State v. Shuler, No. 25282.

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: TOAL, Chief Justice
• Citation: 545 S.E.2d 805,344 S.C. 604
• Parties: The STATE, Respondent, v. Calvin Alphonso SHULER, Appellant.
• Docket Number: No. 25282.
• Decision Date: 16 April 2001

344 S.C. 604
545 S.E.2d 805

The STATE, Respondent,
v.
Calvin Alphonso SHULER, Appellant

No. 25282.

Supreme Court of South Carolina.

Heard March 7, 2001.

Decided April 16, 2001.

Rehearing Denied May 23, 2001.

344 S.C. 610

Assistant Appellate Defender Robert M. Dudek, of South Carolina Office of Appellate Defense, of Columbia, for appellant

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, and Assistant Attorney General S. Creighton Waters, all of Columbia; and Solicitor Walter M. Bailey, of Summerville, for respondent.

TOAL, Chief Justice:

Calvin Alphonso Shuler ("Shuler") was sentenced to death for killing guard James B. Brooks ("Brooks") during an armed robbery of an Anderson Armored Car. Shuler appeals his murder conviction and death sentence. This opinion consolidates

344 S.C. 611

Shuler's direct appeal with the mandatory review provisions of S.C.Code Ann. § 16-3-25 (1985)

FACTUAL/PROCEDURAL BACKGROUND

On December 3, 1997, three Anderson Armored Car guards, Alton Amick ("Amick"), Sherman Crozier ("Crozier"), and Brooks, were collecting and delivering money to various banks in the Low County area. Amick was the driver, Crozier sat in the front passenger seat, and Brooks sat in the back of the car.

The Anderson Armored Car is a bullet resistant van with a number of security features. A metal wall topped by a steel mesh screen separated Brooks in the back from Amick and Crozier in the cab. The driver and passenger side doors had "double locks" that take two hands to open. The car's side double doors on the passenger side and double doors in the rear were kept locked. Both Amick and Brooks had keys to access the back of the car, but Brooks did not need the key to get out. Brooks also had access to "kill switches" in the rear—one switch would totally disable the car's engine and the other switch would sound a visual and audible alarm.

At 10:45 a.m., the three guards arrived at First National Bank of Harleyville. Amick looked around twice to see if the area was clear. He opened the door and turned his head to grab his clipboard. When he turned around a man wearing army fatigues, a camouflage face mask, and gloves was pointing a semi-automatic pistol in his face. The attacker also had an assault rifle slung over his shoulder. The attacker shouted three times, "Get out of the God d*mn truck." Amick got out of the car. The attacker then climbed in the driver's seat, pointed the gun at Crozier's head, and ordered him out of the car. Crozier exited the car, but left his door open.

Inside the van, the attacker and Brooks engaged in a gun battle through the screen mesh separating the cab and the rear area. Amick stood near the doorway on the driver's side, Crozier ran around the back of the car. After the gunfire stopped, the attacker threw his semi-automatic handgun out of the car's window. The attacker hesitated for a moment as he tried to get the car into gear, and then drove off at a high rate

344 S.C. 612

of speed. As the van sped away, Amick fired four shots at the car's tires with his .38 revolver

Several eye witnesses saw the attacker drive the car down Shortcut Road at a high rate of speed. Deputy Thomas Limehouse initially responded to the call from First National Bank, but was told to go to the dirt road in his four wheel drive police vehicle. Once there, he met other policemen, and they proceeded on the dirt road. After about a half mile, they saw the armored car on the road. They approached and saw Brooks laying in the back of the van. EMS responded to the scene, but Brooks was dead due to his numerous gunshot wounds. The rear compartment of the car contained $1,555,400 in currency, although much of it was shredded by gunfire and soaked in Brooks' blood.

Members of the Charleston County Sheriff's canine team responded to the dirt road location to track the attacker. One of the officers found a SKS assault rife, which fires 7.62 mm ammunition, submerged under water in a canal. The SKS's 30 round clip was found on the bank of the canal. The canine team followed the scent from the canal into the surrounding woods. The officers found a bloody ski mask hanging on a tree branch. After another 75 yards, the officers found a box of 7.62 mm ammunition on the ground. The dogs also found a folded green duffel bag before they lost the attacker's scent.

The armored car guards recovered the pink-handled, Lorcin.25 semi-automatic handgun the attacker threw out of the window at the bank. The police traced the gun and found it was registered to Shuler's mother, who is deceased. The police contacted Shuler, and he agreed to meet police at his residence that afternoon. Shuler claimed he gave the gun to his mother for protection. According to Shuler, he had not seen the gun since he gave it to his mother prior to her death.

