State v. Blakely, 5114.

• Decision Date: 23 May 2013
• Docket Number: No. 5114.,5114.
• Citation: 742 S.E.2d 29,402 S.C. 650
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. Teresa BLAKELY, Appellant. Appellate Case No.2011–196627.

402 S.C. 650

742 S.E.2d 29

The STATE, Respondent,

v. Teresa BLAKELY, Appellant.Appellate Case No.2011–196627.

No. 5114.

Court of Appeals of South Carolina.

Heard March 12, 2013.

Decided April 10, 2013.

Withdrawn, Substituted, and Refiled April 11, 2013.

Rehearing Denied May 23, 2013.

C. Rauch Wise, of Greenwood, for Appellant.

Attorney General Alan McCrory Wilson and Assistant Attorney General William M. Blitch Jr., both of Columbia, for Respondent.

PIEPER, J.

This appeal arises out of Appellant Teresa Blakely's ¹ conviction for accessory after the fact to a felony. Blakely was initially acquitted of murder. She was subsequently tried for accessory after the fact to a felony. On appeal, Blakely raises multiple claims arising under the due process clauses of the Fourteenth Amendment to the U.S. Constitution and Article I, § 3 of the South Carolina Constitution, including: (1) the vindictive prosecution in this matter is barred; (2) the indictment for accessory after the fact to a felony following Blakely's acquittal of murder violates due process; and (3) the State's inconsistent positions in two separate criminal proceedings against the same defendant is prohibited. We affirm.

FACTS

Blakely and Kim Alexander were involved in a relationship before and during Blakely's marriage to Houston Fuller, the victim herein. Paul Morris, Alexander's brother, claimed he became aware of derogatory statements Fuller made in reference to Alexander. As a result, Morris vowed to avenge those statements by physically accosting Fuller. Morris arrived at the residence of Fuller and Blakely, began a physical altercation with Fuller, and ultimately killed Fuller during the course of the altercation. Blakely's fourteen-year-old daughter and her daughter's fourteen-year-old boyfriend were in the house during the altercation. Blakely pretended to call 911, told the teenagers to stay down, and further told the teenagers Morris' fight with Fuller involved the “Mexican Mafia.” After checkingFuller and finding no pulse, Blakely helped Morris load Fuller's body into Fuller's truck. Morris drove Fuller's truck to a steep bank and rolled the truck with the body down the embankment. Morris got into the vehicle driven by Blakely and Blakely dropped Morris off at a convenience store.

The State indicted Blakely for murder based on the theory that she aided and abetted Morris in killing Fuller. After a four-day trial, the jury rendered a not guilty verdict. After Blakely's acquittal, Morris pled guilty to voluntary manslaughter. Subsequently, Blakely was indicted for accessory after the fact to a felony and tried without a jury. Blakely moved the trial court to quash the indictment due to multiple violations of due process.² The trial court denied Blakely's motion to quash the indictment. After a bench trial, the court convicted Blakely and sentenced her to eight years, suspended upon the service of four years with three years' probation. This appeal followed.

STANDARD OF REVIEW

In criminal cases, an appellate court sits to review only errors of law, and it is bound by the trial court's factual findings unless the findings are clearly erroneous. State v. McEachern, 399 S.C. 125, 135, 731 S.E.2d 604, 609 (Ct.App.2012). This court simply determines whether the trial court's factual findings are supported by any evidence. State v. Wilson, 345 S.C. 1, 6, 545 S.E.2d 827, 829 (2001). Appellate courts review questionsof law de novo. State v. Whitner, 399 S.C. 547, 552, 732 S.E.2d 861, 863 (2012).

First, Blakely argues the prosecution for accessory after the fact to a felony is the result of vindictive prosecution when the State could have originally indicted Blakely for both murder and accessory after the fact but, instead, only proceeded on the second indictment after Blakely exercised her right to a trial by jury and was acquitted of murder. We disagree.

The felony of murder is the killing of any person with malice aforethought, either express or implied. S.C.Code Ann. § 16–3–10 (2003). In a murder case, the corpus delicti consists of two elements: (1) the death of a human being; and (2) the criminal act of another in causing that death. State v. Weston, 367 S.C. 279, 293, 625 S.E.2d 641, 648 (2006). Before an accused may be found guilty of being an accessory after the fact to a felony, the following elements must exist: (1) the felony has been completed; (2) the accused must have knowledge that the principal committed the felony; and (3) the accused must harbor or assist the principal felon. State v. Legette, 285 S.C. 465, 466, 330 S.E.2d 293, 294 (1985). “The assistance or harboring rendered must be for the purpose of enabling the principal felon to escape detection or arrest.” Id. at 467, 330 S.E.2d at 294.

