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2004-UP-186 - State v. Randolph
THE STATE OF SOUTH CAROLINA

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals


The State,        Respondent,

v.

Annette W. Randolph,        Appellant.


Appeal From Newberry County
James W. Johnson, Jr., Circuit Court Judge


Unpublished Opinion No. 2004-UP-186
Submitted March 8, 2004 – Filed March 18, 2004


AFFIRMED


Assistant Appellate Defender Robert M. Dudek, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka and Assistant Attorney General Derrick K. McFarland, all of Columbia; and Solicitor W. Townes Jones, IV, of Greenwood, for Respondent.


PER CURIAM:  Annette Randolph (Appellant) was convicted of murder and sentenced to life imprisonment without the possibility of parole.  Randolph argues on appeal the trial court erred (1) by denying her motion for a directed verdict of acquittal and (2) by ruling that she waived her right to challenge the voluntariness of her statement to law enforcement.  We affirm. [1]

FACTS

On March 3, 2001, Officer Kevin Hughes was dispatched to Appellant’s home in response to a call that an individual needed medical help.  Upon Hughes’ arrival, Michael Darby, the man who made the call to 911, invited him into the home.  Hughes saw the decedent, Ronald Epps, lying on the couch with a small towel over his face and a lot of blood around him.  Officer Hughes determined Epps was dead and requested assistance.  Appellant was the only other person present in the home and in “an excited state.”  Officer Hughes testified there were no signs of forced entry and no mention of an intruder.

Darby testified Appellant woke him up in the morning and asked him to wake up Epps, who she said was on the couch with a towel over his face and blood around him.  While Darby was attempting to wake Epps, Appellant pointed out a hammer on the kitchen counter and asked him to move it.  He refused.  Recognizing that Epps needed medical attention, Darby called 911.  Assistance arrived but Epps was deceased.

Officer Michael O’Connell arrived at the scene and testified that a hammer was found in the bottom drawer next to the stove.  Based on information he obtained from Officer Hughes, Officer O’Connell took the hammer first to the morgue and later to the evidence locker.

Officer Danny Remion testified he recovered a hammer from the home and it had rust on it.  Three days later, the hammer had even more rust on it.  His testimony was that the rust was consistent with the hammer having been recently washed.  He testified that there were traces of blood in the shower in the master bathroom and in the sink in a second bathroom.  Officer Chuck Counts testified that he tested the hammer and that it had recently been wet.

The coroner testified Epps had been dead “for several hours,” and the results of the autopsy indicated that a blunt object had been used.  Dr. Janice Ross performed the autopsy on the decedent and concluded that he had been dead “from four to five hours up to twelve hours.”  She testified she had seen the hammer and could not rule out that it could have been used to cause the blunt force injury.

Epps’ girlfriend, Yvette Pratt, testified that she and Epps had driven around Newberry the night of March 2.  He was carrying a roll of cash totaling at least $1200 that night.  At trial, Officer Eddie Salizar confirmed Pratt’s testimony, adding that he had searched Epps the evening of March 2 between 8:00 and 9:00 p.m. on Wise Street and Epps had a lot of cash on him.

At about 11:30 p.m., Pratt dropped Epps off where he resided, a trailer owned by Appellant and her husband, Linart Randolph (“Linart”).  Pratt returned to the trailer at about 1:00 a.m.  Appellant and Linart were arguing, and Linart was walking around with a hammer.  Pratt left the trailer.  She testified that Epps was alive when she left.

A witness testified that Linart was seen at a friend’s house about 3:00 a.m. smoking crack and had a roll of money on him at the time.  A neighbor testified that in the morning when the police arrived in response to the 911 call, she spoke to Appellant, who pulled out a roll of $100 bills.  Appellant and Linart were subsequently arrested and charged with murder and criminal conspiracy.  The trial judge directed a verdict of acquittal on the criminal conspiracy charge for each of them.  However, the jury found Appellant guilty of murder.  Appellant was sentenced to life imprisonment without the possibility of parole.

LAW/ANALYSIS

I.       Directed Verdict

Appellant contends the trial judge erred in denying her motion for a directed verdict on the murder charge because there was nothing in the State’s case to connect her to the murder.  We disagree.

