State v. Manning, No. 24727
| Court | United States State Supreme Court of South Carolina |
| Writing for the Court | BURNETT; FINNEY |
| Citation | 495 S.E.2d 191,329 S.C. 1 |
| Docket Number | No. 24727 |
| Decision Date | 09 October 1997 |
| Parties | STATE of South Carolina, Respondent, v. Warren Douglas MANNING, Appellant. . Heard |
Page 191
v.
Warren Douglas MANNING, Appellant.
Decided Dec. 29, 1997.
Page 192
[329 S.C. 3] South Carolina Office of Appellate Defense, David I. Bruck, Nancy O. Gallman, and John D. Elliott, Columbia; Glenn B. Manning, Dillon; and Charles J. Ogletree, Jr., Cambridge, MA, for appellant.
Attorney General Charles Molony Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, and Assistant Attorney General Robert F. Daley, Jr., Columbia; and Solicitor C. Gordon McBride, Darlington, for respondent.
BURNETT, Justice:
Appellant appeals his convictions of murder, kidnapping, and armed robbery, and his sentences of death for murder and twenty-five years imprisonment for armed robbery. We reverse.
Did the lower court abuse its discretion by granting the State's motion to change venue for the selection of the jury?
[329 S.C. 4] DISCUSSION
Appellant contends the lower court abused its discretion by granting the State's motion for a change of venue for jury selection. We agree.
Appellant was convicted of murdering a state highway trooper and was sentenced to death in 1989. His conviction was reversed on appeal. State v. Manning, 305 S.C. 413, 409 S.E.2d 372 (1991), cert. denied, 503 U.S. 914, 112 S.Ct. 1282, 117 L.Ed.2d 507 (1992) (finding a constitutionally infirm reasonable doubt charge). Appellant was retried in August 1993. A mistrial was declared at the end of the guilt phase of the trial. Appellant was again retried in March 1995. The jury convicted appellant of murder, kidnapping, and armed robbery. Upon recommendation by the jury, which found the statutory aggravating circumstances of kidnapping, robbery while armed with a deadly weapon, physical torture, and murder of a law enforcement officer during or because of the performance of his official duties, the trial judge sentenced appellant to death for the murder.
At the first trial in 1989, on appellant's motion, venue was changed from Dillon County to Kershaw County. Neither appellant nor the State requested a change of venue for the second trial; therefore, in 1993, this trial was held in Dillon County and the jurors were selected from Dillon County. This trial ended in a mistrial because the jurors could not reach a verdict in the guilt phase.
On February 17, 1994, approximately six months after the mistrial, the State filed a motion to change venue, pursuant to S.C.Code Ann. § 17-21-80 (1976), based on pretrial publicity. The motion was heard by Judge Paul M. Burch, Resident Judge of the Fourth Judicial Circuit of South Carolina, on June 8, 1994. At this hearing, the solicitor informed the judge it would be acceptable to retain venue in Dillon County so long as the jury was selected from another county. See S.C.Code Ann. § 17-21-85 (Supp.1996).
At the hearing, the solicitor summarized the record of the jury selection at the August 1993 trial. At that trial, 46 of 57 of the prospective jurors questioned on voir dire were found qualified. However, according to
Page 193
the solicitor, 53 of the 57 jurors questioned "had knowledge of the case itself," and [329 S.C. 5] seven of the 46 qualified jurors were related "either to the defendant or to witnesses that were in the trial." The solicitor did not allege that anyone related to either the defendant or any witnesses actually served on the jury. The solicitor did not claim that the August 1993 jury was not impartial or that the State did not receive a fair trial. Further, the solicitor admitted the State did not use all of its peremptory challenges.The solicitor then presented four witnesses who testified pretrial publicity made it impossible for the State to receive a fair trial by a Dillon County jury. 1 Mary Louise Parham, Dillon County Treasurer and a jury commissioner, initially testified she did not think the State could get a fair and impartial jury panel in Dillon County because of the news coverage. During cross-examination, Ms. Parham admitted the two newspaper articles 2 introduced into evidence tended to show appellant was guilty and, therefore, were prejudicial to the appellant and not the State. She then stated she did not think either the State or appellant could receive a fair trial in Dillon County. Ms. Parham testified it would be hard for a fair trial to take place in Dillon County because the people in Dillon County have knowledge of this case. Ms. Parham stated "I think an opinion possibly could have been formed." (emphasis added). However, she admitted a prospective juror could inform the judge if he had formed an opinion on this matter.
Dillon County Sheriff Harold Grice testified appellant's case was the most publicized case during his 18 years in law enforcement. Sheriff Grice opined "the jury pool that would be drawn in Dillon County wouldn't be fair to both sides" [329 S.C. 6] because there had been a lot of publicity and it would be difficult to obtain jurors from "certain areas" of the county. On cross-examination, Sheriff Grice was unable to state whether he thought prospective jurors in Dillon County were more likely to be biased in favor of appellant or the State until he saw "the way the jury was pulled." Sheriff Grice admitted very few people sat in the courtroom during the August 1993 trial.
