State v. Gentry

• Decision Date: 07 March 2005
• Docket Number: No. 25949.,25949.
• Citation: 610 S.E.2d 494,363 S.C. 93
• Parties: The STATE, Respondent, v. Ricky Dennis GENTRY, Appellant.
• Court: South Carolina Supreme Court

363 S.C. 93

610 S.E.2d 494

The STATE, Respondent, v. Ricky Dennis GENTRY, Appellant.

No. 25949.

Supreme Court of South Carolina.

Heard May 25, 2004.

Decided March 7, 2005.

John Dennis Delgado and Kathrine Haggard Hudgins, both of Columbia, for appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, and Assistant Attorney General Deborah R.J. Shupe, all of Columbia; and Solicitor Harold W. Gowdy, III, of Spartanburg, for respondent.

Justice MOORE:

Appellant appeals his convictions for accessory before the fact of armed robbery and accessory before the fact of assault and battery with intent to kill (ABIK), claiming the trial court was without subject matter jurisdiction to hear the accessory charges against him and claiming the trial court erred by failing to grant a directed verdict on the accessory charges. We affirm.

PROCEDURAL BACKGROUND/FACTS

On March 31, 2001, Shawn Bobo was shot to death outside his home. His wife, Shanna, was shot four times, but survived her injuries. Appellant was indicted for murder, ABIK, armed robbery, accessory before the fact to murder, accessory before the fact to armed robbery, and accessory before the fact to ABIK. Appellant's accessory charges related to the robbery and shooting of Shawn. Following a trial, the jury found appellant guilty of accessory before the fact to armed robbery and accessory before the fact to ABIK. He was found not guilty of the remaining charges. Appellant was sentenced to thirty years imprisonment for accessory before the fact to armed robbery and to twenty years, concurrent, for accessory before the fact to ABIK.

The State presented evidence appellant and several others, including Tommie Smith (Tommie), discussed robbing the victim of cocaine. One of those present, Stanley Moore (known as Rico), testified appellant said he would kill the victim and then pulled out his gun of which Tommie took possession. Rico testified he, appellant, Tommie, and Michael Osbey (Osbey) all rode in the car to the victim's house. Rico testified the plan, which appellant had agreed to, was for Osbey to come in and shoot everyone. Appellant and Tommie talked to the victim and went inside the victim's house. A few minutes later, appellant ran out the front door and motioned Osbey to come inside. Appellant, Tommie, and Osbey later ran to get in the car. Tommie and Osbey had the guns and appellant had a bag of cocaine.

Shanna testified she was shot four times by Tommie and Osbey. She stated appellant was not in the kitchen during a struggle for the gun between Tommie and the victim. She further stated she stabbed at appellant behind the recliner in the living room.

In appellant's first statement to police, he indicated he was present when Tommie pulled a gun on the victim and when the victim and Tommie began struggling for the gun. Appellant stated he was stabbed by Shanna and that, as he was running out of the front door, he saw Osbey running towards the back door. In his second statement to police, appellant admitted he went to the victim's house to rob him of cocaine and that the plan was for Tommie to pull out a gun while appellant took the cocaine. After leaving the house, appellant heard shots fired when he was trying to catch up with Rico. He stated that when Osbey and Tommie got in the car, Osbey had the cocaine. They never split up the cocaine.

At the close of the State's case, appellant moved for a directed verdict on the accessory charges because the State had failed to prove appellant was not present when the crimes were committed.¹ The trial court denied the motion because there was conflicting evidence on the presence issue.

During appellant's case, Tommie testified he initiated the plan of robbing the victim and that appellant agreed to the plan and supplied the weapons. The plan was for appellant to pretend he was buying drugs. Appellant was present when Tommie pulled the gun on the victim and told the victim they were going to take the drugs. Tommie and the victim began to struggle for the gun and Shanna stabbed him. Then, Osbey came in and started shooting. Tommie testified appellant left before the shooting started. However, appellant came back inside the house after Osbey had entered and grabbed the cocaine. The three left the house together with over nine ounces of cocaine, worth approximately $9,000.

