State v. Howard, 22921

• Decision Date: 05 April 1988
• Docket Number: No. 22921,22921
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Ronnie HOWARD, Appellant. . Heard

Page 284

374 S.E.2d 284

296 S.C. 481

The STATE, Respondent, v. Ronnie HOWARD, Appellant.

No. 22921.

Supreme Court of South Carolina.

Heard April 5, 1988.

Decided Nov. 14, 1988.

Chief Atty. William Isaac Diggs, and Deputy Chief Atty. Elizabeth C. Fullwood, of S.C. Office of Appellate Defense, Columbia, for appellant.

Atty. Gen. T. Travis Medlock, Asst. Attys. Gen. Harold M. Coombs, Jr. and Norman Mark Rapoport, Columbia and Sol. George M. Ducworth, Anderson, for respondent.

TOAL, Justice:

Appellant Ronnie Howard was convicted of murder, and sentenced to life imprisonment. Howard contends the trial court abused its discretion in not declaring a mistrial when a codefendant, while testifying, referred to an unrelated homicide allegedly committed by Howard. Howard also challenges the voluntariness of a statement he gave to the FBI. We affirm Howard's conviction.

I. MISTRIAL PROPERLY DENIED

At the trial, codefendant Edmond testified generally that Howard coerced him to participate in the murder. Edmond testified that Howard had intimidated him by thrusting a .357 Magnum pistol into his chest and stating, "Shut up, you're going along with this." The solicitor cross-examined Edmond and inquired why Edmond did not escape during the commission of the crime. Edmond responded: "Prior to this incident in December, Howard was involved in a possible homicide which I...." Counsel for Howard immediately objected to the testimony. The trial court then instructed the jury to "disregard anything concerning anything like that." The Court further instructed the jury that Edmond's answer was not responsive to the solicitor's question and was not relevant to the trial.

Shortly thereafter, the solicitor again asked why Edmond could not escape, to which he replied: "Because of prior warnings and because of this previous incident that I was about to go into a few minutes ago." Counsel objected again. The trial court did not renew its curative instruction. Counsel for Howard then moved for a mistrial.

The ordering or refusal of a mistrial is in the discretion of the trial judge. State v. Lynn, 277 S.C. 222, 284 S.E.2d 786 (1981). This Court favors the exercise of the wide discretion of the circuit judge in determining the merits of such motion in each individual case. State v. Thompson, 276 S.C. 616, 281 S.E.2d 216 (1981). Among the factors to be considered in ordering a mistrial are the character of the testimony, the circumstances under which it was offered, the nature of the case, and the other testimony in the case. 281 S.E.2d at 219. The decision of the judge in denying a motion for a mistrial will not be disturbed unless there has been an abuse of discretion, amounting to an error of law. State v. Arnold, 266 S.C. 153, 221 S.E.2d 867 (1976).

Howard contends that Edmond's reference to another possible homicide committed by Howard impermissibly placed evidence of other crimes into evidence. Generally, evidence of other crimes is inadmissible to prove the character of the person in order to show that he acted in conformity therewith. State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923). Evidence of other crimes, however, may be introduced to prove "motive, intent, the absence of mistake or accident, a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others, or the identity of the person charged with the commission of the crime on trial." 118 S.E. at 807. Here, the statements by Edmond concerning other crimes were inadmissible since the statements do not fall into one of the exceptions under Lyle. The issue then becomes whether the trial judge cured the improper statements by his instruction to the jury.

This Court addressed the issue of what constitutes a sufficient curative instruction in State v. Smith, 290 S.C. 393, 350 S.E.2d 923 (1986). There, we reversed the trial court for failure to give an adequate instruction when the solicitor improperly asked the psychiatrist whether he was aware that Smith had refused to make a statement to police officers. The judge asked the jurors if anyone remembered the solicitor's question. When a juror responded affirmatively, the judge told the juror to "forget it" and not to talk to anybody else [about the question]. 350 S.E.2d at 924.

Reasoning that the judge's casual remark to "forget" the question did not serve as a curative instruction, we stated: "Great care should be exercised in the 'delicate, difficult and important matter' of instructing the jury to disregard incompetent evidence." Id. 350 S.E.2d at 924. We also noted that the jury should be instructed to disregard the evidence, and not to consider it for any purpose during deliberations. Id.

