THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
Christopher Frank Pittman,
Appeal from Charleston County
Daniel F. Pieper, Circuit Court Judge
Opinion No. 26339
Heard October 5, 2006 – Filed June 11, 2007
CHIEF JUSTICE TOAL:
Christopher Pittman was arrested and charged with double homicide in
connection with the deaths of his paternal grandparents. Pittman was
twelve years old at the time of the incident. After a hearing, the
family court waived jurisdiction allowing Pittman to be tried as an
adult. The jury convicted Pittman of both murders and the trial judge
sentenced Pittman to two concurrent terms of thirty years imprisonment.
This appeal followed. We affirm.
Factual / Procedural Background
In November of 2001, Christopher
Pittman (Appellant) shot and killed his paternal grandparents, Joe Frank
and Joy Pittman, at close range with a .410 shotgun. At the time of the
incident, Appellant was twelve years old and had recently come from
Florida, where he lived with his father, to live with his grandparents
in Chester, South Carolina.
Shortly before moving to Chester
with his grandparents, Appellant’s relationship with his father became
strained. Specifically, Appellant had attempted to run away from home,
and also had threatened to harm himself with a knife. In response to
this behavior, Appellant’s father committed him to an inpatient facility.
While at the facility, Appellant began taking the antidepressant Paxil.
Soon after a short period of commitment, Appellant’s father had him
released from the facility and agreed to allow Appellant to live with
his grandparents in Chester.
Upon moving to Chester, Appellant enrolled in school and began to
actively participate in church with his grandparents. His grandmother
also continued Appellant’s treatment for depression by taking him to a
local physician to refill his Paxil prescription. The physician did not
refill the Paxil prescription, but instead offered free samples and a
prescription of Zoloft.
On the day of the murders, the
assistant principal of Appellant’s school called Appellant’s
grandparents to the school in response to an incident which occurred the
previous day on the school bus. During the incident in question,
Appellant allegedly choked a second grade student.
After leaving the school,
Appellant and his grandparents attended choir practice. The church
musician testified that she admonished Appellant for kicking her chair,
at which time his grandfather took him outside to talk to him. Upon
their return, the musician noted that Appellant had an angry expression.
According to Appellant, when
they returned home, his grandparents locked him in his room and his
grandfather warned him that he would paddle Appellant if he came out of
the room. Later that night, Appellant came out of his room and his
grandfather paddled him.
After his grandparents went to
bed, Appellant waited for ten minutes, loaded a shotgun, entered their
bedroom, and shot his grandparents to death in their bed. Appellant
then lit several candles and positioned them so that the house would
catch on fire after he left. Appellant collected some money, weapons,
and his dog, took the keys to his grandparents SUV, and drove away.
Early the next morning, two
hunters found Appellant wandering around in the woods with a shotgun.
Appellant told the hunters that he had been kidnapped by a black man who
had shot his grandparents and set their home on fire. Appellant further
told the hunters that he was able to escape when the kidnapper got the
SUV stuck in the woods. He further stated that the kidnapper had shot
at him before throwing the vehicle’s keys and running into the woods.
Upon hearing this story, the hunters, who were also firemen with the
Corinth Fire Department, took Appellant to the fire station where they
alerted the police.
A search ensued for the black
man who allegedly committed the crimes as Appellant suggested. During
this time, Chester deputy Lucinda McKellar (McKellar) arrived to speak
with Appellant. Under the impression that Appellant was a victim and
possible witness to the crimes, McKellar took an oral and written
statement from Appellant. In the statements, Appellant related the
story that he had told the hunters.
As the search for the alleged
kidnapper continued, the Chester police were also conducting an
investigation of the crime scene. At some point in the afternoon,
McKellar’s supervisor notified her that the information from the crime
scene and the search of the vehicle indicated that Appellant was a
possible suspect in the crimes. At that time, McKellar took Appellant
to the police station.
When they arrived at the police
station, McKellar took Appellant to a conference room and told him that
they needed to have an “adult conversation.” Pittman sat down at the
table and McKellar explained the Miranda rights. At that time,
Appellant gave the officers a third statement in which he confessed to
the murders and detailed the events of the night. McKellar wrote the
statement and Appellant read and signed it.
After his confession, the police
arrested Appellant for double homicide and arson. The prosecution filed
a motion with the family court to waive its jurisdiction, which the
family court granted. After several pretrial motions, various
continuances, and delays, Appellant’s trial was held from January 31,
2005 to February 15, 2005. The jury convicted Appellant on both counts
of murder. The trial judge sentenced Appellant to the shortest sentence
possible under the mandatory minimum sentencing guidelines – two
concurrent terms of thirty years imprisonment.
After unsuccessfully arguing
several post-trial motions for a new trial, Appellant filed this notice
of appeal. This Court certified the appeal for review pursuant to Rule
204(b), SCACR, and issued an order expediting the appeal. Appellant
raises the following issues for review:
Did the trial
court err in failing to direct a verdict in favor of
Appellant because the prosecution failed to present
sufficient evidence to rebut the presumption of incapacity?
deprived of his constitutional right to a speedy trial?
Did the trial
court err in denying Appellant’s motion for a new trial
based on two jurors’ post-trial comments that they did not
think Appellant was guilty?
Did the trial
court err in denying Appellant’s motion for a new trial
based on juror misconduct?
Did the family
court err in waiving jurisdiction over Appellant’s case?
Court overrule its previous decision in State v. Corey D.,
339 S.C. 107, 529 S.E.2d 20 (2000)?
violate the Eighth Amendment to the United States
Constitution to sentence a twelve-year-old to a thirty-year
prison term without the possibility of parole?
Did the trial
court err in failing to suppress Appellant’s confession?
Did the trial
court err in failing to charge the jury on the offenses of
voluntary and involuntary manslaughter?
Did the trial
court properly charge the jury regarding involuntary
Did the trial
court err in excluding certain anecdotal information
regarding the effects of Zoloft?
Law / Analysis
I. Presumption of Incapacity
Appellant argues that the trial
court erred in failing to grant his motion for directed verdict because
the prosecution failed to present sufficient evidence during its case in
chief to rebut the presumption of incapacity. Specifically, Appellant
argues that lay testimony is insufficient to rebut the presumption, and
suggests that expert testimony is required. We disagree.
When a motion for a directed
verdict of acquittal is made in a criminal case, the trial court is
concerned with the existence or non-existence of evidence, not its
weight. The accused is entitled to a directed verdict when the
evidence merely raises a suspicion of guilt. The accused
also is entitled to a directed verdict when the State fails to
present evidence on a material element of the offense charged.
However, if the State presents any evidence which reasonably tends
to prove the defendants[sic] guilt, or from which the defendants[sic]
guilt can be fairly and logically deduced, the case must go to the
jury. On appeal from the denial of a motion for directed verdict,
this Court must view the evidence in a light most favorable to the
State v. Brown, 360 S.C.
581, 586-87, 602 S.E.2d 392, 395 (2004) (emphasis added) (internal
Generally, a criminal defendant
is presumed to have the requisite capacity to be held responsible for
the commission of a crime. State v. Smith, 298 S.C. 205, 208,
379 S.E.2d 287, 288 (1989) (stating that a criminal defendant is
presumed sane). However, “[w]here a person is between seven and
fourteen years of age, he is presumed not to have the mental capacity of
committing a crime, but that is a rebuttable presumption, and it may be
shown that he was mentally capable of committing a crime, although he
was between the age of seven and fourteen years.” State v. Blanden,
177 S.C. 1, 21, 180 S.E. 681, 689-90 (1935) (citing the trial court’s
jury charge on presumption of incapacity with approval).
Although this Court has not
previously addressed whether expert testimony is required to rebut the
presumption of incapacity regarding children under age fourteen, the
Court has addressed similar issues relating to the capacity of adults.
In State v. Smith, this Court held that the State could use lay
testimony to rebut a criminal defendant’s insanity defense. 298 S.C. at
208, 379 S.E.2d at 288 (finding expert testimony unnecessary to show
sanity where the State presents sufficient lay testimony from which the
jury may infer sanity). Additionally in State v. Poindexter, we
found that the “jury was free to rely on circumstantial evidence to find
[the defendant] sane even though expert testimony favored a finding that
he was insane.” 314 S.C. 490, 494, 431 S.E.2d 254, 256 (1993).
During its case in chief, the
State presented several witnesses who testified about Appellant’s
behavior and demeanor the day after the murders. Both of the hunters
who encountered Appellant in the woods testified regarding the detail
and clarity of Appellant’s kidnapper story. They also testified that
although Appellant seemed a little scared because he was lost, Appellant
was quiet and calm, and they could understand everything that he said to
The State also presented the
testimony of several investigators. Darryl Duncan, the initial law
enforcement officer to whom Appellant spoke, testified that Appellant
relayed the story about the kidnapper to him and that Appellant seemed
calm and was very understandable. Additionally, Lucinda McKellar, the
investigator who spent the most time with Appellant, testified that
Appellant told her the kidnapper story and gave her a very detailed
statement about the events that occurred the previous day. During
McKellar’s trial testimony, the State also admitted Appellant’s
confession. The confession describes the murders and the arson executed
to cover up the murders.
The State did not present any
expert testimony as to Appellant’s capacity until its case in reply.
During reply, the State offered the testimony of Dr. Pamela Crawford, a
court appointed examiner. Dr. Crawford testified that, in her opinion,
Appellant was competent and capable of understanding the difference
between right and wrong. She further testified that Appellant admitted
that what he did was wrong, but maintained that his grandparents
The State also presented the
testimony of Dr. Julian Sharman, a Department of Juvenile Justice
psychiatrist. Dr. Sharman testified that Appellant admitted he sat in
his room and thought of a plan to get rid of his grandfather. Dr.
Sharman also testified that Appellant showed no remorse for his actions,
and although upset about the murders, he felt his grandparents “asked
Through the testimony presented
in its case in chief, the State presented evidence which demonstrated
that Appellant was able to think of a story to cover up his involvement
in the crime and relate the story, with little deviation, to several
different people. The State also presented evidence to show that
Appellant was calm and articulate as he repeatedly retold the story.
This testimony regarding the cover-up story alone was sufficient to at
least create a reasonable inference that Appellant knew right from wrong
and that he had done something wrong.
