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24868 - State v. Avery

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

THE STATE OF SOUTH CAROLINA

In The Supreme Court

State of South Carolina, Respondent,

v.

David G. Avery, Appellant.

Appeal From Aiken County

G. Larry Inabinet, Family Court Judge

Henry F. Floyd, Circuit Court Judge

Opinion No. 24868

Heard November 4, 1997 - Filed December 14, 1998

AFFIRMED

Jack B. Swerling, of Columbia, for appellant.

Attorney General Charles Molony Condon, Deputy

Attorney General John W. McIntosh, Assistant

Deputy Attorney General Donald J. Zelenka,

Assistant Attorney General John P. Riordan, all of

Columbia; and Solicitor Barbara R. Morgan, of

Aiken, for respondent.







BURNETT, A.J.: Appellant was fourteen years old when he

participated in the armed robbery of a convenience store. During the

robbery, the store proprietor was killed. Following a transfer hearing, the

family court waived jurisdiction over appellant to general sessions court.

A jury convicted appellant of murder, armed robbery, and possession of a

weapon during the commission of a violent crime. He received concurrent

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STATE v. AVERY





sentences of life, twenty-five years, and five years, respectively. We

affirm.





FACTS





Transfer Hearing





According to the evidence presented at the transfer hearing,

appellant and two other individuals planned to rob the #1 Market.1 Prior

to the robbery, appellant procured two guns from a relative's home. He

carried one of the guns and pointed the weapon at one of the two store

employees during the robbery. One employee was shot; he died as a result

of the gunshot wound. Shortly after the robbery, appellant returned to his

home in Pennsylvania. He refused extradition to South Carolina. At the

time of the murder and armed robbery, appellant was almost fifteen years

old.2





Two Department of Juvenile Justice (DJJ) employees testified

on appellant's behalf. While both witnesses described appellant as "very

intelligent," one also indicated appellant was "very immature." This

witness stated appellant is a "follower" and respects authority. Both

witnesses concluded appellant would benefit from the programs available

at DJJ. Appellant's mother also testified at the transfer hearing.





The DJJ Preadjudicatory Transfer (Waiver) Evaluation was

admitted into evidence at the hearing. According to the evaluation,

appellant was from Pennsylvania. He had been a successful student until

the ninth grade when he began skipping school. Appellant's mother

reported she sent appellant to live with family members in South Carolina

because he disliked the high school he was attending. Appellant, however,

reported he was sent to South Carolina because he was associating with

friends who were delinquents.





As reported by the evaluation, appellant denied selling illegal


1The two other individuals provided statements identifying appellant

as the third participant.





2 Another participant, Chavados Miles, was also a juvenile. The third

participant, Chasako Glanton, was eighteen years old.

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STATE v. AVERY





drugs but stated his friends sold crack and marijuana. Appellant reported

he had smoked marijuana on a few occasions. He stated he began

drinking beer when he was fourteen years old.





The evaluation noted several factors which could positively

influence appellant's likelihood of rehabilitation. For instance, appellant

had no prior referrals or, adjudications in the juvenile justice system, he

appeared motivated to receive help, and he expressed remorse and

responsibility for his misbehavior. The report noted, "given [appellant's]

parole guidelines of 36 to 54 months, there may be sufficient time to work

toward his rehabilitation in the juvenile justice system."





The evaluation also noted several factors which could

negatively influence appellant's likelihood of rehabilitation. For instance,

appellant was charged with serious and violent offenses, he has a history

of regular alcohol use, and he gave discrepant information during various

interviews, indicating his unwillingness to honestly participate in the

rehabilitative process.





As stated in its waiver order, the family court considered the

testimony from the transfer hearing and the pre-waiver evaluation report

in issuing its findings and conclusions. In making its decision to transfer

jurisdiction, the family court considered the following facts persuasive:



There is probable cause to believe [appellant] committed

the crimes for which he is charged.



The seriousness of the offenses is of such gravity as to

require waiver for the protection of the community.



