State v. Hughes, 24704

Citation493 S.E.2d 821,328 S.C. 146
Decision Date20 May 1997
Docket NumberNo. 24704,24704
PartiesThe STATE, Respondent, v. Herman Lee HUGHES, Jr., Appellant. . Heard
CourtUnited States State Supreme Court of South Carolina

Joseph L. Savitz, III, Deputy Chief Attorney, South Carolina Office of Appellate Defense, Columbia, for appellant.

Attorney General Charles Molony Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, Columbia, and Solicitor Walter M. Bailey, Summerville, for respondent.

WALLER, Justice:

Appellant, Herman Lee Hughes, Jr., was convicted of murder, assault and battery with intent to kill (ABIK), armed robbery and grand larceny of an automobile. He was sentenced to death for murder, twenty-five years consecutive for ABIK, 25 years consecutive for armed robbery, and five years concurrent for grand larceny. This appeal consolidates his direct appeal with the mandatory review provisions of S.C.Code Ann. § 16-3-25(C) (1985). We affirm.

FACTS

On March 18, 1994, Hughes and a cohort, Kelsey Pearce, robbed the Blue Diamond Casino, a video poker parlor in Orangeburg. Pearce remained outside while Hughes requested change from the employee of the casino, twenty year old, Kenneth Pressley. When Pressley opened the cash drawer, Hughes pulled a gun and told Pressley to give him the money. He simultaneously told Pressley's seventeen year old girlfriend, Kelly Hoffman, who was sitting behind the desk on the telephone, to get off the phone. Hughes then asked Pressley for his car keys. As Pressley handed over the keys, Hughes shot him in the head. He then turned and shot Hoffman in the chest. He shot Pressley in the head again, and then shot Hoffman in the face. Finally, he shot Pressley in the head a third time. Hughes took the money from the cash draw, then turned out the lights as he left the casino. He and Pearce departed in Pressley's Mazda RX-7. Hoffman survived the assault, Pressley died.

Hughes and Pearce were subsequently arrested and charged with the crimes. At Hughes' trial, 1 defense counsel sought to call Pearce as an adverse witness. The solicitor advised that Pearce would not testify for the state and was planning to assert his Fifth Amendment privilege against self incrimination. Pearce asserted the privilege during an in camera hearing. The trial court ruled that Pearce was "unavailable" to testify such that cross-examination before the jury was inappropriate. Hughes was not permitted to call Pearce to the stand for the purpose of requiring him to assert his Fifth Amendment privilege.

ISSUE

Did the trial court err in refusing to permit Hughes to call Pearce to the witness stand for the sole purpose of requiring Pearce to assert his Fifth Amendment privilege before the jury?

DISCUSSION

Hughes asserts the trial court's refusal to require Pearce to assert his privilege against self-incrimination before the jury denied him of the opportunity to present relevant evidence in mitigation under the Eighth Amendment and to rebut the state's case. He cites two cases of this Court in support of his contention. See State v. McGuire, 272 S.C. 547, 253 S.E.2d 103 (1979) and State v. Perry, 279 S.C. 539, 309 S.E.2d 9 (1983). 2

In State v. McGuire, 272 S.C. 547, 253 S.E.2d 103 (1979), the defendant was indicted along with a co-defendant, Crosby, for armed robbery and murder. Crosby was granted immunity from prosecution in exchange for testifying. During an in camera suppression hearing prior to McGuire's trial, Crosby admitted to several crimes of moral turpitude. At trial, Crosby testified and implicated McGuire. To impeach Crosby's credibility, defense counsel sought to cross-examine him about his prior admissions to crimes of moral turpitude. The judge refused, basing his ruling on Crosby's Fifth Amendment privilege against self-incrimination. This Court held that, in light of the admissions under oath to crimes of moral turpitude, McGuire should have been permitted to cross-examine Crosby concerning those admissions. We went on to state:

Nor can the trial judge's ruling be justified on the grounds that exclusion of the evidence was necessary in order to protect Crosby's Fifth Amendment privilege against self-incrimination. A judge may not invoke a witness's Fifth Amendment privilege; and, in any case, it is well settled that a witness who is not also a defendant can invoke that privilege only after the incriminating question has been put.

272 S.C. at 550-551, 253 S.E.2d 103. The rationale for McGuire is that the privilege against self-incrimination is personal and may not be invoked by, or on behalf of, a third person. See 1 McCormick on Evidence, § 120 (1992); 98 C.J.S. Witnesses § 451 (1957). It does not, however, follow from the holding of McGuire that assertion Nevertheless, in State v. Perry, 279 S.C. 539, 309 S.E.2d 9 (1983), this Court found error in the trial judge's refusal to allow the defendant to call Benjamin Ashford, who was charged with the same crime as the defendant, to claim his Fifth Amendment privilege before taking the stand. Citing State v. McGuire, the Court reversed and remanded for a new trial. Essentially, the holding of Perry requires a witness to be called solely for the sake of invoking the Fifth Amendment privilege, for the purpose of permitting the jury to infer wrongdoing from that assertion. We find the holding in Perry is an unwarranted extension of McGuire.

of the privilege must be made before the jury. In McGuire, the witness never asserted his privilege, either in camera or otherwise, when the judge sua sponte asserted it for him.

