State v. Williams, 20186

Decision Date10 March 1976
Docket NumberNo. 20186,20186
Citation266 S.C. 325,223 S.E.2d 38
PartiesThe STATE, Respondent, v. Christine WILLIAMS et al., Appellants.
CourtSouth Carolina Supreme Court

Roy T. Stuckey, Columbia, for appellants.

Atty. Gen. Daniel R. McLeod, Asst. Atty. Gen. Joseph R. Barker and Staff Atty. Perry M. Buckner, Columbia, for respondent.

LITTLEJOHN, Justice:

Christine Williams, James A. Kennedy, and his brother Gary L. Kennedy were indicted for the crime of armed robbery and convicted by a jury in the York County Court of General Sessions. James Kennedy and Christine Williams were sentenced to 25 years, and Gary Kennedy was sentenced to 20 years.

All three have appealed their convictions, asserting error in seven particulars, as follows:

1. That there was insufficient evidence to support a conviction of armed robbery.

2. Deprivation of the defendants' right to a fair trial by the introduction of prejudicial testimony of the robbery victim's murder,

3. That the trial judge gave an erroneous definition of armed robbery in his charge to the jury,

4. The failure of the trial judge to submit an alternative verdict of robbery,

5. Failure of the trial judge to grant a new trial when it was learned that some jurors may have served at a previous trial of James Kennedy,

6. Deprivation of defendants' right to effective assistance of counsel on appeal due to the lack of a record of the closing arguments of counsel, and

7. Ineffective assistance of counsel at trial.

After careful consideration of the record in this case, we overrule defendants' exceptions and affirm the lower court's verdict.

Robbery is a felony at common law. The punishment for plain robbery, or what we sometimes call highway robbery, is imprisonment for not more than ten years. Section 16--333, Code of Laws for South Carolina (1962) As amended (1975 Supp.), provides that when a robbery is committed 'while armed with a pistol,' the penalty may be as much as twenty-five years imprisonment at the discretion of the judge. We refer to this as 'armed robbery.' Appellants concede that there is ample evidence to convict of common law or highway robbery, but submit that the evidence does not warrant a finding that the robbery was committed while armed with a pistol. If this contention is correct, the verdict of the jury cannot stand.

It is a well-settled rule that on appeal from a refusal to direct a verdict of not guilty, we must view the evidence, and all the inferences that may reasonably be drawn therefrom, in a light most favorable to the State. State v. Wharton, 263 S.C. 437, 211 S.E.2d 237 (1975). We review the evidence adduced at the trial in light of this rule.

It appears that the victim, 'Boy' Burris, was taken to a liquor store by his friend, Tommy Sitgraves, late in the afternoon or early evening of May 1, 1974. While there, Burris cashed a check in the amount of some three hundred dollars. The defendant Christine Williams was also at the liquor store and commented upon the fact that Burris had a lot of money and that she was 'going to get some of that money.' Waiting in the Williams' car, just outside the liquor store, were her friends Sophia White, Lula Murray and Gussie Kennedy. Gussie Kennedy is the mother of defendants James Kennedy and Gary Kennedy. James Kennedy was Christine Williams' boy friend. As the Sitgraves' car and the Williams' car were about to leave, Christine Williams asked Sitgraves where Burris lived. He responded by telling her that Sophia White could tell her. Sophia White was Burris' cousin.

The Williams car and its occupants went to the home of Gussie Kennedy, where whiskey drinking took place. About 8:30 or 9 o'clock, Christine Williams, Sophia White and Gary Kennedy drove over to Burris' house, but he was not at home. They later returned and found him there. The four began riding around and drinking. Sophia White testified that Gary Kennedy got out of the car a little bit later on. At about 10 o'clock, Christine Williams stopped the car, for no apparent reason, near the corner of Maple and Byers Streets. When she did, two men, identified as Gary and James Kennedy, opened the door and dragged Burris from the car. She saw no pistol at that time. They began tearing his clothes off, and Burris was last seen, scantily clad, running over a hill towards Virginia Street. James and Gary Kennedy were following him. She testified that Gary Kennedy was dressed in brown khaki pants, with a brown vest and no shirt, at the time. She also testified that she had seen a pistol in Christine Williams' purse when she visited her home earlier in the afternoon.

