State v. Rivera, No. 27220.

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtJustice KITTREDGE.
Citation402 S.C. 225,741 S.E.2d 694
PartiesThe STATE, Respondent, v. Raymondeze RIVERA, Appellant. Appellate Case No. 2010–162706
Docket NumberNo. 27220.
Decision Date03 April 2013

402 S.C. 225
741 S.E.2d 694

The STATE, Respondent,
v.
Raymondeze RIVERA, Appellant.

Appellate Case No. 2010–162706

No. 27220.

Supreme Court of South Carolina.

Heard June 5, 2012.
Decided Feb. 13, 2013.

Rehearing Denied April 3, 2013.


[741 S.E.2d 696]


Keir M. Weyble, of Cornell Law School, Ithaca, New York, and Chief Appellate Defender Robert M. Dudek, of Columbia, for Appellant.

Attorney General Alan M. Wilson, Chief Deputy Attorney General John W. McIntosh, Senior Assistant Deputy Attorney General Donald J. Zelenka, all of Columbia, and Solicitor Christina T. Adams, of Anderson, for Respondent.


Justice KITTREDGE.

[402 S.C. 229]This is a direct appeal from a sentence of death. Although Appellant Raymondeze Rivera raises multiple challenges, we are constrained to reverse and grant a new trial based on one—the trial court's error in refusing to allow Appellant to testify during the guilt phase of his trial.

I.

Appellant was indicted in connection with the death of Kwana Burns, whose body was found lying in the bedroom floor of her home on December 13, 2006. Her death was the result of asphyxiation. The State sought the death penalty against Appellant based on a prior murder conviction. It is stipulated that Appellant was competent to stand trial.

The State presented overwhelming evidence of Appellant's guilt. At the close of the State's case, the trial court properly [402 S.C. 230]informed Appellant of his right to testify or not to testify. Appellant elected to testify, yet counsel refused to call him to the stand. Despite Appellant's persistence, the trial court acquiesced in counsel's decision and refused to allow Appellant to testify. Appellant was convicted of murder and ultimately sentenced to death.

II.
A.

The Colloquy and the Trial Court's Ruling

On appeal Appellant presents a host of challenges. Because we believe the trial

[741 S.E.2d 697]

court erred in refusing to allow Appellant to testify and that such error is structural, we reluctantly reverse Appellant's murder conviction and death sentence and remand for a new trial.

We begin with the trial court's questioning of Appellant at the close of the State's case:

The Court: We have now reached or are approaching the stage in the trial where you may present your defense. You have the right to claim the protections given to you by the Fifth Amendment to the Constitution of the United States. This amendment states in pertinent part, no person shall be compelled in any criminal case to be a witness against themselves. Do you understand this?

[Appellant]: Yes, sir.

The Court: This means that you cannot be required to testify in this case. You have the right to testify on your own behalf; however, no one can make you testify. This is a personal right, and no one can waive this right except you. Do you understand this?

[Appellant]: Yes, sir.

....

The Court: If you decide to testify, this decision on your part must be freely, voluntarily and intelligently made with knowledge of the protections given to you by the Fifth Amendment and the consequences of your decision to testify. Do you understand that?

[Appellant]: Yes, sir.

[402 S.C. 231]The Court: If you decide not to testify, I will instruct the jurors that they cannot give the fact that you did not testify any consideration whatsoever and that there is to be absolutely no prejudices to you because you did not testify. It is left entirely up to you whether or not to testify. Do you understand?

[Appellant]: Yes, sir.

The Court: You may talk with your attorney or anyone else about this, but it will be your final decision—or the final decision will be left entirely up to you. Do you understand that?

[Appellant]: Yes, sir.

The Court: Do you understand what I've explained to you?

[Appellant]: Yes, sir.

The Court: Do you have any questions about what I've explained to you?

[Appellant]: No, sir.

The Court: Have you discussed with your lawyer whether you should testify or not?

[Guardian ad Litem ]: Excuse me, Your Honor. He just asked if we could have a small break. He needs to go to the restroom and he would like to ask a couple of questions of us.

The Court: Certainly. All right. We'll take a short break. When you're ready to return, of course, let me know.

....

The Court: Is the [Appellant] ready to proceed?

