inherent in self-representation. I feel like I
would not be fulfilling my responsibilities under the law to an
individual that deserves a fair trial if I allow on this record, and I
might add, my observation of [Appellant]. . . . [Appellant] has always
been during these proceedings respectful . . . . However, he is prone to
ramble. He's prone to act extra-judicious, and by that I mean not
appropriate, but to act as if he were conducting his defense on the
streets, so to speak, and as we all know, the courtroom is not the place
for that kind of decorum or demeanor. I think it would be an abuse of
my discretion to allow him to represent himself in trying to do all I
can to make sure [Appellant] in this very serious matter gets a fair
trial. So I'm denying your motion.
In my opinion, the trial court did not err. The trial court's order exemplifies
the balancing that must take place in a capital trial when a defendant desires to
represent himself.
The majority acknowledges that in Indiana v. Edwards, the Supreme Court
held that the United States Constitution does not forbid a state from insisting that a
defendant proceed to trial with counsel if the defendant is found mentally
competent to stand trial but mentally incompetent to conduct the trial herself. Id.
at 167. In so finding, the Supreme Court relied in part on undisputed medical
opinions regarding the effects of mental illness of a defendant's ability to
effectively represent herself. Id. at 176 ("The American Psychiatric Association
(APA) tells us (without dispute) in its amicus brief filed in support of neither party
that '[d]isorganized thinking, deficits in sustaining attention and concentration,
impaired expressive abilities, anxiety, and other common symptoms of severe
mental illnesses can impair the defendant's ability to play the significantly
expanded role required for self-representation even if he can play the lesser role of
represented defendant.'" (citation omitted)). Additionally the Supreme Court noted
the right to self-representation will not "affirm the dignity," of a defendant without
the mental capacity to conduct her defense. Id. ("To the contrary, given that
defendant's uncertain mental state, the spectacle that could well result from his
self-representation at trial is at least as likely to prove humiliating as ennobling.
Moreover, insofar as a defendant's lack of capacity threatens an improper
conviction or sentence, self-representation in that exceptional context undercuts the
most basic of the Constitution's criminal law objectives, providing a fair trial.").
Moreover, the Supreme Court observed the significant concern that "proceedings
must not only be fair, they must 'appear fair to all who observe them.'" Id. (citing
Wheat v. United States, 486 U.S. 153, 160 (1988)); see also Massey v. Moore, 348
U.S. 105, 108 (1954) ("No trial can be fair that leaves the defense to a man who is
insane, unaided by counsel, and who by reason of his mental condition stands
helpless and alone before the court.").
Consistent with the Supreme Court's reliance on medical opinions in Indiana
v. Edwards, the trial court in the instant case relied on expert opinions in finding
that Appellant was mentally incompetent to represent himself at trial. The
majority, however, chooses to ignore Dr. Price's thoughtful testimony applying
Appellant's mental conditions to his ability to waive his right to counsel and
represent himself at trial. Instead, the majority highlights only Appellant's
familiarity with court procedure. In my opinion, the majority's analysis is
insufficient to ensure the fairness mandated by the Supreme Court.
We must be mindful that state authorities charged the defendant in Indiana
v. Edwards with attempted murder, battery with a deadly weapon, criminal
recklessness, and theft. Edwards, 554 U.S. at 167. These are serious crimes, but
none can leave a criminal defendant susceptible to a sentence of death upon
conviction. If based on these facts our nation's highest court found the curtailment
of self-representation rights permissible, it is clearly constitutionally acceptable to
allow South Carolina trial courts to make this determination for defendants facing
the ultimate punishment. See id., 554 U.S. at 177–78 ("We consequently conclude
that the Constitution permits judges to take realistic account of the particular
defendant's mental capacities by asking whether a defendant who seeks to conduct
his own defense at trial is mentally competent to do so.").
I strongly disagree with the majority's characterization of my analysis as a
reflection of the rationale that this Court rejected in State v. Brewer, 328 S.C. 117,
492 S.E.2d 97 (1997). In Brewer, this Court reversed the denial of a defendant's
motion to proceed pro se because the trial court found that the decision to waive
counsel was knowing, intelligent, and voluntary and thus, the trial court violated
the defendant's 6th Amendment right to self-representation by denying the motion.
Id. at 120–21, 492 S.E.2d at 99. In Brewer, decided before Indiana v. Edwards
and unlike the present case, there was no question about the defendant's mental
competence. Instead, the trial court denied the motion merely because it was a
death penalty case, concluding that allowing the defendant to represent himself
was "fraught with inherent disastrous consequences." Id. at 119–20, 492 S.E.2d at
98–99.
Trial courts are in the proper position to determine a defendant's capability
to adequately represent himself given their opportunity to hear testimony and
review evidence about a defendant's mental competence before he may proceed pro
se. A trial court is permitted to engage in an evaluation intended to balance a
defendant's rights to self-representation and a fair trial, especially after Indiana v.
Edwards. Such an evaluation eliminates unfairness on the front end of a trial and
is in no way contrary to this Court's opinion in Brewer.
