State v. Mikell, 19338

• Decision Date: 28 December 1971
• Docket Number: No. 19338,19338
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. J. L. MIKELL and Joe 'Fats' Brown, Appellants.

Page 814

185 S.E.2d 814

257 S.C. 315

The STATE, Respondent, v. J. L. MIKELL and Joe 'Fats' Brown, Appellants.

No. 19338.

Supreme Court of South Carolina.

Dec. 28, 1971.

Robinson, Paul & Belk, and Hollings & Hawkins, Charleston, for appellants.

Asst. Sol. A. Arthur Rosenblum, Charleston, for respondent.

LITTLEJOHN, Justice.

On March 4, 1970, the appellants, J. L. Mikell and Joe 'Fats' Brown, were first indicted by the grand jury and then arrested for conspiracy to obstruct justice and attempt bribery from early January to March 4. They were tried jointly and convicted by a jury in the Court of General Sessions for Charleston County on June 5, of the same year. Each has appealed his conviction and asks for a new trial.

The facts leading up to the action of the grand jury in indicting Mikell and Brown are as follows:

Arnold Venning, son of James Venning, was charged in the Court of General Sessions with the criminal offense of receiving stolen goods. When James Venning learned that his son was charged, he talked with his acquaintance of long standing, defendant Brown, who operated a clothing store in Charleston. Brown suggested that defendant Mikell, who was a county detective, might assist Venning and his son with the case.

About January 7 or 8, 1970, James Venning, Brown and Mikell met and discussed young Venning's case. Mikell told Venning that he was 'gonna see the man' for him, referring to Solicitor Robert Wallace. About January 26, 1970, Venning went to see Brown and asked Brown to get in touch with Mikell. At that time Brown told Venning that he (Venning) owed him $50 because he (Brown) had given Mikell $50 to take to Wallace. On the following day Mikell, Brown and Venning met and Mikell told Venning that he would require $2500 to get his son out of trouble. Later on the same day Venning borrowed $480 from a finance company and paid $300 of it to Mikell.

The day after paying the $300, Venning went to Solicitor Wallace's office and suggested to Wallace 'that $2500 is a little steep', and told Wallace he could not afford that much money to settle the boy's case. Wallace, being unaware of what had taken place, expressed surprise and Venning left. Later in the day, at Solicitor Wallace's direction, Venning was taken into custody by two agents of the South Carolina Law Enforcement Division (SLED) and brought to Wallace's private office. They discussed the arrangement Venning had made with Mikell, and Venning told them of having paid Mikell $300 which Mikell was supposed to pay to Wallace.

On January 28 Solicitor Wallace granted immunity to Venning upon the agreement that he would cooperate in seeking evidence against Mikell and Brown. Accordingly, James Venning has not been charged or indicted.

Upon instruction from the SLED agents, Venning went to talk with Brown on February 11, and using a small concealed tape recorder, recorded the conversation. On the following day he contacted and talked with Mikell and recorded that conversation also. The tapes were delivered to SLED agents.

On January 30 Mikell went to the office of Franklin West, who is special investigator for the solicitor's office, and discussed Arnold Venning's case. He told West that he 'was interested in trying to help Arnold Venning.' He inquired about the possibility of Arnold Venning turning State's evidence in exchange for some favorable consideration. West quoted Mikell as saying that he could get a statement from Arnold Venning. Mikell said he would contact West later and let him know about the statement and would also find out what Wallace said.

On February 12 Mikell phoned West to inquire about the propriety of his procuring the statement from Arnold Venning inasmuch as the city was handling the case and he (Mikell) was a county officer. He was instructed to proceed to take the statement.

On February 25 Mikell informed West on the phone that he had taken the statement and that he would bring it to him within a few hours. When Mikell came to West's office to bring the statement West recorded the conversation, unbeknown to Mikell.

When the case was called for trial, counsel for the defendants sought a continuance on the ground that the three tape recordings and notes made by agents for the State, and/or by James Venning, had not been supplied them. The motion was denied and such ruling is a basis of one of appellants' exceptions. It is argued that the defendants were denied a fair trial because the tape recordings were not duplicated and given to the defendants. At the same time, counsel frankly admit in their written brief that there is no broad right of discovery in criminal cases, and admit that generally the prosecution has no duty to inform the accused in advance of trial what the proof will be. See State v. Flood, S.C., 184 S.E.2d 549 filed in this court November 3, 1971.

