State v. Prince, No. 23965

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtPER CURIAM
Citation447 S.E.2d 177,316 S.C. 57
PartiesThe STATE, Appellant/Respondent. v. Roger Dewitt (Bill) PRINCE, Respondent/Appellant. . Heard
Docket NumberNo. 23965
Decision Date19 April 1993

Page 177

447 S.E.2d 177
316 S.C. 57
The STATE, Appellant/Respondent.
v.
Roger Dewitt (Bill) PRINCE, Respondent/Appellant.
No. 23965.
Supreme Court of South Carolina.
Heard April 19, 1993.
Decided Dec. 13, 1993.
Rehearing denied Aug. 26, 1994.

Page 179

[316 S.C. 60] Atty. Gen., T. Travis Medlock, Chief Deputy Atty. Gen., Donald J. Zelenka, Asst. Attys. Gen., Harold M. Coombs, Jr., and William Edgar Salter, III, Columbia, and Sol. Dudley Saleeby, Jr., Florence, for appellant/respondent.

Ray Coit Yarborough, Timmonsville, D. Mark Stokes, Moncks Corner, and John P. Gardner, Jr., Darlington, for respondent/appellant.

PER CURIAM:

The State appeals a new trial granted to Roger Dewitt (Bill) Prince (Prince) on the charge of accessory before the fact of murder. Prince appeals his convictions for conspiracy and solicitation. We reverse the grant of the new trial motion and remand for sentencing, and affirm Prince's two convictions. This case is a companion to State v. Charlie Dorn Smith, 447 S.E.2d 175 (S.C.S.Ct.1993).

FACTS

On June 10, 1987, the victim (Billy Graham) was found dead in his residence which had been extensively burned. The pathologist performing the autopsy, noting "fire-related injuries," concluded that the cause of death was thermal burns and carbon monoxide poisoning. Investigators were unable to determine the cause of the fire, and Mr. Graham's death was ruled accidental.

In February of 1988, Charles McCray was arrested on charges unrelated to Mr. Graham's death. While in custody, he gave a statement in which he admitted he was paid to murder Mr. Graham. He shot him, stole his pistols, and set his house on fire. While the contents of McCray's statement were admitted only against him, 1 other evidence showed McCray was dropped off near Mr. Graham's home on the night of the murder and later led police to a secreted pipe wrench hidden near the home.

[316 S.C. 61] As a result of McCray's statement, the investigation into Mr. Graham's death was reopened and his body was exhumed. The pathologist, upon x-raying the body, 2 found two bullets in the brain tissue which had been overlooked during the initial autopsy.

McCray was subsequently arrested for Mr. Graham's murder. Prince and Charlie Dorn Smith were also arrested and charged with Mr. Graham's murder. Subsequently, McCray, Smith, and Prince were tried jointly for the murder of Mr. Graham. In addition,

Page 180

Prince and Smith were charged with accessory before the fact of murder and conspiracy, and with solicitation of Fred "Peaches" Andrews to commit the murder. McCray was additionally charged with burglary, arson, armed robbery, and conspiracy.

The State sought to establish that Smith and Prince conspired to have Mr. Graham murdered to deter a pending civil lawsuit in which Mr. Graham did not sue them, but did name them as co-conspirators. Mr. Graham had recently won another lawsuit against Smith and Prince in which he received a substantial judgment. Further, Prince held a life insurance policy on Mr. Graham for $500,000. 3

On the solicitation charges, Andrews testified that both Smith and Prince separately contacted him about hiring someone to commit a murder. Smith approached him on two occasions in January 1987, asking what it would take to have "someone taken care of" for him. Smith never identified his intended victim. Prince also approached Andrews on two occasions in June 1987, shortly before Graham's death. At their second meeting, Prince elaborated that he and Smith needed to have Mr. Graham killed and were prepared to pay $20,000. Prince's statements were not admissible against Smith since the State could not establish a prima facie conspiracy as to Smith. See State v. Sullivan, 277 S.C. 35, 282 S.E.2d 838 (1981).

Andrews testified that he never attempted to procure someone to kill Mr. Graham. This testimony was contradicted by another witness. Shortly after their second conversation and before Mr. Graham's death, Prince advised Andrews that he had hired a local person to commit the murder.

