State v. Avery, 19195
| Decision Date | 29 March 1971 |
| Docket Number | No. 19195,19195 |
| Citation | 255 S.C. 570,180 S.E.2d 190 |
| Parties | The STATE, Respondent, v. Boyce AVERY and Lonnie Sales, Appellants. |
| Court | South Carolina Supreme Court |
John W. Williams, Jr., and John W. McIntosh, Columbia, for appellants.
Sol. John W. Foard, Jr., Columbia, for respondent.
There were two riots in October 1968 by inmates at the South Carolina Central Correctional Institution, one on October 1st and another on October 5th. The prosecutions in State v. Greene et al., S.C., 180 S.E. 179, involved the first incident and the charges in this case arose out of the second. The appellants, with six others, were charged with rioting in violation of Section 55--7.2, Supplement to the 1962 Code of Laws. Four entered pleas of guilty at the beginning of the trial and one, who became ill, was not tried. The remaining three were tried, resulting in the conviction of two (the appellants) and the acquittal of one.
The issues presented may be disposed of under the following questions:
1. Was it error for the trial judge to refuse to quash the indictment on the ground that the statute under which the defendants were indicted was unconstitutionally vague?
2. Was it error for the trial judge to refuse appellant's motion for a severance?
3. Was it error for the trial judge to refuse to exclude from the courtroom those who had pleaded guilty?
4. Was it error to refuse to sentence before trial those defendants who pleaded guilty?
5. Did the trial judge err in his rulings with reference to objections made in several particulars to the cross-examination by the solicitor of the appellant Sales and defense witnesses?
6. Was it error for the trial judge to refuse to relieve the public defender from further representation of appellant Avery?
Appellants, first, charge error in the refusal of their motion to quash the indictment upon the ground that Section 55--7.2, supra, under which they were indicted, is unconstitutionally vague because it does not define the crime of riot. Riot is a common law offense in this State and the definition of the crime, as adopted in State v. Connolly, 3 Rich. 337, has been consistently followed in our decisions. The contention that the definition of the offense is unconstitutionally vague is without merit. Abernathy v. Conroy, 4 Cir., 429 F.2d 1170.
It is next contended that the lower court erred in overruling a motion made by appellants for a severance and separate trials. From the record it appears that, when the case was called for trial, the trial judge directed that any and all motions on behalf of defendants would be considered as having been made at appropriate stages of the proceedings and overruled, which defendant's rights in regard to those motions preserved.
It is now agreed that appellants desire to move for a severance or separate trials. Such a motion was addressed to the sound discretion of the trial judge.
While the record affords sound basis for the criticism that the procedure adopted by the trial judge, of denying all motions and permitting them to be later inserted in the record, indicates a failure to give them the judicial consideration to which they were entitled, there is no showing of probable prejudice to appellants from the denial of the present motion. The charges arose out of the same uncomplicated facts and circumstances and there was no conflict in the defenses interposed. Indicative of the ability of the jury to keep the facts separate as to the participation of each of the defendants in the alleged riot is the fact that one of the defendants who went to trial was acquitted.
While eight defendants were charged in the same indictment, four pleaded guilty and one was not tried because of illness, leaving only three (appellants and one other) who were tried together. The entry of a plea by four of the defendants and the continuance of the case against another amounted to a severance of their trial from that of appellants. State v. Williams, 166 S.C. 63, 164 S.E. 415.
The denial of the motion for a severance resulted in no probable legal prejudice to appellants.
Error is also charged in the refusal of the trial judge to exclude from the courtroom the defendants who had entered guilty pleas. The four defendants who pleaded guilty at the outset of the trial remained in the courtroom throughout the trial of the appellants.
The alleged riot occurred among prison inmates. Those charged and many of the witnesses who testified were serving long prison terms. Of necessity, and it is not contended otherwise, more than normal security measures had to be taken in and about the courtroom during the trial. Appellants urge, in effect, that the continued presence in the courtroom of the four defendants who pleaded guilty increased the size of the security force required at the trial and resulted in such a prejudicial impact upon the jury as to destroy the presumption of innocence to which they were entitled, precluding them from receiving a fair and impartial trial.
It is true that the defendants who entered guilty pleas were not on trial and did not testify, but they were more than mere spectators. They were participants in the riot and the identity of those participating was one of the main questions to be decided. The identification by the witnesses of those allegedly participating and the presence in the courtroom of the participants for that purpose was justified.
There is no contention that more security measures were taken during the trial than necessary or proper, if the continued presence in the courtroom of those who pleaded guilty was justified.
The record discloses no fact or circumstance to show that the size of the security force maintained about the courtroom deprived appellants of the benefit of the presumption of innocence or in any other way precluded them from receiving a fair and impartial trial. It did not deprive appellants' codefendant of the benefit of the presumption of innocence and no explanation is offered as to why appellants' rights would have been so prejudicially affected and not those of their codefendant who was acquitted by the same jury.
Four of those jointly indicted with appellants pleaded guilty at the outset of the trial,...
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