State v. Fairey
| Citation | 646 S.E.2d 445 |
| Decision Date | 16 April 2007 |
| Docket Number | No. 4233.,4233. |
| Court | Court of Appeals of South Carolina |
| Parties | The STATE, Respondent, v. William Smoak FAIREY, Jr., a/k/a Doak Fairey, Appellant. |
Appellate Defender Eleanor Duffy Cleary, of Columbia and C. Bradley Hutto, of Orangeburg, for Appellant.
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Norman Mark Rapoport, all of Columbia; and Solicitor John Gregory Hembree, of Conway, for Respondent.
William Smoak Fairey was tried in absentia and without counsel for the charge of obtaining goods and monies under false pretenses. A jury found Fairey guilty, and the judge sentenced him to eight years in prison, suspended to five years service and four years probation. On motion to vacate sentence and for a new trial, the judge reduced Fairey's sentence to eight years, suspended to four years service and four years of probation with a special condition to make restitution. Fairey appeals arguing: (1) the trial court erred in holding trial in his absence, because he was not given proper notice of his trial or warned of possible trial in absentia; (2) the trial judge erred in denying his motion for a new trial because he was not cautioned against proceeding pro se and thereby wrongfully denied the right to counsel; and (3) the trial court erred in refusing to give him access to grand jury documents. We affirm.
In June 1997, Fairey contracted with Scott Rudisill, a small business owner, to develop and install a computer system for Rudisill's business and personal records. On July 7, 1997, Fairey approached Rudisill for a $25,000 loan. Fairey told Rudisill that he was offered a job with the White House as a liaison to President Bill Clinton, but he had to overnight $25,000 to secure the position. Fairey explained that the money would be immediately refunded once he began his new position and promised to immediately return the money to Rudisill. Rudisill agreed to loan the money and had Fairey sign a promissory note for $25,000 with interest on unpaid principal, at a rate of ten percent. The note indicated all monies were to be paid on October 7, 1997. Before October 7, Rudisill called Fairey a couple times regarding the money; each time Fairey indicated that he would have no problems repaying the loan. However, Fairey did not repay Rudisill on October 7, and when Rudisill contacted Fairey, he said that he would deposit the money in Rudisill's account but never did.
On January 26, 1998, Fairey was served with an arrest warrant for obtaining goods and monies under false pretenses. Following Fairey's arrest, Fairey signed a bond sheet, wherein under the heading, "Acknowledgment By Defendant," it indicated he understood a trial would proceed in his absence if he failed to appear. On July 23, 1998, notice was sent to Fairey's attorney, Richard Weldon, that the charge against Fairey had been dismissed.
On June 23, 2001, Fairey was indicted by a grand jury for the same charge of obtaining goods and monies under false pretenses. In June 2002, Weldon made a motion to be relieved as counsel for Fairey. Weldon cited substantial disagreement with Fairey regarding trial strategy, Fairey's failure to pay Weldon for his services, and Fairey's desire to proceed pro se as reasons for withdrawal. Weldon additionally stated Fairey was given reasonable warning of Weldon's intent to withdraw if Fairey did not pay Weldon for his services. On July 23, 2002, the trial judge granted Weldon's motion to withdraw as counsel. The order stated, "[i]t appears to the court that there is just cause for granting the motion and that Doak Fairey consents to the requested withdrawal as signified by the signature of Doak Fairey on the attached consent form." Also in the order, Fairey was instructed that he needed to keep the court informed as to where papers should be served, had the obligation to retain counsel if he desired, and had the responsibility to prepare for trial.
On August 22, 2002, Fairey informed the solicitor of a change of address:
Pursuant to the Consent Order regarding "keeping the court informed as to where notices, pleadings, and other papers may be served," I am informing the court of my new address. All notices, pleadings and other papers should be delivered to:
Doak Fairey
31545 Vaca Drive
Castaic, California 91384
This address change is valid immediately
So that I might adequately prepare for trial, please assure that any and all future correspondence is sent to this address.
On September 8, 2002, after being sent a subpoena to his former Florida address, Fairey informed the court and solicitor, once again, that the California address was the correct address to send all correspondence. This letter stated:
Today, I received VIA FAX a copy of a subpoena relating to my case. This document was sent to my old address in Sarasota, Florida.
