State v. Gilbert

• Decision Date: 02 October 1979
• Docket Number: No. 21060,21060
• Citation: 273 S.C. 690,258 S.E.2d 890
• Parties: The STATE, Respondent, v. Larry GILBERT and J. D. Gleaton, Appellants.
• Court: South Carolina Supreme Court

Page 890

258 S.E.2d 890

273 S.C. 690

The STATE, Respondent, v. Larry GILBERT and J. D. Gleaton, Appellants.

No. 21060.

Supreme Court of South Carolina.

Oct. 2, 1979.

Robert W. Mance, III, Columbia, for appellants.

Atty. Gen. Daniel R. McLeod and Asst. Atty. Gen. Brian P. Gibbes, Columbia and Sol. Donald V. Myers, Lexington, for respondent.

NESS, Justice.

This appeal is from the murder conviction and death sentence of appellants Larry Gilbert and J. D. Gleaton. We affirm the convictions, set aside the death sentences, and remand for a re-sentencing proceeding.

In the early afternoon of July 12, 1977, Ralph Stoudemire was shot and stabbed to death at his South Congaree service station in Lexington County. Approximately $200.00 was stolen. Witnesses saw two black men hurriedly leave the station in a blue 1973 Continental Mark IV with a white top and cast aluminum ET Mag wheels. ¹ The car reportedly had a low hanging tailpipe which emitted bluish gray smoke. One witness provided the investigating officers with license number KVH377. A nearby service station employee testified the car had "rust bubbles" on it, an Aiken dealer tag on bumper, and Goodyear double eagle, steel belted radial tires. Numerous other witnesses placed two black men fitting appellants' descriptions ² in a car conforming to the above description in the South Congaree area during the earlier part of the day. The victim's son arrived on the scene shortly after the crime, and testified at trial his father stated two black men had robbed, shot and stabbed him.

On July 13, 1977, South Carolina Highway Patrolman Harold Potter stopped a blue Lincoln with a white top bearing license number VKH377 occupied by four black males on Highway No. 21 in Aiken County, some thirty miles from the scene of the crime. Deputies from the Aiken County Sheriff's Department arrived, and requested the occupants of the Lincoln to accompany them to their headquarters in Aiken. They readily agreed and followed the officers in their vehicle. The chief investigating officer, Richard Byers, subsequently arrested appellants and transported them to Lexington County where they confessed. A brown tank top shirt was found in the automobile, which was searched with the owner Gilbert's consent.

Initially, appellants contend Officer Potter lacked probable cause to make the stop and the subsequent confessions and evidence seized should have been excluded as fruits of an illegal arrest. We disagree.

The officer who made the initial stop was acting on an all points bulletin which described the vehicle as a Lincoln Continental with a blue bottom and a white top, occupied by two black males. ³ While it is true he did not have personal knowledge of the entire description then available, we believe Officer Potter had sufficient information to stop this distinctive vehicle. "It is recognized that the police may briefly detain and question a person upon a reasonable suspicion, short of probable cause for arrest, that he is involved in criminal activity." State v. Foster, 269 S.C. 373, 378, 237 S.E.2d 589, 591 (1977), citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Sibron v. N. Y., 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). We conclude Officer Potter had an "articulable and reasonable suspicion" to stop and investigate the vehicle. See Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979).

Appellants next assert their confessions were improperly admitted into evidence because they were procured involuntarily through coercion and denial of counsel. Appellants concede they were advised of their constitutional rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and signed waiver forms.

They were questioned briefly on the evening of their arrest and again the following day, without making any inculpatory statements. Subsequently, however, appellants were interviewed by a black investigator, and both gave confessions, and then were taken before a magistrate and a warrant was issued.

Appellants argue their confessions were inadmissible because they were held in custody for twenty seven hours before being taken to a magistrate. We do not believe this delay amounted to coercion. As stated in State v. Funchess, 255 S.C. 385, 390, 179 S.E.2d 25, 27 (1971):

"We have held that a confession made while the accused is in the custody of an officer before any warrant for his arrest has been issued does not render it inadmissible. State v. Brown, 212 S.C. 237, 47 S.E.2d 521. However, the conduct of the officers obtaining the confession will be rigidly scrutinized and the fact that it is made while the accused is under arrest is a circumstance to be taken into consideration in determining whether the confession was freely and voluntarily given. State v. Cain, 246 S.C. 536, 144 S.E.2d 905."

