Davis Adv. Sh. No. 1
THE STATE OF SOUTH CAROLINA
In The Supreme Court
State of South Carolina, Respondent,
Appeal From Dillon County
Thomas W. Cooper, Jr., Trial Judge
Paul M. Burch, Judge
Opinion No. 24727
Heard October 9, 1997 - Filed December 29, 1997
South Carolina Office of Appellate Defense, David I.
Bruck, Nancy 0. Gallman, and John D. Elliott, all
of Columbia; Glenn B. Manning, of Dillon; and
Charles J. Olgetree, Jr., of Cambridge, MA, for
Attorney General Charles Molony Condon, Deputy
Attorney General John W. McIntosh, Assistant
Deputy Attorney General Donald J. Zelenka, and
Assistant Attorney General Robert F. Daley, Jr., all
of Columbia; and Solicitor C. Gordon McBride, of
Darlington, for respondent.
BURNETT, A.J.: Appellant appeals his convictions of murder,
kidnapping, and armed robbery, and his sentences of death for murder and
twenty-five years imprisonment for armed robbery. We reverse.
Did the lower court abuse its discretion by granting the State's
motion to change venue for the selection of the jury?
Appellant contends the lower court abused its discretion by
granting the State's motion for a change of venue for jury selection. We
Appellant was convicted of murdering a state highway trooper
and was sentenced to death in 1989. His conviction was reversed on
appeal. State v. Manning, 305 S.C. 413, 409 S.E.2d 372 (1991), cert.
denied, 503 U.S. 914, 112 S.Ct. 1282, 117 L.Ed.2d 507 (1992) (finding a
constitutionally infirm reasonable doubt charge). Appellant was retried in
August 1993. A mistrial was declared at the end of the guilt phase of the
trial. Appellant was again retried in March 1995. The jury convicted
appellant of murder, kidnapping, and armed robbery. Upon
recommendation by the jury, which found the statutory aggravating
circumstances of kidnapping, robbery while armed with a deadly weapon,
physical torture, and murder of a law enforcement officer during or
because of the performance of his official duties, the trial judge sentenced
appellant to death for the murder.
At the first trial in 1989, on appellant's motion, venue was
changed from Dillon County to Kershaw County. Neither appellant nor
the State requested a change of venue for the second trial; therefore, in
1993, this trial was held in Dillon County and the jurors were selected
from Dillon County. This trial ended in a mistrial because the jurors
could not reach a verdict in the guilt phase.
On February 17, 1994, approximately six months after the
mistrial, the State filed a motion to change venue, pursuant to S.C. Code
Ann. § 17-21-80 (1976), based on pretrial publicity. The motion was heard
by Judge Paul M. Burch, Resident Judge of the Fourth Judicial Circuit of
South Carolina, on June 8, 1994. At this hearing, the solicitor informed
the judge it would be acceptable to retain venue in Dillon County so long
as the jury was selected from another county. See S.C. Code Ann. § 17-21-
85 (Supp. 1996).
At the hearing, the solicitor summarized the record of the jury
selection at the August 1993 trial. At that trial, 46 of 57 of the
prospective jurors questioned on voir dire were found qualified. However,
according to the solicitor, 53 of the 57 jurors questioned "had knowledge of
the case itself," and seven of the 46 qualified jurors were related "either to
the defendant or to witnesses that were in the trial." The solicitor did not
allege that anyone related to either the defendant or any witnesses
actually served on the jury. The solicitor did not claim that the August
1993 jury was not impartial or that the State did not receive a fair trial.
Further, the solicitor admitted the State did not to use all its peremptory
The solicitor then presented four witnesses who testified
pretrial publicity made it impossible for the State to receive a fair trial by
a Dillon County jury.1 Mary Louise Parham Dillon County Treasurer and
a jury commissioner, initially testified she did not think the State could
get a fair and impartial jury panel in Dillon County because of the news
coverage. During cross-examination, Ms. Parham admitted the two
newspaper articles2 introduced into evidence tended to show appellant was
guilty and, therefore, were prejudicial to the appellant and not the State.
