State v. Primus, 3214.

CourtCourt of Appeals of South Carolina
Writing for the CourtANDERSON.
Citation535 S.E.2d 152,341 S.C. 592
PartiesThe STATE, Respondent, v. James Anthony PRIMUS, Appellant.
Docket NumberNo. 3214.,3214.
Decision Date10 July 2000

341 S.C. 592
535 S.E.2d 152

The STATE, Respondent,
James Anthony PRIMUS, Appellant

No. 3214.

Court of Appeals of South Carolina.

Heard June 5, 2000.

Decided July 10, 2000.

Rehearing Denied September 2, 2000.

341 S.C. 597
Chief Attorney Daniel T. Stacey and Assistant Appellate Defender Katherine Carruth Link, both of South Carolina Office of Appellate Defense, of Columbia, for Appellant

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Attorney General Caroline Callison Tiffin and Assistant Attorney General J. Benjamin Aplin, all of Columbia; and Solicitor Walter M. Bailey, of Summerville, for Respondent.


James Anthony Primus was convicted of kidnapping and assault and battery of a high and aggravated nature (ABHAN). He was sentenced to thirty years for kidnapping and ten consecutive years for ABHAN. On appeal, Primus argues the trial court erred in permitting the Assistant Solicitor to comment on Primus' failure to produce evidence in his defense. We reverse.


Primus was charged with first degree criminal sexual conduct, second degree burglary and kidnapping for events which occurred on July 13, 1997. The State presented evidence that Primus, armed with a rusty and pointed metal object, forced Nikki Scott (Victim) into an abandoned house where he raped her.

The victim testified that on July 12 she saw Primus at a cookout at a gas station in St. George, where the victim drank

341 S.C. 598
about three beers. Around 10:00 p.m., Primus gave the victim a ride from the station to a club in Bowman, where she drank about five or six beers. The victim left the club at 2:00 a.m. and was driven home by her boyfriend. At 4:30 a.m., she left her house "with another person" and returned home before 6:30 a.m

Around 7:00 a.m. on July 13, Primus drove to the victim's house and invited her to ride with him to his uncle's house. The victim agreed to accompany Primus and voluntarily got into his car. She had known Primus for about seven years and had even been on one date with him in the past.

According to the victim, Primus told her that he was going to get some gas money from his house, but instead drove to an abandoned house and demanded she get out of his car. When the victim refused, Primus threatened her with a pointed, rusty weapon and pulled her out of the car. He pushed the victim inside the house where he ordered her to undress. Primus had begun assaulting her when the victim "kneed him" and escaped through a window.

Outside the house, the victim attempted to attract the attention of a passing truck but was forced to the ground by Primus. While on the ground, she found a stick which she used against her assailant, "jab[bing]" him in the chest and gouging him in the eye. She then ran naked and bleeding to a nearby house. The victim immediately claimed Primus raped her. She repeated the same story to police and medical personnel. In addition to naming her attacker, the victim described his car as a red convertible which he cranked with a screwdriver instead of a key.

While searching the abandoned house, police found the weapon the victim had described. Her clothing was discovered inside the house where she testified Primus forced her to undress. A broken window matched her description of how she escaped the home. The police uncovered a latent fingerprint matching Primus' right index finger on the inside doorknob of the house.

Hubert and Toni Shieder, who lived at the home where the victim sought help, described her as naked, bleeding, and very upset. The Shieders testified the victim immediately declared she had been raped. Officers found on the Shieders' porch

341 S.C. 599
the stick the victim used to defend herself. The victim's blood was found on the middle of the stick. On one end of the stick, blood consistent with the victim's DNA was found. Blood inconsistent with the victim's DNA but consistent with Primus' DNA was located on the other end of the stick. Because of the limited amount of blood on the stick, there were interpretable results for only two of the eight sites normally tested. Thus, one person in every 174 people would have the same genetic markers found in that blood. The test results "could not exclude James Primus as a donor."

Later on the day of the crimes, police discovered a red convertible abandoned on the side of the highway. The car, which was registered to Primus, had a "punched ignition," which indicated a screwdriver may have been used to crank it. When the police arrested Primus, he had several scratches on his body and a gouge mark on his eye matching the wound the victim said she inflicted on her attacker.