Although no expert testimony was
presented in the prosecution’s case in chief, we hold that the lay
testimony of the hunters and investigators was sufficient to at least
present a question for the jury as to Appellant’s capacity. Given that
the State’s case in chief contained such voluminous testimony about
Appellant’s demeanor and behavior, the trial judge correctly made the
finding that there was enough evidence to rebut the presumption of
incapacity and send the case to the jury.
Furthermore, if we consider the
evidence presented in the State’s reply case, the record contains
sufficient expert testimony regarding Appellant’s capacity to warrant a
denial of a directed verdict on this ground. Both experts examined
Appellant shortly after he was arrested for the murders and were able to
observe his behavior. Both experts testified that Appellant understood
that his actions were wrong, but showed no remorse for his actions
because he felt justified. We find this evidence more than adequate to
rebut the presumption of incapacity and allow the jury to determine
whether Appellant had the capacity to be held accountable for the
murders of his grandparents.
Accordingly, the trial court did
not err in denying Appellant’s motion for a directed verdict. The State
is not required to present expert testimony to rebut the presumption of
II. Right to a Speedy Trial
Appellant contends that he was
deprived of his constitutional right to a speedy trial. We disagree.
A criminal defendant is
guaranteed the right to a speedy trial. U.S. Const. amend. VI; S.C.
Const. art. I, § 14. This right “is designed to minimize the
possibility of lengthy incarceration prior to trial, to reduce the
lesser, but nevertheless substantial, impairment of liberty imposed on
an accused while released on bail, and to shorten the disruption of life
caused by arrest and the presence of unresolved criminal charges.”
United States v. MacDonald, 456 U.S. 1, 8 (1982).
In determining whether a
defendant has been deprived of the right to a speedy trial, the court
must consider four factors: 1) length of the delay; 2) reason for the
delay; 3) the defendant’s assertion of the right; and 4) prejudice to
the defendant. Barker v. Wingo, 407 U.S. 514, 530 (1972).
Accordingly, the determination that a defendant has been deprived of
this right is not based on the passage of a specific period of time, but
instead is analyzed in terms of the circumstances of each case,
balancing the conduct of the prosecution and the defense. Id;
State v. Brazell, 325 S.C. 65, 71, 480 S.E.2d 64, 68 (1997).
The inquiry into the length of
the delay functions as a trigger mechanism for the analysis of the three
other factors. Barker, 407 U.S. at 530. Although there is no
fixed time in which a defendant must be tried, the right to a speedy
trial may be violated where the delay is arbitrary or unreasonable. State
v. Waites, 270 S.C. 104, 108, 240 S.E.2d 651, 653 (1978).
Additionally, a delay may be so lengthy as to require a finding of
presumptive prejudice, and thus trigger the analysis of the other
Once the defendant has
established that the delay is sufficient to warrant analysis of the
other factors, the court must consider the reason for the delay. The
ultimate responsibility for the trial of a criminal defendant rests with
the State. Barker, 407 U.S. at 531. Therefore, the court should
weigh heavily against the State any intentional delays to impede the
defense. Id. Where the reason for the delay is more neutral,
the court should weigh it less heavily against the State. Id. A
valid reason presented by the State may justify an appropriate delay.
Id. However, the Court must also consider and weigh the
defendant’s contribution to the delay in determining whether the
defendant’s Sixth Amendment rights have been violated. Waites,
270 S.C. at 108, 240 S.E.2d at 653 (holding defendant’s contribution to
the delay of the trial militated against a finding of a violation of the
right to a speedy trial).
Next, the Court must consider
the actions of the defendant in asserting the right to a speedy trial.
“The defendant’s assertion of his speedy trial right . . . is entitled
to strong evidentiary weight in determining whether the defendant is
being deprived of the right.” Barker, 407 U.S. at 531. However,
the defendant’s failure to assert the right, although not conclusive,
makes it more difficult to show that the right was violated. Id.
Finally, the Court must
determine whether the defendant has suffered any prejudice as a result
of the delay. The United States Supreme Court has said that the most
serious interest to be protected by the guarantee to a speedy trial is
the possibility of impairment of the defense. “[C]onsideration of
prejudice is not limited to the specifically demonstrable . . . and
affirmative proof of particularized prejudice is not essential to every
speedy trial claim.” Doggett v. United States, 505 U.S. 647, 654
(1992). In fact, an unduly excessive delay can be presumptively
prejudicial. Id. at 655. However, regardless of whether the
defense is able to show particularized prejudice or the delay warrants a
finding of presumptive prejudice, prejudice remains only one of the four
factors to be considered in a speedy trial analysis. Id. at 656.
Appellant was arrested and
charged in November of 2001, and Appellant’s trial began on January 31,
2005. In the three years between Appellant’s arrest and trial, several
pre-trial matters arose. The original defense counsel requested that
Appellant be evaluated for competency in December of 2001. The month
after the State served its intent to transfer Appellant’s trial to
General Sessions, defense counsel filed a motion for a continuance
because the competency evaluations had not been completed, counsel had
not seen all discovery, and counsel had not retained an independent
expert. The competency evaluation was completed in February of 2002.
In February of 2003, the family
court judge contacted the parties because the pre-waiver hearing process
was taking too long. Both the State and the defense indicated that
neither the DJJ evaluation nor the defense’s independent expert
evaluation were complete and more time was needed. After the completion
of the DJJ evaluation, the family court held the waiver hearing, and in
June of 2003 the court issued an order waiving jurisdiction.
In January and February of 2004,
the defense served notices of their intention to pursue an insanity
defense and an involuntary intoxication defense. The defense made
another motion for a continuance in April of 2004, and subsequently
filed a discovery request for the pharmaceutical company, Pfizer, to
produce documents in May of 2004. After the hearing on the discovery
motion, the trial judge recused himself because his wife owned Pfizer
stock. This Court appointed a new trial judge in June of 2004.
In September of 2004, the
defense first asserted that Appellant had been deprived of his Sixth
Amendment rights. The trial court heard pretrial motions in December of
2004. Appellant’s trial began on January 31, 2005.
In his brief, Appellant suggests
that the delay of his trial was so lengthy that it not only meets the
requisite finding of delay, but also that the delay is presumptively
prejudicial. We find the delay of three years and two months between
Appellant’s arrest and trial is sufficient to trigger an analysis of the
other factors. See Waites, 270 S.C. at 108, 240 S.E.2d at 653 (finding
a delay of two years and four months sufficient to trigger a balancing
of the other factors). However, we decline to find the delay of
Appellant’s trial presumptively prejudicial. See State v. Foster,
260 S.C. 511, 515, 197 S.E.2d 280, 281 (1973) (finding a delay of more
than five years was sufficient to require analysis of the other factors
without finding presumptive prejudice).
As to the reasons for the delay,
Appellant argues that the State has “offered no plausible explanation
whatsoever” for the delay. Appellant further argues that the State’s
responsibility for ensuring a speedy trial is somehow heightened by the
parens patriae jurisdiction of the family court. This argument
is misleading in light of the record before the Court. While the
ultimate responsibility for timely completion of the trial rests with
the State, the defense’s contributions to the delay cannot be ignored.
Appellant was represented by
counsel at all times during the trial process. In fact, Appellant
contributed to the delay, at least to some degree, by requesting
independent competency evaluations and continuances. Furthermore,
Appellant contributed to the delay because of the necessary preparation
involved in the complex defenses asserted at trial.
The record does not reflect any
intentional or malicious delays by the prosecution, nor does the record
reflect any negligent prosecutorial behavior in connection with this
case. Additionally, the delays attributable to the defense were also
reasonable in light of the circumstances of this case. Although it took
a long time for the case to come to trial, any delay was the result of
the complexities of this case. The justifications for the delay offered
by both parties in this case weigh in favor of a finding that Appellant
was not deprived of his right to a speedy trial.
As to the third factor in the
analysis, Appellant strongly encourages this Court to consider the
family court’s parens patriae status in weighing how and
when he asserted his right to a speedy trial. Recognizing the role of
the family court, we also note that Appellant was continuously
represented by counsel, yet did not assert his rights until September of
Up to that point, the defense
was, at least to some degree, still preparing for the case. Although we
find that Appellant did not waive his right to a speedy trial simply by
not asserting it promptly, we also find that the responsibility for
raising his speedy trial concerns do not rest solely with the family
court because of its parens patriae status, especially where
Appellant was continuously represented by counsel.
Finally, Appellant fails to meet
the requirement of prejudice. Appellant relies primarily on the fact
that he grew from “a 5’2’’ boy to a 6’1’’ young man” to make a showing
of actual prejudice, analogizing the situation to the use of shackles on
a defendant in a death penalty case.
Appellant mischaracterizes any
prejudice caused by his appearance. Recognizing that Appellant’s
appearance may have presented an obstacle for the defense, the trial
court allowed the defense to display a full size cutout of Appellant
depicting his actual appearance at the time of the murders. Defendants
often experience changes in their appearance between arrest and trial.
Sometimes those appearance differences are the result of things beyond
the defendant’s control, while other times defendants purposefully
change their appearance. Given the quantity of evidence presented in
this case, we find that Appellant did not suffer any prejudicial effect
as a result of his appearance.
Additionally, Appellant received
some benefits as a result of the delay. Appellant was able to fully
develop his Zoloft defense, which would not have been possible had his
trial occurred soon after his arrest. Appellant was also able to secure
several witnesses to attest to his behavioral improvement while at DJJ.
Accordingly, we find that Appellant was not prejudiced by the delay
simply because his appearance changed during the time between his arrest
Although Appellant’s trial delay
was very lengthy, we find the trial court did not err in finding no
violation of his Sixth Amendment right to a speedy trial.
III. Unanimous Verdict
Appellant argues that the
verdict returned by the jury was not unanimous based on the post-trial
comments of two jurors, and therefore the verdict violates his rights to
due process and trial by jury. Specifically, Appellant argues that the
verdict returned by the jury was not the jury’s true verdict because the
two jurors voted guilty as a result of a misunderstanding of the law.
The trial court has broad
discretion in assessing allegations of juror misconduct. State v.
Kelly, 331 S.C. 132, 142, 502 S.E.2d 99, 104 (1998). If the
juror misconduct does not affect the impartiality of the jury, it is not
the type of misconduct which will affect the verdict. Id. The
decision to grant or deny a motion based on juror misconduct is within
the discretion of the trial judge. Id. Accordingly, the trial
court’s decision will not be disturbed absent an abuse of that
discretion which amounts to an error of law. Id.
