State v. McCray, 24841.

• Decision Date: 28 September 1998
• Docket Number: No. 24841.,24841.
• Citation: 332 S.C. 536,506 S.E.2d 301
• Parties: The STATE, Respondent, v. Charles Allen McCRAY, Appellant.
• Court: South Carolina Supreme Court

332 S.C. 536

506 S.E.2d 301

The STATE, Respondent, v. Charles Allen McCRAY, Appellant.

No. 24841.

Supreme Court of South Carolina.

Heard January 10, 1996.

Decided September 28, 1998.

Assistant Appellant Defender Robert M. Pachak, of South Carolina Office of Appellate Defense, Columbia; John C. Jepertinger and Jack W. Lawson, Jr., Florence, for appellant.

Attorney General T. Travis Medlock, Chief Deputy Attorney General Donald J. Zelenka, Assistant Attorney General Harold M. Coombs, Jr., and Assistant Attorney General William Edgar Salter, III, Columbia; and Solicitor Dudley Saleeby, Jr., Florence, for respondent.

BURNETT, Justice:

Appellant was indicted by the Florence County Grand Jury on charges of murder, conspiracy, first degree burglary, arson, and armed robbery surrounding the death of Billy Graham. He was convicted of first degree burglary and conspiracy and acquitted of the three other charges. Appellant was sentenced to life imprisonment for burglary and five years' imprisonment for conspiracy.

ISSUES

I. Did the trial judge err by ruling appellant's co-defendants' reasons for striking black jurors from the jury venire was not pretextual and by failing to grant appellant a severance?

II. Did the trial judge err by admitting appellant's February 26, 1988, confession into evidence?

III. Did the trial judge err by failing to grant appellant's motion for a mistrial after a co-defendant referred during closing argument to appellant's failure to testify?

DISCUSSION

I.

Appellant, who is black, was tried with two co-defendants, Roger Dewitt (Bill) Prince and Charlie Dorn Smith, who are white. Before the jury was sworn, appellant requested a Batson¹ hearing, arguing his co-defendants excluded black jurors from the venire because of their race. During the hearing, appellant stated he had previously moved for a severance, anticipating there would be difficulties in selecting a jury. The trial judge denied appellant's Batson motion, concluding Batson did not apply to co-defendants in a criminal trial.

During the pendency of appellant's appeal, the United States Supreme Court ruled Batson applies to criminal defendants as well as to the prosecution. Georgia v. McCollum, 505 U.S. 42, 59, 112 S.Ct. 2348, 2359, 120 L.Ed.2d 33, 51 (1992) ("the Constitution prohibits a criminal defendant from engaging in purposeful discrimination on the ground of race in the exercise of peremptory challenges."). Consequently, we remanded this matter to the trial court for the purpose of conducting a Batson hearing.

On remand, co-defendant Prince candidly stated, due to the passage of time, he did not remember exactly why he had struck the black jurors at issue but, referring to his notes, thought he struck Juror # 112 because she had two cousins who were sheriffs in New York and Juror # 26 because he had a friend who worked for the sheriff's department. Co-defendant Smith stated he did not want anyone with connection to law enforcement on the jury. Consequently, he struck Juror # 9 whose friend worked for SLED and Juror # 61 whose cousin worked for the sheriff's department.

Appellant argued the stated reasons for striking the four black jurors were pretextual because the co-defendants did not strike three white jurors, Jurors # 13, # 88, and # 181, who had similar connections to law enforcement. The trial judge concluded the stated reasons for striking the four black jurors were not pretextual. We agree.

Under Batson procedure as it existed at the time of appellant's trial, the proponent of the strike was required to present an explanation for the strike which was racially neutral, clear, reasonably specific, and legitimate. State v. Adams, 322 S.C. 114, 470 S.E.2d 366 (1996). Whether a proffered reason was racially neutral was to be determined by examining the totality of the facts and circumstances in the record, including the credibility and demeanor of the proponent of the strike. State v. Kelley, 319 S.C. 173, 460 S.E.2d 368 (1995). If the explanation met these criteria, the opponent of the strike had the burden of proving the allegedly neutral reason was pretextual. Pretext could be demonstrated by showing similarly situated members of another race were seated on the jury.²

