State v. Gore, 19339
| Decision Date | 28 December 1971 |
| Docket Number | No. 19339,19339 |
| Citation | 185 S.E.2d 826,257 S.C. 330 |
| Court | South Carolina Supreme Court |
| Parties | The STATE, Respondent, v. Benjamin Kenneth GORE, Appellant. The STATE, Respondent, v. Charles Alan ROPER, Jr., Appellant. |
Harvey, Harvey & Battey, Ladson F. Howell, Carl C. Hendricks, Jr., and Donald A. Fanning, Beaufort, for appellants.
Solicitor Randolph Murdaugh, Hampton, for respondent.
The defendants, Gore and Roper, were indicted (along with Forrest Ward Phillips) and charged with housebreaking and grand larceny. The indictment alleged that on the 15th day of August, 1969, Gore, Roper (and Phillips) broke into the home of John Lawson in the City of Beaufort, and stole property of a value of more than $50. It included one safe, two pistols and some bags of money.
On November 30, 1970, the defendants Gore and Roper were tried and found guilty by a jury. Gore was exonerated of the housebreaking charge but found guilty of grand larceny. Roper was found guilty of both housebreaking and grand larceny. Both defendants have appealed and seek a new trial.
The defendants, Gore and Roper, were tried jointly. Separately they have appealed. The cases were consolidated for argument before this court, and this opinion will dispose of both appeals. The issues raised are substantially the same.
Immediately prior to trial, in chambers, counsel for the defendants objected to the presence of a large number of law enforcement officers (estimated by counsel to be 36) in the courtroom and on the premises. They argued that the large number of officers was unnecessary and prejudicial to the defendants. Apparently about two-thirds of them were in uniform. It was submitted by counsel that the presence of so many law enforcement officers was unnecessary for security and suggested to the jurors that the defendants were hardened criminals.
The judge very properly took testimony as a basis for his ruling. He heard evidence from Sheriff L. W. Wallace and Lt. Redd of the South Carolina Law Enforcement Division, and heard argument of counsel. Thereafter he denied the motion to remove the law enforcement officers.
Before us, now, the appellants allege that the judge erred and that their rights to a fair trial were prejudiced because an unfavorable atmosphere was created by the presence of the officers.
From the statement of counsel, and from the testimony of witnesses, it appears beyond dispute that following the housebreaking and larceny referred to in the indictment, Phillips shot and killed a highway patrolman. He and Roper and Gore stood convicted of murder already from a prior trial, and were serving a life sentence. Phillips was not being tried on this day for housebreaking and larceny, but was present as a witness for the defendants.
In justification for the security provided, the solicitor stated to the judge '. . . The sheriff and I independently received information that an effort was going to be made to rescue either one or both of the defendants.' The solicitor further said,
The sheriff testified that he had received word that the defendants were going to escape. He told the court that Gore had a long record of about 20 counts of breaking and larceny.
Lt. Redd stated to the court that he had been actively engaged in the investigation of the case, and that it was his understanding from Georgia law enforcement authorities that Phillips was a hardened criminal. He stated that he had been advised at the murder trial previously that an effort would be made to rescue those accused of the crime.
In State v. Greene, 255 S.C. 548, 180 S.E.2d 179 (1971), we held that there was no error in failing to exclude security guards from the courtroom. In such matters the trial judge must be allowed a wide discretion. On the shoulders of the judge rests the responsibility to see that both defendants and The State have a fair trial. The only trial recognized by our system of jurisprudence is a fair trial. There can be no fair trial unless it is orderly. In determining how much security is warranted the judge must act upon such information as is brought to his attention. He is not expected to have hindsight. If he permits such security as appears reasonably necessary to secure orderly proceedings and to assure that the accused persons do not escape, his ruling should not be reversed. At the same time more security than appears to be reasonably necessary should not be allowed. Based on the showing made, we hold that such discretion was not abused.
On the date of the alleged housebreaking and larceny Mrs. John Lawson returned to her home about 3:30 in the afternoon and found a green Ford Fairlane with a black vinyl top, bearing a Georgia license plate, backed into her garage. A safe had been taken from the house and placed in the trunk of the car. She saw two...
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