State v. Allen

• Decision Date: 11 February 1976
• Docket Number: No. 20167,20167
• Citation: 222 S.E.2d 287,266 S.C. 175
• Parties: The STATE, Respondent, v. Archie ALLEN, Appellant.
• Court: South Carolina Supreme Court

Page 287

222 S.E.2d 287

266 S.C. 175

The STATE, Respondent, v. Archie ALLEN, Appellant.

No. 20167.

Supreme Court of South Carolina.

Feb. 11, 1976.

Franklin R. DeWitt, Conway, and Matthew J. Perry, Columbia, for appellant.

Atty. Gen. Daniel R. McLeod and Asst. Atty. Gen. Joseph R. Barker, Columbia, Sol. J. M. Long, Jr., and Asst. Sol. Jim Dunn, Conway, for respondent.

MOSS, Acting Associate Justice:

Archie Allen, the Appellant, was tried in Horry County before the Honorable Clarence E. Singletary on the charge of murdering one Charles McNeill, a South Carolina Game Warden. The jury returned a verdict of guilty of the murder of a law enforcement officer and the Appellant was sentenced, pursuant to Section 16--52 of the 1962 Code of Laws, to death.

The Appellant contends before this Court that he is entitled to a reversal of his conviction and a new trial. Specifically, he assigns error to the conduct of the trial court in three particulars:

(1) In refusing to grant Appellant's motion for a change of venue;

(2) In refusing to grant Appellant's motion for severance and separate trials; and

(3) In refusing to grant Appellant's motion to set aside the verdict or, in the alternative, for a new trial.

The Appellant also urges that his death sentence must be set aside because of what he perceives to be constitutional infirmities in Section 16--52.

Appellant's arguments will be considered in detail below. Initially, however, a review of the facts is necessary to an understanding of the issues.

On October 3, 1974, the Appellant, his brother, Cleve Allen, and a friend Sam Todd, were engaged in a deer drive in a rural area of Horry County. At about 11:00 A.M., South Carolina Game Wardens Charles McNeill and Floyd Benton, who were patrolling the area as part of their routine duties, met and conversed for some thirty to forty minutes with the Appellant and his companions.

That afternoon, McNeill and Benton returned to the same area and discovered that a cable, which they had previously placed across the road to keep people out of a nearby game management area, was down. They observed that a vehicle had entered the management area and proceeded to follow it. The vehicle was occupied by Cleve Allen and Sam Todd. The Wardens stopped the vehicle at approximately 2:30 P.M. and Officer McNeill issued both men a ticket. Todd and Allen, followed by the two Wardens, then drove back to the area where the cable was down.

When McNeill and Benton arrived at the cable, the Allen brothers and Todd, their vehicles parked nearby, were still present. The Wardens discovered that the cable was broken and set about repairing it.

Up to this point, the testimony of the four surviving participants of this incident was generally in agreement. Their versions of the subsequent events were, however, widely divergent. The Appellant and his brother, Cleve Allen, testified that Sam Todd shot both Wardens. Todd testified that the Appellant instigated the trouble and shot McNeill. Todd admitted that he shot Benton.

Floyd Benton testified that McNeill stopped their car near the cable and that he took off his coat and gun and began getting the tools to repair the cable. While he was in the process of getting the tools from the trunk of his car, he observed the Appellant take his gun and walk toward the front of his truck. A few seconds later, Benton heard McNeill say, 'Don't shoot me, Arch, don't shoot me.' Benton saw McNeill standing a few feet away but could not, due to the positions of the vehicles, see the Appellant. Looking around, Benton observed Cleve Allen and Sam Todd sitting in Cleve's truck. He testified that he called to Cleve in an effort to get the latter to restrain his brother. Benton then heard a blast and saw McNeill fall. He testified that the blast came from the direction in which the Appellant was heading when Benton had last seen him.

Benton further testified that he heard an unidentified voice say, 'well, there ain't but one thing to do now and that's kill the last damn one of these sons of bitches.' Benton turned to find Sam Todd aiming his shot gun at him. Todd then shot Benton down, seriously wounding him. The three men then drove off.

Immediately prior to trial, Appellant moved for a change of venue on grounds that extensive pre-trial publicity had prejudiced his right to a fair trial. After hearing oral argument and reviewing some six newspaper and magazine articles tendered by the Appellant, Judge Singletary denied the motion. Appellant contends that denial constitutes reversible error.

In State v. Swilling, 249 S.C. 541, 155 S.E.2d 607, this Court held that the moving party has the burden of showing that prospective jurors have been prejudiced by pre-trial publicity. Further, we have held that the decision of the trial judge on motions of this nature will not be disturbed in the absence of a showing of abuse of discretion. State v. Fuller, 227 S.C. 138, 87 S.E.2d 287.

