State v. Sims

Decision Date24 September 1990
Docket NumberNo. 23388,23388
Citation405 S.E.2d 377,304 S.C. 409
CourtSouth Carolina Supreme Court
PartiesThe STATE, Respondent, v. Mitchell Carlton SIMS, Appellant. . Heard

Assistant Appellate Defender Joseph L. Savitz, III, of S.C. Office of Appellate Defense, Columbia, for appellant.

Attorney General T. Travis Medlock, Asst. Attys. Gen., Harold M. Coombs, Jr., and Amie L. Clifford, Columbia, and Sol. Charles M. Condon, Charleston, for respondent.

HARWELL, Justice:

In the first phase of a bifurcated capital trial, appellant Mitchell Carlton Sims (Sims), was found guilty of murdering two

                Domino's Pizza employees during the commission of an armed robbery.   At the end of the second phase, the jury recommended the death sentence for each murder conviction.   We affirm the convictions and the sentences

In May, 1985, Sims was unhappy with his supervisor and resigned from his position as store manager of the West Columbia Domino's Pizza. In mid-November of 1985, Sims and his girlfriend moved to Charleston. Sims obtained a part-time job as a driver at the Domino's in Hanahan, as well as a second job at a carpet cleaning service. Despite this, Sims began having financial problems, and when his truck broke down in late November, he borrowed money from a co-worker to have it repaired. On December 1, 1985, Sims' truck broke down again. Sims was unable to afford to have it repaired, so he informed Domino's that he could not deliver pizzas. Sometime after midnight on December 3, Sims walked from his trailer to the Domino's in Hanahan. Sims tied up the two employees who were working, shot them, and robbed the store. Sims then walked home. One of the employees died immediately, but the other employee made his way to the police station and informed police that Sims had committed the crimes. The employee died a few days later. Sims and his girlfriend fled to Florida, to California, and then to Nevada where they were eventually apprehended.


At a pre-trial hearing on March 13, 1989, Sims motioned that the charges against him be dismissed for several reasons including that there had been a breach of attorney-client confidentiality. Sims stated that a detective working for the State came to his cell to speak with him and disclosed information that Sims had only shared with his attorneys. At this time, Sims did not ask that counsel be dismissed. The trial judge told Sims that they would discuss the matter in further detail at a later date. At another pre-trial hearing on April 28, 1989, ten days before the trial began, Sims requested that the Public Defender's Office be dismissed from his case because he was uncomfortable with the knowledge that someone from that office had leaked confidential information, and felt that his best interests were not being represented. The trial judge denied Sims' request. On appeal, Sims argues that the trial judge erred in denying his request to dismiss counsel, and in not offering him the opportunity to proceed pro se. We disagree.

The question of whether court appointed counsel should be discharged is a matter addressed to the discretion of the trial judge. Only in a case of abuse of discretion will this Court interfere. State v. Marshall, 273 S.C. 552, 257 S.E.2d 740 (1979); State v. Hyman, 276 S.C. 559, 281 S.E.2d 209 (1981). In evaluating whether the trial judge abused his discretion in denying Sims' motion for substitution of counsel, the Court may consider several factors: timeliness of the motion, adequacy of the trial judge's inquiry into the defendant's complaint, and whether the attorney-client conflict was so great that it resulted in a total lack of communication, thereby preventing an adequate defense. U.S. v. Gallop, 838 F.2d 105 (4th Cir.1988).

While Sims brought the incident to the trial judge's attention on March 13, he did not request that counsel be dismissed until April 28, ten days prior to trial. The trial judge is entitled to take into account the countervailing state interest in proceeding on schedule. U.S. v. Gallop, 838 F.2d at 108. If granted, Sims' motion may not have allowed substitute counsel adequate time to prepare and could have caused further delay.

The record indicates that the trial judge adequately inquired into Sims' complaint. The trial judge held a hearing in chambers with Sims and his counsel and Sims was permitted to fully explain the content of the confidential information that he felt had been leaked: that his wife was pregnant, that he had a problem with alcohol and that his defense strategy would be to concentrate on the penalty phase.

Finally, while Sims indicated he was uncomfortable with the knowledge of the breach, there is no evidence that Sims' apprehension led to any conflict or lack of communication with his counsel. We conclude the evidence was insufficient to justify substitution of counsel and the trial judge acted properly in denying Sims' motion.

