State v. Howard

• Decision Date: 08 June 1987
• Docket Number: No. 22844,22844
• Citation: 295 S.C. 462,369 S.E.2d 132
• Parties: The STATE, Respondent, v. Ronnie HOWARD and Dana Ricardo Weldon, Appellants. . Heard
• Court: South Carolina Supreme Court

Page 132

369 S.E.2d 132

295 S.C. 462

The STATE, Respondent, v. Ronnie HOWARD and Dana Ricardo Weldon, Appellants.

No. 22844.

Supreme Court of South Carolina.

Heard June 8, 1987.

Decided Feb. 29, 1988.

Deputy Chief Atty. Elizabeth C. Fullwood, of S.C. Office of Appellate Defense, Columbia, for appellant Ronnie Howard.

David I. Bruck, Columbia, Greenville County Public Defender H.F. Partee, and Stuart G. Anderson, Jr., Greenville, for appellant Dana Ricardo Weldon.

Atty. Gen. T. Travis Medlock, Asst. Attys. Gen. Harold M. Coombs, Jr., and William Edgar Salter, III, Columbia, and Sol. Joseph J. Watson, Greenville, for respondent.

GREGORY, Justice:

Appellants Howard and Weldon were tried jointly and convicted of murder, kidnapping, armed robbery, and conspiracy. Both were sentenced to death plus twenty-five years for armed robbery and five years for conspiracy. We affirm in part, reverse in part, and remand.

Appellants were convicted of murdering Chinh Le, a Vietnamese woman who disappeared upon leaving her place of work in Greenville, South Carolina, one night in August 1985. The victim's naked body was discovered several weeks later under kudzu vines near a road in an isolated area of Greenville County. The body was partially decomposed and the exact cause of death could not be determined. Her white Ford Granada automobile was found in Columbia, South Carolina, some one hundred miles away.

GUILT PHASE

Appellants claim error in the trial judge's refusal to quash the jury panel pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

Both Howard and Weldon are members of the black race. Only one black juror was seated. The solicitor used seven of his peremptory strikes to eliminate blacks from the jury. Upon appellants' motion, the trial judge found a prima facie showing of racial discrimination and held a Batson hearing for the Solicitor to offer explanations for striking those seven black jurors. Appellants contend the Solicitor's explanations were insufficient and the jury panel should have been quashed. We disagree.

Batson requires the prosecutor to articulate a neutral explanation for striking a juror related to the particular case to be tried. The explanation, however, need not rise to the level of justification for a challenge for cause. 106 S.Ct. at 1723. The Solicitor's articulated reasons concerned these jurors' perceived attitudes to the death penalty. On the record before us, we are satisfied that the trial judge's ruling complied with Batson and the motion to quash the jury panel was properly denied.

Appellants assert the trial judge erred in refusing to sever their trials. Both appellants gave confessions to police officers that were redacted before admission at trial. Neither appellant testified. Each contends the improper admission of his codefendant's confession at their joint trial violated his right of confrontation.

Howard's confession indicated that he and Weldon formulated a plan to find a lone female driver whom they could easily overpower to steal her automobile. They waited in a car alongside a road in Greer, South Carolina, until sometime after midnight when Weldon spotted a woman driving a white Ford Granada automobile. The two men followed her to a rural area. Howard, who was driving, bumped the rear of her vehicle when she stopped at a stop sign. When the woman exited her car to inspect the damage, Howard brandished a handgun and forced her back into the car. Howard drove off in the victim's car and Weldon followed in the other car.

After driving around for some time, Howard stopped in an isolated area. Weldon pulled over and joined Howard in the victim's vehicle. The woman said she was Vietnamese. She did not seem to understand English very well. Howard pulled a piece of plastic over her head and held it tightly while Weldon punched her several times in the stomach.

After assuring themselves the victim was dead, they stripped her body and washed it with soft drinks from a grocery bag in the back of the car in order to eliminate fingerprints. The two men drove to another isolated area. They removed the body from the car, washed it again in a mud puddle, and flung it into an overgrown area of kudzu vines. They later disposed of the victim's clothes and personal effects in various garbage dumpsters in Charlotte, North Carolina, and abandoned her car in the parking lot of an apartment complex in Columbia, South Carolina.

