State v. Daniels

737 S.E.2d 473, 401 S.C. 251, 2012 S.C. LEXIS 206

• Court: Supreme Court of South Carolina
• Decided: October 10, 2012
• Docket: Appellate Case No. 2010-159728; No. 27180
• Status: Published

Opinions

Justice PLEICONES.

Appellant was convicted of murder and possession of a weapon during a crime of violence and received concurrent sentences of life (murder) and five years (weapon). On appeal, he alleges the trial judge committed reversible error in charging the jury that they were acting “for the community” and that their verdict “will represent truth and justice for all parties that are involved.” We agree that these charges are erroneous, but because appellant did not properly preserve his issues for appeal, we affirm.

FACTS

The victim was shot at about 4:30 am on a Florence street. A witness who was to meet the victim testified that she heard a single gunshot and saw a person dressed in black clothing running away from the scene. There was testimony that appellant and the victim had argued at Shavonne’s party. Shavonne did not observe the two fighting, but testified she was on the phone with the victim right before he was shot, and that he told her he was being followed by a man he had argued with at her party. Another witness testified that appellant had told him he had been hired to kill the victim. Appellant told this witness he had “done it” about an hour after the victim was killed.

Appellant and his girlfriend checked into a motel at about 5:35 am on the day of the murder. Excerpts from letters written to the girlfriend following appellant’s arrest were introduced at trial. These letters suggested what she should tell people to give him an alibi. In one, he pointed out the absence of physical evidence to convict him, and in another asked her to contact his lawyer and suggests what to say, including the instruction that “it will help me and my bond hearing [sic] you are who I was with when they found him ...” In short, while the State’s case lacked forensic and eyewitness evidence, there was nonetheless substantial evidence that appellant murdered the victim.

At the pre-charge conference, appellant objected to the trial judge’s inclusion of a charge that “You and I are acting for the community and that is why we must see to it that the trial is fair and the verdict is just.” Appellant contended the “acting for the community” language was akin to a solicitor’s improper golden rule argument, but did not object to the “fair and just” portion of this proposed charge. The judge declined to alter the “acting for the community” language. Appellant also objected to a different part of the proposed charge, which included the statement “[E]veryone is entitled to justice in this case,” arguing that charge diluted the State’s burden of proof. The judge agreed to omit this “everyone” charge.

The jury was charged on the presumption of innocence and the State’s burden of proof beyond a reasonable doubt. Later, they were charged “You and I are acting for the community,” and that “This court is of the confirmed opinion that whatever verdict you reach will represent truth and justice for all parties that are involved in this case.” Appellant renewed his pre-charge objection, but made no additional complaint about the charge.

ISSUES

1. Did the trial judge’s charge include an improper “Golden Rule” instruction?

2. Did the trial judge’s charge improperly shift the State’s burden of proof or dilute it?

1. Golden Rule

Appellant argued to the trial judge that to the extent the jury was to be instructed that it and the judge were acting for the community, the charge was erroneous because it was akin to an improper Golden Rule argument. The judge disagreed. We affirm.

A ‘Golden Rule’ argument is one in which the jurors are asked to put themselves in the victim’s shoes. It is improper because it is meant to destroy the jury’s impartiality, and to arouse passion and prejudice. Brown v. State, 383 S.C. 506, 680 S.E.2d 909 (2009). A charge that the jury is acting for the community, however, is not similar to a Golden Rule argument in that it does not ask the jury to consider the victim’s perspective. While appellant has not shown reversible error here, we caution the trial judge to restrict his jury instructions to matters of law.

2. Burden of Proof

On appeal, appellant contends the jury charge unconstitutionally shifted the burden of proof. He specifically objects to the part of the charge in which the judge stated it was his “confirmed opinion” that the verdict would represent “truth and justice for all parties.” To the extent appellant now complains about the “confirmed opinion” part of the charge, he is improperly attempting to expand on appeal the scope of his objection below. E.g., State v. Meyers, 262 S.C. 222, 203 S.E.2d 678 (1974). There was no objection to the “confirmed opinion” language at the charge conference, and appellant stood on his pre-charge objection after the jury instructions were given. It is axiomatic that an objection to a jury charge may not be raised for the first time on appeal. E.g. State v. Rios, 388 S.C. 335, 696 S.E.2d 608 (Ct.App.2010); Rule 20(b), SCRCrimP.

Appellant also now argues the trial judge erred in charging the jury that their verdict would represent the “truth and justice for all parties.”¹ The State contends that there was no contemporaneous objection made at trial to this “truth and justice for all” language in the charge. We agree. It is axiomatic that a party cannot raise an objection to a jury charge for the first time on appeal. State v. Rios, supra; Rule 20(b), SCRCrimP.

Although the issue is not preserved, we instruct the trial judge to remove any suggestion from his general sessions charges that a criminal jury’s duty is to return a verdict that is “just” or “fair” to all parties. Such a charge could effectively alter the jury’s perception of the burden of proof, substituting justice and fairness for the presumption of innocence and the State’s burden to prove the defendant’s guilt beyond a reasonable doubt. Moreover, to a lay person, the “all parties involved” in a criminal case may well extend beyond the defendant and the State, and include the victim. These inaccurate and misleading charges risk depriving a criminal defendant of his right to a fair trial.

CONCLUSION

Appellant’s convictions and sentences are

AFFIRMED.

Acting Justice E.C. BURNETT, III, concurs. TOAL, C.J., concurring in result in a separate opinion in which KITTREDGE, HEARN, JJ., and Acting Justice E.C. BURNETT, III, concur.

1 . Appellant had objected to a different proposed charge at the precharge conference, that "Everyone is entitled to justice in this case.” The judge agreed not to give this charge, and a review of the record shows that he did not.