In addition, the majority is simply wrong to suggest that the foregoing
reasoning ignores applicable constitutional mandates. My view of this case is
firmly entrenched in precedent providing for a balancing of the constitutional right
to self-representation and the heightened reliability required of capital trials. From
my perspective, the aim of a comprehensive self-representation analysis is not to
shield competent capital defendants from adverse outcomes, but instead to ensure
that trial courts possess the authority to deal appropriately with cases where the
mental competence of the defendant is at issue. Id. at 178–79 ("[I]nstances in
which the trial's fairness is in doubt may well be concentrated in the 20 percent or
so of self-representation cases where the mental competence of the defendant is
also at issue." (citing Erica J. Hashimoto, Defending the Right of SelfRepresentation: An Empirical Look at the Pro Se Felony Defendant, 85 N.C.L.
Rev. 423 (2007)).
The importance of a "knowing, intelligent, and voluntary waiver" is without
question. However, in the criminal context, it is far from the sole question.
Defendants very clearly have a constitutional right to self-representation, however,
this right must bow to the competing concern that "death is different," and trial
courts must do everything legitimately within their power to ensure that these trials
are fair and that the proceedings and verdict are especially reliable.
In the instant case, the trial court assessed Appellant's mental and psychiatric
history, demeanor, and the importance of the impending trial in deciding that
Appellant could not adequately represent himself. An abuse of discretion occurs
when the decision is controlled by some error of law or based on findings of fact
that are without evidentiary support. See Lewis v. Lewis, 392 S.C. 381, 390, 709
S.E.2d 650, 654–55 (2011). In my view, neither of these reversible circumstances
occurred in the instant case.
II.
Pre-Trial Testimony
Appellant asserts that the trial court violated his due process rights by
relying on Price's testimony. I disagree.
As discussed, supra, Appellant's trial counsel indicated that experts hired to
evaluate Appellant held the view that Appellant lacked the competency to waive
his right to counsel and conduct the trial proceedings on his own. Appellant's trial
counsel then sought to have Price testify to that view. Appellant objected,
asserting that Price's testimony would violate "doctor/client" privilege and
Appellant's due process rights. The trial court viewed Appellant's objection as an
attempt to force the trial court to rule on Appellant's competency without having all
information concerning Appellant's mental history.
In my view, Appellant did not fully disclose his mental history and other
relevant information regarding his mental state during the trial court's initial
inquiry into Appellant's competency to waive his right to counsel. The trial court
could not make an accurate ruling on the issue of Appellant's waiver without
proper access to all relevant information. Appellant misapprehends the issue as
turning on his personal feelings regarding whether he was competent to conduct
his own trial proceedings. Instead the issue actually centers on whether the trial
court objectively viewed him competent to present a defense that comports with
the reliability and integrity of a death penalty trial.
Appellant's argument relies in part on this Court's decision in State v. Jones,
383 S.C. 535, 681 S.E.2d 580 (2009). However, in my view, Appellant incorrectly
interprets that case.
In Jones, the State informed the defense that it intended to introduce
"barefoot insole impression" evidence. Id. at 540, 681 S.E.2d at 582. In response,
the defense retained a renowned expert on this evidence. Id. The defense did not
intended to call the expert at trial, but the State subpoenaed the expert to testify at
trial. Id. The defense filed pre-trial motions seeking to quash the State's subpoena
and suppress introduction of "barefoot insole impression" evidence. Id. The trial
court denied both motions, and the jury ultimately convicted the defendant of two
counts of murder. Id.
The defendant argued on appeal that the State's subpoena violated the workproduct doctrine, attorney-client privilege, and his Sixth Amendment right to
effective assistance of counsel. Id. at 540, 681 S.E.2d at 582–83. The State
countered that the trial court did not abuse its discretion in permitting the subpoena
given that expert only testified during a pre-trial, in camera hearing, the State did
not question the expert regarding any matters produced by attorney-client privilege
or work-product doctrine, and it would be fundamentally unfair to the State for the
defendant to challenge the scientific reliability of "barefoot insole impression"
evidence while withholding non-privileged testimony from one of the two
renowned experts who the State initially attempted to retain. Id. at 541, 681 S.E.2d
at 583.
This Court affirmed the trial court's ruling, holding:
Here, there were only two available expert witnesses on the "barefoot
insole impression" evidence. The trial judge recognized this anomaly
and properly limited the State to only eliciting non-protected
information . . . . Moreover, the State only called [the expert] during
an in camera hearing for the benefit of the trial judge's ruling on the
admissibility of the "barefoot insole impression" evidence. Because
[the expert] did not testify during the trial, the State's decision to call
[the expert] as a witness could not have affected the jury's assessment
of the evidence . . . . Additionally, the State's questioning of [the
expert] was confined to general testimony regarding his expertise and
his opinion regarding the scientific reliability of the evidence.
Significantly, the State did not question [the expert] concerning the
specifics of the crime scene evidence . . . . Based on the foregoing, we
hold the trial judge's decision denying [the defendant's] motion to
quash the State's subpoena of [the expert] did not constitute reversible
error.
Id. at 546–47, 681 S.E.2d at 586. In my opinion, the facts and circumstances of the
instant case are similar. The trial court allowed the testimony of a witness,
presented by the defense, for the benefit of the trial court's ruling on Appellant's
competency to waive his right to counsel. This testimony took place following the
Appellant's own minimization of his significant psychiatric dysfunction. However,
this testimony occurred in camera, and the trial court did not permit the State to
participate. Therefore, from my perspective, the trial court's decision to allow
Price's testimony does not constitute reversible error.
