*1 commit, intended to felony which he and would remand the indictment for burglary. with instructions to quash STATE, Sylvester ADAMS, Appellant. Respondent, Lewis (283 582) S. E. *3 David I. Brack and L. Atty. Sweeny of S. C. John Chief Columbia, Appellate Defense, appellant.
Office of for Atty. Gen Daniel R. McLeod and Asst. Gen. Attys. G. Kay Funkhouser, Crowe Lindy Columbia, and P. Sol. William York, L. Ferguson, respоndent. for 6, October 1981.
Harwell, Justice: Sylvester Lewis Adams was found guilty housebreaking and of the and murder kidnapping of Brian Chambers in the first phase of a bifurcated capital trial. He was sentenced to death upon jury recommendation at the conclusion of the second phase. convictions, We reverse the vacate the death penalty and remand for a new trial.
118 judge during that trial erred asserts trial by of the to phase refusing or innocence guilt trial to notes his counsel which one of
permit inspect to referring his actually during State’s witnesses police concerned, His the chain of testimony. testimony primаrily, at trial. We custody agree evidence introduced physical trial counsel an permit appellant’s oppor that the to refusal notes for of cross-examina tunity purposes to examine these error. tion reversible constitutes 559, S. v. S. C. 258 E. 565 Tyner, In State we stated: (1979) is used to refresh his
“Where a document witnеss recollection, has a to have the memo- right the adverse party to him for cross-examination.” randum available Evidence, also, Section P. 17 See McCormick on ((2d) recently principle extended applied Ed. We 1972). to opportunity counsel opposing to allow Tyner stated in memory uses to refresh his with prior a witness examine notes Hamilton, S. C. S. E. (2d) (1981). trial. State inspect allowed to any have been Counsel should referred to. actually witness that the *4 him. do that to I did not “A. in this you, what’s statement— asking I’m
“Q. do that. I not
“A. did read the didn’t you? statement asking you, you I’m “Q. “A. Right. cruel that things you of the most and brutal Is that one
“Q. of? can even think again that now?
“A. Repeat this, statement, is one whoеver did this The contents of “Q. happened, that has ever things cruel and brutal most it, did whoever It’s de- there is mine. those words on
“A. None of those tectives’. asking you were I’m another say they your’s. I didn’t
“Q. worst, things anybody cruel of the Isn’t one question. Isn’t it? boy? do to a little could “A. Yeah. he, [sic], leave does And that doesn’t deserve to
“Q. person that did that him. I if that’s
“A. was made don’t know up, Those words statement, I not, really made up truth or but the words on say. can’t like this ought to something that would do
“Q. Anybody die, shouldn’t they? were I if the truth. The words
“A. can’t that’s really say made up on statement. if this actually asking you I’m not that. I’m
“Q. saying die, they? it shouldn’t whoever did should happened, Yeah, “A. it. whoever done
“Q. That’s all.” trial, in a capital raised at objection no Although timely vitae. Thus the record case this Court will review favorem that the solici- agree argument appeal we with appellant’s prejudicial and constitute were questions highly improper tor’s error. proceed- for a bifurcated
Our law on trials capital provides 16-3-20, Carolina (1976). Laws of South Section Code of ing. the defendant is innocent trial is whether At in the first issue in the second trial is At issue whether murder. or guilty die. to live or the defendant deserves his self- privilege against defendant waives aWhen the witness in the to take stand electing incrimination himself trial, opens impeаchment he phase first innocence his or guilt. Given issues related as to only testifies defendant who capital proceeding, structure *5 120
in the first nonetheless choose to exercise his phase may privil- at Thus, the second and ege phase testify. not to delve into the area while a punishment cross-examining defendant the during guilt-or-innocence of the is a phase trial violation of his con- stitutional coerced .guarantee against self-incrimination.
Beyond the violation, questions serious Fifth Amendment the propounded here not then were irrelevant to the issue only before the jury, also were they designed rеsponse, create based on opinion, to an ultimate issue reserved for the going jury’s determination. The effect of the unwit- having appellant state tingly that he deserved the death sentence to the prior jury even having considered the matter created an “arbitrary factor” this 16-3-25(C) intolerable to Cоurt. Section of the Code.
