State v. Middleton, No. 20176

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: RHODES; LEWIS
• Citation: 222 S.E.2d 763,266 S.C. 251
• Parties: The STATE, Respondent, v. Frank MIDDLETON, Appellant.
• Docket Number: No. 20176
• Decision Date: 26 February 1976

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222 S.E.2d 763 266 S.C. 251 The STATE, Respondent,
v.
Frank MIDDLETON, Appellant. No. 20176. Supreme Court of South Carolina. Feb. 26, 1976.

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[266 S.C. 253] Coming B. Gibbs, Jr., and Mark C. Tanenbaum, Charleston, for appellant.

[266 S.C. 254] Sol. Robert B. Wallace and Asst. Sol. A. Arthur Rosenblum, Charleston, and Atty. Gen. Daniel R. McLeod and Asst. Atty. Gen. Joseph R. Barker, Columbia, for respondent.

[266 S.C. 255] RHODES, Justice:

Frank Middleton appeals from his conviction of rape and armed robbery. He contends that he should be granted a new trial because of alleged trial errors. We disagree and affirm his conviction.

The following five questions are raised for our consideration:

1. Did the trial judge err in refusing to ask jurors during their Voir dire examination five questions submitted by Middleton relating to whether they would presume that Middleton was innocent when so instructed by the trial judge?

[266 S.C. 256] 2. Did the trial judge err in refusing to ask jurors during their Voir dire examination three questions submitted by Middletion relating to racial prejudice?

3. Did the trial judge err by admitting into evidence articles of clothing belonging to Middleton and obtained during a search of his bedroom conducted without a search warrant but with the permission of his father?

4. Did the trial judge err in allowing testimony that Middleton had refused to submit to a combing of his pubic hair?

5. Did the trial judge err in refusing to exclude certain materials sent to the F.B.I. Laboratory in Washington, D.C. on the grounds that no chain of custody for the materials had been established?

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Questions 1 and 2

Middleton contends that the trial judge's refusal to ask jurors eight questions submitted by him violated S.C.Code § 38--202 (1962) and his federal constitutional rights. Middleton was a 27 year old black male charged with raping the 16 year old daughter of a white Charleston City police lieutenant, and the armed robbery of the Magnolia Drive-In Theater. The victim, an employee of the Magnolia, was used as a hostage during the robbery, and was forced at gunpoint to accompany the robber as he fled from the Magnolia, the rape occurring shortly thereafter. He was tried in Charleston County four months after the crimes were committed.

Middleton alleges error in the failure of the trial judge to ask the jury on Voir dire examination certain questions requested by him relating to the presumption of innocence and possible racial prejudice. While the jurors were not asked the precise questions requested by Middleton, they were asked, in addition to the basic questions required by S.C.Code § 38--202 (1962), [266 S.C. 257] nine questions as set forth in the footnote below. ¹ There is no question but that the basic questions required by the above cited statute were asked the jurors. Generally, any further examination of the jury is left to the sound discretion of the trial judge. State v. Britt, 237 S.C. 293, 117 S.E.2d 379 (1960). The trial judge, in his charge to the jury, fully instructed them as to the presumption of innocence accorded the defendant and the burden of proof imposed upon the State, and it is presumed that the jury followed his instructions. State v. Queen, 264 S.C. 515, 216 S.E.2d 182 (1975). We are unaware of any controlling constitutional requirement that questions relative to the presumption of innocence be asked jurors on Voir dire examination. Thus the matter was within the sound discretion of the trial judge and we find no abuse of same.

The second group of Voir dire questions not asked in the language requested by Middleton related to possible racial prejudice. While the case of Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973), holds that the Fourteenth Amendment requires that Voir dire questions relating to possible racial prejudice be asked in cases of the nature here presented, that opinion vests the trial judge with considerable latitude as to the manner by [266 S.C. 258] which the objective is achieved. In Ham, the Supreme Court of the United States stated the following:

'We agree with the dissenting justices in the Supreme Court of South Carolina that the trial judge was not required to put the question in any particular form, or to ask any particular number of questions on the subject, simply because requested to do so by petitioner.'

We are of the opinion that questions four and six ² asked by the trial judge were patently sufficient to comply with the requirements of the Fourteenth Amendment relative to possible racial prejudice.

We conclude, therefore, that there was no error when the trial judge did not ask on

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Voir dire the eight questions submitted by Middleton.

Question 3

During the trial, an evidentiary hearing was held on the question of whether a pair of green pants and black tennis shoes should be admitted into evidence. These articles of clothing belonged to Middleton and were obtained during a search of his bedroom two days after the robbery and rape. At the time of the search Middleton was in jail. The search took place on a Monday afternoon and was conducted by three police officers after Middleton's father had signed a consent to search form. The trial judge allowed the articles into evidence, and they were identified by the cashier at the Magnolia as having been worn by the person who robbed him.

Middleton contends that the pants and shoes should have been excluded under the Fourth Amendment of the U.S. Constitution because his father's...