State v. Halcomb, 4516.

Citation676 S.E.2d 149
Decision Date11 March 2009
Docket NumberNo. 4516.,4516.
CourtCourt of Appeals of South Carolina
PartiesThe STATE, Respondent, v. Fred R. HALCOMB, Jr., Appellant.

Deputy Chief Attorney for Capital Appeals, Robert M. Dudek, of Columbia; for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, of Columbia; and John Gregory Hembree, of Conway; for Respondent.

GEATHERS, J.

This is an appeal from a murder conviction. In a joint trial with Luzenski "Allen" Cottrell (Cottrell), Appellant Fred R. Halcomb (Halcomb) was found guilty of the murder of Jonathan "Jon Jon" Love (Love). Halcomb asserts the trial court erred when it denied his motion for severance of trial and when it refused to admit certain evidence that allegedly demonstrated codefendant Cottrell's personal motive for murdering Love. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

After Halcomb and Cottrell were indicted for Love's murder, Halcomb made a pretrial motion for severance of trial that was denied. Subsequently, Halcomb and Cottrell were convicted under the "hand of one is the hand of all" theory of accomplice liability.1 The State asserted that Halcomb and Cottrell killed Love when Love, working at their command, botched an intended arson of reputed drug dealer Brett Smalls' (Smalls) house. The State then alleged that Halcomb and Cottrell sought to burn down Smalls' residence because Smalls and his comrades demanded payment for marijuana that Halcomb and Cottrell stole from Smalls.

The evidence presented at trial was predominantly testimonial. Halcomb's girlfriend, Diane Lawson (Lawson), testified that Halcomb directed Love to commit arson. When Halcomb discovered that the arson attempt had failed, he conspired with Cottrell to kill Love because he believed that Love had become a liability. In fact, the State theorized that in this particular instance, Halcomb exercised control over Cottrell and ordered him to kill Love.

On the night of the murder, Halcomb, Cottrell, Love, and Lawson went to a wooded location in Marion County, and Halcomb directed Cottrell and Love to dig a hole. Halcomb had instructed Lawson, who stayed in the car, to monitor the surroundings for approaching vehicles and to warn Halcomb of nearing vehicles by turning on the headlights of their car. At one point during the digging, Halcomb took the shovel and showed the parties how to "corner off" the hole. Moments later, Halcomb returned to the car.

Later, Cottrell and Love stopped digging and returned to the car for a smoke break, and it was at that time that Halcomb surreptitiously handed a gun to Cottrell. All three men then returned to the woods to finish the digging.

Subsequently, Lawson heard several gunshots coming from where the parties were digging. Moments later, Halcomb returned to the car and asked Lawson whether she had heard anything. She replied that she had, and Halcomb went back to the hole and did not return for an hour. When Halcomb and Cottrell reappeared, Love did not accompany them. After they returned to the house, Halcomb told Lawson that he and Cottrell "had to go get rid of the evidence." Cottrell later joked about the "smoke" coming from Love's head "like a mushroom cloud" after he was shot. Halcomb also quipped about the fact that Love was still gurgling when they buried him. Cottrell indicated to another witness that he was disgusted when he killed Love because Love had "used the bathroom on himself." The pathologist testified that Love had received four gunshot wounds, two of which proved fatal.

Further, Amber Counts (Counts), one of Cottrell's girlfriends at the time, stated to law enforcement that while she and Cottrell were separately incarcerated, Cottrell allegedly wrote her a letter in which he stated that "J.J. had tried to sexually assault Cottrell's girlfriend and that J.J. would never hurt anyone again." Apparently, the alleged letter did not indicate the identity of J.J., but Halcomb asserted that those are the initials for Jon Jon, a nickname for Love. Law enforcement testified that they never received the letter and that Counts stated that she had destroyed the letter. The only evidence of the existence of the letter or its contents was Counts' statements.

STANDARD OF REVIEW

In criminal cases, the appellate court sits to review errors of law only. State v. Wilson, 345 S.C. 1, 5-6, 545 S.E.2d 827, 829 (2001); State v. Butler, 353 S.C. 383, 388, 577 S.E.2d 498, 500 (Ct.App.2003). The appellate court is limited to determining whether the trial court abused its discretion. State v. Reed, 332 S.C. 35, 43, 503 S.E.2d 747, 751 (1998); State v. Bowie, 360 S.C. 210, 216, 600 S.E.2d 112, 115 (Ct.App.2004). An abuse of discretion occurs when the trial court's ruling is based on an error of law. State v. Foster, 354 S.C. 614, 621, 582 S.E.2d 426, 429 (2003); State v. Adams, 354 S.C. 361, 378, 580 S.E.2d 785, 793-94 (Ct.App.2003).