Generally, juror testimony is
not allowed regarding the deliberations of the jury or internal
influences. State v. Hunter, 320 S.C. 85, 88, 463 S.E.2d 314,
316 (1995). “[C]ourts should not intrude into the privacy of the jury
room to scrutinize how jurors reached their verdict.” Id. However,
where the allegation of improper internal influence potentially affects
fundamental fairness, the court may accept juror testimony to ensure due
process. State v. Galbreath, 359 S.C. 398, 406, 597 S.E.2d 845,
849 (Ct. App. 2004).
In Galbreath, the court
of appeals held that a misunderstanding of the law does not warrant a
new trial absent a denial of fundamental fairness. Id.
Galbreath alleged that his due process rights were violated because two
jurors testified they found the defendant guilty of ABHAN based on
another juror’s statement that the defendant would not serve jail time
if convicted. Id. The court found that the misinformation
regarding sentencing did not cause a violation of due process and did
not warrant a new trial. Id. at 407, 597 S.E.2d at 849.
After the conclusion of
Appellant’s trial, the defense notified the trial court of the alleged
juror misconduct. The defense alleged that one of the jurors had
inappropriate conversations with both his wife and a bartender during
the jury deliberations. As a result of this allegation, the trial court
conducted a hearing. During the hearing, additional information was
elicited from the jurors. Specifically, two jurors stated that they did
not think the Appellant was guilty and that they only voted guilty as a
result of information garnered from other jurors. Both jurors testified
that they felt pressured to vote guilty. One juror stated that she
voted guilty because another juror told her that the majority rules, and
therefore everyone had to vote together to return a unanimous verdict
The other stated that she voted guilty because the other jurors told her
that she had to vote one way or the other.
Citing Rule 606(b), SCRE, the
trial court found that the allegations concerned internal influences and
that juror testimony concerning such influence was incompetent to
impeach the verdict. The trial court also found that any of the offered
misunderstandings of the law did not implicate due process or
We find that these
misunderstandings of the law regarding the unanimity of the verdict were
insufficient to warrant a new trial. The trial court was correct in its
order that such instances of internal influence do not implicate
fundamental fairness. Although Appellant cites several cases concerning
internal influence where courts have held that fundamental fairness
required the granting of a new trial, the instant case does not present
similar circumstances. Most of the cases upon which Appellant relies
contain an internal influence of a coercive nature (i.e. racial
prejudice, gender bias).
In contrast, while the jurors in
this case expressed that they felt coerced into voting guilty, no
testimony was presented to actually show coercive behavior. As other
courts have held, a jury’s misapprehension of the law is not enough to
impeach a verdict. See Chicago, Rock Island & Pacific R.R. v. Speth,
404 F.2d 291, 295 (8th Cir.1968).
Additionally, even if the jurors
mistakenly believed the incorrect information from another juror, they
were given ample opportunity to voice those concerns before the trial
court accepted the verdict. Before the deliberations, the trial court
explicitly charged that a unanimous verdict was not the same as a
Moreover, upon receiving the
jury verdict, the foreman was asked if the verdict was actually what the
jury decided. The trial court also polled each juror, confirming that
each agreed with the verdict. See State v. Green, 351 S.C. 184,
196, 569 S.E.2d 318, 324 (2002) (noting that the trial court conducts a
poll of the jury for the specific purpose of ensuring a unanimous
The jurors’ post-verdict
testimonies are representative of many jury deliberations where
individuals are persuaded, for whatever reason, to change their vote.
As long as the reason prompting the change was not coercive or
oppressive, the court should not disturb the finality of the verdict.
Accordingly, the trial court did
not abuse its discretion in denying Appellant’s motion for a new trial
based on the two jurors’ post-verdict testimonies.
IV. Juror Misconduct
Appellant argues that the trial
court erred in denying his motion for a new trial based on juror
misconduct. Appellant alleges that one of the jurors had inappropriate
conversations with the juror’s wife and a bartender, and that these
communications prejudiced the verdict. We disagree.
Generally, juror testimony may
not be the basis for impeaching a jury verdict. Hunter, 320 S.C.
at 88, 463 S.E.2d at 316. However, this rule is relaxed where there are
allegations of external influence. Id. Jury misconduct that
does not affect the jury’s impartiality will not undermine the verdict.
State v. Harris, 340 S.C. 59, 63, 530 S.E.2d 626, 628 (2000).
The trial court may exercise
broad discretion in assessing the prejudicial effect of an allegation of
juror misconduct due to an external influence. Id. The trial
court should consider three factors when making this determination: (1)
the number of jurors exposed, (2) the weight of the evidence properly
before the jury, and (3) the likelihood that curative measures were
effective in reducing the prejudice. Id. The trial court’s
finding will not be disturbed absent an abuse of discretion. Id.
Appellant alleges that there are
two instances of juror misconduct involving external sources. First,
Appellant alleges that one of the jurors (Juror A) inappropriately
discussed the case with his wife. Additionally, Appellant alleges that
Juror A participated in an inappropriate conversation with a bartender.
The trial court held a hearing
regarding these allegations. During the hearing, Juror A admitted that
his wife shared her point of view on the case with him, but testified
that he did not express his views to her. Juror A also admitted that
he had mentioned to a bartender that he was on the jury, but alleges
that was the extent of the conversation.
Several jurors testified that
Juror A told them his wife did not agree with him. Although one juror
said that she assumed his wife felt a not guilty verdict was appropriate,
none of the jurors testified that he told them his wife’s point of view.
Additionally, none of the jurors testified that Juror A shared his views
with his wife.
During the bartender’s testimony
at the hearing, he testified that Juror A told him he was on the jury.
The bartender also said that Juror A told him that he thought Appellant
was guilty. Although there is some debate about when the conversation
took place, both Juror A and the reporter who ignited the inquiry into
jury misconduct stated that the conversation took place on the Monday
night after deliberations had begun. The bartender, however, was less
sure and unable to definitively say whether the conversation happened on
Sunday or Monday.
After the hearing, the trial
court found that, although juror misconduct occurred, Appellant could
not make the required showing of prejudice. Therefore, the trial court
upheld the verdict.
First, we find the trial court
correctly found that Appellant experienced no prejudicial effect from
any comments from Juror A’s wife. The record reflects that
approximately four jurors, including Juror A, were exposed to knowledge
of the wife’s comment. Only one, Juror A, actually knew what the wife
said. There is no evidence that the comment prejudicially affected
Juror A’s verdict, even if Juror A’s wife did say she thought Appellant
was not guilty.
In this case, the more critical
inquiry is whether Juror A engaged in premature deliberations.
Premature deliberations may affect the fundamental fairness of a trial.
State v. Aldret, 333 S.C. 307, 312, 509 S.E.2d 811, 813 (1999).
[Therefore], a jury should
not begin discussing a case, nor deciding the issues, until all of
the evidence, the argument of counsel, and the charge of the law is
completed. . . . The human mind is constituted such that when a
juror declares himself, touching any controversy, he is apt to stand
by his utterances to the other jurors in defiance of evidence. A
fair trial is more likely if each juror keeps his own counsel until
the appropriate time for deliberation.
Id. at 311, 509 S.E.2d at
Juror A clearly remembers the
conversation with the bartender as occurring on the Monday night that
jury deliberation began. The reporter’s testimony supports Juror A’s
claim. The only person who testified differently was the bartender who
was completely unsure of the day the conversation happened, but
confidently testified that the conversation happened two days prior to
the end of the trial. The trial ended on a Wednesday. Therefore, the
record supports the trial judge’s finding that the conversation,
although inappropriate, did not occur prior to the beginning of
deliberations. Accordingly, the trial court did not err in finding that
Appellant suffered no prejudice as a result of the conversation.
For these reasons, the trial
court did not abuse its discretion in denying Appellant’s motion for a
new trial based on juror misconduct.
V. Family Court Waiver of
Appellant argues that the family
court erred in waiving jurisdiction to the court of general sessions
because an analysis of the Kent v. United States, 383 U.S.
541 (1966), factors does not justify waiver in Appellant’s case.
The family court has exclusive jurisdiction over children
who are accused of criminal activity. S.C. Code Ann. §
20-7-400(A)(1)(d) (2003). However, jurisdiction over a criminal matter
may be transferred to the court of general sessions as provided under
S.C. Code Ann. § 20-7-7605 (Supp. 2005) (transfer statute). Subsection
(6) of the transfer statute provides:
Within thirty days after the
filing of a petition in the family court alleging the child has
committed the offense of murder or criminal sexual conduct, the
person executing the petition may request in writing that the case
be transferred to the court of general sessions with a view to
proceeding against the child as a criminal rather than as a child
coming within the purview of this article. The judge of the family
court is authorized to determine this request. If the request is
denied, the Appellant may appeal within five days to the circuit
court. Upon the hearing of the appeal, the judge of the circuit
court is vested with the discretion of exercising and asserting the
jurisdiction of the court of general sessions or of relinquishing
jurisdiction to the family court. If the circuit judge elects to
exercise the jurisdiction of the general sessions court for trial of
the case, he shall issue an order to that effect, and then the
family court has no further jurisdiction in the matter.
S.C. Code Ann. § 20-7-7605(6).
Upon a motion to transfer
jurisdiction, the family court must determine if it is in the best
interest of both the child and the community before granting the
transfer request. State v. Kelsey, 331 S.C. 50, 64, 502 S.E.2d
63, 70 (1998). The family court must consider eight factors, as
approved by the United States Supreme Court in Kent v. United States,
383 U.S. 541 (1966), in making this determination. The factors are:
(1) The seriousness of the
(2) Whether the alleged
offense was committed in an aggressive, violent, premeditated, or
(3) Whether the alleged
offense was against persons or against property, greater weight
being given to offenses against persons especially if personal
(4) The prosecutive merit of
(5) The desirability of
trial and disposition of the entire offense in one court.
(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
history of the juvenile, including previous contacts with law
enforcement agencies, juvenile courts and other jurisdictions, prior
periods of probation, or prior commitments to juvenile institutions.
(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
The family court must provide a
sufficient statement of the reasons for the transfer in its order.
State v. Avery, 333 S.C. 284, 293, 509 S.E.2d 476, 481 (1998).
“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.” Id.
