State v. Allen, 20207
| Decision Date | 09 April 1976 |
| Docket Number | No. 20207,20207 |
| Court | South Carolina Supreme Court |
| Parties | The STATE, Respondent, v. Jack Leland ALLEN, Appellant. |
Ernest B. Hinnant, Florence, O. Harry Bozardt, Jr., Orangeburg, and Luke N. Brown, Jr., Ridgeland, for appellant.
Atty. Gen. Daniel R. McLeod and Asst. Atty. Gen. Joseph R. Barker, Columbia, and Solicitor T. Kenneth Summerford, Florence, for respondent.
Defendant Jack Leland Allen was tried in Florence County for the murder of Nancy Amaker. The jury found him guilty of willful, deliberate, and premeditated murder and of murder during the commission of a kidnapping; defendant was sentenced to death pursuant to § 16--52, Code of Laws of South Carolina (1962) As amended (Supp.1975).
Defendant has appealed his conviction and sentence, raising eleven questions for our determination. We have, In favorem vitae, carefully considered the arguments of counsel on all issues, whether the alleged errors were raised in the lower court or not.
The first three questions raised by defendant ask us to determine the constitutionality of Code § 16--52. The arguments asseted by counsel against the constitutionality of this statute are identical to those argumemts which we recently rejected in State v. Allen, S.C., 222 S.E.2d 287, filed February 11, 1976. Reference is made to that opinion; no further discussion of these questions is warranted and the exceptions challenging the constitutionality of § 16--52 are overruled.
The remaining eight questions presented relate to alleged errors at the pretrial and trial stages of the proceedings. Specifically, he asserts the following prejudicial errors:
1. failure to appoint counsel in Florence in violation of the Defense of Indigents Act;
2. failure to grant defendant's motion for an inquest or probable cause hearing;
3. requiring defendant to stand trial in Florence County when the proper venue was in Calhoun County;
4. admission of defendant's improperly obtained oral confession;
5. the solicitor's cross-examination of defendant concerning details of prior crimes, and his suggestion of other crimes;
6. failure to direct a verdict in defendant's favor on the charge of murder during the commission of a kidnapping;
7. the inflammatory closing argument of the solicitor; and
8. failure to grant the mistrial when it appeared that the court's sequestration rule had been violated.
A review of the facts is necessary for a determination of the questions presented.
Defendant abducted Mrs. Mancy Amaker after abandoning a planned armed robbery in the town of St. Matthews, in Calhoun County. He forced her to ride with him, first, to Columbia, and then to an area which the State alleges was within Florence County. It was there that defendant shot Mrs. Amaker in the head. He asserts this was an accident; the State contends it was deliberate and in the commission of the crime of kidnapping. Defendant carried the body to a spot just inside the Darlington County line and abandoned it.
Defendant was eventually arrested in Arizona and returned to South Carolina. He was interrogated by South Carolina Law Enforcement Division agents, under the direction of Captain Leon Gasque. Gasque testified that he first talked with the defendant, advising him of his Legal-Miranda rights, and that defendant agreed to make a written statement. Defendant also gave oral statements to the sheriffs of Florence and Darlington Counties. It was during these oral statements that the defendant described the spot where the shooting occurred. Based on his description of the spot, it was concluded that Mrs. Amaker was shot in Florence County before her body was abandoned in Darlington County. At trial, the defendant admitted that he gave these statements, with one exception, voluntarily and that he was not coerced in any way. The exception relates to one sentence in the written statement. According to the statement, he said, 'I pointed the gun at her head and told her to calm down.' The statement further quotes him as saying, 'She did not and I shot her.' At the trial, the defendant testified that he did not say those words. He claimed that he told Captain Gasque that Mrs. Amaker became hysterical and when he attempted to subdue her, the gun discharged.
South Carolina Code § 16--52 reads in relevant part as follows:
'Punishment for murder.--Whoever is guilty of murder under the following circumstances shall suffer the penalty of death:
(1) Murder committed while in the commission of the following crimes or acts: (a) rape; (b) assault with intent to ravish; (c) kidnapping; (d) burglary; (e) robbery while armed with a deadly weapon; (f) larceny with use of a deadly weapon; . . ..
(5) Murder that is willful, deliberate and premeditated.
. . ..'
The defendant was indicted by the Florence County Grand Jury on October 5, 1974, for willful, deliberate, and premeditated murder during the commission of a kidnapping and/or robbery or larceny with the use of a deadly weapon. Later that same day, he was arraigned before the circuit judge, who (since previously appointed counsel were not present) appointed the public defender of Florence County to represent the defendant. Trial was set for the January term of court. No inquest or preliminary hearing had been held. In January, counsel moved for a preliminary hearing and inquest, which were denied, as was a motion to quash the indictment because of alleged improper venue in Florence County. The trial was continued to the March term, at which the defendant was found guilty by a jury.
We now proceed to consider the remaining questions presented by defendant.
