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24841 - State v. McCray

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

THE STATE OF SOUTH CAROLINA

In The Supreme Court





The State, Respondent,

v.

Charles Allen McCray, Appellant.



Appeal From Florence County

Ralph King Anderson, Jr., Circuit Court Judge





Opinion No. 24841

Heard January 10, 1996 - Filed September 28, 1998





AFFIRMED





Assistant Appellant Defender Robert M. Pachak, of

South Carolina Office of Appellate Defense, of

Columbia; John C. Jepertinger and Jack W. Lawson,

Jr., both of Florence for appellant.





Attorney General T. Travis Medlock, Chief Deputy

Attorney General Donald J. Zelenka, Assistant

Attorney General Harold M. Coomhs, Jr., and

Assistant Attorney General William Edgar Salter,

III, all of Columbia; and Solicitor Dudley Saleeby,

Jr., of Florence, for respondent.





BURNETT, A.J.: Appellant was indicted by the Florence

County Grand Jury on charges of murder, conspiracy, first degree

burglary, arson, and armed robbery surrounding the death of Billy

Graham. He was convicted of first degree burglary and conspiracy and

acquitted of the three other charges. Appellant was sentenced to life

imprisonment for burglary and five years' imprisonment for conspiracy.

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STATE v. MCCRAY





ISSUES

I. Did the trial judge err by ruling appellant's co-defendants'

reasons for striking black jurors from the jury venire was not

pretextual and by failing to grant appellant a severance?





II. Did the trial judge err by admitting appellant's February

26, 1988, confession into evidence?





III. Did the trial judge err by failing to grant appellant's

motion for a mistrial after a co-defendant referred during

closing argument to appellant's failure to testify?





DISCUSSION



I.

Appellant, who is black, was tried with two co-defendants,

Roger Dewitt (Bill) Prince and Charlie Dorn Smith, who are white. Before

the jury was sworn, appellant requested a Batson1 hearing, arguing his co-

defendants excluded black jurors from the venire because of their race.

During the hearing, appellant stated he had previously moved for a

severance, anticipating there would be difficulties in selecting a jury. The

trial judge denied appellant's Batson motion, concluding Batson did not

apply to co-defendants in a criminal trial.





During the pendency of appellant's appeal, the United States

Supreme Court ruled Batson applies to criminal defendants as well as to

the prosecution. Georgia v. McCollum, 505 U.S. 42, 59, 112 S.Ct. 2348,

2359, 120 L.Ed.2d 33, 51 (1992)("the Constitution prohibits a criminal

defendant from engaging in purposeful discrimination on the ground of

race in the exercise of peremptory challenges."). Consequently, we

remanded this matter to the trial court for the purpose of conducting a

Batson hearing.





On remand, co-defendant Prince candidly stated, due to the

passage of time, he did not remember exactly why he had struck the black


1 Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69

(1986)(the Equal Protection Clause of the Fourteenth Amendment to the

United States Constitution prohibits the State from striking a

venireperson on the basis of race).

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STATE v. MCCRAY





jurors at issue but, referring to his notes, thought he struck Juror #112

because she had two cousins who were sheriffs in New York and Juror #26

because he had a friend who worked for the sheriff s department. Co-

defendant Smith stated he did not want anyone with connection to law

enforcement on the jury. Consequently, he struck Juror #9 whose friend

worked for SLED and Juror #61 whose cousin worked for the sheriff s

department.





Appellant argued the stated reasons for striking the four black

jurors were pretextual because the co-defendants did not strike three white

jurors, Jurors #13, #88, and #181, who had similar connections to law

enforcement. The trial judge concluded the stated reasons for striking the

four black jurors were not pretextual. We agree.





Under Batson procedure as it existed at the time of appellant's

trial, the proponent of the strike was required to present an explanation

for the strike which was racially neutral, clear, reasonably specific, and

legitimate. State v. Adams, 322 S.C. 114, 470 S.E.2d 366 (1996).

Whether a proffered reason was racially neutral was to be determined by

examining the totality of the facts and circumstances in the record,

including the credibility and demeanor of the proponent of the strike.

