Graves v. State, No. 23722

CourtSouth Carolina Supreme Court
Writing for the CourtMOORE; HARWELL
Citation309 S.C. 307,422 S.E.2d 125
PartiesGary GRAVES, Petitioner, v. STATE of South Carolina, Respondent.
Decision Date05 November 1992
Docket NumberNo. 23722

Page 125

422 S.E.2d 125
309 S.C. 307
Gary GRAVES, Petitioner,
v.
STATE of South Carolina, Respondent.
No. 23722.
Supreme Court of South Carolina.
Submitted May 19, 1992.
Decided Oct. 5, 1992.
Rehearing Denied Nov. 5, 1992.

Page 126

[309 S.C. 308] H. Wayne Floyd, West Columbia, for petitioner.

Atty. Gen. T. Travis Medlock, Chief Deputy Atty. Gen. Donald J. Zelenka, and Asst. Atty. Gen. Delbert H. Singleton, Jr., Columbia, for respondent.

MOORE, Justice.

We granted petitioner Gary Graves' petition for writ of certiorari following the denial of his application for post-conviction relief (PCR). Petitioner alleges he did not make a knowing and intelligent waiver of his right to counsel and his right to an impartial jury was violated by the trial judge's hostility [309 S.C. 309] towards petitioner and comments on the credibility of a defense witness. We affirm.

FACTS

On June 22, 1987, petitioner was convicted of possession of cocaine with intent to distribute and conspiracy and sentenced to imprisonment for fifteen years and seven and one-half years, respectively, to run consecutively. The petitioner appeared pro se at trial. Petitioner's direct appeal was affirmed under Rule 23, SCRAP. In petitioner's application for PCR, he alleges he did not knowingly and intelligently waive his sixth amendment right to counsel. Petitioner also alleged that he was denied an impartial jury because of the trial judge's hostility towards him throughout the trial and the trial judge's comments about the credibility of a defense witness. The PCR judge found petitioner had knowingly and intelligently waived his right to counsel and the trial judge's comments about petitioner and the witness were not prejudicial.

ISSUES

(1) Did petitioner knowingly and intelligently waive his right to counsel?

(2) Did the trial judge's alleged hostility to petitioner prejudice petitioner's right to an impartial jury?

(3) Did the trial judge's comments on credibility to a witness violate petitioner's right to an impartial jury?

DISCUSSION

(1) Waiver of Counsel

At the beginning of the trial, petitioner was represented by retained counsel. Petitioner, however, made a motion to be allowed to act as co-counsel. Petitioner's trial counsel informed the trial judge that petitioner was a paralegal. The trial judge granted the motion but warned petitioner that he would not allow both petitioner and his counsel to question each witness. After the State's first witness was cross-examined by petitioner's counsel, petitioner attempted to question the witness. The trial judge again warned petitioner that he would not allow a witness to be cross-examined[309 S.C. 310] by both petitioner and his counsel. Petitioner then made a motion to proceed pro se. The trial judge granted petitioner's motion but required his trial counsel to remain in court and advise petitioner.

Page 127

Petitioner contends that the trial judge should have questioned him to ascertain if he knew of the dangers of self-representation. The ultimate test, however, is not the trial judge's advice, but rather the petitioner's understanding. Wroten v. State, 301 S.C. 293, 391 S.E.2d 575 (1990). We will look to the entire record from both the trial and the PCR hearing to determine whether other facts show petitioner had sufficient background or was apprised of his rights by some other source. Id. 391 S.E.2d at 576.

Petitioner testified at the PCR hearing that prior to his trial he had completed three years at the John J.R. Law School of Criminal Justice. In addition, petitioner had an extensive criminal background and had worked at a law library. At the PCR hearing, petitioner testified that he was not a paralegal, but at trial he failed to correct the trial judge or his trial counsel when he was referred to as one.

Furthermore, petitioner's trial counsel testified at the PCR hearing that he discussed with petitioner some of the risks of proceeding pro se.