At the of conclusion the presentation of and the evidence of arguments trial, counsel at the first by phase the the trial judge undertook the to declare law to the jury, but the during course of his instructions he somehow charged death 1974 act. penalty The 1974 which legislation pro vided fоr death mandatory sentences had uncon been declared stitutional this Court repealed by the legislature prior this trial. our decision State v. See in Rumsey, 267 S. C. 236, 226 S. E. 894 (2d) based on decisions (1976), Carolina, United States Court Woodson Supreme v. North 280, 2978, 428 U. S. 96 S. Ct. 49 L. Ed. 944 (2d) (1976) and Louisiana, Roberts v. 428 U. S. 96 S. Ct. 49 L. Ed. Although (1976). proper capital punishment law was at chаrged the second subsequently phase trial, at trial cured his error judge never first phase. appellant argues improper charge was a reversible error. agree. We
This matter does not merit lengthy discussion. Article V, Section the South Carolina Constitution mandates that shall judge declare 'the the jury. law to It wоuld seem axiomatic that the law declared must current correct law. A full curative instruction have should immediately been given jury. To simply impose 1977 Act super over the unconstitutional only 1974 Act served to foster confusion and prejudice. an Adams’ confession issue. trial became
At voluntariness, the State intro In оrder to establish its officerswho heard and testimony police duced the *6 an testimony attorney. it as as the of transcribed well Thomas McKinney was originally appointed represent to the time appellant. At of his testified appointment, McKinney that he Adams in a found state of render a con- willingness to fеssion that but he advised this. officers against police The also asserted that Adams was a con- quite give determined to fession. stated he McKinney that had discussions with lengthy Adams the confession about matter and went line line over by it with Adams to assure its veracity. to
Subsequent initial but McKinney’s representation prior trial, to thе Adams with expressed his disatisfaction McKinney and advanced an assertion his confession had that been co- erced. later the court to be relieved as McKinney petitioned counsel for Adams. This was petition granted. the course of
During below, the trial the State used Mc- Kinney to describe circumstanсes of the taking confession. The trial advised judge that confidential matters and, fact, could not disclosed be in only conversations held in presence law enforcement officers were directly dis- However, closed on the stand. did McKinney describe one as private conversation follows:
"... I wanted to discuss the him matter privately with I because wanted him look over for a period of time. I wanted talk to him about seriousness of what was about and take what had place taken place what was happen- ing. That is what we did.”
Then in later direct McKinney’s testimony, following colloquy place: took
“Q. Nоw Mr. McKinney, from your experience and your observation of this defendant and time, what this went on at 23rd, October is it your opinion that this statement was given freely? Yes, sir,
“A. it is.
“Q. Voluntary? Yes,
“A. sir.” privilege his was alleges attorney-client that his former at- opinion violated discourse since in made part observations torney apparently based agree. conversations. We confidential during attorney-client State recently privilege discussed the We Dosier, 3/4/81, filed that: Opinion stating No. “The is a privilege based that the upon public policy best interest is society served by promoting relationship be- tween attorney client utmost whereby cоnfidence in the all continuing confidential secrecy of disclosures made by the client within is maintained.” relationship We believe the spirit of this policy dictates that not only is the conversation protected but the entire setting con- fidential conference protected must well. To lend privilege to the words spoken but to allow disclosure of pro- fessional impressions from the drawn manner of their delivery *7 all but destroys the substance privilege.
The State that the argues had appellant his waived attorney- client privilege by repudiating voluntariness of his confes- sion and disputing the of propriety McKinney’s representation prior to trial.
Thеse circumstances support do not of allegation waiver. When McKinney was called the State by testify, the de- fense, course, Therefore, had presented. not been the State clearly delved into the attorney-client relationship trial before Adams himself any made disclosures.
Section 16-3-910 provides that: confine, seize, shall unlawfully “Whoever de inveigle, coy, kidnap, carry away person abduct or other any by law, means whatsoever without any authority of except when thereof, minor is or aby parent a seized taken shall be guilty and, conviction, shall upon punishment suffer the felony unless sentencеd murder as imprisonment pro of life for vided in 16-3-20.” § added)
(Emphasis for sentenced Adams to death his below murder The trial judge and also upon jury’s recommendation conviction sentenced
123
him
conviction. The
his kidnapping
for
imprisonment
to life
runs afoul of
clear
life sentence
asserts
appellant
agree.
intent of Section 16-3-910. We
has
Since
sentenced for murder as
appellant
been
provided
16-3-20,he cannot
given
in Section
the otherwise mandatory
for
inasmuch as
kidnapping
sentence
no statutory provision
life
under
punishment
is made for concurrent
this circumstance.
asserts that the trial judge
also
imprоperly
the first
of the trial on
jury during
phase
instructed
voluntariness of confessions.
law
relating
We caution
court
on remand to
impress upon
that no confession
jury
may be considered
it unless
by
found beyond reasonable doubt to have been given
and
under
freely
voluntarily
totality
the circumstances.
Harris,
124,
State v.
S.
