State v. Register

• Decision Date: 20 September 1995
• Docket Number: No. 24479,24479
• Citation: 323 S.C. 471,476 S.E.2d 153
• Court: South Carolina Supreme Court
• Parties: The STATE of South Carolina, Respondent, v. Johnnie Kenneth REGISTER, II, Appellant. . Heard

Page 153

476 S.E.2d 153

323 S.C. 471

The STATE of South Carolina, Respondent, v. Johnnie Kenneth REGISTER, II, Appellant.

No. 24479.

Supreme Court of South Carolina.

Heard Sept. 20, 1995.

Decided Aug. 12, 1996.

Rehearing Denied Sept. 19, 1996.

John R. McCravy, III, of Callison, Dorn, Thomason & McCravy, Greenwood; and Douglas G. Borsich, of Hipp & Borsich, North Charleston, for Appellant.

Attorney General T. Travis Medlock, Chief Deputy Attorney General Donald J. Zelenka, Senior Assistant Attorney General Harold M. Coombs, Jr., Assistant Attorneys General Alexandria B. Skinner and Robert F. Daley, Jr., Columbia; and Solicitor Ralph J. Wilson, Conway, for Respondent.

BURNETT, Justice:

Appellant, Johnnie Kenneth Register, II, was convicted of murder, first degree criminal sexual conduct (CSC), kidnapping, buggery and sodomy. Register received a life sentence for murder, thirty years consecutive for CSC, and five years consecutive for buggery and sodomy. Because the kidnapping resulted in murder, there was no sentence for the kidnapping conviction. We affirm.

FACTS

On November 17, 1991, two deer hunters found the mutilated body of seventeen year old Crystal Faye Todd (Victim) in a ditch on a dirt road in Horry County. The Victim had over thirty different cuts and stabs, seven bruises, and three abrasions. Her throat had been slashed from ear to ear, she had been stabbed in a linear pattern down her chest, and she had been disemboweled. Semen was found in the Victim's mouth, rectum, and vagina, and bruises to her vaginal and rectal areas were consistent with brutal vaginal and anal rape.

The Victim was last seen with a girlfriend in the parking lot of a mall shortly after 11:00 p.m. on November 16, 1991. Although the Victim's car was found in the parking lot of a middle school after the homicide, no one saw her there nor did anyone see her get into another person's car.

Register, who was eighteen years of age at the time of the homicide, was a neighbor and friend of the Victim. On January 13, 1992, he voluntarily gave a statement to South Carolina Law Enforcement Division (SLED) agents relating his knowledge of the Victim's acquaintances, boyfriends, and habits. Register also informed the agents of his whereabouts on the night of the homicide. In addition, Register voluntarily consented to give blood, saliva, head and pubic hair samples, fingerprints, and palm prints.

The undisputed serological evidence established that the Victim and Register were both blood type O. Register's phoscoglucomutate (PGM) subtype was one minus--two plus. The Victim's PGM subtype was one plus--two plus. The semen found in the Victim's vagina was left by a person who had blood type O and PGM subtype of one minus--two plus. Accordingly, the serological evidence verified that the semen found was consistent with Register.

SLED also performed a five-probe analysis of the deoxyribonucleic acid (DNA) found in semen deposited in or on the Victim and compared it with DNA from blood exemplars donated by fifty-two people in the locale, including Register. Each one of the five probes was designed to sample portions of DNA known to be variable within the population Before his arrest, Register read and signed the statement which he gave to law enforcement officials on January 13, 1992. The police read Register his Miranda ¹ rights from a card, and he acknowledged that he understood them. While being transported to the police station, the arrest warrants for CSC and murder were read to him. During this time, Register twice asked to see his mother. Upon arriving at the police station, Register again acknowledged that he understood his rights.

as well as to be variable independently of each other. The five probes revealed a nine-band match between Register's DNA and DNA in semen deposited in or on the Victim. An expert testified [323 S.C. 475] that previously the most bands observed to match between two individuals had been three out of nine and, therefore, it was extraordinary to observe a nine-band match of five separate pieces of DNA. The expert further stated that the frequency that this pattern would occur in the population was one in two hundred and fifty million. The serological and DNA matches resulted in the arrest of Register at his place of employment on February 18, 1992.

