State v. Stone
| Decision Date | 17 September 1986 |
| Docket Number | No. 22623,22623 |
| Court | South Carolina Supreme Court |
| Parties | The STATE, Respondent, v. Earl Jerome STONE, Appellant. . Heard |
Asst. Appellate Defender Stephen P. Williams, Office of Appellate Defense, Columbia, for appellant.
Atty. Gen. T. Travis Medlock, Asst. Attys. Gen. Harold M. Coombs, Jr., and Norman Mark Rapoport, Columbia, and Sol. George M. Ducworth, Anderson, for respondent.
Appellant was convicted of criminal sexual conduct with a minor in connection with a sexual assault on his seven-year old stepdaughter. We affirm.
Appellant's two previous trials on this charge ended in mistrials. On the morning of the second day of the third trial, an article concerning the case appeared on the front page of the local newspaper. The first page of the article stated appellant's two previous trials had ended by mistrial, and pointed out that he was also charged with sexually assaulting his other two stepdaughters. The remainder of the article, which appeared on page six, recited testimony given during the trial.
Defense counsel moved to have the jury polled to determine if any of the jurors had read the article and, if so, to grant a mistrial. The trial judge questioned each juror individually, out of the presence of the others, concerning the article. Juror Sherrald had read the article, but stated he had not formed any opinion about the case. Juror Rhodes read that portion of the article which appeared on page one, but he did not read the conclusion on page six. Rhodes said he could decide the case based only on the evidence presented at trial.
The trial judge found the article prejudicial to appellant, but specifically found neither juror had been prejudiced by reading it. Nonetheless, he excused Juror Sherrald, replacing him with the alternate. Juror Rhodes was allowed to remain on the jury.
Appellant asserts error in allowing Juror Rhodes to remain on the jury. Since both jurors read the portion of the article which was prejudicial to appellant, he argues both should have been excused.
When newspaper articles concerning a criminal case appear during the trial of the case, the court should determine whether the content of the article is prejudicial to the defendant. The judge then must determine if any of the jurors have read the article. If so, he must invoke the appropriate curative measures. State v. Salters, 273 S.C. 501, 257 S.E.2d 502 (1979).
In this case, the trial judge determined the article was prejudicial, and properly conducted the voir dire to determine which jurors had read the article. We must now determine what curative measures are adequate, a question left unresolved by our decision in Salters.
The goal of the corrective measures is to insure the defendant's right to a fair trial has not been compromised. Cautionary instructions or substitution of alternate jurors may cure the prejudice caused by the publicity. United States v. Hankish, 502 F.2d 71 (4th Cir.1974). The determination of what curative measures are appropriate in a given case rests in the sound discretion of the trial judge. He should exhaust other methods to cure the prejudice before aborting a trial. Id. at 77.
Here, the trial judge determined that both jurors who read the article were able to decide the case based only on the evidence presented. We believe this is sufficient to cure the prejudice created by the article. See, e.g., State v....
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