State v. Mouzon, No. 2440

• Court: Court of Appeals of South Carolina
• Writing for the Court: CURETON; GOOLSBY; HEARN; GOOLSBY
• Citation: 467 S.E.2d 122,321 S.C. 27
• Parties: The STATE, Respondent, v. Rodney MOUZON, Appellant. . Heard
• Decision Date: 09 November 1995
• Docket Number: No. 2440

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467 S.E.2d 122 321 S.C. 27 The STATE, Respondent,
v.
Rodney MOUZON, Appellant. No. 2440. Court of Appeals of South Carolina. Heard Nov. 9, 1995.
Decided Dec. 28, 1995.
Rehearing Denied Feb. 22, 1996.
Certiorari Granted Aug. 23, 1996.

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[321 S.C. 29] Assistant Appellate Defender Robert M. Dudek, of South Carolina Office of Appellate Defense, Columbia, for appellant.

Attorney General T. Travis Medlock, Chief Deputy Attorney General Donald J. Zelenka, and Assistant Deputy Attorney General Salley W. Elliott, Columbia; and Solicitor Donald V. Meyers, Lexington, for respondent.

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CURETON, Judge:

Appellant, Rodney Mouzon, was indicted for murder, conspiracy to distribute crack cocaine, and possession of a firearm during the commission of a violent crime. The jury acquitted Mouzon on the murder charge, but convicted him of conspiracy to distribute crack cocaine and possession of a firearm during the commission of a violent crime. He was sentenced to twenty-five years imprisonment on the conspiracy charge and a consecutive five year prison term on the weapon charge. Mouzon appeals the denial of his motion for a directed verdict on the conspiracy charge. He further asserts the trial court committed reversible error by denying him the right to present the last closing argument to the jury solely because his request that the jury view the crime scene was granted. We reverse the conspiracy and firearm convictions. ¹

[321 S.C. 30] I.

Defense counsel made a pretrial motion to permit the jury to visit the scene of the crime after dark. The prosecution raised no objection to this motion, and the jury was taken to view the scene. No defense attorneys, solicitors, or either of their staffs went to the scene with the jury. There was also no court reporter present when the jury viewed the scene.

After Mouzon rested his case without presenting any testimony or exhibits, the prosecution asserted for the first time that Mouzon was not entitled to present the last closing argument to the jury because he presented evidence by putting the jury scene into evidence. The trial court agreed. Defense counsel objected, stating the jury view, as ordered by the court, did not constitute the introduction of evidence. Maintaining that the entire defense strategy was to position itself to present the final summation to the jury, Mouzon's counsel insisted upon that right. The court, nevertheless, ruled the jury view constituted evidence, and as such, permitted the State to argue last. We hold this was error.

The appellate courts of this State have previously addressed this issue, and held that a jury view is not regarded as evidence, Gossett v. State, 300 S.C. 473, 388 S.E.2d 804 (1990); Jacks v. Townsend, 228 S.C. 26, 88 S.E.2d 776 (1955); City of Columbia v. Jennings, 288 S.C. 79, 339 S.E.2d 534 (Ct.App.1986), or the taking of testimony. State v. Plath, 281 S.C. 1, 313 S.E.2d 619 (1984); State v. Suber, 89 S.C. 100, 71 S.E. 466 (1911). In coming to this conclusion, the courts have explained that the jury view is simply a means for the jury to better understand evidence presented in the courtroom. Jacks, 228 S.C. 26, 88 S.E.2d 776; Jennings, 288 S.C. 79, 339 S.E.2d 534. Moreover, S.C.Code Ann. § 14-7-1320 (1976) provides that a jury may be taken to view the "place" in question upon the request of either party and where the court determines that it is necessary for a fair determination of the issues.

Although the State concedes that the law is clear that a jury view does not constitute evidence, it submits that for the [321 S.C. 31] purposes of waiver of the last argument, the jury view should be considered new evidence because a defendant is free to argue to the jury, as Mouzon did here, what was observed at the scene in direct contradiction with other testimony or evidence previously introduced. Consequently, the prosecution asserts the trial court was correct in concluding Mouzon introduced evidence because he offered to the jury matters which were newly presented during the view of the scene. Alternatively, the prosecution submits that even if the court committed error, Mouzon suffered no prejudice in not arguing last to the jury. We reject both contentions.

As the United States Supreme Court noted in Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593

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(1975), in a criminal trial, which is in the end basically a factfinding process, no aspect of such advocacy could be more important than the opportunity finally to marshal the evidence for each side before submission of the case to judgment. The Court further elaborated on the role of closing argument as a basic and fundamental right of the accused to make his defense:

It can hardly be questioned that closing argument serves to sharpen and clarify the issues for resolution by the trier of fact in a criminal case. For it is only after all the evidence is in that counsel for the parties are in a position to present their respective versions of the case as a whole. Only then can they argue the inferences to be drawn from all the testimony, and point out the weaknesses of their adversaries' positions. And for the defense, closing argument is the last clear chance to persuade the trier of fact that there may be reasonable doubt of the defendant's guilt.

Id. at 862, 95 S.Ct. at 2555.

In South Carolina, it is well established that where the defendant calls no witnesses and offers no evidence in his behalf, his counsel is entitled to have the concluding argument to the jury. State v. Crowe, 258 S.C. 258, 188 S.E.2d 379 (1972); State v. Gellis, 158 S.C. 471, 155 S.E. 849 (1930); cf. State v. Garlington, 90 S.C. 138, 72 S.E. 564 (1911). The right to open and close the argument to the jury is a substantial right, the denial of which is reversible error. State v. Rodgers, 269 S.C. 22, 235 S.E.2d 808 (1977). Since we found [321 S.C. 32] that Mouzon presented no evidence by requesting the jury visit the crime scene, and no witnesses were offered in his behalf, it follows he was entitled to present the last closing argument, and the denial of such mandates reversal of his convictions.

II.

Mouzon also contends the trial judge erred in failing to direct a verdict on the charge of conspiracy to distribute crack cocaine. He asserts the evidence failed to show he participated in a conspiracy to sell crack cocaine. We agree and hold this provides another independent basis for reversal of his conspiracy conviction.

A conspiracy is a combination or agreement between two or more persons for the purpose of accomplishing a criminal or unlawful object, or achieving by criminal or unlawful means an object that is neither criminal nor unlawful. State v. Wilson, 315 S.C. 289, 433 S.E.2d 864 (1993). It may be proven by the specific overt acts done in furtherance of the conspiracy, but the gravamen of the offense of conspiracy is the agreement, combination, or mutual understanding. Id.; State v. Gunn, 313 S.C. 124, 437 S.E.2d 75 (1993). In fact, under South Carolina law, a conspiracy does not require overt acts; the substantive crimes committed in furtherance of the conspiracy simply constitute circumstantial evidence of the existence of the conspiracy, its object, and scope. Wilson, 433 S.E.2d at 868. Moreover, from the overt acts, an inference may be drawn as to the existence and object of the conspiracy. Id.

In proving a conspiracy, the State need not show direct contact or explicit agreement between the participants allegedly involved. It is sufficient to show that each participant knew or had reason to know of the scope of the conspiracy, and that each participant had reason to believe his own benefits were dependent upon the success of the entire venture....