State v. Dawkins, 22964

• Decision Date: 05 December 1988
• Docket Number: No. 22964,22964
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Thomas Eugene DAWKINS, Appellant. . Heard

Page 298

377 S.E.2d 298

297 S.C. 386

The STATE, Respondent, v. Thomas Eugene DAWKINS, Appellant.

No. 22964.

Supreme Court of South Carolina.

Heard Dec. 5, 1988.

Decided Feb. 21, 1989.

John D. Delgado, Columbia, for appellant.

Atty. Gen. T. Travis Medlock, Asst. Attys. Gen. Harold M. Coombs, Jr. and William Edgar Salter, III, and Sol. James C. Anders, Columbia, for respondent.

TOAL, Justice:

The defendant, Gene Dawkins, was convicted of two counts of criminal sexual conduct against a minor. He was acquitted of two other counts of the same crime. Dawkins was sentenced to two 30 year terms, to be served consecutively. The issues raised on appeal involve acts of alleged prosecutorial misconduct.

Before discussing the issues of this case, we note that this matter might never have been appealed nor would this conviction be subject to attack but for the overzealousness of the assistant solicitor. This case is a prime example of a prosecutor striving to obtain a conviction regardless of the costs, only to have the conviction reduced to vulnerability because of the improper tactics utilized. Had it not been for the wisdom and expertise of the trial judge, the errors committed by the prosecutor could not have been cured.

We caution prosecutors throughout this state to be mindful of the words of Mr. Justice Sutherland:

"The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor--indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one."

Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935).

A. INDICTMENTS

The defendant argues that his motion to quash the indictments should have been granted. He contends that four indictments were vindictively filed against him after he refused to plead guilty to one indictment. He also argues that the indictments should have been quashed because they were obtained after the assistant solicitor appeared before the grand jury. We disagree.

The grand jury, after hearing testimony from prosecuting witnesses, originally returned on July 14, 1986, one indictment for criminal sexual conduct for acts allegedly occurring sometime between February 1982 and April 1984. In October 1986, Dawkins' attorney, the solicitor and a private attorney allegedly representing the minor's family, met to negotiate a plea bargain. The solicitor recommended a 15 year sentence for a guilty plea on the one count indictment. This proposal was rejected by Dawkins.

On October 14, 1986, Dawkins filed a Motion in Limine, by which he inter alia, sought to quash the July 14 indictment based on the lack of specificity as to the time, day, month and year for the crime.

On October 16, 1986, the assistant solicitor appeared before the grand jury without any prosecuting witnesses. Four separate indictments were returned, each alleging criminal sexual conduct in the first degree occurring on specific dates.

It is clear that an accused may not be punished for exercising a constitutional right. Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic kind. Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). The United States Supreme Court, however, has also stated that there is no presumption of prosecutorial vindictiveness when a prosecutor files additional charges after a defendant refuses a plea bargain. United States v. Goodwin, 457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982).

In Goodwin, the Court reasoned that an initial indictment does not define the extent of the legitimate interest in a prosecution; just as a prosecutor may forego charges in an original indictment to save the time and expense of a trial, a prosecutor may file additional charges if the initial expectation that a defendant would plead guilty to lesser charges proves unfounded. The Supreme Court further stated that an 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. The mere fact that a defendant refuses to plead guilty and forces the government to prove its case is insufficient to warrant a presumption that subsequent charging decisions are unjustified.

The assistant solicitor explained at trial that the four superceding indictments were obtained in response to defendant's motion to quash the original indictment because it lacked specificity as to the time, day, month and year for the crime. In addition, the trial court noted that he recalled the solicitor's office moving for a continuance on defendant's motion to quash the original indictment and that the assistant solicitor stated at that time that the original indictment was too broad and needed to be resubmitted to the grand jury. Furthermore, the original indictment cited as the date "between February 1982--April 1984" and the four superseding indictments cite specific one week periods.

In the absence of a presumption of vindictiveness, the prosecutor submitted sufficient evidence that indicated a reason other than vindictiveness for the procurement of the four indictments. Therefore, the trial judge properly refused defendant's motion to quash.

In regard to defendant's argument that the indictments should be quashed because they were procured with the assistant solicitor as the only witness, we conclude that the motion to quash was properly denied under the facts of this case.

This Court has stated that "[t]he practice of using a solicitor or other officer of the state as the sole witness before the grand jury to provide only a summary of the evidence could be abused and we strongly suggest it be abandoned unless no alternative is available." State v. Capps, 276 S.C. 59, 275 S.E.2d 872 (1981). However, this Court has also stated that this does not necessarily mean that it is error for a solicitor to be the sole witness before the grand jury. State v. Williams, 280 S.C. 305, 312 S.E.2d 555 (1984).

In this case, the assistant solicitor was the only witness before the grand jury when the four indictments were procured. The facts of this case, however, distinguish it from previous cases. Here, the grand jury was the same grand jury that returned the original indictment in July and was very familiar with the facts of the case because they had previously received extensive testimony from the investigating officer when the first indictment was returned. Although there was a period of several months between the officer's testimony and the return of the four indictments, the alleged facts of this case were such that they would probably not be easily forgotten. The grand jury heard testimony that in 1982, the defendant, a fellow church member of the victim, befriended Pamela and her family. After establishing a very close and trusting relationship with the family, the defendant began sexually abusing Pamela, then thirteen years old. The defendant would restrain Pamela with leather straps, rape her and force her to perform oral sex. The grand jury also heard testimony wherein it was alleged that the defendant cut Pamela repeatedly with razor blades, burned her with cigarettes and on one incident placed a gun inside her vagina. The defendant would also show Pamela human body parts contained in jars and threaten that if she told anyone about the abuse, he would kill one of her family members. This abuse allegedly continued over a two year period. The fact that the assistant solicitor only appeared before the grand jury for twenty minutes to...