State v. Benjamin

Decision Date02 July 2001
Docket NumberNo. 25316.,25316.
Citation345 S.C. 470,549 S.E.2d 258
PartiesThe STATE, Respondent, v. Franklin A. BENJAMIN, Appellant.
CourtSouth Carolina Supreme Court

Chief Attorney Daniel T. Stacey, of South Carolina Office of Appellate Defense, of Columbia, for appellant.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, Senior Assistant Attorney General William E. Salter, III, all of Columbia, and Solicitor Walter M. Bailey, of Summerville, for respondent.

WALLER, Justice:

Benjamin was convicted of murder and armed robbery and respectively sentenced to life and thirty years. We affirm.


On May 7, 1997, Benjamin and a co-defendant, Tyrone Aiken, robbed the Sweetwater Citgo convenience store in Calhoun County. Aiken shot and killed the store's employee, Dale Walker, and the two stole approximately $100.00 from the register. Benjamin and Aiken then went, along with several accomplices who had waited in the car during the robbery, and bought alcohol and drugs with the stolen money. Several hours later, they robbed Dodger's Convenience store in Orangeburg County. Benjamin was arrested the following day and gave a statement to police in which he admitted his participation in the robberies but claimed Aiken had shot Walker. Benjamin was tried and convicted for the robbery and murder at Sweetwater Citgo.1

1. Was the trial court's jury instruction concerning duress misleading?
2. Was Benjamin's statement to police taken in violation of his right to remain silent?
3. Was evidence of the subsequent robbery of Dodger's store improperly admitted?

At trial, Benjamin testified he only participated in the robbery because Aiken threatened to shoot him if he didn't. Accordingly, the trial court charged the jury on the defense of duress, as follows:

And there's some talk about duress or coercion in this case. Let me tell you what coercion or duress is. Coercion means to excuse a criminal act coercion must be present, eminent, and of such a nature as to induce a reasonable apprehension of death or serious, serious bodily harm if the act is not done. There must be no reasonable way other than committing the crime to escape the threat of harm but I do charge you, Mr. Foreman, members of the jury, that under the law of South Carolina duress is not a defense to the charge of murder.2 It could be a defense to the charge of robbery or armed robbery.

Defense counsel objected to the language that duress could be a defense to robbery, asserting duress is, in fact a defense. The trial court declined further instructions, finding the jury had understood the charge as given.

A jury instruction must be viewed in the context of the overall charge. State v. Hughey, 339 S.C. 439, 529 S.E.2d 721 (2000). The test for the sufficiency of a jury charge is what a reasonable juror would have understood the charge to mean. Id.

Here, it is patent the judge's statement that duress "could be" a defense was simply an attempt to clarify for the jury that, although duress could not be a defense to murder, it could be a defense to robbery and armed robbery. We find reasonable jurors would have interpreted the charge this way, such that the trial court committed no error.3


Benjamin next asserts his statement to SLED Agent Mears was taken in violation of his right to remain silent contrary to Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). We disagree.

At a Jackson v. Denno4 hearing, Sheriff Jones testified that Benjamin was arrested at approximately 1:30 pm on May 8, 1997 and taken to the sheriff's office. According to Jones, when they got there, he asked Benjamin if "he wanted to talk with me," and Benjamin said "No." Jones did not question Benjamin anymore, nor did he advise Benjamin of his Miranda5 rights. Jones testified Benjamin never requested an attorney.

Jones contacted SLED Agent Mears, who was investigating the case, and advised Mears to meet them at the sheriff's office. Mears arrived at the sheriff's office at approximately 2:30 pm and was advised that Sheriff Jones had not interviewed Benjamin. Benjamin then agreed to talk to Mears and was advised of his Miranda rights. Benjamin gave oral and written statements confessing to the crime. At no time, according to Mears, did Benjamin request counsel.

Benjamin asserts his statement was taken in violation of his right to remain silent because it was taken by Agent Mears after Benjamin had indicated he did not wish to talk to Sheriff Jones.

In Michigan v. Mosley, supra,

the United States Supreme Court held that the fact that a suspect invokes his right to remain silent is not a permanent bar to police reinitiating contact with the suspect. The Court stated:

A reasonable and faithful interpretation of the Miranda opinion must rest on the intention of the Court in that case to adopt "fully effective means ... to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored. ..." The critical safeguard identified in the passage at issue is a person's "right to cut off questioning." Through the exercise of his option to terminate questioning he can control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation. The requirement that law enforcement authorities must respect a person's exercise of that option counteracts the coercive pressures of the custodial setting. We therefore conclude that the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his "right to cut off questioning" was "scrupulously honored."

