State v. Neuman

• Decision Date: 29 June 2009
• Docket Number: No. 26676.,26676.
• Citation: 384 S.C. 395,683 S.E.2d 268
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Vincent NEUMAN, Sr., Appellant.

683 S.E.2d 268

384 S.C. 395

The STATE, Respondent, v. Vincent NEUMAN, Sr., Appellant.

No. 26676.

Supreme Court of South Carolina.

Heard March 17, 2009.

Decided June 29, 2009.

Appellate Defender Kathrine H. Hudgins, of South Carolina Commission on Indigent Defense, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Norman Mark Rapoport, Assistant Attorney General Michelle J. Parsons, all of Columbia, and Solicitor Donald V. Myers, of Lexington, for Respondent.

Justice BEATTY.

Vincent Neuman appeals from his conviction for "Taking of Hostages By an Inmate."¹ His sole contention is that the trial judge erred in not dismissing this charge on the ground the applicable statute, section 24-13-450² of the South Carolina Code, is unconstitutionally vague. Pursuant to Rule 204(b), SCACR, this Court certified the case from the Court of Appeals. We affirm.

FACTS

A McCormick County grand jury indicted Neuman for "Taking of Hostages by an Inmate" and attempted escape following an incident at the McCormick Correctional Institution where Neuman was incarcerated.

At trial, Cornell Lyons, a correctional officer at the McCormick Correctional Institution, testified that during the early morning hours of February 17, 2001, Neuman "attacked" him when he turned his back to use a microwave. As Lyons confronted Neuman, he was grabbed from behind by Andre Waters, another inmate. During the struggle, Neuman and Waters attempted to handcuff Lyons. When Lyons asked the inmates what they were doing, they responded "we're tryin' to get outta here."

Once the inmates successfully handcuffed Lyons, they took his keys and locked him in a storage closet. Approximately five minutes later, the inmates brought Tammy Mason, another correctional officer, to the storage closet. Mason testified that during her count of the inmates around 1:30 a.m., she was accosted by Neuman and Waters and then handcuffed before she was brought to the storage closet. Shortly thereafter, Neuman and Waters brought inmate Franklin Mackey, who was visibly injured, to the storage closet. According to Mason, Mackey made the comment that he was beaten up by Neuman and Waters.

After approximately thirty minutes, Neuman and Waters returned to the closet, opened the door, and asked for medical assistance as they were severely injured as a result of their attempted escape over razor wire surrounding the correctional facility. Neuman then took Lyons to a telephone where a call was made alerting other correctional officers about the physical condition of Neuman and Waters. The responding officers then apprehended Neuman and Waters.

After the incident, Neuman provided a statement to Investigator Jeff Bentley in which Neuman admitted to his involvement in the incident with Waters. As part of the investigation, it was discovered that Neuman's wife and a childhood friend of Neuman's had attempted to aid Neuman in his escape.

Waters testified for the defense. Prior to Neuman's trial, Waters had pled guilty to the charges arising from the escape attempt. According to Waters, it was his idea to escape and that Neuman "decided to come along" after helping Waters restrain Lyons. Waters claimed he was the one who handcuffed Lyons and Mason and put them in the storage closet before attempting to escape.

During reply, Investigator Bentley discounted Waters's testimony. When Bentley interviewed Waters the day of the incident, Waters claimed the escape was Neuman's idea and they were both involved in restraining Lyons, Mason, and Mackey and locking them in the storage closet.

After the State's case, Neuman's counsel moved for a directed verdict and made a motion to dismiss the indictment for the taking of hostages by an inmate on constitutional grounds. At the close of the testimony, Neuman's counsel renewed his motion. The judge denied both of these motions.

The jury convicted Neuman of attempted escape and taking of hostages by an inmate. Pursuant to the recidivist statute,³ the trial judge sentenced Neuman to life without parole for the hostage-taking charge and a consecutive five-year sentence on the escape charge.

Neuman appeals his conviction for taking of hostages by an inmate.

DISCUSSION

Neuman asserts the trial judge erred in refusing to dismiss the taking of hostages by an inmate charge on the ground section 24-13-450 is unconstitutionally vague. Because the statute does not include the word "unlawfully," Neuman claims the statute effectively criminalizes lawful activity. Without the word "unlawfully," Neuman contends the statute does not contain the "language necessary to narrowly tailor the statute to apply only to unlawful activity."

A.

