In the Interest of Tracy B., a Juvenile Under the Age of Seventeen, Appellant.

• Decision Date: 28 January 2011
• Docket Number: No. 4769.,4769.
• Citation: 704 S.E.2d 71,391 S.C. 51
• Court: South Carolina Court of Appeals
• Parties: In The Interest Of TRACY B., A Juvenile Under The Age Of Seventeen, Appellant.

391 S.C. 51

704 S.E.2d 71

In The Interest Of TRACY B., A Juvenile Under The Age Of Seventeen, Appellant.

No. 4769.

Court of Appeals of South Carolina.

Heard Sept. 16, 2010.Decided Dec. 20, 2010.Rehearing Denied Jan. 28, 2011.

Chief Appellate Defender for Capital Appeals Robert M. Dudek, of Columbia, and Megan S. Ehrlich, of Charleston, for Appellant.Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, all of Columbia; and Solicitor Scarlett Anne Wilson, of Charleston, for Respondent.GEATHERS, J.

Tracy B. appeals his juvenile convictions for murder, unlawful possession of a handgun, and unlawful possession of a handgun by a minor. He argues that the family court erred in (1) failing to suppress an inculpatory statement he gave to police, (2) failing to find that he acted in self-defense, and (3) denying his motion for a new trial. We affirm.

FACTS

Appellant's convictions stem from the shooting death of Larry Jenkins on August 11, 2007. At approximately 2:00 a.m. on the day of the incident, a group of young people—mostly teenagers—were sitting on the front porch of a home in North Charleston, South Carolina. The members of the group included, among others, Appellant, “Twin,” Kayron, and two sisters named Ebony and Edginee.¹ Both Twin and Kayron were carrying guns. At some point during the evening, Twin handed his gun to Appellant, who was fourteen years old at the time.

A green Lincoln Town Car arrived at the house. Two of the occupants of the car got out and began speaking with Appellant and the other teenagers on the porch. The conversation was “polite.” Twin gave one of the Town Car occupants a “dap,” or a friendly fist bump, as he approached the porch.² The individuals from the car then stated that they were going to the store, and they left.

About ten to fifteen minutes later, the teenagers sitting on the front porch saw the same Town Car return, with Jenkins sitting in the back seat. As the vehicle approached, an individual sitting in the front passenger seat of the car fired three shots into the air. The group on the porch scattered, and some of the teenagers tripped over each other in their attempts to enter the house and avoid the gunfire. When the Town Car was approximately two houses past Ebony and Edginee's house, Appellant ran from the front porch to the front gate and fired the gun in the direction of the departing car. The single gunshot struck Jenkins in the back of his head as he sat in the back seat of the Town Car, killing him.

A few days later, while at football practice, Appellant was picked up by police and brought to the North Charleston police station for questioning. A North Charleston police detective, Greg Gomes, advised Appellant of his Miranda³ rights and informed Appellant that witnesses had implicated him in Jenkins' death. Appellant denied being in the area when the shooting occurred. After further questioning, Appellant informed Detective Gomes that he wanted to speak to a lawyer. Detective Gomes stopped questioning Appellant at that time and left the interview room.

Detective Gomes later returned to the interview room to take Appellant, who was still wearing some of his football gear, to the restroom so that Appellant could change into more comfortable attire. Detective Gomes accompanied Appellant back to the interview room after Appellant changed his clothes. As Detective Gomes was leaving the interview room, Appellant asked him, “How serious is this?” Detective Gomes stated that it was really serious because someone had died. Appellant then asked to speak with his mother.

Shortly thereafter, Lieutenant Melvin Cumbee, who was serving as watch commander at the police station, brought Appellant's mother to the interview room where she spoke with Appellant for five to ten minutes. When Appellant's mother left the interview room, she advised Lieutenant Cumbee that “he wanted to talk to y'all.” Lieutenant Cumbee entered the interview room and sat beside Appellant. He informed Appellant that his mother mentioned that Appellant wanted to talk to the police, and he asked Appellant if he still wanted to talk. Appellant stated that he did want to talk, and he asked Lieutenant Cumbee about the potential length of his jail sentence. Lieutenant Cumbee informed Appellant that he did not know how long he could be incarcerated. Lieutenant Cumbee then asked Appellant what he wanted to talk about. Appellant responded by stating that he had “shot the gun at the car” and that he “just pointed the gun and shot it.” Lieutenant Cumbee asked Appellant if he had been advised of his Miranda rights and Appellant said yes. Lieutenant Cumbee then asked Appellant if he wanted to tell his side of the story and Appellant stated that he did. At that point, Lieutenant Cumbee exited the interview room and asked Detective Gomes to obtain a formal statement from Appellant.

