State v. Yarborough, 3938.

• Court: Court of Appeals of South Carolina
• Citation: 363 S.C. 260,609 S.E.2d 592
• Docket Number: No. 3938.,3938.
• Parties: The STATE, Respondent, v. Ernest E. YARBOROUGH, Appellant.
• Decision Date: 31 January 2005

363 S.C. 260
609 S.E.2d 592

The STATE, Respondent,
v.
Ernest E. YARBOROUGH, Appellant

No. 3938.

Court of Appeals of South Carolina.

Heard December 13, 2004.

Decided January 31, 2005.

Rehearing Denied March 18, 2005.

363 S.C. 262

Ernest E. Yarborough, of West Columbia, pro se, for Appellant

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Jennifer D. Evans, Assistant Deputy Attorney General Salley W. Elliott, and Senior Assistant Attorney General Norman Mark Rapoport, all of Columbia; for Respondent.

HEARN, C.J.:

Ernest Yarborough was convicted of obstruction of justice in 1997. He appealed, and our court remanded the issue of jury misconduct to the extent that premature deliberations were alleged. On remand, the trial court denied Yarborough's request for a new trial, finding Yarborough had not made a prima facie showing that premature deliberations had occurred. We affirm.

FACTS

Ernest Yarborough, an attorney, was convicted of obstruction of justice for offering an alleged victim $500 to drop charges against his client. Before being sentenced, Yarborough requested a new trial, alleging juror misconduct in two respects. First, he argued the jurors improperly discussed a compromise verdict, and second, he argued the jurors deliberated prematurely. To support these allegations, Yarborough sought to offer the testimony of juror Teresa Mobley and the affidavit of juror Keisha Foster, but the trial court refused to consider evidence of the allegations. However, the court sealed the affidavit of juror Foster for the record. Foster's

363 S.C. 263

affidavit suggests the jurors may have compromised on the verdict, whereby a group of jurors agreed to vote guilty on one charge in exchange for a not guilty verdict on another charge. The affidavit does not allege that any premature deliberations took place

Yarborough was sentenced to ten years imprisonment, suspended on the service of six months, two years probation, and payment of $1,000 in costs and assessments. He appealed.

This court found the trial court committed no error in refusing to hear evidence regarding the jury's alleged discussion of a compromise verdict. State v. Yarborough, Op. No.2000-UP-059 (Ct.App.2000) (hereinafter "Yarborough I"). However, we found the trial court could have considered evidence of premature deliberations. Id. Specifically, our court stated:

Our supreme court recently held that "premature deliberations may affect fundamental fairness." State v. Aldret, 333 S.C. 307, 312, 509 S.E.2d 811, 813 (1999)....

The Aldret case sets forth procedures for trial courts to use in cases where premature deliberations are alleged. If, as here, the allegations of premature deliberations are raised after the jury renders its verdict the trial court may consider juror affidavits concerning the misconduct. Aldret, 333 S.C. at 315, 509 S.E.2d at 815. Furthermore:

If the court finds the affidavits are credible and indicate premature deliberations occurred, the court should hold an evidentiary hearing to determine whether such deliberations did in fact occur. The court may, upon the complaining party's request, "reassemble the jurors and conduct voir dire to ascertain the nature and extent of premature deliberations." If the court concludes the misconduct did not occur or did not prejudice the party alleging misconduct, the court should make adequate findings to enable a review of the decision. If the court is convinced misconduct occurred but cannot conduct an adequate inquiry because of the passage of time, the court may order a new trial.

Id. at 315-316, 509 S.E.2d at 815.

Yarborough I.

Based on that analysis, our court remanded the issue of premature jury deliberations to the trial court "for consideration

363 S.C. 264

pursuant to Aldret."¹ Id.

On remand, Yarborough sought to compel the testimony of two witnesses, Keisha Foster and Marcy Benson. Although they had been subpoenaed,² both failed to appear. Yarborough wanted Foster, the juror who previously alleged the jury had compromised on the verdict, to testify regarding the alleged premature deliberations. As to Benson, Yarborough claimed that her testimony would demonstrate that she told Foster not to participate in the case. The trial court denied the motion to compel the attendance of Foster or Benson.

Because his motion to compel was denied, Yarborough moved for a continuance to obtain affidavits from other jurors. This motion was also denied because from the time of the original motion for a new trial to the remand hearing in 2003, Yarborough did nothing to obtain jurors' affidavits. Yarborough claimed he was prevented from obtaining additional affidavits because of a letter that an Assistant Attorney General sent to the trial court judge on April 2, 1997, three days before the hearing on Yarborough's original motion for a new trial. The letter advised the trial court judge that Yarborough was contacting jurors, and asked that the judge prohibit him from doing so until the judge made a determination that that such contact was warranted. However, the trial court did not sympathize with Yarborough's purported predicament, finding that "[n]o reasonable experienced lawyer would have ceased an investigation that he believed to be appropriate based upon receipt of a copy of such a letter to the court."

Finally, Yarborough moved for a new trial based on the allegations of premature jury deliberations, the passage of...