State v. Gentry

Justice PLEICONES

dissenting:

I respectfully dissent.

I agree with the majority that the question of the sufficiency of an indictment is not a matter of subject matter jurisdiction, and that in this case the indictments, while flawed, were sufficient to confer jurisdiction. I write separately, however, because in my view the circuit court lacks subject matter jurisdiction to conduct a trial of a criminal charge where there has been no presentment of an indictment by the grand jury. See State v. Evans, 307 S.C. 477 , 415 S.E.2d 816 (1992) (valid indictment or waiver of presentment prerequisite for circuit court’s subject matter jurisdiction). Further, in my view, the circuit court lacks subject matter jurisdiction to accept a plea of guilty unless there has been a presentment or a written waiver of presentment. S.C. Const. art. I, § 11; State v. Lazarus, 83 S.C. 215 , 65 S.E. 270 (1909); S.C.Code Ann. §§ 17-23-120 to -150 (1985); compare e.g., State v. Mitchell, 1 *108 Bay (1 S.C.L.) 267 (1792) (S.C. Const. art. 3, § 2, required serious criminal cases come before the court of general jurisdiction “through the medium of a grand jury, by indictment”).

In my view, the majority misapprehends the function of an indictment when it holds that its purpose is merely to serve as notice to the defendant of the charges against him. An indictment serves multiple functions: “to enable the accused to repel or rebut the charge, to protect him from a future prosecution for the same charge, 11 and to enable the court to pronounce its judgment.” State v. Halder, 2 McCord (13 S.C.L.) 377 (1823). While it may be that the first and second reasons for requiring an indictment inure solely to the defendant’s benefit, and therefore may be waived by him, the third requirement is for the benefit of the circuit court, and is not subject to waiver by the defendant. Compare State v. Pollard, 255 S.C. 339 , 179 S.E.2d 21 (1971) (defendant may waive constitutional provision intended for his benefit). Further, unlike the other state constitutional provisions which benefit an accused, 12 Article I, § 11 contains a limitation on waiver: The last sentence of this section states “The General Assembly may provide for the waiver , of an indictment by the accused.” Pursuant to this grant of authority, the legislature has enacted statutory waiver provisions. S.C.Code Ann. §§ 17-23-120 through -150. In my opinion, we must honor the limitation on an accused’s right to waive the requirements of this constitutional provision. 13 Finally, even if we were to find that a defendant might waive this constitutional requirement, such a waiver would be valid only if made knowingly, intelligently, and voluntarily. I am concerned about the increase in post-conviction filings that would result from our abandonment of the requirement of an indictment or a written waiver of presentment, the resulting appellate proceedings, *109 and the inevitable grants of relief. I believe the limited resources of the judicial branch are better served by requiring compliance on the front end with this clear, unambiguous, and long-standing constitutional prerequisite to a criminal proceeding. 14

I also disagree with the majority’s decision to affirm the denial of appellant’s directed verdict motions on the charges of accessory before the fact. I take a more expansive view of what constitutes presence at the scene than does the majority. Appellant accompanied the codefendants to the scene and entered the home with prior knowledge of their plan to commit a crime. “Presence at the scene by prearrangement to aid, encourage, or abet in the perpetration of the crime constitutes guilt as a principal.” State v. Leonard, 292 S.C. 133 , 355 S.E.2d 270 (1987). It is not necessary that the person participate in the actual crime or even observe it in order to be “present at the scene” and guilty as a principal. See, e.g., State v. Gates, 269 S.C. 557 , 238 S.E.2d 680 (1977) (getaway driver guilty as principal in armed robbery). In my opinion, the evidence here is susceptible only of the inference that appellant was present at the scene aiding, encouraging, and/or abetting the codefendants, and therefore the directed verdicts should have been granted. State v. Smith, 316 S.C. 53 , 447 S.E.2d 175 (1993) (absence from scene is element of accessory before the fact).

For the reasons given above, I respectfully dissent.

. A claim of double jeopardy is ordinarily judged by comparing the allegations made in the second indictment with those made in the first. E.g., State v. Shirer, 20 S.C. 392 (1884).

. Compare S.C. Const. art. VI, § 8, permitting governor to suspend certain public officers upon indictment, "or upon the waiver of such indictment if permitted by law...."

. It is the right to waive presentment, as provided by statute, that is the personal right of the accused and he may waive only the place of its execution, not the execution itself. State v. Evans, supra.

. The Constitutional requirement that no man be tried on serious criminal charges save upon the grand jury’s presentment of a true billed indictment has its roots in the English common law. As this Court acknowledged in 1932:

The Grand Jury is of very ancient origin in the history of England ... it was at the time of the settlement of this country an informing and accusing body only ... And in the struggles which in those times arose in England between the powers of the King and the rights of the subject, it often stood as a barrier against persecution in his name.

(italics in original)

State v. Bramlett, 166 S.C. 323 , 164 S.E. 873 (1932).

The Grand Jury exists not merely to investigate and accuse, but acts as a curb on the unbridled power of the sovereign.