State v. CottrellState v. Cottrell
Lead Opinion
Appellant Luzenski Allen Cottrell was convicted and sentenced to death by an Horry County jury for the 2002 murder of Myrtle Beach police officer Joe McGarry. On appeal, Cott-rell now raises five issues, all of which involve rulings largely addressed to the trial judge’s discretion. Finding no abuse of discretion by the trial judge, we affirm his conviction and sentence.
FACTS
Shortly after midnight on December 29, 2002, McGarry and fellow police officer Mike Guthinger entered a Dunkin Donuts in the city of Myrtle Beach. Both officers were in uniform and on duty, completing a traffic stop a short time earlier before deciding to get coffee. Upon entering Dunkin Donuts, MeGar-ry immediately recognized Cottrell, who was ordering coffee
Upon recognizing Cottrell, McGarry informed Guthinger that Cottrell was identified as a suspect in a shooting and that he was possibly carrying a gun. Rather than proceed in line to get coffee, McGarry and Guthinger exited the Dunkin Donuts and approached Cottrell on the sidewalk as he stepped out the door. McGarry asked Cottrell whether he remembered him, and then inquired as to whether he had taken care of the previous charges for which McGarry had arrested him. Cott-rell indicated they were all taken care of. At that point, McGarry asked Cottrell for his identification and informed him he was going to run an NCIC check to see if Cottrell had any outstanding warrants.
While waiting for a response from the dispatcher after calling in Cottrell’s information, McGarry indicated to Cottrell that he was going to perform a pat-down for weapons. Cottrell told McGarry “no” before turning and walking away toward another vehicle driven by Donnie Morgan, who was part of Cottrell’s group but unknown to the officers at the time. Cottrell’s right hand was somewhere near the front of his waistband as he turned and walked away.
The pair stumbled and separated as they slid toward the rear of the Morgan vehicle. As they regained their balance and squared up, Cottrell raised a .46 caliber handgun and fired a shot, striking McGarry in the face from eight to twelve inches away. The shot incapacitated McGarry, who fell backwards and struck his head on the pavement.
Immediately upon seeing Cottrell shoot McGarry, Guthinger drew his weapon and fired several shots at Cottrell, striking him in the leg as Cottrell sought cover behind Morgan’s car.
PROCEDURAL HISTORY
Cottrell was first tried for the murder of McGarry in 2005. At that trial, the jury found him guilty of murder, assault with intent to kill, resisting arrest, and grand larceny. Cottrell appealed the murder conviction, and this Court reversed, finding the trial court erred in refusing to give the jury an instruction on voluntary manslaughter in addition to murder. State v. Cottrell,
Weeks prior to the scheduled start of Cottrell’s second trial in March 2012, the solicitors representing the State had separate conversations with Cottrell’s appointed attorneys, at which time each accused co-counsel of misconduct and questioned their ability to adequately represent Cottrell in light of their difficulty working together. The solicitors made the trial judge aware of these allegations, and he conducted discussions in chambers with the appointed attorneys, who both confirmed they had indeed made the allegations brought to light by the State. Both attorneys also indicated they felt their inability to work together jeopardized Cottrell’s defense.
In a pre-trial hearing, the trial judge expressed his concerns over the allegations made by Cottrell’s attorneys, questioning whether it was possible for them to effectively represent Cottrell. Cottrell’s attorneys stated they could put their differences aside and work together so the case could proceed, but acknowledged they would defer to the trial judge’s decision. One of the attorneys admitted that the allegations were probably sufficient to solidify post-conviction relief if the case went
Cottrell was eventually tried and found guilty of murder, and the case proceeded to sentencing. During the sentencing phase, the jury heard evidence of Cottrell’s prior bad acts, including a prior conviction for the murder of Jonathan Love in Marion County, as well as testimony surrounding Hartman’s murder, which the State asserted Cottrell was responsible for although the case had not yet been tried.
