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24727 - State v. Warren Douglas Manning

Davis Adv. Sh. No. 1
S.E. 2d


THE STATE OF SOUTH CAROLINA

In The Supreme Court

State of South Carolina, Respondent,

v.

Warren Douglas

Manning, Appellant.

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

REVERSED

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

appellant.

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,

p. 17


STATE v. MANNING

kidnapping, and armed robbery, and his sentences of death for murder and

twenty-five years imprisonment for armed robbery. We reverse.

ISSUE

Did the lower court abuse its discretion by granting the State's

motion to change venue for the selection of the jury?

DISCUSSION

Appellant contends the lower court abused its discretion by

granting the State's motion for a change of venue for jury selection. We

agree.

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-

p. 18


STATE v. MANNING

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

challenges.

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.


1 Appellant claims this testimony does not replace the need for

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

them again.

p. 19


STATE v. MANNING

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.

p. 20


STATE v. MANNING

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, __


3 Appellant also attempted to seek interlocutory appellate review of

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.

p. 21


STATE v. MANNING

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,

p.22


STATE v. MANNING

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

grounds).

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

the State.


4 The State claims the judge properly granted its motion to change

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.

p.23


STATE v. MANNING

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.

-REVERSED.

FINNEY, C.J., TOAL, MOORE and WALLER, A.J., concur.


5 Although we think the better practice is to attempt to seat a jury

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.

p. 24