The record from the jury voir dire indicates the three white jurors who were seated on the jury were not similarly situated to the four black jurors who were struck from the jury. While the black jurors had relatives or friends who, at the time of trial, were employed in law enforcement, the relatives or friends of the white jurors were no longer employed in law enforcement.³ The white jurors did not have the same relationship to law enforcement as the black jurors. Accordingly, appellant failed to meet his burden of establishing the co-defendants' stated reasons for striking the black jurors were pretextual. The trial judge's findings are supported by the evidence and should be affirmed. State v. Adams, supra (the trial judge's findings regarding purposeful discrimination are entitled to great deference and are to be set aside only if clearly erroneous). Moreover, appellant's argument that the trial judge abused his discretion by denying his motion for a severance after his co-defendants struck the four black jurors is not preserved for appeal. Appellant never requested a severance for this reason. State v. Byram, 326 S.C. 107, 485 S.E.2d 360 (1997) (a party cannot argue one ground at trial then another ground on appeal). In any event, since we conclude there was no error in striking the four black jurors, there is no merit to appellant's argument that he should have been granted a trial separate from his co-defendants because they struck black jurors from the jury.

II.

Appellant contends the trial judge erred in admitting into evidence his statement of February 26, 1988, for the following reasons: A) he had invoked his Fifth Amendment⁴ right to counsel and the statement was thereafter obtained by improper police-initiated interrogation; B) the statement was obtained in violation of the Sixth Amendment;⁵ C) the statement was obtained by trickery; and D) the statement was involuntary under the totality of the circumstances. We disagree.

The following facts were developed during the Jackson v. Denno⁶ hearing. Perry Coker of the Clarendon County Sheriff's Department testified he arrested appellant on February 4, 1988, on charges of burglary and criminal sexual conduct. The warrants were signed by appellant's sister. Appellant was advised of his Miranda rights by Lieutenant Gamble from SLED. Appellant was not interviewed at that time because he was intoxicated. Twenty-four to forty-eight hours later, Coker asked appellant if he wanted an attorney appointed. Appellant responded "this was a family matter and given a little bit of time it would work itself out and that he did not want an attorney at that time." Appellant remained in custody. On February 17, 1988, appellant was arrested in Clarendon County for the murder of Paul Bradley, Jr. Coker spoke with appellant after the arrest and asked if he wanted an attorney appointed. Appellant responded he "felt like at the time that his people would hire an attorney and he did not want an appointed attorney on that charge."

However, Coker testified because of the "extra charge" (apparently the Bradley murder charge), he felt appellant needed an attorney. Consequently, on February 18, 1988, Coker testified he took appellant to the Clerk of Court's office and the public defender, Harold Detwiler, was appointed to represent appellant on the burglary and criminal sexual conduct case. Coker again asked appellant if he wanted an attorney for the murder charge and appellant replied he did not want an appointed attorney for a charge of that serious a nature and would have his sister retain a lawyer.

Four days later, on February 22, 1988, Coker and Lieutenant Gamble were present with appellant in the sheriff's office. Before speaking with appellant, Gamble telephoned Detwiler in appellant's presence. Gamble testified he told Detwiler he wanted to discuss the Bradley murder "and this other case⁷ with appellant and to run a polygraph test. As a result of the telephone conversation, appellant was transported to SLED and he submitted to a polygraph test.

Prior to administering the polygraph test, the test administrator, Johnny Hartley, testified he advised appellant of his Miranda rights, including the right to remain silent, that anything he said could he used against him in court, and the right to have a lawyer present, and appellant signed a waiver form acknowledging he understood each of the rights.

The same day, after returning from SLED, Coker spoke with appellant and his sister.⁸ Coker testified he advised appellant of his Miranda rights, including the right to talk to a lawyer and have a lawyer present while being questioned. Appellant then gave a statement with regard to the Bradley homicide. Appellant's statement was reduced to writing and he signed the document.

On February 23, 1988, Coker spoke with appellant's nephew who was also charged with the Bradley murder. As a result of that discussion, Coker testified he again spoke with appellant on February 24th about the Bradley murder after appellant executed another waiver of rights form. A tape recording of this conversation was made and later transcribed. Appellant signed the transcription of the tape recording. In addition, appellant signed a waiver form confirming he had been advised of his rights prior to the February 22 questioning and at the time of his arrest.

Coker testified during his dealings with appellant from February 22-24, appellant referred to the death of Billy Graham. According to Coker, appellant was willing to tell "his part" but did not want to "tell it all" for fear of the lives of his family. Until that time, Coker stated Graham's death was thought to be accidental.⁹ Coker stated appellant said he would take a...