[Guardian ad Litem ]: He is, Your Honor. He had a couple questions and we've answered them, and he wishes to proceed on to finish answering the questions.

The Court: Very good.... Have you discussed with your lawyer whether you should or you should not testify?

[Appellant]: Yes, sir.

The Court: Do you wish to testify?

[Appellant]: Yes, sir.

The Court: You do wish to testify?

[Appellant]: Yes, sir.

....

[402 S.C. 232][Guardian ad Litem ]: Thank you, Your Honor. In discussions with [Appellant], he has indicated to me that apparently he does wish to testify, but he would like to do so after lunch if he could. His lunch is being delivered to him.

The Court: Very well.

....

[Defense Counsel]: Your Honor, [Appellant] has indicated to the Court that he wishes to take the stand on his own behalf. That is something [Co–Counsel] and I have explained to him on innumerable occasions was not in his best interest. This is the same scheme of things that occurred in the Asha Wiley case,

[741 S.E.2d 698]

exactly the same thing. Your Honor, I would like to be able to tell the Court as an officer of the Court—and I do so with full knowledge of the Court's responsibilities—[Co–Counsel] and I will refuse to call him to the stand.

If the Court wishes to call him under Rule 614, the extraordinary circumstances that 614 notices, that obviously would be the Court's option. [Co–Counsel] and I, however, feel that under our constitutional oath as his attorneys, we cannot put him on the stand without him harming his case so irreparably as to void any meaningful consideration to guilt or innocence in this matter.

... But if that is [Appellant's] wish, we will respectfully and honorably decline the opportunity to call him.

....

The Court: All right. I'm going to go along—inasmuch as [Appellant] has to consider these matters over lunch, I'm going to have the other matter to consider, whether or not I will exercise under the appropriate rule to call him as the Court's witness. All right. So you have three things to consider now. So any questions, [Appellant]?

[Appellant]: (No response)

The Court: All right. Let me restate the three things you need to consider. One is whether you wish to testify as a witness. Two, whether you wish to give the final argument after the case is closed. And three, knowing that your attorneys would decline to call you as a witness, whether you want the Court to call you as a witness. [402 S.C. 233]Those are the three things that you need to consider. Any questions?

[Appellant]: No, sir.

The Court: Very good. I'll see you after lunch.

(R. 2186–95).


Following the lunch recess, the trial proceedings continued as follows:

[Defense Counsel]: Judge, if I could just briefly—we talked briefly at the bench about my request for a continuance to get a psychiatrist here to determine the competency of [Appellant] to make this decision [about whether to testify]. I concede to the Court that we don't have a case in the country that says we're allowed to do that, but this is a rather unique situation that I would make that request. In the alternative I would request that the Court have [Appellant] proffer his testimony to make sure that it's not going to be the kind of testimony that would erode the integrity of these proceedings.

The Court: I understand. On the first, I understand that he has been examined.

....

All right. And on the second, I think that's how we're going to proceed.

....

I'm going to ask the Defendant if he wishes to testify. And if he tells me so, I'm going to call him as a Court's witness. And he's going to be on the stand, and he's going to be under oath. I have no idea what he wants to testify to. It's his right, his absolute right, to testify if he wants to, provided that his testimony is material, relevant, and the probative value outweighs any prejudice to his case. In making that decision, I'll hear what he says.... [Appellant], do you understand your right to testify or not to testify under our Constitution?

[Appellant]: Yes, sir.

The Court: Have you discussed with your lawyer and others whether you should testify or not testify?

[Appellant]: Yes, sir.

[402 S.C. 234]The Court: And what has their advice been? What has their advice been? What have they advised you?

[Appellant]: Not to testify.

The Court: Now, I'm going to ask you—because it is your decision—do you wish to testify?

[Appellant]: Yes, sir.

The Court: All right. You understand that whatever you have to say must be relevant, admissible, and its probative value, meaning its value to the decision of the issues in this particular case, must

[741 S.E.2d 699]

outweigh any prejudicial value. You understand?

[Appellant]: Yes, sir.

....

The Court: All right. And again, I understand that the Defense has advised [Appellant] not to take the stand and testify?

[Defense Counsel]: We have, Your Honor, yes, sir.

(R. 2193–98).