A review of the record fails to reveal that the trial judge abused his discretion in the instant case.

Appellant's showing in support of his motion was insufficient to carry his burden of establishing that prospective jurors had been prejudiced by the pre-trial publicity. That showing, as noted above, was limited to some six newspaper and magazine articles. None of those articles were inflammatory or accusatory toward the Appellant and none appeared to be anything but factual in nature.

Furthermore, the trial court followed the procedure approved of in our decision in State v. Crowe, 258 S.C. 258, 188 S.E.2d 379, cert. den., 409 U.S. 1077, 93 S.Ct. 691, 34 L.Ed.2d 666, in that he conducted a careful Voir dire examination of the jurors to determine the existence of any bias or prejudice on their part. The record indicates, in fact, that the trial court propounded every one of the Voir dire questions requested by the Appellant.

The second issue raised by the Appellant concerns the denial of his motion for severance and separate trials. That motion, made some two days prior to trial, was based upon an allegation that the defenses of the Appellant and his co- defendant, Sam Todd, were antagonistic to each other and that the Appellant would be prejudiced if they were tried together.

Generally speaking, as noted by this Court on numerous occasions, the granting or denial of a motion for severance and separate trials is addressed to the discretion of the trial judge. Unless that discretion is abused, his decision will not be disturbed on appeal. State v. Holland, 261 S.C. 488, 201 S.E.2d 118, and see cases collected under k622(1), and 622(2), West's South Carolina Digest, Criminal Law.

The general rule applies with equal force when, as in the instant case, the motion is based upon antagonistic defenses. State v. Britt, 235 S.C. 395, 111 S.E.2d 669.

Clearly, the trial court acted properly within the bounds of its discretion. The facts in Britt, supra, are strikingly similar. In that case, three men were on trial for the murder of a South Carolina Highway Patrolman. As in the instant case, there was a dispute among the defendants as to who fired the fatal shot. Two of the defendants moved for severance and separate trials on the grounds of antagonistic defenses. They both denied having fired the fatal shot and one, corroborated by the third defendant, averred that the other did the shooting. The trial court denied the motion and this Court affirmed citing as authority five previous cases in which denials of motions for severance based upon antagonistic defenses had been upheld. State v. Brown, 108 S.C. 490, 95 S.E. 61; State v. Jeffords, 121 S.C. 443, 114 S.E. 415; State v. Francis, 152 S.C. 17, 149 S.E. 348; State v. Atkins, 205 S.C. 450, 32 S.E.2d 372; State v. Mathis, 174 S.C. 344, 177 S.E. 318.

Appellant advances no reason why these decisions are not controlling and this Court is aware of none. There is no basis for a reversal on this point.

The third issue raised by the Appellant concerns the trial court's denial of his motion to set aside the verdict or, in the alternative, for a new trial. The motion was based upon alleged insufficiency of the evidence.

The granting or denial of such motions is addressed to the sound discretion of the trial court. State v. Quillien, 263 S.C. 87, 207 S.E.2d 814. Furthermore, in ruling on motions of this nature, the trial court is concerned with the existence of evidence--not with its weight. State v. Addis, 257 S.C. 482, 186 S.E.2d 415; State v. Jordan, 255 S.C. 86, 177 S.E.2d 464.

Under the facts of the instant case, as reviewed above, the trial court acted properly within its discretion in submitting the factual issues to the jury. Undeniably, there were both direct and circumstantial evidence which reasonably tended to establish the Appellant's guilt. Indeed, the testimony of Floyd Benton alone was sufficient to warrant sending the case to the jury.

The fourth and final issue raised by the Appellant concerns the constitutionality of Section 16--52 of the 1962 Code of Laws. The Appellant launches three attacks on the constitutionality of this Section. He argues:

(1) That Section 16--52 is unconstitutional under the United States Supreme Court decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.3d 346;

(2) That capital punishment is 'cruel and unusual punishment' and is therefore unconstitutional Per se under the Eighth Amendment to the United States Constitution; and

(3) That capital punishment is 'cruel, corporal, or unusual punishment' and is therefore unconstitutional Per se under Article 1, Section 15 of the South Carolina Constitution.

Although these issues were neither raised before, nor ruled on by, the trial court, this Court has, In favorem vitae considered the Appellant's arguments thereon. State v. Swilling, 249 S.C. 541, 155 S.E.2d 607. We find them to be without merit. They will be discussed Seriatum.

Appellant contends that Section 16--52 is...