State v. Mixon

• Decision Date: 12 January 1981
• Docket Number: No. 21369,21369
• Citation: 274 S.E.2d 406,275 S.C. 575
• Court: South Carolina Supreme Court
• Parties: The STATE, Appellant-Respondent, v. Gloria Ann MIXON, Respondent-Appellant.

Page 406

274 S.E.2d 406

275 S.C. 575

The STATE, Appellant-Respondent, v. Gloria Ann MIXON, Respondent-Appellant.

No. 21369.

Supreme Court of South Carolina.

Jan. 12, 1981.

[275 S.C. 577] Atty. Gen. Daniel R. McLeod and Asst. Atty. Gen. Kay G. Crowe, Columbia, and Sol. Dudley Saleeby, Jr., Florence, for appellant-respondent.

Frederick K. Jones, Florence, for respondent-appellant.

LITTLEJOHN, Justice:

Defendant Gloria Ann Mixon was tried and convicted of possession with intent to distribute PCP, a controlled drug substance, in violation of the statutory law of South Carolina. She was sentenced at the December 3, 1979, term of court to prison for five years, and her probationary sentence for forgery was terminated.

At a subsequent term of court commencing December 10, 1979, she moved for and was granted a new trial based upon failure of the State to produce certain statements allegedly requested in a pretrial Brady motion by her attorney. The State has appealed the order of Circuit Judge John Hamilton Smith granting a new trial; Mixon has appealed an order of Circuit Judge Ralph King Anderson denying her petition to proceed upon appeal in forma pauperis.

The State, on appeal, first submits that the trial judge erred in even considering the motion after the term of court at which Mixon was sentenced had ended. We agree. Each week of court is a separate term. See State v. Patterson, 272 S.C. 2, 249 S.E.2d 770 (1978). A trial judge is without authority to pursue a case after the term of court has adjourned. State v. Best, 257 S.C. 361, 186 S.E.2d 272 (1972). Inasmuch as the issue raised might be resubmitted by way of a post-conviction-relief application, we will consider the merits of the judge's ruling on the granting of a new trial and treat the matter as similar to a motion for a new trial on after-discovered evidence.

RE THE NEW TRIAL ISSUE

In July, 1979, Mixon and two codefendants, Smith and Collins, were arrested in a parking area adjoining a motel and charged with a violation of drug laws. All were indicted for possession of PCP with intent to distribute.

The facts leading up to the arrest are as follows: About 4 o'clock in the morning Collins and Mixon became acquainted at a bar. They adjourned from the bar to Mixon's motel room and departed her room about 10 o'clock a. m. to proceed to the beach in Collins' car. At Collins' car they were joined by Smith, a person known to Mixon but not to Collins. Shortly thereafter, Police Officer Gould approached and informed them that he had reason to believe they were violating the drug laws of the state. With consent, he searched Collins' car; he also searched the pocketbook of Mixon for a weapon. Nothing was found in the car or pocketbook, but he then observed a bag containing 10 packets of PCP on the ground between Mixon and Smith. All three denied ownership or possession of the drugs. A warrant was taken for each one. Smith pled guilty to simple possession, while Collins' case was nolle prossed by the solicitor. Mixon demanded trial.

In October of 1979, the attorney for Mixon served on the solicitor an instrument designated "BRADY DEMAND." It would appear to be a form usable in most any case, and reads as follows:

"YOU WILL PLEASE TAKE NOTICE that the undersigned on behalf of the above named Defendant hereby demands that you provide him any and all exculpatory information which would tend to mitigate or lessen the offense charged and any sentence arrising (sic) out of the offense charged.

The Defendant particularly demands the following:

1. The names and addresses of all witnesses, including law enforcement personnel, present at the time the alleged offense was committed.

2. The names and addresses of all witnesses, including law enforcement personnel, present when this Defendant was arrested.

3. The names and addresses of all witnesses, including law enforcement personnel, present when this Defendant allegedly made statement(s) to law enforcement personnel.