The SKS rifle was traced to Demond Jones ("Jones"), Shuler's cousin's fiance. Since Jones was a convicted felon, it was illegal for him to purchase a SKS, and he was arrested on federal firearm charges. Jones testified he agreed to buy the SKS from Woody's Pawn Shop for Shuler in order to satisfy a debt he owed Shuler for a Cadillac. A week after the purchase, Shuler asked Jones to stand guard while he robbed an

344 S.C. 613

armored car in Harleyville. Shuler offered Jones a .44 pistol and $5,000 to help in the robbery. Jones refused.

After further information implicating Shuler was discovered, FBI agents interviewed Shuler concerning the crime. The agent noticed Shuler nervously pulled on his knit hat during the interview. When Shuler's hat was removed, the agent noticed lacerations to the back of his head. A FBI agent then conducted a polygraph examination.¹ Shuler confessed to the murder.

Shuler was a former employee of Anderson Armored Car and had briefly worked with Amick and Brooks. According to Shuler, he knew the guards would be armed, and his .25 pistol would be insufficient firepower, so he gave Jones money to buy the SKS. Shuler's confession revealed he concocted a plan to rob the armored car two weeks prior to the crime. His plan involved hiding underneath a house adjacent to the First National Bank until the armored car made its routine stop. Prior to the murder, Shuler waited patiently underneath the house all night until the armored car arrived the following morning.

Following Shuler's confession, police procured a search warrant for his home. Inside Shuler's home, police found ammunition, Shuler's Anderson Armored Car badge, a pistol pouch, and a .44 magnum pistol in the attic. Inside Shuler's pickup truck they found a pair of camouflage hunting gloves, as well as three other camouflage knit hunting gloves.

The physical evidence overwhelmingly demonstrated Shuler was the attacker. The DNA experts testified at trial Shuler matched the blood taken from the top of the driver's seat and the passenger's sun visor. Shuler also matched blood taken from the outside passenger door handle, the double door on the passenger side of the armored car, the top of the cooler between the seats, the SKS clip found on the bank of a ditch, and the ski mask.

According to the pathologist who conducted Brooks' autopsy, there were three major pre-mortem injuries that could have been fatal. There were also a number of wounds the pathologist theorized were post-mortem. The pathologist

344 S.C. 614

opined many of the wounds were consistent with injury from a high-powered rifle, and stated all of the shooting happened quickly.

The ballistics expert matched a bullet fragment removed from the right front of Brooks' neck with the SKS rifle. The SKS also matched three fragments from Brooks' right thigh and buttock, and one fragment from his right lateral torso.

Furthermore, a X-ray of Shuler's head wounds indicated the wounds were consistent with gunshot wounds. The ER doctor who performed the X-rays testified the X-rays reflected gunshot fragments in Shuler's head, and Shuler had shoulder bruising consistent with the recoil from a high-powered rifle.

During the January 1998 term, Shuler was indicted for murder, armed robbery, and kidnapping. On January 28, 1998, the State served a notice of intent to seek the death penalty. The jury found Shuler guilty on each count. The penalty stage commenced on November 11, 1998. The jury recommended a death sentence, and the trial judge sentenced Shuler to death.

The following issues are before this Court on appeal:

I. Did the trial judge err in failing to grant Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) relief where he ruled one of the Solicitor's reasons for striking a juror was a "subterfuge" and not race-neutral?

II. Did the trial judge err by proceeding with the Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) hearing in Shuler's absence?

III. Did the trial judge err by allowing the Solicitor to question Jones about his duty to tell the truth pursuant to a plea agreement?

IV. Did the trial judge err in refusing Shuler's Request to Charge on a citizen's use of force in arresting a felon?

LAW/ANALYSIS

I. Batson Challenge

During jury selection, the trial judge found one of the Solicitor's reasons for striking juror Bettie Dewberry ("Dewberry")

344 S.C. 615

was a "subterfuge" and not racially neutral. Shuler contends the trial judge should have granted Batson relief under this Court's reasoning in Payton v. Kearse, 329 S.C. 51, 495 S.E.2d 205 (1998). We disagree. The record indicates the trial judge had a flawed memory during the Batson hearing concerning Dewberry's earlier answers during individual voir dire. Thus, the trial judge's determination that the Solicitor's reason was a subterfuge was clearly erroneous, and the Solicitor's challenged reason for striking the juror was valid.

The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prohibits the striking of a venire...