State v. Ray, 23796

• Court: United States State Supreme Court of South Carolina
• Citation: 310 S.C. 431,427 S.E.2d 171
• Decision Date: 21 September 1992
• Docket Number: No. 23796,23796
• Parties: The STATE, Respondent, v. John Babe RAY, Jr., Appellant. . Heard

Page 171

427 S.E.2d 171 310 S.C. 431 The STATE, Respondent,
v.
John Babe RAY, Jr., Appellant. No. 23796. Supreme Court of South Carolina. Heard Sept. 21, 1992.
Decided Feb. 1, 1993.

Page 172

[310 S.C. 432] David I. Bruck and South Carolina Office of Appellate Defense, Columbia, for appellant.

[310 S.C. 433] 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.

FINNEY, Justice:

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 [310 S.C. 434] Club Road. Immediately after the vehicle turned onto the dirt road, Ballenger and the appellant began

Page 173

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.

[310 S.C. 435] 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...