State v. Smart

Decision Date23 November 1982
Docket NumberNo. 21812,21812
Citation278 S.C. 515,299 S.E.2d 686
PartiesThe STATE, Respondent, v. Ronald Francis SMART, Appellant.
CourtSouth Carolina Supreme Court

David I. Bruck, S.C. Com'n of Appellate Defense, Columbia, H. Patterson McWhirter, Lexington, William P. Walker, Lexington, for appellant.

Atty. Gen. Daniel R. McLeod, Sr. Asst. Atty. Gen. Brian P. Gibbes, Columbia, Sol. Donald V. Myers, Lexington, for respondent.

LEWIS, Chief Justice:

Appellant was found guilty of two murders while in the commission of larceny with use of a deadly weapon. He was sentenced to death for each offense. We affirm the convictions, vacate the sentences and remand for new trial thereof.

In vacating these sentences we are governed by our holding in State v. Woomer, S.C., 284 S.E.2d 357, that injection of the solicitor's personal opinion into jury deliberations on the death sentence is impermissible and requires reversal. In his closing argument at the sentencing trial, the solicitor three times made reference to his decision to seek the death penalty. Such reference could divert the attention of jurors from the evidence before them to an improper consideration of the solicitor's personal views. This case was tried before our ruling in Woomer, supra, hence we are confident that this problem will not arise again upon retrial. Appellant also takes exception to other aspects of the solicitor's closing argument. We address these exceptions by way of guidance on remand.

First, however, we consider the appellant's exceptions to his conviction trial. Three issues are presented: (1) refusal of the trial court to disqualify the solicitor's office from participation in the case; (2) physical absence of the defendant during certain portions of the proceedings; (3) alleged comment by the solicitor upon appellant's failure to personally testify at trial.

Disqualification Motion: By pretrial motion, appellant pointed out to the trial court that Mr. Dale DuTremble, an assistant solicitor in the Eleventh Judicial Circuit, had been employed by the Lexington County Public Defender's Office during the pendency of the charges against appellant. (A previous appeal, in part, delayed the ultimate trial. State v. Smart, 274 S.C. 303, 262 S.E.2d 911.) It was asserted that DuTremble had actively assisted appellant in preparation of his defense and that therefore his participation in prosecution of the case was a violation of canons of professional ethics requiring disqualification of the entire solicitor's office. The motion was denied.

Appellant now contends that denial of his motion amounted to violation of the Sixth and Eighth Amendments of the United States Constitution, although he does not declare in what particulars. He appears to claim a denial of effective assistance of counsel upon the theory that the prosecutor improperly received information through a breach of the Code of Professional Responsibility and that the breach prejudicially compromised the defense. We acknowledge that the contention has merit in the abstract, even though we find, and appellant cites, no authority that treats the matter as one of constitutional import.

The absence of a constitutional grounding for appellant's contention is significant for two reasons. In the first place it leaves the matter to resolution by this Court on the basis of South Carolina law, consonant with the wide discretion accorded the trial judge in securing a fair and impartial trial. Secondly it places upon the moving party the burden of showing actual prejudice from the failure to disqualify. State v. Goodwin, 250 S.C. 403, 405, 158 S.E.2d 195.

Appellant urges that he should not be required to establish actual betrayal of specific secrets and confidences. He cites authority from certain jurisdictions to the effect that such a betrayal must be presumed from a mere allegation of successive adverse representation. In People v. Shinkle, 51 N.Y.2d 417, 434 N.Y.S.2d 918, 415 N.E.2d 909, for example, the court based disqualification of an entire prosecutor's office upon an appearance of impropriety notwithstanding clear evidence that no actual breach of confidence had occurred.