State v. Kelley, 319 S.C. 173, 460 S.E.2d 368 (1995). If the explanation

met these criteria, the opponent of the strike had the burden of proving

the allegedly neutral reason was pretextual. Pretext could be

demonstrated by showing similarly situated members of another race were

seated on the jury.2





The record from the jury voir dire indicates the three white

jurors who were seated on the jury were not similarly situated to the four

black jurors who were struck from the jury. While the black jurors had

relatives or friends who, at the time of trial, were employed in law

enforcement, the relatives or friends of the white jurors were no longer

employed in law enforcement.3 The white jurors did not have the same


2 At the time of the Batson hearing, this Court had not yet adopted the

procedure outlined in Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131

L.Ed.2d 834 (1995). However, under Purkett procedure, we would reach

the same conclusion.



3 Juror#88 stated his friend was a former police officer. Juror #181

stated his father-in-law was a highway patrolman from 1957 to 1968.

Juror #13 stated she had acquaintances who worked for law enforcement.

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STATE v. MCCRAY





relationship to law enforcement as the black jurors. Accordingly, appellant

failed to meet his burden of establishing the co-defendants' stated reasons

for striking the black jurors were pretextual. The trial judge's findings

are supported by the evidence and should be affirmed. State v. Adams,

supra (the trial judge's findings regarding purposeful discrimination are

entitled to great deference and are to be set aside only if clearly

erroneous).





Moreover, appellant's argument that the trial judge abused his

discretion by denying his motion for a severance after his co-defendants

struck the four black jurors is not preserved for appeal. Appellant never

requested a severance for this reason. State v. Byram, 326 S.C. 107, 485

S.E.2d 360 (1997)(a party cannot argue one ground at trial then another

ground on appeal). In any event, since we conclude there was no error in

striking the four black jurors, there is no merit to appellant's argument

that he should have been granted a trial separate from his co-defendants

because they struck black jurors from the jury.





II.

Appellant contends the trial judge erred in admitting into

evidence his statement of February 26, 1988, for the following reasons: A)

he had invoked his Fifth Amendment4 right to counsel and the statement

was thereafter obtained by improper police-initiated interrogation; B) the

statement was obtained in violation of the Sixth Amendment;5 C) the

statement was obtained by trickery; and D) the statement was involuntary

under the totality of the circumstances. We disagree.





The following facts were developed during the Jackson v.

Denn6 hearing. Perry Coker of the Clarendon County Sheriff s

Department testified he arrested appellant on February 4, 1988, on

charges of burglary and criminal sexual conduct. The warrants were

signed by appellant's sister. Appellant was advised of his Miranda rights




Upon further questioning, however, she stated these acquaintances

actually worked for the building commission.

4 U.S. CONST. amend V.

5 U.S. CONST. amend. VI.

6 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).

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STATE v. MCCRAY





by Lieutenant Gamble from SLED. Appellant was not interviewed at that

time because he was intoxicated. Twenty-four to forty-eight hours later,

Coker asked appellant if he wanted an attorney appointed. Appellant

responded "this was a family matter and given a little bit of time it would

work itself out and that he did not want an attorney at that time."

Appellant remained in custody.





On February 17, 1988, appellant was arrested in Clarendon

County for the murder of Paul Bradley, Jr. Coker spoke with appellant

after the arrest and asked if he wanted an attorney appointed. Appellant

responded he "felt like at the time that his people would hire an attorney

and he did not want an appointed attorney on that charge."





However, Coker testified because of the "extra charge"

(apparently the Bradley murder charge), he felt appellant needed an

attorney. Consequently, on February 18, 1988, Coker testified he took

appellant to the Clerk of Court's office and the public defender, Harold

Detwiler, was appointed to represent appellant on the burglary and

criminal sexual conduct case. Coker again asked appellant if he wanted

an attorney for the murder charge and appellant replied he did not want

an appointed attorney for a charge of that serious a nature and would

have his sister retain a lawyer.





