State v. Merriman

Decision Date12 November 1984
Docket NumberNo. 0444,0444
Citation337 S.E.2d 218,287 S.C. 74
CourtSouth Carolina Court of Appeals
PartiesThe STATE, Respondent, v. Edward F. MERRIMAN, Appellant. The STATE, Respondent, v. Paul MAZZELL, Appellant. . Heard

Tara D. Shurling, Asst. Appellate Defender, Columbia, for appellant P. Mazzell.

Atty. Gen. T. Travis Medlock, Asst. Attys. Gen. Harold M. Coombs, Jr., and Charles H. Richardson and Staff Atty. Amie L. Clifford, Columbia, and Sol. Charles M. Condon, of Charleston, for respondent.

GARDNER, Judge.

Appellant Paul Mazzell (Mazzell) and his codefendant Eddie Merriman (Merriman) were convicted of conspiracy, kidnapping and murder in the death of Rickie Seagraves (Seagraves). Their appeals were consolidated for argument and decision by this Court. We affirm.

This court is required to address each question raised on appeal necessary for decision; consequently each of such questions, whether raised individually or by both appellants, will be addressed.

We have divided consideration of the questions into four broad categories.

FACTS

Seagraves was murdered on October 30, 1978, near Charleston, South Carolina. His body was not discovered until 1981, when Danny Hogg, then in prison for an unrelated crime, turned state's evidence.

The victim and the alleged perpetrators were persons connected with the Charleston drug underground.

Danny Hogg was granted immunity from prosecution in return for his testimony about the kidnapping and murder of Seagraves. Hogg acted as a muscle man for organized crime in Charleston. His own testimony reveals him to be a drug dealer, a kidnapper, and a murderer. Hogg testified that he and Merriman worked for Mazzell, that Mazzell first directed them to employ another person to kill Seagraves but that this person refused to accept the propositions and that Mazzell then directed him and Merriman to get Seagraves so that he might kill him and that on October 30, 1978, Hogg and Merriman found Seagraves making a telephone call outside of Majik Market, a convenience store, in Charleston County, S.C. Hogg and Merriman, according to Hogg's testimony, drove into the parking area of Majik Market at which time Seagraves ran into the store. Hogg testified that he and Merriman chased Seagraves into the store and into a back room of the store and there beat him before dragging him to their pickup truck; they then, according to Hogg's testimony, delivered Seagraves to Mazzell and Mazzell killed him. The body was secretly buried in Merriman's yard and discovered two years later when Hogg turned state's evidence.

There is evidence of record that Hogg killed Seagraves. This evidence will be discussed under the subheading of Constitutional Questions.

I.

PROSECUTORIAL MISCONDUCT

Mazzell and Merriman argue that the trial judge erred in not granting a mistrial because of alleged prosecutorial misconduct.

It is alleged that four witnesses were threatened to the extent that three of them refused to testify and one testified only after his attorney received assurances from the court and the solicitor that he would not be the subject of harassment.

The first such witness was voluntarily released from his subpoena by defense counsel. There was no proffer of his testimony. In the absence of such a proffer, we cannot determine the materiality of the The second and third witnesses were placed on the stand where they refused to answer questions; they testified that they were afraid to answer the questions because they had been threatened by an officer of the State Law Enforcement Division (SLED) and an agent of the solicitor's office; there is evidence of record that this testimony was a planned fabrication. The trial judge carefully investigated the allegations and made a factual determination that these threats had not taken place; his decision was supported by the evidence, and we so hold. Where there is evidence to support a finding of fact by the trial judge of a criminal case, his finding of fact is conclusive. State v. Moultrie, 261 S.C. 14, 198 S.E.2d 231 (1973); 24A C.J.S. Criminal Law, Section 1832.

                evidence he might have presented and for this reason, the question is not properly preserved on appeal.   State v. Cabbagestalk, 281 S.C. 35, 314 S.E.2d 10 (1984)
                

After receiving assurances from the trial judge, the fourth witness testified. There is no contention that the witness's testimony was affected by any alleged threats. This exception is without merit.