After deliberating for approximately two hours over Cott-rell’s sentence, the jury sent a note to the trial judge indicating there were eleven jurors for the death penalty and one for life, asking, “What is the next step?” The trial judge did not disclose to the parties what the split was at that time, instead reading a redacted version without the numerical count, and informing them that he would instruct the jury to continue deliberations. Because the jury had only been deliberating for two hours, the trial judge concluded it was too early to give an Allen
I. Did the trial judge’s removal of Cottrell’s appointed attorneys violate his right to counsel and due process under the Sixth and Fourteenth Amendments?
II. Was Cottrell’s right to a fair and reliable sentencing determination violated as a result of the qualification and seating of two jurors whose expressed views prevented or substantially impaired their ability to consider constitutionally relevant mitigating evidence?
III. Did the trial judge err in excluding the testimony of Detective Nathan Johnson on the grounds that the risk of prejudice substantially outweighed its probative value?
IV. Did the trial judge err by refusing to instruct the jury not to infer malice exclusively from the use of a deadly weapon?
V. Did the trial judge err by refusing to disclose the contents of a jury note to Cottrell’s defense counsel during sentencing deliberations?
ANALYSIS
I. REMOVAL OF ATTORNEYS
Cottrell contends that the removal of his appointed counsel without any factual findings on the record was an unnecessary termination of his existing attorney-client relationship and a violation of his Sixth Amendment rights. On the other hand, the State asserts the removal of Cottrell’s counsel was an appropriate exercise of discretion by the trial judge. Given the trial judge’s discretionary authority and his duty to ensure the integrity of the judicial process and safeguard Cottrell’s right to effective counsel, we find the trial judge did not abuse his discretion in removing Cottrell’s attorneys and appointing new counsel.
An accused has the right to assistance of counsel. U.S. Const, amend. VI. However, the Sixth Amendment right to counsel is “circumscribed by the trial court’s obligation to safeguard the integrity of the proceedings and ensure trials
Cottrell characterizes the trial judge’s removal of his counsel as arbitrary and unsupported by any basis in the record, citing to United States v. Gonzales-Lopez,
While Cottrell is correct in asserting that the erroneous deprivation of a defendant’s counsel of choice is a structural error in violation of the Sixth Amendment, the key qualifying language in that statement of law requires that the removal of defendant’s chosen counsel be erroneous. In Gonzales-Lopez, the United States Supreme Court noted that the right to counsel of choice is not absolute and is subject to several limitations, but because the government conceded that the district court erroneously deprived respondent of his counsel of choice and without proper justification, the broad discretion normally afforded to trial judges was not applicable. Id. at 152,
In this case, we believe the trial judge acted properly and in accordance with his broad discretionary authority in removing Cottrell’s appointed attorneys. We agree with Cottrell’s argument that his relationship with appointed attorneys, once established, should be afforded the same level of deference as that which is afforded to clients with retained counsel; however, that does not overcome the strong language from Gonzales-Lopez, Sanders, and the long line of other authorities delineating the wide latitude a trial judge possesses in balancing the right to counsel of choiee with safeguarding the integrity of the judicial process. Here, the record reflects the trial judge removed Cottrell’s attorneys to ensure Cottrell received a fair trial with adequate representation and to maintain the integrity of the judicial process. And, unlike Gonzales-Lopez, the State does not concede that the trial judge erroneously removed counsel—precluding a finding that the removal of Cottrell’s attorneys was necessarily a structural error and instead requiring the Court to apply an abuse of discretion standard.
As Cottrell points out, Sanders grants the trial judge discretion in removing counsel, but he contends there must first be an evidentiary hearing with findings of fact before the judge can make such a decision. Indeed, this Court explained in Sanders that “as a procedural safeguard, an evidentiary hearing is appropriate to determine whether there is evidence to support counsel’s removal.”
Based on the above analysis, we find the trial judge acted within the limits of his discretionary powers and did not violate Cottrell’s Sixth Amendment right to counsel by removing his appointed attorneys and replacing them with new counsel. Had the attorneys denied the allegations or objected to the trial judge’s remedy of removal, more complete findings of fact may have been appropriate, but the limited findings in the record are bolstered by the attorneys’ acquiescence to the trial judge’s ruling. Though deference is afforded to a defendant’s attorney-client relationship once established, that relationship is limited by a trial judge’s obligation to safeguard the integrity of the judicial process, as the trial judge did here. Thus, we find no error in the trial judge’s removal and replacement of Cottrell’s appointed attorneys.