The decision to transfer jurisdiction lies within the discretion of the
family court. Id. at 292, 509 S.E.2d at 481. The appellate
court will affirm the family court’s decision absent an abuse of
During the waiver hearing, the
family court heard testimony regarding the murders. Further, the court
heard testimony regarding Appellant’s life and intelligence. The court
also received testimony about Appellant’s behavior at the Department of
Juvenile Justice (DJJ) as related to the potentially rehabilitative
benefits Appellant could receive from DJJ programs. After considering
this testimony, the family court found that it was appropriate to waive
jurisdiction of Appellant’s case.
We find that the family court
properly granted the State’s request to waive its jurisdiction and allow
Appellant to be tried as an adult. Although the family court’s order is
not extremely detailed, the order sufficiently demonstrates that a full
investigation occurred. Additionally, the record supports the family
Further, Appellant’s argument
that the court erred in finding that he would not benefit from the
rehabilitation program at DJJ is not convincing. Because we review the
lower court’s decision only for an abuse of discretion, this Court
would have to find the family court’s order wholly unsupported by the
record in this regard to find error. Instead, we find that this record
contains a great deal of evidence supporting the family court’s decision.
Looking at events occurring both before the waiver hearing and after,
while there is evidence in the pre-trial motions hearings which suggests
that Appellant was cooperative and capable of rehabilitation, the record
also reflects that Appellant engaged in escape plans, made shanks, and
caused other disruptions while in the custody of DJJ.
Accordingly, regardless of
whether the Court considers just the facts in existence at the time of
the waiver hearing or the additional facts which occurred after the
waiver hearing, we find that sufficient evidence exists to support the
satisfaction of the eight Kent factors. Therefore, the family
court did not err in waiving its jurisdiction to the circuit court.
VI. Corey D.
Appellant asks this Court to
overrule its decision in State v. Corey D., 339 S.C. 107, 529 S.E.2d
20 (2000), and find that S.C. Code Ann. § 20-7-7605(6) only allows the
family court to waive jurisdiction over a juvenile if the juvenile is
over the age of fourteen. Appellant offers three reasons why this
Court should overrule its decision in Corey D.: 1) the
Court misinterpreted the legislative intent of the statute; 2) recent
scientific data suggests twelve-year-olds lack the capacity to be
subject to the statute; and 3) the Court may avoid any conflict between
the statute and the Constitution. We decline to overrule Corey D.
The cardinal rule of statutory
construction is to ascertain and effectuate the intent of the
legislature. Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578,
581 (2000) (citations omitted). All rules of statutory construction are
subservient to the maxim that legislative intent must prevail if it can
be reasonably discovered in the language used. McClanahan v. Richland
County Council, 350 S.C. 433, 438, 567 S.E.2d 240, 242 (2002). A
statute’s language must be construed in light of the intended purpose of
the statute. Id. Whenever possible, legislative intent should be
found in the plain language of the statute itself. Whitner v. State,
328 S.C 1, 6, 492 S.E.2d 777, 779 (1997). “Where the statute’s
language is plain and unambiguous, and conveys a clear and definite
meaning, the rules of statutory interpretation are not needed and the
court has no right to impose another meaning.” Hodges, 341 S.C.
at 85, 533 S.E.2d at 581.
In Corey D., this Court
held that § 20-7-7605(6) permitted the family court to waive
jurisdiction over a murder charge against a twelve-year-old to the court
of general sessions. Id. Applying the rules of statutory
construction in conjunction with prior case law, the Court found “section
20-7-7605(6) authorizes transfer on the basis of the offense (murder)
without regard to age, while other subsections of 20-7-7605
authorize transfer on the basis of age and the classification of the
offense.” Id. at 113, 529 S.E.2d at 23 (emphasis added) (internal
Appellant argues that subsection
(6)’s reference to “the child” as opposed to “a child” indicates the
legislature’s intention to confine the definition of “child” to the
preceding subsection and not the definition of “child” as provided in
the definition section of the Children’s Code. See S.C. Code Ann.
§ 20-7-6605(1). Assuming the Legislature intended any meaning to be
attributed to the use of the article “the,” we believe it would refer to
the language in the beginning of the statute – “jurisdiction over a case
involving a child must be transferred or retained as follows” –
and not subsection (5) as Appellant suggests. See S.C. Code Ann.
§ 20-7-7605. The use of “child” in the beginning of the statute clearly
refers to the definition contained in § 20-7-6605 of the Children’s Code,
which defines “child” as a person less than seventeen years of age.
Appellant’s second argument
regarding scientific data is not relevant to this Court’s interpretation
of the statute. The rules of statutory construction do not allow the
Court to determine legislative intent based on scientific data.
Finally, Appellant urges this Court to overrule Corey D. to avoid
conflict with constitutional issues.
This Court has held that where a statute is susceptible to more than
one construction, the court should interpret the statute so as to
avoid constitutional questions, Brown v. County of Horry, 308
S.C. 180, 183, 417 S.E.2d 565, 567 (1992). However, § 20-7-7605(6) has
only one construction as analyzed by this Court in Corey D.
Because we find that the statute has only one meaning, we cannot apply
an alternate interpretation.
Accordingly, we decline to
overrule our decision in Corey D.
VII. Eighth Amendment Claim
Appellant argues that it
violates the Eighth Amendment to the United States Constitution to
sentence a twelve-year-old to a thirty-year prison term without the
possibility of parole. We disagree.
The Eighth Amendment to the United States Constitution provides,
“Excessive bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted.” As this Court has recognized,
what constitutes cruel and unusual punishment, and thus, what violates
the Eighth Amendment, is determined by “evolving standards of decency
that mark the progress of a maturing society.” State v. Standard,
351 S.C. 199, 204, 569 S.E.2d 325, 328 (2002).
The United States Supreme Court
has instructed that “the ‘clearest and most reliable objective evidence
of contemporary values is the legislation enacted by the country’s
legislatures.’” Atkins, 536 U.S. at 313 (quoting Penry v.
Lynaugh, 493 U.S. 302, 331 (1989)). The court has additionally
stated that the Constitution requires the court’s own judgment to be
brought to bear on the issue by “asking whether there is reason to
disagree with the judgment reached by the citizenry and its legislators.”
Id. at 313.
Appellant presents several
arguments to support his position. First, Appellant argues that the
portion of the brain that gives one the cognitive capacity to
satisfactorily perform acts such as forming malice and waiving
constitutional rights is underdeveloped in a twelve-year-old. Thus,
Appellant argues that he should be given a lesser sentence than if he
were an adult.
This argument is unconvincing
given the nature of the criminal acts of which Appellant was convicted.
Based on the evidence in the record, Appellant planned a double murder,
executed an escape plan, and concocted a false story of the previous
evening’s events. Appellant’s story was so detailed that it led law
enforcement on an extensive rouse for most of the morning following his
discovery. The specific factual evidence in this case stands in stark
contrast to the general nature of the scientific evidence submitted by
In Standard, this Court
stated “[b]ased upon sentences imposed in other cases, we find lengthy
sentences or sentences of life without parole imposed upon juveniles do
not violate contemporary standards of decency so as to constitute cruel
and unusual punishment.” 351 S.C. at 205, 569 S.E.2d at 329. Although
Appellant argues that he is the second youngest person in American
history to be prosecuted in an adult court, that argument is not
instructive for several reasons.
Primarily, the argument does not address the Eighth Amendment’s concern,
which is punishment; not forum of trial. Second, we note that other
courts have sentenced juveniles convicted of similarly violent crimes to
lengthy sentences. See State v. Ira, 43 P.3d 359, 361 (N.M. Ct.
App. 2002) (sentence of ninety-nine and one half years imposed where
defendant, at ages fourteen to fifteen, committed ten counts of criminal
sexual assault against his step-sister); Hawkins v. Hargett, 200
F.3d 1279, 1285 (10th Cir. 1999) (sentences totaling one
hundred years (with possibility of parole) for a thirteen-year-old
defendant convicted of burglary, forcible sodomy, rape, and robbery with
a dangerous weapon); State v. Green, 502 S.E.2d 819, 828-33 (N.C.
1998) (mandatory life sentence imposed on thirteen-year-old convicted of
a first-degree sexual offense); Avery, 333 S.C. at 287, 509 S.E.2d
at 478 (fourteen-year-old convicted of murder, armed robbery, and
possession of a weapon while in commission of a violent crime given
concurrent prison sentences of life, twenty-five years, and five years.);
Harris v. Wright, 93 F.3d 581, 584 (9th Cir. 1996) (fifteen-year-old
defendant sentenced to life imprisonment without parole for murder);
State v. Sanders, 281 S.C. 53, 55, 314 S.E.2d 319, 320 (1984) (thirteen-year-old
who pled guilty to two counts of voluntary manslaughter received two
consecutive thirty-year prison sentences).
Given this authority, we do not believe that evolving standards of
decency in our society dictate that it is cruel and unusual to sentence
a twelve-year-old convicted of double murder to a thirty-year prison
Finally, Appellant overlooks the
“proportionality” bedrock of Eighth Amendment jurisprudence, which is
equally important a principle as “evolving standards of decency.” This
case involved a brutal double murder. As the United States Supreme
Court stated in Atkins: “it is a precept of justice that
punishment for crime should be graduated and proportioned to [the]
offense.” 536 U.S. at 311 (quoting Weems, 317 U.S. at 367). To
paraphrase what the Tenth Circuit stated in Hawkins, “[a]lthough
[Appellant’s] culpability may be diminished somewhat due to his age at
the time of the crimes, it is arguably more than counterbalanced by the
harm [Appellant] caused to his victim[s].” 200 F.3d at 1284.
“To establish that evolving
standards of decency preclude his punishment, [Appellant] bears the
‘heavy burden,’ of showing that our culture and laws emphatically and
well nigh universally reject it.” Harris, 93 F.3d at 583 (citing
Stanford v. Kentucky, 492 U.S. 361, 373 (1989)). Appellant has
not made such a showing.
Accordingly, we hold that
Appellant’s sentence does not violate the Eighth Amendment to the United
VIII. Admissibility of
Appellant argues the trial court
erred in refusing to suppress his confession. We disagree.
A criminal defendant is deprived of due process if his conviction is
founded, in whole or in part, upon an involuntary confession.