In the present case, the judge instructed all the jurors to disregard what the codefendant had said. The judge, exercising care not to underscore the codefendant's statement, did not specifically instruct the jury to disregard the statement concerning the homicide. The judge also admonished the jury that the statement "ha[d] nothing to do with this trial." The present case, thus, is distinguishable from Smith. In Smith, the judge merely inquired whether anybody remembered the question, and then told the one juror who responded to "forget it." The judge's instruction in the instant case far exceeded the casual remark by the judge in Smith. The trial judge, therefore, did not abuse his discretion by not declaring a mistrial because of Edmond's first statement.

The judge, however, failed to give a curative instruction when Edmond mentioned the homicide a second time. Since the statement was improper, and because the judge failed to give a curative instruction, Howard contends that the trial court erred in not declaring a mistrial. The granting or refusal of a motion for a mistrial is a discretionary matter with the trial judge which will not be interfered with on appeal absent an abuse of discretion. Wilson v. State, 276 S.C. 609, 281 S.E.2d 128 (1981). We find that the judge did not abuse his discretion in failing to declare a mistrial.

Moreover, the record clearly supports Howard's conviction. Howard confessed to the crime. ¹ A codefendant testified that Howard suffocated the victim. Physical evidence found in the car Howard rented and used for the commission of the crime also supported the verdict. Likewise, physical evidence found in the apartment where Howard assaulted the victim substantiated his involvement in the crime. Where guilt is conclusively proven by competent evidence and no rational conclusion can be reached other than that the accused is guilty, a conviction will not be set aside because of insubstantial errors not affecting the result. State v. Livingston, 282 S.C. 1, 317 S.E.2d 129 (1984).

II. CONFESSION PROPERLY SUBMITTED TO JURY

Howard next contends that a statement he gave to the FBI was not voluntary. He argues that his Fifth Amendment right against self-incrimination, which is protected by the Miranda doctrine, was violated because counsel was not present during the custodial interrogation. He also contends that the FBI coerced him into giving a statement by promising to consolidate the punishments for his offenses. In addition to claiming a violation of his Fifth Amendment right against self-incrimination, Howard maintains that his Sixth Amendment right to counsel had attached at the time of his interview with the FBI, and was compromised by that interview. We will address Howard's Fifth and Sixth Amendment claims separately.

A. BACKGROUND

Howard gave a statement to agents from the FBI on October 7, 1985, concerning his involvement in several crimes. The facts leading to the FBI's involvement in the taking of the statement are crucial in determining whether the statement was admissible. Heyward Polk, Howard's probation officer since August 21, 1983, testified that he received a call from a detective in Buncombe County, North Carolina, who informed him that Howard had been arrested and was incarcerated there on an armed robbery charge. Mr. Polk travelled to the prison to talk to Howard. Mr. Polk testified that Howard stated that "he wanted to apologize for what had taken place, and [he] had something to tell him." Mr. Polk also testified that Howard stated that Polk would feel "real bad" about what he had done. Mr. Polk stated that he had never requested any information from Howard but that he voluntarily proceeded to "tell him about everything what [sic] had taken place, namely robberies and homicides," including the murder of the victim in this case. Mr. Polk testified that he did not ask any questions; Howard just "voluntarily gave the information." Mr. Polk also stated that he knew Howard was represented by counsel for the charge for which he was then incarcerated, but did not contact Howard's counsel. Polk suggested that Howard contact the FBI concerning the information he had given Polk. Polk further testified that Howard requested that he contact the FBI.

On October 7, 1985, Mr. Polk, accompanied by FBI agents Brendan J. Battle and Drucilla W. Kurrle, returned to talk with Howard. Agent Battle testified in camera that before talking with Howard, he advised him of his Fifth Amendment rights under Miranda v. Arizona by reading to him from a form, and instructing him to read the waiver of rights form. Howard indicated that he understood his rights, and subsequently signed a standard waiver of rights form, and an additional paragraph handwritten by Agent Battle which read:

"I, Ronnie Howard, have requested through my federal probation officer, Mr. Heyward Polk, to be interviewed by the FBI about my involvement in criminal activities. I do not want the lawyer present who is representing me in Asheville armed robbery charges, and understand that the FBI agents will ask no questions about those charges. Signed, Ronnie Howard."

Agent Battle testified that he was aware that Howard was represented by an attorney on...