Appellant testified he agreed with Tommie to purchase cocaine from the victim and later agreed to rob the victim. After they passed the victim's house, appellant testified he told the others that he did not want to rob the victim. Appellant testified he agreed to buy the drugs as long as Tommie did not try to rob the victim. Tommie assured appellant he would not, but Tommie pulled out a gun as the victim was taking out the cocaine. Tommie and the victim began to struggle and appellant hid behind a couch to stay out of the way of the gun. Shanna ran by him and cut him on his back. Appellant ran out the front door. Osbey was already getting out of the car. Rico was pulling out of the driveway and appellant waved his hand in an attempt to have Rico stop. By the time he got to the edge of the yard, which is near the street, appellant heard a series of shots. He continued down the street and heard more shots. When Osbey later entered the car, he had the cocaine.

At the close of appellant's case, appellant renewed his motion for a directed verdict. The motion was denied. The jury found appellant guilty of accessory before the fact of armed robbery and accessory before the fact of ABIK.

ISSUES

I. Did the indictments' failure to allege the element "absence from the scene of the crime" deprive the trial court of subject matter jurisdiction to hear the accessory before the fact charges?

II. Did the trial court err by failing to direct a verdict for appellant on the charges of accessory before the fact to armed robbery and accessory before the fact to ABIK when no evidence was presented that appellant was absent from the scene of the crime?

III. Did the trial court err by failing to direct a verdict in appellant's favor on accessory before the fact to armed robbery when the alleged subject of armed robbery was a quantity of illegal narcotics?

DISCUSSION

I. Subject Matter Jurisdiction

Appellant argues the accessory before the fact indictments deprived the trial court of subject matter jurisdiction because the indictments did not allege the element "absence from the scene of the crime." Before addressing the specific facts of this case, we first address the confusion that has arisen in past jurisprudence between the sufficiency of the indictment and the subject matter jurisdiction of the trial court.

Recently, the United States Supreme Court, in United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002), held that a defective indictment does not deprive a court of jurisdiction.² The Supreme Court explained that Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887), was the progenitor of the view that a defective indictment deprived a court of its jurisdiction. Bain, however, is "the product of an era in which [the Supreme Court]'s authority to review criminal convictions was greatly circumscribed. At the time it was decided, a defendant could not obtain direct review of his criminal conviction in the Supreme Court." Cotton, 535 U.S. at 629-630, 122 S.Ct. 1781. As a result, the Supreme Court's desire to correct obvious constitutional violations led to a somewhat expansive notion of jurisdiction, which was more a fiction than anything else. Id. at 630, 122 S.Ct. 1781.

The Supreme Court further stated that Bain's elastic concept of jurisdiction is not what the term jurisdiction means today, i.e. the courts' statutory or constitutional power to adjudicate the case. Id. "This latter concept of subject-matter jurisdiction, because it involves a court's power to hear a case, can never be forfeited or waived. Consequently, defects in subject-matter jurisdiction require correction regardless of whether the error was raised [below]." Id.

The Supreme Court stated that its cases after Bain have held that a defective indictment does not affect the jurisdiction of the trial court to determine the case presented by the indictment. The Supreme Court then overruled Bain to the extent it held a defective indictment deprives a court of jurisdiction.

Turning to South Carolina jurisprudence, we note this Court has held that subject matter jurisdiction is the power of a court to hear and determine cases of the general class to which the proceedings in question belong, Pierce v. State, 338 S.C. 139, 526 S.E.2d 222 (2000); and that issues related to subject matter jurisdiction may be raised at any time. Brown v. State, 343 S.C. 342, 540 S.E.2d 846 (2001). The lack of subject matter jurisdiction may not be waived, even by consent of the parties, and should be taken notice of by this Court. Id. However, as was done by the Supreme Court in Bain, this Court broadened the meaning of jurisdiction in State v. Munn, 292 S.C. 497, 357 S.E.2d 461 (1987). Prior to Munn, the rule was that any objection to the sufficiency of the indictment, i.e. that the indictment was defective, had to be made before the jury was sworn. See State v. Young, 243 S.C. 187, 133 S.E.2d 210 (1963)³

(challenge directed to the sufficiency of the indictment rather than to the jurisdiction of the Court to try the offense charged needed to be raised by a motion to quash before the jury was sworn). This rule was effectively altered by the Munn decision.

In Munn, citing 41 Am. Jur. 2d Indictments and Informations, § 299 (1968), we stated that defects in the indictment that are of such a fundamental character as to make the indictment wholly invalid are not subject to waiver by a defendant. We concluded that, subject to certain minor exceptions, the trial court lacks subject...