Davis Adv. Sh. No. 1
THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Petitioner
Bruce Howard Tubbs, Respondent.
ON WRIT OF CERTIORARI TO THE COURT OF
Appeal From York County
J. Derham Cole, Circuit Court Judge
Opinion No. 24873
Heard September 23, 1998 - Filed January 4, 1999
Attorney General Charles Molony Condon, Deputy
Attorney General John W. McIntosh, Assistant
Deputy Attorney General Salley W. Elliott, Assistant
Attorney General G. Robert Deloach, III, and Solicitor
Thomas E. Pope, of the Sixteenth Circuit, for
Chief Attorney Daniel T. Stacey, and Assistant
Appellate Defender Melissa J. Reed Kimbrough, all of
South Carolina Office of Appellate Defense, for
TOAL, A.J.: In this criminal matter, we granted the State's petition
for a writ of certiorari to review the Court of Appeals' unpublished opinion
in State v. Tubbs, 97-UP-334 (Ct. App. filed May 19, 1997). The defendant
in this case, Bruce Tubbs ("Defendant"), was convicted of burglary in the first
degree and assault and battery with intent to kill.
The victim, Stephen O'Day ("Victim"), lived with his mother in York
County. Also living at the house with the O'Days were Louise Boone and her
four-year-old son. On the evening of March 26, 1993, Louise Boone and
Victim got into an argument which resulted in Victim striking Boone several
times with a vacuum cleaner pipe. Boone called her boyfriend, Mike Elton,
and asked him to come pick her up.
At around 3:30 a.m., Elton, accompanied by Defendant and John Nagle,
arrived at Victim's house to pick up Boone. Victim testified that despite his
attempts to prevent Defendant and the others from entering the house,
Defendant forced the door open and proceeded to stab Victim on his face,
hand, and side. Defendant, on the other hand, testified that Victim initially
let them into the house and later attacked Defendant in the kitchen with a
butcher knife. Defendant claimed he stabbed Victim in self-defense.
At trial, the solicitor and several witnesses referred to Defendant by his
nickname, "Cobra." In all., Defendant was referred to as "Cobra"
approximately seven times in front of the jury. The first remark came during
the State's re-direct examination of a Rock Hill police officer. The officer had
testified under cross-examination by the defense that a person nicknamed
"Rooster" was a suspect in the investigation. The officer further testified that
he now knew that "Rooster" was not Defendant. On re-direct by the State,
the following colloquy occurred:
Q. And you said based on your knowledge of nicknames that
Rooster was not the defendant?
A. Based upon what I found out later.
Q. Did you find out later on who the defendant was or if he had a
A. Yes, I did.
Q. What was that nickname?
A. That nickname was Cobra.
The next mention of Cobra came during the State's cross-examination
of Mike Elton. The solicitor asked Elton if he knew Defendant's nickname.
Elton responded that Defendant's nickname was "Cobra." The third incident
occurred again during the solicitor's cross-examination of Elton. The
following exchange took place, in which defense counsel raised an objection:
Q. Who was driving the car when you left the house?
Q. Where was Cobra sitting?
A. In the front seat.
[Defense:] Objection, your honor. My client's name is Bruce Tubbs.
[Court:] All right, refer to him by his appropriate name.
The next reference to "Cobra" came during the solicitor's cross-
examination of John Nagle; the defense did not object. In the exchange,
Nagle read a statement he had previously given to police. In the statement,
Nagle had referred to Defendant as "Cobra." Nagle explained at trial that
"Cobra" was Defendant's nickname.
The final three references to "Cobra" came during the State's closing
argument. In the first instance, the solicitor stated, "What we are here to
do, ladies and gentlemen, is to consider the evidence against Mr. Bruce
Tubbs, also known as Cobra to his friends." The second instance was
objected to by the defense:
Solicitor: Mr. Elton never saw anything happen between Cobra and
Mr. O'Day --
Defense: Objection, your honor. I would ask him to please refer to
people by their proper name.
Court: I overrule your objection; this is argument.
In his last reference to "Cobra," the solicitor stated., "So, you've got
Cobra's word against Stephen O'Day's word."
The Court of Appeals found that the trial judge erred in overruling
defense counsel's objection to the nickname "Cobra" during closing argument.
The court held that the solicitor's remarks so infected the trial with
unfairness, as to make the resulting conviction a denial of due process. The
court therefore reversed the trial court and remanded for a new trial.
We granted the State's petition for a writ of certiorari to consider
whether the Court of Appeals erred in reversing the trial court based upon
the solicitor's references to "Cobra."
The State argues that the solicitor's references to Defendant as "Cobra"
were harmless because they were isolated and cumulative to the record. We
agree that the references to "Cobra" were harmless.