II. JUROR QUALIFICATION
Cottrell next argues the trial court erred in qualifying Jurors 148 and 450 after they made statements during the jury selection process indicating they would not consider evidence of a defendant’s background in determining whether to impose the death penalty. After reviewing the record and
Determinations of whether a juror is qualified are left to the sole discretion of the trial judge who has the opportunity to see and hear the jurors. State v. Dickerson,
A full review of the voir dire process shows that neither of the jurors in question was “mitigation-impaired,” and both identified themselves as “Type C” jurors, meaning they would not always vote for life or always vote for death. The jurors further stated they would wait until all evidence was presented before determining the appropriate sentence based on aggravating and mitigating evidence.
Based on the deference appellate courts afford to trial judges in matters of jury selection, and looking at the entirety of the voir dire process, along with the clear instructions given by the trial judge, we affirm the trial judge’s qualification of Jurors 450 and 148.
III. TESTIMONY OF NATHAN JOHNSON
Cottrell asserts the trial judge violated his due process rights, the Confrontation Clause, and his Fourth Amendment right against unreasonable seizures by excluding the testimony of Detective Nathan Johnson. We disagree.
A. Background
Horry County Detective Nathan Johnson began investigating the murder of Rick Hartman after his body was found in November 2002. Johnson identified Cottrell as a possible suspect in the murder and notified the Myrtle Beach Police Department to inform its officers that Cottrell was a suspect and requested any additional information about him. MBPD Lt. Prock relayed this message to McGarry, knowing that he was personally familiar with Cottrell after arresting him for PWID earlier that year. McGarry had no contact or conversations with Johnson, instead only hearing from Prock that Cottrell was a possible suspect in a shooting death.
In a pre-trial hearing, the State proffered testimony from Johnson, Prock, and Guthinger in an effort to establish that McGarry had reasonably articulable suspicion to conduct a Terry
At trial, the State called upon Prock to testify that she relayed Johnson’s request to McGarry. In response to Prock’s testimony, Cottrell sought to call Johnson to testify regarding the information he knew about Cottrell’s involvement in the Hartman murder, arguing that Johnson did not have reasonable suspicion to identify Cottrell as a “suspect,” making McGarry’s Terry stop an unlawful seizure. The trial judge excluded Johnson’s testimony on the basis that particular information about the Hartman murder investigation was not relevant, and even if it were, its prejudicial effect and potential to mislead or confuse the jury substantially outweighed its probative value. However, the trial judge left the door open for Cottrell to call any witness he wished, including Johnson, to contradict or impeach anything that Prock testified to regarding the information that was passed to McGarry. After Prock testified, Cottrell did not call Johnson to contradict or impeach any of her statements.
Cottrell now argues the trial judge’s ruling violated his constitutional right to present a defense, and his due process and Fourth Amendment rights. According to Cottrell, the lawfulness of McGarry’s actions and Cottrell’s level of culpability are dependent on whether Johnson possessed reasonable suspicion himself. Thus, Cottrell argues that the jury should have determined, as a matter of fact, whether Johnson possessed reasonable suspicion for a Terry stop.