She then stated she did not think either the State or appellant could
receive a fair trial in Dillon County. Ms. Parham testified it would be
hard for a fair trial to take place in Dillon County because the people in
Dillon County have knowledge of this case. Ms. Parham stated "I think
an opinion possibly could have been formed." (emphasis added). However,
she admitted a prospective juror could inform the judge if he had formed
an opinion on this matter.
affidavits pursuant to § 17-21-80. However, this Court held where the
witnesses are sworn in the presence of the judge and their statements are
reduced to a writing by the official stenographer the affidavit requirement
is satisfied. State v. Sullivan 39 S.C. 400, 17 S.E. 865 (1893).
2One of these articles was a November 1, 1988 article in the Dillon
Herald detailing the investigation of the murder. The other article was an
August 1993 article in the Florence Morning News covering the mistrial.
Both articles are factual and neither contained prejudicial or inflammatory
information. After introducing these articles, the solicitor did not refer to
Dillon County Sheriff Harold Grice testified appellant's case
was the most publicized case during his 18 years in law enforcement.
Sheriff Grice opined "the jury pool that would be drawn in Dillon ounty
wouldn't be fair to both sides" because there had been a lot of publicity
and it would be difficult to obtain jurors from "certain areas" of the
county. On cross-examination, Sheriff Grice was unable to state whether
he thought prospective jurors in Dillon County were more likely to be
biased in favor of appellant or the State until he saw "the way the jury
was pulled." Sheriff Grice admitted very few people sat in the courtroom
during the August 1993 trial.
Gwen Hyatt, Clerk of Court for Dillon County and a jury
commissioner, testified she did not think a jury pool could be drawn "that
would not have knowledge of the two previous trials." On cross-
examination, Ms. Hyatt acknowledged the August 1993 jury was chosen
before exhausting the venire. She further admitted the trial judge
removed any prospective juror who expressed an opinion about the case.
Ms. Hyatt predicted another Dillon County jury would probably be partial
to both sides.
Cecil Chandler, news director for a Florence television station,
testified appellant's case had been extensively covered by his station since
1988. Mr. Chandler opined it would be difficult to draw a jury panel from
Dillon County that did not have knowledge of this case. On cross-
examination, Mr. Chandler could not point to any station coverage which
was prejudicial to the State. Mr. Chandler also admitted there was
nothing unfair about a juror knowing about the case.
Defense counsel presented no affidavits or testimony at the
hearing. Instead, defense counsel argued the State had failed to prove it
could not receive a fair and impartial trial if a jury were selected from
residents of Dillon County.
On August 31, 1994, Judge Burch granted the State's motion
for a change of venue. Judge Burch found an impartial jury could not be
selected from Dillon County because jurors "would have a side and would
be tainted with information obtained from the high level of publicity that
surrounded the retrial of the case." Judge Burch based his decision on the
fact that there was widespread knowledge of this case among the residents
of Dillon County and appellant had extensive family in Dillon County.
Therefore, pursuant to S.C. Code Ann. § 17-21-85 (Supp. 1996), Judge
Burch ordered the trial jury be selected from Lancaster County.
Appellant's motion for reconsideration of this order was denied.3
Under South Carolina law, the State may request a change of
venue because the prosecution cannot receive a fair and impartial trial in
the county where the prosecution is commenced. S.C. Const. Art. V, § 23;
S.C. Code Ann. § 17-21-80 (1976). The grant of the State's request for a
change of venue has not been addressed by this Court.
When considering the propriety of granting the State's request
to change venue, other jurisdictions apply the same abuse of discretion
standard as is used to review the denial of a defendant's motion to change
venue. Erwin S. Barbre, Annotation, Change of Venue by State in
Criminal Case, 46 A.L.R.3d 295 (1972). We, likewise, conclude the abuse
of discretion standard should be applied when the State is granted a
change of venue.
Empaneling a jury pursuant to § 17-21-85 is similar in effect to
a change of venue and is subject to the same scope of review. State v.
Longworth, 313 S.C. 360, 438 S.E.2d 219 (1993), cert. denied, 513 U.S.