“The common law traditionally categorized the participants in a felony as accessory before the fact, principal first, principal second, and accessory after the fact.” William Shepard McAninch, W. Gaston Fairey, and Lesley M. Coggiola, The Criminal Law of South Carolina 410 (5th ed.2007). Generally, under the common law, liability as an accessory essentially “shadowed” that of the principal. See State v. Massey, 267 S.C. 432, 443, 229 S.E.2d 332, 338 (1976) (“At common law an accessory could not be convicted unless his principal had been convicted.”). In modern jurisprudence, principals and accessories have generally merged, with an exception for an accessory after the fact. SeeS.C.Code Ann. § 16–1–40 (2003) (“A person who aids in the commission of a felony or is an accessory before the fact in the commission of a felony ... is guilty of a felony and, upon conviction, must be punished in the manner prescribed for the punishment of the principal felon.”). This means that, upon proper notice and proof, an accessory who provides any assistance may be treated the same as if he was the principal of the crime, but the accessory may not be convicted as both. See State v. Sheriff, 118 S.C. 327, 328, 110 S.E. 807, 807 (1922) (noting the common law and the criminal code recognize the “distinction between principals and accessories before the fact and, while the punishment is the same for each, that does not change the essential distinction or relieve the necessity of the appropriate allegations in an indictment”). Today, the accessory's culpability no longer shadows that of the principal. Accordingly, an accessory may be convicted even if the principal is not charged, is acquitted, or is not yet prosecuted. See Massey, 267 S.C. at 444, 229 S.E.2d at 338 (noting “the conviction of the principal is no longer a condition precedent to the conviction of an accessory”).

An exception to these modern notions of criminal liability applies to an accessory after the fact. While an accessory before the fact may be treated like a principal upon proper proof, an accessory after the fact is not generally treated like a principal of the crime. SeeS.C.Code Ann. § 16–1–55 (2003) (outlining lower classifications of punishment for persons convicted of the offense of accessory after the fact to a felony as compared to punishment for the principal felon); State v. Good, 315 S.C. 135, 139, 432 S.E.2d 463, 466 (1993) (holding there was no error in refusing to charge accessory after the fact because “there is no exclusionary situation which eliminates one [defendant] or the other from having participated in the murder as a principal.”); State v. Fuller, 346 S.C. 477, 481, 552 S.E.2d 282, 284 (2001) (finding the defendant was not entitled to a jury instruction on accessory after the fact to murder, as the evidence did not eliminate the defendant as a principal first); Vergara v. State, 287 Ga. 194, 695 S.E.2d 215, 218 (2010) (“A person cannot be both a party to a crime and an accessory after the fact.” (internal quotation marks omitted)). Moreover, accessory after the fact to a felony is not a lesser-included offense of murder. Fuller, 346 S.C. at 481, 552 S.E.2d at 284;see Good, 315 S.C. at 138–39, 432 S.E.2d at 465–66 (noting accessory after the fact is not a lesser-included offense of any of the offenses with which the defendant was charged, including murder, armed robbery, grand larceny of a motor vehicle, and criminal conspiracy). Accordingly, double jeopardy does not attach under these facts. ³See State v. Parker, 391 S.C. 606, 612, 707 S.E.2d 799, 801 (2011) ( “Under the law of double jeopardy, a defendant may not be prosecuted for the same offense after an acquittal, a conviction, or an improvidently granted mistrial.” (emphasis added) (internal quotation marks omitted)).

Next, we review the claim of vindictive prosecution. In State v. Fletcher, 322 S.C. 256, 258–59, 471 S.E.2d 702, 704 (Ct.App.1996), this court was presented with a question regarding whether prosecutorial vindictiveness was indicated by the actions of the solicitor. “It is a due process violation to punish a person for exercising a protected statutory or constitutional right.” Id. at 259, 471 S.E.2d at 704 (citations omitted). However, “punishment of the offender is recognized as a proper motivation for a sentencing trial judge or a prosecutor.” Id. at 260, 471 S.E.2d at 704. The presence of a punitive motivation “does not provide an adequate basis for distinguishing governmental action that is fully justified as a legitimate response to perceived criminal conduct from governmental action that is an impermissible response to noncriminal, protected activity.” Id. “[A]n initial decision by the prosecutor should not freeze future conduct, because the initial charges filed by a prosecutor may not reflect the extent to which an individual is legitimately subject to prosecution.” State v. Dawkins, 297 S.C. 386, 389, 377 S.E.2d 298, 300 (1989). A prosecutor “has discretion in choosing how to proceed with a case, including whether to prosecute in the first place and whether he brings it to trial or offers a plea bargain.” State v. Langford, 400 S.C. 421, 435 n. 6, 735 S.E.2d 471, 479 n. 6 (2012).

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