However, the warning this Court issued in Jones applies with equal force
here. In Jones, the Court cautioned that its decision should not be interpreted as
establishing a general rule permitting the State to compel the testimony of a nontestifying, consultative defense agent. Id. at 547, 681 S.E.2d at 548 ("Taken to its
extreme, we believe such a rule could be used by the State as a subversive tactic to
circumvent discovery rules."). Thus, the Court limited the Jones decision to the
specific facts of that case, and adopted a "substantial need" rule for instances where
the State seeks to compel a defendant's non-testifying consultative expert. Id. In
that same vein, the trial court could have ordered a separate evaluation of
Appellant instead of allowing Appellant's counsel to present Price's testimony. In
my view, this would have been unnecessarily duplicative given that the foundation
of the trial court's decision relied on Price's analysis of Appellant's uncontroverted
medical history, rather than any type of relationship between Price and Appellant.
After all, Appellant's counsel retained Price for mitigation, not for treatment.13
Nevertheless, trial courts should avoid confusion and order a competency
evaluation when necessary to provide further support for the court's ruling
regarding a defendant's competency to waive his right to counsel. Moreover,
attorneys, especially those providing counsel to defendants facing a capital trial,
must take care to be forthright and honest with their clients concerning the use of
expert witnesses.
13
Contrary to Appellant's position, the trial court is not a state actor for purposes of
a Jones analysis, and thus, application of the "substantial need" test would be
nonsensical.
III.
Improper Limitation of Voir Dire
Appellant argues that the trial court violated his Sixth, Eighth, and
Fourteenth Amendment14 rights by improperly limiting defense counsel's attempt
to voir dire potential jurors regarding their views of the death penalty. In my
opinion, this argument is without merit, and the trial court's voire dire limitations
did not render Appellant's trial fundamentally unfair.
"The scope of voir dire and the manner in which it is conducted are
generally left to the sound discretion of the trial court." State v. Bixby, 388 S.C.
528, 542, 698 S.E.2d 572, 579 (2010) (citing State v. Stanko, 376 S.C. 571, 575,
658 S.E.2d 94, 96 (2008)). Furthermore, "[i]t is well established that a trial court
has broad discretion in conducting the voir dire of the jury and particularly in
phrasing the questions to be asked." Id. (citing United States v. Jones, 608 F.2d
1004, 1009 (4th Cir.1979)). A limitation on juror questioning will not constitute
reversible error unless the limitation renders the trial fundamentally unfair. Id.
14
U.S. Const. amends. VI, VIII, XIV.
A. Procedurally Barred
Where counsel fails to exhaust all strikes, appellate review of juror
qualification issues is barred. Bixby, 388 S.C. at 542, 698 S.E.2d at 579; see also
State v. Tucker, 324 S.C. 155, 163, 478 S.E.2d 260, 264 (1996) (holding "[f]ailure
to exhaust all of a defendant's peremptory strikes will preclude appellate review of
juror qualification issues"). In the instant case, Appellant's defense counsel used
only nine of the ten available strikes during jury selection, thus in my opinion, the
Court's consideration of this issue is barred. See Bixby, 388 S.C. at 542, 698
S.E.2d at 579 ("Because defense counsel used only seven of the ten available
strikes during jury selection, review of this issue is barred.").
B. Trial Court's Permissible Limitations
However, even if this Court's precedent did not bar review of Appellant's
arguments, in my view the trial court properly limited the scope of defense
counsel's examination of jurors #146, #157, and #183.
1. Juror #157
Appellant's trial counsel attempted to question Juror #157 regarding "some
of the factors" that the juror would consider important in making a determination
of whether to impose the death penalty. The State objected, and the trial court
sustained the State's objection. Appellant's trial counsel then attempted to question
the juror regarding her understanding of the term murder. The trial court did not
allow the question, finding the juror's opinions of "what the law of murder is"
inappropriate for voir dire. Appellant's trial counsel objected to the trial court's
refusal to allow him to "instruct the jurors on the definition of murder in the voir
dire." The trial court overruled the objection, holding that jurors could not be
questioned regarding their conceptions, or misconceptions, regarding the law,
citing this Court's decision in Bixby, supra.
2. Juror #146
During voir dire, Appellant's trial counsel and Juror #146 engaged in the
following colloquy:
Trial counsel:
Now, if you were on the jury and you found that
there was a murder that there was absolutely no
excuse for, you could give meaningful
consideration to a life sentence?
Juror #146:
Quite honestly, if there was no excuse for it, cold
blooded, I couldn't. I've just got to be honest with
you. If there are mitigating circumstances or
situations, I mean yes, but I'd be lying if I said
differently.
Under the State's cross-examination, Juror #146 stated that he would have no
predisposition on whether or not he could vote for life or death, and that if he could
vote for a death sentence or life imprisonment depending on what the facts of the
case warranted.