Jackson v. Denno, 378 U.S. 368, 377 (1964). This principle is best
justified when viewed as part and parcel of “fundamental notions of
fairness and justice in the determination of guilt or innocence which
lie embedded in the feelings of the American people and are enshrined in
the Due Process Clause of the Fourteenth Amendment.” Haley v. Ohio,
332 U.S. 596, 607 (1948) (Frankfurter, J., concurring).
In determining whether a
confession was given “voluntarily,” this Court must consider the
totality of the circumstances surrounding the defendant’s giving the
confession. Schneckloth v. Bustamonte, 412 U.S. 218, 226
(1973). As the United States Supreme Court has instructed, the totality
of the circumstances includes “the youth of the accused, his lack of
education or his low intelligence, the lack of any advice to the accused
of his constitutional rights, the length of detention, the repeated and
prolonged nature of the questioning, and the use of physical punishment
such as the deprivation of food or sleep.” Id. (internal
citations omitted). Furthermore, no one factor is determinative, but
each case requires careful scrutiny of all the surrounding circumstances.
In Haley v. Ohio, 332 U.S. 596, and again in Gallegos v.
Colorado, 370 U.S. 49 (1962), the United States Supreme Court
reversed juveniles’ convictions on the grounds that the confessions were
involuntarily gathered. Though the court addressed the scrutiny applied
to juveniles’ confessions with quite broad language in each opinion,
it is firmly established that “a minor has the capacity to make a
voluntary confession . . . without the presence or consent of counsel or
other responsible adult, and the admissibility of such a confession
depends not on his age alone but on a combination of that factor with
such other circumstances as his intelligence, education, experience, and
ability to comprehend the meaning and effect of his statement.”
Jenkins v. State, 265 S.C. 295, 300, 217 S.E.2d 719, 722 (1975); see
also Vance, 692 F.2d at 980 (quoting Williams v. Peyton,
404 F.2d 528, 530 (4th Cir. 1968) (“Youth by itself is not a
ground for holding a confession inadmissible.”); Miller v. Maryland,
577 F.2d 1158, 1159 (4th Cir. 1978); and United States v.
Miller, 453 F.2d 634, 636 (4th Cir. 1972).
When the hunters took Appellant
to the fire department, the Corinth Police were the first to respond and
begin a search for the kidnapper. Around 11 a.m., Lucinda McKellar, an
investigator with the Chester County Sheriff’s Department, arrived at
the fire department. She had previous experience as a law enforcement
victim’s advocate. While at the fire department, McKellar took two
statements from Appellant.
The first statement was an oral
recitation of the kidnapper story Appellant had earlier told the hunters.
The second statement was a written version of the same story. Both of
these statements were non-custodial because, at the time these
statements were taken, Appellant was considered a victim and witness to
the crime, not a suspect.
McKellar remained with Appellant
after she took the statements, essentially acting as a babysitter. They
had lunch together and played “go fish.” Appellant also took several
naps during the day. Occasionally, Appellant would initiate a
conversation with McKellar. In one of the conversations, Appellant
voluntarily recited a Bible verse about “burning in the fires of Hell.”
Later in the afternoon, McKellar
received instructions from her superior to take Appellant to the
sheriff’s department because the investigations indicated that Appellant
was a suspect and not a victim. They arrived at the sheriff’s
department about 3 p.m., where McKellar took Appellant to a conference
At this point, McKellar told
Appellant that they needed to have an “adult conversation” and Appellant
sat down at the table as McKellar began explaining Appellant’s
Miranda rights. In the middle of McKellar’s explanation of these
rights, another officer, Detective Scott Williams (Williams), walked
into the room. McKellar then re-explained Appellant’s Miranda
rights to him while in Williams’ presence. Williams then told Appellant
that things were not adding up.
McKellar asked Appellant about
the Bible verse he mentioned earlier, however, Appellant did not respond.
Williams next asked Appellant what his grandparents would think about
him not being truthful. At that point, Appellant gave the officers a
third statement in which he confessed to the murders and detailed the
events of the night. McKellar wrote the statement and Appellant read
and signed it.
After a Jackson v. Denno
hearing, the trial court found that Appellant made a valid waiver of his
rights and that the statement was voluntarily given to the investigators.
The court determined that Appellant was not coerced, under duress, or
influence. At the trial, the court admitted the confession and charged
the jury regarding the legal standard relevant for determining the
voluntariness of the confession.
We find that the instant case stands in stark contrast to the cases in
federal and other state courts where courts have “set aside convictions
. . . because they were based on confessions admitted under
circumstances that offended the requirements of ‘due process.’”
Haley, 332 U.S. at 305. Although courts have given confessions by
juveniles special scrutiny, courts generally do not find a juvenile’s
confession involuntary where there is no evidence of extended,
intimidating questioning or some other form of coercion.
Appellant in effect asks this Court to adopt a rule that the United
States Supreme Court and other courts have strictly declined to adopt:
that confessions of juveniles are per se involuntary if they are
obtained without the presence of counsel, a parent, or other interested
In this case, Appellant has
presented no evidence, other than his age, supporting his claim that his
confession was involuntary. Appellant instead relies exclusively on
abstract scientific data and rhetorical questions for his argument.
This evidence is not probative of coercion.
Additionally, we reject the
dissent’s assertion that Appellant’s confession cannot be said to be
voluntary under the totality of the circumstances. While the dissent
emphasizes Appellant’s age and behavioral issues to determine that the
confession was involuntary under a totality of the circumstances
analysis, the dissent ignores Appellant’s actions in planning a scheme
and developing an elaborate story to conceal his involvement in the
crime. Neither the dissent nor Appellant has shown any evidence that
Appellant did not understand his rights or was of such low intelligence
that he could not have understood his rights. In fact, scrutinizing all
of the surrounding circumstances, including Appellant’s behavior and
actions both before and after the killings, the record indicates that
Appellant was capable of voluntarily giving the statement to the
The record contains no evidence
that Appellant was not advised of his constitutional rights.
Furthermore, the record contains no indication that Appellant was
subjected to prolonged detention as a suspect, required to withstand
repeated and lengthy questioning sessions, or deprived in any way of
sleep or food. In fact, Appellant has presented no evidence whatsoever
of coercive or improper police conduct in this investigation. The
record on appeal is simply void of the type of coercive action under
which courts have previously found a juvenile’s statement involuntary.
Accordingly, the trial court did
not err in finding that Appellant’s confession was voluntarily given or
in submitting the confession to the jury.
IX. Manslaughter Charge
Appellant argues that the trial
court erred in failing to charge the jury on the lesser included
offenses of involuntary and voluntary manslaughter. We disagree.
A court may eliminate the
offense of manslaughter where it clearly appears that there is no
evidence whatsoever tending to reduce the crime from murder to
manslaughter. State v. Burriss, 334 S.C. 256, 264, 513 S.E.2d
104, 109 (1991). An appellate court will not reverse the trial judge's
decision absent an abuse of discretion. Clark v. Cantrell, 339
S.C. 369, 389, 529 S.E.2d 528, 539 (2000). An abuse of discretion
occurs when the trial court’s ruling is based on an error of law or,
when grounded in factual conclusions, is without evidentiary support. Id.
The refusal to grant a requested jury charge that states a sound
principle of law applicable to the case at hand is an error of law. Id.
at 390, 529 S.E.2d at 539. The law to be charged must be determined from
the evidence presented at trial.
A. Involuntary Manslaughter
Involuntary manslaughter is (1)
the unintentional killing of another without malice, but while engaged
in an unlawful activity not naturally tending to cause death or great
bodily harm; or (2) the unintentional killing of another without malice,
while engaged in a lawful activity with reckless disregard for the
safety of others. State v. Tyler, 348 S.C. 526, 529, 560 S.E.2d
888, 889 (2002). Recklessness is a state of mind in which the actor is
aware of his or her conduct, yet consciously disregards a risk which his
or her conduct is creating. See William Shepard McAninch & W.
Gaston Fairey, The Criminal Law of South Carolina 12-15 (2d ed. 1989).
Recklessness has also been defined as “something more than mere
negligence or carelessness . . . a conscious failure to exercise due
care or ordinary care or a conscious indifference to the rights and
safety of others or a reckless disregard thereof.” State v. Tucker,
273 S.C. 736, 739, 259 S.E.2d 414, 415 (1979).
Appellant argues that he was
entitled to an involuntary manslaughter charge because the killing of
his grandparents was unintentional and reckless. In support of this
argument, Appellant alleges that taking Zoloft was a “lawful activity”
because he was taking medicine prescribed to him by his doctor, and
while under the influence of the legally ingested Zoloft, Appellant
killed his grandparents “unintentionally.” Additionally, Appellant
argues that, assuming he had the requisite capacity, Appellant was
engaged in reckless conduct as evidenced by the fact that he pointed and
shot a loaded shotgun at his grandparents.
At trial, the trial court and
Appellant’s attorneys discussed the logistics of an involuntary
manslaughter charge extensively. After considering all the arguments
and the facts of the case, the court explained its reasons for not
charging involuntary manslaughter. Specifically, the trial court
expressed reservation in accepting defense counsel’s argument that the
ingestion of Zoloft satisfied the lawful act component required for an
involuntary manslaughter charge. The trial court also found there was
“no evidence under the law that this conduct was reckless conduct.”
We find that Appellant’s conduct
extends far beyond recklessness. The record reflects that after a
confrontation with his grandfather, Appellant deliberately waited until
his grandparents retired to bed, retrieved his shotgun, loaded the
shotgun, entered their bedroom, and intentionally shot his grandparents.
Although Appellant argues that the shootings were unintentional and
reckless, he submitted no evidence to support that finding. Like the
trial court, we find the defense’s argument that the ingestion of Zoloft
qualifies as a lawful act in the context of an involuntary manslaughter
charge to be unconvincing.
Accordingly, we conclude that
the record contains no evidence upon which a jury could find that these
killings were unintentional and a result of recklessness. Therefore,
the trial court did not err in failing to charge the jury regarding
B. Voluntary Manslaughter
Voluntary manslaughter is
the unlawful killing of a human being in sudden heat of passion upon
sufficient legal provocation. Heat of passion alone will not
suffice to reduce murder to voluntary manslaughter. Both heat of
passion and sufficient legal provocation must be present at the time
of the killing. The sudden heat of passion, upon sufficient legal
provocation, which mitigates a felonious killing to manslaughter,
while it need not dethrone reason entirely, or shut out knowledge
and volition, must be such as would naturally disturb the sway of
reason, and render the mind of an ordinary person incapable of cool
reflection, and produce what, according to human experience, may be
called an uncontrollable impulse to do violence.
State v. Cole, 338 S.C.
