State v. Matthews, 22639

• Decision Date: 16 September 1986
• Docket Number: No. 22639,22639
• Citation: 353 S.E.2d 444,291 S.C. 339
• Parties: The STATE, Respondent, v. Earl MATTHEWS, Jr., Appellant. . Heard
• Court: South Carolina Supreme Court

Page 444

353 S.E.2d 444

291 S.C. 339

The STATE, Respondent, v. Earl MATTHEWS, Jr., Appellant.

No. 22639.

Supreme Court of South Carolina.

Heard Sept. 16, 1986.

Decided Dec. 15, 1986.

Asst. Appellate Defender Tara D. Shulring, of S.C. Office of Appellate Defense, Columbia, for appellant.

Atty. Gen. T. Travis Medlock, Asst. Attys. Gen. Harold M. Coombs, Jr., and Carolyn M. Adams, Columbia, and Sol. Charles M. Condon, Charleston, for respondent.

HARWELL, Justice.

Appellant Earl Matthews, Jr. was found guilty of murder, armed robbery, assault and battery with intent to kill, attempted armed robbery, aggravated assault and battery, and unlawful possession of a pistol. On the recommendation of the jury, the trial judge sentenced him to death for murder. Appellant received 25 years, 20 years, 20 years, and one year, all to run consecutively, for the remaining crimes. This case consolidates appellant's direct appeal and our mandatory review of the On the evening of October 29, 1984, the 16 year old decedent and her 16 year old boyfriend bought their dinner at a drive through restaurant. While they were parked in a nearby, empty parking lot eating their dinner and talking, appellant approached the driver's side of the car where the boyfriend was seated. Appellant pulled out a handgun and demanded the boy's money. While the boy was looking through the car for money, the appellant struck him across the face, breaking his nose. The boy found five dollars in his girlfriend's purse. At appellant's direction, he put the five dollars back into the pocketbook and handed it to appellant. While appellant was going around to the passenger's side of the car, the decedent locked her door and tried to roll up her window. According to the boy's testimony, appellant prevented her from rolling up the window and said, "Come on, let's take a little ride." When the decedent's boyfriend told him they were not going for a ride, appellant stepped back, shot the girl in the head, and shot the boy in the chest. The girl was pronounced dead later in a local hospital and her kidneys were donated for transplantation. The decedent's boyfriend recovered from his chest wound and testified at trial.

                death sentence pursuant to S.C.Code Ann. § 16-3-25 (1976, as amended).   We affirm the conviction, reverse the death sentence, and remand for a new sentencing proceeding
                

GUILT PHASE

Appellant alleges that the trial court judge erroneously refused to strike two prospective jurors for cause. Appellant used two of his peremptory strikes to excuse these two jurors and appellant exhausted his peremptory challenges prior to the empaneling of the jury. It is appellant's contention that the responses of these two prospective jurors on voir dire indicated that they were predisposed to recommend the death penalty in all murder cases.

A juror must be excluded only if his views "would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Wainwright v. Witt, 469 U.S. 412, 433, 105 S.Ct. 844, 857, 83 L.Ed.2d 841, 851-52 (1985). Both potential jurors stated that they could impose either a life or death sentence depending on the facts and circumstances. Based on the entire colloquies, we find that these two jurors were properly qualified by the trial judge. See State v. Singleton, 284 S.C. 388, 326 S.E.2d 153 (1985), cert. denied, 471 U.S. 1111, 105 S.Ct. 2346, 85 L.Ed.2d 863 (1985).

Appellant also claims that the trial court erred in excusing two prospective jurors based on their opposition to the death penalty. Appellant asserts that despite their personal reservations about the death penalty, their responses on voir dire indicated that they could consider all possible penalties including the death sentence. Each juror's response must be examined in light of the entire colloquy. State v. Spann, 279 S.C. 399, 308 S.E.2d 518 (1983), cert. denied, 466 U.S. 947, 104 S.Ct. 2146, 80 L.Ed.2d 533 (1984). The responses given by each of these jurors clearly indicate that his views would prevent or substantially impair him from performing his duty. When a potential juror is prevented from rendering an impartial decision or voting for the death penalty, the trial court can exclude him because of his inability to carry out his duty under the law. Lockhart v. McCree, --- U.S. ----, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986); Wainwright v. Witt, supra; Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980); State v. Hyman, 276 S.C. 559, 281 S.E.2d 209 (1981), cert. denied, 458 U.S. 1122, 102 S.Ct. 3510, 73 L.Ed.2d 1384 (1982). The trial judge did not abuse his discretion in excusing these jurors.

