S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
v.
Charles Allen McCray, Appellant.
Appeal From Florence County
Ralph King Anderson, Jr., Circuit Court Judge
Opinion No. 24841
Heard January 10, 1996 - Filed September 28, 1998
AFFIRMED
Assistant Appellant Defender Robert M. Pachak, of
South Carolina Office of Appellate Defense, of
Columbia; John C. Jepertinger and Jack W. Lawson,
Jr., both of Florence for appellant.
Attorney General T. Travis Medlock, Chief Deputy
Attorney General Donald J. Zelenka, Assistant
Attorney General Harold M. Coomhs, Jr., and
Assistant Attorney General William Edgar Salter,
III, all of Columbia; and Solicitor Dudley Saleeby,
Jr., of Florence, for respondent.
BURNETT, A.J.: Appellant was indicted by the Florence
County Grand Jury on charges of murder, conspiracy, first degree
burglary, arson, and armed robbery surrounding the death of Billy
Graham. He was convicted of first degree burglary and conspiracy and
acquitted of the three other charges. Appellant was sentenced to life
imprisonment for burglary and five years' imprisonment for conspiracy.
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STATE v. MCCRAY
ISSUES
I. Did the trial judge err by ruling appellant's co-defendants'
reasons for striking black jurors from the jury venire was not
pretextual and by failing to grant appellant a severance?
II. Did the trial judge err by admitting appellant's February
26, 1988, confession into evidence?
III. Did the trial judge err by failing to grant appellant's
motion for a mistrial after a co-defendant referred during
closing argument to appellant's failure to testify?
DISCUSSION
I.
Appellant, who is black, was tried with two co-defendants,
Roger Dewitt (Bill) Prince and Charlie Dorn Smith, who are white. Before
the jury was sworn, appellant requested a Batson1 hearing, arguing his co-
defendants excluded black jurors from the venire because of their race.
During the hearing, appellant stated he had previously moved for a
severance, anticipating there would be difficulties in selecting a jury. The
trial judge denied appellant's Batson motion, concluding Batson did not
apply to co-defendants in a criminal trial.
During the pendency of appellant's appeal, the United States
Supreme Court ruled Batson applies to criminal defendants as well as to
the prosecution. Georgia v. McCollum, 505 U.S. 42, 59, 112 S.Ct. 2348,
2359, 120 L.Ed.2d 33, 51 (1992)("the Constitution prohibits a criminal
defendant from engaging in purposeful discrimination on the ground of
race in the exercise of peremptory challenges."). Consequently, we
remanded this matter to the trial court for the purpose of conducting a
Batson hearing.
On remand, co-defendant Prince candidly stated, due to the
passage of time, he did not remember exactly why he had struck the black
1 Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69
(1986)(the Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution prohibits the State from striking a
venireperson on the basis of race).
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STATE v. MCCRAY
jurors at issue but, referring to his notes, thought he struck Juror #112
because she had two cousins who were sheriffs in New York and Juror #26
because he had a friend who worked for the sheriff s department. Co-
defendant Smith stated he did not want anyone with connection to law
enforcement on the jury. Consequently, he struck Juror #9 whose friend
worked for SLED and Juror #61 whose cousin worked for the sheriff s
department.
Appellant argued the stated reasons for striking the four black
jurors were pretextual because the co-defendants did not strike three white
jurors, Jurors #13, #88, and #181, who had similar connections to law
enforcement. The trial judge concluded the stated reasons for striking the
four black jurors were not pretextual. We agree.
Under Batson procedure as it existed at the time of appellant's
trial, the proponent of the strike was required to present an explanation
for the strike which was racially neutral, clear, reasonably specific, and
legitimate. State v. Adams, 322 S.C. 114, 470 S.E.2d 366 (1996).
Whether a proffered reason was racially neutral was to be determined by
examining the totality of the facts and circumstances in the record,
including the credibility and demeanor of the proponent of the strike.