97, 99, 525 S.E.2d 511, 513 (2000) (internal citations omitted).
“To warrant the court in
eliminating the offense of manslaughter it should very clearly appear
that there is no evidence whatsoever tending to reduce the crime from
murder to manslaughter.” Burriss, 334 S.C. at 264, 513 S.E.2d at
109. In determining whether the evidence requires a charge of voluntary
manslaughter, the Court views the facts in a light most favorable to the
defendant. State v. Knoten, 347 S.C. 296, 302, 555 S.E.2d 391,
Before the case was submitted to
the jury, the defense requested that if the court declined their request
for an involuntary manslaughter charge, the court should charge the jury
on voluntary manslaughter for a lesser included offense. Although less
preferable to involuntary manslaughter, the defense pursued this claim
as a result of the State’s assertion that Appellant murdered his
grandparents because his grandfather beat him.
1. Sufficient Legal Provocation
The defense argued that,
assuming the confession was accurate, Appellant killed his grandparents
as a result of his grandfather beating him with a paddle. Appellant’s
statement in the confession provides:
I was going to get something
to drink. My granddad got the paddle. I tried to get my shotgun.
He hit me on my back and my butt. Then he said if I came out
anymore he said he would hit me across the head with it. He had
beat me back into my room. He hit me 5 or 6 times. That’s what my
dad used to hit me with.
The defense contends that this
is sufficient legal provocation. Contrarily, the State argues that the
grandfather, as Appellant’s guardian, was legally entitled to paddle him
and therefore there was not sufficient legal provocation. See State
v. Norris, 253 S.C. 31, 39, 168 S.E.2d 564, 567 (1969) (“The
exercise of a legal right, no matter how offensive to another, is never
in law deemed a provocation sufficient to justify or mitigate an act of
This Court has previously held
that an overt, threatening act or a physical encounter may constitute
sufficient legal provocation. State v. Gardner, 219 S.C. 97,
105, 64 S.E.2d 130, 134 (1951). Notwithstanding this proposition, we
decline to hold that a child has sufficient legal provocation to use
deadly force against a guardian who disciplines through corporal
However, even assuming that Appellant is entitled to a finding of
sufficient legal provocation as related to the death of Appellant’s
grandfather, Appellant has not shown any sufficient legal provocation
which would entitle him to the voluntary manslaughter charge as applied
to the death of his grandmother. Although Appellant claimed “they beat
me,” there is no evidence to show that his grandmother used the paddle
on him. Therefore, there could be no adequate provocation on her part.
Thus, under no circumstances could the trial court have erred in not
charging the jury regarding voluntary manslaughter as it relates to the
death of Appellant’s grandmother.
2. Sudden Heat of Passion
The defense contends that voluntary manslaughter is an appropriate
charge because the killings were the result of a “spur of the moment
thing in the wake of this spanking or beating.” Appellant also alleges
in his brief that he was subjected to repeated beatings on the evening
of the killings and was in constant fear of when the next beating might
Conversely, the State contends
that Appellant’s actions signify “cool reflection,” and therefore a
voluntary manslaughter charge was not warranted.
“The sudden heat of passion,
upon sufficient legal provocation, which mitigates a felonious killing
to manslaughter, while it need not dethrone reason entirely, or shut out
knowledge and volition, must be such as would naturally disturb the sway
of reason, and render the mind of an ordinary person incapable of cool
reflection, and produce what, according to human experience, may be
called an uncontrollable impulse to do violence.” Knoten,
347 S.C. at 303, 555 S.E. 2d at 395. Even when a person’s passion has
been sufficiently aroused by a legally adequate provocation, if at the
time of the killing those passions had cooled or a sufficiently
reasonable time had elapsed so that the passions of the ordinary
reasonable person would have cooled, the killing would be murder and not
manslaughter. Id. At the same time, “[i]n determining whether
an act which caused death was impelled by heat of passion or by malice,
all the surrounding circumstances and conditions are to be taken into
consideration, including previous relations and conditions connected
with the tragedy, as well as those existing at the time of the killing.”
Norris, 253 S.C. at 35, 168 S.E.2d at 566.
In State v. Cole, 338 S.C.
97, 525 S.E.2d 511, this Court found that a period of three to five
minutes constituted a sufficient cooling off period. In Cole, a
fight occurred between the victim and the defendant at the victim’s home.
Id. Focusing on the actions of the defendant in the intervening
time between the provocation and killing (as distinguished from the
quantity of time that passed), the Court found that the actions taken by
the defendant to go out to his car, get a knife and return to fatally
stab the victim indicated “cool reflection.” Id.
The dissent argues that the
Court should not determine, as a matter of law, whether Appellant had a
sufficient time in which to “cool off.” Instead, the dissent would find
that whether a reasonable cooling time had elapsed is a question of fact
for the jury. While the law has not defined a bright-line rule for what
constitutes a sufficient time for cooling off, this Court has determined
that whether the defendant’s actions during the intervening time between
the provocation and the killing indicates the absence of sudden heat of
passion is an appropriate question for the court. See State v.
Walker, 324 S.C. 257, 261, 478 S.E.2d 280, 281-82 (1996) (finding
that the defendant demonstrated cool reflection through his actions
between the alleged provocation and the killing); and State v. Byrd,
323 S.C. 319, 322-23, 474 S.E.2d 430, 432 (1996) (holding that the
defendant’s actions between the alleged provocation and killing did not
support a finding of sudden heat of passion).
According to Appellant’s
confession , Appellant’s grandfather beat him with the paddle and sent
him to his room. Appellant’s grandparents then went to bed for the
night. After they went to their room, Appellant waited for ten minutes,
retrieved his shotgun, went back to his room to load it, and went to his
grandparents’ bedroom where he shot them to death. According to
Appellant’s confession, the period between the “beating” and the
killings lasted more than ten minutes. The methodical execution of the
shootings, combined with the lapse of time between the beating and
shootings, clearly indicates that Appellant did not kill his
grandparents in a sudden heat of passion.
Although it is possible that
Appellant felt threatened at some point during the evening of the
murders, there is no evidence to support the theory that Appellant’s
grandparents actually posed a threat to him when he fatally shot them.
At the time of the murders, Appellant’s grandfather was no longer
beating him with the paddle. Furthermore, his grandparents were not
even in the same room with Appellant when he retrieved the shotgun to
shoot them; they had gone to bed for the night when the shooting
occurred. Taking into consideration all the surrounding circumstances
and conditions, including previous relations and conditions connected
with the tragedy, as well as those in existence at the time of the
killing, the evidence did not warrant a voluntary manslaughter charge.
Accordingly, the trial court did
not err in failing to charge the jury on the lesser included offenses of
voluntary manslaughter. Although sufficient legal provocation arguably
existed as to one victim, these killings could not have occurred in the
“heat of passion.”
X. Involuntary Intoxication
Appellant argues that the trial
court failed to properly charge the jury regarding involuntary
intoxication. We disagree.
South Carolina has adopted the
M’Naughten test as the standard for determining whether a
defendant’s mental condition at the time of the offense rendered him
criminally responsible. State v. South, 310 S.C. 504, 508, 427
S.E.2d 666, 669 (1993). Under this test, a defendant is considered
legally insane if, at the time of the offense, he lacked the capacity to
distinguish moral or legal right from wrong. Id. This Court has
continuously utilized the M’Naughten test in criminal cases where
issues of mental capacity are implicated. See Id. at 504,
427 S.E.2d at 666; State v. Davenport, 301 S.C. 39, 389 S.E.2d
649 (1990); State v. Law, 270 S.C. 664, 244 S.E.2d 302 (1978);
State v. Cannon, 260 S.C. 537, 197 S.E.2d 678 (1978).
At trial, Appellant’s counsel
expressed concerns about the charge to be given to the jury regarding
involuntary intoxication. The defense felt that the M’Naughten
test did not accurately reflect the standard which should be used for
involuntary intoxication defenses. Instead, the defense suggested that
the trial court charge the jury based on the Model Penal Code standard
of inability to conform one’s conduct to the requirements of the law.
After much discussion, the trial court ultimately charged the
M’Naughten standard as required under S.C. Code Ann. § 17-24-30
(2003). However, the trial court also instructed the jury to find
Appellant not guilty if they found involuntary intoxication in this
We retain the M’Naughten
test as the correct standard for determining whether a defendant’s
mental condition at the time of the offense rendered him criminally
responsible. The fact that other courts apply a different standard for
the defense of involuntary intoxication is not dispositive. Further,
Appellant has offered no other reason why this Court should adopt the
Model Penal Code standard. Accordingly, the trial court properly
charged the jury on this issue.
XI. Excluded Evidence
Appellant argues the trial judge
erred in excluding certain information regarding the effects of Zoloft.
The admission of evidence
is within the discretion of the trial court and will not be reversed
absent an abuse of discretion. State v. Gaster, 349 S.C. 545,
557, 564 S.E.2d 87, 93 (2002). An abuse of discretion occurs when the
conclusions of the trial court either lack evidentiary support or are
controlled by an error of law. State v. McDonald, 343 S.C. 319,
325, 540 S.E.2d 464, 467 (2000).
Generally, all relevant evidence
is admissible. Rule 402, SCRE; State v. Saltz, 346 S.C. 114, 551
S.E.2d 240 (2001). Relevant evidence is “evidence having any tendency
to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would
be without the evidence.” Rule 401, SCRE. Relevant evidence may be
excluded where its probative value is substantially outweighed by the
danger of unfair prejudice. Id.
The trial court allowed
Appellant to present a copious amount of scientific evidence regarding
Zoloft and other SSRI’s. The defense called prosecution expert Dr.
James Ballenger. During his testimony, he conceded that SSRI’s can
cause hypomania or mania in some people. Additionally, Dr. David Healy
testified that SSRI’s could cause akathisia, emotional blunting, and
mania. Dr. Ronald Maris testified that the same mechanisms that could
trigger a child taking Zoloft to commit suicide could also trigger one
to harm another person.
Further, the defense presented
testimony from a data specialist regarding adverse reaction data for
SSRI manufacturers. During his testimony, the specialist discussed
various reports of depression, agitation, hallucinations, and akathisia.
The trial court also allowed the defense to present the anecdotal
testimony of Bruce Orr regarding his negative experience with Paxil. He
testified that, as a result of taking Paxil, he became irritable,
impulsive, and suicidal. He further testified that the drug caused him
to impulsively slam his own vehicle into his ex-wife’s vehicle and house.