The alleged offenses are of a willful, malicious, premeditated,

and dangerous nature.



There is sufficient merit to warrant the grand jury

returning a true bill on the charges.



The offenses of Murder and Armed Robbery are felonies.



The pre-waiver evaluation reported [appellant's]

sophistication and maturity as adequate. However, [a

witness] from [DJJ] testified that, in light of the

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STATE v. AVERY





juvenile's intelligence, his level of sophistication and

maturity is low.



The crimes with which [appellant] is charged are of a

serious nature and if found guilty, would suggest he is

capable of acting without regard for others.



According to the pre-waiver evaluation, certain factors

such as the serious and antisocial nature of the charges,

the juvenile's use of drugs and alcohol and his failure to

discuss his life honestly negatively affect the likelihood of

rehabilitation.



Further, this Court finds that the juvenile would not

likely benefit from any programs or services offered by

the [DJJ].





The family court concluded it was unlikely appellant could be

rehabilitated in the juvenile justice system and it was in the best interest

of appellant and the community to transfer, jurisdiction to general sessions

court. The family court specifically stated its findings were based on the

criteria set forth in Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16

L.Ed.2d 84 (1966).3


3 In Kent, id., the United States Supreme Court established the

following criteria for determining whether jurisdiction should be waived

under the District of Columbia Juvenile Court Act:



1. The seriousness of the alleged offense to the community

and whether the protection of the community requires waiver.



2. Whether the alleged offense was committed in an

aggressive, violent, premeditated, or willful manner.



3. Whether the alleged offense was against persons or against

property, greater weight being given to offenses against

persons especially if injury resulted.



4. The prosecutive merit of the complaint, i.e., whether there

is evidence upon which a Grand Jury may be expected to



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STATE v. AVERY





Trial







At trial, the victim's son, John Reiner, Jr.,4 testified he and his

father owned the #1 Market. On the day of the robbery and shooting,

Chasako Glanton, who Reiner knew, entered the convenience store.

Glanton purchased three drinks from Reiner with a hundred dollar bill.

Reiner had to make change with money kept beneath the counter. Reiner

noticed another individual waiting in Glanton's vehicle outside the store.





Approximately one and one-half hours later, three slim young

males wearing stocking masks entered the store. Based on the clothes

Glanton had been wearing earlier in the day, Reiner recognized Glanton.

Reiner testified Glanton held his father at gunpoint and demanded he give

him the money from his pockets. Another robber held Reiner at gunpoint

and ordered him to remove money from the cash register and from under

the counter. The third participant remained at the door as a lookout. As


return an indictment



5. The desirability of trial and disposition of the entire offense

in one court when the juvenile's associates in the alleged

offense are adults who will be charged with a crime ....





6. The sophistication and maturity of the juvenile as

determined by consideration of his home, environmental

situation, emotional attitude and pattern of living.



7. The record and previous [criminal or adjudicative] history

of the juvenile . . .



8. The prospects for adequate protection of the public and the

likelihood of reasonable rehabilitation of the juvenile (if he is

found to have committed the alleged offense) by the use of

procedures, services and facilities currently available to the

Juvenile Court.



Id. U.S. at 567, S.Ct. at 1060, L.Ed.2d at 100.





4 Reiner was twenty five years old at the time of trial.

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STATE v. AVERY







Reiner was complying with the instructions, he heard a gun shot. The

three men ran away with money from the store.





Reiner admitted he was addicted to crack cocaine. He denied,

however, buying drugs from Glanton. He also denied planning a staged

robbery of the convenience store with Glanton.





Chavados Miles testified he participated in the shooting and

armed robbery at the #1 Market with appellant and Glanton. He testified

prior to the robbery the three took his grandmother's stockings. Appellant

stated he knew where the three could obtain guns. Appellant, Glanton,

and Miles went to appellant's aunt's home and confiscated two guns.





