State v. Brisbon, 24482

• Court: United States State Supreme Court of South Carolina
• Citation: 474 S.E.2d 433,323 S.C. 324
• Docket Number: No. 24482,24482
• Parties: The STATE, Respondent, v. Johnny Miller BRISBON, Appellant. . Heard
• Decision Date: 07 May 1996

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474 S.E.2d 433 323 S.C. 324 The STATE, Respondent,
v.
Johnny Miller BRISBON, Appellant. No. 24482. Supreme Court of South Carolina. Heard May 7, 1996.
Decided Aug. 19, 1996.

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[323 S.C. 325] Assistant Appellate Defender Robert M. Pachak, of South Carolina Office of Appellate Defense, Columbia, for Appellant.

Attorney General Charles Molony Condon, Assistant Deputy Attorney General Donald J. Zelenka, Assistant Attorney General Charles F. Reid, Columbia; Solicitor Donald V. Myers, Lexington, for Respondent.

TOAL, Acting Chief Justice:

Johnny Miller Brisbon appeals his conviction for murder. We affirm.

FACTUAL/PROCEDURAL BACKGROUND

Bertha Mae Grooms ("Victim") was last seen alive the weekend of June 12, 1992. Brisbon had known Victim for approximately twenty-five years and had dated her for a number of years. Brisbon came by Victim's home and picked her up on Friday, June 12, 1992, as was his custom on Friday evenings. She did not return.

On July 15, 1992, hunters came across Victim's skeletal remains in a wooded area of Lee County. Two days later, an autopsy was performed, which revealed that wounds had been inflicted to Victim's neck and abdomen. The pathologist testified the injuries may have resulted from a sharp weapon, such as a knife or axe, and that the cause of death was the penetrating wounds to the body.

On August 4, 1996, officers searched a storage building at the cemetery where Brisbon worked. They found a blood-stained sofa. Two days later, officers returned to the storage building and discovered an axe. There was blood on the axe head and the axe handle. Brisbon's bloody palm-print was on the handle of the axe.

Blood tests were performed on the blood found on the sofa and on the axe. Because of the condition of the blood samples, D.N.A. analysis could not be performed; however, it was possible to conduct Polymerase Chain Reaction testing. This test revealed that the type of blood found on the sofa and the axe excluded 91 percent of the North American

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black population. Victim was among the 9 percent of the black population that had the same type of blood as that found on the sofa and the axe.

Brisbon testified in his own defense. He declared he had picked up Victim on Friday, June 12th at approximately 5:00 p.m. At 11:00 p.m., he took Victim to a diner on Bluff Road. Brisbon further testified that at the diner, Victim said she saw her stepson, with whom she decided to go home. In reply, Victim's stepson testified he was not at the diner on June 12th. Furthermore, the owner of the diner testified he did not see Victim there that day.

The jury convicted Brisbon of the murder of Victim. Brisbon appeals, arguing that the trial court erred in:

1. refusing to grant a directed verdict where the State failed to present any substantial evidence that Brisbon committed[323 S.C. 327] the murder in Lexington County, and in refusing to instruct the jury with Brisbon's proposed charge on venue;

2. refusing to grant a directed verdict where the State failed to present any substantial evidence that Brisbon murdered Victim;

3. refusing to grant a mistrial for instructing the jury that in determining credibility, they could take into account whether defendant was forthright or hesitant;

4. refusing to grant a mistrial where the solicitor demonstrated with an axe in his closing argument before the jury.

LAW/ANALYSIS

A. VENUE: DIRECTED VERDICT AND PROPOSED JURY CHARGE

Brisbon raises two arguments relating to venue. He argues the trial court erred in not granting a directed verdict where the State failed to present any substantial evidence that Brisbon committed the murder in Lexington County. Further, he contends the court erred in refusing to instruct the jury with the proposed charge that venue must be proved beyond a reasonable doubt. Because both arguments fundamentally raise the issue of the degree of proof necessary to establish venue, we will address them together.

Although an accused has a right to be tried in the county in which the offense is alleged to have been committed, this right is not jurisdictional. State v. Evans, 307 S.C. 477, 415 S.E.2d 816 (1992). Venue in a criminal case need not be affirmatively proved if there is sufficient evidence from which it can be inferred. State v. Owens, 293 S.C. 161, 359 S.E.2d 275, cert. denied, 484 U.S. 982, 108 S.Ct. 496, 98 L.Ed.2d 495 (1987); State v. Horne, 282 S.C. 444, 319 S.E.2d 703 (1984); State v. Vareen, 223 S.C. 34, 74 S.E.2d 223 (1953). Evidence of venue, though slight, is sufficient in the absence of conflicting evidence and may be proved by circumstantial as well as direct evidence. State v. Wharton, 263 S.C. 437, 211 S.E.2d 237 (1975); State v. Henderson, 285 S.C. 320, 329 S.E.2d 448 (Ct.App.1985). Where acts essential to the offense are committed in different counties, the accused may be tried in either county. State v. McLeod, 303 S.C. 420, 401 S.E.2d 175 (1991); Wray v. State, 288 S.C. 474, 343 S.E.2d 617 (1986); State v. Allen, 266 S.C. 468, 224 S.E.2d 881 (1976); State v. Gasque, 241 S.C. 316, 128 S.E.2d 154 (1962). [323 S.C. 328] S.C.Code Ann. § 17-21-20 (1976) specifically covers the issue of venue where a person causes injury in one county and death occurs in another:

When any person shall be struck, wounded, poisoned or otherwise injured in one county and dies thereof in another any inquisition or indictment thereon found by jurors of either county shall be as good and effectual in law as if the stroke, wound, poisoning or other injury had been committed and done in the county in which the party shall die. And the person guilty of such striking, wounding, poisoning or other injury and every accessory thereto, either before or after the fact, shall be tried in the county in which such indictment shall be found and, if convicted, punished in the same mode, manner and form as if the deceased had suffered such striking, wounding, poisoning or other injury and death in the county in which such indictment shall be found.

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In Owens, we determined that where there were signs of a struggle at the victim's Horry County residence at which he was last seen, and where ransom money was demanded and delivered in Horry County, there was sufficient evidence to establish venue in Horry County. Owens, 293 S.C. 161, 359 S.E.2d 275...