*1 Carolina, Respondent Ryan ROBINSON, STATE of South v. Noah Appellant.
(409 (2d) 404) Supreme Court *2 Q. Taylor, and Albert Spartanburg, D. Ghent and Russell Paschal, Greenville, appellant. Pat Howard W. for Medlock, Gen. Atty. T. Attorney Deputy Gen. Travis Chief Watson, Zelenka, Columbia; and Sol. J. Joseph Donald J. respondent. Greenville, for 23, 1991. 21, 1991; Sept.
Heard Decided April Denied 22, 1991. Oct. Rehearing Gregory, Chief Justice: fact accessory was after the
Appellant felony convicted of years to ten We affirm. imprisonment. sentenced murder for criminal conspiracy indicted Barber; he for killing for the of Hambone was also indicted and after accessory felony criminal before conspiracy and Janice Denise Rosemond. The So- stabbing fact for the death for the Barber murder. These sought licitor penalty together. were tried charges evidence trial, produced
At the State solicited the El by committed members of murder of Hambone Barber out- Barber was down Rukns, Chicago organization. gunned *3 Janice shooting, A witness to the side a bar in Greenville. of as the Rosemond, a member the El Rukns Denise identified in jury a grand to this effect before federal and testified killer was thereafter, severely Rosemond stabbed Soon Chicago. Sweeney Fred testi- acquaintance, Sweeney. an by her home to kill Rosemond “she wanted him because fied appellant Sweeney $5,000 Appellant of his offered spilled guys.” on one Rosemond, survived however, throat. to Rosemond’s slit to agreed At Sweeney’s request, appellant attack. Sweeney’s pay- in Florida. received money Sweeney him flee send associate, Jake through appellant’s $200 $500 ments of felony of guilty accessory found jury appellant Oliver. on all counts. the fact and reached no verdict other after his mo- erred in judge refusing contends the trial Appel- of on change pretrial publicity. tion for a venue based of a member half-brother, is well-known lant, Jesse Jackson’s notoriety of the unavoidable community. the He claims black order of trial judge’s publicized aggravated by this case was claims He security and the Solicitor’s conduct. court stringent to media and also remarks inflammatory made Solicitor to the court, accessible memorandum with filed a pretrial of murder. aggravation the evidence in press, detailing 472
When a trial judge bases the denial of a motion for of venue change because of an pretrial publicity upon adequate voir dire examination of the jurors, his deci sion will not be extraordinary disturbed absent circum Caldwell, (2d) stances. State v. 300 494, S.C. 388 S.E. 816 (1990); Owens, (1987). 161, State v. 293 S.C. Mere exposure pretrial publicity not automatically does disqualify prospective juror; the defendant must show actual juror Caldwell, prejudice. State v. When supra. jurors are ex posed to such there publicity, is no error in refusing a change of venue where are jurors found to have the ability to lay aside any or impressions opinions and render a verdict based on the evidence presented. Id.
Upon appellant’s initial motion, the trial judge ques jury tioned the panel regarding impartiality specif ically if any juror asked by influenced in hearing formation about the case. When only three potential jurors re sponded, judge the trial denied the motion for of change venue ruling that he would reconsider it after voir dire, dire. On voir the few jurors who acknowledged any news hearing accounts of the case all stated under oath they could put informa tion aside and give both the State and appellant a fair and im partial trial. After dire, voir the trial judge again denied ap pellant’s motion for a change venue.
We find no abuse of discretion in the denial of a change of venue. Appellant has failed to any show actual prejudice from the pretrial in this case publicity and we find no extraordinary circumstances to warrant disturbing the trial judge’s decision.