The trial court did not allow
Appellant to submit other anecdotal evidence regarding incidents which
occurred in connection with the use of Zoloft. Among other things, the
court was concerned about the reliability of the anecdotal reports
compared with the reliability of reports from clinical studies done in a
controlled environment. The court was also concerned with the
trustworthiness of the sources of the anecdotal testimony, as well as
the ability of experts to establish the causal link between the Zoloft
and the incidents. Despite these concerns, the trial court permitted
the above expert testimony regarding Zoloft obtained from reliable
methods, consistent with the South Carolina Rules of Evidence.
The record shows a conscientious
decision on the part of the trial court to not admit evidence with
questionable reliability where there was an abundance of other
admissible evidence found to be reliable. Additionally, the trial
court correctly found that the prejudicial effects outweighed the
probative value of the anecdotal evidence.
Therefore, we find the trial
court did not err in excluding the anecdotal evidence regarding Zoloft.
For the foregoing reasons, we
affirm the trial court’s rulings as to all issues on appeal.
MOORE, WALLER and BURNETT, JJ.,
concur. PLEICONES, J., dissenting in a separate opinion.
PLEICONES, J.: I
respectfully dissent. First, I cannot agree with the majority that
the infliction of corporal punishment upon a child by his parent or
guardian can never constitute legal provocation so as to entitle the
child who kills his abuser to a voluntary manslaughter charge, nor do I
agree that evidence in this case demonstrates the dissipation of the
sudden heat of passion as a matter of law. I would therefore hold the
trial court committed reversible error in refusing to charge the jury on
voluntary manslaughter. Second, I would adopt a prophylactic rule
requiring that before police may conduct custodial interrogation of a
child under the age of fourteen, he must first be permitted to consult
with an interested adult. If he thereafter decides to waive his
privilege against self-incrimination, I would require that the
interested adult be present during the custodial interrogation.
A. Voluntary Manslaughter
When reviewing the trial court’s
denial of a defendant’s request for a voluntary manslaughter charge, the
Court must view the evidence in the light most favorable to the
defendant, and affirm that denial only where “there is no evidence
whatsoever tending to reduce the crime from murder to manslaughter.”
State v. Knoten, 347 S.C. 296, 302, 555 S.E.2d 391, 394 (2001)
citing State v. Cole, 338 S.C. 97, 101, 525 S.E.2d 511, 513
(2000). I simply cannot accept the majority’s rule, a rule unsupported
by citation of authority, that the child-victim of a beating or other
abuse at the hands of a parent or guardian, who retaliates against his
tormentor and kills him, is ipso facto guilty of murder. In this
case, viewing the evidence in the light most favorable to appellant, I
would hold that a jury could find evidence of legal provocation giving
rise to the heat of passion in the beating administered to appellant by
I agree with the majority that
the facts in Cole demonstrated cooling off as a matter of law,
especially since the defendant himself admitted that “he had enough time
to get his head together.” I am unable, however, to agree that this
angry, emotionally ill child “cooled off” as a matter of law in the ten
minutes or so following the beating administered by his grandfather. In
my opinion, it is for a jury and not this Court to determine whether
appellant’s actions in retrieving the gun, returning with it to his room,
loading it, and proceeding to his grandparents’ bedroom are actions
demonstrating “cool reflection” and “methodical execution,” or
whether, perhaps, these acts are consistent with a person acting under
the “sudden heat of passion.”
In State v. Goodson, 140
S.C. 357, 138 S.E. 816 (1927) this Court surveyed the law related to
“cooling off” in reversing a murder conviction because the trial court
refused to charge voluntary manslaughter. In Goodson, the
defendant’s passion was incited on Tuesday afternoon and the victim shot
and killed the next afternoon. The Goodson court cited these
passages from prior decisions, with approval:
In 13 R. C. L., 790, we find:
‘cooling time,’ as it ordinarily is termed, depends on the
nature of man and the laws of the human mind, as well as on the
nature and circumstances of the provocation, the extent to which
the passions have been aroused, and the nature of the act
causing the provocation, and therefore no precise time can be
laid down by the Court as a rule of law, within which the
passions must be held to have subsided and reason to have
resumed its control. The question is one of reasonable time,
depending on all the circumstances of the particular case; and
the law has not defined, and cannot, without gross injustice,
define the precise time which shall be deemed reasonable, as it
has with respect to notice of the dishonor of commercial paper.
What constitutes reasonable time in a particular case is
ordinarily a question of fact for the jury; and the court cannot
take it from the jury by assuming to decide it as a question of
In State v. McCants,
1 Speers, 390, the Court, in speaking of what is reasonable time
for cooling, said:
“The standard of what is
reasonable, is ordinary human nature; to be applied by the Court,
if all the facts and circumstances be found by a special verdict,
or to be applied by the jury in giving a general verdict. As to
the reasonable time in which cooling should ensue after
provocation, no precise rule can be given.”
In the same case, at page
391, we find:
“In all cases where the
time of cooling may be considered, whether the time be regarded
as evidence of the fact of cooling, or as constituting, of
itself, when reasonable, legal deliberation, the whole
circumstances are to be taken into the estimate in determining
whether the time be reasonable. The nature of the provocation,
the prisoner’s physical and mental constitution, his condition
in life and peculiar situation at the time of the affair, his
education and habits (not of themselves voluntary preparations
for crime), his conduct, manner and conversation throughout the
transaction; in a word, all pertinent circumstances may be
considered, and the time in which an ordinary man, in like
circumstances, would have cooled, is a reasonable time.”
State v. Goodson, 140
S.C. at 361-2, 138 S.E. at 817-8.
In my opinion, the trial court erred in declining to charge voluntary
manslaughter. State v. Goodson, supra. I would therefore
reverse appellant’s convictions
and remand for a new trial. Since the issue of the admissibility of his
statement will most likely arise on retrial, I address the merits of
that issue as well.
B. Admission of Appellant’s
The majority declines to adopt a
per se rule that a juvenile’s confession is inadmissible unless
obtained in “the presence of counsel, a parent, or other interested
adult,” choosing instead to adhere to the “totality of the circumstances”
test for evaluating the voluntariness of a juvenile’s confession. In my
opinion, appellant’s confession does not pass the totality test.
Moreover, I would adopt the following prophylactic rule:
Before a child under the age
of fourteen may waive his privilege against self-incrimination and
submit to custodial interrogation, he must have the opportunity to
consult with an interested adult and, if the child waives the
privilege, to have that adult present throughout the interrogation.
An interested adult means a parent or guardian whose interests are
not adverse to that of the child’s, or an attorney.
While such a rule is not required verbatimet litteration by the
Constitution, in my opinion it will best serve to protect the interests
of society, law enforcement, and the minor.
As the Supreme Court
explained in 1967,
The privilege against
self-incrimination is, of course, related to the question of the
safeguards necessary to assure that admissions or confessions
are reasonably trustworthy, that they are not mere fruits of
fear or coercion, but are reliable expressions of the truth.
The roots of the privilege are, however, far deeper. They tap
the basic stream of religious and political principle because
the privilege reflects the limits of the individual’s atonement
to the state and – in a philosophical sense – insists upon the
equality of the individual and the state. In other words, the
privilege has a broader and deeper thrust than the rule which
prevents the use of confessions which are the product of
coercion because coercion is thought to carry with it the danger
of unreliability. One of its purposes is to prevent the state,
whether by force or by psychological domination, from overcoming
the mind and will of the person under investigation and
depriving him of the freedom to decide whether to assist the
state in securing his conviction.
In re Gault, 387
U.S. 1, 47 (1967).
Moreover, the Gault Court, while not requiring the “interested
adult” rule in the context of juvenile adjudication
went on to hold:
We conclude that the
constitutional privilege against self-incrimination is
applicable in the case of juveniles as it is with respect to
adults. We appreciate that special problems may arise with
respect to waiver of the privilege by or on behalf of children,
and that there may well be some differences in technique – but
not in principle – depending upon the age of the child and the
presence and competence of parents. The participation of
counsel will, of course, assist the police, Juvenile Courts and
appellate tribunals in administering the privilege. If counsel
was not present for some permissible reason when an admission
was obtained, the greatest care must be taken to assure that the
admission was voluntary, in the sense not only that it was not
coerced or suggested, but also that it was not the product of
ignorance of rights or of adolescent fantasy, fright or despair.
Id. at 55.
I would apply the “interested
adult” rule only to children under fourteen years of age. At common law,
a child under fourteen is prima facie doli incapax. State v.
Toney, 15 S.C. 409 (1881). The presumption that these children are
incapable of committing a crime is founded “[o]ut of tenderness to
infants – the ease with which they may be misled – their want of
foresight and their wayward disposition….” Id. at 414. Even at
fifteen, such “a mere child [is] an easy victim of the law…15 is a
tender and difficult age for a boy…[who] cannot be judged by the more
exacting standards of maturity. That which would leave a man cold and
unimpressed can overawe and overwhelm a lad in his early teens.”
Haley v. Ohio, 332 U.S. 596, 599 (1948).
I do not doubt that a
child of between the ages of seven and fourteen may be capable of
understanding the difference between right and wrong, and thus capable
of committing a criminal offense. The ability to distinguish right from
wrong is not, in my opinion, determinative whether the child is
capable of a knowing, intelligent, and voluntary waiver of his
constitutional rights. South Carolina statutes, as well as court rules,
are replete with examples where a distinction is drawn between children
under fourteen and those fourteen or older. See, e.g., S.C. Code
Ann. §§ 20-7-140 et seq. (minors fourteen or over may petition
for custodial payments or an accounting, or designate a successor
custodian under the “South Carolina Uniform Gifts to Minors Act”); §§
62-5-410; -407 (minors aged fourteen years old and above may be
considered for certain probate court appointments); § 20-7-1690(A)(1) (children
aged fourteen and up must consent to their adoption); § 23-35-120(1) (legally
purchase fireworks without a parent); Rule 4(d)(2), SCRCP (child under
fourteen cannot be directly served with process); Rule 17(d)(3), (5) (child
under fourteen, like an incompetent person, cannot petition for the
appointment of his own guardian ad litem); cf. S.C.Const. art.