Appellant subsequently gave a statement to Detective Gomes in which he admitted that “[a]fter the car passed by me I shot at the car one time.” He further stated that he did so because he “thought they were shooting at me.” Appellant was arrested and subsequently charged with murder, unlawful possession of a handgun, and unlawful possession of a handgun by a minor.

During a pre-trial Jackson v. Denno⁴ hearing, defense counsel moved for the suppression of Appellant's inculpatory statement to police. Defense counsel contended that Appellant's statement was not voluntarily made, and she emphasized Appellant's age, his educational level, and the fact that Appellant never signed a form waiving his rights. Defense counsel also noted that Appellant had invoked his right to counsel prior to making his statement. After hearing testimony, the family court denied Appellant's motion, finding that Appellant knowingly waived his rights and that his statement to police was voluntarily given.

The family court held Appellant's trial in December of 2007. At the conclusion of the State's case, Appellant moved for a directed verdict, contending, among other things, that the State failed to disprove that Appellant was acting in self-defense. The family court denied Appellant's motion. Appellant renewed his motion for a directed verdict at the conclusion of his case, and the family court again denied the motion.

The family court subsequently found Appellant guilty of murder, unlawful possession of a handgun, and unlawful possession of a handgun by a minor. Appellant moved for a new trial based on “all previous motions and lack of evidence.” After Appellant's motion for a new trial was denied, Appellant was committed to the Department of Juvenile Justice for an indeterminate period not to exceed his 21st birthday. This appeal followed.

ISSUES ON APPEAL

1. Did the family court err in failing to suppress Appellant's statement to police?

2. Did the family court err in finding Appellant guilty of murder beyond a reasonable doubt when the State failed to disprove self-defense beyond a reasonable doubt?

3. Did the family court err in denying Appellant's motion for a new trial based on lack of evidence presented at trial?

LAW/ANALYSIS

I. Appellant's Statement

Appellant argues that the family court erred by refusing to suppress his inculpatory statement to the police. Specifically, he contends that his statement should have been suppressed because the police interrogated him after he invoked his right to counsel. He also claims that his statement to police was not voluntarily made. We proceed to address each of these arguments in turn.

A. Invocation of Fifth Amendment Right to the Presence of an Attorney during Custodial Interrogation

Appellant contends his statement should have been suppressed because the police interrogated him after he invoked his right to have an attorney present. We disagree.

The Fifth Amendment's privilege against self-incrimination provides an individual who has been accused of a crime the right to consult with an attorney and to have an attorney present during custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). This privilege has been extended to the States via the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 6, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964) (“[T]he Fifth Amendment's exception from compulsory self-incrimination is also protected by the Fourteenth Amendment against abridgment by the States.”). Once an accused has invoked his right to have an attorney present during custodial interrogation, he may not be subjected to further police interrogation “unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards v. Arizona, 451 U.S. 477, 484–85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

In contrast, “[t]he Sixth Amendment right to counsel ‘attaches only at or after the initiation of adversary judicial proceedings against the defendant.’ ” ⁵ State v. Stahlnecker, 386 S.C. 609, 620, 690 S.E.2d 565, 571 (2010) (quoting United States v. Gouveia, 467 U.S. 180, 187, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984)). “[A] criminal defendant's initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel.” Stahlnecker, 386 S.C. at 620, 690 S.E.2d at 571 (quoting Rothgery v. Gillespie Cnty., 554 U.S. 191, 128 S.Ct. 2578, 2592, 171 L.Ed.2d 366 (2008)). Here, while Detective Gomes had informed Appellant that he planned to charge him, Appellant had not been formally charged or arraigned at the time he made his statement to police. In fact, the record indicates that Appellant gave his inculpatory statement to Detective Gomes less than two hours after the initial interrogation began.

In the present case, Appellant argues that he did not reinitiate communication with police after ...