Four days later, on February 22, 1988, Coker and Lieutenant

Gamble were present with appellant in the sheriff's office. Before

speaking with appellant, Gamble telephoned Detwiler in appellant's

presence. Gamble testified he told Detwiler he wanted to discuss the

Bradley murder "and this other case"7 with appellant and to run a

polygraph test. As a result of the telephone conversation, appellant was

transported to SLED and he submitted to a polygraph test.





Prior to administering the polygraph test, the test

administrator, Johnny Hartley, testified he advised appellant of his

Miranda rights, including the right to remain silent, that anything he said

could be used against him in court, and the right to have a lawyer

present, and appellant signed a waiver form acknowledging he understood

each of the rights.


7 It is unclear if "this other case" refers to the burglary and CSC case

or the Graham murder case. Gamble testified he never asked appellant

about the burglary and CSC charges.

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STATE v. MCCRAY





The same day, after returning from SLED, Coker spoke with

appellant and his sister.8 Coker testified he advised appellant of his

Miranda rights, including the right to talk to a lawyer and have a lawyer

present while being questioned. Appellant then gave a statement with

regard to the Bradley homicide. Appellant's statement was reduced to

writing and he signed the document.





On February 23, 1988, Coker spoke with appellant's nephew

who was also charged with the Bradley murder. As a result of that

discussion, Coker testified he again spoke with appellant on February 24th

about the Bradley murder after appellant executed another waiver of

rights form. A tape recording of this conversation was made and later

transcribed. Appellant signed the transcription of the tape recording. In

addition, appellant signed a waiver form confirming he had been advised

of his rights prior to the February 22 questioning and at the time of his

arrest.





Coker testified during his dealings with appellant from

February 22-24, appellant referred to the death of Billy Graham.

According to Coker, appellant was willing to tell "his part" but did not

want to "tell it all" for fear of the lives of his family. Until that time,

Coker stated Graham's death was thought to be accidental.9 Coker stated

appellant said he would take a polygraph test to prove Graham's death

was not accidental.





On February 26, 1988, appellant was again transported to

SLED and a polygraph test was administered. Hartley testified he again

advised appellant of his Miranda rights and appellant signed a form

acknowledging he understood the rights. Hartley stated appellant said he

did not want an attorney and did not need one with him for the polygraph

test.





When he was returned to the sheriffs office, appellant signed a


8 It is not clear if this is the same sister who issued the earlier

warrants against appellant.



9 On June 10, 1987, Graham was found dead in his residence. The

residence had been extensively burned. The pathologist who performed

the autopsy concluded the cause of death was thermal burns and carbon

monoxide poisoning. Investigators were unable to determine the cause of

the fire.





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STATE v. MCCRAY





waiver of rights form which advised him, among other things, he had the

right to talk to a lawyer and to have a lawyer present while being

questioned. In addition, the waiver form stated appellant had been

advised of the right to remain silent and anything he said could and

would be used against him in a court as evidence against himself. At this

point, appellant told the police he had killed Graham for $20,000.

Appellant's statement was taped and later transcribed; however, appellant

did not sign the transcription. Coker testified he did not know whether

the transcription had been presented to appellant for his signature.





In relevant part, the transcription of appellant's February 26,

1988, statement is as follows:





GAMBLE: Charles now this is an informal discussion between

Capt. Coker with Clarendon County and Gary Martin with

SLED and Julius Lee with the Florence County Sheriff s Dept.

Of course, you know me. I'm J.E. Gamble with SLED but now

I want (sic) again ask you is it not true that I have given you

your rights the (sic) start with is that right, is that correct, I'm

going to read it again but this is not going to be a statement

that we are going to take from you. This is going to be a kind

of off the cup (sic) question and answer thing that we need to

compile the evidence to check this situation out for some

backup support evidence.



CHARLES: Okay.



GAMBLE: But now, (reading of the Miranda rights) do you

understand the rights I have explained to you?



CHARLES: Yes sir.



GAMBLE: Are you willing to talk with us now without a

lawyer being present?



CHARLES: Yes.



