State v. Daniels

• Decision Date: 10 October 2012
• Docket Number: No. 27180.,27180.
• Citation: 401 S.C. 251,737 S.E.2d 473
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Gregory DANIELS, Appellant. Appellate Case No.2010–159728.

401 S.C. 251

737 S.E.2d 473

The STATE, Respondent,

v. Gregory DANIELS, Appellant.Appellate Case No.2010–159728.

No. 27180.

Supreme Court of South Carolina.

Heard May 3, 2012.

Decided Oct. 10, 2012.

Appellate Defender Tristan M. Shaffer and Deputy Chief Appellate Defender Wanda H. Carter, both of South Carolina Commission on Indigent Defense, of Columbia for Appellant.

Attorney General Alan McCrory Wilson, Chief Deputy Attorney General John W. Mcintosh, Senior Assistant Deputy Attorney General Donald J. Zelenka, and Assistant Attorney General Brendan Jackson McDonald, all of Columbia, and Solicitor Edgar Lewis Clements, III, of Florence, for Respondent.

Justice PLEICONES.

Appellant was convicted of murder and possession of a weapon during a crime of violence and received concurrent sentences of life (murder) and five years (weapon). On appeal, he alleges the trial judge committed reversible error in charging the jury that they were acting “for the community” and that their verdict “will represent truth and justice for all parties that are involved.” We agree that these charges are erroneous, but because appellant did not properly preserve his issues for appeal, we affirm.

FACTS

The victim was shot at about 4:30 am on a Florence street. A witness who was to meet the victim testified that she heard a single gunshot and saw a person dressed in black clothing running away from the scene. There was testimony that appellant and the victim had argued at Shavonne's party. Shavonne did not observe the two fighting, but testified she was on the phone with the victim right before he was shot, and that he told her he was being followed by a man he had argued with at her party. Another witness testified that appellant had told him he had been hired to kill the victim. Appellant told this witness he had “done it” about an hour after the victim was killed.

Appellant and his girlfriend checked into a motel at about 5:35 am on the day of the murder. Excerpts from letters written to the girlfriend following appellant's arrest were introduced at trial. These letters suggested what she should tell people to give him an alibi. In one, he pointed out the absence of physical evidence to convict him, and in another asked her to contact his lawyer and suggests what to say, including the instruction that “it will help me and my bond hearing [sic] you are who I was with when they found him ...” In short, while the State's case lacked forensic and eyewitness evidence, there was nonetheless substantial evidence that appellant murdered the victim.

At the pre-charge conference, appellant objected to the trial judge's inclusion of a charge that “You and I are acting for the community and that is why we must see to it that the trial is fair and the verdict is just.” Appellant contended the “acting for the community” language was akin to a solicitor's improper golden rule argument, but did not object to the “fair and just” portion of this proposed charge. The judge declined to alter the “acting for the community” language. Appellant also objected to a different part of the proposed charge, which included the statement “[E]veryone is entitled to justice in this case,” arguing that charge diluted the State's burden of proof. The judge agreed to omit this “everyone” charge.

The jury was charged on the presumption of innocence and the State's burden of proof beyond a reasonable doubt. Later, they were charged “You and I are acting for the community,” and that “This court is of the confirmed opinion that whatever verdict you reach will represent truth and justice for all parties that are involved in this case.” Appellant renewed his pre-charge objection, but made no additional complaint about the charge.

ISSUES

1. Did the trial judge's charge include an improper “Golden Rule” instruction?

2. Did the trial judge's charge improperly shift the State's burden of proof or dilute it?

1. Golden Rule

Appellant argued to the trial judge that to the extent the jury was to be instructed that it and the judge were acting for the community, the charge was erroneous because it was akin to an improper Golden Rule argument. The judge disagreed. We affirm.

A ‘Golden Rule’ argument is one in which the jurors are asked to put themselves in the victim's shoes. It is improper because it is meant to destroy the jury's impartiality, and to arouse passion and prejudice. Brown v. State, 383 S.C. 506, 680 S.E.2d 909 (2009). A charge that the jury is acting for the community, however, is not similar to a Golden Rule argument in that it does not ask the jury to consider the victim's perspective. While appellant has not shown reversible error here, we caution the trial judge to restrict his jury instructions to matters of law.

