State v. Zeigler

• Citation: 364 S.C. 94,610 S.E.2d 859
• Decision Date: 21 March 2005
• Docket Number: No. 3967.,3967.
• Parties: The STATE, Respondent, v. Antwan Lamont ZEIGLER, Appellant.
• Court: Court of Appeals of South Carolina

364 S.C. 94

610 S.E.2d 859

The STATE, Respondent, v. Antwan Lamont ZEIGLER, Appellant.

No. 3967.

Court of Appeals of South Carolina.

Heard March 8, 2005.

Decided March 21, 2005.

Rehearing Denied August 26, 2005.

Assistant Appellate Defender Robert M. Dudek, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, and Assistant Attorney General Melody J. Brown, all of Columbia; and Solicitor Robert D. Robbins, of Summerville, for Respondent.

ANDERSON, J.

Antwan Lamont Zeigler appeals from his conviction for murder. He argues the trial court erred in (1) denying his motion for a directed verdict; (2) giving an inadequate jury charge on mere presence; and (3) failing to take sworn juror testimony and denying Antwan's motion for a new trial based on allegations of juror misconduct. We affirm.

FACTUAL/PROCEDURAL BACKGROUND

Gregory McDonald, also know as Boobie, was murdered on January 19, 2001, near a trailer on Land Fill Road in Orangeburg County. On the night of the murder, McDonald traveled to the trailer with Larry Zeigler, George Zeigler, and Barry Collier. Troy Zeigler, his cousin Antwan Zeigler, James Hallman, Germaine Eric Hallman, and Kenneth Kirk Thomas were already inside the trailer when McDonald arrived.

According to Collier, when he entered the trailer, Antwan looked at him as if Collier had "done something bad." Because Antwan and Troy were whispering to each other and staring at him, Collier began to feel uncomfortable and decided to exit the trailer. Antwan and Troy attempted to prevent Collier from leaving. Antwan and Troy followed Collier outside. Collier stated he "felt unsafe." At that point, Antwan and Troy threw "one or two" beer bottles at Collier. Collier jumped in his vehicle and drove away.

Kenneth Kirk Thomas testified Antwan entered the trailer and "told Boobie he was the police," meaning McDonald was working for the police as a confidential informant. Troy, Antwan, and the Hallmans surrounded McDonald. George Zeigler, Troy and Antwan's cousin, declared Antwan "told [McDonald] he had to leave" and that Antwan and McDonald "got into an argument." Thomas observed Antwan throw a beer bottle at McDonald. Larry Zeigler, Troy's brother and Antwan's cousin, saw Troy and Eric Hallman hit McDonald. George testified he "thought that [Antwan] ... thr[e]w a punch." When McDonald attempted to leave, Troy and the Hallmans threw bottles at him. McDonald ran out of the trailer onto Land Fill Road. Troy, Antwan, and the Hallmans followed McDonald.

Approximately ten to fifteen minutes later, Antwan, Troy and the Hallmans had not returned. Thomas, Larry Zeigler, and George Zeigler decided to leave. As the men were leaving the trailer, Thomas saw Antwan and Troy walking back up the dirt road toward the trailer from about twenty feet away. When Thomas, Larry Zeigler, and George Zeigler reached "the end of the road," they noticed McDonald's body lying facedown on the side of the road. McDonald was not moving. George asked Thomas to stop the car so they could help McDonald. Thomas refused to help and instructed George: "Don't get yourself in nothing."

Thomas, Larry Zeigler, and George Zeigler drove to the Zeiglers' grandmother's house. Antwan and Troy arrived at the home after the others. Thomas testified Troy said: "I kicked that nigger to death." Antwan responded: "He deserved it." Thomas noted Troy was walking with a limp and that he thought Troy's toe was swollen.

The police, acting on a tip, located McDonald's body in a ditch near the trailer on Land Fill Road. Dr. Janice Ross, a forensic pathologist, performed the autopsy on McDonald. McDonald had suffered injuries to his eyeballs and both sides of his head, had bruising under the scalp, and bleeding around the brain. Dr. Ross opined McDonald died from "bleeding around the brain ... due to a beating." McDonald died "within minutes" from this severe beating. Dr. Ross testified the type of injuries sustained by McDonald allowed her to discount an assertion that the injuries were caused by McDonald falling down or being struck by a car. Dr. Ross concluded McDonald's injuries were a result of "blows delivered by someone else." She stated the injuries were consistent with "what [she's] seen caused by fists." The Solicitor asked Dr. Ross: "Would [McDonald's injuries] also have been consistent with him being kicked?" Dr. Ross answered: "It could."

Antwan and Troy were indicted for the murder of McDonald. The case proceeded to trial. At the close of the State's evidence, counsel for Antwan moved for a directed verdict, claiming there was "absolutely no evidence to connect either of these defendants with the murder of Mr. McDonald." Troy's attorney adopted Antwan's lawyer's argument. The State argued the evidence showed "Antwan Zeigler started an altercation in the trailer, hit the deceased, threw a bottle at him, and chased him out of the trailer," along with Troy Zeigler. The trial court denied the motion, finding "the fact that they left right after the victim did, came back without him, very shortly thereafter the body was seen, and we've got ... statements that ... one of them kicked him and the other one said he deserved it, would be strong enough circumstantial evidence to make it a jury case."

