State v. Gill

• Court: South Carolina Supreme Court
• Writing for the Court: GREGORY; LEWIS
• Citation: State v. Gill, 273 S.C. 190, 255 S.E.2d 455 (S.C. 1979)
• Decision Date: 24 May 1979
• Docket Number: No. 20972,20972
• Parties: The STATE, Respondent, v. Eric Andre GILL, Appellant.

Page 455

255 S.E.2d 455

273 S.C. 190

The STATE, Respondent, v. Eric Andre GILL, Appellant.

No. 20972.

Supreme Court of South Carolina.

May 24, 1979.

William M. Brice, Jr., York; and James F. Wells, Rock Hill, for appellant.

Atty. Gen., Daniel R. McLeod and Asst. Atty. Gen., Brian P. Gibbes, Columbia; and Sol., William L. Ferguson, York, for respondent.

GREGORY, Justice.

Appellant Eric Andre Gill was convicted of murder, armed robbery, and grand larceny of a vehicle and was sentenced to death for murder, twenty-five (25) years imprisonment for armed robbery, and ten (10) years imprisonment for grand larceny of a vehicle. We reverse.

First, appellant contends the trial judge erred by instructing the jury during the course of the trial as follows:

. . . I believe I told you and have told you on each occasion you left the courtroom, that you are not to discuss the case even among yourselves unless you are in the jury room, now you can discuss it in there, but don't discuss it at the motel or any place else, among yourselves even and of course it is illegal for anyone else to try to talk to you about the case. It is improper for you to discuss it, but it is not illegal, so I am just going to ask you not to do the improper thing, but you can discuss it all you wish to in the jury room but don't attempt to reach a decision until I tell you to begin your final deliberations, but please do not discuss the case among yourselves while you are at any place other than the jury room.

Counsel for appellant promptly objected to the instruction.

The challenged instruction advised the jury that it was proper to begin their deliberations before the close of the case. This was error. The trial judge should have instructed the jury to begin their deliberations only after all the evidence had been introduced, the arguments of counsel had been completed, and the applicable law had been charged.

Recently in State v. McGuire, S.C., 253 S.E.2d 103 (1979) we quoted with approval the following precautionary instruction taken from State v. Drake, 31 N.C.App. 187, 229 S.E.2d 51 (1976):

"And lastly, the only proper place for a jury to deliberate upon any criminal case is in the Jury Room at the end of the whole case, that is, after the evidence is all presented, the lawyers have had their opportunity to make their final summations or arguments to you and the Court has had its opportunity to charge you on the applicable law. So, you should keep your mind open until reaching the Jury deliberation room and not decide the case prior to that time, when you can have the counsel and advice of your fellow jurors."

In McGuire we stated the reason for the above quoted instruction:

The human mind is constituted such that when a juror declares himself, touching any controversy, he is apt to stand by his utterances to the other jurors in defiance of evidence. A fair trial is more likely if each juror keeps his own counsel until the appropriate time for deliberation. 253 S.E.2d at 105.

The trial judge's improper instruction amounted to an invitation to the jurors to begin their deliberations before the close of the case. This instruction was inherently prejudicial and requires reversal.

Second, appellant contends the trial judge erred by refusing to find as a matter of law that statutory rape...