State v. Ray
| Citation | 310 S.C. 431,427 S.E.2d 171 |
| Decision Date | 21 September 1992 |
| Docket Number | No. 23796,23796 |
| Court | United States State Supreme Court of South Carolina |
| Parties | The STATE, Respondent, v. John Babe RAY, Jr., Appellant. . Heard |
David I. Bruck and South Carolina Office of Appellate Defense, Columbia, for appellant.
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. Holman C. Gossett, Jr., Spartanburg, for respondent.
Appellant Johnny Ray, Jr., appeals from his guilty plea and sentences on indictments for assault and battery with intent to kill, armed robbery, first degree burglary, grand larceny, kidnapping and murder arising from three different incidents which occurred during late August and early September, 1990. The cases were consolidated, and the appellant was sentenced to consecutive prison terms on the charges of assault and battery with intent to kill, armed robbery and grand larceny; and a consecutive life sentence for first degree burglary. Upon a finding of the statutory aggravating circumstance of kidnapping, the trial judge imposed a sentence of death on the charge of murder. We affirm the validity of appellant's guilty plea and all sentences with the exception of the death sentence. Appellant's death sentence is vacated, and this case is remanded for resentencing on the charge of murder.
Josylin Ballenger had been aiding and providing transportation for several fugitives, including the appellant, who were in hiding to avoid charges arising from an attack and theft. They suspected Ballenger of informing the police of their activities. On September 5, 1990, following an argument, the appellant shot Ballenger. After the fugitives agreed to take her to the hospital emergency room, Ballenger told appellant she would say she shot herself.
Ballenger climbed into the bed of her pick-up truck under her own power and was placed in a sleeping bag for the trip to the hospital. The appellant sat in the back of the truck with Ballenger leaning against him. On the way, the truck was stopped to allow appellant to place a telephone call. After the phone call, appellant returned to the vehicle and spoke with the driver. They continued on their way for a distance and then diverted the vehicle to an isolated area known as Beagle Club Road. Immediately after the vehicle turned onto the dirt road, Ballenger and the appellant began struggling as the appellant attempted unsuccessfully to strangle her with a piece of rope while she gasped for air. After the truck stopped and Ballenger was still alive, the appellant stabbed her at least four times with a sheath knife, hit her, and stomped her in the throat with his boot.
Appellant and his companions then removed Ballenger's body from the truck, dumped it in a nearby well and threw debris down the well to cover the body. Before leaving the scene, appellant attempted to shoot Cody Moore, a member of the group, but the shotgun jammed. The following day, Moore absconded and subsequently reported Ballenger's murder to the police. On September 7, 1990, appellant was arrested and charged with murder.
On February 25, 1991, the circuit court granted a defense motion to consolidate the several charges pending against appellant for purposes of a guilty plea. On March 15, 1991, the state served notice of its intention to seek the death penalty on the indictment for murder.
On April 29, 1991, the appellant entered a plea of guilty to all the pending charges with the stipulation that the plea to kidnapping and murder were entered under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), pursuant to appellant's claim that he was under the influence of alcohol and LSD 1 at the time the offenses were committed. The plea proceedings transpired during the morning of April 29. After the midday recess, the court conducted the sentencing proceeding on the afternoon of April 29 with the assent of counsel for the defense and the state. The appellant did not testify, and the record does not reflect a waiver of his right to testify.
Initially, appellant asserts the trial judge erred in accepting his guilty plea to capital murder under North Carolina v. Alford, supra, in the absence of an admission of guilt of the crimes charged. Appellant urges this Court to adopt a holding that a death sentence should be prohibited when it rests upon an Alford plea which does not include an explicit admission of guilt. We decline to adopt such a view.
The United States Supreme Court held in Alford that an accused may consent voluntarily, knowingly, and understandingly to the imposition of a prison sentence although unwilling to admit culpability, or even if the guilty plea contains a protestation of innocence, when the accused intelligently concludes that his interests require a guilty plea and the evidence strongly supports his guilt of the offense charged.
In determining the validity of a guilty plea, we are persuaded that the paramount concern is whether it was entered freely and voluntarily. 2 We discern no prejudice to an accused in a capital punishment case who seeks to plead guilty without an explicit admission of guilt if such a plea would be in his best interests, and if freely and voluntarily made. In the present case, appellant does not claim innocence or allege that his guilty plea was involuntary, made under duress, or that the trial judge committed a constitutional violation. Therefore, we conclude that an Alford plea may form a valid basis for imposition of the death penalty.
Appellant next alleges the trial judge erred in proceeding directly from the plea to sentencing without waiting at least twenty-four hours as required by S.C.Code Ann. § 16-3-20(B) (Supp.1991). We agree.
Section 16-3-20(B) provides, in pertinent part:
Upon conviction or adjudication of guilt of a defendant of murder, the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or life imprisonment. The proceeding shall be conducted by the trial judge before the trial jury as soon as practicable after the lapse of twenty-four hours unless waived by the defendant. If trial by jury has been waived by the defendant and the State, or if the defendant pleaded guilty, the sentencing proceeding shall be conducted before the court....
In construing a statute, words must be given their plain and ordinary meaning without resort to subtle or forced construction to limit or expand the statute. State v. Sims, 304 S.C. 409, 405 S.E.2d 377 (1991), cert. denied, --- U.S. ----, 112 S.Ct. 1193, 117 L.Ed.2d 434 (1992). We construe Section 16-3-20(B) to mandate a distinct, bifurcated proceeding in murder cases upon conviction or adjudication of guilt of a defendant and, unless waived by the defendant, require the lapse of a minimum of twenty-four hours after the guilt phase before beginning the sentencing phase--regardless of whether conviction was by a jury or adjudication under a guilty plea before a judge without a jury.
Citing our holding in State v. Arthur, 296 S.C. 495, 374 S.E.2d 291 (1988), we reiterated in State v. Orr, 304 S.C. 185, 403 S.E.2d 623 (1991), the necessity that the waiver of a constitutional or statutory right be clearly shown on the record, which should reflect that the defendant made such waiver knowingly and intelligently.
At the beginning of appellant's sentencing proceeding, the court inquired whether the defense was ready, and defense counsel said "[y]es [s]ir." The record does not indicate any waiver by the defendant or other colloquy between the court and counsel or the court and the defendant with regard to waiver of the waiting period. We do not deem defense counsel's assent to immediately proceeding with sentencing sufficient to constitute a waiver of the statutory waiting period. This Court vacates the sentence of death imposed on the charge of murder on the grounds that the statutory waiting period was not observed, and the defendant did not affirmatively waive the waiting period.
Additionally, appellant contends the trial judge erred in failing to secure an on-the-record waiver of appellant's right to testify at the sentencing phase proceeding. We agree.
During his guilty plea, the appellant waived his right to testify and declined to offer a statement following his attorneys' arguments in mitigation. Appellant neither testified nor waived his constitutionally-protected right to testify in the sentencing phase. In fact, the record is...
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