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24873 - State v. Tubbs

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


THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State, Petitioner

v.

Bruce Howard Tubbs, Respondent.

ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS

Appeal From York County

J. Derham Cole, Circuit Court Judge

Opinion No. 24873

Heard September 23, 1998 - Filed January 4, 1999

REVERSED

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

petitioner.

Chief Attorney Daniel T. Stacey, and Assistant

Appellate Defender Melissa J. Reed Kimbrough, all of

South Carolina Office of Appellate Defense, for

respondent.

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STATE v. TUBBS





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for a writ of certiorari to review the Court of Appeals' unpublished opinion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.






FACTUAL/PROCEDURAL BACKGROUND





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

nickname?



A. Yes, I did.

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STATE v. TUBBS





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?

A. John.

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.

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STATE v. TUBBS





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."





LAW/ANALYSIS





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



1 292 S.C. 418, 357 S.E.2d 10 (1987), overruled on other grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991).

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STATE v. TUBBS





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

(1986).2





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.

p. 5


STATE v. TUBBS





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.





CONCLUSION





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.





p. 6