State v. Holland

• Decision Date: 28 November 1973
• Docket Number: No. 19729,19729
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. William R. HOLLAND et al., Appellants.

Page 118

201 S.E.2d 118

261 S.C. 488

The STATE, Respondent, v. William R. HOLLAND et al., Appellants.

No. 19729.

Supreme Court of South Carolina.

Nov. 28, 1973.

Edward C. Cushman, Jr., and Sylvia W. Westerdahl, Aiken, and Kermit S. King, Columbia, for appellants.

Sol., Leonard A. Williamson, and Asst. Sol., C. Lavaun Fox, Aiken, and Asst. Attys. Gen., C. T. Goolsby, Jr., and Dudley Saleeby, Jr., Columbia, for respondent.

MOSS, Chief Justice:

At the 1971 October Term of the Court of General Sessions for Aiken County, William R. Holland, Osgood M. Leland, Gary V. Faust, Bruce G. Poe, Dennis Davis, the appellants herein, and Richard Lee Richards and Danny W. Robertson were indicted for the murder of the Thomas Bolin.

The case came on for trial at the same term of the court before the Honorable James A. Spruill, Jr., Presiding Judge, and a jury. At the time of the trial Danny W. Robertson had not been apprehended, and Richard Lee Richards entered a plea of guilty. After a week long trial, the jury returned a verdict of guilty of murder without recommendation to mercy as to the appellants.

At the conclusion of the testimony offered by the State and upon the close of all of the testimony, the appellants moved for a directed verdict of not guilty. After the rendition of the verdict the appellants made a motion for judgment Non obstante veredicto, and in the alternative for a new trial. The trial judge took the motion for a new trial under advisement and then imposed the sentence of death upon the appellants, who had been found guilty by the jury. Thereafter, Judge Spruill ordered the proceedings of the trial to be transcribed in order that he might study the same prior to ruling on the post-conviction motions of the appellants. After the delivery of the transcript of the trial proceedings, Judge Spruill, on July 26, 1972, heard oral arguments upon the motions made. The hearing of the motions of the appellants was delayed by agreement of counsel because of the cases pending in the United States Supreme Court concerning the constitutionality of the imposition of the death penalty. The decision of the United States Supreme Court, on June 29, 1972, in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, had the effect of invalidating the appellants' sentences to death by electrocution.

The trial judge, by his order dated August 30, 1972, refused the motion of the appellants for a new trial, upon the grounds hereinafter discussed, but did remand the case to the Court of General Sessions for Aiken County for the re-sentencing of the appellants in the light of the decision in Furman v. Georgia. Thereafter, in due course, the appellants were re-sentenced by the Honorable Louis Rosen, the then presiding judge, to serve life sentences.

The appeal in this case, which was timely noticed, relates to the pre-trial, trial, and post-trial rulings of the presiding judge. The appellant Holland has filed a separate brief and the other appellants a joint brief. Because the questions posed in the separate briefs are substantially the same, only one disposition thereof is necessary.

The appellants charge the trial judge with error in refusing to grant a continuance in this case.

Thomas Bolin was killed on June 18, 1971, and of the appellants were arrested shortly thereafter. Each was represented by counsel at a preliminary hearing conducted on August 30, 1971. The trial began on October 12, 1971, more than three and one-half months after the date of the alleged offense. The appellants cited as justification for the continuance the need to prepare for the eventuality that Richard Lee Richards might plead guilty and thereafter testify in behalf of the State. The record shows that this eventuality never materialized. Richards did enter a plea of guilty but never testified.

We have held in numerous cases that a motion for a continuance is addressed to the discretion of the trial judge and his disposition thereof will not be reversed unless it is shown that there was an abuse of discretion to the prejudice of the appellants. State v. Britt, 235 S.C. 395, 111 S.E.2d 669. There was no error on the part of the trial judge in refusing the motion based on the ground stated.

The appellants also assert error, by a post-conviction motion, on the part of the trial judge in that they were prejudiced by the lack of time available in which to study a list of additional veniremen drawn five days prior to the trial.