Trial counsel argued that the juror was not qualified because of his reference
to murder committed in "cold blood," and requested further examination of the
juror. The trial court allowed trial counsel to re-question Juror #146. Trial counsel
then asked Juror #146, "If you found beyond a reasonable doubt that there was a
murder with no excuse in cold blood, would it matter to you—would anything else
matter to you?" The trial court did not allow this question, finding that it
constituted an impermissible question based on a "particular hypothetical," or a
"particular set of facts." Trial counsel then explained that he felt the juror had a
"misconception" of murder, and that this misconception would interfere with the
juror's impartiality. The trial court agreed to provide the definition of murder and
explained:
Before I go back to allowing the lawyers to ask you a few more
questions, I do want to tell you that as far as murder is concerned,
murder in South Carolina is the unlawful killing of a human being by
another human being with malice aforethought, express or implied.
Trial counsel then questioned Juror #146, and the juror explained that he
would not make up his mind on a particular case simply because he had convicted
the person of murder:
Trial counsel:
It's not an automatic decision; you're not one of
those jurors that if you find a person guilty of
murder, you'd automatically sentence a person to
death?
Juror #146:
Trial counsel:
No.
And if you get—in a death penalty trial an
individual's found guilty of murder and you go into
that penalty phase, you'd go in there with an open
mind because there'd be different types of evidence
in that penalty phase, evidence of aggravation,
evidence of mitigation, evidence that may show
something good or more of the circumstances of
the nature of the crime or the particular defendant,
or evidence of aggravation that may increase the
enormity of the crime, you would consider that.
Juror #146:
Trial counsel:
Juror #146:
Yes, sir.
Before you made your decision?
Yes, sir. And I apologize. I assumed that's what I
said.
The trial court found the juror qualified, and as Appellant concedes in his
brief, trial counsel used a peremptory challenge to strike Juror #146.
3. Juror #183
Trial counsel attempted to question Juror #183 regarding her religious and
moral beliefs in relation the death penalty. Defense counsel asked Juror #183 for
her thoughts on the Biblical axiom, "eye for an eye," and whether the juror
believed that the death penalty helped to "protect society." The State objected to
these questions and the trial court sustained the objections.
Following the conclusion of the voir dire, the trial court excused the juror
and heard the State's objection. The State argued that religion is not a proper basis
for voir dire, and prospective juror should not have to explain or interpret the
Bible. The State also asserted that jurors should not be questioned regarding their
view of the death penalty's purposes, and this line of questioning ran afoul of the
general prohibition on hypotheticals as part of voir dire. The trial court ruled that
trial counsel could legitimately question the juror as to firmly held beliefs for or
against the death penalty, but that it was not appropriate to investigate
philosophical distinctions and differences within a juror's religious belief. The trial
court stated explicitly that the court was not prohibiting defense counsel from
questioning jurors regarding certain religious or moral beliefs. Notably, the trial
court and defense counsel engaged in the following colloquy:
Trial court:
Trial counsel:
I thought her responses were very clear and
that she'd be a good juror when she talked
about a case-by-case basis. Further, she said
it would be a serious decision. I believe you
think she's qualified also you said?
Yes, your Honor.
(emphasis added).
In my view, this Court's decisions in State v. Smart, 278 S.C. 515, 299
S.E.2d 686 (1982), overruled on other grounds by State v. Torrence, 305 S.C. 45,
69 n.5, 406 S.E.2d 315, 328 n.5 (1991) ("To the extent they require in favorem
vitae review, the following cases, inter alia, are hereby overruled."), and State v.
South, 285 S.C. 529, 331 S.E.2d 775 (1985), cert. denied, 474 U.S. 888 (1985),
provide the proper frame for viewing Appellant's arguments.
In State v. Smart, 278 S.C. 515, 299 S.E.2d 686 (1982), a jury found the
defendant guilty of two murders while committing larceny with a deadly weapon.
The defendant appealed on three separate grounds, the issue most pertinent to the
instant case being his absence from the courtroom during jury selection. Id. at 517,
521, 299 S.E.2d at 687, 689. In Smart, the clerk of court conducted the initial jury
selection outside the presence of the parties and the presiding judge. Id. at 521,
299 S.E.2d at 689–90. The parties and the trial court then examined those jurors
chosen. Id. The defendant did not object to this procedure at trial, and this Court
found that the defendant did not suffer prejudice "by his absence during the simple
drawing of names." Id. at 521, 299 S.E.2d at 690 ("Moreover, there is no right of
[a] defendant to be present when purely ministerial acts, preparatory to jury
selection are performed. (alteration added)).
However, the Court found the voir dire that took place in Smart to be
lengthy and "superfluous," providing the Court an opportunity to offer guidance
regarding a capital defendant's right to examine jurors. Id. at 521, 299 S.E.2d at
690. The Court recognized that section 14-7-1020 of the South Carolina Code
provided for a trial court's inquiry into "whether a juror is related to either party,
has any interest in the cause, has expressed or formed any opinion, or is sensible of
any bias or prejudice therein." Id. at 522, 299 S.E.2d at 690 ("The manner in
which these questions are pursued and the scope of any voir dire beyond their
bounds are matters of trial court discretion."). This Court observed that trial court
examination prior to counsels' questioning could provide the basis for proper
limitation of counsels' questions to relevant matters, holding:
The unbridled examination of jurors by counsel serves to not only
unnecessarily add to the length and expense of the trial, but also
serves to antagonize jurors and lessen public respect for jury duty.
The extent to which voir dire examination is being permitted by trial
judges causes this Court concern and, therefore, this admonition.