423 U.S. at 102-104, 96 S.Ct. 321 (citations omitted, emphasis supplied).

Courts interpreting Mosley have set forth five factors to analyze to ascertain whether the defendant's right to cut off questioning was "scrupulously honored": (1) whether the suspect was given Miranda warnings at the first interrogation; (2) whether police immediately ceased the interrogation when the suspect indicated he did not want to answer questions; (3) whether police resumed questioning the suspect only after the passage of a significant period of time; (4) whether police provided a fresh set of Miranda warnings before the second interrogation; and (5) whether the second interrogation was restricted to a crime that had not been a subject of the earlier interrogation. Burket v. Angelone, 208 F.3d 172 (4th Cir.2000). See also Roundtree v. Commonwealth, 2000 WL 724026 (Va. App.2000); Wisconsin v. Badker, 240 Wis.2d 460, 623 N.W.2d 142 (2000); State v. Brooks, 505 So.2d 714, 722 (La.),cert. denied, 484 U.S. 947, 108 S.Ct. 337, 98 L.Ed.2d 363 (1987).

However, the Mosley factors are not exclusively controlling, nor do they establish a test which can be woodenly applied. State v. Koput, 134 Wis.2d 195, 396 N.W.2d 773, 776 (1986). Rather, the factors provide a framework for determining whether, under the circumstances, an accused's right to silence was scrupulously honored. Id.

"[A] second interrogation is not rendered unconstitutional simply because it involves the same subject matter discussed during the first interview." Jackson v. Wyrick, 730 F.2d 1177, 1180 (8th Cir.), cert. denied, 469 U.S. 849, 105 S.Ct. 167, 83 L.Ed.2d 102 (1984) (unless police wear down defendant by repeatedly questioning on same subject after invocation of rights, no violation of Miranda to reinterrogate); United States v. Finch, 557 F.2d 1234 (8th Cir.) (as long as new Miranda warnings are given and initial request to remain silent is scrupulously honored, statements from subsequent interrogations on same subject are admissible), cert. denied, 434 U.S. 927, 98 S.Ct. 409, 54 L.Ed.2d 285 (1977); Mills v. Commonwealth, 996 S.W.2d 473 (Ky.1999), cert. denied, 528 U.S. 1164, 120 S.Ct. 1182, 145 L.Ed.2d 1088 (2000) (no Miranda violation where defendant spoke with second officer, after invoking right to remain silent with first officer, though encounter with second officer came only about 20 minutes after invocation of right and involved same crime); State v. Pierce, 364 N.W.2d 801 (Minn.1985) (suspect reinterrogated 2 hours after initial attempt about same crime .... no undue pressure and defendant's right to cut off questioning was scrupulously honored); People v. Foster, 119 Ill.2d 69, 115 Ill.Dec. 557, 518 N.E.2d 82 (1987), cert. denied, 486 U.S. 1047, 108 S.Ct. 2044, 100 L.Ed.2d 628 (1988) (resumption of questioning 3 hours later about same crime); State v. Isaac, 465 So.2d 1384 (Fla.Dist.Ct.App.1985)(questioning resumed 1 hour, 40 minutes later about same crime). See also United States v. Schwensow, 151 F.3d 650, 659 (7th Cir.1998)

(constitutionality of subsequent police interview depends not on its subject matter, but rather on whether the police in conducting the interview sought to undermine the suspect's resolve to remain silent.), cert. denied, 525 U.S. 1059, 119 S.Ct. 626, 142 L.Ed.2d 565 (1998).

Here, under the totality of the circumstances, we find Benjamin's right to remain silent was "scrupulously honored," such that he had the "right to cut off questioning at any time." No Miranda warnings were given by Sheriff Jones because Benjamin indicated he did not wish to speak to him. Upon being told Benjamin didn't want to talk to him, Sheriff Jones immediately ceased talking to him. Further, there was no immediate resumption of questioning by police. At least one hour later,6 Agent Mears arrived and read Benjamin his Miranda rights, having him initial after each sentence. Benjamin signed all the waivers, and gave both oral and handwritten confessions.

We concur with those courts, cited above, which hold that a subsequent interrogation concerning the same crime does not, in and of itself, violate an accused's right to remain silent. What is paramount is that police, under...

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