State v. Wills

• Decision Date: 22 August 2014
• Docket Number: No. 27416.,27416.
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Theodore David WILLS, Petitioner. Appellate Case No. 2010–178266.

409 S.C. 183

762 S.E.2d 3

The STATE, Respondent,

v. Theodore David WILLS, Petitioner.Appellate Case No. 2010–178266.

No. 27416.

Supreme Court of South Carolina.

Heard Dec. 6, 2012.

Decided July 16, 2014.

Rehearing Denied Aug. 22, 2014.

Appellate Defender LaNelle Cantey DuRant, of South Carolina Commission on Indigent Defense, of Columbia, for Petitioner.

Attorney General Alan McCrory Wilson, Chief Deputy Attorney General John W. McIntosh, Senior Assistant Deputy Attorney General Donald J. Zelenka, and Assistant Deputy Attorney General S. Creighton Waters, all of Columbia; and Solicitor John Gregory Hembree, of Conway, for Respondent.

Justice PLEICONES.

We granted certiorari to review the decision of the Court of Appeals affirming the circuit court's decision to admit petitioner's statement made in connection with a proffer agreement. State v. Wills, 390 S.C. 139, 700 S.E.2d 266 (Ct.App.2010). We affirm.

The first question raised by this case is whether a criminal defendant may waive the protections afforded by Rule 410, SCRE.¹ If we decide that he may, the next issue is whether the Court of Appeals was correct in holding that petitioner did so here.² We answer both questions “yes.”

Rule 410, SCRE, titled “INADMISSIBILITY OF PLEAS, PLEA DISCUSSIONS, AND RELATED STATEMENTS,” provides:

Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:

(1) a plea of guilty which was later withdrawn;

(2) a plea of nolo contendere;

(3) any statement made in the course of any court proceedings regarding either of the foregoing pleas; or

(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel.

We agree with the Court of Appeals that a criminal defendant may waive the protections afforded by Rule 410. Here, petitioner and his attorney executed an agreement wherein petitioner agreed that if a subsequent polygraph examination demonstrated deception, inconsistencies, or that petitioner shot the victim, then “the terms of this proffer are null and void and any statements made by [petitioner] may be used against him by the State for any legal purpose, including ... disposition of charges through plea or trial ... and impeachment.” Proffer Agreement section 2 (emphasis supplied). Further, section 7 provides in relevant part not only that petitioner's violation of the Agreement would render the Proffer's terms null and void, but also that “the State shall have the right to use any information obtained through this Proffer in any fashion, whether direct [or] collateral....” Applying the rules of contract construction here, “regardless of the agreement's wisdom or lack thereof,” we agree with the Court of Appeals that, on this record, petitioner's Proffer Agreement, entered with the advice and consent of counsel, waived the protections of Rule 410, SCRE.

The decision of the Court of Appeals is

AFFIRMED.

TOAL, C.J., KITTREDGE, J., concur.

BEATTY, J., dissenting in a separate opinion in which HEARN, J., concurs.

Justice BEATTY.

I dissent as I believe the majority reaches an incorrect result because it fails to appreciate and analyze the significant issues presented by this case. For reasons that will be discussed, I would find the trial judge erred in allowing the State to use Petitioner's statement during its case-in-chief as it violates principles of contract law and Rule 410 of the South Carolina Rules of Evidence.³ More importantly, a decision authorizing the State to present a false statement to the jury in order to procure a conviction should not stand as it unquestionably compromises the integrity of our system of justice. Accordingly, I would reverse the decision of the Court of Appeals and remand the matter for a new trial.

I. Factual/Procedural History

On October 13, 2001, officers with the Horry County Police Department were called to investigate a remote location off of Highway 90 in Horry County. Upon arrival, they discovered the body of a young male who had been shot two times in the back. Law enforcement, using fingerprint evidence, later identified the victim as Julian Lee. As a result of the investigation, Petitioner was charged with accessory after the fact and obstruction of justice.