The trial judge refused to find that any error was committed in denying the motion for a continuance, ruling instead that the period available was adequate to enable counsel to study a new jury list. In State v. Britt, 237 S.C. 293, 117 S.E.2d 379, a similar question was raised. We there held that there was no error in the denial of a motion for a continuance to enable the defendant to study a list of the extra jurors who had been drawn five days prior to trial. We find no error in this respect.

The appellants charge that the trial judge committed prejudicial error in refusing their motions for a separate trial on the ground of dissimilarity of the defenses and that testimony to be offered by the State would be admissible and relevant as to one defendant and inadmissible and irrelevant as to the others. The motions were on the further ground that some of the appellants would testify and others would remain silent, and this would have the effect of prejudicing the jury with respect to any of the appellants who elected not to testify.

This Court has repeatedly held that a motion for a severance and separate trial on the part of one or more defendants, where several persons are jointly charged with a criminal offense, is addressed to the discretion of the trial judge, and only an abuse of that discretion would constitute reversible error. State v. Harvey, 253 S.C. 328, 170 S.E.2d 657. Since the appellants were jointly charged with the murder of the deceased, they were not entitled to be tried separately as a matter of right. State v. Crowe, 258 S.C. 258, 188 S.E.2d 379.

A careful review of the record in this case clearly shows that the rulings of the trial judge and his cautionary instructions to the jury protected the rights of each individual appellant and there was no prejudice arising out of their joint trial. It follows that there was no abuse of discretion on the part of the trial judge in refusing the motion of the appellants for separate trials.

The appellants allege error on the part of the trial judge in refusing their pretrial motion to dismiss the indictment and venire on the ground that pre-trial publicity concerning their case would prevent a fair and impartial trial.

At the hearing of the motion, the appellants introduced articles from various newspapers and magazines and called attention to radio and television coverage of the case. Based thereon it was argued that the appellants could not receive a fair trial in Aiken County or in any other county in this State. It was further argued that it would be impossible to select a fair and impartial jury in Aiken County or in the surrounding counties. We point out that there was no motion for a change of venue based upon the ground that a fair and impartial trial could not be had in Aiken County.

In State v. Ham, 259 S.C. 118, 191 S.E.2d 13, a motion was made to dismiss the indictment on the ground of undue publicity, and we characterized such position as 'a novel one and we have not been able to find a precedent for such dismissal nor has he cited any authority for such.' We concluded in the Ham case that the appellant was not entitled to a dismissal of the indictment against him for pre-trial publicity which he considered adverse to him. Our decision in Ham dictates that the motion to quash the indictment and the venire was properly refused.

It is the duty of the trial judge to assure himself that each and every prospective juror is unbiased, fair, and impartial. In this case the trial judge, under his Voir dire examination, asked all prospective jurors the statutory questions required by Section 38--202 of the 1962 Code of Laws. Additionally, the trial judge questioned the jurors to determine the existence of any bias, prejudice or adverse influence from newspaper publicity and discussion of the case in the community. In response to the questions by the trial judge, the jurors selected to try this case stated that they were not biased or prejudiced and could give the appellants a fair and impartial trial. It is thus apparent from the Voir dire examination of the jurors that the claim of prejudice from pre-trial publicity was not established. The trial judge properly refused the motion of the appellants to quash the indictment and the venire. State v. Crowe, 258 S.C. 258, 188 S.E.2d 379.

Prior to trial, counsel for the defendant Richard Lee Richards made a motion that he be committed to the State Hospital for psychiatric examination. This motion was refused, but the trial judge stated that if Richards entered a plea of guilty or was convicted he would sign an order giving him a mental examination. The trial judge further stated that if it should develop that Richards was mentally ill or insane, a new trial would be granted.

The appellants assert that the trial judge erred in refusing the motion that Richards be committed to the State Hospital for psychiatric examination, alleging that such refusal denied them any testimony relative to the mental capacity of Richards at the time of the slaying of Thomas Bolin.

We have held in many cases that under Section 32--969 of the 1962 Code, as amended, that the decision as to whether a defendant in a criminal case should be committed, on motion of his attorneys, to the State Hospital for examination rests in the trial court's discretion and will not be set aside unless there is a clear showing of abuse in the exercise of such discretion. State v. Sharpe, 239 S.C. 258, 122 S.E.2d 622. We have...