State v. Pierce, 22597

• Decision Date: 07 January 1986
• Docket Number: No. 22597,22597
• Citation: 289 S.C. 430,346 S.E.2d 707
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Marcellus PIERCE, Jr., Appellant. . Heard

Page 707

346 S.E.2d 707

289 S.C. 430

The STATE, Respondent, v. Marcellus PIERCE, Jr., Appellant.

No. 22597.

Supreme Court of South Carolina.

Heard Jan. 7, 1986.

Decided July 21, 1986.

[289 S.C. 432] Atty. Gen. T. Travis Medlock, Asst. Attys. Gen. Harold M. Coombs, Jr., Amie L. Clifford; and James C. Anders, Sol. of the Fifth Judicial Circuit, all of Columbia, for respondent.

Deputy Chief Atty. Elizabeth C. Fullwood, of the South Carolina Office of Appellate Defense; John M. Young; and Jerry M. Screen, Columbia, for appellant.

FINNEY, Justice:

The appellant, Marcellus Pierce, Jr., and co-defendants, William Anthony Nesmith and Benjamin Anthony Joyner, were convicted of murder, kidnapping, first degree criminal sexual conduct, grand larceny and conspiracy. Appellant was sentenced to death. His direct appeal and mandatory sentence review [S.C.Code Ann. Section 16-3-25 (1984) ] are consolidated for purposes of this opinion.

Appellant raises numerous allegations of error. We reverse and remand.

FACTS

Barbara Rossi was abducted from the Woodhill Mall parking lot in Richland County and taken to a nearby remote area, where she was raped, robbed and shot to death. Pierce and co-defendants Nesmith and Joyner were indicted and tried together for the crimes. Both Joyner and Nesmith testified at trial as to their participation in the crimes, but they attested that Pierce actually shot Ms. Rossi. Pierce did not testify at trial.

JURY INSTRUCTIONS

The trial judge instructed the jury in his introductory charge not to deliberate about the case until it is concluded. He further instructed, "By that also I don't say that in the evening or during lunch or something you are not naturally going to be talking about the case." Prior to the weekend recess, the trial judge again instructed the jury, "I don't suggest for a moment that you would not as human beings talk about the trial and what is going on. Do not start making up your minds about what your verdict should be."

Pierce contends that the jury instructions invited the jury to prematurely deliberate the case and are reversible error. We agree.

This Court has held that a jury should not begin discussing the case, nor deciding the issues, until all the evidence has been introduced, the arguments of counsel complete, and the applicable law charged. State v. Gill, 273 S.C. 190, 255 S.E.2d 455 (1979); State v. McGuire, 272 S.C. 547, 253 S.E.2d 103 (1979). The reasoning behind this holding against premature jury deliberation is best set out in McGuire, 272 S.C. at 552, 253 S.E.2d 103, wherein the Court stated: "The human mind is constituted such that when a juror declares himself, touching any controversy, he is apt to stand by his utterances to the other jurors in defiance of evidence. A fair trial is more likely if each juror keeps his own counsel until the appropriate time for deliberation."

In State v. Gill, the trial judge instructed the jury that they could discuss the case in the jury room. He further instructed the jury not to attempt to reach a decision until told by the court to begin their deliberations. This Court found that this improper and inconsistent instruction to discuss the case amounted to an invitation to the jurors to begin their deliberations before the close of the case and that it was inherently prejudicial and required reversal.

State v. Gill is not materially distinguishable from the case at bar. The challenged instruction in this case implicitly invited the jury to discuss the case, which is tantamount to deliberation, prior to its completion. Jurors should be admonished not to discuss the case with anyone, including each other, prior to the submission of the case to them. State v. Parker, 255 S.C. 359, 179 S.E.2d 31 (1971). Jurors are presumed to follow the law as instructed. Parker v. Randolph, 442 U.S. 62, 99 S.Ct. 2132, 60 L.Ed.2d 713 (1979).

The fact that the trial judge subsequently cautioned the jurors against making up their minds before the case was finally submitted to them does not cure the improper and inconsistent instruction condoning discussion of the case. See State v. Gill, supra. The challenged instruction is inherently prejudicial and requires reversal.

FIFTH AMENDMENT RIGHT AGAINST COMPELLED TESTIMONY

During trial, at the request of the appellant's attorney and out of the presence of the jury, the trial judge questioned Pierce as to whether or not he wished to take the stand in his own defense.

The trial judge stated, "I tell you that the jury, will hold it against you, the fact that you did not testify.... I am going to charge them that the law does not permit them to hold it against you, but they are human beings and you know and I know that any twelve people who have been called upon to resolve some dispute cannot help but have it in their mind and wonder why he did not tell us his side of it."

While appellant did not raise exception as to this statement by the judge, the court reviews the record in favorem vitae in capital cases. State v. Patterson, 278 S.C. 319, 295 S.E.2d 264 (1982).

The Fifth Amendment provides that no person shall be compelled in a criminal case to be a witness against himself. This court has held in State v. Gunter, 286 S.C. 556, 335 S.E.2d 542 (1985), ¹ that it is a violation of a defendant's Fifth Amendment rights for a judge to make comments on how a jury may or may not view a defendant's decision not to testify. The judge's statements in State v. Gunter were almost identical to the present case.

The state, at oral argument before this Court, asserts that this case is distinguishable from Gunter because Pierce had already made up his mind not to testify prior to the court's statement, and he did not change his mind after hearing the statement; therefore, Pierce is not prejudiced.

We disagree. The comments by the judge were erroneous, improper and contrary to South Carolina law. See State v. Gunter, supra. Although Pierce did not testify, he had the right to make that decision free of any influence or coercion from the trial judge. It is...