The jury found both Troy and Antwan guilty of murder. They were each sentenced to forty-five years.

ISSUES

I. Did the trial court err in denying Antwan's motion for a directed verdict?

II. Did the trial court give a proper and correct instruction on mere presence?

III. Did the trial court err in refusing to take sworn juror testimony and denying Antwan's motion for a new trial based on allegations of juror misconduct?

LAW/ANALYSIS

I. DIRECTED VERDICT

Antwan contends the trial court erred in denying his motion for a directed verdict because "there was not any direct evidence or any substantial circumstantial evidence that [Antwan] killed [McDonald]." Antwan maintains his mere presence at the scene was insufficient to prove his guilt in the murder. He asserts the "evidence against [him] only raised a suspicion of his guilt, and he was convicted based on that suspicion." We disagree.

A. Standard of Review

On appeal from the denial of a directed verdict in a criminal case, an appellate court must view the evidence in the light most favorable to the State. State v. Curtis, 356 S.C. 622, 591 S.E.2d 600 (2004); State v. Crawford, 362 S.C. 627, 608 S.E.2d 886 (App.2005); State v. Al-Amin, 353 S.C. 405, 578 S.E.2d 32 (Ct.App.2003). When ruling on a motion for a directed verdict, the trial court is concerned with the existence or nonexistence of evidence, not its weight. Sellers v. State, 362 S.C. 182, 607 S.E.2d 82 (2005); State v. Cherry, 361 S.C. 588, 606 S.E.2d 475 (2004); State v. Wilds, 355 S.C. 269, 584 S.E.2d 138 (Ct.App.2003).

If there is any direct evidence or any substantial circumstantial evidence reasonably tending to prove the guilt of the accused, an appellate court must find the case was properly submitted to the jury. Cherry, 361 S.C. at 593-94, 606 S.E.2d at 478; State v. Harris, 351 S.C. 643, 572 S.E.2d 267 (2002); State v. Follin, 352 S.C. 235, 573 S.E.2d 812 (Ct.App.2002); see also State v. Horton, 359 S.C. 555, 598 S.E.2d 279 (Ct.App.2004)

(noting judge should deny motion for directed verdict if there is any direct or substantial circumstantial evidence which reasonably tends to prove accused's guilt, or from which his guilt may be fairly and logically deduced). When a motion for a directed verdict is made in a criminal case in which the State relies exclusively on circumstantial evidence, the trial judge is required to submit the case to the jury if there is any substantial evidence which reasonably tends to prove the guilt of the accused, or from which his guilt may be fairly and logically deduced. State v. Walker, 349 S.C. 49, 562 S.E.2d 313 (2002); State v. Buckmon, 347 S.C. 316, 555 S.E.2d 402 (2001); Al-Amin, 353 S.C. at 411,

578 S.E.2d at 35; see also State v. Martin, 340 S.C. 597, 533 S.E.2d 572 (2000) (stating trial court has duty to submit case to jury where evidence is circumstantial, if there is substantial circumstantial evidence which reasonably tends to prove guilt of accused or from which his guilt may be fairly and logically deduced). On the other hand, a defendant is entitled to a directed verdict when the State fails to produce evidence of the offense charged. Cherry, 361 S.C. at 593,

606 S.E.2d at 478; Horton, 359 S.C. at 563,

598 S.E.2d at 284; State v. Padgett, 354 S.C. 268, 580 S.E.2d 159 (Ct.App.2003).

The trial judge should grant a directed verdict when the evidence merely raises a suspicion that the accused is guilty. State v. Arnold, 361 S.C. 386, 605 S.E.2d 529 (2004); State v. Schrock, 283 S.C. 129, 322 S.E.2d 450 (1984). "Suspicion" implies a belief or opinion as to guilt based upon facts or circumstances which do not amount to proof. Cherry, 361 S.C. at 594,606 S.E.2d at 478; State v. Lollis, 343 S.C. 580, 541 S.E.2d 254 (2001). However, a trial judge is not required to find that the evidence infers guilt to the exclusion of any other reasonable hypothesis. Cherry, 361 S.C. at 594,606 S.E.2d at 478; State v. Ballenger, 322 S.C. 196, 470 S.E.2d 851 (1996).

The appellate court may reverse the trial judge's denial of a motion for a directed verdict only if there is no evidence to support the judge's ruling. State v. Gaster, 349 S.C. 545, 564 S.E.2d 87 (2002).

B. Definitional Analysis of Murder

South Carolina law defines murder as "the killing of any person with malice aforethought, either express or implied." S.C.Code Ann. § 16-3-10 (2003); Sellers v. State, 362 S.C. 182, 607 S.E.2d 82 (2005). Malice is the wrongful intent to injure another and indicates a wicked or depraved spirit intent on doing wrong. State v. Kelsey, 331 S.C. 50, 502 S.E.2d 63 (1998).

Any person who is present...