212 C.
46 S. E.
682
(2d)
(1948), rev’d
68,
other
338
grounds,
1354,
U. S.
69 S. Ct.
Appellant’s contention that the jury “more conviction pronе” “unrepresentative” are patently without merit. The former is allegation based on speculation; the latter ignores the fact that exclusions from the jury panel are based on responses *8 dire, to at voir inquiries not on in an membership identifiable classification.
theAt sentencing phase of the bifurcated trial the trial judge two statutory submitted mitigating circumstances to the jury See, consideration. for its Section 16-3-20(C), Code of Laws South Carolina of the (1976). Among two factors submitted was, “The defendant has no significant of history prior criminal the use of involving conviction against violence another per- 16-3-20(C) (b) Section The (1). aрpellant son.” asserts that that, established and as a violence was prior no of evidence to trial erred delete the by failing the consequence, judge circumstance to prior from this “significant” mitigating word the We disagree. its to jury. submission the cir It is to entirely appropriate mitigating submit as forth. circum statutorily cumstance set the Whether weight and what shall be is or is not established stance are matters addressed if found to accorded circumstance the C., Linder, State v. S. 278 S. E. the deliberations. jury’s 335 (1981). at Section The 16-3-20 subsection portion sentencing in part: (C) provides of death is not the by
“Where sentence recommended thе shall sentence defendant to jury, imprison- court the life In after a reason- jury ment. the event that all members aon recommendation as agree deliberation cannot to able imposed should on a or not death sentence be whether murder, the trial shall dismiss judge guilty defendant found the defendant to life imprison- shall sentence jury such if the death penalty shall not recommend The jury ment. is not unanimous.” for such penalty vote argues judge that trial by erred to in- appellant failing The initially if failed they that to to agree verdict, jury struct required would be sentence him im- the court then life omission coerces the allegedly This individuаl prisonment. an arbitrary verdict into recommenda- capitulating jurors disagree. We tion. statute where provides that a sentence language
The a life jury, sentence must is recommended of death not envisioned here is implicitly situation that The given. either life unanimously will recommend or normally jury exception. is That portion jury The undecided death. to the given effect existence legal addressing the statute addressed to the trial judge is jury divided unalterably of an to the divulged jury. not be need only indicted, and convicted for tried The kidnapping. murder and as well housebreaking he, “did in housebreaking alleged for indictment
125 1979, Octobеr, break or day York about 17th County St., Hill, Rock house, Henderson and enter the to wit: 1073 Adams urges a crime S. C. with intent to commit therein.” it fails to allege defective since indictment was fatally that the disagree. crime intended. We particular sufficiency dealt with issue of indictment We have Crenshaw, 475, 274 C. 266 State v. S. recent cases. several Hiatt, C., S. State v. S. 276 E. (2d) S. E. 61 (2d) (1980); C., Shoemaker, S. 275 S. E. (2d) State v. (1981); In Sweat, 375 (1981). State v. E. (2d) S. C. 279 S. (1981); Crenshaw, State v. that: supra, we held “An indictment is if with adequate the offense is stated sufficient certainty and to the court to particularity enable know what judgment pronounce, the defendant to know what answer, he is upon called acquittal or conviction to be placed in bar any subsequent conviction.” 266 S. E. (2d) 61 at 62.
We have also stated Ham, in State v. 259 S. C. S. 191 E. 13, 17 (1972) that: true test of the
“[T]he of an sufficiency indictment is not whether it could certain, have been more definite and but whether it contains the elements necessaiy of the offense in- tended to charged be sufficiently аppraises the defendant of what he must prepared be to meet.”
The indictment sufficiency tests noted above must be
viewed with
practical
a
eye; all the
cir
surrounding
cumstances must be weighed before an accurate deter
mination of whether a defendant was or was not prejudiced
Hiott,
can be reached. State v.
supra;
Shoemaker,
State v.
Evans,
supra;
State v.
216 S. C.
unfairly prejudiced being he which was tried. need not treated
Appellant’s exceptions here remaining *10 are disposition appeal since they unnecessary issues. may retrial become We therefore do nоt not address these matters. a new bifurcated trial. and remanded for
Reversed JJ., Ness concur. Gregory, Littlejohn, J.,C. concurs in result. Lewis, Lewis, Chief (concurring): Justice majority opinion, disagree I in the result of the but concur sufficiency of the indictment for holding with forth in dissent in my set State for the reasons housebreaking, C., ., Brooks, S. . . filed Octоber 1981. v. ... S. E. (2d) STATE, Respondent, Arnold, PLATH and David H. John John Appellants. (2d) 221)
(284 E.S. notes to taire the witness dur Adams chose stand Appellant trial phase or innocence bifurcated guilt ing During himself cross-examination. subjecting thus following took colloquy place: this cross-examination haven’t you? read You’ve “Q. [confession] it I don’t know how times. many “A. read I’ve cruel, that the most brutal thing any- And wasn’t “Q. anybody? could do body