Next,
contends the
Solicitor exercised his
peremptory
racially
strikes
discriminatory manner in vio-
lation of Batson v. Kentucky,
The Solicitor stated he struck Juror Shell of “gen- because eral instability.” She had changed employment several times after short relatively periods of employment, she was an un- married mother of a two-year-old, and she was still living at
473 she Further, she admitted on voir dire that home. parent’s her an advocate of Fleming, outspoken appel- Reverend had seen case on television. lant, discussing appellant’s for Juror striking stated his reasons After the Solicitor and the trial the merits of the motion Shell, argued counsel appeal, ap- no Batson violation. On there had been judge ruled striking reasons for Juror the Solicitor’s pellant complains strik- that he stated no reason for were and pretextual Shell juror. alternate Leaks, potential Juror the ing Shell striking reasons for Juror We find the Solicitor’s the Further, the burden is on de racially are neutral. neutral for that the Solicitor’s reasons prove fendant to were not in a they applied because his strikes were pretextual — (2d) Johnson, 167 —, S.C. 395 S.E. neutral manner. State v. (1990). the re judge raised no issue to trial Here, appellant not on preserved and this issue is any pretext garding alleged (2d) (1989); 1, 298 S.C. 581 Bailey, State v. appeal. (2d) (1984).In Caldwell, any S.E. 662 283 S.C. State v. pre claims of record, appellant’s we find event, based on the Leaks, of Juror striking As to the support. text to be without given, no explanation for whom alternate potential explana the Solicitor’s lack of error in any waived Martinez, 294 S.C. State v. raise it below. See by failing tion 72, 362S.E. case, the defense appel of presentation
At the close on the that ground for a mistrial moved lant’s counsel had not revealed she juror examination on voir dire juror. he knew the The Solicitor denied Solicitor. knew the swimming years fifteen her son he had coached He stated earlier. (1982), 277 S.C. Gulledge, v.
In State his discretion in deny- trial abused judge Court found this on dire failed to disclose voir that juror mistrial where ing a sheriff who deputy to a viewed by marriage related she was the defendant in the court- custody of and had scene the crime any that absent justification Court held The during trial. room her to the relationship to disclose failure juror’s for the case, have been This granted. should a mistrial sheriff, deputy on its facts. Solicitor denied distinguishable is however, only juror contact between the knowing juror before trial. years appellant’s was fifteen if Solicitor, any, *5 in the denial of a mistrial on We find no abuse of discretion this ground. of Henry- the Solicitor’s direct examination
During in El member involved Harris, gang allegedly an Rukn that in the 1980’s murder, the Barber Harris testified in for the He charge drug operations organization. he was of acquainted was asked when he first became subsequently “ and he answered ’83 or ’84.” then appellant Appellant with for a mistrial on the Harris’ testi objected ground and moved dealing. linked mony appellant drug context, in First, This is without merit. Harris’ argument in drug not was involved deal- testimony imply appellant does the time Harris merely appellant during because he knew ing El dealing drugs. Harris testified the Rukns rented a was located; from where their restaurant was building appellant El testimony linking appellant drug there is no to the Rukn’s activities. dealing out El
Further, bring was first Rukn’s appellant A drug dealing. previous witness, gang involvement in member Eugene Hunter, Fort, testified was a friend of Jeff appellant Rukns, the head of the El and was the El Rukns in es assisting cross-examination, tablishing legitimate appel business. On lant elicited from Hunter El were in testimony that the Rukns in drug dealing. appellant opened volved Since the door to this evidence, he cannot of from admission. complain prejudice its Sullivan, v. 277S.C. State granted further contends he should have been
mistrial on the of misconduct. ground prosecutorial Rose- mond, stabbing victim, testified for appellant. Essentially, ever identified Barber’s killer having police; she denied she her Brannigan literally stated Detective twisted wrist to force a federal testify grand jury Chicago her to before regarding to her relationship this case. She further testified close with at him as appellant: my godfather.”. “I look if cross-examination, On Solicitor asked Rosemond she stabbed, had written a letter after she was which she Solicitor a line from admitted. The asked her to read it: for a my godfather.” Appellant “Take care of then moved mis- trial the letter claiming prosecutorial misconduct because suppressed ruling by evidence that had been under a prior The trial judge. judge sup- trial ruled the letter had not been Solicitor was pressed prior ruling under his and therefore the not it to cross-ex- prosecutorial using misconduct guilty *6 amine Rosemond. the suppression hearing appel-
The record indicates that at to suppression pursuant the of evidence seized sought lant apart- for two for his addresses, search warrants different one for his The occurred following colloquy ment and one office. and judge: counsel the trial between know, I just things SIMONE: want to some Judge, MR. me to ask necessary It won’t be for prosecutor. from the any Is material any questions. more there witness] [the a room than Noah that was taken from other seized that try room? Do want you expect you Robinson’s those? introduce legitimate question.