Id. at 523, 299 S.E.2d at 691.
In South, the defendant argued that the trial court erred in refusing to permit
defense counsel to ask the jurors hypothetical questions concerning the death
penalty. 285 S.C. at 534, 331 S.E.2d at 778. The Court disagreed, holding that
"[c]learly, the questions would have been improper since the purpose of voir dire is
to insure each juror can make a decision based on the evidence presented, rather
than hypothetical evidence." Id.; see also State v. Patterson, 290 S.C. 523, 525–
26, 351 S.E.2d 853, 854–55 (1986), cert. dismissed, 482 U.S. 902 (1987) (relying
on South to reject the claim that the trial court erred in refusing to allow the
defendant to use hypothetical question on voire dire in an attempt to discover
hidden biases or prejudices concerning the death penalty).
In my view, the United States Court of Appeals for the Fifth Circuit's
decision in King v. Lynaugh, 850 F.2d 1055 (5th Cir. 1988), cert. denied, 489 U.S.
1093 (1989), is instructive.
In King, the defendant argued that the trial court violated his constitutional
guarantees to a trial by a fair and impartial jury when the court refused defendant's
request to question the jurors, or educate them through voir dire, concerning their
knowledge of Texas parole laws. 850 F.2d at 1057. The defendant argued that if
the jurors harbored misconceptions regarding Texas law, for instance regarding
when a capital murder defendant might be eligible for parole, they would be biased
toward imposing the death penalty. Id. ("On the other hand, he suggests, proper
knowledge about the 20-year minimum prison term prior to parole eligibility in
such cases will tend to reassure them that [the defendant] does not pose the future
dangerousness to society contemplated by . . . Texas capital punishment law.").
The Fifth Circuit acknowledged that the United States Supreme Court, until
that point, had only recognized racial prejudice and widespread and provocative
pretrial publicity as acceptable grounds for a constitutional challenge to a trial
court's voir dire procedure, and held:
The Court has emphasized that "[t]he Constitution does not always
entitle a defendant to have questions posed during voir dire
specifically directed to matters that conceivably might prejudice him."
Ristaino [v. Ross, 424 U.S. 589, 594 (1976)]. A graphic example of
the Court's distinction appears in Ham [v. South Carolina, 409 U.S.
524 (1973)] where a seven-member Court majority rejected the
defendant's contention that he was constitutionally entitled to inquire
whether jurors were prejudiced toward people with beards . . . . Ham's
trial and conviction occurred circa the late 1960's and early 1970's, at
the apogee of student and political activism, when the wearing of a
beard might well have been thought to prejudice many prospective
jurors. Nevertheless, the Court refused to constitutionalize an inquiry
which, in its view, would have suggested no principled limits on
intrusive appellate review of voir dire. We, likewise, are unable to
distinguish possible prejudice based on jurors' misconceptions about
parole law from "a host of other possible similar prejudices." The
views of a lay venireman about parole are no more likely to be both
erroneous and prejudicial than are his views on the defendant's right
not to take the stand, the law of parties, the reasonable doubt standard,
or any other matter of criminal procedure. It is difficult to conceive
how we could constitutionalize the inquiry concerning Texas parole
while leaving these similar but also potentially influential matters to
the broad discretion of the state trial court. In fact, we have
previously declined to sanction constitutional challenges to the failure
to conduct voir dire on the range of punishment for an offense and the
meaning of certain words in the capital murder statute. Interrogating
veniremen about Texas parole law raises, if anything, a more
attenuated possibility of prejudice than does a question about jurors'
attitudes toward people with beards. The specific inquiry does not
approach a level of constitutional sensitivity.
Id. at 1059.15
In my view, the trial court's limitations in the instant case did not violate
Appellant's constitutional rights and comport with this Court's established
precedent regarding voir dire's proper contours. The trial court properly restrained
Appellant's defense counsel from improperly questioning potential jurors regarding
their interpretation of applicable law, or hypothetical situations, and thus there is
no reversible error.
IV.
Qualification of Juror #203
Appellant argues that the trial court erred in finding Juror #203 unqualified.
I disagree.
A prospective juror may be excluded for cause when his views on capital
punishment would prevent or substantially impair the performance of his duties as
a juror in accordance with instructions and his oath. State v. Sapp, 366 S.C. 283,
290–91, 621 S.E.2d 883, 886 (2005). When reviewing the trial court's
qualification of prospective jurors, the responses of the challenged juror must be
examined in light of the entire voir dire. Id. at 291, 621 S.E.2d at 886. The
determination of whether a juror is qualified to serve in a capital case is within the
sole discretion of the trial judge and is not reversible on appeal unless wholly
unsupported by the evidence. Id. A juror's disqualification will not be disturbed
on appeal if there is a reasonable basis from which the trial court could have
concluded that the juror would not have been able to faithfully discharge his
responsibilities as a juror under the law. Id. at 291, 621 S.E.2d at 887.