State v. Kelley, 319 S.C. 173, 460 S.E.2d 368 (1995). If the explanation
met these criteria, the opponent of the strike had the burden of proving
the allegedly neutral reason was pretextual. Pretext could be
demonstrated by showing similarly situated members of another race were
seated on the jury.2
The record from the jury voir dire indicates the three white
jurors who were seated on the jury were not similarly situated to the four
black jurors who were struck from the jury. While the black jurors had
relatives or friends who, at the time of trial, were employed in law
enforcement, the relatives or friends of the white jurors were no longer
employed in law enforcement.3 The white jurors did not have the same
2 At the time of the Batson hearing, this Court had not yet adopted the
procedure outlined in Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131
L.Ed.2d 834 (1995). However, under Purkett procedure, we would reach
the same conclusion.
3 Juror#88 stated his friend was a former police officer. Juror #181
stated his father-in-law was a highway patrolman from 1957 to 1968.
Juror #13 stated she had acquaintances who worked for law enforcement.
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STATE v. MCCRAY
relationship to law enforcement as the black jurors. Accordingly, appellant
failed to meet his burden of establishing the co-defendants' stated reasons
for striking the black jurors were pretextual. The trial judge's findings
are supported by the evidence and should be affirmed. State v. Adams,
supra (the trial judge's findings regarding purposeful discrimination are
entitled to great deference and are to be set aside only if clearly
erroneous).
Moreover, appellant's argument that the trial judge abused his
discretion by denying his motion for a severance after his co-defendants
struck the four black jurors is not preserved for appeal. Appellant never
requested a severance for this reason. State v. Byram, 326 S.C. 107, 485
S.E.2d 360 (1997)(a party cannot argue one ground at trial then another
ground on appeal). In any event, since we conclude there was no error in
striking the four black jurors, there is no merit to appellant's argument
that he should have been granted a trial separate from his co-defendants
because they struck black jurors from the jury.
II.
Appellant contends the trial judge erred in admitting into
evidence his statement of February 26, 1988, for the following reasons: A)
he had invoked his Fifth Amendment4 right to counsel and the statement
was thereafter obtained by improper police-initiated interrogation; B) the
statement was obtained in violation of the Sixth Amendment;5 C) the
statement was obtained by trickery; and D) the statement was involuntary
under the totality of the circumstances. We disagree.
The following facts were developed during the Jackson v.
Denn6 hearing. Perry Coker of the Clarendon County Sheriff s
Department testified he arrested appellant on February 4, 1988, on
charges of burglary and criminal sexual conduct. The warrants were
signed by appellant's sister. Appellant was advised of his Miranda rights
Upon further questioning, however, she stated these acquaintances
actually worked for the building commission.
4 U.S. CONST. amend V.
5 U.S. CONST. amend. VI.
6 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).
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STATE v. MCCRAY
by Lieutenant Gamble from SLED. Appellant was not interviewed at that
time because he was intoxicated. Twenty-four to forty-eight hours later,
Coker asked appellant if he wanted an attorney appointed. Appellant
responded "this was a family matter and given a little bit of time it would
work itself out and that he did not want an attorney at that time."
Appellant remained in custody.
On February 17, 1988, appellant was arrested in Clarendon
County for the murder of Paul Bradley, Jr. Coker spoke with appellant
after the arrest and asked if he wanted an attorney appointed. Appellant
responded he "felt like at the time that his people would hire an attorney
and he did not want an appointed attorney on that charge."
However, Coker testified because of the "extra charge"
(apparently the Bradley murder charge), he felt appellant needed an
attorney. Consequently, on February 18, 1988, Coker testified he took
appellant to the Clerk of Court's office and the public defender, Harold
Detwiler, was appointed to represent appellant on the burglary and
criminal sexual conduct case. Coker again asked appellant if he wanted
an attorney for the murder charge and appellant replied he did not want
an appointed attorney for a charge of that serious a nature and would
have his sister retain a lawyer.
