State v. Wilkins

• Decision Date: 02 November 1992
• Docket Number: No. 1911,1911
• Citation: 310 S.C. 81,425 S.E.2d 68
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. George R. WILKINS, Appellant. . Heard

Page 68

425 S.E.2d 68

310 S.C. 81

The STATE, Respondent, v. George R. WILKINS, Appellant.

No. 1911.

Court of Appeals of South Carolina.

Heard Nov. 2, 1992.

Decided Dec. 7, 1992.

Certiorari Denied May 5, 1993.

Andrew J. Savage, III, and David L. Savage, Charleston, for appellant.

Atty. Gen. T. Travis Medlock, Asst. Attys. Gen. Harold M. Coombs, Jr., and William Edgar Salter, III, Columbia, and Sol. Charles Molony Condon, North Charleston, for respondent.

GOOLSBY, Judge:

George R. Wilkins was convicted following a jury trial of trafficking in cocaine ("trafficking"), possession of cocaine with intent to distribute ("PWID"), and conspiracy to violate South Carolina narcotics laws ("conspiracy"). The questions on appeal relate to the State's nondisclosure of certain material asserted to be exculpatory, the failure of the trial judge to disqualify the venire, a comment made by the solicitor during his opening statement, the defense of double jeopardy, and the trial judge's refusal to accept a guilty plea to one count of a multi-count indictment. We affirm.

On March 16, 1989, City of Charleston police officers gave $900 in currency, which they had earlier photocopied, to an informant for use in a drug buy. The informant had told the police of an acquaintance's plan to buy drugs in Florida. He said two men in a silver Mercedes Benz would drive to Florida, pick up the drugs, and return on a certain date.

The next day at the time specified by the informant, a silver Mercedes Benz carrying Wilkins and his codefendant, Lawrence Toback, entered South Carolina on Interstate-95. The police stopped the car, which was owned by Wilkins' brother, and searched it. They found a package of cocaine in the glove compartment and a brown canvas bag containing a package of cocaine, certain personal items, and a letter addressed to Wilkins. Wilkins, the officers discovered, had the $900 that they had given the day before to the informant.

I.

On August 25, 1989, six months after Wilkins' arrest, his attorney directed a request to the State for information subject to disclosure pursuant to Rule 5(a), SCRCrimP. The request also sought Brady material. It did not specifically ask for any material concerning Toback.

On August 27, 1989, Toback fled the jurisdiction after posting a cash bond. Toback had not been apprehended by the time trial began.

On November 30, 1989, having received no discovery material, Wilkins' attorney filed a motion to compel.

The State waited until February 1, 1990, some six weeks before trial, to give Wilkins a North Carolina police report on Toback's drug activities. The report outlined a five-year investigation into Toback's illegal drug activities following his arrest in Florida for marijuana smuggling. One entry concerned an inquiry made in late January 1989 by the Mt. Pleasant Police Department in which it indicated Toback had been arrested in Mt. Pleasant for possession of cocaine and possession of a weapon by a felon.

A.

Wilkins argues the trial court erred in refusing to dismiss the charges against him on the ground that the State failed to comply with Rule 5's disclosure requirements. He claims the State's delay in providing the police report interfered with any defense he might have had to the charges against him based on "mere presence without knowledge." Had he known the report existed, he suggests, he might have interviewed Toback to corroborate his defense.

Wilkins' Rule 5 argument fails because he can show no prejudice caused by the State's delay in complying with his discovery request.

Under Rule 5(a)(3), SCRCrimP, the State had 30 days to respond to Wilkins' request for disclosure. By the time the State's response became due, Toback had fled the jurisdiction. Wilkins, then, was in no different position on the date of disclosure than he would have been had disclosure been timely made.

B.

Wilkins also argues the trial court erred in not dismissing the charges against him because the State failed to satisfy timely the requirements of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), regarding disclosure of evidence favorable to an accused.

Wilkins has not convinced us that the asserted untimely disclosure of the report warrants reversal in this case under Brady.

At best, Wilkins' request, so far as it related to information concerning Toback, was a general request for exculpatory matter. We mentioned that nowhere did Wilkins specifically request information concerning his codefendant.

