State v. Jones

Decision Date06 November 1996
Docket NumberNo. 2594,2594
CourtSouth Carolina Court of Appeals
PartiesThe STATE, Respondent, v. Harvey JONES and Melissa Jones, Appellants. . Heard

William E. Whitney, Jr., Union, for Appellant Harvey Jones, and J.M. Long, Jr., Conway, for Appellant Melissa Jones.

Attorney General Charles Molony Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General G. Robert DeLoach, III, Columbia; and Solicitor Holman C. Gossett, Jr., Spartanburg, for Respondent.

ANDERSON, Judge:

Appellants Harvey Jones and Melissa Jones have filed this joint appeal from their convictions for the sexual abuse of two minors. We affirm.

FACTS/PROCEDURAL BACKGROUND

Appellants were indicted on numerous charges related to the alleged sexual abuse of the minor victims Sarah Doe and Mary Roe. 1 The abuse purportedly occurred in December 1991, January 1992, and September 1992. The charges against each Appellant were consolidated into one of two indictments, and they were jointly tried on all charges. Appellants were each convicted of three counts of first degree criminal sexual conduct (CSC), two counts of second degree CSC, five counts of criminal conspiracy, and one count of contributing to the delinquency of a minor. Appellants received concurrent sentences of 9 years on each count of first and second degree CSC, 5 years on each count of criminal conspiracy, and 3 years for contributing to the delinquency of a minor. Appellants raise the following issues on appeal.

ISSUES

(1) Did the trial judge err in granting the State's motion to consolidate the indictments against Appellant Harvey Jones and Appellant Melissa Jones?

(2) Did the trial judge err in denying Appellants' motion for a mistrial based upon the display of emotion in the courtroom by family members of one of the victims?

(3) Did the trial judge err in denying Appellants' motion for a mistrial based upon an alleged discovery violation?

(4) Did the trial judge err in denying Appellants' motion for a mistrial based upon the testimony of expert witness Mary Schults?

LAW/ANALYSIS
1. CONSOLIDATION OF INDICTMENTS

Prior to trial, the solicitor noted for the record that the State had re-indicted Appellants so as to incorporate all pending charges into two indictments--one for each Appellant. The solicitor then moved to consolidate the indictments for one trial. Counsel for Appellant Melissa Jones objected, arguing the consolidation was improper because the charges concerned two different victims. Counsel for Appellant Harvey Jones joined in the motion. The trial judge granted the motion for consolidation, stating he did not believe it "create[d] any harm whatsoever to the rights of either defendant." Appellants contend the trial judge erred in granting the State's motion to consolidate the indictments. We disagree.

The propriety of consolidating charges for trial has recently been reiterated in State v. Smith, --- S.C. ----, 470 S.E.2d 364 (1996):

Where the offenses charged in separate indictments are of the same general nature involving connected transactions closely related in kind, place and character, the trial judge has the power, in his discretion, to order the indictments tried together if the defendant's substantive rights would not be prejudiced. State v. Sullivan, 277 S.C. 35, 282 S.E.2d 838 (1981); State v. Williams, 263 S.C. 290, 210 S.E.2d 298 (1974); McCrary v. State, 249 S.C. 14, 152 S.E.2d 235 (1969) [ (1967) ].

Id. at ----, 470 S.E.2d at 365. Offenses are considered to be of the same general nature where they are interconnected. State v. Harry, --- S.C. ----, 468 S.E.2d 76 (Ct.App.1996).

Conversely, offenses which are of the same nature, but which do not arise out of a single chain of circumstances and are not provable by the same evidence may not properly be tried together. See, e.g., State v. Middleton, 288 S.C. 21, 339 S.E.2d 692 (1986) (holding although prison escapee committed two murders within a few miles of each other and attempted an armed robbery, the trial judge erred in consolidating the charges for one trial where the crimes did not arise out of a single chain of circumstances and they required different evidence), cert. denied, 488 U.S. 872, 109 S.Ct. 189, 102 L.Ed.2d 158 (1988); State v. Tate, 286 S.C. 462, 334 S.E.2d 289 (Ct.App.1985) (holding joint trial on identical but unrelated forgeries violated defendant's right to a fair trial).

Distinct offenses may be charged in separate counts of one indictment. State v. Whitener, 228 S.C. 244, 89 S.E.2d 701, cert. denied, 350 U.S. 861, 76 S.Ct. 101, 100 L.Ed. 764 (1955); State v. Deal, 319 S.C. 49, 459 S.E.2d 93 (Ct.App.1995).