GAMBLE: Allright (sic). Well like I said Charles we just

want to, this is just for a purpose of us getting some questions

and answers. Now it is Friday, February 26, 1988 and the

time is 6:08 P.M. and we are at the Clarendon County Sheriff's

Dept. The main thing that we want to talk about Charles is



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STATE v. MCCRAY





like I said we need this information for what not . . . .



(emphasis added).





Thereafter, Gamble continued to ask appellant questions and

appellant responded.





Coker testified on every occasion he spoke with appellant,

appellant was advised of his rights. He stated no one threatened or

coerced appellant into giving a statement nor offered appellant any reward

or lenience. Coker testified appellant's only concern was for his nephew.

Coker stated appellant never stopped answering questions and never asked

for an attorney.





On cross-examination, Coker admitted he had taken a

statement from Caesar Wheeler on February 18, 1988. In this statement,

Wheeler stated appellant told him he had killed Graham. Coker further

testified law enforcement initiated every interview with appellant.





The Clarendon County Deputy Clerk of Court testified on

February 18, 1988, Detwiler was appointed to represent appellant on the

burglary and CSC charges and, later, he was appointed on the Clarendon

County murder charge. The clerk testified appellant did not sign a form

waiving his right to an appointed attorney.





Public Defender Detwiler testified on February 18 he was

appointed to represent appellant on the burglary and CSC charges and he

spoke with appellant on February 19 regarding these charges. Detwiler

stated he was later appointed to represent appellant on the Bradley

murder charge. Detwiler explained at some point he received a telephone

call from Gamble asking for permission to speak with appellant about

another charge against appellant in another county. Detwiler stated

Gamble did not explain the nature of this charge. Detwiler testified he

responded it made no difference to him, and he knew Gamble realized he

did not have authority to authorize a conversation with appellant.





A.

Under the Fifth Amendment, custodial interrogation may not

occur if an accused invokes his right to have counsel present during the

interrogation. A valid waiver of the right to counsel will not be presumed

simply from the silence of the accused after Miranda warnings are given.



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STATE v. MCCRAY





The record must show an accused was offered counsel but intelligently and

knowingly rejected the offer. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct.

1602, 16 L.Ed.2d 694 (1966).





The Fifth Amendment right to counsel is not offense-specific;

once an accused invokes the right to counsel for interrogation regarding

one offense, he may not be approached regarding any offense unless

counsel is present. Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100

L.Ed.2d 704 (1988); State v. Wilder, 306 S.C. 535, 413 S.E.2d 323 (1991).

If the accused invokes the right to counsel, interrogation must cease and

police may not conduct interrogation unless the accused initiates

communication, exchanges, or conversations with the police. Edwards v.

Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).





The record establishes appellant did not invoke his right to

counsel prior to interrogation by police on February 26, 1988, or at any

other time. Appellant never indicated he declined to speak to the

investigators unless his attorney was present. Instead, appellant signed a

document in which he acknowledged being informed of his right to the

presence of counsel during questioning and specifically declined that right.

In addition, he verbally stated he was willing to speak with law

enforcement without the presence of counsel. Appellant's prior statement

that he would retain a lawyer at some future date did not constitute an

invocation of his right to counsel for Miranda-Edwards purposes. State v.

Linnen, 278 S.C. 175, 293 S.E.2d 851 (1982)(accused did not invoke his

Fifth Amendment right to counsel where he was not reluctant to answer

questions after receiving Miranda warnings, even though he had applied

for appointed counsel and stated he intended to obtain his own attorney).10





Moreover, appointment of the public defender did not

constitute evidence of an intent by appellant to speak to police only with

counsel present. Contra Arizona v. Roberson, supra (accused invoked right

to counsel where he stated he wanted a lawyer before answering any

police questions); Edwards v. Arizona, supra (accused invoked right to

counsel where he requested counsel, interrogation ceased, and the next

morning he told police he did not want to speak to anyone); State v. Cox,

287 S.C. 260, 335 S.E.2d 809 (Ct. App. 1985), aff'd in part and rev'd on


10For Sixth Amendment purposes, accused's statement at the bond

hearing that he planned to secure counsel in the future was ambiguous

and did not constitute an invocation of the right to counsel. State v.