In my previous correspondence (copy attached), I informed you and the court of my address change. I followed the procedure as spelled out in your correspondence of 7/30/02. You have chosen to ignore the Rule, and your own written procedure, and failed to properly send documents to me at my address. . . . Please assure that all correspondence and information for trial is sent to my new address:
Doak Fairey
31545 Vaca Drive
Castaic, CA 91384
On March 10, 2003, Fairey made a motion to quash the indictment. In his motion to quash, Fairey listed his addresses as:
31545 Vaca Drive 5629 Boulder Blvd
Castaic, CA 91384 Sarasota, FL 34233
941-284-5896 (temporary address)
The motion was signed, "Defendant pro se." (emphasis in original). The motion listed as reasons to quash the indictment: (1) the State failed to provide defendant with a preliminary hearing; (2) the State failed to produce documents related to his previously dismissed charge; and (3) the State failed to produce documents relating to the 2001 grand jury indictment.
A hearing on the motion to quash was held on March 24, 2003. Fairey appeared at the hearing without counsel and proceeded to represent himself. Fairey complained that the State possessed documents relating to the case that was originally dismissed in July 1998. Fairey "requested memorialization of the Grand Jury proceedings in this case" and explained that he was "trying to determine . . . exactly what the Grand Jury saw, what they heard" because of the belief that they could not review evidence relating to the previously dismissed case. Fairey based his argument on an expungement statute, S.C.Code § 17-1-40, which requires the expungement of certain documents after a charge is dismissed. In response the State noted that Fairey was directly indicted by the grand jury after the earlier dismissal of the charge, and "[t]here is no evidence that I could produce to him of the Grand Jury proceeding other than a certified copy of an indictment." Further, the State explained that the process of destroying documents provided for in the expungement statute was not an automatic process once a case is dismissed. Rather, a defendant must file a motion to have his record expunged and the court sign an order directing the State to destroy the documents relating to the dismissed case. During the hearing Fairey made a motion to dismiss and afterward filed the motion to dismiss with the court, indicating Fairey as a pro se defendant and listing a Florida address.
On March 31, 2003, the judge denied Fairey's motion to quash on the following reasons: (1) Fairey's right to a preliminary hearing was extinguished by virtue of the fact his case had been presented to the Grand Jury; (2) Fairey's reliance on a expungement statute in regard to the expungement of the 1998 documents was misplaced in this case: (3) failure to comply with discovery was not remedied through the quashing of an indictment; and (4) there was no merit to Fairey's allegation regarding the validity of the Grand Jury proceeding. The judge also reinstated Fairey's previous bond. The order notified Fairey: "[t]he defendant is required to appear at the call of his case by the State and shall keep the Court and the State advised of any changes in his address." The court order was sent to Fairey at the temporary Florida address provided in the motion to quash.
The solicitor's office subpoenaed Fairey to appear in the Conway Judicial Building from July 9 through 23, 2004. The subpoena, dated June 21, 2004, listed Fairey's California address and a Myrtle Beach address. The case was called on July 21, 2004, but Fairey did not appear. At the hearing, the administrative assistant for the solicitor's office testified the subpoena was sent to: (1) the California address because it was the last official address provided by Fairey in his August 22 and September 8 letters; and (2) the Myrtle Beach address because it was the address provided in Fairey's original bond form. After the solicitor presented evidence that Fairey received notice of the date and time of his trial, the court found that the solicitor made an adequate showing Fairey received notice and the trial proceeded in Fairey's absence.
On July 21, 2004, the trial court sentenced Fairey to eight years imprisonment, suspended to five years service and four years probation. Fairey was also fined $128.75 and ordered to pay restitution of $25,000.
Fairey was apprehended in Florida and brought in for sentencing on October 21, 2004. Fairey's counsel moved for a vacation of his conviction and new trial based on the lack of notice and because Fairey was tried without counsel. The judge denied the motion finding Fairey adequately and legally waived his right to counsel and his right to be present at the trial. The judge then reduced Fairey's sentence to eight years, suspended to four years service and four years probation with a special...
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