State v. Lowder

Decision Date11 January 2007
Docket Number2007-UP-007
PartiesThe State, Respondent, v. Jonah Israel Lowder, Appellant.
CourtCourt of Appeals of South Carolina

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

Submitted January 1, 2007

Appeal From Spartanburg County J. Derham Cole, Circuit Court Judge

Chief Attorney Joseph L. Savitz III, Office of Appellate Defense of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, Senior Assistant Attorney General William Edgar Salter, III, all of Columbia; and Solicitor Harold W Gowdy, III, of Spartanburg, for Respondent.

OPINION

PER CURIAM

Jonah Israel Lowder was convicted of murder and sentenced to life in prison. Lowder appeals, arguing the trial court erred by allowing the State to (1) introduce evidence that he had invoked his right to counsel during custodial interrogation, (2) cross-examine him about his invocation of the right to counsel, and (3) argue in closing that his invocation of the right to counsel was proof of his guilt. We affirm. [1]

FACTS/ANALYSIS

Lowder was convicted of murder for the death of Robert Allen Arthur who died in Spartanburg County when his skull was crushed by a cement block on or about August 6, 2002. Lowder, then 23, and Arthur, who was in his 50s, were both homeless and transient, and had just met that day. The two had spent the afternoon drinking together near a truck stop; thereafter, Arthur had invited Lowder to his campsite nearby to rest for the night.

At trial, Lowder admitted that he had killed Arthur with a cement block. He claimed, however, that he did it because Arthur first attacked him with the same cement block during an attempted homosexual advance while he was sleeping. Lowder testified that he had awakened in the night to find Arthur, with his pants pulled down, leaning over him with the cement block. Lowder stated he had grabbed the cement block and beaten Arthur with it only to defend himself. Lowder acknowledged at trial that he never alleged during his police interrogations that Arthur had attempted to sexually assault him, but maintained it was because he did not want that information to be published in the newspapers. During the investigation of this case, police investigators had spoken to Lowder on at least three occasions.

During direct examination, the solicitor questioned one of the investigators involved in Lowder's case, Officer Jeremy Mathis of the Bay County Sheriff's Office in Panama City, Florida. Lowder was tracked by South Carolina authorities to a jail in Bay County during the course of the investigation into Arthur's death. The solicitor inquired whether Lowder had said anything when they were taking his palm prints. The investigator replied:

He was very inquisitive as to why we needed his palm prints. He wanted to know what they were being used for. And I think it is important to note that the only involvement I had ever had with Mr. Lowder at the time was for, to assist Spartanburg in their investigation. I had never been a part of any other case that involved him. Since I knew that he had asked for a lawyer, of course --

Defense counsel moved for a mistrial on the basis the officer made a[n] impermissible reference to Mr. Lowder's right to counsel.” The trial court denied the motion. The court noted that the State was at a disadvantage because Lowder had previously moved to suppress his statements as involuntary at the start of the trial and it was the State's burden to prove to the jury that the statements were freely and voluntarily made. Defense counsel then stated he was not going to challenge before the jury the voluntariness of the statements.

After further discussion, the trial court stated:

All he's testified to at the present time is the fact that he knew that Mr. Lowder had requested a lawyer and so he wasn't going to talk to him. And I certainly don't think that's a comment upon his invocation of his right to remain silent. That's just an explanation as to why he refused to carry on a conversation with him... that he knew he had requested a lawyer and so he wasn't going to talk to him.
The issue now is going to simply be how to handle that since you're not challenging the voluntariness.
I guess the witness can simply testify that Mr. Lowder initiated a conversation with the witness wherein he stated he wanted to talk to the police about the case....

The general rule in South Carolina is that a mistrial should be granted in cases of manifest necessity and with the greatest caution for very plain and obvious reasons.” State v. Patterson, 337 S.C. 215, 227, 522 S.E.2d 845, 851 (Ct. App. 1999); see also State v. Kirby, 269 S.C 25, 28-29, 236 S.E.2d 33, 34 (1977) (The power of a court to declare a mistrial ought to be used with the greatest caution under urgent circumstances, and for very...

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