In August 2005, Detective Allen Large of the Horry County Police Department was contacted by the Fifteenth Circuit Solicitor's Office to interview Petitioner, who was incarcerated at J. Reuben Long Detention Center. In response to a plea offer from the State, Petitioner and his attorney, Bill Diggs, met with Detective Large, Detective Neil Livingston, and Assistant Solicitor Scott Hixson to discuss a proffer agreement.⁴ In essence, the proffer agreement provided that in exchangefor Petitioner's truthful account of the events surrounding the victim's murder the State would take into consideration his cooperation in offering a sentence recommendation.

The proffer agreement provided in relevant part:

1. Theodore David Wills Jr. shall submit himself to agent(s) of the State for the purpose of debriefing regarding this matter and all other matters materially bearing on this matter. He shall be completely truthful concerning his involvement in this matter, and completely truthful concerning the involvement of all other individuals in this matter. He shall truthfully and completely answer all questions posed by agent(s) of the State bearing materially on this matter and shall provide without prompting all information concerning this matter in a complete and truthful manner even if such information is not elicited by agent(s) of the State by direct question. Any and all information provided by Theodore David Wills Jr. under the terms of this proffer may be recorded in any fashion at the election of the State;

2. Theodore David Wills Jr. shall submit himself to a polygraph examination(s) to verify all information provided to the State at the election of the State. The polygraph examiner(s) shall be selected by the State and, for the purpose of this Proffer, are designated agent(s) of the State; upon examination(s) by polygraph, if the responses given by Theodore David Wills Jr. show deception, are inconsistent with information previously provided or indicates he is the person or one of the persons that shot the victim, the terms of this proffer are null and void and any statements made by Theodore David Wills Jr. may be used against him by the State for any legal purpose, including, but not limited to, considerations for charging, bond, disposition of charges through plea or trial of Theodore David Wills Jr. and impeachment;

....

4. In return for Theodore David Wills Jr.'s full compliance with all terms stated within this Proffer, statements provided during his debriefing will not be used in a criminal prosecution currently pending against him by this Office. The State will not seek any additional charges against Theodore David Wills Jr. in connection with the subject of this Proffer;

....

7. Violation of any term of this Proffer renders all terms null and void; the State shall have the right to use any information obtained through this Proffer in any fashion, whether direct [or] collateral to this matter.

Petitioner and his attorney signed the proffer agreement. Subsequently, Petitioner signed a written waiver of his Miranda⁵ rights. Petitioner then provided a statement that was recorded in the presence of his attorney, the detectives, and the assistant solicitor. In his statement, Petitioner claimed he drove his brother Donnell Green, Mark Willard, and the victim to the remote location during the early morning hours of October 13, 2001. According to Petitioner, he and the victim believed they were going to rob some drug dealers and “score some quick cash.” Petitioner stated he saw Willard shoot the victim and that he heard a second shot as he ran away.

On September 19, 2005, Petitioner submitted to a polygraph examination, which was administered by SLED Agent Ricky Charles's intern. Based on his review of the polygraph results, Agent Charles concluded that Petitioner was deceptive in his statement. Agent Charles did not specify how Wills was deceptive or whether the deception was material to the agreement. As a result, the State claimed the proffer agreement was null and void and proceeded to charge Petitioner with murder.

At the beginning of the trial, the State indicated it intended to use Petitioner's statement as part of its case-in-chief. Counsel for Petitioner objected to the admission of the statement as it was given “in exchange for participation by the State in a plea agreement process.” Counsel challenged the proffer agreement as “inherently flawed” because an “unreliable” polygraph examination was used to determine Petitioner's truthfulness. Based on these circumstances, counsel asserted the statement was involuntary and should be suppressed.

In response to defense counsel's objection, the judge held a hearing pursuant to Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). After hearing arguments and reviewing the recorded statement, the trial judge found the statement was given voluntarily as Petitioner was apprised of his Miranda rights and signed the proffer agreement. The judge, however, cautioned the parties not to make any reference to the use of a polygraph examination. The judge also permitted defense counsel...