On appeal from the denial of a directed verdict in a criminal case, this Court must view the evidence in the light most favorable to the State.  State v. Al-Amin, 353 S.C. 405, 411, 578 S.E.2d 32, 35 (Ct. App. 2003); State v. Morgan, 352 S.C. 359, 364, 574 S.E.2d 203, 205 (Ct. App. 2002). When ruling on a motion for a directed verdict, the trial court is concerned with the existence or nonexistence of evidence, not its weight. State v. Wilds, 355 S.C. 269, 274, 584 S.E.2d 138, 140 (Ct. App. 2003).  If there is any direct evidence or any substantial circumstantial evidence reasonably tending to prove the guilt of the accused, this Court must find the case was properly submitted to the jury.  State v. Harris, 351 S.C. 643, 653, 572 S.E.2d 267, 273 (2002).  On the other hand, if the State fails to produce evidence of the offense charged, a defendant is entitled to a directed verdict.  State v. McHoney, 344 S.C. 85, 97, 544 S.E.2d 30, 36 (2001); State v. Padgett, 354 S.C. 268, 271, 580 S.E.2d 159, 161 (Ct. App. 2003).

Appellant argues the evidence only raised a suspicion of guilt.  “Suspicion” implies a belief or opinion as to the guilt based on facts or circumstances that do not amount to proof.  State v. Buckmon, 347 S.C. 316, 322, 555 S.E.2d 402, 404 (2001) (citing State v. Lollis, 343 S.C. 580, 541 S.E.2d 254 (2001)).

The State argues there is sufficient circumstantial evidence to submit the murder charge to the jury.  On March 2, 2001, Epps lived in the home owned by Appellant and Linart.  A friend, Darby, lived in the home with them.  When Officer Hughes, the first officer to arrive, got to the house and found Epps dead, Appellant and Darby were the only two people there.  Darby had placed the 911 call to the police.  According to Officer Hughes, there was no evidence of a forced entry.

Epps’ girlfriend, Pratt, testified she had spent most of the day of March 2 with him and, when she dropped him off at the house at some point that night, he had at least $1200 on him.  She stopped back by the house later that night but left when Appellant and Linart were arguing.  Linart was walking around with a hammer in his hand.  She testified Epps was alive when she left. 

Officer Salizar confirmed Pratt’s testimony about the money, adding that he had searched Epps’ person sometime on March 2 between 8:00 and 9:00 p.m. on Wise Street and Epps had a lot of cash.  A witness testified Linart was at a friend’s house at 3:00 a.m. and had a roll of money on him at that time.  A neighbor testified that, after the police arrived in response to the 911 call, she spoke to Appellant, who pulled out a roll of $100 bills.

After Darby tried to wake Epps and got no response, he saw a hammer on the kitchen counter.  Appellant asked him to move it and he refused.  Officer Remion testified the hammer recovered from the home had rust on it.  Over the next three days, the hammer had even more rust on it, consistent with the hammer having been recently washed.  When Officer Chuck Counts tested the hammer, he concluded that it had recently been wet.  Traces of blood were found in the shower in the master bathroom and in the sink in a second bathroom. 

Officer Michael O’Connell testified that he found a hammer in the bottom drawer next to the stove.  He took the hammer first to the morgue and later to the evidence locker.

The coroner testified the decedent had been dead “for several hours” and the results of the autopsy indicated that a blunt object had been used.  Dr. Janice Ross, who performed the autopsy on Epps, concluded that Epps had been dead “from four to five hours up to twelve hours” and that she had seen the hammer and could not rule out that it could have been used to cause the blunt force injury.

The evidence in the instant case raised more than a mere suspicion of guilt toward Appellant:

These facts, especially Appellant’s request to Darby to move the hammer, that the hammer had been wet, that Epps had a considerable amount of money when he got home and Appellant had a roll of money in the morning, constitute sufficient circumstantial evidence presented by the State to warrant submission of the case to the jury.

