State v. Massey, 20292

• Decision Date: 19 October 1976
• Docket Number: No. 20292,20292
• Citation: 267 S.C. 432,229 S.E.2d 332
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Oliver MASSEY, Appellant.

Page 332

229 S.E.2d 332

267 S.C. 432

The STATE, Respondent, v. Oliver MASSEY, Appellant.

No. 20292.

Supreme Court of South Carolina.

Oct. 19, 1976.

Roy T. Stuckey and Vance L. Cowden, Columbia, for appellant.

Atty. Gen. Daniel R. McLeod and Asst. Atty. Gen. Joseph R. Barker, Columbia, for respondent.

RHODES, Justice:

Appellant Oliver Massey appeals from his conviction as an accessory before and after the fact of burglary and armed robbery. He was sentenced in the Court of General Sessions of Lancaster County to life imprisonment plus twenty years. Appellant contends that he is entitled to a reversal of his conviction. We disagree and affirm the conviction.

The following questions are presented for our consideration:

(1) Did the resident circuit judge commit reversible error in refusing to grant appellant's motion for a change of venue on the ground that it was impossible for appellant to obtain a fair trial by an impartial jury in Lancaster County?

(2) Did the trial judge commit reversible error by refusing to grant appellant's motion for a directed verdict on the charges of murder, burglary, and armed robbery?

(3) Did the acquittal of John Trowery prior to the conviction of Oliver Massey preclude the State from prosecuting Massey as an accessory to Trowery on the theory that Trowery's acquittal had the effect of determining that there was no principal to whom Massey could be convicted as being an accessory?

(4) Did the Supreme Court's refusal to provide appellant with all the documents requested in his Motion for Production of Documents and Extension of Time result in a denial to appellant of his right to appeal his conviction?

Appellant was indicted in September of 1973 for murder, burglary, and armed robbery and accessory before and after the fact of murder, burglary, and armed robbery in connection with the death of Dr. J. D. Pittman and the armed robbery of his home in Lancaster County in February of 1973. The principal felon named in the Massey indictment was John Wells Trowery. During the pendency of appellant's indictment, Trowery was tried for and acquitted of the charges of murder, burglary, and armed robbery stemming from the Pittman homicide.

The evidence at appellant's trial established that at approximately eight o'clock P.M. on February 16, 1973, a large black male, armed with a pistol, broke into the home of Dr. Pittman while he and his wife were viewing television. The intruder demanded to know where the Pittman's money was kept, and when Mrs. Pittman answered that there was no money in the house, she was struck on the head. Dr. Pittman attempted to repel the intruder and was struck several times on the head by a blunt instrument causing his death.

Mrs. Pittman testified that the intruder telephoned someone to come get him, that he had a northern accent, and that he was apparently unfamiliar with who Dr. Pittman was. She also heard a second male voice in the house but never saw the second intruder.

The State presented two witnesses who testified that appellant approached them in 1972 and discussed robbing the Pittman house. Appellant told them that Dr. Pittman kept $100,000 in his house and explained how the robbery would take place. Both of these witnesses were incarcerated at the time that Dr. Pittman was murdered.

Another witness for the State, Virginia Bradley, with whom appellant had been living in Lancaster, testified that she was with appellant when he and another man travelled to Coatsville, Pennsylvania, during the week prior to Dr. Pittman's death. On the return trip, she overheard the other man tell appellant 'not to mess with Martin.' Bradley later learned that 'Martin' was John Trowery's brother.

Bradley further testified that on the night before the Pittman killing, appellant made a long distance telephone call to Pennsylvania. The next morning, February 16, 1973, appellant received a telephone call and then left the house. Bradley saw appellant later the same day at her shop where he came and picked up some women's stockings. She testified that appellant left her shop before six o'clock P.M. on the day the Pittman house was broken into and that she did not see him until late that night when she attempted to borrow money from him. Appellant told her that he could not lend her any money because he had spent $500 to send 'those boys back to Pennsylvania.' Appellant informed Bradley that they got only 'a trash can full of silver.'

Stockings found in the Pittman home were identified by Bradley as similar to the kind appellant had taken from her shop on February 16, 1973. Bradley testified that during an argument with appellant two months after the incident at the Pittman home, appellant told her that her car had been used in the Pittman murder.