Gwen Hyatt, Clerk of Court for Dillon County and a jury commissioner, testified she did not think a jury pool could be drawn "that would not have knowledge of the two previous trials." On cross-examination, Ms. Hyatt acknowledged the August 1993 jury was chosen before exhausting the venire. She further admitted the trial judge removed any prospective juror who expressed an opinion about the case. Ms. Hyatt predicted another Dillon County jury would probably be partial to both sides.
Cecil Chandler, news director for a Florence television station, testified appellant's case had been extensively covered by his station since 1988. Mr. Chandler opined it would be difficult to draw a jury panel from Dillon County that did not have knowledge of this case. On cross-examination, Mr. Chandler could not point to any station coverage which was prejudicial to the State. Mr. Chandler also admitted there was nothing unfair about a juror knowing about the case.
Defense counsel presented no affidavits or testimony at the hearing. Instead, defense counsel argued the State had failed to prove it could not receive a fair and impartial trial if a jury were selected from residents of Dillon County.
On August 31, 1994, Judge Burch granted the State's motion for a change of venue. Judge Burch found an impartial jury could not be selected from Dillon County because jurors "would have a side and would be tainted with information obtained...
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State v. Sims, No. 4371.
...v. McDonald, 343 S.C. 319, 325, 540 S.E.2d 464, 467 (2000)); Douglas, 369 S.C. at 429-430, 632 S.E.2d at 848 (citing State v. Manning, 329 S.C. 1, 7, 495 S.E.2d 191, 194 (1997)); Funderburk, 367 S.C. at 239, 625 S.E.2d at 249-50; Preslar, 364 S.C. at 473, 613 S.E.2d at 384-385. "In order fo......
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State v. Parker, No. 4475.
...will not be disturbed on appeal absent an abuse of discretion. Sheppard v. State, 357 S.C. 646, 594 S.E.2d 462 (2004); State v. Manning, 329 S.C. 1, 495 S.E.2d 191 (1997) (finding trial court abused discretion by granting the State's motion to change venue based on pretrial publicity becaus......
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Morris v. State , CR–07–1997.
...of jury to agree on verdict, it is the same as if no trial took place).”382 S.C. at 157–58, 676 S.E.2d at 131. See e.g. State v. Manning, 329 S.C. 1, 495 S.E.2d 191 (1997) (wherein Manning was sentenced to death for murdering a state trooper and his conviction was reversed on appeal, leadin......
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Morris v. State, No. CR-07-1997 (Ala. Crim. App. 2/5/2010), No. CR-07-1997.
...jury to agree on verdict, it is the same as if no trial took place) ." 382 S.C. at 157-58, 676 S.E. 2d at 131. See e.g. State v. Manning, 329 S.C. 1, 495 S.E. 2d 191 (1997) (wherein Manning was sentenced to death for murdering a state trooper and his conviction was reversed on appeal, leadi......
-
State v. Sims, No. 4371.
...v. McDonald, 343 S.C. 319, 325, 540 S.E.2d 464, 467 (2000)); Douglas, 369 S.C. at 429-430, 632 S.E.2d at 848 (citing State v. Manning, 329 S.C. 1, 7, 495 S.E.2d 191, 194 (1997)); Funderburk, 367 S.C. at 239, 625 S.E.2d at 249-50; Preslar, 364 S.C. at 473, 613 S.E.2d at 384-385. "In order fo......
-
State v. Parker, No. 4475.
...will not be disturbed on appeal absent an abuse of discretion. Sheppard v. State, 357 S.C. 646, 594 S.E.2d 462 (2004); State v. Manning, 329 S.C. 1, 495 S.E.2d 191 (1997) (finding trial court abused discretion by granting the State's motion to change venue based on pretrial publicity becaus......
-
Morris v. State , CR–07–1997.
...of jury to agree on verdict, it is the same as if no trial took place).”382 S.C. at 157–58, 676 S.E.2d at 131. See e.g. State v. Manning, 329 S.C. 1, 495 S.E.2d 191 (1997) (wherein Manning was sentenced to death for murdering a state trooper and his conviction was reversed on appeal, leadin......
-
Morris v. State, No. CR-07-1997 (Ala. Crim. App. 2/5/2010), No. CR-07-1997.
...jury to agree on verdict, it is the same as if no trial took place) ." 382 S.C. at 157-58, 676 S.E. 2d at 131. See e.g. State v. Manning, 329 S.C. 1, 495 S.E. 2d 191 (1997) (wherein Manning was sentenced to death for murdering a state trooper and his conviction was reversed on appeal, leadi......