We hold the twenty seven hour period during which they were held in custody before appearing before a magistrate is not an unreasonable length of time under the circumstances of this case. ⁴ See State v. Swilling, 249 S.C. 541, 155 S.E.2d 607 (1967).

Appellants apparently contend that a black officer was purposely used by law enforcement authorities to interrogate them in order to gain their confidence. We fail to read any sinister purpose or prejudicial result into this procedure. We agree with the trial court and the jury that the confessions were voluntary.

We next consider an issue not raised in appellants' brief, but which, because of the imposition of the death sentence, we review under the doctrine of In favorem vitae.

Immediately prior to the offering of defense testimony, the trial judge fully and properly advised each appellant of his constitutional option of testifying or not testifying in the case. Each indicated his desire to testify. In the course of these instructions, counsel for the appellants ⁵ stated to the court that he had advised his clients that if they took the witness stand they would have the right to refuse to answer any question that would incriminate them. The trial judge acquiesced in this interpretation of the law by defense counsel and ruled the appellants could take the witness stand subject to their right to invoke the constitutional and statutory right of refusing to answer any question that might incriminate them.

The Fifth Amendment provides that no person shall be compelled in a criminal case to be a witness against himself. It is manifest that a necessary element of compulsory self-incrimination is some degree of coercion. See Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374, reh. den. 386 U.S. 940, 87 S.Ct. 970, 17 L.Ed.2d 880 (1966).

The privilege not to give self-incriminating evidence may be waived by anyone entitled to invoke it. Annotation, 38 ALR 2d 255, § 10. The right of an accused not to testify also comes within the protection of the Fifth Amendment. However, when an accused takes the stand in his own behalf, he waives his privilege against compulsory self-incrimination and must answer all proper questions. Brown v. U. S., 356 U.S. 148, 78 S.Ct. 622, 2 L.Ed.2d 589, reh. den. 356 U.S. 948, 78 S.Ct. 776, 2 L.Ed.2d 822 (1958); Taylor v. State, 258 S.C. 369, 188 S.E.2d 850 (1972); 8 Wigmore, Evidence, § 2276.

The appellants were never compelled to testify against themselves; rather they elected to testify after being fully advised by the trial judge of their right not to take the stand. As stated in U. S. v. Washington, 431 U.S. 181, 187, 97 S.Ct. 1814, 1819, 52 L.Ed.2d 238, 245 (1977), "absent some officially coerced self-accusation, the Fifth Amendment privilege is not violated . . ." There is no language in the Fifth Amendment which gives support to a device such as that employed by appellants to cripple law enforcement. While our Constitution provides procedural safeguards to protect defendants from arbitrary convictions, it makes no promise to stultify justice by erecting barriers to voluntary testimony given by a defendant, who, with benefit of counsel, chooses to take the witness stand.

We hold that by voluntarily taking the stand, appellants waived their right to Fifth Amendment protection. By acquiescing in their decision to invoke the self-incrimination privilege, the trial court accorded appellants greater protection than they were entitled to enjoy. If appellants had answered each of the proper questions propounded, as they should have been required to do after waiving their Fifth Amendment privilege, they would have suffered far greater prejudice. We are unpersuaded the invocation of the Fifth Amendment privilege by appellants, albeit improper, worked any greater prejudice to them than would have resulted had they exercised their right not to testify or had they been required to answer all proper questions.

When an accused elects to take the stand in his own behalf, it is always possible he may somehow prejudice himself in the eyes of the jury. It is equally possible that a decision not to testify may operate to prejudice an accused, despite admonitions by the trial court that no adverse inference should be drawn therefrom. Each accused, with the assistance of counsel, makes this decision as a part of his trial strategy. Under the first principle of ethics and justice, a defendant who secures a ruling of the court, albeit erroneous, should not be permitted to profit, In favorem vitae or otherwise, from the court's assent to an improper trial strategy.

Accordingly, we hold appellants were not prejudiced by this procedure. We conclude no error was committed during the guilt stage of the bifurcated proceeding; therefore, we affirm appellants' convictions.

Upon the jury's verdict of guilty, the trial court conducted a separate sentencing proceeding to determine whether appellants should be sentenced to death or life imprisonment. Code § 16-3-20, Cum.Supp.1978...