Defendant contends that he was denied his rights under the Defense of Indigents Act, Vol. 15, Code of Laws of South Carolina, As amended (1975 Supp. p. 81), because he was not appointed counsel according to the procedure set forth in the Act. The contention is not borne out by the facts.
Prior to the arraignment in Florence, Attorney Luke Brown of Ridgeland (home of the defendant) and Attorney O. Harry Bozardt, Jr., public defender of Orangeburg County, which is in the judicial circuit wherein the abduction occurred, had been appointed to represent the defendant. They were not present in Florence at the time the State wished to proceed with the arraignment. Before proceeding with the arraignment, the judge appointed Attorney Ernest Hinnant, public defender for Florence County, 'to assist the defendant and his other appointed lawyers, . . .' Mr. Hinnant's assistant public defender, Attorney DeBerry, represented the defendant at the arraignment. Prior to the arraignment, the defendant interrupted the court to state:
The judge proceeded with the arraignment, and Mr. DeBerry and the defendant entered the most advantageous plea available to any defendant. It is not argued that some other plea might have been more proper, and we can perceive of no prejudice to the defendant's rights. The fact that Mr. DeBerry had practiced law less than five years was irrelevant.
Next, the defendant alleges error by the trial court in failing to grant his motions for a preliminary hearing and/or inquest. We find this contention to be without merit.
In South Carolina, when a charge is initially made in an indictment by a grand jury (as here), the accused is not entitled, as a matter of law, to a preliminary hearing. The decision to grant such a hearing lies within the discretion of the trial judge. He may, upon a proper showing, refer the case to a magistrate, designated by him, so as to afford the accused the benefit of a preliminary investigation. State v. Nesmith, 213 S.C. 60, 48 S.E.2d 595 (1948).
We can find no fault with the trial judge's exercise of discretion in this case. There was no showing to the lower court requiring a preliminary hearing.
Next, defendant alleges error in the trial judge's refusal to quash the indictment because of improper venue in Florence County.
Article I, § 11, South Carolina Constitution, As amended (Supp.1975), provides that no person shall be held to answer for a crime where the punishment exceeds two hundred dollars or imprisonment for thirty days, unless on a presentment or indictment of a grand jury of the county where the crime shall have been committed. We have held that the right of a party to be tried in the county where the crime was committed is jurisdictional. State v. Wiggins, 257 S.C. 167, 184 S.E.2d 697 (1971).
Defendant asserts that since an essential element in the State's case against him was the kidnapping of Mrs. Amaker in St. Matthews, which is located in Calhoun County, venue was proper in Calhoun County, only, and thus the indictment by the Florence County Grand Jury was void. We do not agree.
In State v. Gasque, 241 S.C. 316, 128 S.E.2d 154 (1964), we stated that where some acts material and essential to the offense, and requisite to its consummation, occur in one county and some in another, the accused may be tried in either.
Defendant was indicted for the willful, deliberate and premeditated murder of Nancy Amaker and/or murder during the commission of a kidnapping, he was found guilty on both charges. We think sufficient evidence was presented to warrant the conclusion that Mrs. Amaker either died or was mortally wounded while in Florence County.
Although the defendant attacked the conclusion that Mrs. Amaker was shot in Florence County, he offered no conflicting evidence except that the body was found, just over the county line, in Darlington County. Considering the events as related by defendant and other witnesses, we do not think the fact that the body was found in Darlington County disproves that Mrs. Amaker was killed, or mortally...
To continue reading
Request your trial
-
State v. Torrence
...denied, 444 U.S. 957, 100 S.Ct. 437, 62 L.Ed.2d 329 (1980);State v. A. Allen, 266 S.C. 175, 222 S.E.2d 287 (1976);State v. J.L. Allen, 266 S.C. 468, 224 S.E.2d 881 (1976);State v. Ingram, 266 S.C. 462, 224 S.E.2d 711 (1976);State v. Atkinson, 253 S.C. 531, 172 S.E.2d 111 (1970);State v. Bel......
-
McGee v. Warden of Lieber Corr. Inst.
... ... Frankie ... Lee McGee (“Petitioner”) is a state inmate who ... filed this petition for a writ of habeas corpus pursuant to ... 28 ... State v. Raffaldt, 318 S.C. 110, 456 S.E.2d 390 ... (1995): State v. Allen, 266 S.C. 468, 224 S.E.2d 881 ... (1976); State v. Pitts, 256 S.C. 420, 182 S.E.2d 738 ... ...
-
State v. Copeland
...State v. Davis, 239 S.C. 280, 122 S.E.2d 633, his duty is not to convict a defendant but to see justice done. State v. Allen, 266 S.C. 468, 224 S.E.2d 881 (1976). The solicitor's closing argument must, of course, be based upon this principle. The argument therefore must be carefully tailore......
-
State v. Young
...the proposition that a defendant may open the door to what would otherwise be improper evidence. For instance, State v. Allen, 266 S.C. 468, 224 S.E.2d 881 (1976), overruled on other grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991), although it never uses the open door langu......