The PCR judge found that petitioner had knowingly and intelligently waived...

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16 practice notes
  • State v. Stanley, No. 4007.
    • United States
    • United States State Supreme Court of South Carolina
    • 27 juin 2005
    ...establish prejudice or constitute reversible error, but indicating that such a result may be shown in a proper case). In Graves v. State, 309 S.C. 307, 422 S.E.2d 125 (1992), our supreme court Petitioner also alleges that the trial judge's comments on credibility about a defense witness den......
  • Drayton v. Evatt, No. 23852
    • United States
    • United States State Supreme Court of South Carolina
    • 9 juin 1993
    ...315 S.E.2d 110 (1984). 2 See, e.g., Plyler v. State, --- S.C. ----, 424 S.E.2d 477 (1992) (non-capital); Graves v. State, --- S.C. ----, 422 S.E.2d 125 (1992) (non-capital); Plath v. State, --- S.C. ----, 420 S.E.2d 834 (1992) (capital); Brown v. State, 306 S.C. 381, 412 S.E.2d 399 (1991) (......
  • In The Matter Of Richland County Magistrate's Court, No. 26876.
    • United States
    • United States State Supreme Court of South Carolina
    • 7 septembre 2010
    ...adopted in Messervy, Seaborn, and State v. Sossamon, 298 S.C. 72, 378 S.E.2d 259 (1989), as affirmed in Unauthorized Practice of Law, 309 S.C. at 307, 422 S.E.2d at 125. Alluding to Seaborn, the majority focuses on the absence of a State actor or representative in the actions in question he......
  • State v. Whipple, No. 24458
    • United States
    • United States State Supreme Court of South Carolina
    • 10 janvier 1996
    ...with equal force to all experts, both for the State and for Whipple. Accordingly, Whipple suffered no prejudice. See e.g. Graves v. State, 309 S.C. 307, 422 S.E.2d 125 (1992) (improper comment concerning a witnesses testimony not prejudicial to Finally, the judge's subsequent instruction th......
  • Request a trial to view additional results
16 cases
  • State v. Stanley, No. 4007.
    • United States
    • United States State Supreme Court of South Carolina
    • 27 juin 2005
    ...establish prejudice or constitute reversible error, but indicating that such a result may be shown in a proper case). In Graves v. State, 309 S.C. 307, 422 S.E.2d 125 (1992), our supreme court Petitioner also alleges that the trial judge's comments on credibility about a defense witness den......
  • Drayton v. Evatt, No. 23852
    • United States
    • United States State Supreme Court of South Carolina
    • 9 juin 1993
    ...315 S.E.2d 110 (1984). 2 See, e.g., Plyler v. State, --- S.C. ----, 424 S.E.2d 477 (1992) (non-capital); Graves v. State, --- S.C. ----, 422 S.E.2d 125 (1992) (non-capital); Plath v. State, --- S.C. ----, 420 S.E.2d 834 (1992) (capital); Brown v. State, 306 S.C. 381, 412 S.E.2d 399 (1991) (......
  • In The Matter Of Richland County Magistrate's Court, No. 26876.
    • United States
    • United States State Supreme Court of South Carolina
    • 7 septembre 2010
    ...adopted in Messervy, Seaborn, and State v. Sossamon, 298 S.C. 72, 378 S.E.2d 259 (1989), as affirmed in Unauthorized Practice of Law, 309 S.C. at 307, 422 S.E.2d at 125. Alluding to Seaborn, the majority focuses on the absence of a State actor or representative in the actions in question he......
  • State v. Whipple, No. 24458
    • United States
    • United States State Supreme Court of South Carolina
    • 10 janvier 1996
    ...with equal force to all experts, both for the State and for Whipple. Accordingly, Whipple suffered no prejudice. See e.g. Graves v. State, 309 S.C. 307, 422 S.E.2d 125 (1992) (improper comment concerning a witnesses testimony not prejudicial to Finally, the judge's subsequent instruction th......
  • Request a trial to view additional results

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