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In Green, no severance was required because the appellants and the codefendant did not have antagonistic defenses and therefore the appellants were not prejudiced by their inability to comment on the codefendant's refusal to take the stand.
Summary of this case from Payne v. StateOpinion
20556
December 5, 1977.
Kenneth M. Suggs, Luther M. Lee, and Barry B. George, of Columbia, for Appellants, cite: As to the true test of an indictment: 259 S.C. 118, 191 S.E.2d 13; 134 S.C. 179; 263 S.C. 23, 207 S.E.2d 414; § 17-503 of the Code of Laws of 1962 (§ 17-23-30 in the 1976 Code). As to the accused having been deprived of effective assistance of counsel, and to due process of law by being forced to trial with another Defendant who did not take the stand: 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; 245 S.C. 98, 138 S.E.2d 840; 221 S.C. 504, 71 S.E.2d 410; 202 S.C. 155, 24 S.E.2d 175; 138 S.C. 167, 136 S.E.2d 222; 425 U.S. 80, 47 L.Ed.2d 592, 96 S.Ct. 1330; 406 U.S. 605, 32 L.Ed.2d 358, 92 S.Ct. 1891; 287 U.S. 45, 77 L.Ed.2d 158, 53 S.Ct. 55.
Daniel R. McLeod, Atty. Gen., Brian P. Gibbes, Asst. Atty. Gen., Kay G. Crowe, Staff Atty., and James C. Andres, Sol. of Columbia, for Respondent, cite: As to the trial judge's having acted properly within his discretion in denying the Appellants' motion for a directed verdict and judgment n. o. v.: 259 S.C. 616, 193 S.E.2d 536; 266 S.C. 325, 223 S.E.2d 38; 221 S.C. 504, 71 S.E.2d 410; 232 S.C. 223, 101 S.E.2d 289. As to the trial judge's having correctly ruled that the Appellants could not comment in their arguments on the fact that their codefendant did not take the stand: 184 S.C. 290, 192 S.E. 365; 308 F.2d 140; 482 F.2d 485; 261 S.C. 488, 201 S.E.2d 118; 258 S.C. 258, 188 S.E.2d 379; 266 S.C. 175, 222 S.E.2d 287.
December 5, 1977.
Appellants and one Leroy Amiker were indicted for an armed robbery occurring on June 28, 1976, at Robinson Trip's Fried Chicken in Columbia. Amiker was found not guilty and appellants were found guilty and sentenced to twenty years imprisonment. We affirm.
Appellants first assert that the State failed to prove an armed robbery occurred on the date alleged in the indictment. We disagree.
The crime occurred on June 28, 1976, the date contained in the indictment; however, the solicitor inadvertently referred to another date when questioning some of the witnesses. Appellants' reliance on State v. Pierce, 263 S.C. 23, 207 S.E.2d 414 (1974), is misplaced, as this is not a case where the indictment charged a crime occurring on one date and the State proved a different date. Appellants were tried and convicted of the crime occurring on the date set forth in the indictment. They were neither surprised nor prejudiced by the fact that the solicitor referred to the wrong date. This exception is without merit.
Appellants next except to the trial judge's denial of their request to comment on Leroy Amiker's refusal to take the stand. We believe the trial judge's decision was proper. A defendant in a criminal case has the benefit of the presumption of innocence and he should not be deprived of this advantage by adverse comments on his decision to remain silent. We perceive no distinction in the fact that the comments here would have been made by a co-defendant's attorney rather than by the solicitor. As was stated in De Luna v. United States, 308 F.2d 140 (5th Cir. 1962):
"If comment on an accused's silence is improper for judge and prosecutor, it is because of the effect on the jury, not just because the comment comes from representatives of the State. Indeed, the effect on the jury of comment by a co-defendant's attorney might be more harmful than if it comes from judge or prosecutor." 308 F.2d at 152.
De Luna appears to be the first federal case to address this issue. It involved the joint trial of two defendants accused of a narcotics offense. Reversing the conviction of the defendant whose failure to testify was commented on by his co-defendant's counsel, the court concluded that an accused's guaranty of freedom from self-incrimination extended to prejudicial remarks made by a co-defendant's attorney. It held that in the event one co-defendant's lawyer must draw the jury's attention to a possible inference of guilt arising from a co-defendant's silence, the trial judge should order separate trials.
The rationale of De Luna, that it is proper for a trial judge to refuse to allow a defendant's counsel to comment on the failure of a co-defendant to testify, has been followed by other courts. People v. Gilmour, 56 Misc.2d 852, 290 N.Y.S.2d 582 (1968); U.S. v. Gleason, 259 F. Supp. 282 (D.C.N.Y. 1966); U.S. v. McKinney, 379 F.2d 259 (6th Cir. 1967); Gurleski v. U.S., 405 F.2d 253 (5th Cir. 1968), cert. den. 395 U.S. 981, 89 S.Ct. 2140, 23 L.Ed.2d 769; 1 ALR 3d 989. While an attorney's duty to his client may create the necessity of making such comments in some circumstances, the right is limited to those occasions where defendant's defenses are based on mutually exclusive theories of guilt. Gurleski v. U.S., supra; U.S. v. Nakaladski, 481 F.2d 289 (5th Cir. 1973), cert. den., 414 U.S. 1064, 94 S.Ct. 570, 38 L.Ed.2d 469.
We find appellants' argument that their trial should have been severed from that of Leroy Amiker to be without merit. There is no evidence that the co-defendants' positions were antagonistic to one another or that any prejudice resulted from appellants' inability to comment on Mr. Amiker's silence. It is well settled that a motion for severance is addressed to the sound discretion of the trial judge, and his decision will not be disturbed absent an abuse of discretion. State v. Francis, et al., 152 S.C. 17, 149 S.E. 348 (1929); State v. Allen, 266 S.C. 175, 222 S.E.2d 287 (1976).
Affirmed.
LEWIS, C.J., and LITTLEJOHN, RHODES and GREGORY, JJ., concur.