State v. Hawkins

• Decision Date: 05 January 1987
• Docket Number: No. 22725,22725
• Citation: 357 S.E.2d 10,292 S.C. 418
• Parties: , 88 A.L.R.4th 1 The STATE, Respondent, v. Calvin HAWKINS, Appellant. . Heard
• Court: South Carolina Supreme Court

Page 10

357 S.E.2d 10

292 S.C. 418, 88 A.L.R.4th 1

The STATE, Respondent, v. Calvin HAWKINS, Appellant.

No. 22725.

Supreme Court of South Carolina.

Heard Jan. 5, 1987.

Decided May 26, 1987.

Chief Atty. William Isaac Diggs and Asst. Appellate Defender Joseph L. Savitz, III, S.C. Office of Appellate Defense, Columbia, for appellant.

Atty. Gen. T. Travis Medlock and Asst. Atty. Gen. Harold M. Coombs, Jr., Columbia and Solicitor J. Dupre Miller, Bennettsville, for respondent.

FINNEY, Justice:

The appellant Calvin Hawkins, Calvin McCoy and Johnny Addison were indicted for murder, burglary and arson arising out of the death, theft of property and burning of the home of Ernest L. Gibson. The appellant was convicted of all charges and received sentences of death for murder, life imprisonment for burglary and twenty years for arson. We reverse and remand for a new trial.

On March 27, 1985, after 7:00 P.M., ninety year old Ernest L. Gibson died from carbon monoxide poisoning during a fire at his home. The evidence revealed the victim suffered a broken neck prior to or during the early stages of the fire, that while he was disabled, kerosene was poured around him and intentionally incinerated. In addition, a television set was missing from the residence.

McCoy and Addison gave several conflicting statements, each of which were to some extent both exculpatory and inculpatory, and attributed varying degrees of culpability to each other and the appellant in the commission of the crimes.

On the first day of trial after the jury panel was questioned but prior to individual voir dire, the Solicitor withdrew prosecution of Addison "at this time." Afterward Addison testified on the state's behalf. Over objection of appellant, the state was allowed to declare Addison a hostile witness. After the state rested its case in chief, appellant Hawkins presented several witnesses supporting the defense of alibi; however, the appellant did not testify. At the conclusion of appellant's case, defendant McCoy pled guilty to murder, burglary and arson. Sentencing of McCoy was deferred.

Subsequently, McCoy's guilty plea was published to the jury. The State was permitted to reopen its case and put McCoy on the stand not only in reply, but to "tell all he knew about this situation." [Emphasis supplied.] The state also called Deborah Jackson and recalled Billy J. Abercrombie. Thereafter, appellant, Calvin Hawkins testified during the guilt phase of the trial.

The appellant raises numerous issues asserting errors. This opinion will address only those pertinent to a resolution of the case.

First, appellant alleges the court erred in overruling appellant's objection to the Solicitor's reference to appellant as "Mad Dog" during voir dire, throughout the trial and closing arguments; that such references denied appellant due process of law and infected the proceedings with an arbitrary factor, in violation of the Eighth Amendment to the United States Constitution and South Carolina Code of Laws Annotated, § 16-3-20 et seq. (1976). This allegation is premised upon a series of references which had their inception during voir dire examination when the Solicitor inquired of a potential juror:

Q. Have you ever heard of anyone referred to as "Mad Dog Hawkins"?

A. No.

Appellant objected, and the court overruled the objection. The state then used the term "Mad Dog" in excess of forty times during the guilt phase and sentencing proceedings of the trial. For example, at one point in the guilt phase argument, the Solicitor argued:

... If you hang around with the wrong crowd, you are going to get in trouble. He was hanging around with Mad Dog this night. He was in there and he saw Mad Dog pouring the kerosene around the old man. He saw Mad Dog putting the trail through the house. He saw Mad Dog on the porch when it lit ... [Emphasis supplied].

In another instance during the sentencing phase closing argument, the Solicitor said:

... Despicable? This crime warrants what the State is asking for. Mr. Hawkins--Mr. Hawkins, Calvin "Mad Dog " Hawkins. He says he has had the name since he was a young man. Well, he proved that it was deserving ... [Emphasis supplied].

The appellant, as well as McCoy and Addison, testified that he had acquired the nickname "Mad Dog". Unquestionably, it was permissible for the Solicitor to make inquiry sufficient to clarify appellant's identity. However, under the circumstances of this case, we find the excessive and repetitious use of the term denied appellant the right to a fair trial and infected the sentencing proceedings with an arbitrary factor, in violation of the Eighth Amendment to the United States Constitution and the laws of South Carolina.

In Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974), the United States Supreme Court stated that the relevant question in determining if an accused's rights were violated is whether the prosecutor's comments "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Id., at 643, 94 S.Ct. at 1871.

The Supreme Court reaffirmed the Donnelly relevant-question test in Darden v. Wainwright, 477 U.S. 187, 106 S.Ct. 2464, 2476, 91 L.Ed.2d 144 (1986). In that case, the Court held that comments by the Solicitor failed to meet the test set out in Donnelly v. DeChristoforo, supra, because (1) the comment was an "invited response" to defense counsel's argument, (2) the evidence against Darden constituted "overwhelming eyewitness and circumstantial evidence to support a finding of guilt on all charges", and (3) the trial court several times instructed the jurors that their decision was to be made on the basis of evidence alone and the arguments of counsel were not evidence. Darden v. Wainwright, 106 S.Ct. at 2472-2473.

In the case at bar, we are of the opinion the Donnelly v. DeChristoforo test has been met. First, the Solicitor initiated use of the term "Mad Dog" over appellant's objection during the preliminary stages of the proceedings, and the prosecutor's repetition of the appellation throughout the trial was not an "invited response".

Second, the evidence against the appellant could not be considered overwhelming. The inconsistent testimony of McCoy and Addison as to the role of each accused in the crime constituted the primary evidence at trial.

Finally, the trial judge's instructions did not clearly admonish the jury that arguments of counsel could not be considered as evidence.

We note that in South Carolina, the test is similar to that followed by the Federal Courts. As this Court said in State v. White, 246 S.C. 502, 144 S.E.2d 481 (1965), [quoting State v. Gilstrap, 205 S.C. 412, 32 S.E.2d 163 (1944) ]:

The rule followed in this State, and we think in most jurisdictions, is that if upon the whole case, it appears to the Court that the...