We find, however, that a substantial number of courts decline to adopt the presumption here urged. Annotation, 31 A.L.R.3d 953 (1970). These courts instead examine the circumstances of the particular case, making their determinations upon actual evidence that confidences have been breached. See also Commonwealth v. Dunlap, 474 Pa. 155, 377 A.2d 975. The basis for rejecting a rule of per se disqualification was well expressed by the dissenting opinion in Shinkle, supra. Objecting to the presumption of prejudice, Justice Jasen wrote that to adopt it would mean:

... a reasonable person would be required to conclude that lawyers, under any and all circumstances, cannot be trusted to maintain the confidences and secrets of their clients, even where, as here, they attest under oath to no breach of ethics. Implicit also in such reasoning is that most, if not all, government lawyers cannot be trusted to discharge their public responsibilities faithfully. Implications such as these, in my view, are repugnant to the entire concept of the Code of Professional Responsibility adhered to by lawyers and should not be adopted by our court as the basis upon which a new per se rule of disqualification is announced. 415 N.E.2d 912.

We hold that the appellant was properly required to do more than allege a violation of ethical canons. Appellant contends that such a requirement created a dilemma, for to establish prejudice in support of his motion he would have been forced to reveal secrets to the trial court and prosecution. The argument has no merit, for in this case a circuit judge other than the trial judge was appointed to hear appellant's motion. Moreover, the use of ex parte hearings to establish a record in such cases is a well recognized technique available to any party in appellant's position. First Wisconsin Mortgage Trust v. First Wisconsin Corporation, 584 F.2d 201; "Developments in the Law-Conflicts of Interest," 94 Harvard Law Review 1244, 1333 (1981). Creating artificial dilemmas does not relieve appellant of his burden to show actual prejudice in this case. We approve the holding of the trial court that disqualification was not here required.

In favorem vitae, however, this Court has closely examined the record for any indication of prejudice to the appellant in the course of his trial. At the pretrial hearing, it was established that Mr. DuTremble had been assigned to prepare a brief submitted to this Court in State v. Smart, supra, while he was employed by the Lexington County Public Defender's Office. Under oath DuTremble specifically denied that he personally spoke with defendant at any time, that he discussed evidentiary matters or trial strategy with defendant's counsel, or that he in any way consulted appellant's case file. DuTremble's work for the prosecution in this case consisted of pretrial research upon a narrow question of law (that is, the admissibility of certain psychiatric evaluations). These facts do not suggest betrayal of any secrets or confidences.

Appellant was charged with the murders of four persons--a woman, two men, and a thirteen-year-old girl. He was actually arrested at the scene of the crime within hours of the killings. His clothing was soaked with blood of the victims. He violently resisted arrest, repeatedly shouting that "Red Dog" killed the victims and would kill the officers, too. It is admitted that "Red Dog" was appellant's own pseudonym. Every item of physical evidence was obtained at the scene in the course of routine investigation, with the exception of charts and courtroom visual aids. In short, the entirety of the State's case, its theory and evidence, rested upon the State's own resources, wholly apart from appellant or his counsel.

In his defense, appellant sought to demonstrate inconsistencies in the theory and evidence of the State. He also urged the jury to consider alternative explanations of the killings, including manslaughter, self-defense or actions by persons unknown. One item of defense evidence was a tape recording made by police of defendant's conversation with one officer while in custody on the morning of his arrest. At several points appellant is heard to say that one or both of the men killed the woman and child, while he escaped by killing the men. Elsewhere it is suggested that the woman and child died accidentally as the three men fought. At still another point appellant refers to a fourth man, implying he had some role in the killings.

It is apparent that the jury weighed this evidence, for the verdict acquitted appellant in the deaths of the woman and child. In any event, the existence of the tape, its contents, and the defense theories suggested by it were in no way "secrets" or "confidences" of the appellant which attorney DuTremble could have "betrayed."

Appellant also offered testimony of a witness who was at the scene of the crimes up to a few hours before the killings. This testimony was at best confused and was little improved after the witness was declared hostile and defense counsel permitted to proceed accordingly. No allegation is made that the solicitor knew or otherwise improperly benefited from this testimony aside from its inherent weakness. Finally appellant offered testimony of an expert on gunshot residue. He had been summoned on short notice, hence his existence could not have been revealed to the solicitor through acts of DuTremble.

We conclude from a thorough review of this record that appellant had few, if any, "trump cards" to play. Even if he had secrets and confidences which could have been shared with attorney DuTremble, they were not so revealed. Not even on this appeal has any specific item of information been brought to this Court's attention which could have affected the outcome of appellant's trial. Appellant...

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