[316 S.C. 62] After Mr. Graham's death, Andrews saw Prince and Smith on a regular basis, but the murder was never mentioned. In December of 1988, however, after the second autopsy, Prince telephoned Andrews and asked "had I [Andrews] been keeping my god damn mouth shut." Andrews, allegedly fearing for his life, contacted SLED. In January of 1989, Prince again called Andrews, stating that he heard Andrews had contacted SLED. Prince told Andrews that both he and Smith wanted to talk to him. This call was recorded by Andrews.

The State also called Dr. Morris Anderson, a personal friend of Mr. Graham's. Dr. Anderson testified that, shortly before Mr. Graham's death, Prince called him [Anderson] and stated: "Mr. Graham was going to be killed if he didn't change what he was doing ... if you [Anderson] have any influence with Mr. Graham, then let me get you to use it, because he is playing with fire...."

At the conclusion of the State's case, the trial judge granted a directed verdict to Smith and Prince on the charge of murder but denied Prince's motions on the charge of accessory before the fact of murder and conspiracy.

At the conclusion of the trial, the jury returned the following verdicts:

Defendant Prince

--guilty of accessory before the fact of murder;

--guilty of solicitation;

--guilty of conspiracy.

Defendant Smith

--guilty of accessory before the fact of murder;

--guilty of solicitation;

--acquitted of conspiracy.

Defendant McCray

--acquitted of murder;

--acquitted of arson;

--acquitted of armed robbery;

--guilty of burglary;

--guilty of conspiracy.

The trial judge granted post-trial motions of Prince and Smith for new trials on the charges of accessory before the fact of murder, from which the State appeals. Prince appeals his convictions for solicitation and conspiracy.

Page 181

[316 S.C. 63] ISSUES

A. STATE'S APPEAL

Was Prince entitled to a new trial for accessory before the fact of murder?

B. PRINCE'S APPEAL

1. Was Prince entitled to a directed verdict on accessory before the fact of murder?

2. Was Prince entitled to a directed verdict on conspiracy?

3. Was Prince entitled to a directed verdict on solicitation?

4. Is the common law offense of solicitation viable in South Carolina?

5. Was Prince entitled to a mistrial based upon Co-defendant Smith's closing argument?

6. Was Prince entitled to severance?

7. Was Prince entitled to a new trial based upon after-discovered evidence?

DISCUSSION

A. STATE'S APPEAL

The State argues that the trial judge abused his discretion in granting a new trial on Prince's conviction for accessory before the fact of murder. We agree and reinstate the conviction.

Upon completion of the State's case, Prince moved for directed verdict on the accessory charge. The motion was denied. However, after the jury returned its verdict, the judge granted Prince's new trial motion for accessory on the ground that the evidence was insufficient to establish that some principal committed the offense of murder.

It is well settled that the grant or refusal of a new trial is within the discretion of the trial judge and will not be disturbed on appeal absent a clear abuse of that discretion. State v. Simmons, 279 S.C. 165, 303 S.E.2d 857 (1983). However, where there is competent evidence to sustain the jury's verdict, the judge may not substitute his judgment for that of the jury. State v. Miller, 287 S.C. 280, 337 S.E.2d 883 (1985), appeal after remand, 289 S.C. 426, 346 S.E.2d 705 (1986).

[316 S.C. 64] A conviction for the crime of accessory before the fact requires proof that the accused (1) either advised and agreed, urged, or in some way aided some other person to commit the offense; (2) was not present when the offense was committed; and (3) that some principal committed the offense. State v. Farne, 190 S.C. 75, 1 S.E.2d 912 (1939). In State v. Cox, 287 S.C. 260, 335 S.E.2d 809 (Ct.App.1985), affirmed as mod., 290 S.C. 489, 351 S.E.2d 570 (1986), we held that an accessory may be convicted provided sufficient evidence is presented to establish that some principal committed the underlying crime at the behest of the accessory. See also State v. Massey, 267 S.C. 432, 229 S.E.2d 332 (1976).