From approximately 10:20 a.m. until 1:30 p.m. the police extensively questioned Register concerning his whereabouts the night of the homicide. During this interrogation, the police falsely told Register that he had been seen with the Victim the night she was murdered and that his tires and shoes matched impressions and prints found at the murder scene. The police informed Register that they had irrefutable DNA evidence against him. They further assured him that the courts and solicitor would be apprised of his cooperation. Nevertheless, Register informed the police that he would not tell them "about it" until he talked with his mother.

The police discontinued the interrogation and went to see Register's mother at her home. She did not return with them to the police station to see her son, but instead wrote the following note: "Ken, I love you. I know where you were at. We know when you left the race track and I know when you got home. I'll stand by you. I love you! Mama." The police returned to the police station at approximately 2:20 p.m. and informed Register that they had seen his mother. The police did not give the note to Register, but instead told him she was upset, she said she loved him, and she wanted him to tell them "what happened that night." The police continued to talk with him about his family and girlfriend, which led to discussing his whereabouts on the night of November 16, 1991. Shortly after 3:00 p.m. on February 18, 1992, Register confessed to the homicide.

When Register refused to allow the police to tape record his verbal confession, the police transcribed it into a written statement. In the meantime, the police readministered each of the Miranda rights and provided Register with a written Miranda form. After acknowledging his rights by initialing each right individually, Register signed the waiver form at the bottom and received a copy. Register then reviewed the written statement, crossed out an incorrect part, and signed it.

During an in camera hearing, the trial judge rejected Register's motion to suppress the DNA evidence concluding that the techniques and procedures used by SLED in this case were those generally accepted in the scientific community. Therefore, the judge determined that the DNA evidence was admissible and the jury could determine what weight to give it. In addition, the trial judge held a Jackson v. Denno ² hearing and, after considering the totality of the circumstances, ruled that Register had freely and voluntarily confessed, that he had been properly advised of and understood his Miranda rights, and that he had knowingly and intelligently waived his right to remain silent and to have counsel present with him during custodial questioning.

ISSUES

I. Was Register's confession improperly admitted?

II. Were the DNA test results improperly admitted?

III. Should Register's conviction be reversed?

DISCUSSION

I. Register's Confession

A. Sixth Amendment Right to Counsel.

Register contends that his confession was taken in violation of his Sixth Amendment ³ right to counsel. We disagree.

The Sixth Amendment right to counsel attaches when adversarial judicial proceedings have been initiated and at all critical stages. Compare Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977) with Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986). Hence, the right to counsel in judicial proceedings is distinguished from the Fifth Amendment Miranda- Edwards right to speak with counsel upon request in a custodial setting. McNeil v. Wisconsin, 501 U.S. 171, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991); State v. Wilder, 306 S.C. 535, 413 S.E.2d 323 (1991). The Sixth Amendment right does not attach simply because the defendant has been arrested or because the investigation has focused on him. Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966). Further, the Sixth Amendment right attaches only "post-indictment", at least in the questioning/statement setting. See Michigan v. Harvey, 494 U.S. 344, 110 S.Ct. 1176, 108 L.Ed.2d 293 (1990).

Although Register was arrested and questioned on February 18, 1992, he was not indicted until April 16, 1992. At the time the confession was taken, Register was in a custodial setting--judicial proceedings had not been initiated. Accordingly, the Sixth Amendment right to counsel had not attached.

B. Fifth Amendment Right to Speak to Counsel.

Register argues that his Fifth Amendment ⁴ right to speak to counsel was invoked when he requested to see his mother. Register was an adult when he was arrested. Although a juvenile's request for a parent may be considered when determining the voluntariness of the confession, an adult's request for someone other than an attorney does not invoke a Fifth Amendment right to speak with counsel. See Fare v. Michael C., 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979) (request for a third party who is not an attorney does not invoke a Fifth Amendment right to counsel during custodial police interrogation). Because Register did not request legal counsel, his Fifth Amendment right to counsel was not violated.

C. Fifth Amendment Right to Silence.

Next, Register asserts that his Fifth Amendment right to silence was invoked when he stated that he was not talking "about it" until he saw his mother. A suspect who makes an inadmissible confession may subsequently waive the Fifth Amendment to remain silent, and his later, validly obtained confession will be admissible at trial. Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985); Adams v. Aiken, 965 F.2d 1306 (4th Cir.1992). The inquiry then...