State v. Bell

• Citation: 646 S.E.2d 888
• Decision Date: 04 June 2007
• Docket Number: No. 4251.,4251.
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. Braxton J. BELL, Appellant.

646 S.E.2d 888

The STATE, Respondent, v. Braxton J. BELL, Appellant.

No. 4251.

Court of Appeals of South Carolina.

Submitted May 1, 2007.

Decided June 4, 2007.

Deputy Chief Attorney for Capital Appeals Robert M. Dudek of the South Carolina Commission on Indigent Defense, of Columbia, for Appellant.

Attorney General Henry D. McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Special Assistant Attorney General Amie L. Clifford, all of Columbia; and Solicitor Christina T. Adams, of Anderson, for Respondent.

HUFF, J.:

Appellant, Braxton J. Bell, was convicted of voluntary manslaughter and possession of a firearm during the commission of a violent crime. He appeals, asserting the trial judge erred in (1) failing to disqualify the Tenth Judicial Circuit Solicitor's Office and (2) refusing to dismiss a juror. We affirm.¹

FACTUAL/PROCEDURAL BACKGROUND

Braxton Bell was indicted for murder and possession of a firearm during the commission of a violent crime in regard to the shooting death of Jonathan Gambrell at the Newport Commons apartment complex in Anderson County. The case proceeded to trial, at which time Bell presented a claim of self-defense. The jury convicted Bell of the lesser offense of voluntary manslaughter, as well as the weapon possession charge. The trial court sentenced him to thirty years for manslaughter and five years for possession of the firearm during the commission of a violent crime.

LAW/ANALYSIS

Bell raises two issues on appeal. He contends the trial court erred in refusing to disqualify the Tenth Judicial Circuit Solicitor's Office from prosecuting the case because a current investigator with the Solicitor's Office was a former investigator for the Anderson County Public Defender's Office who had interviewed appellant while with the Public Defender's Office. He further maintains the trial court erred in refusing to dismiss a juror who reported she was asked by a daycare worker whether she was serving on the case where the daycare worker's cousin had been shot.

I. Disqualification of Solicitor's Office

The record shows that at the start of the case, Bell made a motion to disqualify the Solicitor's Office from prosecuting his case arguing there was a conflict of interest based on the investigator for the Solicitor's Office, Jimmy Penn, having previously interviewed Bell while Penn was an investigator for the Public Defender's Office. Counsel for the defense stated it was his belief that "there was information transferred from Mr. Penn to the Solicitor's Office" resulting in actual prejudice to Bell. Counsel further asserted, even if the court found no actual prejudice, the Solicitor's Office should be disqualified based on "the perception of a conflict" in Penn "switching from one side to the other." Finally, counsel maintained failure to disqualify the Solicitor's Office would violate Bell's constitutional right to effective assistance of counsel because when Penn "switched sides" it caused a chilling effect on Bell being able to talk to his attorneys.

The trial court held an in camera hearing on the matter at which time the defense presented Bell's testimony. Bell stated that on November 16, 2004, Penn came to the jail to talk to him about his case. Penn identified himself at that time as an investigator with the Public Defender's Office. Penn asked Bell some questions and Bell told him he was being charged with murder, that he and the victim had been arguing, and that someone else shot the victim and he, Bell, ran with the others. This information was recorded on the bottom of an interview sheet. Penn spoke with Bell for about fifteen or twenty minutes. Bell testified that Penn only came to see him that one time, and sometime after January 1, 2005, he learned from other inmates that Penn had become an investigator for the Solicitor's Office. Bell maintained that he felt betrayed when Penn switched sides and that when a different attorney appeared to represent him at his preliminary hearing than the one who had been to see him twice before, he felt betrayed again. According to Bell, this created a difficulty in him discussing the case with his current attorney, and the first time they discussed self-defense was approximately two weeks before trial.

