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State v. Pierce

Supreme Court of South Carolina
Jul 21, 1986
289 S.C. 430 (S.C. 1986)

Summary

reversing jury verdict of guilty where trial judge made same comments regarding defendant's constitutional right not to testify as in Gunter, although defendant nonetheless declined to testify

Summary of this case from State v. Crisp

Opinion

22597

Heard January 7, 1986.

Decided July 21, 1986.

Atty. Gen. T. Travis Medlock, Asst. Attys. Gen. Harold M. Coombs, Jr., Amie L. Clifford; and James C. Anders, Sol. of the Fifth Judicial Circuit, all of Columbia, for respondent. Deputy Chief Atty. Elizabeth C. Fullwood, of the South Carolina Office of Appellate Defense; John M. Young; and Jerry M. Screen, Columbia, for appellant.



Heard Jan. 7, 1986.

Decided July 21, 1986.


The appellant, Marcellus Pierce, Jr., and co-defendants, William Anthony Nesmith and Benjamin Anthony Joyner, were convicted of murder, kidnapping, first degree criminal sexual conduct, grand larceny and conspiracy. Appellant was sentenced to death. His direct appeal and mandatory sentence review [S.C. Code Ann. Section 16-3-25 (1984)] are consolidated for purposes of this opinion.

Appellant raises numerous allegations of error. We reverse and remand.

FACTS

Barbara Rossi was abducted from the Woodhill Mall parking lot in Richland County and taken to a nearby area, where she was raped, robbed and shot to death. Pierce and co-defendants Nesmith and Joyner were indicted and tried together for the crimes. Both Joyner and Nesmith testified at trial as to their participation in the crimes, but they attested that Pierce actually shot Ms. Rossi Pierce did not testify at trial.

JURY INSTRUCTIONS

The trial judge instructed the jury in his introductory charge not to deliberate about the case until it is concluded. He further instructed, "By that also I don't say that in the evening or during lunch or something you are not naturally going to be talking about the case." Prior to the weekend recess, the trial judge again instructed the jury, "I don't suggest for a moment that you would not as human beings talk about the trial and what is going on. Do not start making up your minds about what your verdict should be."

Pierce contends that the jury instructions invited the jury to prematurely deliberate the case and are reversible error. We agree.

This Court has held that a jury should not begin discussing the case, nor deciding the issues, until all the evidence has been introduced, the arguments of counsel complete, and the applicable law charged. State v. Gill, 273 S.C. 190, 255 S.E.2d 455 (1979); State v. McGuire, 272 S.C. 547, 253 S.E.2d 103 (1979). The reasoning behind this holding against premature jury deliberation is best set out in McGuire, 272 S.C. at 552, 253 S.E.2d 103, wherein the Court stated: "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."

In State v. Gill, the trial judge instructed the jury that they could discuss the case in the jury room. He further instructed the jury not to attempt to reach a decision until told by the court to begin their deliberations. This Court found that this improper and inconsistent instruction to discuss the case amounted to an invitation to the jurors to begin their deliberations before the close of the case and that it was inherently prejudicial and required reversal.

State v. Gill is not materially distinguishable from the case at bar. The challenged instruction in this case implicitly invited the jury to discuss the case, which is tantamount to deliberation, prior to its completion. Jurors should be admonished not to discuss the case with anyone, including each other, prior to the submission of the case to them. State v. Parker, 255 S.C. 359, 179 S.E.2d 31 (1971). Jurors are presumed to follow the law as instructed. Parker v. Randolph, 442 U.S. 62, 99 S.Ct. 2132, 60 L.Ed.2d 713 (1979).

The fact that the trial judge subsequently cautioned the jurors against making up their minds before the case was finally submitted to them does not cure the improper and inconsistent instruction condoning discussion of the case. See State v. Gill, supra. The challenged instruction is inherently prejudicial and requires reversal.

FIFTH AMENDMENT RIGHT AGAINST COMPELLED TESTIMONY

During trial, at the request of the appellant's attorney and out of the presence of the jury, the trial judge questioned Pierce as to whether or not he wished to take the stand in his own defense.

The trial judge stated, "I tell you that the jury, will hold it against you, the fact that you did not testify. . . . I am going to charge them that the law does not permit them to hold it against you, but they are human beings and you know and I know that any twelve people who have been called upon to resolve some dispute cannot help but have it in their mind and wonder why he did not tell us his side of it."

While appellant did not raise exception as to his statement by the judge, the court reviews the record in favorem vitae in capital cases. State v. Patterson, 278 S.C. 319, 295 S.E.2d 264 (1982).

The Fifth Amendment provides that no person shall be compelled in a criminal case to be a witness against himself. This court has held in State v. Gunter, 286 S.C. 556, 335 S.E.2d 542 (1985), that it is a violation of a defendant's Fifth Amendment rights for a judge to make comments on how a jury may nor may not view a defendant's decision not to testify. The judge's statements in State v. Gunter were almost identical to the present case.

State v. Gunter was decided after this case was tried.

The state, at oral argument before this Court, asserts that this case is distinguishable from Gunter because Pierce had already made up his mind not to testify prior to the court's statement, and he did not change his mind after hearing the statement; therefore, Pierce is not prejudiced.

