State v. Ballington

• Decision Date: 29 May 2001
• Docket Number: No. 3346.,3346.
• Citation: 551 S.E.2d 280,346 S.C. 262
• Parties: The STATE of South Carolina, Respondent, v. Thomas Ray BALLINGTON, Appellant.
• Court: South Carolina Court of Appeals

346 S.C. 262

551 S.E.2d 280

The STATE of South Carolina, Respondent, v. Thomas Ray BALLINGTON, Appellant.

No. 3346.

Court of Appeals of South Carolina.

Heard April 3, 2001.

Decided May 29, 2001.

Rehearing Denied August 22, 2001.

S. Jahue Moore and Heath P. Taylor, both of Wilson, Moore, Taylor & Thomas, of West Columbia, for appellant.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka and Assistant Attorney General Tracey C. Green, all of Columbia; and Solicitor Donald V. Myers, of Lexington, for respondent.

HEARN, Chief Judge:

Thomas Ray Ballington was convicted of murdering his wife, Edna Lynn Ballington (Wife). He was sentenced to life imprisonment. He appeals, arguing that (1) because a magistrate reduced the grand jury's murder indictment to a charge of manslaughter, the court of general sessions lacked jurisdiction to try him for murder; (2) the trial court erred in admitting an incriminating statement he made to police; and (3) the trial court erred in failing to grant his directed verdict motion. We affirm.

FACTS

Sometime after 2:00 p.m. on September 24, 1998, West Columbia firefighters arrived at Ballington's residence in response to a 911 call that a person inside was unconscious. Ballington was waiting for them in the yard. He unlocked the front door and directed them to Wife lying face down behind the door at the foot of the stairs. The firefighters found no pulse or other signs of life, so they moved her to an area with more room and began CPR. There was one shoe underneath her, and one shoe on the stairs. She had marks on her face and neck. Ballington had a scratch on his face. The firefighters noticed an indentation on the wall.

Emergency medical service (EMS) personnel soon arrived, continued CPR, and prepared to transport Wife to the hospital, although it appeared she had been dead for some time. She had marks on her neck consistent with something pressing against her airway, blood in her airway, blood around her nose and mouth, and bruises of various ages. Ballington told an EMS worker he had been with his wife that morning and was supposed to meet her at home. When he arrived, he found her at the base of the stairway.

Mike Robinson with the Lexington County Sheriffs Department arrived while EMS personnel worked on Wife. Robinson spoke with Ballington who said he had been to lunch with Wife and left her at the home at approximately 12:45 p.m. He returned to work and later learned from Wife's employer that she had not returned to work. On his way home, his vehicle broke down, and he found a ride back to his workplace where he borrowed a car. When he arrived home, he found Wife lying on her stomach at the foot of the stairs. He turned her over, called 911, and attempted to administer mouth-to-mouth, but blood came out of her nose. He then tried to clean her face and clear her airway. Shortly thereafter, the firefighters arrived on the scene. When Officer Robinson asked Ballington about the scratch on his face, he first stated he had a skin condition and then said he did not know how he received the mark.

Detective Scotty Frier arrived and began speaking with Ballington, who repeated the events as he described them to Robinson. At Detective Frier's suggestion, the two talked further in a patrol car. The detective, aware Wife's injuries were not consistent with a fall, began asking more detailed questions. When Ballington explained he and Wife had been separated for months and she lived outside the marital home, Detective Frier decided to advise him of his Miranda¹ rights. Ballington acknowledged those rights on a printed form and chose to proceed with the interview. He recounted his earlier version of events. Detective Frier then spoke with another officer who reiterated the evidence indicated a struggle rather than a fall. Detective Frier decided to place Ballington under arrest for criminal domestic violence.

At the police station, Detective Frier informed Ballington his rights were still in effect and they continued to talk. Detective Frier explained Ballington's version of events was not consistent with the evidence and that Wife's injuries were completely inconsistent with a fall. Detective Frier told Ballington that he was going to have to tell the truth about what happened.

Approximately an hour and fifteen minutes after Ballington arrived at the station, he admitted killing Wife. He gave a statement that he and Wife were in the home after lunch looking for financial papers she needed. She told him she was going to seek full custody of their young son, Austin. He became upset because he loved Austin and had lost custody of another son to his former wife. Wife gave him "a cold look" when he asked why she would do that to him. He then grabbed her from behind and placed his arm around her neck. After he let go, she fought back and warned he would never see Austin again. Ballington later reflected in his statement, "Maybe that's when I lost it." He again held her around her neck with his arm. As she tried to free herself, they fell into the wall, and she went limp. He said he could not detect a pulse and did not know whether she was alive or dead when he left the home.