II.      Voluntariness of Appellant’s Statement

Appellant argues the trial judge erred by ruling that she waived her right to challenge the voluntariness of her statement.  We disagree.

At the start of the trial, the trial judge inquired whether there were any pretrial motions, specifically, pursuant to Jackson v. Denno. [2]   Appellant answered that there were no motions.  The State did not introduce Appellant’s statement in their case in chief.

On direct examination by trial counsel, Appellant testified that she returned to the trailer on Friday night and “went to bed around sometime Friday morning or it could have been Friday night, over into Friday morning.  I really don’t know the times. . . .”  Appellant testified she had voluntarily given a statement to Officer Hughes the morning of the incident.  She said she went to the police station voluntarily with Officer Hughes, read her rights and knew “what she was doing.”  She said she made the statement voluntarily.  Trial counsel pointed out where Appellant had written on the third page of her statement that she had gone to bed at 1:30 a.m., to which she responded: “I was just getting nervous and really confused and stuff.  And so, I really don’t know.  It could have been 10:30, 11:30, 12:30 or 1:30.”  She testified further that she was buying crack on Wise Street somewhere between 10:25 and 10:40 p.m.  At another point in her testimony, Appellant said she had been in bed at 10:30 or 10:40 p.m.

When Appellant was questioned on cross-examination about her statement, the following colloquy occurred:

[STATE:]  Officer Hughes did not pressure you?

[APPELLANT:]  He told me to write the statement.

[STATE:]  To write the statement.

[APPELLANT:]  He did not bother me.

[STATE:]  Didn’t bother you?

[APPELLANT:]  No, he did not.

. . . .

[STATE:]  He didn’t put any pressure on you to write this?

[APPELLANT:]  No.

Appellant testified she became confused and Officer Jackie Swindler tried to “cross her up,” had her “shook up,” and was “pressing her”; however, she never claimed the statement was involuntary.  In fact, her testimony was that she gave the statement voluntarily.

At the conclusion of cross-examination, the State moved to introduce the statement.  Trial counsel objected because “there is no reason whatsoever to put it in there.”  The judge sustained the objection, but reserved the right to reverse himself.

At the close of the case, the State asked the judge to revisit the issue of the statement being admitted into evidence.  The judge admitted the statement into evidence, and trial counsel renewed his prior objection arguing that admission of the written statement would give it more credibility than the rest of the testimony.  Trial counsel was asked why a Jackson v. Denno hearing was not requested.  Trial counsel responded with the argument that nobody told him they were going to admit the statement.  In overruling the objection, the judge explained that since the State did not attempt to put the statement into evidence in their case in chief and trial counsel questioned Appellant about it, voluntariness was waived and the State was entitled to cross-examine.

The conclusion of the trial judge as to the voluntariness of a statement will not be disturbed unless so erroneous as to show an abuse of discretion.  State v. Rochester, 301 S.C. 196, 200, 391 S.E.2d 244, 247 (1990); State v. Livingston, 223 S.C. 1, 6, 73 S.E.2d 850, 852 (1952).  For the trial judge to determine whether a statement was knowingly, intelligently, and voluntarily made, an examination of the “totality of the circumstances” surrounding the waiver must be made.  State v. Doby, 273 S.C. 704, 708, 258 S.E.2d 896, 900 (1979).  An express waiver is not necessary to support the finding that a defendant has waived the right to counsel or the right to remain silent.  North Carolina v. Butler, 441 U.S. 369, 373 (1979).

Trial counsel denied the offer for a Jackson v. Denno hearing at the start of the case.  The State never introduced Appellant’s statement in its case in chief.  The State only cross-examined Appellant on specific issues of time after trial counsel introduced the contents of the statement during direct examination.

Based on the foregoing facts, the trial judge was correct in finding that the statement was given voluntarily and allowing it into evidence.

CONCLUSION

Accordingly, based on the foregoing reasons, Appellant’s conviction and sentence are

AFFIRMED.

HEARN, C.J., ANDERSON, and BEATTY, JJ., concur.


[1] We decide this case without oral argument pursuant to Rule 215, SCACR.

[2] Jackson v. Denno, 378 U.S. 368 (1964).