State v. Leonard, 0602
| Decision Date | 21 October 1985 |
| Docket Number | No. 0602,0602 |
| Citation | 339 S.E.2d 159,287 S.C. 462 |
| Court | South Carolina Court of Appeals |
| Parties | The STATE, Respondent, v. Kirk R. LEONARD and Richard E. Harrison, Jr., of whom Richard E. Harrison, Jr. is Appellant. Appeal of Richard E. HARRISON. The STATE, Respondent, v. Kirk R. LEONARD and Richard E. Harrison, Jr., of whom Kirk R. Leonard is Appellant. . Heard |
Kellum W. Allen of Kirkland, Taylor, Wilson, Moore & Allen, West Columbia and Jack B. Swerling of Swerling & Harpootlian, Columbia, for appellants.
Atty. Gen. T. Travis Medlock, Asst. Atty. Gen. Harold M. Coombs, Jr. and Staff Atty. Carlisle Roberts, Jr., Columbia and Sol. Donald V. Myers, Lexington, for respondent.
Appellants Kirk Leonard and Richard Harrison, Jr. were jointly indicted, tried and convicted of reckless homicide due to the death of Jerrilynn Myra Blount following an automobile collision. In addition, Leonard was convicted of driving under the influence and driving under suspension. Although charged with DUI, Harrison was found not guilty. The appellants' appeals were consolidated for argument and decision. We affirm.
Both of the appellants raise the issues of whether the trial judge's instructions erroneously indicated that both men could be convicted of reckless homicide as principals and whether the trial judge erred in failing to submit to the jury special interrogatories for a finding as to which appellant was the driver of the car. Harrison raises two other issues: (1) whether the court erred in denying his motion to disregard all evidence of a blood alcohol test because an expert witness did not testify concerning the results; and (2) whether the court erred in denying his motion for a mistrial based upon Leonard's attorney's statements during closing argument. Leonard raises several other issues: (1) whether the court erred in denying his motion for severance and separate trials; (2) whether the trial judge erred in not granting his motion for a continuance to secure the testimony of an out-of-state witness; (3) whether the court of general sessions had subject-matter jurisdiction over the DUI first offense; and (4) whether the trial court erred in refusing to sever counts on DUI and DUS on the ground of surprise.
The evidence in the case may be summarized as follows.
On the evening of April 19, 1985, Harrison met his friend Leonard and they decided to spend a night out on the town. Leonard was broke so Harrison loaned him money for beer and gasoline to fuel his car. 1 The appellants had a beer before they picked up four other friends. Then the group consumed a six pack as Leonard drove to the Dry Gulch Saloon in Richland County. They stayed at the Dry Gulch from 11:00 P.M. to 2:30 or 3:00 A.M. Everyone was drinking and there was testimony that the revelers smoked marijuana. From the Dry Gulch the group went to two convenience stores where they purchased more beer. Harrison directed Leonard to a secluded spot where the group drank until sunrise. Then, with Leonard still driving the four friends were dropped off at a Kroger supermarket and the appellants rode off by themselves.
The appellants talked about riding to Batesburg to find carpentry work and drove as far as Lexington before they decided to go home instead of driving to Batesburg. They stopped at a Red Diamond gas station and Harrison begrudgingly paid for more gas. When they left the gas station, heading for Harrison's home, Leonard was behind the wheel. Shortly thereafter, Leonard's car crossed the median and struck Mrs. Blount's car head-on. She was killed instantly. Harrison was injured and did not know that Mrs. Blount had died when, at the scene, he told Officer Steven Smith that he had been driving. At trial, however, testimony conflicted as to the identity of the driver at the time of the collision. Each appellant accused the other.
The day after the accident, Officer John Valderio interviewed Leonard who told him that he was not sure who drove the car away from the Red Diamond gas station. Leonard did not mention anything to him about changing seats with Harrison even though he testified to this effect at trial. He also testified that he did not tell anyone that his driving caused the accident. This testimony was contradicted by William Warren Wiggins, Leonard's elementary school classmate. Wiggins testified that he happened to meet Leonard in a doctor's office soon after the wreck. Leonard was there seeking treatment for his injuries. According to Wiggins, they conversed for about twenty minutes and Leonard told him that he believed that he had been driving when the wreck occurred.