III, § 34 (unmarried woman under fourteen cannot consent to sexual
The law presumes that minors are
incapable of making certain decisions which carry with them serious
legal consequences. See statutes and rule cited above; see
also § 20-1-100 (persons under sixteen “not capable of entering into
a valid marriage”); § 20-7-250 (in general, contracts made during
infancy must be ratified in unity after “full age” to be enforceable).
At issue here is the minor’s decision whether to “assist the state in
securing his convictions,” the consequences of which are at least as far
reaching as the decision to marry or to enter a contract. In my opinion,
it best serves the interests of society to require that minors, under
the age of fourteen, whom the law in all other respects treats as it
does incompetent adults, consult with an interested adult before waiving
their privilege against self-incrimination.
Even if we do not adopt this
rule today, it is my opinion that appellant’s confession cannot be said
to be voluntary under the totality of the circumstances. The undisputed
facts demonstrate that appellant, aged twelve, had received inpatient
treatment for depression before coming to live with his grandparents.
His prescription medicine had been changed, and there was evidence that
his condition was deteriorating. On the day before the killings,
appellant assaulted a young child, and on the day itself, appellant had
been taken from school by his grandparents. An individual observed
appellant that evening demonstrating bad behavior and an angry attitude.
Later that evening appellant was “paddled” by his grandfather: ten
minutes later appellant shot and killed both his grandparents.
Appellant then set a fire, took
money, weapons, and his dog and left in his grandparents’ vehicle. The
next morning appellant was found in the woods. During the day,
appellant was befriended by Deputy McKellar and they spent the next four
hours talking, eating and playing cards. Later that afternoon, about 3
p.m., McKellar took appellant to the police station after his status was
changed from victim to suspect. At the station McKellar told appellant
it was time for an adult conversation and explained to appellant his
Miranda rights. Another officer entered the room, apparently assuming
the role of the “bad cop.” McKellar asked appellant about a bible verse
he had mentioned earlier, and the other officer asked appellant what his
grandparents would think about his lack of truthfulness. At this point,
Myriad factors are to be
considered when reviewing the totality of circumstances attendant upon a
minor’s waiver of his privilege against self-incrimination. While age
is certainly an important factor, it alone is not determinative. In
re Williams, 265 S.C. 295, 217 S.E.2d 719 (1975). However,
according to one commentator, “Invariably, the cases that hold that age
alone is not determinative of the effectiveness of the waiver [in the
absence of an interested adult] have involved minors who were fourteen
years of age or older, and most often sixteen or seventeen.” Davis,
Rights of Juveniles 2d 175 (2006). Other factors which must be
considered in determining the validity of a minor’s waiver include
“intelligence, education, experience, and ability to comprehend the
meaning and effect of his statement.” In re Williams, 265 S.C.
at 300, 217 S.E.2d at 722(internal citations omitted).
Here, a twelve year old emotionally disturbed child with no prior
experience with the justice system waived his rights approximately
eighteen hours after killing his grandparents, having spent the night in
the woods, the midday in the company of a sympathetic officer,
napping occasionally, playing cards, eating, and talking before being
taken to the police station where the atmosphere changed from
compassionate care to interrogation. Viewing the totality of these
circumstances “with the greatest care,”
I am unconvinced that appellant’s decision to waive his privilege was
knowing, voluntary, and intelligent. Upon retrial, I would hold the
statement inadmissible because it was obtained without the advice and
consent of an interested adult, and because under the totality of the
circumstances appellant’s waiver does not pass constitutional muster.
I would reverse appellant’s
convictions and sentences, and remand for further proceedings.
Both Paxil and Zoloft are part of the antidepressant classification of
drugs called Selective Serotonin Reuptake Inhibitors, or SSRIs.
The statute defines child as “a person less than seventeen years of age.”
However, the definition is further limited for instances involving
certain felony charges. S.C. Code Ann. § 20-7-6605(1) (2003).
Whether this statute suffers from a constitutional deficiency is a
matter wholly separate from determining its clear intent. Although
Appellant makes veiled allegations regarding the constitutionality of
the statute at issue in Corey D., he does not ask this Court to
review either the constitutionality of Corey D. or the statute.
This proposition actually appears as a quotation in Standard, and
is drawn from the United States Supreme Court case Thompson v.
Oklahoma, 487 U.S. 815, 821 (1988) (citing Trop v. Dulles,
356 U.S. 86, 101 (1958)). In both Thompson and Trop, the
court relied on Weems v. United States, 217 U.S. 349 (1910) for
this proposition. See Thompson, 356 U.S. at 821, Trop,
356 U.S. at 100. In Weems, the court stated:
Time works changes, brings
into existence new conditions and purposes. Therefore a principle to
be vital must be capable of wider application than the mischief
which gives it birth.
The [cruel and unusual
punishments clause] in the opinion of the learned commentators may
be therefore progressive, and is not fastened to the obsolete but
may acquire meaning as public opinion becomes enlightened by a
Id. at 373-78. This has
become the touchstone of Eighth Amendment jurisprudence. See Roper
v. Simmons, 543 U.S. 551, 560 (2005); see also Atkins v. Virginia,
536 U.S. 304, 311-312 (2002).
This entire list, excluding Avery and Sanders, was set
forth in Standard, 351 S.C. at 205, 569 S.E.2d at 329.
Stated differently, a firmly anchored principle of our society is that
“important human values are sacrificed where an agency of the government,
in the course of securing a conviction, wrings a confession out of an
accused against his will.” Jackson, 378 U.S. at 386 (quoting
Blackburn v. Alabama, 361 U.S. 199, 206-07 (1960)).
For example, the court stated:
That which would leave a man
cold and unimpressed can overawe a lad in his early teens . . . we
cannot believe that a lad of tender years is a match for the police
in such a contest. He needs counsel and support if he is not to
become the victim first of fear, then of panic. He needs someone on
whom to lean lest the overpowering presence of the law, as he knows
it, may not crush him.
Haley, 332 U.S. at
[A juvenile] cannot be
compared with an adult in full possession of his senses and
knowledgeable of the consequences of his admissions. He would have
no way of knowing what the consequences of his confession were
without advice as to his rights-from someone concerned with securing
him those rights-and without the aid of more mature judgment as to
the steps he should take in the predicament in which he found
himself. A lawyer or an adult relative or friend could have given
the Appellant the protection which his own immaturity could not.
Adult advice would have put him on a less unequal footing with his
interrogators. Without some adult protection against this inequality,
a 14-year-old boy would not be able to know, let alone assert, such
constitutional rights as he had. To allow this conviction to stand
would, in effect, be to treat him as if he had no constitutional
Gallegos, 370 U.S. at
See State v. Thomas, 447 F.2d 1320, 1321-22 (4th Cir. 1971) (fifteen-year-old
who dropped out of school before finishing the fifth grade was taken
into custody around midnight, questioned until approximately 4:30 a.m.,
and then again beginning at 7:30 a.m. and lasting until approximately
5:00 p.m. During this time, a team of officers rotated interrogations
and also drove the defendant to various crime scenes while inquiring
about his involvement in the offences.); Gallegos, 370 U.S. at 52
(fourteen-year-old defendant held in police custody with no visitation
for five days and questioned by a team of prosecutors for a continuous
36-hour period without sleep); Haley, 332 U.S. at 597-98 (fifteen-year-old
defendant questioned for about five hours beginning around midnight and
not informed of his right to counsel).
Appellant only presents this argument “in effect.” Instead of
articulating this position, Appellant posits only that this confession
was involuntary. This Court rejected a per se rule in Jenkins,
265 S.C. at 300, 217 S.E.2d at 721-22, and because we are not asked to
revisit that holding today, we do not do so. For this reason the
dissent’s adoption of a prophylactic rule proceeds beyond the scope of
the case Appellant has presented for our review.
Moreover, even had the Appellant
requested such relief, such a rule is not required by the Constitution.
Furthermore, the dissent’s reliance on In re Gault, 387 U.S. 1
(1967), to support the adoption of the prophylactic rule is misplaced.
In In re Gault, the United States Supreme Court held that certain
juvenile proceedings required the same due process protections afforded
to adults in criminal proceedings. Id.
While the Court noted that great
care should be taken to assure the voluntariness of an admission by a
child, the Court did not find that the standards of voluntariness or
waiver for juveniles differs from the standard used for adults. See
id. at 55. It is for this reason that we analyze this confession
under the totality of the circumstances. To safeguard Constitutional
rights, the Constitutional standard ought to suffice.
Accordingly, we adhere to our
previous decisions requiring only that a confession or admission of a
juvenile be found voluntary under a totality of the circumstances
analysis. As the dissent points out, the legislature has determined
that under some circumstances a minor’s rights should be restricted or
that a minor should be afforded protections not extended to adults.
Similarly, we think the decision of whether an interested adult need be
present for a juvenile to give a voluntary confession is best left to
the discretion of the legislature.
The dissent argues that, in the absence of Appellant’s confession,
Appellant would be entitled to a voluntary manslaughter charge for the
killing of his grandmother under the theory of transferred intent.
However, the dissent fails to recognize that Appellant’s entire argument
for the voluntary manslaughter charge rests on the allegation that
Appellant’s grandfather beat him with a paddle; an allegation which is
only found in the confession. Therefore, if the confession is excluded,
Appellant has no basis for asserting that he had sufficient legal
provocation and would not be entitled to the voluntary manslaughter
charge in either case.
Appellant refers to the confession to support the allegation of repeated
beatings. The confession states, “[h]e hit me 5 or 6 times.” This
statement implies that the hits occurred in one incident and not
multiple incidents as Appellant’s brief implies.
While the grandfather’s actions supplied the legal provocation, it is
unclear from the record, in the absence of appellant’s confession,
whether he intended to shoot his grandmother or whether she was the
unintended victim of appellant’s “manslaughter intent” state of mind
directed at his grandfather. Since intent is unclear, I would reverse
and remand appellant’s conviction for the murder of his grandmother as
well as his conviction for the killing of his grandfather. E.g.,
State v. Gandy, 283 S.C. 571, 324 S.E.2d 65 (1984)
overruled on other grounds Casey v. State, 305 S.C. 445, 409
S.E.2d 391 (1991).
I believe such a prophylactic rule, much like that established by
Miranda v. Arizona, 384 U.S. 436 (1966), will ensure that waivers
by children under the age of fourteen are voluntary within the meaning
of the 5th Amendment.
The present case, of course, involves the trial of a juvenile as an
I do not suggest that Deputy McKellar did anything improper.
In re Gault, supra at 55.