B. Discussion
The right to present a complete defense is violated by the exclusion of defense evidence pursuant to a state rule of evidence only in rare circumstances. Nevada v. Jackson,
“The trial judge is given broad discretion in ruling on questions concerning the relevancy of evidence, and his decision will be reversed only if there is a clear abuse of discretion,” State v. Aleksey,
We reject Cottrell’s broad assertions that his constitutional rights were violated by the exclusion of Johnson’s testimony. Unquestionably, his right to present a defense and the confrontation clause are still subject to the rules of evidence, and Cottrell does not challenge the constitutionality of those rules. See Taylor v. Illinois,
From an evidentiary standpoint, we find no error in the trial judge’s assessment that the risk of prejudice or confusion substantially outweighed the probative value, if any, of Johnson’s testimony because McGarry’s reasonable suspicion to conduct a Terry stop was not solely dependent on Johnson’s request. It is well-established that reasonable suspicion is judged according to the complete facts and circumstances
Additionally, based on the evidence presented, we find Cottrell was not entitled to a jury charge on reasonable
In summary, we find Cottrell’s argument that the trial judge violated his rights to present a defense and to confront a witness are without merit. “A defendant’s right to present a defense is not absolute: criminal defendants do not have a right to present evidence that the district court, in its discretion, deems irrelevant or immaterial.” United States v. Prince-Oyibo,
During the jury charge conference, Cottrell requested that the trial judge charge the jury not to infer malice from the use of a deadly weapon, in accordance with Cottrell’s reading of State v. Belcher,
Cottrell argues that his due process rights were violated by the trial judge’s refusal to affirmatively instruct the jury not to infer malice from the use of a deadly weapon because it allowed the prosecution to shirk its burden of proof during closing arguments by telling the jury to infer malice from Cottrell’s gun. We disagree.
A trial court is required to charge the current and correct law in South Carolina. State v. Brandt,
V. CONTENTS OF THE JURY NOTE
Lastly, Cottrell argues the trial judge’s refusal to inform defense counsel of the contents of the jury note indicating the jury’s numerical division during sentencing deliberations violated his right to assistance of counsel, a fair jury trial, and a non-arbitrary verdict. We disagree.
Section 16-3-20(0 states that the trial judge must impose a life sentence if a capital sentencing jury cannot reach a recommendation after a reasonable deliberation. The determination of whether a jury has engaged in a “reasonable deliberation” is a matter committed to the trial judge’s discretion. Tucker v. Catoe,
Unlike in Tucker, the note sent by the jury in Cottrell’s case did not state that it was hopelessly deadlocked. The note simply indicated what the jurors’ vote was and inquired as to the next step. The trial judge acted within his discretion and determined that the jury had not yet reached a deadlock after “reasonable deliberation” because it had only been deliberating for two hours at that point. Without a deadlock, the trial judge found it was not appropriate to give an Allen charge, instead simply telling the jury to continue with its deliberations. Furthermore, the trial judge followed the Court’s instructions in Tucker and advised the jury not to notify him of its specific vote counts in future notes. The trial judge notified the parties of the contents of the jury’s note, withholding only the numerical split.
Cottrell cites to United States v. Maraj,
Accepting Cottrell’s argument that the trial judge should have disclosed the numerical split, we agree with the State that the decision is subject to a harmless error analysis. Because the trial judge concluded the jury had not yet reached a deadlock such that he needed to give an Allen charge, even if Cottrell had been notified of the numerical split, there was nothing further for him to do at the time to protect his rights. See Maraj,
PROPORTIONALITY REVIEW
Pursuant to South Carolina Code Section 16-3-25(C) (2015), this Court must review the proportionality of Cottrell’s death sentence. From our review of the record, we find the sentence was not imposed as a result of passion, prejudice, or any other arbitrary factor. The evidence clearly supports the jury’s finding of statutory aggravating circumstances. See S.C. Code Ann. § 16-3~20(C). Lastly, the death penalty has been imposed in similar cases where the aggravating circumstances involved the death of a police officer. See Sapp,
Based on the foregoing, we find the trial court committed no reversible error and Cottrell’s conviction and sentence for the murder of Officer McGarry are AFFIRMED.
Notes
. Halcomb was also identified as a suspect in Hartman's death, but he was not immediately recognizable to the officers.
. Cottrell was wearing an oversized, baggy jersey, which Guthinger testified made it impossible for him to see whether he had a concealed handgun underneath, though he also stated that such oversized clothing was often worn for the purposes of concealing illegal weapons. Though there was no eye witness testimony to confirm it, the State's theory was that at some point while waiting for the NCIC to come back, McGarry caught a glimpse or saw the imprint of a concealed handgun on Cottrell’s person, thereby causing McGarry’s rapid change in demeanor and his instructions to Cottrell to keep his hands visible.