Burris was next seen at the home of Pearl and Henry Massey at 90 Virginia Street. He was in his underwear and was asking directions to get home. Both Henry and Pearl Massey testified without objection. Henry testified that Burris came to his house between 10 and 10:15 p.m. He quoted Burris as having said that some boys had taken everything he had. Henry showed him which direction to go to get home and returned to watching the television. Shortly, he heard shots, and his wife exclaimed that she had seen someone shoot Burris. Pearl Massey testified that she had watched Burris walk away from the house, and that she saw a light-skinned black man, wearing khaki pants and no shirt, come out of the bushes and shoot him. He died from the wound. On cross-examination, Pearl stated that she could not say whether one of the defendants did, or did not, shoot Burris.

The testimony relative to the shooting was relevant and proper as it tended to prove that the robbery was committed while at least one of the defendants was armed with a pistol. This was, of course, an important part of the State's case. The wrongful killing was not admissible in evidence to prove either a murder or the robbery. It was admissible to prove that one of the defendants was armed at the time Burris was deprived of his property through the use of force. His empty billfold was found in the vicinity. The following facts made evidence for the jury to consider on the 'armed weapon' issue:

1. Christine Williams had a pistol;

2. James and Gary Kennedy forced Burris out of the car and were last seen chasing him over the hill, towards Virginia Street;

3. very soon thereafter, Burris showed up on Virginia Street and was shot by an assailant, whose description warranted the conclusion that he was Gary Kennedy;

4. the Massey home, where the shooting took place, and the corner of Maple and Byers Streets, where Burris was taken from the car, are close in point of distance; and

5. the two incidents were close in point of time.

Defendants argue that because Pearl Massey could not identify either of the male defendants as the one who had the weapon, her testimony should not have been considered. We cannot agree.

Pearl Massey could not truthfully say whether one of the male defendants shot Burris. Her testimony, if anything, was one of equivocation on this point. But her description of Burris' assailant was relative, circumstantial evidence on the issue of whether one of the defendants was armed with a weapon during the robbery. Her description of Burris' assailant was similar to Sophia White's identification of Gary Kennedy on the night of the robbery, and the jury was entitled to weigh this description, along with other circumstantial evidence, in making their determination of guilt. We have heretofore held that a case may be based on a chain of circumstantial evidence. State v. Bellue, 259 S.C. 487, 193 S.E.2d 121 (1972). This is such a case.

Considering all of the evidence, we cannot say the trial judge erred in refusing defendants' motion. When a motion for a directed verdict is made, the trial judge is concerned with the existence or nonexistence of evidence, not with 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 is evidence, either direct or circumstantial, which reasonably tends to prove the guilt of the accused, or from which guilt may be fairly and logically deduced. State v. Wheeler, 259 S.C. 571, 193 S.E.2d 515 (1972); State v. Jordan, 255 S.C. 86, 177 S.E.2d 464 (1970).

Next, defendants assign as error the introduction of the Masseys' testimony concerning Burris' murder. We have set forth this testimony above, to which no objection was raised by defense counsel at trial. Based on established precedent, this question cannot be raised for the first time on appeal. State v. Bellue, supra. But even were we to consider the question, we would find no error. The testimony of the Masseys was receivable as circumstantial evidence of 'necessary parts of the proof of an entire deed.' This testimony was necessary and relevant to show an inseparable element of the crime of armed robbery. I Wigmore on Evidence § 218 at 719 (1940).

Defendants' next two assignments of error concern the jury instructions.

During his charge to the jury, the trial judge defined armed robbery. He charged the jury that it could find the defendants either guilty or not guilty...

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