State v. Greene
| Decision Date | 29 March 1971 |
| Docket Number | No. 19194,19194 |
| Citation | 255 S.C. 548,180 S.E.2d 179 |
| Court | South Carolina Supreme Court |
| Parties | The STATE, Respondent, v. Edward GREENE, Fred Painter, Tommy Myers, Frank Downing, Derrill Brown and Ronald Floyd, Appellants. |
Kermit S. King, John W. Williams, Jr. and John W. McIntosh, Columbia, for appellants.
Sol. John W. Foard, Jr., Columbia, for respondent.
On October 1, 1968, at the South Carolina Central Correctional Institution, a riot by prisoners occurred, resulting in more than $50,000 property damages. Six guards and twelve prisoners were hospitalized as a result of the turmoil, which lasted about four or five hours. The appellants are six of twelve inmates brought to trial on December 9, 1968, charged with rioting in violation of Code section 55--7.2, and charged with possession of weapons with which to facilitate an escape, in violation of Code section 55--6.
Four of the twelve defendants (all prisoners) entered guilty pleas at the beginning of the trial; two others pled guilty during the course of the trial. The jury convicted all of the six appellants of rioting, and all, except Downing, of possession of weapons with which to facilitate an escape.
The trial lasted five days. The testimony of twenty-eight witnesses, many of whom were prisoners, was submitted to the jury. For security reasons many law enforcement officials, plainclothed and in uniform, armed and unarmed, were in and about the courtroom.
John W. Williams, public defender, represented Greene, Painter, Myers and Floyd. Kermit King was appointed to represent Brown, and T. Burney Kinard, Jr. was appointed to represent Downing.
This appeal raises no issue of the sufficiency of the evidence to carry the case to the jury. There is no question but that a riot occurred. It is the position of the defendants that they did not participate, and alibi witnesses were presented to the court, who, if believed, might have exonerated them. On the other hand, there was testimony that each of the defendants did participate, and obviously the jury believed this evidence.
The agreed statement of the case contains the following matter:
'When the case was called for trial, His Honor directed that any and all motions on behalf of the defendants would be considered as having been made at appropriate stages of the proceedings and overruled and that the defendants' rights in regard to those motions would be preserved. For the convenience of the Court, those motions which would have been made at trial and which are pertinent on appeal are set forth below. They will be referred to in the exceptions and argument as though they were made at the appropriate stages of trial, with appropriate specificity and argument.
'(a) Motion for continuance on behalf of defendants;
'(b) Motion for a severance of defendants;
'(c) Motion to quash the Indictment because of the unconstitutional vagueness of the statute upon which it was based;
'(d) Motion that guilty pleaders be sentenced before continuance of trial;
'(e) Motion that guilty pleaders be excluded from the courthouse; and
'(f) Motion for an arrest of judgment or, in the alternative, for a new trial.'
In addition, the record reflects that the following occurred when the case was called for trial.
'Mr. Williams: If Your Honor please, before we draw the jury, I would like to make some motions--
The motions were not reduced to writing and put in the record.
Motions for severance and continuance are both addressed to the sound discretion of the trial judge under the law of this State, and it is well settled that the exercise of such discretion will not be disturbed on appeal in the absence of a clear abuse thereof. State v. Harvey, 253 S.C. 328, 170 S.E.2d 657 (1969).
Appellants contend that 'His Honor erred in refusing Defendant Brown's motion for a continuance, said error being that such refusal denied to Brown his right to a fair trial.'
We must, of course, determine solely from the record before us whether the judge erred as a matter of law and if so, whether such error was prejudicial to the defendant, Brown. Error without prejudice is not a basis for granting a new trial. It should be noted that the other seven defendants indicted jointly did not seek a continuance. After the judge stated at the commencement of the trial that all motions would be considered as having been made at appropriate stages of the proceeding and overruled, and defendants' rights preserved, nothing else appears in the record which could possibly be interpreted as relating to a continuance until we read the last exception as follows:
'His Honor erred in overruling defense counsel's motion for an arrest of judgment and, in the alternative, For a new trial, said error being that during the trial judicial error in the treatment of motions, improper questioning by the Solicitor, improper comments by the Court, the Solicitor and witnesses, the admission of improper character evidence and the prevalence of a melodramatic atmosphere and other influences had combined to deprive the defendants of a fair trial.' (Emphasis added.)
If a new trial was sought from the trial judge on basis of failure to continue, the grounds therefor do not appear in the record.
There is filed with this court an affidavit of Brown's counsel dated November 9, 1970, (23 months after the trial which sets forth factually why Brown's counsel contends the case should have been continued. Normally this affidavit would not be considered as a part of the record, but inasmuch as it is referred to in the agreed statement we consider the same in fairness to counsel and to the defendant.
It does not appear elsewhere in the record proper, but it does appear in the affidavit that counsel was appointed for Brown by order signed November 27, 1968; the attorney did not receive notice of the appointment until November 29. The case was called for trial on Monday, December 9, 1968, and it is the basic contention of Brown that his attorney did not have time to get ready for trial. It is submitted that from the date notice was received, two weekends intervened, leaving in actuality only five workdays for preparation.
Obviously, any motion for a continuance should be considered on the merits before a trial commences. It is difficult to determine just what motions the judge had in mind when he marked them heard at the beginning of the trial of the case. State's counsel argues that he did not refer to motions for a continuance since the granting of such would have postponed the trial.
There is, however, in the attorney's affidavit something significant which we quote:
We consider the affidavit made twenty-three months after the trial the same as if it had been filed before the commencement of the trial, and the same as though it was overruled as a matter of discretion to determine if the showing was arguably sufficient to have justified a continuance, and to determine if the rights of Brown have been prejudiced by the fact that the trial judge ordered the case to proceed. Failure to consider a motion for a continuance, if made prior to the trial of the case, is, of course, error, but such would not entitle an accused person to a new trial unless the same is prejudicial. The basic question is, of course: did the defendant, Brown, receive a fair trial?
The essence of the affidavit is that counsel had not had time to talk with his client and to interview prospective witnesses or to confer with counsel for other defendants, and had not received a reply to his letter addressed to the warden asking about Brown's prison record.
The following from our case of State v. Motley, 251 S.C. 568, 164 S.E.2d 569 (1968), is equally applicable here:
We cannot say as a matter of law that the showing made necessitated a continuance of the case, nor can we say that the rights of Brown have been prejudiced. A reading of the record reveals that Mr. King represented Brown well under difficult circumstances. He was not entitled to a perfect trial, only a fair one.
In the light of the fact that two riots had occurred it is understandable that the solicitor, acting for the state, felt compelled to give the case prompt attention. The trial lasted five days. Four alibi witnesses testified for Brown and averred that he was not at the place State's witnesses swore him to be. Brown himself did not testify. Other prisoners and/or guards who might have been at or about the scene of the riot were readily available to testify and might have been subpoenaed...
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