State v. Robinson, 23481

• Decision Date: 01 April 1991
• Docket Number: No. 23481,23481
• Citation: 409 S.E.2d 404,305 S.C. 469
• Court: South Carolina Supreme Court
• Parties: STATE of South Carolina, Respondent, v. Noah Ryan ROBINSON, Appellant. . Heard

Page 404

409 S.E.2d 404

305 S.C. 469

STATE of South Carolina, Respondent, v. Noah Ryan ROBINSON, Appellant.

No. 23481.

Supreme Court of South Carolina.

Heard April 1, 1991.

Decided Sept. 23, 1991.

Rehearing Denied Oct. 22, 1991.

Russell D. Ghent and Albert Q. Taylor, Spartanburg, and Howard W. Pat Paschal, Greenville, for appellant.

Attorney Gen. T. Travis Medlock, Chief Deputy Atty. Gen. Donald J. Zelenka, Columbia; and Sol. Joseph J. Watson, Greenville, for respondent.

GREGORY, Chief Justice:

Appellant was convicted of accessory to felony after the fact and sentenced to ten years imprisonment. We affirm.

Appellant was indicted for criminal conspiracy and murder for the killing of Hambone Barber; he was also indicted for criminal conspiracy and accessory to felony before and after the fact for the stabbing of Janice Denise Rosemond. The Solicitor sought the death penalty for the Barber murder. These charges were tried together.

At trial, the State produced evidence appellant solicited the murder of Hambone Barber committed by members of the El Rukns, a Chicago organization. Barber was gunned down outside a bar in Greenville. A witness to the shooting, Janice Denise Rosemond, identified a member of the El Rukns as the killer and testified to this effect before a federal grand jury in Chicago. Soon thereafter, Rosemond was severely stabbed in her home by an acquaintance, Fred Sweeney. Sweeney testified appellant wanted him to kill Rosemond because "she spilled on one of his guys." Appellant offered Sweeney $5,000 to slit Rosemond's throat. Rosemond, however, survived Sweeney's attack. At Sweeney's request, appellant agreed to send him money to flee to Florida. Sweeney received payments of $500 and $200 through appellant's associate, Jake Oliver. The jury found appellant guilty of accessory to felony after the fact and reached no verdict on all other counts.

Appellant contends the trial judge erred in refusing his motion for a change of venue based on pretrial publicity. Appellant, Jesse Jackson's half-brother, is a well-known member of the black community. He claims the unavoidable notoriety of this case was aggravated by the trial judge's publicized order of stringent court security and the Solicitor's conduct. He claims the Solicitor made inflammatory remarks to the media and also filed a pretrial memorandum with the court, accessible to the press, detailing the evidence in aggravation of murder.

When a trial judge bases the denial of a motion for change of venue because of pretrial publicity upon an adequate voir dire examination of the jurors, his decision will not be disturbed absent extraordinary circumstances. State v. Caldwell, 300 S.C 494, 388 S.E.2d 816 (1990); State v. Owens, 293 S.C. 161, 359 S.E.2d 275 (1987). Mere exposure to pretrial publicity does not automatically disqualify a prospective juror; the defendant must show actual juror prejudice. State v. Caldwell, supra. When jurors are exposed to such publicity, there is no error in refusing a change of venue where jurors are found to have the ability to lay aside any impressions or opinions and render a verdict based on the evidence presented. Id.

Upon appellant's initial motion, the trial judge questioned the jury panel regarding impartiality and specifically asked if any juror was influenced by hearing information about the case. When only three potential jurors responded, the trial judge denied the motion for change of venue ruling that he would reconsider it after voir dire. On voir dire, the few jurors who acknowledged hearing any news accounts of the case all stated under oath they could put the information aside and give both the State and appellant a fair and impartial trial. After voir dire, the trial judge again denied appellant's motion for a change of venue.

We find no abuse of discretion in the denial of a change of venue. Appellant has failed to show any actual prejudice from the pretrial publicity in this case and we find no extraordinary circumstances to warrant disturbing the trial judge's decision.

Next, appellant contends the Solicitor exercised his peremptory strikes in a racially discriminatory manner in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Of the five strikes allowed the Solicitor against regular jurors, he exercised only one and it was used against a black juror, Phyllis Shell. He also used his one strike allowed on the first alternate against a black juror, John Leaks. One black juror sat on the jury; the remaining jurors, including the two alternates, were white.

