State v. Duncan, 20526

• Decision Date: 12 October 1977
• Docket Number: No. 20526,20526
• Citation: 238 S.E.2d 205,269 S.C. 510
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. John DUNCAN, Jr., Appellant.

Page 205

238 S.E.2d 205

269 S.C. 510

The STATE, Respondent, v. John DUNCAN, Jr., Appellant.

No. 20526.

Supreme Court of South Carolina.

Oct. 12, 1977.

H. E. Bonnoitt, Jr., Georgetown, for appellant.

Atty. Gen. Daniel R. McLeod, Asst. Atty. Gen. Brian P. Gibbes, and Staff Atty. Charles H. Richardson, Columbia, for respondent.

GREGORY, Justice:

Appellant pled guilty in the magistrate's court to petit larceny and was sentenced to thirty days imprisonment. On appeal appellant contends he was denied due process and equal protection of the law by being tried before a non-attorney judge. We affirm.

On December 18, 1976, appellant Johnny Duncan was charged with the theft of an eight pack of beer and thereafter arrested. He was released on a recognizance bond and ordered to appear before the Honorable Nathan H. Brown, Magistrate for Georgetown County, for trial on January 5, 1977. Judge Brown is not an attorney. At trial appellant waived his right to the assistance of counsel and pled guilty to the charge of petit larceny, asking Judge Brown to hear his explanation of what took place. Judge Brown heard the testimony of several witnesses including the prosecuting witness, appellant, and appellant's mother and brother, and then imposed a sentence of thirty days with no alternate fine.

As a result of the petit larceny conviction, appellant was brought before the Honorable James B. Morrison, Resident Judge for the Fifteenth Judicial Circuit, for a probation revocation hearing. Counsel was appointed and the probation revocation hearing continued pending the ultimate disposition of appellant's appeal from his conviction in the magistrate's court.

Timely notice of intention to appeal the petit larceny conviction was filed and the matter was heard by Judge Morrison on February 7, 1977. Appellant argued he had not been advised of his right to counsel as provided by Rules 1 and 2 of the Defense of Indigents Act, ¹ and further argued his rights under the due process clause of the Fourteenth Amendment to the United States Constitution and Article 1 Section 3 of the South Carolina Constitution, 1895, ² were violated by his being required to stand trial before a non-attorney judge.

Judge Morrison found appellant had been fully informed of his right to counsel as provided by the Defense of Indigents Act. On the authority of Ditty v. Hampton, 490 S.W.2d 772 (Ky.1972), ³ Judge Morrison also concluded appellant had not been denied due process of law by being tried before a lay magistrate and affirmed the conviction.

Three exceptions were taken to Judge Morrison's order and this appeal followed.

Appellant contends his trial before a non-attorney magistrate jeopardized his fundamental right to liberty, denied him the right to a fair trial and the effective assistance of counsel, and denied him due process of law.

Appellant essentially argues that the due process clauses of the United States Constitution and the South Carolina Constitution prohibit the use of non-attorney judges in the trial of criminal cases where the defendant faces a potential jail sentence.

In North v. Russell, 427 U.S. 328, 96 S.Ct. 2709, 49 L.Ed.2d 534 (1976), the United States Supreme Court entertained a similar challenge to Kentucky's use of lay judges. The question faced by the Supreme Court was stated by Mr. Chief Justice Burger:

Appellant's first claim is that when confinement is a possible penalty, a law-trained judge is required by the Due Process Clause of the Fourteenth Amendment whether or not a trial de novo before a lawyer-judge is available (footnote omitted). 427 U.S. at 333, 96 S.Ct. at 2711, 49 L.Ed.2d at 538.

The Court, however, limited its consideration of the question as follows:

In the context of the Kentucky procedures, it is unnecessary to reach the question whether a defendant could be convicted and imprisoned after a proceeding in which the only trial afforded is conducted by a lay judge. In all instances, a defendant in Kentucky facing a criminal sentence is afforded an opportunity to be tried de novo in a court presided over by a lawyer judge since an appeal automatically vacates the conviction in police court. 427 U.S. at 334, 96 S.Ct. at 2712, 49 L.Ed.2d at 539.