The State offered proof that the telephone call made by appellant on the day before Dr. Pittman was killed was to Trowery's residence in Coatsville, Pennsylvania. Trowery, who did not testify at appellant's trial, was described by witnesses as weighing 220 pounds and standing six feet two inches tall.

The State also introduced a written statement made by appellant on August 2, 1973, while he was being held in custody at Columbia, admitting that he and another man met someone named 'John' in Coatsville, Pennsylvania, and that 'John' subsequently came to Lancaster and asked appellant to drop him off three blocks from the Pittman home. Appellant admitted that he transported 'John' to a location three blocks from Dr. Pittman's house on February 16, 1973.

QUESTION 1.

Appellant contends that the resident circuit judge (who was not the trial judge in appellant's case) committed reversible error in failing to grant appellant's motion for a change of venue. Much of appellant's argument is predicated on the fact that a different circuit judge granted John Trowery's motion for a change of venue from Lancaster County. Appellant argues that granting the change of venue for Trowery was binding upon the judge who considered appellant's motion. We do not agree. This Court has stated many times that it is within the sound discretion of the court as to whether a motion for a change of venue should be granted. State v. Galloway, 263 S.C. 585, 211 S.E.2d 885 (1975); State v. Pruitt, 260 S.C. 396, 196 S.E.2d 107 (1973); State v. Swilling, 249 S.C. 541, 155 S.E.2d 607 (1967). There is no rule which requires the court who considered appellant's motion for a change of venue to grant it simply because a different court deemed it essential to grant Trowery's motion. It was within the discretion of the court in appellant's case to consider appellant's motion and to grant or deny it as the facts and circumstances warranted.

It is well settled, of course, that while a motion for change of venue on the ground that an impartial jury cannot be obtained is a discretionary matter, it 'is a judicial, and not an arbitrary, discretion.' State v. Mouzon, 231 S.C. 655, 99 S.E.2d 672 (1957); State v. Jackson,110 S.C. 273, 96 S.E. 416 (1918). Only if the court has clearly abused its discretion in denying the motion will the Supreme Court review that decision and reverse; moreover, such denial must be clearly shown to have prejudiced the rights of appellant. Galloway, supra. We find no such showing on this record.

One of appellant's chief contentions regarding the change of venue question is that he could not obtain the assistance of counsel from the local bar in Lancaster. Appellant does not contend that the failure to have local counsel resulted in ineffective assistance of counsel, but urges that this reflected prejudice against him in the community. It has been stated by this Court previously that '. . . ordinarily the fact that a defendant is unable to retain local counsel is 'a striking index of the condition of public sentiment." Mouzon, supra. Appellant argues that such index is established in his case. He points out that, of the affidavits of local counsel invited by the resident circuit judge to aid him in his decision on the motion, seven Lancaster County attorneys swore they would not or could not represent appellant under any circumstances.

In Mouzon the Court dealt with the same kind of problem with which we are faced here. There appellant was charged with murder in Clarendon County. His motion for a change of venue was based largely on affidavits of his own counsel to the effect that, after a thorough investigation, they were convinced that their client could not get a fair and impartial trial. The trial judge, however, refused to grant the requested change. The Supreme Court stated in part the following with respect to whether or not unavailability of local counsel to assist appellant indicated that he could not get a fair trial in Manning:

There are only about five practitioners at Manning. One was associated with the solicitor in this case. We are not definitely advised why the remaining four declined an offer of employment. It may have been for reasons other than appellant's claim of adverse public sentiment. There are several lawyers at Summerton in Clarendon County. There is no showing that they declined employment in this case.

. . . After careful consideration we are not convinced that appellant's inability to secure a Manning lawyer to assist in the case, When considered in connection with all the circumstances (emphasis added), compels a conclusion that the trial Judge abused his discretion in refusing the motion for a change of venue. Mouzon, supra, p. 679.

We believe that the matter of unavailability of local counsel in this case closely parallels that in Mouzon. The affidavits of the Lancaster lawyers who stated that they could not or would not represent appellant do not, in most instances, detail why they could not or would not do so. Additionally, the record does not reflect whether affidavits were submitted from all members of the Lancaster County bar.

Significant is the fact that, of the affidavits submitted, one...