The State then called Penn to the stand to testify in the hearing. Penn stated that he began working for the Solicitor's Office on January 12, 2005, having previously worked for the Anderson County Public Defender's Office. Penn acknowledged it was his handwriting on the client interview sheet² dated November 16, 2004. However, he stated it was routine for him to go to the jail and speak with clients and he would see approximately ten to twenty clients a week. He did not remember what he had written on the document until defense counsel stated what the interview sheet included. Penn stated he remembered a bond reduction request form for Bell that had been faxed to him at the Solicitor's Office from the Public Defender's Office. He recalled he brought the matter to the prosecuting attorney's attention, who relayed to Penn there was no change of circumstances justifying a reduction in bond, which Penn then relayed to the Public Defender's Office. His only other involvement with this case was to serve subpoenas on witnesses which he did because the prosecuting attorney's investigator was off work that week. He further denied ever speaking to the other investigator about the case and denied talking to the witnesses he served about the case. When asked if he had shared any confidential information with the solicitor that he learned from Bell at the interview, Penn replied, "Absolutely not." He further denied having any confidential conversations with anyone else involved in the matter.

The trial court found there was no prejudice to Bell, noting he believed Penn did not even remember the interview and, even if he had, that information was not unduly prejudicial. It found that Penn's service of subpoenas was a ministerial act and the evidence showed Penn did not take that opportunity to discuss the case with anyone. It further determined there was nothing Penn did in response to the bond reduction request that would amount to prejudice to Bell. Finally, the court found any chilling effect on Bell's cooperation with his attorney was an unreasonable reaction. The court therefore denied Bell's motion to disqualify the Solicitor's Office.

On appeal, Bell contends the trial court erred in failing to disqualify the Solicitor's Office based on the fact that Bell initially denied to Penn that he shot the victim, and this denial was clearly inconsistent with the self-defense claim he presented at trial. He argues his right to effective representation was adversely affected by Penn's betrayal, that Penn's later participation in his prosecution created more than just an appearance of impropriety, and that there was no clear evidence that no actual breach of confidence occurred. Bell also asserts Penn's participation likely led the Solicitor's Office to feel, because of Bell's initial statement to Penn, that Bell's claim of self-defense was not genuine, therefore adversely affecting the trial and any effort to plea bargain his case. He thus maintains the trial court abused its discretion in refusing to disqualify the Solicitor's Office and he is therefore entitled to a new trial. We disagree.

In State v. Smart, 278 S.C. 515, 299 S.E.2d 686 (1982), overruled on other grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991), our supreme court addressed the standard for disqualification of a Solicitor's Office where an attorney in that office had been employed by the Public Defender's Office during the pendency of charges against the appellant. There, the court rejected the standard of a presumption of betrayal from mere allegation of successive adverse representation resulting in a per se disqualification. Id. at 518, 299 S.E.2d at 688. Instead, the court adopted the requirement of a showing of actual prejudice to the defendant's case. Id. at 518-19, 299 S.E.2d at 688. Finding no evidence that any secrets or confidences of Smart were revealed, the court affirmed the denial of Smart's motion for disqualification. Id. at 520-521, 299 S.E.2d at 689. Thereafter, in State v. Chisolm, 312 S.C. 235, 439 S.E.2d 850 (1994), our supreme court again articulated that an appellant who seeks disqualification of a Solicitor's Office must show actual prejudice. Id. at 238, 439 S.E.2d at 852.

Bell attempts to distinguish Smart on the basis that the attorney involved in that case did not discuss evidentiary matters or trial strategy with Smart while working for the defense, whereas investigator Penn interviewed Bell regarding the circumstances surrounding the incident. He argues that involvement with the defense, along with Penn's later involvement in the request for bond reduction and service of subpoenas while working for the Solicitor's Office, adversely affected the trial of his case and any effort to plea bargain. We disagree.

In Smart, attorney DuTremble was assigned to prepare a brief on behalf of Smart while working for the Public Defender's Office. Thereafter, attorney DuTremble's work for the prosecution consisted of research on a narrow issue of law regarding admissibility of certain psychiatric evaluations. Our supreme court, noting attorney DuTremble denied under oath that he personally spoke with Smart or that he discussed evidentiary matters or trial strategy with Smart's counsel, determined the facts failed to suggest betrayal of any secrets or confidences. Smart, 278 S.C. at 519, 299 S.E.2d at 688-89. While, in the case at hand, investigator Penn admitted the client interview document regarding Bell was in his handwriting, he denied remembering the contents of the document, stating he interviewed anywhere from ten to twenty clients a week when he worked for the Public Defender's...