Four days later, on February 22, 1988, Coker and Lieutenant
Gamble were present with appellant in the sheriff's office. Before
speaking with appellant, Gamble telephoned Detwiler in appellant's
presence. Gamble testified he told Detwiler he wanted to discuss the
Bradley murder "and this other case"7 with appellant and to run a
polygraph test. As a result of the telephone conversation, appellant was
transported to SLED and he submitted to a polygraph test.
Prior to administering the polygraph test, the test
administrator, Johnny Hartley, testified he advised appellant of his
Miranda rights, including the right to remain silent, that anything he said
could be used against him in court, and the right to have a lawyer
present, and appellant signed a waiver form acknowledging he understood
each of the rights.
7 It is unclear if "this other case" refers to the burglary and CSC case
or the Graham murder case. Gamble testified he never asked appellant
about the burglary and CSC charges.
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STATE v. MCCRAY
The same day, after returning from SLED, Coker spoke with
appellant and his sister.8 Coker testified he advised appellant of his
Miranda rights, including the right to talk to a lawyer and have a lawyer
present while being questioned. Appellant then gave a statement with
regard to the Bradley homicide. Appellant's statement was reduced to
writing and he signed the document.
On February 23, 1988, Coker spoke with appellant's nephew
who was also charged with the Bradley murder. As a result of that
discussion, Coker testified he again spoke with appellant on February 24th
about the Bradley murder after appellant executed another waiver of
rights form. A tape recording of this conversation was made and later
transcribed. Appellant signed the transcription of the tape recording. In
addition, appellant signed a waiver form confirming he had been advised
of his rights prior to the February 22 questioning and at the time of his
arrest.
Coker testified during his dealings with appellant from
February 22-24, appellant referred to the death of Billy Graham.
According to Coker, appellant was willing to tell "his part" but did not
want to "tell it all" for fear of the lives of his family. Until that time,
Coker stated Graham's death was thought to be accidental.9 Coker stated
appellant said he would take a polygraph test to prove Graham's death
was not accidental.
On February 26, 1988, appellant was again transported to
SLED and a polygraph test was administered. Hartley testified he again
advised appellant of his Miranda rights and appellant signed a form
acknowledging he understood the rights. Hartley stated appellant said he
did not want an attorney and did not need one with him for the polygraph
test.
When he was returned to the sheriffs office, appellant signed a
8 It is not clear if this is the same sister who issued the earlier
warrants against appellant.
9 On June 10, 1987, Graham was found dead in his residence. The
residence had been extensively burned. The pathologist who performed
the autopsy concluded the cause of death was thermal burns and carbon
monoxide poisoning. Investigators were unable to determine the cause of
the fire.
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STATE v. MCCRAY
waiver of rights form which advised him, among other things, he had the
right to talk to a lawyer and to have a lawyer present while being
questioned. In addition, the waiver form stated appellant had been
advised of the right to remain silent and anything he said could and
would be used against him in a court as evidence against himself. At this
point, appellant told the police he had killed Graham for $20,000.
Appellant's statement was taped and later transcribed; however, appellant
did not sign the transcription. Coker testified he did not know whether
the transcription had been presented to appellant for his signature.
In relevant part, the transcription of appellant's February 26,
1988, statement is as follows:
GAMBLE: Charles now this is an informal discussion between
Capt. Coker with Clarendon County and Gary Martin with
SLED and Julius Lee with the Florence County Sheriff s Dept.
Of course, you know me. I'm J.E. Gamble with SLED but now
I want (sic) again ask you is it not true that I have given you
your rights the (sic) start with is that right, is that correct, I'm
going to read it again but this is not going to be a statement
that we are going to take from you. This is going to be a kind
of off the cup (sic) question and answer thing that we need to
compile the evidence to check this situation out for some
backup support evidence.
CHARLES: Okay.
GAMBLE: But now, (reading of the Miranda rights) do you
understand the rights I have explained to you?
CHARLES: Yes sir.
GAMBLE: Are you willing to talk with us now without a
lawyer being present?
CHARLES: Yes.