Sims also argues that the trial judge erred in not allowing him to proceed pro se. We disagree. The right to appear pro se must be clearly asserted by the defendant before trial. U.S. v. Lorick, 753 F.2d 1295 (4th Cir.1985); State v. Marshall, 273 S.C. 552, 257 S.E.2d 740 (1979). Here, Sims gave no indication of a desire to proceed pro se prior to trial. This contention is without merit.


Sims contends that the trial judge erred during the voir dire examination of five of the jurors by informing them that Sims would "go home" if they found him not guilty. The trial judge made this statement while explaining the nature of a bifurcated trial. He explained to the jurors that:

A capital murder trial is divided into two phases. The first phase being the guilt phase. If the defendant is found not guilty, the trial comes to an end. The defendant goes home. The jurors go home. But if the defendant is found guilty, then we go to the second phase of the trial called the punishment phase.

We conclude that a reasonable juror would have clearly understood the trial judge's remarks as an explanation of a capital trial rather than a comment on what would become of Sims upon conviction or acquittal. See State v. Jackson, 297 S.C. 523, 527, 377 S.E.2d 570, 572 (1989) (test is what a reasonable juror would understand the charge as meaning).


Sims argues that the statement he made on December 26, 1985 was inadmissible because it was made after he invoked his right to counsel and during interrogation initiated by the police. Sims was arrested on December 25, 1985 in Las Vegas. Later that day, two officers from California, Officers Perkins and Montecuollo, came to question Sims. Sims was a suspect in a Domino's murder and armed robbery in California. The officers advised Sims of his rights, and Sims indicated that he wished to remain silent and wanted an attorney. The officers then ceased the interrogation and informed Sims that he would have to initiate any future contact between them. The next day, Sergeant Anderson visited Sims to ask him if he wanted to sign a form waiving extradition. Sims stated that he did not and requested to see the officers from California. After a general discussion with the officers, Sims agreed to waive his rights and go "on the record" and discuss the South Carolina crimes. Sims then gave a statement incriminating himself in these crimes. The trial judge allowed the statement into evidence finding that Sims initiated the contact with the police and that he freely and voluntarily made the statement. We agree.

Once an accused requests counsel, police interrogation must cease unless the accused himself "initiates further communication, exchanges, or conversations with the police." Edwards v. Arizona, 451 U.S. 477, 485, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378, 386 (1981). Sims argues that Sergeant Anderson initiated the interrogation on December 26 when he asked Sims whether he wanted to waive extradition. We disagree. Interrogation is defined as express questioning, or its functional equivalent which includes "words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response." Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct 1682, 1689-1690, 64 L.Ed.2d 297, 308 (1980). Sergeant Anderson's question concerning extradition was related to routine administrative processing and clearly was not an attempt to elicit an incriminating response from Sims. See, e.g., South Dakota v. Neville, 459 U.S. 553, 564, n. 15, 103 S.Ct. 916, 923, n. 15, 74 L.Ed.2d 748, 759 (1983) (holding that police inquiry whether suspect would submit to blood-alcohol test was not interrogation). Therefore, when Sims told Anderson he wanted to see the California officers, he initiated the contact. Sims admitted this in the interview that day:

Officer Perkins: ... You have called us to talk to you is that correct?

Sims: Correct.

Officer Perkins: O.K., we didn't ask to talk to you?

Sims: Correct.

The record also indicates that it was Sims, not the officers, who asked questions and made statements which "open[ed] up a more generalized discussion relating ... to the investigation." Oregon v. Bradshaw, 462 U.S. 1039, 1045, 103 S.Ct. 2830, 2835, 77 L.Ed.2d 405, 412 (1983). At the beginning of the conversation the officers and Sims were discussing unrelated topics, and Sims announced: "I'm not a murderer ... I just got drunk ... I knew I was doing it, but I shouldn't of done it...." Sims then questioned the officers about extradition, and agreed to talk to the officers about his girlfriend's involvement in the South Carolina crimes in order to clarify which state she would go to. Thus, the record shows that Sims, rather than the officers, initiated the contact as well as the discussion of the...

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