Miles testified the three placed the stockings over their faces

before entering the convenience store. Miles stated he stood as sentry

while appellant pointed one of the guns at Reiner and directed him to

remove the cash from the register and from under the counter. Glanton

pointed his gun at Reiner's father. Miles heard a gunshot then the three

fled.







After the shooting and robbery, the three men rented a hotel

room. They went swimming, went out to eat, and returned the two guns

to appellant's aunt. Miles described Glanton as nervous; he described

appellant as "normal."





Miles did not testify the robbery was staged. Miles pled guilty

to murder and armed robbery.





In his statement to the police, Glanton stated he, Miles, and

appellant had participated in the armed robbery and shooting at the #1

Market. Appellant had suggested the three obtain guns. Before entering

the convenience store, appellant shook hands with Glanton and Miles.

Appellant demanded the money inside the store. Glanton admitted

shooting the victim, but explained the gun discharged unintentionally

when he turned to run from the store.





At trial, Glanton testified he sold drugs to Reiner on a daily

basis. Reiner paid him with money from the store's cash register. Prior

to the robbery, Glanton stated Reiner owed him money for drugs. Glanton

maintained Reiner had suggested Glanton conduct a staged holdup of the

convenience store to obtain the money owed to him.





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STATE v. AVERY





Glanton testified appellant and Miles participated in the

robbery. He did not know if appellant and Miles knew the robbery was

staged. Glanton testified he first entered the convenience store alone; a

crowd of people were inside. Reiner indicated he was to return later.

Glanton testified appellant obtained the two guns. Glanton maintained

the safeties were placed on the guns. He stated no one other than Reiner

was to be present during the staged holdup. Glanton stated he was the

leader while appellant and Miles were the followers.





Appellant presented no witnesses and did not testify.





ISSUES



I. Did the family court abuse its discretion by transferring

jurisdiction to the Court of General Sessions?



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

motion for a directed verdict on the murder charge?



III. Did the trial judge err by denying appellant's motion for

a severance?



IV. Did the trial judge err in charging the jury it could not

find appellant guilty of involuntary manslaughter if it found

the killing occurred during the commission of a felony?





DISCUSSION





Appellant contends the family court judge erred in transferring

jurisdiction to general sessions court. We disagree.





South Carolina Code Ann. § 20-7-430(6) (1985) authorizes the

family court, to determine whether it is appropriate to transfer a juvenile

charged with murder to the general sessions court.5 The appellate court

will affirm a transfer order unless the family court has abused its


5 Section 20-7-430 was repealed by 1996 Act No. 383, § 2, effective July 1, 1996.

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STATE v. AVERY





discretion. Sanders v. State, 281 S.C. 53, 314 S.E.2d 319 (1984); State v.

Wright, 269 S.C. 414, 237 S.E.2d 764 (1977).





The serious nature of the offense is a major factor in the

transfer decision., See State v. Kelsey , 331 S.C. 50, 502 S.E.2d 63

(1998)(transfer upheld where defendant was charged with murder);

Sanders v. State, supra (transfer upheld where defendant was charged

with two counts of murder and two counts of assault and battery with

intent to kill); State v. Wright supra (transfer upheld where defendants

were charged with armed robbery and assault and battery with intent to

kill). The best interests of the public or of the juvenile may require the

juvenile be held accountable as an adult for his criminal conduct. In the

Interest of Shaw, 274 S.C. 534P 265 S.E.2d 522 (1980).





[I]t is the responsibility of the family court to include in its

waiver of jurisdiction order a sufficient statement of the

reasons for, and considerations leading to, that decision.

Conclusory statements, or a mere recitation of statutory

requirements, without further explanation will not suffice. The

order should be sufficient to demonstrate that the statutory

requirement of full investigation has been met and that the

question has received full and careful consideration by the

family court. The salient facts upon which the order is based

are to be set forth in the order.



In re Sullivan, 274 S.C. 544, 548, 265 S.E.2d 527, 529 (1980).