Relying on State v. Hawkins,1 the Court of Appeals held that Defendant
was denied a fair trial. In Hawkins, we applied the following standard for
determining whether a prosecutor's remarks deprived the accused due process
of law: "the relevant question ... is whether the prosecutor's comments ' so infected the trial with unfairness as to make the resulting conviction a denial of due process."' 292 S.C. at 421, 357 S.E.2d at 12 (emphasis added)(quoting
Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S. Ct. 1868, 1871, 40 L. Ed.
2d 431, 437 (1974)). The solicitor in Hawkins referred to the defendant's
nickname, "Mad Dog," over forty times during the guilt phase and sentencing
proceedings. The trial court overruled defense counsel's initial objection. We
held that it was permissible for the solicitor to make inquiry sufficient
to clarify the defendant's identity. However, the excessive and repetitious use
of the term "Mad Dog" denied the defendant a fair trial and infected the
sentencing proceedings with an arbitrary factor in violation of the Eighth
Amendment to the United States Constitution.
In the instant case, the Court of Appeals noted that there was no
question concerning the identity of the assailant because Defendant admitted
stabbing Victim in self-defense. The court concluded that the references to
Defendant as "Cobra" were especially damaging since the case hinged on
whether the jury believed Victim's or Defendant's version of events.
Arguments must be confined to evidence in the record and reasonable
inferences therefrom, although failure to do so will not automatically result
in reversal. State v. Huggins, 325 S.C. 103, 481 S.E.2d 114 (1997); State v. Copeland, 321 S.C. 318, 468 S.E.2d 620 (1996). A new trial will not be
granted unless the prosecutor's comments so infected the trial with unfairness
as to make the resulting conviction a denial of due process. Donnelly v.
DeChristoforo, 416 U.S. 637, 94 S. Ct. 1868, 40 L. Ed. 2d 431 (1974); accord
State v. Hawkins, 292 S.C. at 421, 357 S.E.2d at 12. "[I]t is not enough that
the remarks were undesirable or even universally condemned." Darden v. Wainwright,
477 U.S. 168, 181, 106 S. Ct. 2464, 2471, 91 L. Ed. 2d 144, 157
In the instant case, Defendant's nickname came up only seven times
during the entire trial. This is compared with the over forty times in
Hawkins. Moreover, the first two references to "Cobra" were not objected to
by defense counsel. Additionally, at least one of the seven instances was
justified to properly establish Defendant's identity. During cross-examination,
Nagle was asked by the solicitor to read a statement he had given to police
the day after the stabbing incident. In the statement, Nagle had stated,
"Cobra had had about 12 beers in all." The solicitor then asked Nagle who
"Cobra" was. Nagle responded that "Cobra" was Defendant.
We find that the solicitor did not manipulate or misstate the evidence
in this case. We hold that the solicitor's references to "Cobra" during
summation, though undesirable, constituted an occasional use of Defendant's
nickname and did not infect the entire trial with unfairness as to deprive
Defendant due process of law. See Arnold v. Evatt, 113 F.3d 1352 (4th Cir.
1997)(death penalty case in which the solicitor's occasional use of the
2In Darden, the United States Supreme Court found that the Donnelly
test for finding a due process violation had not been met because (1) the
prosecutor's comments were an invited response to defense counsel's
arguments, (2) the evidence against the defendant constituted overwhelming
eyewitness and circumstantial evidence to support a finding of guilt on all
charges, and (3) the trial court clearly instructed the jurors that arguments
of counsel may not be considered as evidence. Darden v. Wainwright, 477
U.S. 168Y 106 S. Ct. 2464, 91 L. Ed. 2d 144. Though we find none of these
factors present in the instant case, the question remains whether the State's
references to "Cobra" were excessive and repetitious so as to deny Defendant
due process of law.
defendant's nickname, "Mad Dog," during the guilt phase and resentencing
proceedings did not deny defendant due process of law), cert. denied, ___ U.S.
___ 118 S. Ct. 715, 139 L. Ed. 2d 655 (1998).
Further, in a case such as this, the alleged injury does not involve the
denial of a benefit of a specific provision of the Bill of Rights. Donnelly v.
DeChristoforo, 416 U.S. 637, 94 S. Ct. 1868, 40 L. Ed. 2d 431. 3 Where
specific guarantees of the Bill of Rights are involved, such as the right to
counsel, a court must insure that prosecutorial conduct in no way
impermissibly infringed such rights. Id. This is contrasted with the instant
case where reversal is warranted only if the prosecutor's remarks so infected
the entire trial with unfairness as to make the resulting conviction a denial
of due process. Id. We find no such constitutional infringement here.
Based on the foregoing, the Court of Appeals' decision is REVERSED.
FINNEY, C.J., MOORE, WALLER, and BURNETT, JJ., concur.
3 In Donnelly, the defendant's claim of constitutional error focused on
two remarks made by the prosecutor during closing argument. The first
remark involved the prosecutor's personal opinion as to the defendant's guilt.
The second comment was directed at the defendant's motives in standing
trial. The Court found that the prosecutor's remarks did not deny the
defendant due process of law.