4. Any statement made by Defendant to law enforcement personnel, written, recorded or notes thereof, the date and time of day, as well as the place where the statement was made.

5. Any statements made by this Defendant's co-defendants.

6. Any arrests of Defendant's co-defendants for drug violations other than this indicted offense.

7. Any deal, understanding or agreement entered into between law enforcement personnel and Defendant's co-defendants, concerning prior drug violations."

At some time during the investigation, codefendant Collins gave a statement, which was taped, to the arresting officer. Included on the tape was a statement by Collins that Smith had offered drugs to him and to Mixon in the car, but they had refused acceptance. Collins also stated on the tape that Smith said that he was "... gonna go ahead and cop out on the PCP." The tape was delivered to the office of the solicitor. The taped statement of Collins was not disclosed to Mixon's attorney prior to or during the trial. Smith, whose case had already been disposed, did not testify at the Mixon trial. Collins, who was in Tennessee at the time of the trial, was not called to testify by either the State or the defense. So far as the record shows, neither Mixon nor her counsel talked with Collins or sought to have him present for the trial. The solicitor wanted him present, but did not require him to come from Tennessee.

The gravamen of the motion for a new trial, and the gravamen of the issue which we must decide, is the contention of Mixon that she has been denied due process and, accordingly, denied a fair trial because she was not given evidence mandated by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Simply put, the issue before us is: Did the failure of the State to tell Mixon's attorney that Collins had stated that both he (Collins) and Mixon refused to accept drugs from Smith violate her right to due process and a fair trial? We hold that it did not.

We would first point out that the fact that the interrogation was recorded on tape is of no great significance. The fact that the interrogation was on tape merely assured accuracy and made proof easier. The issue is the same as if the oral statement had been made by Collins to the investigating officer. The essence of Brady is as follows:

"We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."

We held in State v. Flood, 257 S.C. 141, 184 S.E.2d 549 (1971), that there is no general discovery in criminal cases in South Carolina. We therefore look only to Brady and the other cases decided by the Supreme Court of the United States to determine whether the rights of Mixon have been violated. The Brady demand made in this case is somewhat of a blunderbuss shot into the air in hopes that some game would fall to the earth. If it is a valid demand, it can be argued that all police officers who know anything whatsoever conceivably favorable to a defendant should reveal the same for the benefit of defense counsel. Brady does not go this far.

The portion of Collins' recorded statement which Mixon claims might have been helpful to her is as follows:

"Larry Smith pulls up and Gloria says I'm leaving the parking lot Gloria says stop. Said I know this guy. So I stopped and he comes over and gets in the car. And that, they begin to talk. Okay, Larry Smith says well I have some THC. Do you want some Gloria? She says no and he looks at me and he says do you want some? I said no, definitely not."

At trial, Mixon testified as follows:

"Q. Have you ever had any conversation with Larry Smith concerning PCP?

A. No, sir, I haven't."

A reading of the statements of Collins and Mixon on their face clearly shows that different drugs are referred to, thereby disputing the exculpatory value of Collins' statement. THC is, according to § 44-53-190, Code of Laws of South Carolina (1976), Tetrahydrocannabinol. It is a chemical substance found in marihuana and can be produced synthetically. PCP is more properly called Phencyclidine, a drug often used in veterinarian medicine as a tranquilizer.

Even assuming that Collins intended to say PCP instead of THC, or assuming that the terms are used interchangeably in the drug culture, his statement would not benefit Mixon in that she testified that no such discussion even occurred. The effect of Collins' statement would be to directly challenge the credibility of Mixon.

Mixon knew as well as anyone what transpired at the scene of the arrest. If she refused to accept illegal drugs (THC or PCP) in Collins' presence, she could not help but be aware that Collins had this information and could so testify. She should not be permitted to claim that she was surprised by the fact that Collins would make the statement to the investigating officer. The contention that the defense expected the State to subpoena Collins...