State v. Barrett, 21810

• Decision Date: 22 November 1982
• Docket Number: No. 21810,21810
• Citation: 297 S.E.2d 794,278 S.C. 414
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Dennis G. BARRETT, Appellant.

Page 794

297 S.E.2d 794

278 S.C. 414

The STATE, Respondent, v. Dennis G. BARRETT, Appellant.

No. 21810.

Supreme Court of South Carolina.

Nov. 22, 1982.

George W. Speedy and Michael E. Stegner, both of Furman, Speedy & Stegner, Camden, and S.C. Com'n of Appellate Defense, Columbia, for appellant.

Atty. Gen. Daniel R. McLeod, Sr. Asst. Atty. Gen. Brian P. Gibbes and Sol. James C. Anders, Columbia, for respondent.

PER CURIAM:

The Defendant-Appellant, Dennis G. Barrett, was indicted and tried for the offenses of: (1) kidnapping, (2) armed robbery, (3) assault and battery with intent to kill, and (4) grand larceny of a motor vehicle. The jury found him guilty of armed robbery and assault and battery of a high and aggravated nature (a lesser offense of assault and battery with intent to kill), and of grand larceny of a motor vehicle. He was found not guilty of kidnapping and of assault and battery with intent to kill. After being sentenced to twenty-five years, he appealed, claiming the right to a new trial because of alleged errors on the part of the trial judge.

The questions submitted to this Court, as taken from Appellant's Brief, are as follows:

1. Did the trial judge commit error in allowing members of the jury to directly question Appellant when he was on the witness stand and in not declaring a mistrial after he had permitted such questioning on the ground that such questioning violated Appellant's right to an impartial jury trial?

2. Did the trial judge commit error in not quashing the indictments for armed robbery and kidnapping at the outset of the trial, or in requiring the state to elect between the indictments, on the ground that allowing the state to proceed to trial on both indictments placed Appellant in double jeopardy?

We dispose of the second question first. At the beginning of Appellant's trial, his attorney moved to quash the indictment for kidnapping and armed robbery on the ground that the elements needed to prove both were in the particular instance identical in nature, placing Appellant in double jeopardy. The trial judge refused the motion. The issue might be disposed of by merely saying that the question is moot because Appellant was found not guilty of kidnapping. We are, however, in agreement with the trial judge because the elements of the offenses are not the same. The double jeopardy test normally used by the court is whether the evidence necessary to support one charge in an indictment would have been sufficient to procure a legal conviction upon another charge in the indictment. The offense of armed robbery involves the taking of one's property through force or threat of force. Kidnapping involves the taking control of a human being through force or threat of force. Appellant was not entitled to require the State to elect and the trial judge properly allowed the case to proceed to trial on all counts in the indictment.

The other question involves an issue upon which this Court has not spoken except in the case of State v. Bradford, 87 S.C. 546, 70 S.E. 308 (1911). That case is of some significance but not greatly helpful to the bench and bar. While Defendant Barrett was testifying on his own behalf, the foreman of the jury stated, "I have a question for the judge. I don't know whether I am allowed--" Apparently, he then handed a written question to the judge, who after consulting with counsel for both the State and Appellant, said, "This is the question that the foreman of the jury asked: Was the gun a double barrel action or a single barrel action and was it cocked?" After the question had been answered, the judge turned to the jury and said, "Are there any other questions?" Thereafter, some seven questions were asked by the jury. Counsel for Appellant interposed objections and timely moved for a mistrial "... on the basis of the exchange between the jury and the witness." The motion was overruled.

We have reviewed all questions and answers incident to the jury's interrogation and find no prejudice. Accordingly, there is no reversible error.

Inasmuch as the matter of jurors seeking to ask questions of witnesses involves a reoccurring problem at trials, we elaborate. In The State Trial Judge's Book, published under the sponsorship of the National Conference of State Trial Judges and the Joint Committee for Effective Administration of Justice (1965), we find the following, of which we approve:

The effort of a juror to ask a question of a witness during the trial of the case presents a delicate problem. Most courts hold that jurors should not be permitted to propound direct questions to the witnesses for the reason that there is no way of controlling questions directed at non-material prejudicial matter. Questions by juror may be embarrassing to a witness, the judge, or the attorney. They may adversely influence other jurors and have a prejudicial effect on the case. They always make it difficult or embarrassing to object.

Many good suggestions have been advanced as to how to handle the situation when it arises, short of an arbitrary refusal to permit a juror to ask any questions. The juror may be told that if he will be patient the matter of his concern will very likely be covered in due course by further questions on direct or cross-examination. He may be advised to...