Evidence introduced at trial also included expert testimony from SLED officers employed in the chemistry laboratory. Their testimony is Harrison's breathalyzer test read eleven one-hundredths of one percent; 2 Harrison's blood alcohol reading was eighteen one-hundredths of one percent; and based upon the location of hair samples taken from the car, one expert witness opined that Leonard was driving at the time of the wreck.
Instructions Concerning Conviction of Both Men As Principals
in the Crime of Reckless Homicide
Both appellants claim that the trial judge committed reversible error in giving the jury instructions to the effect that both could be convicted of reckless homicide. The crime of reckless homicide is set forth in Section 56-5-2910, 1976 Code of Laws of South Carolina, as follows:
When the death of any person ensues within one year as a proximate result of injury received by the driving of any vehicle in reckless disregard of the safety of others, the person so operating such vehicle shall be guilty of reckless homicide.
In conjunction with the instructions concerning Section 56-5-2910, the trial judge explained that under Section 2-7-30, the word "person" may include more than one person. Additionally, after the judge read verbatim Sections 56-5-6120 3 and 56-5-6110 4 to "aid in our [jury's] understanding of the statute of reckless homicide," he gave the following explanation:
This is a restatement of the common law of this state which deals with the subject of aiders and abetters wherein it is said where two or more persons are present and aiding, abetting, helping, and assisting each other in the commission of any crime, both (sic) them are guilty as principals. Wherein it may be said the hand of one is the hand of all. The law does not distinguish in such an instance where both are present and aiding, assisting, abetting in the commission of any crime, they are both held as principals and not as accessories.
....
I charge you as follows: the owner or person in control of a motor vehicle may be criminally liable for a homicide committed in operating a vehicle not only when he is operating it personally, but also when he procures or permits the vehicle to be driven by another person who is in the vehicle with him. 5
Leonard's objections to the charge to the jury are twofold. First, he argues that Sections 56-5-6110 and 56-5-6120 should not have been read to the jury because these code sections were not charged in the indictment and in a criminal case a defendant is entitled to be tried only on the charges in the indictment. This argument is without merit. Leonard was not tried for or convicted of the offense of aiding and abetting, but rather he was tried and convicted as a principal. 6 Our Supreme Court has affirmed the conviction of a traffic law violator, claiming to be a mere passenger, who was not separately indicted for aiding and abetting but rather was indicted as a principal and the jury was charged on the law of principals. The court reasoned that "since one who is present, aiding and abetting the commission of a crime, is a principal [he] may be convicted on an indictment charging him alone as such." State v. Cox, 258 S.C. 114, 187 S.E.2d 525, 528 (1972).
Leonard's second argument is that the instruction led the jury to believe that if either man were guilty of reckless homicide, both had to be convicted. This argument ignores the fact that with regard to the reckless homicide count, the trial judge also advised the jury that:
[F]or either of the defendants or both of them to be found guilty of the offense of reckless homicide, it must be established that not only was the conduct of the party or parties reckless but that this conduct was a proximate cause which caused a homicide of the victim in this case. It is not enough that there was the tragedy of death and neither is it enough to show that either or both of the defendants was present. If you do not find that proximate cause present with respect to the conduct of either or both, then the proof fails and the defendant or defendants would be entitled to a verdict of not guilty at your hands. (Emphasis added).
Harrison raises two objections to the jury instructions. First, he argues that the trial judge committed the same error which required a reversal of the defendant's conviction in State v. Dutch, 246 N.C. 438, 98 S.E.2d 475 (1957). Dutch involved a hit and run collision between an automobile containing two occupants and another vehicle which resulted in injuries to the driver of the second vehicle. The two occupants who were separately indicted and jointly tried, testified that the other was the driver. There was also little evidence presented showing that Dutch was more than a mere guest passenger. (The Court declined to discuss at length the sufficiency of this evidence in view of the fact that Dutch would be retried). The judge's charge required the jury to identify which man was the driver and which man was an aider and abetter. Both men were convicted as charged. In reversing, the Court explained that the state's theory that regardless of the identity of the driver the other was guilty as an aider and abetter, was fallacious because of the absence of facts showing the passenger was an aider and abetter. 7 98 S.E.2d at 477.
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