THE COURT: That’s a I intend to introduce. There WATSON: Not that MR. from other was other stuff seized rooms. But intend to introduce it. you SIMONE: don’t
MR. right. WATSON: That’s MR. sup- at should be argued then the evidence issue
Appellant affidavit, identical for both the pressed supporting because gathered by illegal an warrants, contained information search the from appel- he evidence addition, argued surveillance. In officers police because suppressed bedroom should be lant’s roommate, arresting appellant’s in the bedroom door forced beyond trial ruled this conduct went judge Jake Oliver. a search war- pursuant Though to arrest. the of a search scope the obtained, the trial concluded judge subsequently rant was He from should be suppressed. the bedroom evidence seized the was valid. ruled that affidavit further stating him by the Solicitor misled claims to introduce was taken sought evidence he only the context, however, In bedroom. appellant’s from the discussion was regarding indicates colloquy quoted above from appellant’s apartment. to be introduced sought evidence the letter was in fact seized evidence produced The Solicitor that the affi judge’s ruling office. The trial from appellant’s of evidence taken suppression governed valid davit was only ground affidavit was the officesince the appellant’s from evidence was challenged. of this the admission upon which supports hearing suppression the record of the We conclude the let- mistrial that the motion for ruling trial on judge’s Rosemond was cross-examining the Solicitor by ter used Since prior ruling. under his suppressed that was not evidence of- appellant’s evidence from ruling suppressing there was no using this not of misconduct guilty Solicitor was fice, from the Moreover, prejudice we find no letter. testified to the letter since Rosemond reference to Solicitor’s her relation- regarding examination same effect on direct with ship appellant. pretrial dis- regards appellant’s we address
The final issue of all witnesses prosecution for statements covery request ruled that judge The trial investigative reports. police SCRCrimP, investigative reports 5(a)(2), to Rule pursuant be pro- statements must are not discoverable witness *7 testified. contends after a witness has only vided discovery allowed for evidence should have been that this (FOIA). disagree. Information Act We under the Freedom of 30-4-40(a)(3)(1991) § that records provides S.C. Code Ann. FOIA “if from the agencies exempt of law enforcement are by . . . agency harm the disclosure of the information would (B) to be used release of information premature law enforcement action.” prospective FOIA, Supreme the United States construing In the federal displace that the FOIA does not or supplement Court has held v. John discovery. Agency rules of John Doe applicable (2d) 471, Ct. 107 L. Ed. 462 146, Doe 493 U.S. 110 S. Corp., Labor Relations Board v. Robbins Tire (1989);National (2d) Co., 2311, 57 L. Ed. 159 214, 437 U.S. 98 S. Ct. Rubber to disclosure based on “interference exemption An exempt has been construed to proceedings” with enforcement party litigant that would any give of information disclosure case. Robbins government’s opposing access to the greater need the need for Tire, government prove The not supra. Id. case-by-case on a basis. nondisclosure ex the South Carolina FOIA Similarly, we conclude that is not otherwise dis discovery of material empts 5(a)(2). exemption The specific coverable under Rule 30-4-40(a)(3)(B) release of infor premature § under for “the action” in a law enforcement prospective mation to be used criminal pending pros- information clearly exempts regarding
477 ecutions. No of harm is specific showing required by the State if the involves such material. request 7, 8, issues and 9 re
Appellant’s evidentiary rulings involve relevant lating testimony only charges. the murder Ap not of pellant was convicted these offenses and we need not — Sherard, address these issues. See State v. —, S.C. 399 S.E. (2d) (1991) (verdict 595 will not be reversed for insubstantial trial). errors affecting not the result of the re Appellant’s issues are maining disposed pursuant Supreme Court Green, Rule State v. 23 and the 2: following authority. Issue (2d) (1990) 301 S.C. 157 (challenges for cause will not be if reviewed strikes not peremptory exhausted); Issue (2d) (1989) (no Bailey, State v. 10: 1, 298 S.C. 377 S.E. ob — Alexander, jection); Issue 12: State v. S.C. —, 401 S.E. (1991) (no prejudice from verdicts); inconsistent Issue 13: Sullivan, State v. (1981) (sen 277 S.C. maximum). tence within statutory of the judgment circuit court is Affirmed. JJ., concur.
