State v. Smith, 1771

• Court: Court of Appeals of South Carolina
• Citation: 307 S.C. 376,415 S.E.2d 409
• Docket Number: No. 1771,1771
• Parties: The STATE, Respondent, v. Grover Lee SMITH, Appellant. . Heard
• Decision Date: 16 January 1992

Page 409

415 S.E.2d 409

307 S.C. 376

The STATE, Respondent, v. Grover Lee SMITH, Appellant.

No. 1771.

Court of Appeals of South Carolina.

Heard Jan. 16, 1992.

Decided Feb. 24, 1992.

As Amended on Denial of Rehearing March 11, 1992.

Certiorari Granted April 7, 1993.

William N. Epps, Jr. of Epps, Krause & Nicholson, Anderson, for appellant.

Attorney Gen. T. Travis Medlock, Asst. Attys. Gen. Harold M. Coombs, Jr., and William Edgar Salter, III, Columbia, and Sol. George M. Ducworth, Anderson, for respondent.

GOOLSBY, Judge:

Grover Lee Smith appeals his conviction for the murder of Mary Zou Pressley. The issues on appeal relate to Smith's right to a speedy trial, the sufficiency of the evidence to support Smith's conviction, the State's failure to prove motive beyond a reasonable doubt, the admission of certain evidence, and the trial judge's failure to grant a mistrial. We affirm.

I.

We reject Smith's contention that the State denied him his constitutional right to a speedy trial.

The police arrested Smith for Pressley's murder on May 7, 1987. Four months later, the police also arrested Smith for the murder of Ricky Burdette. The grand jury simultaneously indicted Smith for both murders.

The State elected to try Smith for the Burdette murder first. Smith was convicted following a jury trial and the judge sentenced him to life imprisonment.

On February 8, 1988, two weeks after the Burdette conviction, the State nol prossed the Pressley indictment with leave to reindict.

About three months after the Supreme Court reversed Smith's conviction for Burdette's murder in State v. Smith, 300 S.C. 216, 387 S.E.2d 245 (1989), the grand jury on February 27, 1990, reindicted Smith for Pressley's murder. The trial, which began on April 23, 1990, resulted in a guilty verdict. The judge sentenced Smith to life imprisonment.

Smith claims the delay of his trial for the Pressley murder for nearly three years after his arrest "denied [him] his constitutional right to a speedy trial." We disagree.

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court set forth a four-part balancing test to be applied on an ad hoc basis when determining speedy trial questions. The four factors to be considered are: the length of the delay; the reason for the delay; the defendant's assertion of his right to a speedy trial; and the prejudice to the defendant. Id. at 530, 92 S.Ct. at 2192, 33 L.Ed.2d at 117. South Carolina uses this approach. State v. Chapman, 289 S.C. 42, 344 S.E.2d 611 (1986).

A.

Because the trial judge did not state whether the delay he considered was nearly three years, as claimed by Smith, or only ten months, as claimed by the State, we will assume for the purpose of this appeal that the delay was nearly three years.

While length of delay alone is not dispositive, the delay here is sufficient to trigger our review of the other three factors. See Barker, 407 U.S. at 530, 92 S.Ct. at 2192, 33 L.Ed.2d at 117 (until there is some delay that is presumptively prejudicial, there is no need to inquire into the other factors); State v. Waites, 270 S.C. 104, 240 S.E.2d 651 (1978) (a two-year and four-month delay held sufficient to warrant further inquiry).

B.

The burden was on Smith to show "the delay was due to the neglect and willfulness of the State's prosecution." State v. Dukes, 256 S.C. 218, 222, 182 S.E.2d 286, 288 (1971). We agree with the trial judge. Smith did not satisfy this burden. The delay, so far as the record shows, resulted, not from willful neglect, but from the State's decision to try Smith first for the Burdette murder and from Smith's conviction in that case. See State v. Ridge, 269 S.C. 61, 236 S.E.2d 401 (1977) (the solicitor has authority to call cases in such order as will facilitate the efficient administration of his official duties). Once Smith was convicted and sentenced to life imprisonment for Burdette's murder, as he was, it became unnecessary, as a practical matter, to prosecute him for the Pressley murder. Because the State did not seek the death penalty for Pressley's murder, an additional life sentence, were it later to be imposed on Smith, would not really have added to his punishment.

The delay in prosecuting Smith for the Pressley murder became material after the Supreme Court vacated Smith's conviction for the Burdette murder. The State thereafter promptly secured a new indictment charging Smith with the Pressley murder and prosecuted Smith therefor.

C.

The State concedes Smith asserted his right to a speedy trial in this case. He first asserted his right to a speedy trial eight months after his arrest when he learned the case involving the Burdette murder would be tried before this one. He reasserted his right to a speedy trial a week after the Grand Jury reindicted him for the Pressley murder.