Thereafter, outside the presence of the jury, the trial judge called Appellant as a court's witness, first asking Appellant to proffer his testimony. The in camera examination by the trial judge is as follows:

Q. All right. You understand that you are under oath?

A. Yes, sir.

....

Q. And you are the defendant in this case?

A. Yes, Your Honor.

Q. And you wish to testify?

A. Yes, sir.

Q. What's the testimony you wish to give?

A. About the murders in Anderson County.

Q. Pardon?

A. The murders in Anderson County, sir.

Q. Murders? Both murders?

A. Right.

[402 S.C. 235]Q. No. What's the testimony you want to give us about the death of Kwana Burns?

A. Okay. That will be fine, sir.

Q. What do you want to testify to?

A. To what happened, sir.

Q. Pardon?

A. To what happened.

Q. And what are you going to testify to?

A. About the killing of Kwana...

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20 practice notes
  • State v. Nelson, No. 2012AP2140–CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 16, 2014
    ...the court wishes to protect the defendant from himself or herself. Quarels v. Commonwealth, 142 S.W.3d 73, 79 (Ky.2004); State v. Rivera, 402 S.C. 225, 741 S.E.2d 694, 703 (2013). It also means that a circuit court must refrain from unduly influencing a defendant's decision. ¶ 25 We have ad......
  • State v. Harrison, Appellate Case No. 2018-002128
    • United States
    • United States State Supreme Court of South Carolina
    • January 20, 2021
    ...errors as "defects in the constitution of the trial mechanism, which defy analysis by ‘harmless-error’ standards"). State v. Rivera , 402 S.C. 225, 246, 741 S.E.2d 694, 705 (2013) ("Most trial errors, even those which violate a defendant's constitutional rights, are subject to harmless-erro......
  • State v. Samuel, Appellate Case No. 2015-002401
    • United States
    • United States State Supreme Court of South Carolina
    • February 28, 2018
    ...knowing and voluntary request to proceed pro se is a structural error requiring automatic reversal and a new trial. State v. Rivera , 402 S.C. 225, 247, 741 S.E.2d 694, 705 (2013).Whether a defendant has intelligently waived his right to counsel depends upon the particular facts and circums......
  • State v. Wright, Appellate Case No. 2013–001406.
    • United States
    • Court of Appeals of South Carolina
    • April 27, 2016
    ...819, n. 15, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) ). “However, the right to present testimony is not without limitation.” State v. Rivera, 402 S.C. 225, 242, 741 S.E.2d 694, 703 (2013). “The right may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial ......
  • Request a trial to view additional results
20 cases
  • State v. Nelson, No. 2012AP2140–CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 16, 2014
    ...the court wishes to protect the defendant from himself or herself. Quarels v. Commonwealth, 142 S.W.3d 73, 79 (Ky.2004); State v. Rivera, 402 S.C. 225, 741 S.E.2d 694, 703 (2013). It also means that a circuit court must refrain from unduly influencing a defendant's decision. ¶ 25 We have ad......
  • State v. Harrison, Appellate Case No. 2018-002128
    • United States
    • United States State Supreme Court of South Carolina
    • January 20, 2021
    ...errors as "defects in the constitution of the trial mechanism, which defy analysis by ‘harmless-error’ standards"). State v. Rivera , 402 S.C. 225, 246, 741 S.E.2d 694, 705 (2013) ("Most trial errors, even those which violate a defendant's constitutional rights, are subject to harmless-erro......
  • State v. Samuel, Appellate Case No. 2015-002401
    • United States
    • United States State Supreme Court of South Carolina
    • February 28, 2018
    ...knowing and voluntary request to proceed pro se is a structural error requiring automatic reversal and a new trial. State v. Rivera , 402 S.C. 225, 247, 741 S.E.2d 694, 705 (2013).Whether a defendant has intelligently waived his right to counsel depends upon the particular facts and circums......
  • State v. Wright, Appellate Case No. 2013–001406.
    • United States
    • Court of Appeals of South Carolina
    • April 27, 2016
    ...819, n. 15, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) ). “However, the right to present testimony is not without limitation.” State v. Rivera, 402 S.C. 225, 242, 741 S.E.2d 694, 703 (2013). “The right may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial ......
  • Request a trial to view additional results

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