Petition — Hess v. South Carolina

8 2 2 08 0 _ ‘To Court, U.S.

LED

jm Gs 08s

ALEXANDER L. STEVAS,

CLERK

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

ARTHUR GARLAND HESS, PETITIONER,

versus

STATE OF SOUTH CAROLINA

SeTITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE OF

SOUTH CAROLINA

J. MARVIN MULLIS, JR.

F. DAVID BUTLER

1825 Sumter Street

Columbia, SC 29201

803-799-9577

Counsel for Petitioner

JAMES B. RICHARDSON, JR.

1338 Main St., Suite 1202

Columbia, SC 29201

803-799-9412

Counsel of Record

QUESTIONS PRESENTED

1. Whether the Supreme Court of the

State of South Carolina erred in not

reversing the lower court and remanding

for a new trial because of the trial

judge's charging a statute that is void

for vagueness and is therefore in viola-

tion of the Petitioner's due process

rights under the Fourteenth Amendment of

the United States Constitution.

2. Whether the Supreme Court of the

State of South Carolina erred in not rever-

sing the lower court and remanding for a

new trial because of the lower court's

denial of the Petitioner's due process

rights under the Fourteenth Amendment of

the United States Constitution in the

following particulars:

(a) In limiting the Petitioner's

cross-examination of prosecution witnesses;

(i)

(b) In limiting the presentation

of defense evidence severely.

3. Whether the Supreme Court of the

State of South Carolina denied the Peti-

tioner's due process rights guaranteed

under the Fourteenth Amendment of the

United States Constitution by denying the

Petitioner's motions for remand to the

lower court for a hearing on a motion for

a new trial based on after-discovered

evidence without the benefit of a hearing.

4. Whether the Supreme Court of the

State of South Carolina erred in admitting

into evidence and allowing into the jury

room a very large bulletin board (4' x 8')

containing an erroneous material date

contrary to the State's own evidence and a

transcript of taped conversation between

the Petitioner and the chief prosecution

witness, all in violation of Petitioner's

(ii)

right to due process under the Fourteenth

Amendment of the United States Constitution.

5. Whether the Supreme Court of the

State of South Carolina erred in refusing

to reverse the lower court which allowed

the prosecutor to attack personally the

Petitioner's counsel by mentioning a past

case on which the Petitioner's counsel had

worked, and to refer to the Petitioner's

counsel as "one who defended the owner of

a brothel," all in violation of the Peti-

tioner's Sixth Amendment rights under the

United States Constitution.

6. Whether the Supreme Court of the

State of South Carolina erred in refusing

to reverse the lower court and remand for

a new trial because of the improper jury

selection method utilized in the trial,

which was in violation of the Petitioner's

right to an impartial jury guaranteed by

(iii)

the Sixth Amendment to the United States

Constitution (not excusing a person from

the jury venire who had been a past employ-

ee of the South Carolina Law Enforcement

Division, the police agency in charge of

the investigation and prosecution of the

case being tried).

(iv)

TABLE OF CONTENTS

Cpanlon -BOLOW .« « c's « te es se ee

SUIPSAOEROR. «sa 6 8S 0 6 es ooh he

Statement of Case ....2-e«-+«-e cece

Reasons For Granting the Writ:

l. The Decision Below Conflicts

with the Decision of the

Supreme Court of the United

States as to the Vague

Statutory Languange of the

South Carolina Misconduct

in Office Statute .....«-. dt

y The Decision Below Conflicts

with the Decisions of the

Supreme Court of the United

States as to Due Process of

Bas 6) 0 4 Ch ea oe ee

3. The Decision Below Refusing

to Remand the Case to the Trial

Court for Consideration of a

Motion for a New Trial on

(v)

After-discovered evidence

Conflicts with the Decisions

of the Supreme Court of the

United States as to Due

Peocess Of. Lav . ss 2 is «es 28

4. The Decision Below Conflicts

with the Settled Authority on

Demonstrative Evidence ... 23

5. The Decision Below Conflicts

with the Decision of the Supreme

Court of the United States as

to the Impartiality of the

NE 8: ste ie Pee we ob ee ee ee

6. The Decision Below Conflicts

with the Decision of the Supreme

Court of the United States and

the Courts Below as to the

Impartiality of Jurors... 30

Conclusion ee . * .- . . . 7 > Se * & 2 . 34

Appendix (Opinion and Judgment of

) Supreme Court of the state of South

Carolina) * . ee . . . a7 - o « . . ° 37

(vi)

TABLE OF AUTHORITIES

Cases: PAGE

Armstrong v. Manzo, 85 S.Ct. 1187,

380 U.S. 545, 14 L.Ed.2d 62

(1965) . ° ° . . ° oe . 2 . ° . . 17

Carey v. Piphus, 98 S.Ct. 1042, 435

U.S. 247, 55 L.Ed.2d 252 (1978). 17,18

Chambers v. Mississippi, 93 S.Ct.

1038, 410 U.S. 284, 35 L.Ed.2d

297 (1973) . ° ° . . e ae a ° . o 34

Goldberg v. Kelly, 90 S.Ct. 1011,

397 U.S. 254, 25 L.Ed.2d 287

(1970) . _ . on . 7 * . . * . . > 18

Grayned v. City of Rockford, 92 S.Ct.

