State v. Graddick
Decision Date | 04 June 2001 |
Docket Number | No. 25300.,25300. |
Citation | 548 S.E.2d 210,345 S.C. 383 |
Court | South Carolina Supreme Court |
Parties | The STATE, Respondent, v. Arthur Eugene GRADDICK, Appellant. |
Michael S. Seekings and W. Peter Beck, both of Charleston, for appellant.
Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, Senior Assistant Attorney General William Edgar Salter, III, all of Columbia; and Solicitor David Price Schwacke, of North Charleston, for respondent.
Appellant appeals his conviction for the murder of Richard Allen Brown. We affirm.
Appellant argues he was unfairly prejudiced and denied effective assistance of counsel because the trial court denied defense counsel's motion to be relieved. We disagree. The trial court did not deny the motion. Rather, defense counsel withdrew the motion, leaving nothing for the trial court to rule upon.
However, the record contains a pro se letter addressed to the trial court four days before the start of appellant's trial asking for help firing his attorney. The record contains no action by the court in response to this letter. The State argues the court properly took no action on this letter in the absence of a request by trial counsel that the motion be renewed. In support of this statement, the State cites State v. Stuckey, 333 S.C. 56, 58, 508 S.E.2d 564, 564 (1998), which held "[s]ince there is no right to hybrid representation, substantive documents filed pro se by a person represented by counsel are not accepted unless submitted by counsel." However, Stuckey goes on to state, "Nothing in this order shall be construed to limit any party's right to file a pro se motion seeking to relieve his counsel." Id., 508 S.E.2d at 565. The rule against hybrid representation does not bar pro se motions to relieve counsel.
Nevertheless, there is no reversible error here. A motion to relieve counsel is addressed to the discretion of the trial judge and will not be disturbed absent an abuse of discretion. State v. Hyman, 276 S.C. 559, 562, 281 S.E.2d 209, 211 (1981), overruled on other grounds, State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991). Appellant bears the burden to show satisfactory cause for removal. Id. Appellant made only the most conclusory arguments why counsel should have been relieved: The trial court did not abuse its discretion in refusing to grant appellant's request for new counsel mere days before the start of appellant's trial for murder.
Appellant argues the trial court committed prejudicial error in permitting the State to question a defense witness concerning the witness's earlier intention not to testify. We disagree.
David Greene was also charged in connection with the death of the victim. He initially indicated his intent to invoke his Fifth Amendment privilege against self-incrimination, but ultimately agreed to testify as a defense witness. The State requested permission to cross-examine Greene about his prior intention not to testify for the purpose of "explain[ing] why the state did not call him." The trial court expressed some concern that "if [the Solicitor] is seeking to use it as making the guy look bad, then it may be a problem if Arthur Graddick doesn't take the witness stand." However, the court granted the Solicitor permission to ask Greene if he had previously refused to testify for the State.
On cross-examination, the Solicitor asked Greene whether he had changed his mind at the last minute about testifying. Greene responded:
The Fifth Amendment to the United States Constitution provides in part that "No person ... shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V.1 As a corollary of the right to remain silent, a prosecutorial comment upon a defendant's failure to testify at trial is constitutionally impermissible. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); State v. Hawkins, 292 S.C. 418, 357 S.E.2d 10 (1987), overruled on other grounds, State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991). Because neither party is entitled to draw any inference from a witness's invocation of privilege, it is desirable the jury not know that a witness has invoked the privilege against self-incrimination. State v. Hughes, 328 S.C. 146, 150, 493 S.E.2d 821, 823 (1997).
The trial court did not abuse its discretion in allowing the questioning. Cf. State v. Lynn, 277 S.C. 222, 284 S.E.2d 786 (1981) ( ). The express purpose of the questioning was to explain why the State did not call Greene as a witness. Nothing in the record indicates this purpose was a subterfuge. Cf. State v. Hughes, 328 S.C. 146, 153, 493 S.E.2d 821, 824 (1997) ( ). Although Greene stated he had no reason not to testify because he and appellant were innocent, this commentary—even if it can be characterized as a comment on appellant's failure to testify—cannot fairly be attributed to the State. The Solicitor did not elicit the commentary, nor did she highlight the remarks in any way. In her closing argument, the Solicitor vigorously assailed Greene's credibility without reference to his decision to testify. The trial court committed no error in permitting the questioning.
Appellant contends the trial court's circumstantial evidence charge improperly placed greater significance on direct evidence than on circumstantial evidence, contrary to State v. Grippon, 327 S.C. 79, 489 S.E.2d 462 (1997). We disagree.
The trial court's circumstantial evidence charge was a hybrid of the traditional circumstantial evidence charge2 and the charge approved in Grippon. Grippon recommended a circumstantial evidence charge which emphasizes the lack of distinction between the weight to be given...
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