Harwell, Toal, Chandler J., dissenting separate opinion. Finney, Justice (dissenting): Finney,
I respectfully dissent. In my view, the solicitor’s conduct materially contributed to pretrial publicity and exacerbated prejudice appellant. to the I would Additionally, find that the solicitor failed to articulate a neutral racially reason for strik *8 v. in Batson Ken ing prospective juror, black violation of (1986). tucky, 1712, 476 U.S. S. Ct. 90 L. Ed. 69 I would reverse and remand for a new trial. the of
First, problem pretrial publicity compounded by was of a memorandum the by dissemination filed Coun- solicitor.1 for an appellant sought agreement prevent sel obtained to surrounding the Notice of Evidence in publicity Aggravation which would be served less than a week jury before selection four months after the state intention almost announced its publicity acknowledged surrounding The solicitor that this case was unprecedented. the No- provide to agreed The state penalty. the death seek acknowledge receipt, counsel, who would appellant’s
tice to so- 10,1989, January filed. On would not be and the Notice Court, which the Clerk of memorandum with licitor filed a in part: stated certain evi- Pat Paschal I discussed with Monday,
On of Mr. phase in the penalty I intend to present dence offered in- evidence to be trial. Because the Robinson’s including conduct, criminal cludes evidence of extensive that I either not murder-for-Mres, requested Pat other that, filed, or if Aggravation in file the Notice Evidence be offered ... I not detail the evidence to in routine by press picked up The memorandum was extensively publicized records and checks of courthouse media. through the news file the Notice of by not mandated law to
The solicitor was re- only The state is in with the court. Aggravation Evidence aggravation notice of evidence in to furnish written quired 16-3-20(B) §Ann. trial. See S.C. Code an accused prior not file the fact that the state did noteworthy Also is memoranda. When trial-related non-compulsory all other circumstances of this unique in and under the totality viewed record that of the memorandum case, filing it is clear from the the ac- fuel and further publicity prejudice was contrived to cused. by media
Additionally,
reported
the news
statements
view,
In comments
were, my
inflammatory.
solicitor which
co-defendants,
bargain
appellant’s
his
with
concerning
plea
also
stated, “it takes a crook to catch a crook.” He
the solicitor
“beatings,”
of the arrest
due to
timing
indicated the
was
appellant.
and “dead bodies” attributable to the
“stabbings”
an
of a
egregious example
In
this record is
my opinion,
of the
regardless
to obtain a conviction
striving
prosecutor
notoriety
conduct
surround-
aggravated
costs.
solicitor’s
jurors
that
resulting
prospective
this case with the
effect
ing
venireperson
upon
formed
based
news accounts. One
opinions
that
opinion
stated that he had formed
what he had
upon
newspapers.
based
read
guilty
(1989)
Dawkins,
386,
In
297 S.C.
State v.
States,
S. Ct.
78, 88, 55
v. United
295 U.S.
(quoting Berger
*9
(1935)),
following
... He with earnestness prosecutor] may prosecute [the But, and he do while he vigor indeed, may should so. — blows, strike hard he is not at to strike foul ones. liberty It is much is to refrain from methods duty improper as it use produce wrongful calculated conviction as is to every legitimate bring just means to about a one. Dawkins, v. State at 299.
I would hold that the solicitor’s conduct contributed sub- inherent or stantially presumptive preju- circumstances of dice and created actual which prejudice deprived appel- lant of the to a fair trial. right impartial I
Next, ground would reverse on the that the solicitor vio- lated Batson v. The state exercised Kentucky, supra. peremp- strikes tory against venireperson presented one black as a prospective one black as an al- juror, venireperson presented ternate and seated one black In a Batson juror. hearing, solicitor stated that he struck the black be- prospective juror history cause of due to an erratic work instability parent- a child out of wedlock. ing I history may reason,
While an erratic work be a neutral nothing periods find this record which indicates of unem- or that the was an ployment prospective juror undependable asked her employee. employment history, When about her juror present job stated that she had been on prospective months, employer for four had worked for her for a preceding n her for a and a half. year, prior job year and had been on As I am unable to determine from the reason, to his second the circumstances of the birth of record before this Court how any relationship child bears to the prospective juror’s par Moreover, the United States Supreme ticular case to be tried. may that not be used as generally illegitimacy Court has held Campbell, a basis for discrimination. See Reed v. unjustified L. 2234, 90 476 U.S. S. Ct. Ed. racially
A is to articulate a neutral prosecutor required related to the case to be tried. Such ex- explanation particular neutral, reasonably must be a clear and planation specific the chal- legitimate exercising reason for explanation Batson, 106S. Ct. at 1724. lenges.
In my view, the solicitor’s articulated reason for striking the black prospective juror was neither racially neutral nor related to the particular case to be tried.
I would reverse case and remand for a new trial. Henry McLELLAN, Jr.,
In the Matter of Donald Respondent. (409 (2d) 411) Supreme Court Attorney General T. Travis Medlock and Asst. Attys. Gen. Jr., G. Bogle, James and Barbara M. Heape, Columbia, for complainant. McLellan, Henry Jr.,
Donald se. pro 14, 1990. Heard Nov.
Decided 23, 1991. Sept.
Per Curiam:
In this attorney grievance matter, respondent ad mitted the allegations professional misconduct. The Hearing Panel recommended a public reprimand. Executive Committee unanimously adopted the Panel’s find of fact and ings law, conclusionsof sixty- but recommended a