Draylon, 293 S.C. 417, 361 S.E.2d 329 (1987).



p.11


STATE v. MCCRAY





other grds., 290 S.C. 489, 351 S.E.2d 570 (1986)(accused invoked right to

counsel by stating, "I'll tell you about it when I talk to my lawyer.").

Accordingly, appellant had not invoked his right to counsel on February

26th and his statement on that date was not taken in violation of the

Fifth Amendment.





B.

Appellant's February 26, 1988, statement was not taken in

violation of his rights under the Sixth Amendment. The Sixth

Amendment right to counsel attaches when judicial proceedings are

initiated against the accused. Michigan v. Jackson, 475 U.S. 625, 106

S.Ct. 1404, 89 L.Ed.2d 631 (1986)(the Sixth Amendment attaches after

initiation of adversarial judicial proceedings against the defendant). At

the time appellant confessed, judicial proceedings had not yet been

initiated against appellant for the Graham murder.11 State v. George, 323

S.C. 496, 476 S.E.2d 903 (1996), cert. denied, ____ U. S.____, 117 S.Ct. 1261,

137 L.Ed.2d 340 (1997)(Sixth Amendment right to counsel had not

attached where accused confessed to homicide before judicial proceedings

had been initiated). Additionally, although counsel had been appointed to

represent appellant on other charges, appellant had not requested counsel

in regard to the Graham murder. State v. Register, 323 S.C. 471, 476

S.E.2d 153 (1996), cert. denied, ____ U.S. ____, 117 S.Ct. 988, 136 L.Ed.2d

870 (1997)(Sixth Amendment right to counsel is offense-specific; the mere

fact counsel was appointed in one matter does not invoke the Sixth

Amendment relating to a different matter).





C.

Contrary to appellant's assertion, Gamble's statements, "this is

an informal discussion," "this is not going to be a statement," "this is going

to be an . . . off of the cup (sic) question and answer thing that we need to

compile the evidence," did not constitute police trickery, rendering

appellant's statement involuntary. Appellant has misconstrued Gamble's

statements. Gamble's statements were clearly intended to convey the

manner in which he planned to conduct his interview of appellant.

Gamble informed appellant he would be taking the statement through

questions and answers, not by appellant giving a monologue.


11Appellant's brief indicates he was indicted for charges surrounding

Graham's death during the January 1989 grand jury term.





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STATE v. MCCRAY





D.



Considering all of the circumstances surrounding appellant's

confession,, we conclude the statement was voluntarily given and properly

admitted. The statement was given after appellant was apprised of his

Miranda rights and after he signed a document indicating he waived those

rights. In addition, the transcription of appellant's statement indicates he

verbally agreed to speak to the investigators. There is no evidence

appellant was coerced into making a statement. The trial judge properly

found appellant's statement was voluntarily given. We affirm the trial

judge's ruling. State v. Von Dohlen, 322 S.C. 234, 471 S.E.2d 689, cert.

denied, ____U.S.____, 117 S.Ct. 402, 136 L.Ed.2d 316 (1996)(on appeal, the

conclusion of the trial judge as to the voluntariness of a confession will not

be reviewed unless so erroneous as to show an abuse of discretion).





III.



During closing argument, co-defendant Smith referred to

appellant's and Prince's decisions not to testify. The trial judge denied

appellant's and Prince's motions for a mistrial based on this comment.







Appellant now argues the trial judge's denial of his motion for

a mistrial was an abuse of discretion. The Court considered this issue in

the context of Prince's appeal and determined the trial judge did not abuse

his discretion by denying the motion for a mistrial. State v. Prince, 316

S.C. 57, 447 S.E.2d 177 (1993). For the same reasons, the denial of

appellant's motion for a mistrial was not an abuse of discretion.





AFFIRMED.

TOAL, MOORE, JJ., and Acting Associate Justice George

T. Gregory, Jr., concur. FINNEY, C.J., concurring in result only.





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