State v. Aleksey

Decision Date13 November 2000
Docket NumberNo. 25212.,25212.
Citation538 S.E.2d 248,343 S.C. 20
CourtSouth Carolina Supreme Court
PartiesThe STATE of South Carolina, Respondent, v. Bayan ALEKSEY, Appellant.

Assistant Appellate Defender Robert M. Dudek, of South Carolina Office of Appellate Defense, of Columbia, for appellant.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. Mcintosh, Assistant Deputy Attorney General Donald J. Zelenka, all of Columbia; and Solicitor Walter M. Bailey, of Summerville, for respondent.

BURNETT, Justice:

Appellant was convicted and sentenced to death for the murder of a state trooper. We affirm.

FACTS

On New Year's Eve 1997, Sergeant Franklin Lingard of the South Carolina Highway Patrol stopped a white Ford Mustang with a Delaware license plate for speeding on Interstate 95. Sergeant Lingard approached the driver's side of the Mustang and was shot to death by a gun fired from inside the car on the driver's side. Officer Lin Shirer, a narcotics officer with the Calhoun County Sheriffs Office, accompanied Sergeant Lingard on patrol that night. Officer Shirer witnessed the shooting, but was unable to see inside the car to identify the shooter because of its dark tinted windows.

A multi-car chase ensued. An officer stopped the Mustang long enough for Gloryvee Perez Blackwell (Blackwell) and her two children to exit from the passenger side of the vehicle. While Blackwell and the children were exiting the car, appellant held a gun to his head and threatened to kill himself if the officers came any closer to him. Appellant sped away and was eventually stopped again when an officer deliberately collided his vehicle with the Mustang.

Appellant was pulled unconscious from the car, treated at the scene by EMS, then taken to the hospital, and from there to the Orangeburg/Calhoun Regional Detention Center on New Year's Day. A background check on appellant revealed an extensive record of arrests for fraud-related activities, outstanding warrants, and numerous aliases. In addition, both the Mustang and its license tag were stolen.

On January 2nd, appellant gave two statements to officers from the State Law Enforcement Division (SLED). In the first, he claimed Blackwell was driving and shot Sergeant Lingard, after which they stopped and changed seats. In the second, appellant confessed to the shooting.

ISSUES
I. Did the trial court's instruction that the jury had "one single objective and that is to seek the truth" violate appellant's due process rights by shifting the burden of proof to appellant and diluting the reasonable doubt standard of proof?
II. Did the trial court err by refusing to suppress appellant's confession and by impermissibly delegating a portion of his Miranda duties to the jury?
III. Did the trial court err in refusing to allow appellant to cross-examine Blackwell concerning dismissed indictments on narcotics charges?
IV. Did the trial court err by refusing to redact from appellant's statement references to a contract on his life?
DISCUSSION

I. Did the trial court's instruction that the jury had "one single objective and that is to seek the truth" violate appellant's due process rights by shifting the burden of proof to appellant and diluting the reasonable doubt standard of proof?

Appellant argues the trial court erred in instructing the jury its "one single objective" was "to seek the truth." Appellant contends this instruction violated his due process rights by shifting the burden of proof and diluting the reasonable doubt standard. In the context in which the instruction was given, we disagree.

The trial court gave a lengthy, complete, and proper instruction on reasonable doubt, the presumption of innocence, and the State's burden of proof. Next, the judge instructed the jury concerning its role as finder of facts. In concluding his remarks on determining the credibility of witnesses, the judge stated:

Obviously you do not determine the truth or falsity of a matter by counting up the number of witnesses who may have testified on one side or the other. Ladies and gentlemen, throughout this entire process, you have but one single objective, and that is to seek the truth, to seek the truth regardless of from what source that truth may be derived.
Now, all of these things, ladies and gentlemen, you will consider, bearing in mind that you must give the defendant the benefit of every reasonable doubt.