The transfer order demonstrates a full investigation had been

conducted and reflects consideration of the testimony from the transfer

hearing and of the DJJ's Preadjudicatory Transfer Evaluation. The order

found persuasive the premeditated and serious nature of the crimes with

which appellant was charged, appellant's lack of sophistication and

maturity, and his unwillingness to participate in the rehabilitative process

before concluding both the public's and appellant's best interests required

transfer of jurisdiction. The facts upon which the court's decision is based

are adequately stated within the order and are fully supported by the

testimony and evidence from the transfer hearing. The family court did

not abuse its discretion in transferring jurisdiction to the Court of General

Sessions and it should be affirmed. Sanders v. State, supra ; Wright v.

State, supra.



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STATE v. AVERY





II.





Appellant argues the trial judge erred by failing to grant his

motion for a directed verdict on the murder charge. Specifically, he claims

there was no evidence of malice on his behalf. We disagree.





In ruling on a directed verdict, the trial judge is concerned

with the existence of evidence, not its weight. State v. Williams, 303 S.C.

274, 400 S.E.2d 131 (1991). Viewing the evidence in the light most

favorable to the State, a jury question exists if there is any direct or

substantial circumstantial evidence which reasonably tends to prove the

guilt of the accused or from which guilt may be fairly and logically

deduced. Id.





When two or more combine together to commit a robbery and,

during the robbery, a homicide is committed as a natural and probable

consequence, all present and participating in the robbery are as guilty of

the killing as the one committing the homicide. State v. Crowe, 258

S.C. 258, 188 S.E.2d 379, cert. denied, 409 U.S. 1077, 93 S.Ct. 691, 34 L.Ed.2d

666 (1972). If a person intentionally kills another during the commission

of a felony, malice may be inferred. State v. Norris, 285 S.C. 86, 328

S.E.2d 339 (1985), overruled on other grds., State v. Torrence, 305 S.C. 45,

406 S.E.2d 315 (1991).





There was evidence appellant planned and participated in the

armed robbery of the #1 Market. He obtained weapons for the robbery,

carried one of the weapons, wore a mask, and demanded Reiner give him

the money from the cash register while pointing a gun. Reiner's father

was fatally shot even though Reiner complied with appellant's instructions

to give him the money. Appellant acted "normally" after the shooting.

Viewing this evidence in the light most favorable to the State, the trial

judge properly denied appellant's motion for a directed verdict on the

murder charge.





III.





Appellant contends the trial judge erred by failing to grant his

motion for a severance. Before trial, he argued his defense was

antagonistic to that of his co-defendant Glanton and, therefore, a

severance was necessary in order for a fair trial under the Sixth

Amendment. We disagree.



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STATE v. AVERY





Appellant was jointly charged with murder. He was not

entitled to a separate trial as a matter of right. State v. Crowe, supra.

The trial judge's refusal to grant a severance did not constitute an abuse

of discretion. Glanton admitted he shot the victim, but claimed the

shooting was unintentional. Glanton explained the robbery was merely

staged. Glanton's testimony was favorable to appellant. Appellant's

defense was not antagonistic to Glanton's defense.





Moreover, if appellant had been tried separately from Glanton,

the same evidence could have been presented. Appellant could still have

been prosecuted under the theory of accomplice liability for the murder.

Appellant has failed to show any abuse of discretion or prejudice from the

joint trial. Id.





IV.





Appellant argues the trial judge erred by instructing the jury it

could not return a verdict of armed robbery and involuntary manslaughter.

We disagree.





During the charge conference, the trial judge stated he would

charge the jury on the lesser-included offense of involuntary manslaughter,

but would instruct the jury it could not return a verdict of involuntary

manslaughter if it found a felony had been committed. Appellant

responded, stating inconsistent verdicts are permitted. The trial judge

stated, "we'll cross that bridge when we get to it."