831, 115 S.Ct. 105, 130 L.Ed.2d 53 (1994). A motion to change venue is
addressed to the sound discretion of the trial judge and will not be
disturbed on appeal absent an abuse of discretion. State v. Patterson,__
S.C. __, 482 S.E.2d 760, cert. denied, 66 U.S.L.W. 32-08 (U.S. Sup. Ct.
Oct. 6, 1997); State v. Caldwell, 300 S.C. 494, 388 S.E.2d 816 (1990). An
abuse of discretion occurs when the judge's ruling has no evidentiary
support. Gooding v. St. Francis Xavier Hosp., 317 S.C. 320, 454 S.E.2d
328 (Ct. App. 1995), affirmed in part, reversed in part, __ S.C. __, 487
S.E.2d 596 (1997). When jurors have been exposed to pretrial publicity, a
denial of a change of venue is not error when the jurors are found to have
the ability to set aside any impressions or opinions and render a verdict
based on the evidence presented at trial. State v. Patterson, supra; State
v. Caldwell, supra. Therefore, mere exposure to pretrial publicity does not
automatically disqualify a prospective juror. State v. Caldwell, supra.
Instead, "[t]he relevant question is not whether the community
remembered the case, but whether the jurors ... had such fixed opinions
that they could not judge impartially the guilt of the defendant." State v.
Tucker, __S.C. __,__, 478 S.E.2d 260, 266 (1996), cert. denied, __
this decision. This Court dismissed appellant's appeal by order dated
September 22, 1994, and dismissed appellant's petition for supersedeas by
order dated March 17, 1995.
U.S. __, 117 S.Ct. 1561, 137 L.Ed.2d 708 (1997) (quoting Patton v. Yount,
467 U.S. 1025, 1035, 104 S.Ct. 2885, 2891, 81 L.Ed.2d 847, 856 (1984)).
The moving party bears the burden of showing actual juror prejudice as, a
result of such publicity. State v. Caldwell, supra. If a change of venue is
sought on the basis of pretrial publicity, the general practice is to postpone
ruling on that motion until the jury panel is voir dired. State v. Easler,
322 S.C. 333, 471 S.E.2d 745 (Ct. App. 1996), affirmed as modified, __
S.C. __, 489 S.E.2d 617 (1997).
The defendant's right to be tried in the county where the
alleged crime was committed is an ancient right and well recognized at
common law. 4 William Blackstone, Commentaries 349-50. However, this
privilege is conditioned upon the possibility of empaneling an impartial
jury in that county. State ex rel. Sullivan v. Patterson, 165 P.2d 309
(Ariz. 1946); People v. Powell, 25 P. 481 (Cal. 1891). Because the situs of
the alleged crime is usually the home of the defendant, this right allows
the defendant to surround himself with the influences of his good
character, if he has established one, and the witnesses are accessible for
the purpose of trial. State ex rel. Sullivan v. Patterson, supra. "To
deprive a defendant of these influences and privileges would constitute a
great injury to him." Id. at 313.
South Carolina recognizes the accused's right to be tried in the
county in which the offense is alleged to have occurred. State v. Evans,
307 S.C. 477, 415 S.E.2d 816 (1992) (finding this right is a personal
privilege of the accused and is not jurisdictional; therefore, it can be
waived); see also S.C. Const. art. 1, § 11 ("No person may be held to
answer for any crime ... unless on a presentment or indictment of a
grand jury of the county where the crime has been committed."). Section
14 of article I of the South Carolina Constitution states "[t]he right of trial
by jury shall be preserved inviolate." Other jurisdictions interpreting this
phrase have held this phrase preserved all rights and privileges an
accused had concerning jury trials at common law prior to the adoption of
the state constitution, including the right to be tried in the county in
which the alleged offense occurred. See People v. Powell, supra.