Article V Section 23 of the South Carolina Constitution creates the office of magistrate and directs the General Assembly to determine the number to be appointed and to provide the terms of office and the civil and criminal jurisdiction of the magistrates. The criminal jurisdiction of the magistrate's court set forth in Section 22-3-540, 1976 Code of Laws of South Carolina, and Section 22-3-550, 1976 Code, as amended by Act No. 113 of the 1977 Acts of the General Assembly. The magistrate's court is not a court of record but the magistrate has the duty of reducing the witnesses' testimony to writing. Section 22-3-790, 1976 Code. Appeals are to the circuit court and are governed by Section 18-3-70, 1976 Code, which provides:

The appeal shall be heard by the court of general sessions upon the grounds of exceptions made and upon the papers required under this chapter, without the examination of witnesses in such court. And the court may either confirm the sentence appealed from, reverse or modify it or grant a new trial, as to the court may seem meet and conformable to the law.

Although the appellate court may confirm, modify, or reverse the sentence, or grant a new trial, the court is not permitted to examine witnesses. Thus, the appeal does not have the scope of a trial de novo.

A criminal defendant in this State who is charged with certain relatively minor criminal offenses may be convicted and sentenced after a proceeding in which the only trial afforded is conducted by a lay judge. Thus, this Court is now presented with the very question not answered by the Supreme Court in North v. Russell.

Appellant presents the same argument stated in North v. Russell :

Appellant argues that the right to counsel articulated in Argersinger v. Hamlin, (407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530) supra, and Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 23 Ohio Ops.2d 258, 93 A.L.R.2d 733 (1963), is meaningless without a lawyer-judge to understand the arguments of counsel. Appellant also argues that the increased complexity of substantive and procedural criminal law requires that all judges now be lawyers in order to be able to rule correctly on the intricate issues lurking even in some simple misdemeanor cases. 427 U.S. at 334, 96 S.Ct. at 2712, 49 L.Ed.2d at 539.

In support of appellant's position is Gordon v. Justice Court, 12 Cal.3d 323, 115 Cal.Rptr. 632, 525 P.2d 72 (1974), where the Supreme Court of California held:

. . . due process demands that henceforth a defendant charged with an offense carrying a possible jail sentence must be provided with an attorney judge to preside over the proceedings, unless he elects to waive such right. 115 Cal.Rptr. at 639, 525 P.2d at 79.

The California Court felt this conclusion logically followed from a defendant's due process right to the effective assistance of counsel.

Respondent directs our attention to several cases where the appellate courts of other states have refused to follow Gordon : Shelmidine v. Jones, 550 P.2d 207 (Utah 1976); State v. Pfeiffer, 25 Or.App. 45, 548 P.2d 174 (1976); Ex Parte Ross, 522 S.W.2d 214 (Tex.Cr.App.1975); In re: Application of Hewitt, 81 Misc.2d 202, 365 N.Y.S.2d 760 (N.Y.1976); and Thomas v. Justice Court of Washakie County, 538 P.2d 42 (Wyo.1975).

The decisions of other state appellate courts on similar questions may offer this Court guidance, but the wide variety in state court systems renders such determinations mildly persuasive at best. Treiman v. State Ex Rel. Miner, 343 So.2d 819 (Fla.1977). Each state must decide whether the use of non-lawyer judges in a criminal proceeding under the existing laws of that state violates the defendant's rights to a fair trial and due process. People v. Sabri, 47 Ill.App.3d 962, 6 Ill.Dec. 104, 362 N.E.2d 739 (1977).

In South Carolina jurisdiction of certain minor criminal offenses is vested in magistrates' courts. There is no requirement that magistrates be attorneys, and although some magistrates are attorneys it is more common for the office to be held by a non-attorney. The magistrates are paid salaries and receive no part of the fees they collect. Section 22-7-30 and Section 22-7-40, 1976 Code. Thus they are free to be independent and neutral in their judgment.

At his trial appellant knowingly and intelligently waived his right to the assistance of counsel. While we feel appellant also waived his right to present the argument that he was thereby denied the effective assistance of counsel, we find no merit to the substance of appellant's argument.

As stated in Ditty v. Hampton, supra :

Due process, as regards the tribunal hearing a case, usually has been considered to require only that the tribunal be fair and impartial. In re Murchinson, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942. The function of the court is not to defend the accused, or to represent him, but to decide fairly and impartially. An accused needs counsel to defend him, . . . .

But the judge is not one of the accused's adversaries, and is not there either to defend or to prosecute him. So the fact that the accused needs a lawyer to defend him does not mean that he needs to be tried before a lawyer judge.

Also, we think it is clear, accepting due process as a living principle, that advancing standards or changing conditions have not yet made the lawyer judge a condition of fundamental fairness. 490 S.W.2d at 774, 775.

Should it occur in this State that the arguments of a defendant's counsel fall on the ear of a non-attorney magistrate who erroneously applies an incorrect principle of law, the defendant may appeal, demonstrate the error to the appellate court, and receive a new trial. It is often said due process entitles a criminal defendant to a fair...