It is desirable the jury not know that a witness has invoked the privilege against self-incrimination since neither party is entitled to draw any inference from such invocation. 1 McCormick on Evidence, § 137 (1992). See also 3 Wharton's Criminal Procedure, § 354 (13th Ed.1991)(no inference may be drawn from witnesses' assertion of privilege since exercise of right is personal to witness and should not be used to hurt or help a third person); 98 C.J.S. Witnesses § 455 (general rule that no adverse inference may be drawn from witness' assertion of the privilege).

Most courts addressing the issue hold that it is improper for the prosecution to put an accomplice on the stand for the purpose of wringing from him a refusal to testify on the ground of privilege. 98 C.J.S. Witnesses § 434(b); 1 McCormick on Evidence, § 137 at p. 513 (misconduct sufficient to render a conviction invalid might occur if the prosecution, knowing that a witness will invoke the privilege, calls that witness before the jury and then makes a "conscious and flagrant attempt to build its case out of inferences arising from the use of the privilege"). See also U.S. v. Swanson, 9 F.3d 1354 (8th Cir.1993); U.S. v. Chapman, 866 F.2d 1326 (11th Cir.1989) cert. denied 493 U.S. 932, 110 S.Ct. 321, 107 L.Ed.2d 312; U.S. v. Doddington, 822 F.2d 818 (8th Cir.1987); Hamm v. State, 301 Ark. 154, 782 S.W.2d 577 (1990); Clayton v. Commonwealth, 786 S.W.2d 866 (Ky.1990); Bridge v. State, 726 S.W.2d 558 (Tex.Cr.App.1986). See generally Annotation, Propriety and Prejudicial Effect of Prosecution's Calling as Witness, to Extract Claim of Self-Incrimination Privilege, One Involved in Offense Charged Against Accused, 19 A.L.R.4th 368 (1983). In Namet v. United States, 373 U.S. 179, 83 S.Ct. 1151, 10 L.Ed.2d 278 (1963), the United States Supreme Court found error in such an attempt under two circumstances; first, where the prosecution "makes a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege;" second, where the "inferences from a witness' refusal to answer added critical weight to the prosecution's case in a form not subject to cross-examination...." 373 U.S. at 186-187, 83 S.Ct. at 1154. See also People v. Pirrello, 166 Ill.App.3d 614, 117 Ill.Dec. 238, 243-244, 520 N.E.2d 399, 404-405 (1988)(reversible error for prosecutor to compel witness to claim privilege before jury when effect is to suggest, by implication or innuendo, that the defendant is guilty of a crime); 81 Am.Jur.2d Witnesses § 121 (calling witness to stand solely to have him claim Fifth Amendment privilege in presence of jury may have disproportionate impact and permit inference from refusal to testify, adding weight to case in form not subject to cross-examination).

Although most of the cited cases deal with the prosecution's attempt to draw improper inferences, it has been recognized that neither the state nor the defendant should be allowed to call witnesses who either side knows will invoke the Fifth Amendment in front of the jury and then be subject to inferences in a form not subject to cross-examination. State v. Heft, 185 Wis.2d 288, 517 N.W.2d 494, 501 (1994). See also U.S. v. Crawford, 707 F.2d 447 (10th Cir.1983); U.S. v. Beechum, 582 F.2d 898 (5th Cir.1978) cert. denied 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979); Hamm v. State, 301 Ark. 154, 782 S.W.2d 577 (1990); State v. Polsky, 82 N.M. 393, 482 P.2d 257 (1971) cert. denied 404 U.S. 1015, 92 S.Ct. 688, 30 L.Ed.2d 662 (1972); Commonwealth v. Greene, 445 Pa. 228, 285 A.2d 865 (1971) Here, defense counsel knew Pearce would invoke his privilege against self-incrimination and sought to put him on the stand solely to allow the jury to draw adverse inferences from his refusal to testify. We concur with the above-cited jurisdictions that such an inference is impermissible. Accordingly, to the extent State v. Perry may be read to require the calling of a witness solely for the sake of invoking his or her Fifth Amendment privilege, 3 it is hereby prospectively modified from the date of this opinion. 4

(witness' assertion of privilege may not be made basis of any inference before the jury, favorable to either the prosecution or the defense); United States v. Duran, 884 F.Supp. 573 (D.D.C.1995) (neither defendant nor government may ask questions of witness solely for...

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