GAMBLE: Allright (sic). Well like I said Charles we just
want to, this is just for a purpose of us getting some questions
and answers. Now it is Friday, February 26, 1988 and the
time is 6:08 P.M. and we are at the Clarendon County Sheriff's
Dept. The main thing that we want to talk about Charles is
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STATE v. MCCRAY
like I said we need this information for what not . . . .
(emphasis added).
Thereafter, Gamble continued to ask appellant questions and
appellant responded.
Coker testified on every occasion he spoke with appellant,
appellant was advised of his rights. He stated no one threatened or
coerced appellant into giving a statement nor offered appellant any reward
or lenience. Coker testified appellant's only concern was for his nephew.
Coker stated appellant never stopped answering questions and never asked
for an attorney.
On cross-examination, Coker admitted he had taken a
statement from Caesar Wheeler on February 18, 1988. In this statement,
Wheeler stated appellant told him he had killed Graham. Coker further
testified law enforcement initiated every interview with appellant.
The Clarendon County Deputy Clerk of Court testified on
February 18, 1988, Detwiler was appointed to represent appellant on the
burglary and CSC charges and, later, he was appointed on the Clarendon
County murder charge. The clerk testified appellant did not sign a form
waiving his right to an appointed attorney.
Public Defender Detwiler testified on February 18 he was
appointed to represent appellant on the burglary and CSC charges and he
spoke with appellant on February 19 regarding these charges. Detwiler
stated he was later appointed to represent appellant on the Bradley
murder charge. Detwiler explained at some point he received a telephone
call from Gamble asking for permission to speak with appellant about
another charge against appellant in another county. Detwiler stated
Gamble did not explain the nature of this charge. Detwiler testified he
responded it made no difference to him, and he knew Gamble realized he
did not have authority to authorize a conversation with appellant.
A.
Under the Fifth Amendment, custodial interrogation may not
occur if an accused invokes his right to have counsel present during the
interrogation. A valid waiver of the right to counsel will not be presumed
simply from the silence of the accused after Miranda warnings are given.
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STATE v. MCCRAY
The record must show an accused was offered counsel but intelligently and
knowingly rejected the offer. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct.
1602, 16 L.Ed.2d 694 (1966).
The Fifth Amendment right to counsel is not offense-specific;
once an accused invokes the right to counsel for interrogation regarding
one offense, he may not be approached regarding any offense unless
counsel is present. Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100
L.Ed.2d 704 (1988); State v. Wilder, 306 S.C. 535, 413 S.E.2d 323 (1991).
If the accused invokes the right to counsel, interrogation must cease and
police may not conduct interrogation unless the accused initiates
communication, exchanges, or conversations with the police. Edwards v.
Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).
The record establishes appellant did not invoke his right to
counsel prior to interrogation by police on February 26, 1988, or at any
other time. Appellant never indicated he declined to speak to the
investigators unless his attorney was present. Instead, appellant signed a
document in which he acknowledged being informed of his right to the
presence of counsel during questioning and specifically declined that right.
In addition, he verbally stated he was willing to speak with law
enforcement without the presence of counsel. Appellant's prior statement
that he would retain a lawyer at some future date did not constitute an
invocation of his right to counsel for Miranda-Edwards purposes. State v.
Linnen, 278 S.C. 175, 293 S.E.2d 851 (1982)(accused did not invoke his
Fifth Amendment right to counsel where he was not reluctant to answer
questions after receiving Miranda warnings, even though he had applied
for appointed counsel and stated he intended to obtain his own attorney).10
Moreover, appointment of the public defender did not
constitute evidence of an intent by appellant to speak to police only with
counsel present. Contra Arizona v. Roberson, supra (accused invoked right
to counsel where he stated he wanted a lawyer before answering any
police questions); Edwards v. Arizona, supra (accused invoked right to
counsel where he requested counsel, interrogation ceased, and the next
morning he told police he did not want to speak to anyone); State v. Cox,
287 S.C. 260, 335 S.E.2d 809 (Ct. App. 1985), aff'd in part and rev'd on
10For Sixth Amendment purposes, accused's statement at the bond
hearing that he planned to secure counsel in the future was ambiguous
and did not constitute an invocation of the right to counsel. State v.
