State v. Byers

• Court: Court of Appeals of South Carolina
• Decided: January 13, 2005
• Docket: 2005-UP-018
• Status: Unpublished

Opinion

FACTS

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

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State,        Respondent,

v.

Charles B. Byers,        Appellant.

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Appeal From Berkeley County
Daniel  F.  Pieper, Circuit Court Judge

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Unpublished Opinion No.  2005-UP-018
Submitted December 1, 2004 – Filed January 13, 2005

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AFFIRMED

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Assistant Appellate Defender Robert M. Dudek, Office of Appellate Defense and Jeffrey P. Bloom, both of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, all of Columbia; and Solicitor Ralph E. Hoisington, of Charleston, for Respondent.

PER CURIAM:  Charles B. Byers appeals a circuit court’s determination that his indictment sufficiently conferred subject matter jurisdiction.  We affirm. [1]

FACTS

In December 1999, Byers was convicted of murder and sentenced to life imprisonment.  Subsequently, Byers appealed the conviction to this Court.  In State v. Byers, 2002-UP-486 (Ct. App. 2002), we remanded the case for an evidentiary hearing to determine whether the circuit court possessed subject matter jurisdiction in light of the fact that the indictment in the record did not indicate whether it was true billed. 

The remand hearing was held on December 12, 2002.  The circuit court considered a variety of evidence, including indictments, testimony from Carla D. Hartley, grand jury foreperson at the time of the disputed indictment, and Sharon Cato, an employee in the county clerk of court’s office. 

There are two indictments that are relevant to the current appeal.  The First is signed by Hartley, and contains the notation “true” underneath the heading “VERDICT.”  This indictment includes a date of “6/30/99.”  The second indictment is also signed by Hartley, but underneath “VERDICT” the word “guilty” appears.  Beside “guilty” is the date “12/8/99.”  Below these entries is the signature of the petit jury foreperson.  The circuit court noted that two copies of the indictment existed because the original indictment was redacted to omit the word “true” for petit jury use. 

Hartley testified she was not the regular grand jury foreperson, but served in the absence of the previously appointed foreperson.  Although she did not have an independent recollection of Byers’ indictment, Hartley testified it was her signature and explained that during the grand jury process, she wrote either “true” or “no” on each indictment to signify whether it was “true billed” or “no billed.”  Specifically, when questioned as to what the word “true” signified, Hartley responded that “[i]t meant that the entire grand jury had voted that this particular case was a true bill.”

Hartley was also questioned about the role a bailiff played in the grand jury proceedings.  She explained that when she got to court and discovered she would be foreperson, “the bailiff was the one that brought me the information and told me what to . . . do and how to sign [the indictment].”  Later, she clarified that after the bailiff told her how to proceed and sign the documents, he left the room, did not reappear until the grand jury was finished deliberating, and only returned to usher in the next law enforcement officer. 

LAW/ANALYSIS

Byers contends the circuit court erred in finding the State carried its burden of proof in showing the indictment properly vested the court with subject matter jurisdiction.  He further contends the grand jury proceedings were improper because of irregularities involving the role of the bailiff in those proceedings.  We disagree.

Typically, “a circuit court does not have subject matter jurisdiction to hear a guilty plea unless the defendant has been indicted by a grand jury or has waived presentment.”  State v. Grim, 341 S.C. 63, 66, 533 S.E.2d 329, 330 (2000).  The lack of subject matter jurisdiction may be raised at any time.  Id. at 66, 533 S.E.2d at 330.  In this case, Byers did not waive presentment and he asserts irregularities in the indictment process.  Proceedings in a court of general jurisdiction, however, will be presumed regular absent evidence to the contrary.  Pringle v. State, 287 S.C. 409, 410-11, 339 S.E.2d 127, 128 (1986).

In Byers first appeal we were unable to determine from the record if the indictments were properly true billed and accordingly, we remanded the case to the trial court for that determination.  See generally Anderson v. State, 338 S.C. 629, 633, 527 S.E.2d 398, 400 (Ct. App. 2000) (“It is appropriate to remand to the trial court for a determination when there is not sufficient evidence for the court to determine if the indictment was true billed.”).  The trial court heard evidence from the jury foreperson and determined the indictment was properly true billed.  Byers argues the trial court erred in ruling the State carried its burden of proof, and that such burden is by clear and convincing evidence.

Multiple South Carolina cases have been remanded for a determination of whether an indictment was true billed, yet none of these has enunciated the burden of proof the State is required to meet.  Byers asserts the burden is by clear and convincing evidence and that this standard is supported by language from Grim that “caution must be exercised to ensure the presence of subject matter jurisdiction.”  Grim, 341 S.C. at 66, 533 S.E.2d at 330.  The State, on the other hand, urges the court to adopt a preponderance of the evidence standard.  Because it is unnecessary to our decision in this case, we decline to adopt any specific standard as the evidence in this case fulfills either.

In Pringle, an indictment was stamped “true bill,” but did not contain the foreperson’s signature.  Pringle, 287 S.C. at 410, 339 S.E.2d at 128.  The court pointed to testimony by the foreperson that rather than signing the indictment, the usual procedure was to have the clerk publish the indictment in open court after the grand jury returned a true billed indictment.  Id. at 411, 339 S.E.2d 128.  The court determined the foreperson’s signature was not essential to the validity of an indictment.  Id. at 410, 339 S.E.2d 128.

Anderson involved an indictment that did not contain the term “true bill.”  Anderson, 338 S.C. at 632, 527 S.E.2d at 399.  The court remanded the case to determine if subject matter jurisdiction existed because no evidence demonstrated that the indictment was true billed.   Id. at 633, 527 S.E.2d 400. 

Unlike Anderson, the record in Bultron, contained extensive evidence that the grand jury true billed an indictment that was not otherwise marked as true billed.  Id. at 328, 457 S.E.2d at 619.  The record contained testimony from the county docket coordinator that during the term containing the Bultron indictment, the grand jury true billed every proposed indictment.  Id. at 329, 457 S.E.2d at 619-20.  This testimony was corroborated by the testimony of the court reporter present when the findings of the grand jury were announced and a legal secretary for the county.  Id.

This case is factually similar to Bultron, in that there is uncontroverted testimony by an individual involved in the process that this indictment was true billed.  This testimony comes from the actual grand jury foreperson, who testified that the indictment was signed by her, marked “true” by her, and that by marking “true,” she signified the indictment was true billed.  This evidence proves by either standard that this indictment was properly true billed.

During the hearing on remand, there was also testimony that the bailiff provided directions to the grand jury foreperson.  Byers argues such direction constitutes active participation by the bailiff in the grand jury process, and that advice to the grand jury should only come from a judicial official.  After a thorough review of the record, we find the bailiff’s directions were administrative in nature and made necessary by the fact the normal grand jury foreperson was absent.  The directions were given within the first few minutes of the jury coming together and the foreperson made it clear in her testimony that the bailiff was never a part of deliberations.  We find these actions to have caused no prejudice.

CONCLUSION

Based on the foregoing, the circuit court’s order is

AFFIRMED.

HEARN, C.J., GOOLSBY and WILLIAMS, JJ., concur.

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