Weldon's confession relates the same facts regarding his own and Howard's culpability. In its original form, however, it repeatedly refers to minor acts Howard told Weldon to do during commission of the crime. This statement was redacted to eliminate all inferences that Howard was the initiator of their criminal enterprise.

The issue before us concerns the admissibility of a non-testifying codefendant's statement that incriminates the defendant, a subject recently addressed by the United States Supreme Court in Cruz v. New York, 481 U.S. ----, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987). ¹ The Court held:

[W]here a nontestifying codefendant's confession incriminating the defendant is not directly admissible against the defendant [citing Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986) ], the Confrontation Clause bars its admission at their joint trial.... Of course, the defendant's confession may be considered at trial in assessing whether his codefendant's statements are supported by sufficient "indicia of reliability" to be directly admissible against him and may be considered on appeal in assessing whether any Confrontation Clause violation was harmless. 107 S.Ct. at 1719.

We quote extensively here to emphasize that the United States Supreme Court has not condemned admission of a co-defendant's confession but has merely shifted the focus of analysis. Such a statement will no longer be considered reliable simply because some of the facts it contains "interlock" with the defendant's own statement. The presumption of unreliability that applies to a codefendant's statement will be overcome only if those portions of the statement concerning the defendant's participation are "thoroughly substantiated" by the defendant's own confession. Lee v. Illinois, 106 S.Ct. at 2064-65; cf. State v. Martin, 293 S.C. 46, 358 S.E.2d 697 (1987). Even when this analysis is not applied at trial to determine the statement's admissibility, on appeal the same analysis is appropriate to determine whether any Confrontation Clause violation was harmless. Appellants' statements mutually and completely substantiated each other. We hold any Confrontation Clause violation to either appellant was harmless.

Each appellant further contends there was no proof of the corpus delicti aside from his confession and the case should not have been submitted to the jury. This contention is without merit. Each codefendant's confession is independent proof of the corpus delicti of the crimes committed by the other codefendant. ² Further, the circumstantial evidence in this case proves the corpus delicti of both murder and kidnapping. See State v. Owens, 293 S.C. 161, 359 S.E.2d 275 (1987).

Next, each appellant contends his confession should have been suppressed because it was taken in violation of his right to counsel. We disagree.

Howard first argues that his fifth amendment right to counsel was violated under Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Edwards requires that custodial interrogation cease once an accused requests counsel unless the accused himself initiates further communication with police. Howard claims the evidence does not establish that he personally initiated the contact which resulted in his confession.

Howard was arrested and questioned by FBI agents regarding other crimes. While in custody, he spoke with his federal probation officer, Heywood Polk. Polk then contacted the FBI to arrange the interview that resulted in Howard's confession to the murder of Chinh Le. Howard testified at the suppression hearing that he requested an attorney before speaking with Polk. The FBI agent testified to the contrary that Howard made no request for an attorney before voluntarily giving his statement. It is uncontested that Howard received Miranda warnings.

When there is conflicting evidence on the issue of voluntariness, it is for determination by the jury unless the trial judge finds the evidence must be suppressed as a matter of law. State v. Adams, 279 S.C. 228, 306 S.E.2d 208 (1983). We do not find as a matter of law that the confession should have been suppressed on the basis of Howard's assertion that he requested counsel. The trial judge properly submitted the issue of voluntariness to the jury with complete instructions that it must find beyond a reasonable doubt that Howard understood and waived his rights. We find no error.

Further, both appellants allege violation of the sixth amendment right to counsel under Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986). Jackson applied the Edwards rule to post-arraignment custodial interrogation. Once a defendant invokes his right to counsel at the initiation of adversarial judicial proceedings, he is not deemed to waive his right to counsel at subsequent custodial interrogation unless he initiates the contact even if no request for counsel is made to police. Appellants contend that because they were already represented by counsel regarding different offenses in North Carolina, FBI and South Carolina agents could not interrogate either of them without counsel present.

We reject this argument. We hold that Jackson does not apply to require the State to establish the waiver of a sixth amendment right to counsel when the defendant has invoked that right only for a different offense in a different jurisdiction. See Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966) (uncounseled post-indictment statement...