State v. Drayton

• Decision Date: 10 March 1987
• Docket Number: No. 22778,22778
• Citation: 361 S.E.2d 329,293 S.C. 417
• Parties: The STATE, Respondent, v. Leroy Joseph DRAYTON, Appellant. . Heard
• Court: South Carolina Supreme Court

Page 329

361 S.E.2d 329

293 S.C. 417

The STATE, Respondent, v. Leroy Joseph DRAYTON, Appellant.

No. 22778.

Supreme Court of South Carolina.

Heard March 10, 1987.

Decided Sept. 8, 1987.

John H. Blume, III, of Bruck & Blume, and South Carolina Office of Appellate Defense, Columbia, for appellant.

Atty. Gen. T. Travis Medlock, Asst. Attys. Gen. Harold M. Coombs, Jr., and Amie L. Clifford, Columbia, and Solicitor Charles M. Condon, Charleston, for respondent.

LITTLEJOHN, Acting Associate Justice:

Appellant (Drayton) was convicted of murder, armed robbery and kidnapping. He was sentenced to death for the murder and to 25 years' imprisonment for armed robbery. ¹ This case consolidates Drayton's direct appeal and our mandatory review of the death sentence pursuant to S.C.Code Ann. § 16-3-25 (1985). We affirm.

This represents Drayton's second appeal. His first trial resulted in convictions on all charges and a sentence of death. This Court found reversible error and remanded for a new trial. State v. Drayton, 287 S.C. 226, 337 S.E.2d 216 (1985).

FACTS

In the early morning hours of Saturday, February 11, 1984, Drayton killed Rhonda Darlene Smith by firing a .38-caliber bullet into her head at close range.

Events leading to the murder are discerned from Drayton's confession and from testimony of witnesses who observed Drayton and Miss Smith together prior to the fatal shooting.

At approximately 11:30 p.m., Friday, February 10, Miss Smith drove her fiance's car to work. She then commenced her shift as cashier of a Kayo gas station and convenience store in the North Charleston area. Between 1:00 and 1:30 a.m. on Saturday, she had a telephone conversation with her fiance.

Thereafter, Drayton entered the station with a .357 magnum pistol. He then abducted Miss Smith in her fiance's car. After driving a distance Drayton, riding as a passenger, required her to return to the station. Upon arrival, they observed Gerald Condon, who testified that he was at the station to purchase cigarettes, but had found the station door locked. According to Condon, Miss Smith gave a signal with her hands indicating she would return and then drove back in the direction from which she had come.

Later, Drayton and Miss Smith did return, at which time customers were present. After these customers were served and had departed, Drayton again abducted Miss Smith. They drove to a secluded area along the Cooper River, where an abandoned coal trestle and pier were located.

In his confession Drayton states that the pistol fired accidentally when he lost his balance on the pier, causing his right hand to strike the railing. Miss Smith was killed immediately and fell from the pier into a grassy area immediately adjacent to the river. Drayton left, driving Miss Smith's car, and contacted a friend, Anthony J. Washington (Washington).

At daybreak Drayton and Washington returned to the scene where, according to Drayton's statement, Washington took money from Miss Smith's pockets. Money was also discovered missing from the store.

Miss Smith's body was discovered near the coal trestle between 10:00 and 11:30 a.m. on Saturday by a fisherman.

In his statement Drayton claims that he remained in the Charleston area until apprehended. Washington disputes this, testifying that he and Drayton placed stolen license plates on Miss Smith's car on February 11, and drove to New York City. While there Drayton gave the pistol to his uncle, who also arranged a sale of the car. Testimony of the uncle corroborates that of Washington.

Drayton and Washington returned to Charleston from New York by commercial bus on Tuesday, February 14. Drayton was arrested and charged on Thursday, February 16.

ISSUES

1. Did the trial court err in excusing two prospective jurors for cause based upon their oppositions to the death penalty?

2. Did the trial court err in qualifying two prospective jurors who had some prior knowledge of the facts of the case?

3. Did the trial court err in its opening remarks to the jury venire?

4. Did the trial court err in ruling admissible a State witness' in-court identification of Drayton?

5. Did the trial court err in ruling admissible Drayton's written statement?

6. Did the trial court err in refusing to charge robbery as a lesser included offense of armed robbery?

7. Did the trial court err in permitting the Solicitor to refer to Drayton's parole violations and in failing to give a limiting instruction as to their use?

8. Did the trial court err in failing to charge certain statutory mitigating circumstances on the ground the evidence may have shown Drayton was intoxicated at the time the crimes were committed?

