State v. Thomas

• Court: Court of Appeals of South Carolina
• Decided: January 30, 2003
• Docket: 2003-UP-091
• Status: Unpublished

Opinion

III

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State,        Respondent,

v.

William Leon Thomas,        Appellant.

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Appeal From Charleston County
Jackson V. Gregory, Circuit Court Judge

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Unpublished Opinion No. 2003-UP-091
Submitted November 20, 2002 – Filed January 30, 2003

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AFFIRMED

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Assistant Appellate Defender Robert M. Dudek, of Columbia, for appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, Senior Assistant Attorney General William Edgar Salter, III, all of Columbia; and Solicitor Ralph E. Hoisington, of N. Charleston, for respondent.

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PER CURIAM:  William Leon Thomas was convicted of murder, burglary in the first degree, and armed robbery.  The judge sentenced Thomas to thirty years imprisonment on each charge, with the sentences to run concurrently.  Thomas appeals, arguing the trial court erred by: (1) failing to grant a motion for a directed verdict on the murder charge because there was no evidence Thomas was armed or planned to harm anyone when the men set out to buy marijuana; (2) allowing a witness to testify concerning Williams’ statement of a crime spree in which Thomas participated; and (3) permitting the solicitor to amend the armed robbery indictment to list a handgun as the deadly weapon used.

FACTUAL/PROCEDURAL HISTORY

Shortly after midnight on October 14, 1999, Thomas, Mike Hinton,  Gerald Roper, Elijah White, and Thomas Williams left an apartment to purchase marijuana.  While traveling to a house where one of the men had previously purchased marijuana, the five men discussed robbing the house.  Upon arriving at the house, White exited the vehicle and knocked on the door.  Thomas, Roper, and Williams then exited the vehicle.  Roper and Williams were armed with guns.  Thomas, Roper, and Williams rushed the house, with Williams busting in the front door.  Roper walked into a back bedroom, while Williams and Thomas remained in the front room. In the bedroom, Roper robbed a victim of $150 and a pair of pants.  The victim and his girlfriend escaped out the window of the bedroom. In the front room, Williams shot a woman three times.  Back in the vehicle, Williams bragged that he had shot an old woman in the face in the front room.  The woman later died from the gun shot wounds.

After purchasing cocaine at another location, the five men went to a second apartment.  At this apartment, Williams demonstrated how he shot the woman at the house that the men robbed.  During Williams’ retelling of the night’s events, Thomas laughed and made hand gestures.  Williams committed suicide later that morning.

Thomas was indicted for murder, assault with intent to kill, burglary in the first degree, and armed robbery.  At the conclusion of the State’s case at trial, the solicitor nolle prossed the charge of assault with intent to kill.  The jury convicted Thomas of the remaining charges.  Thomas appeals.

I. Motion for a Directed Verdict

Thomas argues the trial court erred by failing to grant a motion for a directed verdict on the murder charge because there was no evidence Thomas was armed or planned to harm anyone when the men set out to buy marijuana.

STANDARD OF REVIEW

In reviewing the denial of a motion for a directed verdict, the evidence must be viewed in the light most favorable to the State, and if there is any direct evidence or any substantial circumstantial evidence reasonably tending to prove the guilt of the accused, an appellate court must find that the case was properly submitted to the jury.  In ruling on a motion for a directed verdict, the trial court is concerned with the existence of evidence, not its weight. 

State v. Kelsey, 331 S.C. 50, 62, 502 S.E.2d 63, 69 (1998) (internal citations omitted).

DISCUSSION

Under the “hand of one, the hand of all theory,” “one who joins with another to accomplish an illegal purpose is liable criminally for everything done by his confederate incidental to the execution of the common design and purpose.” State v. Langley, 334 S.C. 643, 648, 515 S.E.2d 98, 101 (1999). 

Specifically as to murder, “[w]hen two or more combine together to commit a robbery and, during the robbery, a homicide is committed as a natural and probable consequence, all present and participating in the robbery are as guilty of the killing as the one committing the homicide.” State v. Avery, 333 S.C. 284, 294, 509 S.E.2d 476, 481 (1998). 

In the light most favorable to the State, Thomas was one of five men who planned an armed robbery while en route to the location of the crime.  He actively participated in the armed robbery, as he rushed the house accompanied by two armed men.  Roper committed an armed robbery in the back bedroom of the house by threatening a victim with his gun and then taking $150 from the victim.  Thomas was present in the front room while Williams shot a woman to death. 