Appellants' argument that consolidation was improper in this case because the allegations concerned two different victims and required different proof is clearly without merit. Contrary to Appellants' assertions, the offenses charged were of the same general nature involving allegations of a pattern of sexual abuse involving the two minor victims. Evidence was presented at trial that both victims had been taken to the same location and were present in the same motel room on an occasion of abuse. Further, there has been no showing of prejudice resulting from the trial judge's decision. State v. Smith, supra. Accordingly, we hold there was no error in the judge's consolidation of the indictments.

2. MISTRIAL MOTION BASED ON SPECTATORS' EMOTIONS.

Prior to beginning cross-examination of victim Sarah Doe, counsel for Appellant Harvey Jones expressed concern about audible crying by Doe's family during her testimony and its effect on the jury. Counsel moved for a mistrial, which was joined by counsel for Appellant Melissa Jones. The trial judge denied the motion, stating he did not believe that any displays of emotion so far would have tainted the jury. However, he stated he believed it would be appropriate to clear the courtroom of everyone except the press and Doe's father during the rest of her testimony.

While the jury was out, the trial judge strongly warned those present in the courtroom that although some display of emotion was natural, he could not allow it to affect the jury. He then ordered the courtroom cleared. Upon the jury's return and at the request of counsel for Appellant Harvey Jones, the trial judge informed the jury that the courtroom had been cleared due to the display of emotion by observers. The judge cautioned the jurors that they were not to draw any inferences from this fact as neither side had done anything improper. The judge reminded the jurors that they were to base their verdict on the testimony and evidence presented at trial, not on emotion. Defense counsel did not object to the sufficiency of the trial judge's curative instruction. Appellants now contend the trial judge's denial of their mistrial motion was reversible error. We disagree.

We initially note that this issue is not preserved for review since Appellants did not object to the adequacy of the trial judge's curative instruction. See State v. Craig, 267 S.C. 262, 227 S.E.2d 306 (1976) (a curative instruction is usually deemed to cure an alleged error; no issue is preserved for appellate review if the objecting party accepts the judge's ruling and does not contemporaneously make an additional objection to the sufficiency of the curative charge).

Further, the granting of a mistrial is within the discretion of the trial judge, whose decision will not be overturned on appeal absent an abuse of discretion:

In State v. Bilton, 156 S.C. 324, 153 S.E. 269 (1930) this Court cited and approved the following general authority:

The American cases hold generally that there must be a manifest necessity for the discharge of the jury and leave the Courts to determine in their discretion whether under all the circumstances of each case such necessity exists. When such necessity exists, a plea of former jeopardy will not prevail on a subsequent trial. But if the jury are discharged without defendant's consent for a reason legally insufficient and without an absolute necessity for it, the discharge is equivalent to an acquittal and may be pleaded as a bar to a subsequent indictment. See also State v. Ravencraft, 222 S.C. 139, 71 S.E.2d 798 (1952).

Our ruling must hinge on the question of whether there was a manifest necessity for declaring the mistrial. The power of the court to declare a mistrial ought to be used with the greatest caution and for plain and obvious causes stated into the record by the judge. The judge is allowed a discretion, which is, of course, subject to review by this Court.

The less than lucid test is therefore declared to be whether the mistrial was dictated by manifest necessity or the ends of public justice, the latter being defined as the public's interest in a fair trial designated to end in just judgment. Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973); Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (1949).

State v. Prince, 279 S.C. 30, 32-33, 301 S.E.2d 471, 472 (1983) (emphasis added). See also State v. Kirby, 269 S.C. 25, 236 S.E.2d 33 (1977) (the trial judge is best situated to decide if there are compelling reasons for declaring a mistrial).

Moreover, we note a trial judge has the inherent authority to maintain order in the courtroom and the exercise of this duty will not be overturned on appeal absent an abuse of discretion. As our Supreme Court stated in State v. Stewart, 278 S.C. 296, 295 S.E.2d 627, cert. denied, 459 U.S. 828, 103 S.Ct. 64, 74 L.Ed.2d 65 (1982):

The right to a fair trial by an impartial jury in a criminal prosecution is guaranteed by the Sixth Amendment to the U.S. Constitution and by Article I, § 14, of the S.C. Constitution. While this right does not require a "perfect" trial, the very heart of a "fair trial" embodies a disciplined courtroom wherein an accused's fate is...

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