State v. Brazell, No. 24545

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: BURNETT
• Citation: 325 S.C. 65,480 S.E.2d 64
• Parties: The STATE, Respondent, v. Ross K. BRAZELL, Appellant. . Heard
• Decision Date: 17 September 1996
• Docket Number: No. 24545

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480 S.E.2d 64 325 S.C. 65 The STATE, Respondent,
v.
Ross K. BRAZELL, Appellant. No. 24545. Supreme Court of South Carolina. Heard Sept. 17, 1996.
Decided Jan. 13, 1997.

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[325 S.C. 70] Assistant Appellate Defender Robert M. Dudek, of South Carolina Office of Appellate Defense, Columbia; and Martin Banks, St. Matthews, for appellant.

Attorney General Charles Molony Condon, Assistant Deputy Attorney General Donald J. Zelenka, Assistant Attorney General Charles F. Reid, Columbia; and Solicitor Walter M. Bailey, Jr., Summerville, for respondent.

BURNETT, Justice:

Ross Brazell appeals his conviction of armed robbery and murder. Brazell claims his due process rights and his right to a speedy trial were violated. He also asserts the trial judge erred by not directing a verdict and by admitting photographs of the crime scene into evidence. We disagree and affirm.

Facts

On February 4, 1987, John Jeffers was robbed and murdered on a roadside in Calhoun County. Ross Brazell was arrested on February 23, 1987, and charged with the armed robbery and murder. While awaiting trial, Brazell was detained in jail. The indictment on these charges was nol prossed on January 26, 1988, with leave to refile.

In 1991, the prosecution reopened the investigation. The State served an arrest warrant on Brazell in December 1991 while he was in prison for another crime. Brazell was re-indicted by the grand jury in April 1992 only for the murder of Jeffers. Subsequent to this indictment Brazell filed motions for a speedy trial and dismissal for pre-indictment delay.

On June 22, 1994, the motions were heard. Brazell claimed that he filed several motions to dismiss beginning in January 1992. However, these motions are not included in the record on appeal. Brazell's motion to dismiss for pre-indictment delay was denied. His motion for a speedy trial was conditionally granted by scheduling an August 1994 trial

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date. The [325 S.C. 71] prosecution was warned if it did not proceed with the trial, Brazell could renew his motion to dismiss.

On July 27, 1994, Brazell was re-indicted by the grand jury for the armed robbery of Jeffers. Brazell asserted his right to a speedy trial on this charge on August 1, 1994. The trial judge denied this motion because the length of delay had been less than one week and the delay was nonprejudicial. No motion to dismiss was filed.

Brazell was tried on August 1-4, 1994, for both armed robbery and murder. The State relied on circumstantial evidence to prove Brazell's guilt. The evidence showed Brazell was involved in a check forging scheme using Jeffers' identification and Brazell had taken out a life insurance policy on Jeffers' life shortly before the murder naming himself beneficiary.

On the day before the murder, Brazell called Jeffers' home and instructed Jeffers to be on the 1:00 p.m. bus from Columbia to Jacksonville, Florida. When Jeffers missed the bus, Brazell called and told Jeffers to catch the 8:00 p.m. bus. Jeffers' father testified that Brazell told him he was in Jacksonville; however, if Brazell had been in Jacksonville at the time of the second call, he could not have known Jeffers had missed the bus.

When Jeffers was dropped off at the Columbia bus station around 7:30 p.m., two witnesses testified they noticed an individual, who resembled appellant, standing beside a brown pickup truck across the street from the bus station talking on a pay telephone. Mr. L.C. Rish, who lives only a few minutes from the crime scene, testified that Jeffers and a companion, whom Jeffers referred to as "uncle," visited his house the evening of the murder. Brazell was Jeffers' uncle.

After 8:30 p.m. on February 4, 1987, a witness testified he saw a brown pickup truck without headlights pull to the side of the road at the murder scene and saw a white male exit the truck. Later in the evening, the witness testified that, as he passed the same area, he saw Jeffers' body. Another witness testified he saw the body on the roadside close to 9:00 p.m. that evening. The State presented evidence that it was possible for an individual to drive, within thirty-five minutes, [325 S.C. 72] from the Columbia bus station to the location in Calhoun County where Jeffers' body was found.

Several witnesses for the State described jewelry and money that Jeffers had in his possession when he was dropped off at the bus station. None of these items were found at the crime scene.

Brazell chose not to testify. However, several defense witnesses testified Brazell was in Conway, South Carolina on February 4, 1987.

Issues

I. Were Brazell's due process rights under the Fourteenth Amendment violated because of the pre-indictment delay?

II. Should the trial judge have dismissed the murder and armed robbery charges because Brazell was denied his right to a speedy trial?

III. Did the trial court err when it denied Brazell's motion for a directed verdict?

IV. Did the trial court err when it admitted into evidence photographs of the victim and crime scene?

I.

Brazell claims he was denied his due process rights under the Fourteenth Amendment of the United States Constitution because of the pre-indictment delay. We disagree.

The Due Process Clause plays a limited role in protecting against oppressive pre-indictment delay. United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). The United States Supreme Court has developed a two-prong inquiry when pre-indictment delay is alleged to violate due process. First, the defendant has the burden of proving the pre-indictment delay caused substantial actual prejudice to his right to a fair trial. Second, if the defendant shows actual prejudice, the court must consider the prosecution's reasons for the delay and balance the justification for delay with

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any prejudice to the defendant. If the court finds the delay was an intentional device to gain a tactical advantage over the accused, the court should dismiss the indictment. Id.; Howell v. Barker, 904 F.2d 889 (4th Cir.), cert. denied, 498 U.S. 1016, 111 S.Ct. 590, 112 L.Ed.2d 595 (1990); United States v. Automated Medical Laboratories, Inc., 770 F.2d 399 (4th [325 S.C. 73] Cir.1985). When balancing the prejudice and the justification, "[t]he basic inquiry then becomes whether the government's action in prosecuting after substantial delay violates 'fundamental conceptions of justice' or 'the community's sense of fair play and decency.' " Howell, 904 F.2d at 895 (quoting United States v. Automated Medical Laboratories, Inc., 770 F.2d 399, 404 (4th Cir.1985)).

Substantial prejudice requires a showing that "he was meaningfully impaired in his ability to defend against the state's charges to such an extent that the disposition of the criminal proceeding was likely effected [sic]." Jones v. Angelone, 94 F.3d 900 (4th Cir.1996). When the claimed prejudice is the unavailability of a witness, courts require that the defendant identify the witness he would have called; demonstrate, with specificity, the expected content of that witness' testimony; establish that he made serious attempts to locate the witness; and finally, show that the information the witness would have provided was not available from other sources. Howell, supra.

Brazell claims he was prejudiced in presenting a defense by the unavailability of his star alibi witness, Ray Williams. Brazell was unable to locate Williams before the trial. Brazell alleged Williams could have testified he was with Brazell all day in Conway, South Carolina on February 4, 1987, the day of the murder.

Brazell failed to show the evidence Williams would have provided was not available from other sources. Brazell had several other alibi witnesses testify he was in Conway during the time the murder was committed. Nothing in the record indicated Williams would have been more believable than the other defense witnesses. See Automated Medical Laboratories, Inc., supra (finding speculative whether missing witness' testimony would be...