The Solicitor stated he struck Juror Shell because of "general instability." She had changed employment several times after relatively short periods of employment, she was an unmarried mother of a two-year-old, and she was still living at her parent's home. Further, she admitted on voir dire that she had seen Reverend Fleming, an outspoken advocate of appellant, discussing appellant's case on television.

After the Solicitor stated his reasons for striking Juror Shell, counsel argued the merits of the motion and the trial judge ruled there had been no Batson violation. On appeal, appellant complains the Solicitor's reasons for striking Juror Shell were pretextual and that he stated no reason for striking Juror Leaks, the potential alternate juror.

We find the Solicitor's reasons for striking Juror Shell are racially neutral. Further, the burden is on the defendant to prove that the Solicitor's neutral reasons for his strikes were pretextual because they were not applied in a neutral manner. State v. Johnson, 302 S.C. 243, 395 S.E.2d 167 (1990). Here, appellant raised no issue to the trial judge regarding any alleged pretext and this issue is not preserved on appeal. State v. Bailey, 298 S.C. 1, 377 S.E.2d 581 (1989); State v. Caldwell, 283 S.C. 350, 322 S.E.2d 662 (1984). In any event, based on the record, we find appellant's claims of pretext to be without support. As to the striking of Juror Leaks, the potential alternate for whom no explanation was given, appellant waived any error in the Solicitor's lack of explanation by failing to raise it below. See State v. Martinez, 294 S.C. 72, 362 S.E.2d 641 (1987).

At the close of presentation of the defense case, appellant's counsel moved for a mistrial on the ground that on voir dire examination a juror had not revealed she knew the Solicitor. The Solicitor denied he knew the juror. He stated he had coached her son in swimming fifteen years earlier.

In State v. Gulledge, 277 S.C. 368, 287 S.E.2d 488 (1982), this Court found the trial judge abused his discretion in denying a mistrial where a juror failed to disclose on voir dire that she was related by marriage to a deputy sheriff who viewed the crime scene and had custody of the defendant in the courtroom during trial. The Court held that absent any justification for the juror's failure to disclose her relationship to the deputy sheriff, a mistrial should have been granted. This case, however, is distinguishable on its facts. The Solicitor denied knowing the juror and the only contact between the juror and the Solicitor, if any, was fifteen years before appellant's trial. We find no abuse of discretion in the denial of a mistrial on this ground.

During the Solicitor's direct examination of Henry Harris, an El Rukn gang member allegedly involved in the Barber murder, Harris testified that in the 1980's he was in charge of drug operations for the organization. He was subsequently asked when he first became acquainted with appellant and he answered " '83 or '84." Appellant then objected and moved for a mistrial on the ground Harris' testimony linked appellant to drug dealing.

This argument is without merit. First, in context, Harris' testimony does not imply appellant was involved in drug dealing merely because he knew appellant during the time Harris was dealing drugs. Harris testified the El Rukns rented a building from appellant where their restaurant was located; there is no testimony linking appellant to the El Rukn's drug dealing activities.

Further, appellant was the first to bring out the El Rukn's involvement in drug dealing. A previous witness, gang member Eugene Hunter, testified appellant was a friend of Jeff Fort, the head of the El Rukns, and was assisting the El Rukns in establishing a legitimate business. On cross-examination, appellant elicited testimony from Hunter that the El Rukns were involved in drug dealing. Since appellant opened the door to this evidence, he cannot complain of prejudice from its admission. State v. Sullivan, 277 S.C. 35, 282 S.E.2d 838 (1981).

Appellant further contends he should have been granted a mistrial on the ground of prosecutorial misconduct. Rosemond, the stabbing victim, testified for appellant. Essentially, she denied ever having identified Barber's killer to police; she stated Detective Brannigan literally twisted her wrist to force her to testify before a federal grand jury in Chicago regarding this case. She further testified to her close relationship with appellant: "I look at him as my godfather."

On cross-examination, the Solicitor asked Rosemond if she had written appellant a letter after she was stabbed, which she admitted. The Solicitor asked her to read a line from it: "Take care of my godfather." Appellant then moved for a mistrial claiming prosecutorial misconduct because the letter was evidence that had been suppressed under a prior ruling by the trial judge. The trial judge ruled the letter had not been suppressed under his prior ruling and therefore the Solicitor was not guilty of prosecutorial misconduct in using it to cross-examine Rosemond.

The record indicates that at the suppression hearing appellant sought the suppression of evidence seized pursuant to search warrants for two different addresses, one for his apartment and one for his office. The following colloquy occurred between counsel and the trial judge:

MR....