When there has been no request or only a general request for information, no constitutional violation for a prosecutor's failure to disclose exculpatory information arises unless the failure "is of sufficient significance to result in the denial of the defendant's right to a fair trial." United States v. Agurs, 427 U.S. 97, 108, 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342, 352 (1976); accord State v. Gathers, 295 S.C. 476, 369 S.E.2d 140 (1988), aff'd 490 U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989). "The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish 'materiality' in the constitutional sense." Agurs, 427 U.S. at 109-10, 96 S.Ct. at 2400, 49 L.Ed.2d at 353. The constitutional standard of materiality is met only "if the omitted evidence creates a reasonable doubt that did not otherwise exist." Id. at 112, 96 S.Ct. at 2402, 49 L.Ed.2d at 355. "This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial." Id. at 112-13, 96 S.Ct. at 2402, 49 L.Ed.2d at 355.

We entertain no reasonable doubt about Wilkins' guilt. The State presented at trial convincing evidence, outlined above, that Wilkins was involved beyond his asserted "mere presence without knowledge" at the scene of a crime.

II.

As the trial judge began the jury selection process, Wilkins' attorney, following an inquiry by the clerk of court, indicated Wilkins wanted a "formal arraignment." The clerk of court then arraigned Wilkins, reading the three-count indictment that alleged trafficking in count one, PWID in count two, and conspiracy in count three. When asked whether he was guilty or not guilty, Wilkins replied, "Guilty to count two." After the State announced it was ready to proceed on the other two counts and the trial judge asked how Wilkins was pleading to those counts, Wilkins' attorney replied Wilkins was not guilty "as to counts one and three."

All this took place in the presence of the venire.

Following Wilkins' arraignment on the indictment, the trial judge began the jury selection process once again. He addressed a number of questions to the venire to determine the competency of its members to serve, including some questions submitted by Wilkins' attorney.

The jury was then chosen.

Afterward, but before the jury could be sworn, Wilkins' attorney moved to disqualify "this panel ... because the State chose to arraign my client in front of this panel and he has prejudiced himself in front of this panel by entering a plea of guilty to [PWID]." He also argued "a plea of guilty to [PWID] disallows the State from proceeding on [trafficking]." The trial judge denied Wilkins' motion to disqualify "the panel." He neglected to rule, at least expressly, on the issue of whether the State could proceed on the trafficking count.

The jury was then sworn.

Before the trial could start, however, the State indicated it would agree to a guilty plea from Wilkins to PWID.

Immediately afterward and apparently outside the jury's presence, Wilkins tendered a plea of guilty to PWID. He signed a form prepared by the clerk of court in which he stated, "I appear in person and plead guilty to [PWID]."

The trial judge questioned Wilkins' counsel concerning Wilkins' understanding of the charges contained in the indictment, of the possible sentence for PWID, and of the State's position regarding the trafficking count. The trial judge also questioned Wilkins concerning the voluntariness of his plea and his knowledge of the right to a trial by jury, of his right to cross-examine the State's witnesses and to call witnesses of his own, of the burden of proof required to convict him, and of his right to testify. He further questioned Wilkins regarding whether he was satisfied with his attorney's services, whether his attorney had failed to do anything Wilkins wanted him to do, whether Wilkins was under the influence of alcohol or drugs, whether he had any complaints against the solicitor's office or the police, and whether he was in fact guilty of PWID.

When, however, Wilkins' attorney wanted to have Wilkins' guilty plea "taken subject to ... pre-trial motions and the court's rulings on those motions," the State objected.

The trial judge thereupon advised Wilkins' attorney that he would "allow him to withdraw his plea...." Following a conference between Wilkins and his attorney, the latter asked the trial judge to permit Wilkins "to withdraw his plea of guilty for purposes of a legal nature only, not of a factual nature." The trial judge responded, "I'll allow him to withdraw it."

Before the jury could be brought back, the solicitor asked whether, during his opening statement, he could remind the jury "of what Mr. Wilkins did when he was arraigned in front of them." When the trial judge asked Wilkins' attorney what his position was "on the ability of the solicitor to talk about what has gone on before the jury already," he replied, "I can't tell the solicitor how to try his case, Your Honor. Whatever he does he'll have to live with." The trial judge then ruled, "All right, sir. Solicitor ... with no objection, you can make whatever remarks you want on whatever went on in the courtroom in front of the jury.... That means you can tell the jury that he said when he was...