The judge instructed the jury as follows:



Now, ladies and gentlemen, with regard to the crime of

involuntary manslaughter, it does not include the killing of

another while engaged in a felony. I would charge you that

under South Carolina law armed robbery, if you find the State

has established that beyond a reasonable doubt and a violation

of 1-6-23-490 [sic] which is the display of a deadly -- of a

weapon in the course of a violent crime, both constitute

felonies. And if you find a felony in fact occurred then

involuntary manslaughter does not apply.



Appellant did not object to this instruction.



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Approximately forty-five minutes after the jury began

deliberating, it asked the following questions:



Involuntary manslaughter and armed robbery, can these

verdicts [be rendered] together? Do we have to convict of

murder if we convict of armed robbery? Can we convict the

shooter, Mr. Glanton, of murder, do we have to convict Mr.

Avery of the same or can we convict Mr. Avery of armed

robbery and manslaughter?







After discussing a response with the parties, the trial judge

instructed the jury as follows:



All right, the first question is, if I can make a fair

interpretation of it, is it possible to return an involuntary

manslaughter and an armed robbery conviction as a possible

form of the verdict? ... involuntary manslaughter does not

include the killing of another while engaged in a felony... If

you find beyond a reasonable doubt that one or more of the

defendants committed the crime of armed robbery, and you

find that a homicide was committed during the course of that

robbery, you may not return a verdict of involuntary

manslaughter.





You may then have the option of returning a verdict of

murder, if you're satisfied that the State has proven the

elements of that crime beyond a reasonable doubt, or you have

the option of returning a verdict of not guilty of murder, but

you may not return a verdict of involuntary manslaughter, if

you find beyond a reasonable doubt that one or more of the

defendants committed the crime of armed robbery.







In response to the jury's third question, the trial judge restated

his instruction on accomplice liability. At the conclusion of the

supplemental instructions, appellant requested the trial judge charge the

jury it could acquit him of murder and armed robbery but convict him of

involuntary manslaughter. The trial judge denied this request.





Although appellant originally suggested the jury could return

inconsistent verdicts on armed robbery and involuntary manslaughter, he

did not object to the trial judge's initial or supplemental instructions



p.39


STATE v. AVERY





regarding armed robbery and involuntary manslaughter. Accordingly, this

issue is not preserved for appeal. 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)(where appellant fails to object to jury charge, issue is not

preserved for consideration on appeal).





In any event, although the jury could have returned a verdict

of armed robbery and involuntary manslaughter,6 it would have been an

incorrect statement of law for the trial judge to instruct the jury appellant

could be convicted of involuntary manslaughter and armed robbery. State

v. Tucker, 324 S.C. 155, 478 S.E.2d 260 (1996), cert. denied, ___U.S.___,

117 S.Ct. 1561, 137 L.Ed.2d 708 (1997)(involuntary manslaughter is

defined, in relevant part, as the killing of another without malice and

unintentionally, but while one is engaged in the commission of some

unlawful act not amounting to a felony and not naturally tending to cause

death or great bodily harm). The trial judge is required to charge the

current and correct law of South Carolina. State v. Foust, 325 S.C. 12,

479 S.E.2d 50 (1996).





Appellant's Argument II is affirmed pursuant to Rule 220(b)(1),

SCACR, and the following authority: State v. Longworth, supra.





AFFIRMED.





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

T. Gregory, Jr., concur. FINNEY, C.J., dissenting in separate

opinion.








6 State v. Alexander, 303 S.C. 377, 401 S.E.2d 146 (1991)(abolishing

rule against inconsistent verdicts).



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STATE v. AVERY





FINNEY, C.J.: I respectfully dissent. In my opinion, the waiver

order is insufficient because it does not set forth the basis for its decision

with sufficient specificity to permit meaningful review. Kent v. United States,

383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). 1 would hold

that the order inadequately explains why the family court judge

discounted the evidence showing appellant could benefit from

rehabilitation, and the other evidence militating against the transfer of

jurisdiction to the circuit court. Accordingly, I would reverse and remand

to the family court for reconsideration of the waiver issue.





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