I. EXCUSING JURORS BASED UPON OPPOSITION TO DEATH PENALTY

Drayton contends the trial court erred in excusing two jurors for cause. The first stated that he could not vote for the imposition of the death penalty if the victim were unknown to him. The second stated opposition to the death penalty and that "I just don't want to sign my name on any document saying I was part of something to take someone's life."

In State v. Patterson, 290 S.C. 523, 351 S.E.2d 853 (1986), this Court reviewed the recent decision of Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986) as to this issue. In Lockhart the Supreme Court held the Federal Constitution does not prohibit the removal for cause of prospective jurors whose opposition to the death penalty is so strong that it would prevent or substantially impair the performance of their duties at the sentencing phase of trial.

Both the jurors excused for cause in this case clearly fall within the rule in Lockhart and were properly excluded.

II. QUALIFICATION OF PROSPECTIVE JURORS WITH PRIOR KNOWLEDGE OF FACTS OF CASE

Drayton contends the trial court erred in failing to excuse for cause two prospective jurors with prior knowledge of the facts of the case. Drayton exercised peremptory strikes to remove these jurors and thereafter exhausted all his peremptory strikes.

A voir dire examination must be reviewed in its entirety to determine whether the trial court erred in its qualification or disqualification of prospective jurors. State v. Gaskins, 284 S.C. 105, 326 S.E.2d 132, cert. denied, 471 U.S. 1120, 105 S.Ct. 2368, 86 L.Ed.2d 266 (1985). The decision whether to excuse a juror for cause is committed to the sound discretion of the trial court. State v. Plath, 277 S.C. 126, 284 S.E.2d 221 (1981).

Here, both the prospective jurors had read newspaper accounts of the case. However, each stated she could put aside any prior knowledge of the case, follow the law as charged and base her verdict upon the evidence presented at trial.

Even though the jurors had some basic knowledge of the case, the voir dire examinations, read in their entirety, reveal they had no prior opinion of Drayton's guilt and could give him a fair trial. We find no abuse of discretion in the trial court's qualification of these jurors.

III. OPENING REMARKS

Prior to the individual voir dire examinations of the jury venire, the trial judge made opening remarks. He explained the jurors' duties as citizens, the presumption of innocence and the burden of proof. The venire was then instructed that the defendant had the right not to testify and that his failure to testify could not be held against him. During this portion of the remarks, the judge made the following statement:

But, Ladies and Gentlemen, it's not up to you to seek out the reasons why a person doesn't testify. You are to follow the constitutional mandate, and keep that in mind because it is often difficult to control feelings that, "Well, if it was me and I was accused, you couldn't keep me off the witness stand. I'd be testifying." A lot of times people say, "Well, where there's smoke there's fire." You hear these things everyday.

Now while you are free to exercise those feelings as a citizen, when you come as a juror and are seated in this jury box, you've got a higher duty and a responsibility, and you've got to follow these principles of law that I give to you.

Drayton elected not to testify. He contends the comments constituted a comment on how a jury may or may not view a defendant's decision not to testify, and thus violated his Fifth Amendment rights.

In Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, reh'g denied, 381 U.S. 957, 85 S.Ct. 1797, 14 L.Ed.2d 730 (1965), the Supreme Court held it is impermissible to comment upon a defendant's failure to testify. See also State v. Pierce, 289 S.C. 430, 346 S.E.2d 707 (1986); State v. Gunter, 286 S.C. 556, 335 S.E.2d 542 (1985).

The remarks here were imprudent and we caution that such comments to jurors should be avoided in the future. However, we find no reversible error. The statement was not addressed to the defendant as to the effect of his failure to testify nor was it a charge as to a defendant's accomplished failure to testify. The intent of the remarks was to inform jurors they would have to set aside any personal opinions and follow the law as instructed by the trial court. They are qualitatively different from the potentially coercive statements in Pierce and Gunter, and we find no prejudice to Drayton.

IV. IDENTIFICATION

Drayton contends the trial court erred in allowing a witness's in-court identification of him.

The night of Miss Smith's death, she drove her fiance's, Connell Gowder's, car to work. The next morning while en route to the police station, Gowder stopped at a red light. The sound of a horn caught his attention. He turned and saw a black man leaning out of the driver's window of a car three car-lengths back in the next lane. Gowder noticed that the car was small and the same color as his. When the light changed, he moved into the left lane and waited for the car to pass him. As it did so, he confirmed his suspicion that the car was in fact his, and observed the driver for 30 seconds to one minute.

The next day, while talking to police,...