The Record in this case demonstrates that Juror #203 provided conflicting
and inconsistent answers regarding her ability to render a death sentence in
response to questioning from the trial court, defense counsel, and the State. For
example, Juror #203 initially stated that she could sentence a defendant to life
imprisonment without parole or the death penalty depending on what the facts of
the case "warranted." Juror #203 appeared to confirm her view during defense
counsel's initial examination. The State noted during its examination of Juror #203
that she hesitated in answering the trial court whether she could render a death
sentence. In response to the State's questions Juror #203 stated that she was "not
15
See State v. Matthews, 296 S.C. 379, 384, 373 S.E.2d 587, 590 (1988) (relying
on King in holding that the defendant was not entitled to probe potential jurors'
misconceptions regarding the definition of "life imprisonment").
positively sure," she could take part in a death sentence. However, Juror #203's
answer changed during the defense's re-examination and she confirmed that she
could "give meaningful consideration to a death sentence as well as a life
sentence."
The trial court then re-examined Juror #203 and the juror stated she could be
fair and impartial juror and could consider life without parole or the death penalty.
Nevertheless, under another re-examination by the State, Juror #203 provided a
conflicting answer:
The State:
Let me ask you this: Would your feelings about
signing a death verdict do you think that would
interfere with your ability to sit as a juror in a
death penalty case? I know you've had a lot of
hesitation about whether or not you could sign
your name and do that. Do you think that your
feelings on that would interfere with your ability to
be an effective juror in a death penalty case?
Juror #203:
I do.
The State:
You think it would? I understand. Like I said,
there's nothing right or wrong about it, it's just
what you feel . . . .
Appellant's trial counsel attempted to clarify Juror #203's responses and
inquired,
Trial counsel:
Juror #203:
Trial counsel:
Juror #203:
No matter how it made you feel, if you felt like the
death penalty was appropriate, you could sign your
name to the form, correct?
Correct.
Even if it made you feel a little uneasy, if that was
your decision, you could sign your name?
Correct.
However, the trial court interceded and questioned Juror #203 further on her
positive response to the State's question as to whether the juror's feelings would
interfere with her ability to be an effective juror. The trial court and Juror #203
then engaged in the following exchange:
Trial court:
Do you feel like because of your beliefs, because
of your feelings, your hesitation given the death
penalty, that your beliefs would be such that it
would—your feelings would be such that it would
interfere with your ability to perform your duties
as a juror?
Juror #203:
Yes, sir.
Trial court:
And that's because of your beliefs; is that correct?
Juror #203:
Correct.
Trial court:
So you do not feel like you could adequately
perform your duties as a juror because you would
be hindered somewhat because of your beliefs?
Juror #203:
Yes, sir.
Trial court:
Juror #203:
And that's your beliefs that are somewhat exhibited
through your hesitancy in your responses to the
death penalty questions?
Yes, sir.
The trial court then found Juror #203 unqualified to serve as a juror. The
trial court's reasoning bears duplication here:
I find that [Juror #203] is not qualified. Considering the entire
colloquy, even going back to my initial questioning of [Juror #203],
there was a very, very long pause when I asked her if she could return
a sentence of death. Not only that, her—my observations of her
demeanor, being within two feet, I guess, of her and looking down
into her face, it appeared somewhat of concern to her, somewhat of a
pained, emotional expression on her face . . . . Then beyond
equivocation, as I recall, [the State] asked her about signing her name
and then asked if she thought her feelings about the death penalty
would interfere with her abilities to serve as a juror. And she said, "I
do." I came back and attempted to clarify some of her responses
because I think some of her responses were inconsistent between our
various questioning. And she clearly stated that she felt that her
feelings or her beliefs were such that it would interfere with her ability
to perform her duties and follow her oath as a juror . . . . I think she
did equivocate. I think her views and her responses as a whole would
impair her ability to act as an impartial juror. Therefore, considering
the voir dire as a whole, I find that [Juror #203] is not qualified.
In my view, this Court's decision in State v. Lindsey, 372 S.C. 185, 642
S.E.2d 557 (2007), cert. denied, 552 U.S. 917 (2007), is instructive.
In Lindsay, the appellant claimed the trial court erred in excusing a juror
because of his views regarding the death penalty. Id. at 190, 642 S.E.2d at 559–60.
During initial questioning, the trial court asked the juror if he could impose the
death penalty, and the juror replied, "I really don't know. I really don't know if I
could or not." Id., 642 S.E.2d at 560. During the defense counsel's voir dire, the
juror stated that he could listen to both sides and render what he felt was the
appropriate penalty whether that was life imprisonment or death. Id. However,
during the State's questioning, the juror equivocated, stating:
Most of the time I feel it is a better punishment to be in prison for life.
I believe that death is not as big of a punishment as going to prison for
life and having to stay in prison for the rest of your life.
Id. at 191, 642 S.E.2d at 560. The juror explained that his belief that life without
parole was a more serious punishment than death would "most likely," but not
"necessarily," lead him to choose life imprisonment over death during the trial's
sentencing phase. Id.
The trial court ruled that the juror's belief regarding life imprisonment and
the death penalty would substantially impair the juror's ability to follow the law as
instructed, and noted that when asked about the death penalty the juror "took a very
big deep [breath] and exhaled as if he were very uncertain as to whether or not he
could do that." Id. at 192, 642 S.E.2d at 561 ("The [trial court] concluded 'from
watching' him and considering his inconsistent responses, that [the juror] should be
excused.").