At trial, Primus did not testify or call witnesses, but the State introduced testimony he offered an alibi to police when questioned. Specifically, Primus told police he had eaten breakfast at 7:00 a.m. at a Shoney's restaurant and visited his uncle, Joe Hodges, during the time frame of the alleged crimes. He stayed at his uncle's house about three hours. Primus claimed that after he visited his uncle, his car broke down on the side of the road. He accepted a ride from a stranger into town where he played basketball with a guy he had never met before named David. Primus asserted "this was the first time they ever played basketball together, didn't know him, and didn't know where he lived." Primus explained he received his wounds while playing basketball. As for Primus' car, an officer, who remembered driving in the area at approximately 10:00 a.m. on the morning of the crimes, stated there was no red convertible on the side of the highway.

The record reflects the following exchange occurred during the State's closing argument:

[Assistant Solicitor]: Primus's statement has to admit a few facts when he talked to the police he had to admit a few things, had to come up with some reason. Of course it wasn't because I attacked [Victim] and dragged her into an abandoned house and raped her, no, no, no, no. It was
341 S.C. 600
because I was playing basketball. He also had to admit that he was up all night, he was driving around. He never went to bed. He told you that. He was up and at them all night long that night. We know that was true because he was at [Victim's] house at 6:30 or 7:00 and taking her out to Gum Branch Road and raping her all during this period.
And the crucial period when Detective Bills told you he was most interested in was this Shoney's and Uncle Joe Hodges' house. Of course, you can't hold the fact that Mr. Primus didn't present any evidence against him, but don't you think that would have made his alibi a lot stronger if Joe Hodges, his own uncle, had come to court and said, oh, he couldn't have been on Gum Branch Road raping this woman because he was at my house in Corey Woods? (Emphasis Added).
[Defense Counsel]: I have an objection, your Honor. We don't have to bring those people to court, Judge.
The Court: I'll be telling you later on, I give each attorney a lot of leeway in making their summation to you and I'll be telling you the defendant doesn't have to do anything, doesn't have to prove anything, but I'll be explaining more to you later.
Go ahead, Solicitor.

After closing arguments, the trial court charged the jury as to the applicable law, including an instruction on Primus' right not to testify or present evidence in his defense. The jury found Primus guilty of kidnapping and not guilty of second degree burglary. On the charge of first degree criminal sexual conduct, the jury found Primus guilty of the lesser offense of ABHAN.


Did the trial court err in permitting the Assistant Solicitor to comment on Primus' failure to produce evidence in his defense?


Primus contends the trial court erred in allowing the Assistant Solicitor to comment on his failure to call witnesses to support the alibi story he told police. Primus avers the

341 S.C. 601
Assistant Solicitor's remarks improperly shifted the burden of proof to him


Solicitors must confine their closing arguments to evidence in the record, tailoring comments to the evidence presented and its reasonable inferences. State v. Woomer, 277 S.C. 170, 284 S.E.2d 357 (1981); State v. Linder, 276 S.C. 304, 278 S.E.2d 335 (1981). Where a defendant presents evidence at trial, the prosecutor may comment on the defendant's failure to present the testimony of seemingly accessible witnesses who are or should be aware of relevant information. Douglas v. State, 332 S.C. 67, 504 S.E.2d 307 (1998); State v. Shackelford, 228 S.C. 9, 88 S.E.2d 778 (1955).

However, where the defendant produces no evidence on his behalf, it is improper for the prosecutor to comment on the defendant's failure to call a particular witness. See State v. Pickens, 320 S.C. 528, 466 S.E.2d 364 (1996); State v. Posey, 269 S.C. 500, 238 S.E.2d 176 (1977). The jury should ordinarily be instructed not to draw inferences from the neglect of a defendant to call witnesses. Douglas, supra.

The Court, in State v. Browning, 154 S.C. 97, 151 S.E. 233 (1930), explained the principle as follows:

It is true ... that the defendant did not take the stand to deny or explain the evidence adduced against him, and that he did not offer any evidence in his behalf.... The defendant had the constitutional right to adopt these courses if he chose to do so, and neither the lower court nor this Court have the right to punish him for the exercise of either of those rights. And even if the defendant chose to remain silent at his trial, that fact did not reverse the usual rule of the law that the burden of establishing the defendant's guilt still remained on the State.

Browning, 154 S.C. at 102, 151 S.E. at 235.

In State v. Posey, supra, our Supreme Court was faced with a situation similar to the case at bar. Posey did not testify and presented no witnesses in his behalf at his murder trial. In closing...

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