This Court does not reassess the facts based on its own view of the preponderance of the evidence but simply determines whether the trial court's ruling is supported by any evidence. Wilson, 345 S.C. at 6, 545 S.E.2d at 829; State v. Mattison, 352 S.C. 577, 583, 575 S.E.2d 852, 855 (Ct.App.2003). Furthermore, this Court is bound by the trial court's factual findings unless they are clearly erroneous. State v. Quattlebaum, 338 S.C. 441, 452, 527 S.E.2d 105, 111 (2000); State v. Landis, 362 S.C. 97, 101, 606 S.E.2d 503, 505 (Ct.App.2004).

ISSUES ON APPEAL

1. Did the trial court err in refusing to grant a severance of trial when a joint trial was allegedly prejudicial to Halcomb because the exclusion of certain evidence hindered his ability to present a defense?

2. Did the trial court err in excluding evidence of Cottrell's letter to Counts in which Cottrell allegedly revealed a personal motive for murdering Love that would have exculpated Halcomb?

LAW/ANALYSIS

A. Severance of Trial

Halcomb contends the trial court erred in refusing to grant him a separate trial. Halcomb maintains that the joint trial was prejudicial to him because it limited his ability to present evidence (1) that could have rebutted the State's theory that Halcomb controlled Cottrell, and (2) of Cottrell's letter to Counts that revealed Cottrell's personal motive for murder. We find no error.

Criminal defendants who are jointly tried for murder are not entitled to separate trials as a matter of right. State v. Kelsey, 331 S.C. 50, 73, 502 S.E.2d 63, 75 (1998); State v. Garrett, 350 S.C. 613, 620, 567 S.E.2d 523, 526 (Ct.App.2002). A motion for severance is addressed to the sound discretion of the trial court. State v. Harris, 351 S.C. 643, 652, 572 S.E.2d 267, 272 (2002); State v. Walker, 366 S.C. 643, 656, 623 S.E.2d 122, 128 (Ct.App.2005). The trial court's ruling will not be disturbed on appeal absent an abuse of that discretion. Harris, 351 S.C. at 652, 572 S.E.2d at 272; State v. Tucker, 324 S.C. 155, 164, 478 S.E.2d 260, 265 (1996). An abuse of discretion occurs when a trial court's decision is unsupported by the evidence or controlled by an error of law. Walker, 366 S.C. at 656, 623 S.E.2d at 129; State v. Lopez, 352 S.C. 373, 378, 574 S.E.2d 210, 212 (Ct.App.2002).

There is no clearly defined rule for determining when a defendant is entitled to a separate trial, because the exercise of discretion means that the decision must be based upon a just and proper consideration of the particular circumstances which are presented to the court in each case. State v. McIntire, 221 S.C. 504, 504, 71 S.E.2d 410, 415 (1952); State v. Avery, 374 S.C. 524, 533, 649 S.E.2d 102, 107 (Ct.App.2007); State v. Castineira, 341 S.C. 619, 624, 535 S.E.2d 449, 452 (Ct.App.2000), aff'd, 351 S.C. 635, 572 S.E.2d 263 (2002). A severance should be granted only when there is a serious risk that a joint trial would compromise a specific trial right of a codefendant or prevent the jury from making a reliable judgment about a codefendant's guilt. Harris, 351 S.C. at 652-53, 572 S.E.2d at 273; State v. Dennis, 337 S.C. 275, 282, 523 S.E.2d 173, 176 (1999). An appellate court should not reverse a conviction achieved at a joint trial in the absence of a reasonable probability that the defendant would have obtained a more favorable result at a separate trial. Hughes v. State, 346 S.C. 554, 559, 552 S.E.2d 315, 317 (2001).

A defendant who alleges he was improperly tried jointly must show prejudice before an appellate court will reverse his conviction. Dennis, 337 S.C. at 281, 523 S.E.2d at 176; State v. Thompson, 279 S.C. 405, 408, 308 S.E.2d 364, 366 (1983). The rule allowing joint trials is not impugned simply because the codefendants may present evidence accusing each other of the crime. Dennis, 337 S.C. at 281, 523 S.E.2d at 176; State v. Smith, 359 S.C. 481, 489-90, 597 S.E.2d 888, 893 (Ct.App.2004). A proper cautionary instruction may help protect the individual rights of each defendant and ensure that no prejudice results from a joint trial. Hughes, 346 S.C. at 559, 552 S.E.2d at 317.

In the instant matter, the trial court did not abuse its discretion in denying Halcomb's pretrial motion to sever the joint trial because the court's decision was based upon a just and proper consideration of the circumstances in this case. The trial court carefully considered whether any harm would result to either defendant as a result of a joint trial. In addition, the trial court noted that there were valid administrative and judicial economy reasons for denying the motion to sever.

Halcomb asserts he should have been granted a separate trial so he could present evidence that Cottrell acted independently of him when he killed a police officer ten days after Love's murder. According to Halcomb, such evidence is relevant because it would rebut the State's theory that Halcomb controlled Cottrell. However, the trial court correctly found...

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