Jury instructions on reasonable doubt which charge the jury to "seek the truth" are disfavored because they "[run] the risk of unconstitutionally shifting the burden of proof to a defendant." State v. Needs, 333 S.C. 134, 155, 508 S.E.2d 857, 867-68 (1998). However, jury instructions should be considered as a whole, and if as a whole they are free from error, any isolated portions which may be misleading do not constitute reversible error. State v. Smith, 315 S.C. 547, 446 S.E.2d 411 (1994). The standard for review of an ambiguous jury instruction is whether there is a reasonable likelihood that the jury applied the challenged instruction in a way that violates the Constitution.1Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991); Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990).

While we have urged trial courts to avoid using any "seek" language when charging jurors on either reasonable doubt or circumstantial evidence (see State v. Needs, 333 S.C. 134, 155, 508 S.E.2d 857, 867-68 (1998)), the "seek" language here did not appear in either the reasonable doubt or circumstantial evidence charges, but in the instructions on juror credibility. Both the reasonable doubt and circumstantial evidence charges were complete and proper.

The Fifth Circuit Court of Appeals found no error in a nearly identical situation, where the trial court instructed the jury: "Remember, at all times, you are judges—judges of the facts. Your sole interest is to seek the truth from the evidence in this case." United States v. Gonzalez-Balderas, 11 F.3d 1218, 1223 (5th Cir.1994). Like appellant, Gonzalez-Balderas argued instructing the jury that its "sole interest is to seek the truth" dilutes the reasonable doubt standard of proof. The court held:

As an abstract concept, "seeking the truth" suggests determining whose version of events is more likely true, the government's or the defendant's, and thereby intimates a preponderance of evidence standard. Such an instruction would be error if used in the explanation of the concept of proof beyond a reasonable doubt. The district court, however, did not use it in this way. Rather, the trial court began its instructions with a clear definition of the government's burden of proof in which it repeatedly stated that the defendant could not be convicted unless the jury found that the government had proven him guilty beyond a reasonable doubt. It correctly defined proof beyond a reasonable doubt as "proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs." There is no reasonable likelihood that the jury inferred that the single reference at the end of the charge to "seeking the truth," rendered as it was in the context of an admonition to "not give up your honest beliefs," modified the reasonable doubt burden of proof.

Id. We find the reasoning of the Gonzalez-Balderas court very persuasive.2 There is not a reasonable likelihood the jury applied the challenged instruction in a manner inconsistent with the burden of proof beyond a reasonable doubt. The trial court's instructions concerning seeking the truth were given in the context of the jury's role in determining the credibility of witnesses.3 The remarks were prefaced by a full instruction on reasonable doubt and followed by an additional exhortation to bear in mind the State's heavy burden of proof. Under the standards articulated in Smith and Boyde, the instruction as a whole properly conveyed the law to the jury and there is not a reasonable likelihood the jury applied the judge's instructions to convict appellant on less than proof beyond a reasonable doubt.

II. Did the trial court err by refusing to suppress appellant's confession and by impermissibly delegating a portion of his Miranda duties to the jury?

The day after his arrest for the trooper's murder, appellant asked to speak with a SLED agent. He was taken to the Orangeburg County Law Enforcement Center where he met with Agents George Darnell and Kenny Mears. They informed appellant of his Miranda rights and he signed a waiver. Appellant then gave a tape recorded statement in which he told the agents that Blackwell shot the trooper. When appellant concluded his narrative, Agent Darnell asked, "Is that all?," to which appellant responded, "That's all I got to say." The agents then turned off the tape recorder.

As the agents prepared to return appellant to the detention center, appellant said he wanted to talk further and asked if the agents could help his friend Elena Batkilina, who was in trouble in Florida. The agents told appellant Florida was outside their jurisdiction and there was nothing they could do to help her. Appellant then asked about the status of Blackwell and the children. Finally, he asked if he could be moved out of the infirmary into the general prison population. After several phone calls, the agents were able to obtain permission for appellant to move into the general prison population. Appellant then gave the statement at issue, inculpating himself in the trooper's death.

Appellant's second issue on appeal raises several questions:

(a) Did appellant unambiguously invoke his right to remain silent when he said, "That's all I've got to say" at the end of his first statement?
(b) If so, was his request scrupulously honored?
(c) Did the trial court err in not specifically ruling on whether appellant invoked his right to remain
...

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