State v. Smith

592 S.E.2d 302, 357 S.C. 182, 2004 S.C. LEXIS 14

• Court: Supreme Court of South Carolina
• Decided: January 20, 2004
• Docket: 25771
• Status: Published

Opinions

Justice PLEICONES:

We granted certiorari to review a decision of the Court of Appeals holding that the circuit court properly denied petitioner’s motion for a directed verdict on the charge of misprision of felony. State v. Smith, 348 S.C. 601, 560 S.E.2d 430 (Ct.App.2002). We reverse.

FACTS

The proprietor of a small rural grocery store was found dead in the store at about 2:30 p.m. The cash register and the victim’s purse were missing. The victim’s pastor had been at the store that afternoon from about 1:45 p.m. to 2:15 p.m. He testified that petitioner’s husband purchased several food items. When the pastor left the store, he observed petitioner and her husband eating in their car in the parking lot. Another customer, who had arrived as the pastor was leaving, testified that petitioner and her husband, whom the customer recognized, were sitting in their car and eating while she was at the store.

Early the next morning, petitioner and her husband went to the victim’s daughter’s home, ostensibly to pay their respects. During this visit, petitioner attempted to mislead the daughter into believing that petitioner and her husband had been at the store hours, rather than minutes, before the murder and armed robbery occurred. The daughter was suspicious, and called the pastor. When he arrived at the daughter’s home, he recognized the couple and discreetly telephoned the police. The pastor then told the couple the police wished to speak to the ‘witnesses’ at the store, and the three left the daughter’s home.

After speaking briefly with officers at the store, petitioner and her husband agreed to be interviewed at the police substation. They were interviewed separately, and it is petitioner’s statements during this initial interview that gave rise to the misprision charge that she intentionally misled the police. Petitioner told the police that she and her husband stopped at the store to get a few food items, that he went in and bought groceries, returned to the car, then reentered the store and got some cigarettes. Petitioner told the police that she and her husband then drove away from the store.

That evening, following the interviews, officers executed a search warrant at the couple’s home. Petitioner returned to the sheriffs department with the officers and gave a statement after being read her Miranda rights. In this second statement, petitioner maintained that she and the husband stopped at the store to get food. Her husband purchased the food, and when he returned to the car they sat there briefly before her husband reentered the store to get cigarettes. While petitioner’s husband was in the store, petitioner heard a “pow” and looked towards the store. Petitioner observed her husband coming out of the front door carrying the cash register and “an object with a long strap.”¹ Her husband placed the items in the back of the car; they sat in the parking lot and ate some food, then drove home.

ISSUE

Whether the Court of Appeals erred in holding that the trial court properly denied petitioner’s directed verdict motion?

ANALYSIS

Petitioner contends she was entitled to a directed verdict on the misprision charge. We agree. Misprision is:

[A] criminal neglect either to prevent a felony from being committed or to bring the offender to justice after its commission, but without such previous concert with, or subsequent assistance of, him as will make the concealer an accessory before or after the fact.

State v. Carson, 274 S.C. 316, 262 S.E.2d 918 (1980).

As this Court acknowledged in State v. Carson, there are situations where the defendant’s 5th amendment privilege against self-incrimination vail bar a misprision prosecution. The privilege acts as a bar where the information concealed would incriminate the defendant as an accessory or principal in the underlying felony. Id.

The State contends that because petitioner did not invoke her 5th amendment “right to remain silent” when first questioned by police but instead chose to tell officers only part of the story, she waived any privilege. The State misunderstands the relationship between the privilege against self-incrimination and the right of the State to prosecute an individual for misprision. The issue is not whether the Constitutional privilege was explicitly invoked, but rather whether the individual sought to be charged had a reasonable belief at the time the concealment occurred that revealing the information could lead to her criminal prosecution. Where the information concealed exculpates the individual questioned, the 5th amendment privilege does not bar a misprision charge. State v. Carson, supra. Where, however, the speaker reasonably believes² that the information concealed could be used against her in a criminal prosecution as an accessory or principal in the underlying felony, then the privilege bars a misprision prosecution. Id.

We find the evidence here is susceptible of the inference that petitioner and her husband sat in the parking lot, waiting for the “coast to clear,” before he entered the store intent on committing an armed robbery. Inferentially, petitioner acted as lookout and getaway car driver. In fact, an investigator testified at trial that he believed that petitioner participated in the crimes with ‘knowledge aforethought.’

The Court of Appeals held that petitioner could not reasonably have feared prosecution as an accessory after the fact because she was present at the scene. As a brief review of the state of the law on accessory after the fact will show, no lawyer would have been unreasonable in advising petitioner she could face this charge, nor was it unreasonable for petitioner, a layperson, to fear that her acts after the murder and armed robbery could result in her criminal prosecution. See State v. Collins, 329 S.C. 23, 495 S.E.2d 202 (1998) (from 1981 until 1998 only, “mere presence” at the scene precluded prosecution as an accessory after the fact). The reasonableness of petitioner’s belief in the possibility of an accessory charge is amply demonstrated by the fact she was indicted and tried for that offense in this proceeding. Petitioner was granted a directed verdict on this charge, however, because the murder and armed robbery occurred before State v. Collins was decided, and the trial judge held that petitioner’s presence at the scene precluded an accessory conviction.

The Court of Appeals, without explanation, held petitioner had no reasonable belief that she could be charged as a principal. We disagree. As noted above, the record supports an inference that petitioner may have acted as lookout and getaway driver. Accordingly, petitioner had a reasonable belief that full disclosure of the facts surrounding the crimes could have exposed her to prosecution as a principal. See State v. Gates, 269 S.C. 557, 238 S.E.2d 680 (1977) (getaway driver guilty as principal in armed robbery).

Petitioner’s belief that revealing all she knew about the crimes could expose her to prosecution as an accessory after the fact or as a principal in the murder and armed robbery of the grocery store proprietor was reasonable. She was therefore entitled to a directed verdict on the misprision charge because her concealment of inculpating information was protected by her privilege against self-incrimination. State v. Carson, supra.

CONCLUSION

Petitioner was entitled to a directed verdict. The decision of the Court of Appeals is

REVERSED.

MOORE, WALLER and BURNETT, JJ., concur. TOAL, C.J., dissenting in a separate opinion.

1 . Inferenlially this was the victim's handbag.

2 . This standard is taken from the test used where a witness actively invokes his privilege against self-incrimination. See Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972).