Because the testimony provided direct evidence as well as substantial circumstantial evidence that Thomas participated in a robbery that resulted in a murder, the trial court did not abuse its discretion in denying the motion for a directed verdict on the murder charge. See id. (holding the trial court properly denied appellant’s motion for a directed verdict on the murder charge when “appellant planned and participated in the armed robbery” where the homicide occurred).

II. Testimony by Witness

Thomas argues the trial court erred by allowing a witness to testify concerning Williams’ statement of a crime spree in which Thomas participated.

A trial court’s determination of whether a statement is admissible as a declaration against penal interest will not be disturbed absent an abuse of discretion.  State v. Kinloch, 338 S.C. 385, 388, 526 S.E.2d 705, 706 (2000).

 Rule 804(b)(3), SCRE, provides an exception to the hearsay rule when a declarant is unavailable as a witness and the statement at issue would subject the declarant to criminal liability.  A self-inculpatory statement of a declarant allowed into evidence under Rule 804(b)(3), SCRE, may be used to inculpate an accomplice when combined with other independent evidence. See State v. Fuller, 337 S.C. 236, 245, 523 S.E.2d 168, 172 (1999) (“[A]n accomplice’s self-inculpatory statement combined with other independent evidence can inculpate a criminal defendant.”); Williamson v. United States, 512 U.S. 594, 603 (1994) (“Even the confessions of arrested accomplices may be admissible [under Rule 804(b)(3)] if they are truly self-inculpatory.”).

A person who was present in the apartment (“Witness”) testified about the events that took place in the apartment on the night in question.  She stated Williams spoke of a “shooting spree” that included killing the woman during the robbery and shooting two men at a nightclub. [1]   According to Witness, Williams gave details of how the woman was killed.

Thomas’ attorney objected to the admission of this evidence, claiming it to be “classic hearsay.”  The trial court admitted the evidence by finding the testimony fell into two hearsay exceptions, unavailable declarant and excited utterance. [2]

The declarant, Williams, was unavailable to testify because he killed himself less than twenty-four hours after the events for which Thomas was on trial. See Rule 804(a)(4), SCRE (stating a witness is unavailable if he is dead). The statements at issue directly inculpated Williams, as his statements described how he killed a woman and explained his involvement in a crime spree. See Rule 804(b)(3), SCRE (defining a “statement against interest” as one that “at the time of its making . . . so far tended to subject the declarant to . . . criminal liability . . . that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true”).

The State also produced independent evidence of Thomas’ involvement in the armed robbery and murder.  Two witnesses testified that Thomas discussed the plan to rob the house, participated in rushing the house, and stayed in the house while the robbery and murder occurred.

Furthermore, Thomas cannot show prejudice resulting from Witness’  testimony because two other witnesses testified, without objection from defense counsel, that Williams talked about shooting the woman while Williams was at the apartment. See State v. Griffin, 339 S.C. 74, 78, 528 S.E.2d 668, 670 (2000) (holding that appellant could not show prejudice from the admission of hearsay evidence when the hearsay evidence was merely cumulative to other properly admitted evidence).  Thus, the trial court did not abuse its discretion by admitting Witness’ testimony concerning Williams’ statements.

III. Amendment to Indictment

Thomas appeals, arguing the trial court erred by permitting the solicitor to amend the armed robbery indictment to list a handgun as the deadly weapon used.

A. Appropriateness of Amendment

The subject matter jurisdiction of a court is fundamental and can be raised at any time. Brown v. State, 343 S.C. 342, 346, 540 S.E.2d 846, 848-49 (2001).  “An indictment is sufficient to convey [subject matter] jurisdiction if it apprises the defendant of the elements of the offense intended to be charged and informs the defendant of the circumstances he must be prepared to defend.” State v. Guthrie, 352 S.C. 103, ___, 572 S.E.2d 309, 312 (2002); see S.C. Const. art. I, § 11; S.C. Code Ann. § 17-19-10 (1985).

The appropriate analysis for determining whether an amendment to an indictment deprives the trial court of subject matter jurisdiction is whether the amendment “change[d] the nature of the offense charged.” S.C. Code Ann. § 17-19-100 (1985); see State v. Lynch, 344 S.C. 635, 640-41, 545 S.E.2d 511, 514 (2001) (holding the trial court did not have jurisdiction after an amendment to an indictment where the substituted aggravating circumstance was “quite distinct” from the original circumstance and required proof that was “materially different”); Hope v. State, 328 S.C. 78, 80-81, 492 S.E.2d 76, 78 (1997) (holding the trial court was deprived of subject matter jurisdiction when an indictment was amended from assault with intent to commit third degree criminal sexual conduct to assault to commit first degree criminal sexual conduct).

