State v. Davis, 20271
| Decision Date | 12 August 1976 |
| Docket Number | No. 20271,20271 |
| Citation | 227 S.E.2d 662,267 S.C. 283 |
| Court | South Carolina Supreme Court |
| Parties | The STATE, Respondent, v. Lawrence DAVIS, Appellant. |
Richard G. Dusenbury, Florence, for appellant.
Atty. Gen. Daniel R. McLeod and Asst. Attys. Gen. Joseph R. Barker and Richard P. Wilson, Columbia, and Sol. T. Kenneth Summerford, Florence, for respondent.
Lawrence Davis appeals from his conviction of murder while in the commission of robbery while armed with a deadly weapon. He was sentenced to die by electrocution under S.C.Code § 16--52 (Cum.Supp.1975).
Davis seeks a new trial upon various grounds and also attacks the constitutionality of his sentence. We affirm his conviction of murder but reverse the sentence imposed and remand for the purpose of sentencing Davis to life imprisonment.
First, Davis contends the trial court erred in refusing to order a mistrial because he was never arraigned on the particular indictment upon which he was convicted.
In April of 1974, Davis was indicted in Florence County for (1) murder while in the commission of robbery while armed with a deadly weapon and (2) willful, deliberate, and premeditated murder. He was arraigned on this indictment and the case was tried during the April term of court, but no final judgment resulted because of a mistrial, ordered by reason of jury misconduct.
Subsequently, at the June term of court, Davis was indicted for murder while in the commission of robbery while armed with a deadly weapon. He was tried on this indictment, without arraignment, and found guilty by a jury.
During the trial, Davis moved for a mistrial on the ground he had never been arraigned on the June indictment. A lengthy discussion followed during which defense counsel 1 state that neither he nor Davis knew that a new indictment had been obtained until sometime after the trial began. Counsel told the court he had assumed that the April indictment was being used before the trial began.
The solicitor stated to the court that a new indictment was obtained in order to add another defendant. 2 He also explained that at the first trial the second charge was deleted from the indictment as well as the names of three other defendants, and that he made a duplicate indictment reflecting these changes and this indictment was used during the April trial. The solicitor, however, was unable to produce the duplicate indictment because it had been inadvertently destroyed when the June indictment was prepared.
The original indictment of the first trial was shown to the court and defense counsel, and it indicated Davis had been arraigned. 3 The solicitor told the court that the armed robbery murder charge of the April indictment, both the original and duplicate versions, was identical to the charge in the June indictment. Defense counsel agreed that the charges were identical. The motion for mistrial was then denied.
Davis argues that the want of arraignment at his June trial constituted a denial of his due process rights guaranteed by the South Carolina and United States Constitutions. The plain and simple answer to this argument is that the charge on whic he was tried in April was the identical charge on which he was tried and convicted two months later and the record indicates he was duly arraigned on this charge at the first trial. We do not think under these circumstances that Davis was deprived of any due process rights.
Davis also argues that rearraignment on the June indictment was essential to a valid conviction. This argument is based on the premise that an arraignment, at least for felonies, is regarded as a necessary or substantive part of a conviction. 22 C.J.S. Criminal Law § 407 (1961). In this respect it differs from the due process argument but it is apparent that both arguments are closely related. However, we find no merit in this contention either.
In State v. Stewart, 26 S.C. 125, 1 S.E. 468 (1887), this Court held that a second arraignment was not necessary at the subsequent trial after a mistrial. Accord, 22 C.J.S. Criminal Law § 409 (1961). Similarly, a second arraignment is not necessary after reversal of a conviction and remand. State v. Hewitt, 206 S.C. 409, 34 S.E.2d 764 (1945). Since Davis was arraigned on the armed robbery murder charge at the first trial, there was no need, therefore, for a second arraignment and his conviction was valid. 4
Next Davis asserts that the trial court erred in refusing to order a mistrial because of alleged misconduct of the solicitor.
Davis objects to several statements made by the solicitor during his closing argument to the jury. After an examination of these statements, we conclude the trial court did not abuse its discretion in failing to order a mistrial. The alleged inflammatory and prejudicial nature of these statements is not supported by the record.
Davis nex contends that the trial court erred in restricting the scope of cross-examination of a reply witness for the State.
The reply testimony of the witness, Johnny Rooks, contradicted certain statements of two defense witnesses on matters involving Sammy Davis. After Rooks was asked several questions on cross-examination, the State objected to the questioning on the ground it was unrelated to the reply testimony of the witness and was irrelevant. The following then took place:
The cross-examination of Rooks continued without any further objections or restrictions.
Davis contends his federal constitutional right of confrontation was violated and that the trial court abused its discretion in restricting the cross-examination of Rooks to his reply testimony.
Arguably, these...
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