. Guthinger testified he witnessed Cottrell raise his gun and shoot McGarry, and that the sound of the first shot was simultaneous with the muzzle blast he saw from the gun’s muzzle. Guthinger then heard a second shot but did not see a muzzle flash. Experts confirmed that McGarry's weapon fired a shot, and Lawson, who witnessed the events from the passenger seat in Halcomb’s vehicle, testified that McGarry’s weapon discharged while he was falling backwards after being shot by Cottrell.
. There was some dispute as to when Cottrell was shot. The defense produced an expert who testified that Cottrell was shot from the front, attempting to convince the jury that McGarry fired the first shot and struck Cottrell. Guthinger testified that he shot Cottrell, and that Cottrell was moving without any signs of injury immediately after shooting McGarry, and only after Guthinger fired at him did Cottrell begin hopping or limping on one leg. In a statement to police following the shooting, Cottrell stated he believed it was Guthinger who shot him, not McGarry. Lawson also confirmed that it was Cottrell who fired the first shot, while McGarry then fired as he was falling to the ground.
. There is no dispute over replacement counsel’s qualifications to represent Cottrell.
. After Cottrell’s second trial and conviction for the murder of McGar-ry, the State decided not to further pursue charges against Cottrell for the Hartman murder,
. Allen v. United States,
. The jury found three aggravating circumstances present to warrant the imposition of the death penalty: (1) a prior murder conviction; (2) the killing of a police officer in the line of duty; and (3) conduct that created a great risk of death to more than one person in a public place. See S.C. Code Ann. § 16-3-20(C) (2015).
. For example, Juror 450 explained to defense counsel, "Again, I think that everything is based on individual acts, and so overall to say that the death penalty is for everybody, I just don't think that’s how it should be.” Keeping in mind that the jurors had not yet been given any instructions on the law, we read the colloquies with Cottrell’s attorneys asking whether the jurors would consider a defendant’s background when determining the appropriate sentence and their responses of "no” to signify the jurors’ intent to treat all defendants fairly and equally, and base their decision upon the facts of the case. To laypersons, the notion of equal treatment for all under the law is a touchstone of our justice system, and until a juror is fully informed that he may determine the appropriate sentence based on the unique backgrounds or characteristics of the defendant, it is not surprising that a juror would state that he intends to treat all defendants equally, regardless of their background.
. Terry v. Ohio,
. Additionally, we find it difficult to discern what prejudice Cottrell suffered from the exclusion of Johnson's testimony and do not see a reasonable probability that the jury’s verdict was influenced by the exclusion of Johnson’s testimony. Not only does Johnson’s testimony further support finding McGarry possessed reasonable suspicion and affirm the lawfulness of his actions, its admission would have also led to the introduction of evidence that Cottrell acted with malice when he killed McGarry, negating the existence of legal provocation or self-defense.
Concurrence Opinion
I concur in the result reached by the majority. I disagree, however, with two points in the majority’s analysis.
I. Removal of Attorneys
First, I disagree that a trial court has “discretion” to remove trial counsel over the defendant’s objection as an exercise of the court’s duty to ensure the defendant receives a fair trial. This Court has never before recognized such discretion, nor has any court of which I am aware. In each case cited by the majority to support its holding, the trial court made a specific factual finding that the attorney was legally disqualified due to a conflict of interest or a likelihood the attorney would be a witness at trial. The trial court’s failure to make such specific findings in this case is the error we address in this appeal,
For example, the majority states “the Sixth Amendment right to counsel is ‘circumscribed by the trial court’s obligation to safeguard the integrity of the proceedings and ensure trials are conducted according to the ethical standards of the profession,’ ” quoting State v. Sanders,
Sanders relied on United States v. Howard,
In Howard, which the majority in this case quotes directly, the district court made two separate factual findings to support its conclusion counsel was legally disqualified—counsel had a conflict of interest and counsel was likely to be a necessary witness.
The majority also relies on State v. Justus,
We acknowledge that it is a close question whether [coun-selj’s representation of [the investigator] was ongoing or had concluded. Moreover, it is fairly debatable whether [the witnesses potential testimony presented an actual conflict of interest. However, given the conflicting evidence before the trial court, and giving deference to its findings of fact, we find no abuse of discretion in the disqualification of [counsel].