2. Burden of Proof

On appeal, appellant contends the jury charge unconstitutionally shifted the burden of proof. He specifically objects to the part of the charge in which the judge stated it was his “confirmed opinion” that the verdict would represent “truth and justice for all parties.” To the extent appellant now complains about the “confirmed opinion” part of the charge, he is improperly attempting to expand on appeal the scope of his objection below. E.g., State v. Meyers, 262 S.C. 222, 203 S.E.2d 678 (1974). There was no objection to the “confirmed opinion” language at the charge conference, and appellant stood on his pre-charge objection after the jury instructions were given. It is axiomatic that an objection to a jury charge may not be raised for the first time on appeal. E.g. State v. Rios, 388 S.C. 335, 696 S.E.2d 608 (Ct.App.2010); Rule 20(b), SCRCrimP.

Appellant also now argues the trial judge erred in charging the jury that their verdict would represent the “truth and justice for all parties.” ¹ The State contends that there was no contemporaneous objection made at trial to this “truth and justice for all” language in the charge. We agree. It is axiomatic that a party cannot raise an objection to a jury charge for the first time on appeal. State v. Rios, supra;Rule 20(b), SCRCrimP.

Although the issue is not preserved, we instruct the trial judge to remove any suggestion from his general sessions charges that a criminal jury's duty is to return a verdict that is “just” or “fair” to all parties. Such a charge could effectively alter the jury's perception of the burden of proof, substituting justice and fairness for the presumption of innocence and the State's burden to prove the defendant's guilt beyond a reasonable doubt. Moreover, to a lay person, the “all parties involved” in a criminal case may well extend beyond the defendant and the State, and include the victim. These inaccurate and misleading charges risk depriving a criminal defendant of his right to a fair trial.

CONCLUSION

Appellant's convictions and sentences are

AFFIRMED.

Acting Justice E.C. BURNETT, III, concurs.

TOAL, C.J., concurring in result in a separate opinion in which KITTREDGE, HEARN, JJ., and Acting Justice E.C. BURNETT, III, concur.

Chief Justice TOAL.

I concur in the result reached by Justice Pleicones, but writing for a majority of the Court, find that Appellant's burden-shifting arguments are preserved. The adequacy of the trial court's entire overall instruction cured any possible constitutional deprivation. In addition, the State presented overwhelming evidence of Appellant's guilt, rendering any error in the jury instruction harmless.

I. PRESERVATION

At trial, defense counsel objected to portions of the trial court's proposed jury instruction. First, defense counsel took exceptionto the trial court's proposed statement that “everyone is entitled to justice in this case.”

Defense Counsel: We would argue that this is burden shifting. The fact that we don't feel like the state is necessarily entitled to justice. Instead, they have the burdenof proving defendant guilty beyond a reasonable doubt. And we would cite Cage v. Louisiana [498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990) ], which suggest that the jury instructions that dilute the burden of proof on the government prove [sic] beyond a reasonable doubt violate due process and constitute reversible error.

....

The Court: I was going to say why isn't the State entitled to justice just as any defendant who comes into court is entitled to justice. Being entitled to justice doesn't remove a burden or lessen a burden. I am going to note your exception to that, but....

The trial court then agreed to remove the objectionable language:

But it's fairly—you know, that paragraph you are referring to where it starts with that everyone is entitled to justice, I will take that out and just put your verdict in this case cannot be based on sympathy, compassion or prejudice, just doesn't seem to be that big a deal.

However, the trial court issued a jury instruction containing substantially similar language:

Your verdict in this case is not to be based on sympathy, compassion, prejudice or some other emotion or other consideration that is not found in the evidence. This court is of the confirmed opinion that whatever verdict you reach will represent truth and justice for all parties that are involved in this case.

(emphasis added).

Defense counsel also objected to the trial court's proposed language that the judge and jury were “acting for the community,” and argued that this statement asked the jury to act as the “conscious of the community, similar to a golden rule argument.” The court refused to remove this language from his instruction, “I'm going to note your exception to the language, I'm going to leave that language in.”

The Court then stated the following during his instruction:

You are not called to serve as jurors very often. And the proper performance of the duty requires each of you to reach the hithe [sic] of freeing your mind of all improper influences. You and I are acting for the community and that is why we see to it that this trial is fair and the verdict is just.

Following the completion of the...