Draylon, 293 S.C. 417, 361 S.E.2d 329 (1987).
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STATE v. MCCRAY
other grds., 290 S.C. 489, 351 S.E.2d 570 (1986)(accused invoked right to
counsel by stating, "I'll tell you about it when I talk to my lawyer.").
Accordingly, appellant had not invoked his right to counsel on February
26th and his statement on that date was not taken in violation of the
Fifth Amendment.
B.
Appellant's February 26, 1988, statement was not taken in
violation of his rights under the Sixth Amendment. The Sixth
Amendment right to counsel attaches when judicial proceedings are
initiated against the accused. Michigan v. Jackson, 475 U.S. 625, 106
S.Ct. 1404, 89 L.Ed.2d 631 (1986)(the Sixth Amendment attaches after
initiation of adversarial judicial proceedings against the defendant). At
the time appellant confessed, judicial proceedings had not yet been
initiated against appellant for the Graham murder.11 State v. George, 323
S.C. 496, 476 S.E.2d 903 (1996), cert. denied, ____ U. S.____, 117 S.Ct. 1261,
137 L.Ed.2d 340 (1997)(Sixth Amendment right to counsel had not
attached where accused confessed to homicide before judicial proceedings
had been initiated). Additionally, although counsel had been appointed to
represent appellant on other charges, appellant had not requested counsel
in regard to the Graham murder. State v. Register, 323 S.C. 471, 476
S.E.2d 153 (1996), cert. denied, ____ U.S. ____, 117 S.Ct. 988, 136 L.Ed.2d
870 (1997)(Sixth Amendment right to counsel is offense-specific; the mere
fact counsel was appointed in one matter does not invoke the Sixth
Amendment relating to a different matter).
C.
Contrary to appellant's assertion, Gamble's statements, "this is
an informal discussion," "this is not going to be a statement," "this is going
to be an . . . off of the cup (sic) question and answer thing that we need to
compile the evidence," did not constitute police trickery, rendering
appellant's statement involuntary. Appellant has misconstrued Gamble's
statements. Gamble's statements were clearly intended to convey the
manner in which he planned to conduct his interview of appellant.
Gamble informed appellant he would be taking the statement through
questions and answers, not by appellant giving a monologue.
11Appellant's brief indicates he was indicted for charges surrounding
Graham's death during the January 1989 grand jury term.
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STATE v. MCCRAY
D.
Considering all of the circumstances surrounding appellant's
confession,, we conclude the statement was voluntarily given and properly
admitted. The statement was given after appellant was apprised of his
Miranda rights and after he signed a document indicating he waived those
rights. In addition, the transcription of appellant's statement indicates he
verbally agreed to speak to the investigators. There is no evidence
appellant was coerced into making a statement. The trial judge properly
found appellant's statement was voluntarily given. We affirm the trial
judge's ruling. State v. Von Dohlen, 322 S.C. 234, 471 S.E.2d 689, cert.
denied, ____U.S.____, 117 S.Ct. 402, 136 L.Ed.2d 316 (1996)(on appeal, the
conclusion of the trial judge as to the voluntariness of a confession will not
be reviewed unless so erroneous as to show an abuse of discretion).
III.
During closing argument, co-defendant Smith referred to
appellant's and Prince's decisions not to testify. The trial judge denied
appellant's and Prince's motions for a mistrial based on this comment.
Appellant now argues the trial judge's denial of his motion for
a mistrial was an abuse of discretion. The Court considered this issue in
the context of Prince's appeal and determined the trial judge did not abuse
his discretion by denying the motion for a mistrial. State v. Prince, 316
S.C. 57, 447 S.E.2d 177 (1993). For the same reasons, the denial of
appellant's motion for a mistrial was not an abuse of discretion.
AFFIRMED.
TOAL, MOORE, JJ., and Acting Associate Justice George
T. Gregory, Jr., concur. FINNEY, C.J., concurring in result only.
p.13