We disagree. The comments by the judge were erroneous, improper and contrary to South Carolina law. See State v. Gunter, supra. Although Pierce did not testify, he had the right to make that decision free of any influence or coercion from the trial judge. It is virtually impossible to determine the actual effect the judge's improper statements had on Pierce; but we do not agree with the state's position that, because Pierce did not testify, the judge's comments are harmless error.

SENTENCING PHASE OF TRIAL

Appellant argues on appeal that the trial court erred in failing to charge the statutory mitigating circumstances found in S.C. Code Ann. Section 16-3-20(C)(b)(1), (2), (5), (6) and (7). We agree in part.

Although a specific request for these charges was not made at trial, this court reviews this error in favorem vitae. State v. Patterson, supra.

The record is replete with evidence that Pierce was extremely intoxicated, smoking marijuana, and injecting drugs intravenously during the commission of the crimes. Evidence of voluntary intoxication is a proper matter for consideration by the jury in mitigation of punishment. State v. Woomer, 278 S.C. 468, 299 S.E.2d 317, 321 (1982), cert. denied, 463 U.S. 1229, 103 S.Ct. 3572, 77 L.Ed.2d 1413 (1983); State v. Shaw, 273 S.C. 194, 255 S.E.2d 799 (1979), cert. denied, 444 U.S. 957, 100 S.Ct. 437, 62 L.Ed.2d 329, reh. denied, 444 U.S. 1027, 100 S.Ct. 694, 62 L.Ed.2d 662 (1980).

Pursuant to Section 16-3-20(C), the trial judge shall instruct the jury as to those statutory mitigating circumstances which may be supported by the evidence. [Emphasis supplied]. The trial judge is not to be concerned with the weight of the evidence, but only with the existence of evidence. State v. Butler, 277 S.C. 452, 457, 290 S.E.2d 1, 4 (1982), citing State v. Gunter, 273 S.C. 347, 256 S.E.2d 317 (1979). In this case, the trial judge was required by law to instruct jury on statutory mitigating circumstances 2, 6, and 7, given the evidence showing Pierce was using drugs and extremely intoxicated during the commission of the crime. The failure to instruct is not harmless error.

In view of our decision in this case, we do not find it necessary to review the remaining exceptions.

We reverse and remand for a new trial.

Reversed and remanded.

NESS, C.J., and GREGORY, HARWELL and CHANDLER, JJ., concur.


Summaries of

State v. Pierce

Supreme Court of South Carolina
Jul 21, 1986
289 S.C. 430 (S.C. 1986)

reversing jury verdict of guilty where trial judge made same comments regarding defendant's constitutional right not to testify as in Gunter, although defendant nonetheless declined to testify

Summary of this case from State v. Crisp

relying on Gunter and stating the defendant "had the right to make that decision free of any influence or coercion from the trial judge"

Summary of this case from State v. Jenkins

In Pierce, the trial judge had similarly instructed criminal defendants that if they failed to testify, the jury would use it against them. Notably, however, the defendant in Pierce had already made up his mind not to testify, and did not change his decision after the trial court's comments.

Summary of this case from State v. Owens

In State v. Pierce, 289 S.C. 430, 435, 346 S.E.2d 707, 711 (1986),overruled on other grounds, State v. Torrence, 305 S.C. 405, 406 S.E.2d 315 (1991), we held that "the trial judge was required by law to instruct the jury on statutory mitigating circumstances 2, 6, and 7, given the evidence showing Pierce was using drugs and extremely intoxicated during the commission of the crime.

Summary of this case from State v. Stone

In State v. Pierce, 289 S.C. 430, 346 S.E.2d 707 (1986), and State v. Cooper, 291 S.C. 332, 353 S.E.2d 441 (1986), the same trial judge made similar comments to each defendant.

Summary of this case from Butler v. State

In State v. Pierce, 289 S.C. 430, 346 S.E.2d 707 (1986), this Court held statutory mitigating circumstances (2), (6) and (7) must be submitted to the jury when there is evidence of voluntary intoxication.

Summary of this case from State v. Plemmons

In State v. Pierce, 289 S.C. 430, 346 S.E.2d 707 (1986), this Court found reversible error in the trial judge's failure to charge voluntary intoxication as a mitigating circumstance where the evidence showed the defendant was intoxicated at the time of the crimes.

Summary of this case from State v. Drayton

In Pierce, supra, we held that if there is evidence that the defendant could be under the influence of alcohol or drugs at the time of the killing, the judge should charge the jury as to S.C. Code Ann. § 16-3-20(C)(b)(2), (6) and (7) (1976).

Summary of this case from State v. Bellamy

In Pierce, 289 S.C. 430, 346 S.E.2d 707 and State v. Joyner, 289 S.C. 436, 346 S.E.2d 711 (1986), the court indicated that jury instructions which invite premature jury deliberations are inherently prejudicial and require reversal.

Summary of this case from State v. Aldret
Case details for

State v. Pierce

Case Details

Full title:The STATE, Respondent v. Marcellus PIERCE, Jr., Appellant

Court:Supreme Court of South Carolina

Date published: Jul 21, 1986

Citations

289 S.C. 430 (S.C. 1986)
346 S.E.2d 707

Citing Cases

State v. Jenkins

This is error.SeeState v. Gunter , 286 S.C. 556, 559-60, 335 S.E.2d 542, 543 (1985) (explaining a trial court…

State v. Drayton

He argues such a charge was required because there was evidence he was intoxicated on the night of the…