Appellant maintains that the trial court improperly restricted the voir dire questions so as to preclude a determination of a prospective juror's potential to serve despite reservations about capital punishment. The method and scope of voir dire Appellant asserts that the trial court erred in refusing to strike a prospective juror for cause based on his employment with the criminal investigation division of the Navy and his prior employment with the Charleston County Police Department. Appellant claims that his challenge for cause of this prospective juror should have been sustained under S.C.Code Ann. § 14-7-820 (1976). That section provides:

                are matters largely within the discretion of the trial court.   State v. Smart, 278 S.C. 515, 299 S.E.2d 686 (1982), cert. denied, 460 U.S. 1088, 103 S.Ct. 1784, 76 L.Ed.2d 353 (1983) [Smart II ];   State v. Thompson, 278 S.C. 1, 292 S.E.2d 581 (1982).   The rulings of a trial judge on matters within his discretion will generally not be reversed absent an abuse of discretion.   State v. Tyner, 273 S.C. 646, 258 S.E.2d 559 (1979).   After reviewing the transcript[291 S.C. 343]  of the entire voir dire, we find that appellant has not demonstrated any abuse of discretion on the part of the trial judge
                

No clerk or deputy clerk of the court, constable, sheriff, probate judge, county commissioner, magistrate, or other county officer or any person employed within the walls of any courthouse shall be eligible as a juryman in any civil or criminal case.

The prospective juror did not hold any of the positions covered by the statute. Unlike the situation in State v. Johnson, 123 S.C. 50, 115 S.E. 748 (1923), on which appellant relies, the prospective juror here was not a deputy sheriff and was not required to take the oath of office prescribed by the South Carolina Constitution and South Carolina statutes. Even a special deputy sheriff is not automatically disqualified without a showing of bias or prejudice. Bryant v. State, 264 S.C. 157, 213 S.E.2d 451 (1975). See also State v. Hess, 279 S.C. 14, 301 S.E.2d 547 (1983), cert. denied, 464 U.S. 827, 104 S.Ct. 100, 78 L.Ed.2d 105 (1983) (former SLED agent qualified to serve as a juror).

As an officer of the United States, this prospective juror could have claimed an exemption from jury service pursuant to S.C.Code Ann. § 14-7-850 (Supp.1985). An exemption under this section is a privilege and not a disqualification. The parties may not object to a prospective juror due to his employment status under Section 14-7-850 if the prospective juror himself does not claim his privilege of exemption. State v. Graham, 79 S.C. 116, 60 S.E. 431 (1908).

The trial judge must assure himself that each juror is unbiased, fair, and impartial. State v. Gulledge, 277 S.C. 368, 287 S.E.2d 488 (1982). The qualification of a juror is addressed to the sound discretion of the trial judge, whose decision will not be disturbed unless wholly unsupported by the evidence. State v. Gilbert, 277 S.C. 53, 283 S.E.2d 179 (1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2258, 72 L.Ed.2d 863 (1982). We find that this juror was properly qualified.

As to the admission of his confession, appellant claims that the trial judge erred by: 1) failing to make a finding on the record that appellant received, understood, and waived his Miranda rights before giving a statement; and 2) failing to instruct the jury members that in addition to determining whether the statement was voluntary, they must also determine whether appellant received, understood, and waived his Miranda rights. We have held that before the state can admit a defendant's statement into evidence, the state must show affirmatively that "the statement was voluntary and taken in compliance with Miranda." State v. Middleton, 288 S.C. 21, 25, 339 S.E.2d 692, 694 (1986). The record reveals that the trial judge properly made an affirmative finding that appellant's confession was both voluntary and given after he understood and waived all Miranda rights. While the trial court's finding could have been more articulate, it clearly passes constitutional muster.

Appellant's contention that the trial judge erroneously failed to properly charge the jury concerning appellant's waiver of his Miranda rights is meritless. As we said in State v. Patterson, 285 S.C. 5, 9-10, 327 S.E.2d 650, 652 (1984), cert. denied, 471 We find no reversible error in the judge's failure to require the jury, before considering the statement, to find a waiver of constitutional rights. The jury could not have found that the statement was given freely and voluntarily unless it believed that the appellant had waived his constitutional rights. This exception lacks merit.

U.S. 1036, 105 S.Ct. 2056, 85 L.Ed.2d 329 (1985):

See also, State v. Elmore, 286 S.C. 70, 332 S.E.2d 762 (1985).

This is especially true in this case given the line of questions asked by appellant's own attorney. In an effort to stress how cooperative the appellant had been, the defense attorney engaged in the following colloquy with one of the arresting officers:

Q. And once in the police car, Lieutenant Frazier told him his rights, is that correct?

A. Correct.

....

Q. Okay, and he chose not--even after being warned, he decided to go ahead and be straight with...