As a threshold issue, the State asserts Neuman's argument is not preserved for appellate review because Neuman did not specifically rely on the void for vagueness doctrine when he challenged section 24-13-450 at trial. Because Neuman only referenced the overbreadth doctrine in his trial argument, the State claims Neuman did not preserve his argument for this Court's review.

At trial, Neuman's counsel moved to dismiss the indictment for taking of hostages by an inmate. In making this motion, counsel argued:

[W]e move to dismiss the prosecution based on this indictment of hostage taking as the statute is overbroad (inaudible) objection the constitution is defective in that it encompasses about 5 to 10 elements of other crimes making it almost impossible to defend against constitutionally and we would move to dismiss the indictment at this time based on its constitutional defect under the — 4th, 5th, 6th, 8th and 14th amendments of the United States Constitution and the applicable South Carolina statutes.

The trial judge denied Neuman's motion to dismiss. In his ruling, however, the judge recognized that the statute "is unusual and it is very broad." The judge also expressed his concern that the statute did not include "an unlawful purpose of criminal intent." Based on this concern, the judge indicated that he would include in his charge that there "has to be an unlawful purpose." Applying a "reasonable construction," the judge ultimately concluded that the statute was sufficient for the State to prosecute Neuman.

Although the State is technically correct that Neuman did not specifically raise the vagueness doctrine in his trial argument, we find this issue was sufficiently preserved for this Court's review.

First, Neuman's counsel's use of the term "overbroad" is not necessarily dispositive. Clearly, a challenge to section 24-13-450 would not have been based on the overbreadth doctrine. This statute could not conceivably suppress protected speech or conduct. Without such a First Amendment concern, the overbreadth doctrine would not have been an appropriate ground to challenge the statute. See In re Amir X.S., 371 S.C. 380, 384, 639 S.E.2d 144, 146 (2006) (noting a person raising a First Amendment overbreadth doctrine challenge to a statute must demonstrate that the statute could cause someone to refrain from constitutionally-protected expression); State v. Bouye, 325 S.C. 260, 265, 484 S.E.2d 461, 464 (1997) ("The overbreadth doctrine applies only to First Amendment cases where the challenged law would have a `chilling effect' on constitutionally protected forms of speech.").

Secondly, a review of Neuman's counsel's argument reveals that he listed multiple constitutional amendments in an effort to challenge the statute as constitutionally defective. We find counsel's assertions regarding the Fifth and Fourteenth amendments, as well as his assertion that the statute was "almost impossible to defend," necessarily included a due process challenge. In turn, these arguments were sufficiently broad to incorporate the vagueness doctrine. See Kurschner v. City of Camden Planning Comm'n, 376 S.C. 165, 171, 656 S.E.2d 346, 350 (2008) ("Procedural due process imposes constraints on governmental decisions which deprive individuals of liberty or property interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment of the United States Constitution."); Guinyard v. State, 260 S.C. 220, 226, 195 S.E.2d 392, 394 (1973) ("The concept of vagueness or indefiniteness rests on the constitutional principle that procedural due process requires fair notice and proper standards for adjudication. The primary issues involved are whether the provisions of a penal statute are sufficiently definite to give reasonable notice of the prohibited conduct to those who wish to avoid its penalties and to apprise judge and jury of standards for the determination of guilt. If the statute is so obscure that men of common intelligence must necessarily guess at its meaning and differ as to its applicability, it is unconstitutional." (citation omitted)).

Finally, the trial judge interpreted Neuman's counsel's argument as one for vagueness. In his ruling, the judge recognized the omission of the term "unlawful" in the statute. Thus, Neuman's appellate argument was sufficiently raised to and ruled upon to be preserved for this Court's review. See State v. Nelson, 331 S.C. 1, 6 n. 6, 501 S.E.2d 716, 718 n. 6 (1998) (stating "the ultimate goal behind preservation of error rules is to insure that an issue raised on appeal has first been addressed to and ruled on by the trial court").

B.

Having found that Neuman's argument is proper for appellate review, we now turn to the merits of Neuman's constitutional challenge.

"This Court has a limited scope of review in cases involving a constitutional challenge to a statute because all statutes are presumed constitutional and, if possible, will be construed to render them valid." Curtis v. State, 345 S.C. 557, 569, 549 S.E.2d 591, 597 (2001). "A `legislative act will not be declared unconstitutional unless its repugnance to the constitution is clear...