The “discretion” to which we referred in Justus was discretion to make the factual finding necessary to determine if a potential conflict of interest existed, not to simply remove counsel with no finding of legal disqualification. As it did with Sanders and Howard, the majority has taken Justus out of context, and Justus does not support the majority’s holding.
Based on Sanders, Howard, and Justus, the majority treats the trial court’s ruling to dismiss counsel as one “largely addressed to the trial judge’s discretion,” and states “we
That does not mean the trial court’s error requires a new trial. First, I would remand this case to the trial court and require the court to make findings as to whether a valid basis for disqualification exists. Even without a remand, however, I would not reverse the trial court and order a new trial. I
As then Solicitor Hembree stated at the hearing the trial court conducted to address this question, this was an “extreme situation.” Prior to the hearing, both Solicitor Hembree and then deputy solicitor Richardson submitted memoranda to the trial court in which they described separate conversations each had with Cottrell’s first and second chair attorneys. Solicitor Hembree’s memo documents the statement of first chair counsel that “in her career practicing law she had never worked with any lawyer more dishonest or unethical than [second chair]” and “she could not wait to get this case concluded just to get away from him.” Deputy Richardson’s memo documents the statement of second chair that first chair “was lazy, not easily motivated, and drank too much.” Deputy Richardson’s memo states second chair “said that he had to take the lead on getting started for this trial because [first chair] would never request discovery, look into getting experts, and investigate the details of the shooting or possibilities of misconduct” by officer McGarry.
The trial court met privately with each defense attorney before the hearing. At the hearing, the trial court stated he was able to verify “the memoranda which were provided to me are correct” that both defense attorneys had accused the other of “what I consider to be serious misconduct.” The court explained that “each of defense counsel believed that the allegations were correct” and “both counsel told me that in their opinion ... [Cottrell’s] defense was being jeopardized.” While I believe the trial court erred by not making specific findings, the court explained, “I have been very careful not to go into the specifics ..., but there have been allegations involving dishonesty, unethical conduct, personal problems
In a written order, the trial court stated first chair “made serious allegations of dishonesty and unethical conduct against her co-counsel,” and second chair “challenged [first chair’s] competence, work ethic, and personal life.” The court stated, “Each acknowledged having made the statements against co-counsel and that they believed the statements to be true.”
In conclusion, the trial court should have made specific findings on the record, and given that it did not do so, this Court should remand with a requirement that those findings be made now. However, I acknowledge the trial court was in a very difficult position. In ten years as a trial judge in which I presided over hundreds of criminal trials and numerous capital cases, I never faced an “extreme situation” like this. I am not sure how I would have handled it if I had. Reading this record convinces me that a dilemma of this magnitude will almost never arise. While I steadfastly disagree with the majority’s characterization of the trial court’s power to resolve this problem as one of “wide latitude” or “considerable discretion,” I do believe that on these unique facts the failure of the trial court to make specific findings that would form the basis for a legal disqualification does not warrant a new trial.
II. Contents of the Jury Note
That it is error for a trial court to refuse to inform defense counsel of the contents of a note from the jury should require no explanation. In my view, a trial court has no authority to refuse to inform trial counsel of any information regarding the conduct of a trial. If this Court takes seriously the duty of counsel to provide effective assistance under the Sixth Amendment, then we must also recognize the elementary principle that counsel must have available the information necessary to fulfill that duty. The idea that a trial court may unilaterally decide not to provide such information to trial counsel in any proceeding—-particularly the sentencing phase of a capital trial—is absurd.
As to whether this obvious error requires reversal, Cottrell has not articulated any action trial counsel could have taken if the information was disclosed that would have changed the
. Cottrell’s own statement of the issue before us is, "The trial court’s removal of the lawyers appointed to represent [Cottrell], over the objection of both [Cottrell] and his lawyers, and in the absence of any findings justifying this interference with an established attorney-client relationship, violated [Cottrell’s] rights to counsel and due process under the Sixth and Fourteenth Amendments...." Appellant’s Br. 10 (emphasis added).
. It makes no difference that counsel was appointed. See Morris v. Slappy,
. See State v. Cottrell,