Prince's statements to Andrews that he was seeking someone to murder Mr. Graham and that, ultimately, he procured a murderer, as well as his threats prior to and subsequent to the murder constitute sufficient evidence that some principal murdered Mr. Graham on behalf of Prince, notwithstanding McCray's acquittal of the murder charges. State v. Cox, supra. Further, there was sufficient circumstantial evidence of the other elements of the offense to sustain the jury's conviction of Prince for accessory before the fact of murder. State v. Farne, supra; State v. Miller, supra.

Accordingly, we reverse the granting of a new trial to Prince on the charge of accessory before the fact of murder and remand for sentencing.

B. PRINCE'S...

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41 practice notes
  • State v. Moore, No. 4247.
    • United States
    • Court of Appeals of South Carolina
    • May 18, 2007
    ...on a motion for directed verdict, the trial court must view the evidence in the light most favorable to the State." State v. Prince, 316 S.C. 57, 64, 447 S.E.2d 177, 181-82 A defendant is entitled to a directed verdict when the State fails to produce evidence of the offense charged. State v......
  • State v. Cherry, No. 3406.
    • United States
    • Court of Appeals of South Carolina
    • November 13, 2001
    ...See, e.g., State v. Mitchell, 341 S.C. 406, 535 S.E.2d 126 (2000); State v. Martin, 340 S.C. 597, 533 S.E.2d 572 (2000); State v. Prince, 316 S.C. 57, 447 S.E.2d 177 (1993); Brown v. State, 307 S.C. 465, 415 S.E.2d 811 (1992); State v. Williams, 303 S.C. 274, 400 S.E.2d 131 (1991); State v.......
  • State v. McAteer, No. 2795.
    • United States
    • Court of Appeals of South Carolina
    • December 21, 1998
    ...in common law is intended unless the Legislature explicitly indicates such an intention by language in the statute." State v. Prince, 316 S.C. 57, 66, 447 S.E.2d 177, 182 (1993); see also 73 Am.Jur.2d Statutes § 185 (1974) ("The fact that a statute contains a partial codification of a parti......
  • State v. Needs, No. 24856.
    • United States
    • United States State Supreme Court of South Carolina
    • November 23, 1998
    ...the exercise of due diligence; (4) the evidence is material; and (5) the evidence is not merely cumulative or impeaching. State v. Prince, 316 S.C. 57, 447 S.E.2d 177 (1993); State v. Irvin, 270 S.C. 539, 243 S.E.2d 195 (1978). The granting of such a motion is not favored and, absent error ......
  • Request a trial to view additional results
41 cases
  • State v. Moore, No. 4247.
    • United States
    • Court of Appeals of South Carolina
    • May 18, 2007
    ...on a motion for directed verdict, the trial court must view the evidence in the light most favorable to the State." State v. Prince, 316 S.C. 57, 64, 447 S.E.2d 177, 181-82 A defendant is entitled to a directed verdict when the State fails to produce evidence of the offense charged. State v......
  • State v. Cherry, No. 3406.
    • United States
    • Court of Appeals of South Carolina
    • November 13, 2001
    ...See, e.g., State v. Mitchell, 341 S.C. 406, 535 S.E.2d 126 (2000); State v. Martin, 340 S.C. 597, 533 S.E.2d 572 (2000); State v. Prince, 316 S.C. 57, 447 S.E.2d 177 (1993); Brown v. State, 307 S.C. 465, 415 S.E.2d 811 (1992); State v. Williams, 303 S.C. 274, 400 S.E.2d 131 (1991); State v.......
  • State v. McAteer, No. 2795.
    • United States
    • Court of Appeals of South Carolina
    • December 21, 1998
    ...in common law is intended unless the Legislature explicitly indicates such an intention by language in the statute." State v. Prince, 316 S.C. 57, 66, 447 S.E.2d 177, 182 (1993); see also 73 Am.Jur.2d Statutes § 185 (1974) ("The fact that a statute contains a partial codification of a parti......
  • State v. Needs, No. 24856.
    • United States
    • United States State Supreme Court of South Carolina
    • November 23, 1998
    ...the exercise of due diligence; (4) the evidence is material; and (5) the evidence is not merely cumulative or impeaching. State v. Prince, 316 S.C. 57, 447 S.E.2d 177 (1993); State v. Irvin, 270 S.C. 539, 243 S.E.2d 195 (1978). The granting of such a motion is not favored and, absent error ......
  • Request a trial to view additional results

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