Because the right of the State to request a change of venue
conflicts with the accused's right to be tried in the county where the
alleged offense was committed, these two competing interests must be
balanced. See State ex rel. Sullivan v. Patterson, 165 P.2d at 313 ("The
abuse of the right to change the venue to the detriment of the accused
over his objection would result in a serious depredation . . . ."). Further,
because a defendant's right to be tried in the county where the alleged
offense occurred is defeated when the prosecution's request for a change of
venue is granted, a court should exercise great care and deliberation when
changing venue at the request of the prosecution, and the state's motion
and evidence supporting its motion should be strictly scrutinized to ensure
the defendant's right is not abused. Mast v. Superior Court, 427 P.2d 917
(Ariz. 1967) (lower court should act with great care and deliberation when
considering a state's request to change venue); Commonwealth v. Gelatt,
393 A.2d 303 (Pa. 1978) (a court must strictly scrutinize a prosecutor's
change of venue request); Commonwealth v. Reilly, 188 A. 574 (Pa. 1936)
(before a court acts on this type of motion, there must be most imperative
Judge Burch abused his discretion in granting the State's
motion to change venue based on pretrial publicity because no evidentiary
facts supported a finding of actual juror prejudice toward the State. The
State's witnesses only offered their opinions and conclusions that the State
and appellant could not receive a fair trial in Dillon County because most
people in Dillon County knew about the case. See Davenport v. Summer,
269 S.C. 382, 237 S.E.2d 494 (1977) (conclusory affidavits of local residents
insufficient to require change of venue); Cantey v. Coates, 262 S.C. 21-)9,
203 S.E.2d 673 (1974) (in deciding whether to change venue, the court
cannot rely on the beliefs, opinions and conclusions of witnesses). The
witnesses' testimony was ambivalent and vague about which party was
prejudiced by the publicity. None of the witnesses could point to any
actual prejudice suffered by the State because of the pretrial publicity.
Instead, one witness testified the publicity prejudiced appellant.4 The
newspaper articles were remote in time and showed no prejudice toward
venue because the appellant could not receive a fair trial in Dillon County.
However, we choose not to adopt this argument. The State should not
have the responsibility of ensuring the defendant's right to a fair and
impartial trial is protected. Further, although in State v. Hood, 239
S.E.2d 802 (N.C. 1978), the grant of change of venue at the request of the
State was upheld because the defendant could not receive a fair trial, that
court noted the defendant did not have counsel at the time the motion was
made, thus it was proper for the State to protect the defendant's interest.
Other jurisdictions have held the State should not seek to protect the
defendant's right to a fair and impartial jury by attempting to change
venue. See Mast v. Superior Court, supra.
Further, a prospective juror's knowledge about the case does
not per se disqualify the juror. See State v. Caldwell, supra. No evidence
was presented indicating there were difficulties in seating a jury in the
August 1993 trial or that the August 1993 jury was unfair or partial to
the appellant. Judge Burch's decision was made almost seven months -
before the 1995 trial, and the 1995 trial occurred 1 1/2 years after the 1993
mistrial. See State v. Tyner, 273 S.C. 646, 258 S.E.2d 559 (1979) (any
prejudice resulting from articles should have diminished by the time of
trial). Without voir dire of actual potential jurors, it was impossible to
determine an unbiased jury could not be seated from Dillon County
residents based on the evidence presented by the State to support its
motion.5 See State v. Easler, supra; Beckwith v. State, 386 So.2d 836
(Fla. Dist. Ct. App. 1980) (the court must attempt to seat a jury before
concluding it is impossible to obtain an impartial jury when deciding a
State's motion to change venue over the objection of the defendant). Thus,
based on the evidence presented to support this motion, we find Judge
Burch's decision to grant the State's motion premature.
Because we find Judge Burch abused his discretion in granting
the State's motion to change venue, we do not reach the other issues
raised by appellant.
FINNEY, C.J., TOAL, MOORE and WALLER, A.J., concur.
prior to ruling on a motion to chance venue based on pretrial publicity, it
is not absolutely essential that the trial judge always conduct voir dire
before granting this motion. However, if the judge considers the motion
prior to voir dire, the moving party must demonstrate the facts and
circumstances warrant a finding of actual juror bias. Here, the solicitor
failed to present any evidence of actual juror bias to support the motion.