This Court found the juror's ambivalent views concerning the death penalty
supported the trial court's ruling, holding:
Juror K's equivocal views regarding the death penalty, his responses
favoring a life sentence despite the facts of the case, and his noted
hesitation when asked if he could vote for death, are a reasonable
basis for the trial judge's conclusion that Juror K's views would
substantially impair his ability to act as an impartial juror.
Considering the voir dire as a whole, we find the trial judge did not
abuse his discretion in excusing this juror.
Id. at 193, 642 S.E.2d at 561; see also State v. Green, 301 S.C. 347, 355, 392
S.E.2d 157, 161 (1990), cert. denied, 498 U.S. 881 (1990) (holding that a trial
court's disqualification of a prospective juror will not be disturbed where there is a
reasonable basis from which the trial court could have concluded that the juror
would not have been able to faithfully discharge his responsibilities as a juror
under the law).
Accordingly, in my view, the Record demonstrates evidence supporting the
trial court's disqualification of Juror #203. Analogous to the juror in Lindsay, Juror
#203 provided equivocal views regarding the death penalty, and at times expressly
stated that these views would prohibit the juror's ability to perform the required
duties. Thus, in my opinion, the trial court did not abuse its discretion in excusing
a juror that explicitly stated that the juror's views on capital punishment would
prevent the performance of his duties.
V.
The Interstate Agreement on Detainers Act (IAD)
Appellant argues that the trial court erred by failing to dismiss the
indictments against him because of the State's noncompliance with the Interstate
Agreement on Detainers Act (the IAD). I disagree.
The IAD is a compact enabling participating states to obtain custody of
prisoners incarcerated in other participating jurisdictions and bring those prisoners
to trial. Reed v. Farley, 512 U.S. 339, 340 (1994). The central purpose of the IAD
is to allow participating states to uniformly and expeditiously dispose of charges
pending against prisoners held out-of-state. S.C. Code Ann. § 17-11-10 (2003);
State v. Adams, 354 S.C. 361, 370, 580 S.E.2d 785, 790 (2004).
The IAD's third article addresses an inmate's request for a final disposition
of outstanding charges against her in another state. S.C. Code Ann. § 17-11-10,
art. III. Article III provides that an inmate shall be brought to trial within one
hundred eighty days following the delivery of written notice to "the prosecuting
officer and the appropriate court of the prosecuting officer's jurisdiction" of the
inmate's place of his imprisonment and request for a final disposition of untried
indictments or complaints. Id. However, the court having jurisdiction of the
matter may grant any necessary or reasonable continuance provided that good
cause supports the continuance. Id. Section 17-11-10's Article IV provides a
similar method for a state to have an inmate incarcerated in another state delivered
for the purposes of resolving any untried indictments or complaints. Id. § 17-1110, art. IV. However, article IV's subsection (c) provides that any proceedings
enacted via article IV must be commenced within one hundred twenty days of the
inmates arrival in the receiving state. Id. Nevertheless, as in article III, the
presiding court may grant any necessary or reasonable continuance supported by
good cause. Id.
In the instant case, Appellant made an initial demand pursuant to the IAD on
February 12, 2005. Prior to that request, a Georgia court convicted Appellant for
kidnapping and sentenced him to life imprisonment. The solicitor informed the
trial court that the instant case would proceed as a death penalty case, and, on May
27, 2005, the trial court ruled good cause had been shown as to why the case could
not be handled within 180 days. The case was later scheduled for trial in 2008.
However, in March 2008, Appellant's defense counsel requested a continuance
because of an issue with a mitigation specialist. The Record does not explain the
underlying reason for the significant delay in scheduling the instant case for trial.
However, although this type of delay is unacceptable, Appellant fails to
demonstrate that the delay resulted in any prejudice, and therefore, the trial court's
refusal to dismiss the indictments against Appellant does not warrant reversal.
For example, in State v. Allen, 269 S.C. 233, 237 S.E.2d 64 (1977), the State
charged the defendants with burglary. The burglary occurred on October 11, 1973,
and thirteen days later, Georgia police arrested the defendants in that state on
unrelated bank robbery charges. Id. at 236, 237 S.E.2d at 65. Subsequently, a
Georgia court convicted the defendants and imposed a prison sentence. Id. In
November 1973, South Carolina authorities issued arrest warrants for the
defendants and a South Carolina grand jury indicted the defendants in September
1975. Id. at 236, 237 S.E.2d at 65–66. Authorities brought the defendants to
South Carolina and provided notice of the charges pending in this state. Id. The
defendants moved for a continuance, and authorities returned the defendants to
Georgia to await trial. Id. at 236, 237 S.E.2d at 66. Thereafter, the defendants
were brought to South Carolina and tried in March 1976. Id. The defendants were
convicted and sentenced to life imprisonment. Id. at 235, 237 S.E.2d at 65.
The defendants argued, inter alia, that their transfer to Georgia prior to trial
violated the IAD's article IV (e) which provides:
If trial is not had on any indictment, information or complaint
contemplated hereby prior to the prisoner's being returned to the
original place of imprisonment . . . such indictment, information or
complaint shall not be of any further force or effect, and the court
shall enter an order dismissing the same with prejudice.
