State v. Nelson, 21000

• Decision Date: 28 June 1979
• Docket Number: No. 21000,21000
• Citation: 273 S.C. 380,256 S.E.2d 420
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Willie NELSON, Jr., Appellant.

Page 420

256 S.E.2d 420

273 S.C. 380

The STATE, Respondent, v. Willie NELSON, Jr., Appellant.

No. 21000.

Supreme Court of South Carolina.

June 28, 1979.

Dale T. Cobb, Jr., Charleston, for appellant.

Atty. Gen. Daniel R. McLeod and Staff Atty. Buford S. Mabry, Jr., Columbia, and Sol. Capers G. Barr, III, and Asst. Sol. Richard C. Bell, Charleston, for respondent.

LITTLEJOHN, Justice:

Earl Randall Singleton and Willie Nelson, Jr., were jointly indicted, tried, and convicted by a jury of armed robbery. Nelson has appealed; Singleton has not. At the trial they were represented by separate counsel.

Before the trial commenced, Nelson's attorney moved that the trial of the two defendants be severed on the ground that the defenses were antagonistic, asserting that Singleton's written confession (which implicated Nelson) could not be properly sanitized for publication to the jury without prejudice. The trial judge ruled that the defenses were not antagonistic such as to require a severance, and ruled that Singleton's written statement could not be admitted in evidence. He permitted a police officer to orally quote Singleton, admonishing the officer to be careful to avoid any reference to Nelson which might be prejudicial.

Nelson has appealed, asserting two errors: (1) failure to grant the motion for severance, and (2) failure to grant a mistrial because of alleged prejudicial argument of the prosecuting attorney to the jury.

The United States Supreme Court has ruled that the State may not offer one defendant's out-of-court confession in order to implicate a codefendant, and it has ruled that a limiting instruction does not correct such a defect. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). We find no violation of Bruton in the trial of this case. In the manner it was admitted, Singleton's confession did not implicate Nelson. This court has held that a motion for severance is addressed to the sound discretion of the trial judge and his decision will not be disturbed absent an abuse of discretion. State v. Green, 269 S.C. 623, 239 S.E.2d 646 (1977); State v. Allen, 266 S.C. 175, 222 S.E.2d 287 (1976). We find no abuse of discretion in refusing the motion.

It was the position of Singleton that he was merely present at the time of the robbery and that he did not participate. He did not testify. The defense of Nelson was alibi, and he contended that he was not even present at the time and place of the robbery. Both defendants were positively identified by the victim of the robbery.

In arguing the case to the jury on behalf of the State, the solicitor made the following statement:

"And when Mr. Singleton, who apparently Mr. Peeples would have you believe was so drunk he didn't know what was going on, admitted that when they came in he told them he said, I told the two dudes that we would be with them in a minute we would be with them in a minute, and then he went back in the back room and told Nelson, there's a couple of guys back there let's get out of here and they went out lickety-split through the back door, jumped into a cab, split the money and I don't know where they went after that."

Nelson's attorney objected to the argument, which was overruled. The solicitor continued his argument as follows:

"He (Singleton) would have you believe that he was too drunk to say anything but be cool, be cool, and he did say those things, but he also said something else. Ms. Jameson testified that when she was standing there at the cash register and Willie Nelson was holding the gun in her face around the corner appeared the short fellow, Singleton, and he told the big fellow, leave the pennies, man. They didn't have time to take the pennies."

The judge handled the objection in the following manner:

"THE COURT: Very well, Mr. Cobb. I want to give you an opportunity to put whatever objection you want to make on the record.

"MR. COBB: Thank you. Your Honor, during the course of the Solicitor's argument, as I perceived his argument to be, and I want to make sure this gets on the record. He was referring...