State v. Owens

• Decision Date: 04 September 2001
• Docket Number: No. 25354.,25354.
• Citation: State v. Owens, 552 S.E.2d 745, 346 S.C. 637 (S.C. 2001)
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Freddie Eugene OWENS, Appellant.

346 S.C. 637

552 S.E.2d 745

The STATE, Respondent, v. Freddie Eugene OWENS, Appellant.

No. 25354.

Supreme Court of South Carolina.

Heard May 9, 2001.

Decided September 4, 2001.

Rehearing Denied October 10, 2001.

Assistant Appellate Defender Katherine Carruth Link, of South Carolina Office of Appellate Defense, of Columbia; John M. Rollins, Jr., of Greer; and Karl B. Allen, of Greenville, for appellant.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, and Assistant Attorney General Tracey C. Green, of Columbia; and Solicitor Robert M. Ariail, of Greenville, for respondent.

BURNETT, Justice:

Appellant was convicted of murder, armed robbery, use of a firearm in the commission of a violent crime, and conspiracy to commit armed robbery. He was sentenced to death for murder and imprisonment for thirty years, five years, and five years for armed robbery, use of a firearm in the commission of a violent crime, and conspiracy to commit armed robbery, respectively.

ISSUES

I. Did the trial court have subject matter jurisdiction to try appellant for murder?

II. Did the trial court err by admitting evidence of appellant's prior bad acts?

III. Did the trial court err by admitting appellant's February 16th statement because the statement did not meet the requirements of South Carolina Code Ann. § 16-3-20(B) (Supp.2000)?

IV. Did the trial court err by admitting appellant's February 16 th statement because it was obtained in violation of his Fifth Amendment right to counsel?

V. Did the trial court err by admitting appellant's February 16th statement because it was obtained in violation of his Sixth Amendment right to counsel?

VI. Did the trial court violate appellant's due process and Eighth Amendment rights, along with Rule 403, SCRE, by admitting his February 16th statement?

VII. Did the trial court err by denying appellant's motion for a new sentencing proceeding based on after-discovered evidence?

VIII. Did the trial court err by sentencing appellant for possession of a firearm during the commission of a violent crime?

BACKGROUND

The charges against appellant stem from the 4:00 a.m. November 1, 1997, armed robbery of a Speedway convenience store and fatal shooting of the store's clerk, Irene Graves. Appellant was jointly tried with co-defendant Stephen Andra Golden. During jury qualification, Golden pled guilty.

During trial, the State introduced the Speedway security video which recorded the robbery and shooting. The video reveals two individuals entered the store. One individual shot Graves.

Golden admitted he was one of the Speedway robbers and claimed appellant was his accomplice. He testified appellant shot Graves in the head after she stated she could not open the safe. No forensic evidence connected appellant to the crime scene.

Nakeo Vance testified he, Golden, appellant, and Lester Young planned to rob the Speedway and, simultaneously, a nearby Waffle House. Golden and appellant robbed the Speedway. Vance and Young went to the Waffle House but did not carry out the robbery. After the Speedway shooting and robbery, Vance testified appellant admitted he shot the store clerk.

Appellant's girlfriend testified appellant told her he had robbed a store and shot the clerk.

Detective Wood and Investigator Willis testified appellant initially gave a written statement denying involvement in the Speedway robbery and shooting. According to both witnesses, appellant later admitted he shot Graves.

Appellant maintained he was at home in bed at the time of the Speedway robbery and shooting.¹ He suggested the Sheriff's Department's investigation into the identity of Golden's accomplice was inadequate. For instance, he asserted the Sheriffs Department initially interviewed another individual who tested positive for gun powder residue, but failed to pursue this individual as a suspect. Alternatively, he suggested Vance was the accomplice. Appellant intimated witnesses who testified against him had various reasons to inculpate him in the crime. He also suggested witnesses falsely testified he made statements admitting he robbed the Speedway and shot the store clerk. Additionally, he claimed the Sheriffs Department intimidated his mother into giving a written statement in which she asserted appellant admitted shooting the clerk. Appellant's mother denied giving the statement.

I.