We are of the opinion that the office of the solicitor was generous in sharing the information which it had prior to the trial. Mikell knew what was on the Venning-Mikell tape and what was on the West-Mikell tape because the recording was of his own conversation. Brown knew what was on the Venning-Brown tape because the recording was of his own conversation. In addition, the tapes were made available to the defense and played for them one week prior to the trial.

Prior to trial it was agreed that defense counsel could talk to Solicitor Wallace, who would be a witness, and to Investigator West, who would also be a witness. In addition, counsel for the defendants talked with co-conspirator Venning (not indicted) on May 13, and took a detailed unsigned statement from him. Under these facts there was no such thing as surprising these two defendants with proof. There is no showing that anything was withheld and no showing of prejudice. We are convinced that there was no legal basis for a continuance, and convinced that the judge did not abuse his discretion. The exception is without merit.

Counsel alleges error on the part of the trial judge in refusing the defendants' motion for continuance on the ground that the case was being called for trial out of its regular order on the docket, there being at least 70 cases which were older. We hold that the solicitor has authority to call cases in such order and in such manner as will facilitate the efficient administration of his official duties, subject to the overall broad supervision of the trial judge. If a defendant feels that his rights are prejudiced by reason of the calling of his case at any particular time, he may apply to the judge for a continuance beyond the term or for postponement to a date later within the term. In the calling of cases for trial the solicitor has a broad discretion in the first instance, and the trial judge has a board discretion in the final analysis. A prosecuting attorney normally has many cases for disposition. He must plan ahead to expedite the work of the court, and should the day come when he is required to call cases in the order entered on the docket, the administration of justice will bog down. No legal cause has been shown for the granting of the motion, and certainly there is no abuse of discretion. There was no error.

Prior to trial, and during the trial, appellants sought to suppress the three tape recordings of conversations: 1--between Venning and Brown; 2--between Venning and Mikell; and 3--between West and Mikell. The trial judge refused the motions to suppress and the tapes, after being properly identified, were played for the benefit of the jury.

The question we are called upon to answer is: were the tape recordings properly admitted into evidence? In arguing that the trial judge erred, counsel for the defendants submit several arguments. They say that the recordings were made after the defendants became prime suspects without being warned of their constitutional right to remain silent and to have counsel. They argue that the tapes were made after Venning abandoned his part in the conspiracy (on January 28) and after the conspiracy terminated. They assert that Mikell's counsel had no opportunity to cross examine Brown relative to statements Brown made on the tape about Mikell, and that Brown's counsel had no opportunity to cross examine Mikell about statements Mikell made on the tape about Brown (neither Brown nor Mikell testified). Finally, they maintain that Sections 1--65 and 26--7.1 of the 1962 Code require that a duplicate copy of a tape be given to a defendant the same as a duplicate copy of a written statement.

There is no question but that the three tape recordings were made at the behest of the solicitor's office. It is certain that the solicitor granted immunity to co-conspirator Venning on January 28, and after that date he was no longer a party to the unlawful scheme. Brown and Mikell did not know of Venning's withdrawal until they were indicted on March 4; prior to March 4 they were not advised of their right to remain silent or to have counsel. Even though they were suspects, they were not charged and had not been arrested. The state was continuing its investigation and accumulating evidence, which it had the right to do.

Counsel for the defendants candidly concede that this point has been decided adversely to the position they take in the case of Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), wherein the Supreme Court of the United States said:

'There is no constitutional right to be arrested. The police are not required to guess at their peril the precise moment at which they have probable cause to arrest a suspect, risking a violation of the Fourth Amendment if they act too soon, and a violation of the Sixth Amendment if they wait too long. Law enforcement officers are under no constitutional duty to call a halt to a criminal investigation at the moment they have the minimum evidence to establish probable cause, a quantum of evidence which may fall far short of the amount necessary to support a...