S.C. Code Ann. § 17-11-10, art. IV(e). This Court disagreed, noting that the
defendants could not demonstrate that the delay in their case resulted in any
prejudice:
Where a prisoner seeks and obtains a delay of his trial in the receiving
State and is returned to the sending State to await trial, it does not
mean that he waives his constitutional right to a speedy trial, but it
does remove his case from the scope of the automatic dismissal
provisions of the statute. In the absence of a showing of prejudice
from his return to the sending State after his request for a continuance
is granted, the prisoner would not be entitled to a dismissal of the
charges against him, as a matter of right, under the provisions of the
statute. The record in this case fails to show any prejudice to
appellants from their return to Georgia to await trial, after the trial of
the present charges was continued at their request. The trial judge,
therefore, properly refused appellants' motions to dismiss the
indictments in this case because of the alleged failure to grant a
speedy trial.
Allen, 269 S.C. at 239, 237 S.E.2d at 67 (emphasis added).
I also find the United States Supreme Court's decision in Reed v. Farley, 512
U.S. 339 (1994), instructive. In that case, the Supreme Court analyzed whether a
violation of the IAD's time limitations could serve as the basis of a state prisoner's
habeas corpus petition. In December 1982, Orrin Reed was confined to a federal
prison in Terre Haute, Indiana, when Indiana state prosecutors charged him with
theft. Id. at 342. Indiana authorities lodged a detainer against Reed and took
custody of him on April 27, 1983. According to the IAD, absent any continuances,
Reed's trial should have commenced on or before August 25, 1983. Id. The trial
court held two pretrial conferences, on June 27 and August 1, 1983. Id. At the
June 27 conference, the court set a September 13, 1983 trial date, exceeding the
IAD's 120-day limit. Id. at 343. However, neither the prosecutor nor Reed
brought this to the trial court's attention or asked for a different trial date. Id. At
the August 1 conference, Reed explained his imminent release from federal
custody and requested the trial court set bond. Id. The trial court set bond at
$25,000 and because of a calendar conflict, reset the trial date to September 19. Id.
Reed did not express any objection to the September 19 trial date. Id.
On August 29, four days prior to trial, Reed alleged that Indiana failed to try
him within 120 days of his transfer and had therefore violated the IAD. Id. at 344.
The trial court rejected Reed's argument, explaining:
Today is the first day I was aware that there was a 120 day limitation
on the Detainer Act. The Court made its setting and while there has
been a request for moving the trial forward, there has not been any
speedy trial request filed, nor has there been anything in the nature of
an objection to the trial setting, but only an urging that it be done
within the guidelines that have been set out.
Id.
On the morning of the trial date, September 19, Reed filed a motion for
continuance, arguing he needed additional time for trial preparation as a result of a
newspaper article detailing the 1954 to 1980 timeframe of Reed's prior felony
convictions. Id. The trial court, recognizing the possible prejudice, offered Reed
three options: (1) start the trial on schedule; (2) postpone the trial for one week; or
(3) continue the trial to a late October date. Id. at 345. Reed chose the third option
and the trial began on October 18, 1983. The jury convicted Reed of theft, and
found him to be habitual offender. Id. Reed received consecutive sentence of four
years' imprisonment for theft and thirty years imprisonment for the habitual
offender conviction. Id. One of Reed's primary assertions was that the IAD's time
limit effectuated the Sixth Amendment's guarantee of a speedy trial right. Id. at
352. Thus, according to Reed, the Supreme Court should view the alleged
violation of the IAD as a "fundamental defect," entitling Reed to habeas relief. Id.
The Supreme Court disagreed. Much of the Supreme Court's reasoning
centered on the appropriate standard for federal habeas relief, and therefore is not
related to the instant case. However, in my opinion, the Court's acknowledgement
that Reed suffered no prejudice is pertinent. The Court explained:
Reed's trial commenced 54 days after the 120-day period expired. He
does not suggest that his ability to present a defense was prejudiced by
the delay. Nor could he plausibly make such a claim. Indeed,
asserting a need for more time to prepare for a trial that would be "fair
and meaningful . . . . Reed himself requested a delay beyond the
scheduled September 19 opening. A showing of prejudice is required
to establish a violation of the Sixth Amendment Speedy Trial Clause,
and that necessary ingredient is entirely missing here.
Id. at 353.
Appellant fails to establish any prejudice resulting from the delay in this
case. The Record does not indicate that Appellant requested the trial court clarify
the length of the original continuance, or that Appellant renewed his motion during
the three year period following the trial court's continuance. More importantly,
Appellant does not demonstrate that the delay adversely impacted his case, or that
an earlier trial would have resulted in a different verdict and sentence. Cf. id. at
353 n.11 ("As the Court of Appeals noted: 'Had Indiana put Reed on trial within
120 days of his transfer from federal prison, everything would have proceeded as it
did. Reed does not contend that vital evidence fell into the prosecutor's hands (or
slipped through his own fingers) between August 26 and September 19, 1983.'"
(citing Reed v. Clark, 984 F.2d 209, 212 (7th Cir. 1993)).
In my opinion, the State complied with the IAD's requirements, and the trial
court's continuance satisfied the IAD's continuance provisions. Thus, I would find
Appellant's argument regarding the IAD without merit.
CONCLUSION
For the foregoing reasons, I respectfully dissent. In my opinion, this Court should
affirm Appellant's conviction and sentence.
KITTREDGE, J., concurs.
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