Appellant argues the trial court lacked subject matter jurisdiction to try him for murder because the murder indictment failed to allege malice aforethought as required by South Carolina Code Ann. § 17-19-30 (1985). We disagree. With limited exceptions, the South Carolina Constitution requires a person be indicted by the grand jury before standing trial for a crime. S.C. Const. art. I, § 11. Accordingly, except for certain minor offenses, the circuit court does not have subject matter jurisdiction to convict a defendant of an offense unless (1) there has been an indictment which sufficiently states the offense (2) there has been a waiver of indictment; or (3) the charge is a lesser included charge of the crime charged in the indictment. Carter v. State, 329 S.C. 355, 495 S.E.2d 773 (1998).

South Carolina Code Ann. § 17-19-30 provides:

Every indictment for murder shall be deemed and adjudged sufficient and good in law which, in addition to setting forth the time and place, together with a plain statement, divested of all useless phraseology, of the manner in which the death of the deceased was caused, charges the defendant did feloniously, wilfully and of his malice aforethought kill and murder the deceased.

(Underline added).

An indictment for murder is sufficient "if the offense is stated with sufficient certainty and particularity to enable the court to know what judgment to pronounce, the defendant to know what he is called upon to answer, and if an acquittal or a conviction thereon may be pleaded as a bar to any subsequent prosecution." State v. Owens, 293 S.C. 161, 165, 359 S.E.2d 275, 277 (1987); see State v. Munn, 292 S.C. 497, 357 S.E.2d 461 (1987) (test of sufficiency of indictment is whether or not it contains the necessary elements of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to defend). Malice aforethought is an element of the offense of murder. S.C.Code Ann. § 16-3-10 (1985) (defining murder as `the killing of any person with malice aforethought, either express or implied.'); see Simmons v. State, 264 S.C. 417, 215 S.E.2d 883 (1975).

Here, the murder indictment states:

COUNT ONE—MURDER

That [APPELLANT] did in Greenville County on or about November 1, 1997, while aiding, abetting and assisting Steven Andra Golden in the commission of an Armed Robbery, kill one Irene Graves by means of shooting her, and that the said victim died as a proximate result thereof. This is in violation of South Carolina Code of Laws § 16-03-10.

While the murder indictment does not specifically state appellant killed the victim with malice aforethought, it does state appellant killed the victim in violation of South Carolina Code Ann. § 16-3-10. This section defines murder as "the killing of any person with malice aforethought, either express or implied." Specific reference to § 16-3-10 in the body of the indictment provided appellant with notice of the elements of murder. See State v. Crenshaw, 274 S.C. 475, 266 S.E.2d 61 (1980) (where indictment referred to specific bribery code section on its face and there was lengthy discussion concerning that code section throughout the trial, defendants obviously knew for what crime they were being prosecuted); State v. Beam, 336 S.C. 45, 518 S.E.2d 297 (Ct.App.1999) (indictment was sufficient to apprise defendant of mens rea element in light of the fact the statutory citations were included). While the better practice is to set forth the elements of the crime in the indictment rather than referring to the statutory section alleged to have been violated, the indictment here was sufficient as it informed appellant of the elements of murder, including malice aforethought.²

We note appellant relies on Carter v. State, supra, to support his claim that reference to the statute is insufficient to notify the defendant of the elements of the offense. In Carter, the Court determined reference to the statute on the caption of the indictment was not controlling where it conflicted with the description of the offense in the body of the indictment. Carter did not hold reference to the statute in the body of the indictment is insufficient to authorize jurisdiction.

GUILT PHASE ISSUE

II.

Appellant argues the trial judge erred by allowing the State to introduce evidence of his alleged involvement in the Prestige Cleaners and Conoco convenience store robberies on October 31 and November 1, 1997. He contends evidence of these two robberies was not admissible as part of the res gestae. We disagree.

Six weeks prior to trial, the trial judge heard appellant's motion in limine seeking to exclude evidence of two uncharged crimes: the armed robbery of Prestige Cleaners at 6:45 p.m. on October 31, 1997, and the armed robbery of a Conoco convenience store at 2:00 a.m. on November 1, 1997. The solicitor stated the Prestige Cleaners and Conoco robberies occurred less than ten hours before the Speedway robbery. The solicitor asserted:

[the crimes] are all part of the intertwined activities of these two individuals, along with the two other individuals through the course of this day. And we believe that the proof that is going to be required to establish this crime and what led to the crime is going to involve the action of these people that took place earlier in the day.

Where they were, where they had been together, how well they had to observe each other, I mean, and who was betting who [sic] that they could do what, and all the goingson, I don't believe—the phrase has been used—th

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