Mazzell also alleges prosecutorial misconduct because the police deliberately supplied news media with information which was false and misleading. While we agree with the trial judge's characterization of the police conduct as horrendous and ridiculous, we also agree with his conclusion that the record is devoid of any evidence of actual prejudice to the appellants. The news reports took place after the venire was seated but prior to the impaneling of the petit jury. The jury venire was carefully cautioned not to listen to or read any news accounts of the case. This was a capital case and the jury was carefully examined on voir dire and it was determined that none of the panel was exposed to erroneous broadcasts. In the absence of prejudice there is no reversible error. State v. Greene, 255 S.C. 548, 180 S.E.2d 179 (1971). We observe, however, that police misconduct such as this is punishable by contempt of court. While we find no error affecting this decision, this court does express its serious concern about this type conduct.

II.

TESTIMONY OF CONVICTED PERJUROR

During the state's case, it offered as a witness Carl Eugene Hines, who had been convicted of perjury. Both appellants objected, citing Section 16-9-10, Code of Laws of South Carolina (1976), which prohibits the testimony of convicted perjurors. The court allowed the testimony on the basis of Section 19-11-60, Code of Laws of South Carolina (1976), which provides that no person convicted of any crime shall be barred from testifying.

Section 16-9-10 was passed in 1712 and represents a codification of the common law. As a matter of fact, the common law prohibited any person convicted of an infamous crime from testifying. However, Section 19-11-60 was passed in 1934; its language is clear, unequivocal and unambiguous. Section 16-9-10 cannot be reconciled with Section 19-11-60; the two statutes are inconsonant and inconsistent with each other insofar as Section 16-9-10 prohibits testimony of a convicted perjuror and we so hold. We therefore hold that Section 16-9-10 was, insofar as it prohibits the testimony of a convicted perjuror, repealed by implication upon the enactment of Section 19-11-60.

III.

ALLEGED DISQUALIFICATION OF JUROR

It is next asserted that the foreman of the jury, Reginald Boone, was the nephew of a SLED agent who was involved in the investigation of the case and for that reason a new trial should have been granted.

The relationship was not disclosed on voir dire, however, it was discussed in court immediately after the jury retired The case of State v. Williams, 266 S.C. 325, 223 S.E.2d 38 (1976), is controlling on this point. There a witness was not qualified to sit on the jury because he had been a juror in a previous trial of the same case. The defendant was aware of this disqualification before the jury returned its verdict and the court observed:

                thus, the appellants knew of the relationship before the verdict was rendered.   No motion was made nor objection taken prior to rendition of the verdict
                

... [H]e was aware of a possible disqualification before the jury returned its verdict. Under these circumstances he is not entitled to a new trial, and there was no abuse in failing to inquire further into the matter. State v. Williams, 266 S.C. 325 at 336, 223 S.E.2d 38 at 43 (1976).

IV.

EVIDENCE QUESTIONS

The trial court refused to grant a mistrial based on the following testimony of a SLED agent:

The following exchange took place.

SOLICITOR: Q. Sled's assistance was requested how in the investigation.

CALDWELL: The first overt act we did in initiating the investigation is we took the information and we believed from the information that Danny Hogg, Paul Mazzell, Eddie Merriman....

COUNSEL: Objection.

Appellant Mazzell argues that this exchange was prejudicial and that it amounts to prosecutorial misconduct and that a mistrial should have been granted. The objection was well taken. The clear implication of the testimony results in an opinion by the SLED agent concerning the very issue to be decided by the jury. The trial court, however, gave a very thorough curative instruction. We hold that the prejudice was corrected by this instruction. State v. Craig, 267 S.C. 262, 227 S.E.2d 306 (1976).

Both appellants allege error in the court's failure to grant a mistrial based on the following testimony of state's witness David L. Emond on redirect:

Q. And he [Seagraves] offered to sell you those pistols.

A. More than one time.

Q. Okay. Did you purchase those pistols?

A. No.

Q. Why?

A. Well, as soon as these people had found out that he was unarmed, I'm sure they would have come after him.

The following colloquy took place between the solicitor, both defense counsels and the court.

MR. GIBBS: Your Honor, you know, I mean, I object, and I again move for a mistrial. We have this orchestration between the Solicitor and the witness. Any chance they get, they come out with this inadmissible stuff.

THE COURT: You keep fishing, Mr. Stoney.

MR. STONEY: He opened the door--

THE COURT: No.

MR. STONEY: I'll withdraw the question. No further questions.

THE COURT: All right, sir. Thank you, sir. Step down. You just alluded to a motion, Mr. Gibbs, do you wish to--

MR. GIBBS: Let's just add it to the last one and at some point I think it will become overwhelming if this continues.

THE COURT: All right, sir.

MR. CRAVEN: Your Honor, I would like to be included in that, also.

THE COURT: All right, sir.

It is...

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