D.

Smith failed to demonstrate any prejudice caused him by the delay.

His argument that he was prejudiced by the delay because the State was able to use the Burdette case as a discovery tool for this trial lacks merit in that Smith received a similar discovery advantage. Cf. Rule 5(b)(1), SCRCrimP (rule providing for reciprocal disclosure of evidence by a defendant who has requested disclosure of documents, tangible objects, and reports of examinations and tests from the State).

His argument that he was prejudiced because his witnesses' memories faded also lacks merit because the same disadvantage hampered the State. Chapman, 289 S.C. at 45, 344 S.E.2d at 613.

Regarding Smith's claim of prejudice because one of the witnesses who testified for him in the Burdette case had died before trial of the instant case, we note that this witness' testimony was nonetheless available to Smith because the witness had testified under oath in the former case. See Gaines v. Thomas, 241 S.C. 412, 128 S.E.2d 692 (1962) (case discussing the use of former testimony by a witness since deceased). At any rate, we are unable to determine whether Smith was actually prejudiced by the witness' unavailability because Smith made no proffer as to what this witness would have testified. See Chapman, 289 S.C. at 45, 344 S.E.2d at 613 (the bare assertion of a witness' unavailability is insufficient to warrant the conclusion that the defendant suffered actual prejudice thereby).

Smith's other arguments concerning prejudice are not addressed because they are made for the first time on appeal. See State v. Bailey, 298 S.C. 1, 377 S.E.2d 581 (1989) (the failure to raise an issue at trial waives the right to argue it on appeal); cf. State v. Meyers, 262 S.C. 222, 203 S.E.2d 678 (1974) (an argument on appeal is limited to the ground of objection raised below).

E.

Based on our review and balancing of the four factors discussed above, we agree with the trial judge that Smith was not denied his constitutional right to a speedy trial. Although there was a delay of nearly three years and Smith asserted his right to a speedy trial, the delay did not involve willful neglect and Smith suffered no actual prejudice because of the delay.

II.

We find no merit in Smith's contention that "the trial judge erred in failing to grant [Smith's] motions for a directed verdict of not guilty and [Smith's] motion for a new trial [on the ground] there was insufficient circumstantial evidence to establish ... [his guilt] beyond a reasonable doubt ... [or] from which his guilt could be fairly and logically deduced."

"It is a well-established rule in criminal cases that unless there is a total failure of evidence tending to establish the charge laid in the indictment, the trial judge's ruling on a motion for a directed verdict of acquittal must stand absent an error of law." State v. Nix, 288 S.C. 492, 496, 343 S.E.2d 627, 629 (Ct.App.1986); see also State v. Davis, 278 S.C. 544, 298 S.E.2d 778 (1983) (where there is evidence tending to establish guilt on a charge, neither the refusal to direct a verdict of acquittal nor the refusal to grant a new trial is error).

In addressing Smith's contention, we view the evidence and its reasonable inferences, as we must, in the light most favorable to the State. Nix, 288 S.C. at 496, 343 S.E.2d at 629. In determining whether to send a case to the jury on circumstantial evidence, the proper standard to be applied by the judge is as follows:

[T]he judge is concerned with the existence or non-existence of evidence, not its weight; and although he should not refuse to grant the motion where the evidence merely raises a suspicion that the accused is guilty, it is his duty to submit the case to the jury if there be any substantial evidence which reasonably tends to prove the guilt of the accused, or from which his guilt may be fairly and logically deduced.

State v. Edwards, 298 S.C. 272, 275, 379 S.E.2d 888, 889 (1989) (emphasis theirs), cert. denied, 493 U.S. 895, 110 S.Ct. 246, 107 L.Ed.2d 196 (1989).

We therefore examine the evidence in accordance with these principles, realizing the State is entitled to all favorable inferences where the evidence is conflicting.

The victim, Mary Zou Pressley, was Smith's wife's grandmother. About a month before the murder, Smith's wife left him to live with her paramour, Howard Kirkland. Smith had custody of the Smith's three children.

Pressley was murdered at her trailer on May 3, 1987. The pathologist estimated that the time of death was between 12:00 noon and 12:00 midnight. An autopsy revealed she died from two "blows" to the head. The pathologist's opinion was "a death by an ax."

Between 9:40 and 9:45 p.m. on May 3, 1987, Smith left his work area. Before leaving, however, he asked a co-employee to clock him out at his normal quitting time of 10:30 p.m.

Smith's workplace was fifteen miles from Pressley's trailer and around twenty-five minutes away. Smith's defense was alibi.

The next morning around 8:30 a.m., while at a local bar, Smith told Victor Latham, "Me and my wife are separated [and] the bad part...