DISCUSSION

I. Jurisdiction of Murder Charge

Ballington argues a magistrate reduced the grand jury's murder indictment to a charge of manslaughter and the trial court thus should not have tried him on the greater offense. We disagree.

Ballington requested a preliminary hearing after his arrest. However, before a preliminary hearing was held, the grand jury indicted Ballington for murder. Upon Ballington's motion, a circuit court judge issued an order granting him a post-indictment preliminary hearing. Ballington had not received that hearing when his case was called to trial several months later. In a hearing on pre-trial motions, he indicated he hoped to use the preliminary hearing as a discovery tool. The circuit court judge granted Ballington's request for a preliminary hearing. At that hearing, defense counsel argued Ballington should be tried for manslaughter rather than murder because there was no probable cause that the crime was premeditated. The magistrate agreed to "send it back up as a manslaughter."

At the beginning of his trial, Ballington attempted to plead guilty to voluntary manslaughter. His attorney argued the magistrate's decision "had the effect of modifying the indictment." The trial court, however, agreed with the State that the indictment, rather than the magistrate's ruling, controlled. The court then tried Ballington for murder. On appeal, Ballington argues this was error.

Every criminal defendant is entitled to notice of his right to a preliminary hearing "to determine whether sufficient evidence exists to warrant [his] detention and trial." Rule 2(a), SCRCrimP. If a defendant makes a timely request for a hearing, one should be held within ten days. Rule 2(a)(b), SCRCrimP. However, the hearing "shall not be held ... if the defendant is indicted by a grand jury ... before the preliminary hearing is held." Rule 2(b), SCRCrimP; see also State v. Hawkins, 310 S.C. 50, 54-55, 425 S.E.2d 50, 53 (Ct.App.1992)

(holding trial court did not err in refusing to quash defendant's indictments because he did not receive a requested preliminary hearing because he was indicted before a preliminary hearing was held). Furthermore, a defendant has no constitutional right to a preliminary hearing. State v. Keenan, 278 S.C. 361, 365, 296 S.E.2d 676, 678 (1982). Thus, although Ballington may have timely requested a preliminary hearing, his right to have the hearing ended with the grand jury's indictment.

Furthermore, the circuit court judge could not restore the right to a preliminary hearing by ordering a post-indictment preliminary hearing. The trial court obtained jurisdiction over Ballington by way of the grand jury's indictment. See S.C. Const. art. I, § 11 ("No person may be held to answer for any crime the jurisdiction over which is not within the magistrate's court, unless on a presentment or indictment of a grand jury ....").²

Rule 2, SCRCrimP terminates a magistrate's jurisdiction over a non-magistrate level offense when the defendant is indicted by a grand jury. Murder is not an offense within the magistrate court's jurisdiction. S.C.Code § 22-3-540 (1989) (stating magistrates have exclusive jurisdiction of all criminal cases where the punishment does not exceed a $100 fine or thirty days imprisonment); S.C.Code Ann. § 22-3-550 (1989) (stating magistrates have jurisdiction over offenses subject to fines or forfeitures of no more than $200 or thirty days imprisonment); S.C.Code Ann. § 22-3-545 (Supp.2000) (stating cases involving crimes punishable by no more than $5,000, one year imprisonment, or both may be transferred from general sessions to magistrate's court); S.C.Code Ann. § 16-3-20 (Supp.2000) (stating murder is punishable by death, life imprisonment, or a mandatory minimum term of thirty years imprisonment). The magistrate in this case was without jurisdiction to reduce the grand jury's indictment from murder to manslaughter. Accordingly, Ballington's argument that the magistrate's reduction of the charge to manslaughter prevented the circuit court from trying him for murder is unavailing.

II. Ballington's Inculpatory Statement

Ballington also asserts the trial court erred in denying his motion to suppress his inculpatory statement to the police because he confessed only after Detective Frier indicated he would eventually have to tell police the truth. We disagree.

The test of the admissibility of a confession is voluntariness. State v. Von Dohlen, 322 S.C. 234, 243, 471 S.E.2d 689, 694 (1996) ("A confession is not admissible unless it was voluntarily made."). A determination of voluntariness requires examination of the totality of the circumstances. Id. at 243, 471 S.E.2d at 694-95. To...