In the present case, Thomas’ original indictment for armed robbery read:

That William Leon Thomas did in Charleston County, while acting in concert with another, on or about October 14, 1999, feloniously take from the person or presence of [victim], by means of force or intimidation, and while armed with a deadly weapon, to wit: a knife, goods or monies of the said [victim] being described as approximately One Hundred Fifty ($150.00) Dollars in U.S. Currency and a pair of jeans.  This is in violation of Section 16-11-330 of the South Carolina Code of Laws (1976) as amended.

At trial, the trial court granted the solicitor’s request that the word “knife” be amended to read “handgun.”

In State v. Warren, this Court held an indictment for second-degree criminal sexual conduct with a minor required factual information on the victim, a term defined in the statute as a person between the ages of fourteen and sixteen years old. 330 S.C. 584, 601-02, 500 S.E.2d 128, 137 (Ct. App. 1998).  According to this Court, the victim element of the crime was met by the inclusion of the amended age, fourteen years old. Id.  This Court upheld the amended indictment, holding that the nature of the offense of the charge had not changed because, “[l]ike the original indictment, the amended indictment set forth all of the statutory elements” of the crime. Id. 

In the present case, use of a deadly weapon is an element of the crime. See State v. Muldrow, 348 S.C. 264, 267, 559 S.E.2d 847, 849 (2002) (“[T]he State may prove armed robbery by establishing the commission of a robbery and . . . [the] additional element[] that the robber was armed with a deadly weapon.”)  The original indictment listed the deadly weapon as a knife.  Prior to trial, the indictment was amended to state that the deadly weapon was a handgun.  By analogy to Warren, the indictment was properly amended because the element of the crime was a deadly weapon and a gun is one of the deadly weapons mentioned in the statute, meaning that the nature of the offense was not changed by the amendment. See S.C. Ann. § 16-11-330 (Supp. 2001) (stating specifically that a pistol is a deadly weapon as well as identifying a dirk and a razor as deadly weapons).  Thus, because the nature of the offense did not change, the trial court was not divested of subject matter jurisdiction by the amendment to the indictment.

B. Surprise by Amended Indictment

Even when an amendment to an indictment does not divest the trial court of subject matter jurisdiction, the defendant is nonetheless “entitled, upon demand, to a continuance” if he is surprised by the amended indictment. S.C. Code Ann. § 17-19-100; see Lynch, 344 S.C. at 641 n.3, 545 S.E.2d at 514 n.3.

After the solicitor asked for an amendment to the indictment, defense counsel objected because the amendment had not been brought before a grand jury.  The trial court allowed the amendment.  Defense counsel did not request a continuance in the case.  Because defense counsel did not request the relief provided by section 17-19-100 at trial, he cannot now seek relief from this Court. See State v. Rocheville, 310 S.C. 20, 24, 425 S.E.2d 32, 34 (1993) (holding an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial court to be preserved for appellate review); State v. Rice, 348 S.C. 417, 420, 559 S.E.2d 360, 361 (Ct. App. 2001) (holding that the only issues that can be raised for the first time on appeal are those relating to subject matter jurisdiction).

Furthermore, Thomas could not have been surprised by change in the armed robbery indictment to read “handgun” because two of the other indictments listed a gun as the weapon used. See Lynch, 344 S.C. at 641 n.3, 545 S.E.2d at 514 n.3 (holding that it is improper to look at other indictments to determine subject matter jurisdiction when an indictment has been amended because surprise is not the proper analysis for subject matter jurisdiction but noting that “surprise to the defendant” is the proper analysis if the trial court is found to have jurisdiction). 

CONCLUSION

For the foregoing reasons, the trial court’s decision is

AFFIRMED. ^[3]

CONNOR, STILWELL, and HOWARD, JJ., concur.

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[1] Thomas was not charged with any crime associated with events at the nightclub. There was testimony by Roper and Witness that the men went to a nightclub between leaving the house that had been robbed and arriving at the apartment.

[2] Because this Court may affirm on any ground appearing in the record, the application of the excited-utterance exception is not discussed. See Rule 220(c), SCACR.

^[3] Because oral argument would not aid the Court in resolving any issue on appeal, we decide this case without oral argument pursuant to Rule 215 and 220(b)(2), SCACR.