2294, 408 U.S. 104, 33 L.Ed.2d

Che CAP CRE Kk 00 es Sates eee

Hannah v. Larche, 363 U.S. 420

(1960) * _ _ * — + - _ — o o - eo 19

Hines v. Enomoto, 658 F.2d 667

(9th Cir.1981) e oe . = - _ _ e . 32

Jenkins v. McKeithen, 89 S.Ct. 1843,

395 U.S. 411, 23 L.Ed. 2d 404

(1969) . * o - * - * - J * eo _ e 18

Lindsey v. Normet, 92 S.Ct. 862,

405 U.S. 56, 31 L.Ed.2d 36

CBR7 BP. 02 ee ee re wa a ae

Logan v. Zimmerman Brush Co., 102

S.Ct. 1148 (1982) .....-.-. 17

(vii)

Murphey v. Florida, 95 S.Ct. 2031,.

421 U.S. 794, 44 L.Ed.2d 589

(1975) ° . . e ° . ° . ° ° e e .

Remmer v. United States, 74 S.Ct.

450, 347 U.S. 227, 98 L.Ed.

Ge Chee Sh 6 sk wk Lele we A

Rose v. Locke, 96 S.Ct. 243, 423 U.S.

48, 46 L.Ed.2d 185 (1975) ...

Singer v. United States, 85 S.Ct.

783, 380 U.S. 24, 13 L.Ed.2d 630

(1965) ° . ° « e . ° . ° ° ° e °

Smith v. Goguen, 94 S.Ct. 1242, 415

U.S. 566, 39 L.Ed.2d 605 (1974).

Smith v. Phillips, 102 S.Ct. 940

(1982) ° ° ° . ° ° . . ° ° . °. °

Swain v. Alabama, 85 S.Ct. 824,

380 U.S. 202, 13 L.Ed.2d 759,

Rehearing denied, 85 S.Ct. 1528,

381 U.S.921, 14 L.Ed.2d 442

[ROOD ce 6) Ole eee) ee a ee

United States v. Cox, 633 F.2d 871,

cert. denied, 102 S.Ct. 159

(1980) ° e °. . ° ° e ° ° ° ° ° °

United States v. Nell, 526 F.2d 1223,

(5th Cir. 1976) ° e ° ° ° @ e .

United States v. Papia, 560 F.2d

O27. {7Sb Cae SOT EE eek) eke ee

(viii)

30

21

13

30

14

28

30,31

24

31

25

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

ARTHUR GARLAND HESS, PETITIONER

versus

STATE OF SOUTH CAROLINA

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE OF

SOUTH CAROLINA

To the Honorable, the Chief Justice

and Associate Justices of the Supreme

Court of the United States:

Arthur Garland Hess, the Petitioner

herein, prays that a writ of certiorari

issue to review the judgment of the

Supreme Court of the State of South

Carolina entered in the above-entitled

case on March 15, 1983.

OPINION BELOW

The opinion of the Supreme Court of

HESS, PETITIONER, v. STATE OF SOUTH CAROLINA 2

South Carolina is reported at State vs.

Arthur Garland Hess, S.C<

’ ; S.E. 2d

(1983), Smith's Advance Sheets for the

State of South Carolina, Opinion No.

21380, filed March 15, 1983; said opinion

is printed in the Appendix hereto.

JURISDICTION

The judgment of the Supreme Court of

the State of South Carolina was entered on

March 15, 1983. A timely petition for

rehearing was denied on April 7, 1983.

The jurisdiction of the Supreme Court of

the United States is invoked under 28

U.S.C., 1257 (3).

STATEMENT OF CASE

The Petitioner Arthur Garland Hess

became the Chief of Police of Columbia,

South Carolina, on November 12, 1978, only

after working extensively in the northern

United States, mostly in Illinois and

HESS, PETITIONER, v. STATE OF SOUTH CAROLINA 3

Washington, D.C. Hess' police experience,

largely in administration, included a

four-and-one-half-year stint as the police

chief of the Downer's Grove, Illinois,

police department. The Petitioner had

earned a Master of Public Administration

degree in December of 1970 from the

Illinois Institute of Technology.

When Hess became the police chief of

the Columbia, South Carolina, aS Sate

department, his naming was done in direct

opposition to the wishes of the sheriff of

Richland County and the solicitor (prose-

cutor) of the Fifth Judicial Circuit of

South Carolina, which includes, among

others, Richland County. Once assuming his

position, Chief Hess was informed that one

Joel Hendrix was a primary source of the

overall criminal activity in the City of

Columbia. Chief Hess had his officers

HESS, PETITIONER, v. STATE OF SOUTH CAROLINA 4

look into the situation and found that

Hendrix was connected with vice, gambling,

stolen property and arson in the City of

Columbia. Hess then set up several under-

cover operations with operational level

officers. Each time his efforts were

thwarted because of information leaks in

the Columbia Police Department. Hess

noted that Joel Hendrix had close associ-

ations in the past with high-ranking

officials in t}»: Columbia Police Depart-

ment, including the former chief of police

and several captains.

During this time Hess reformed the

Columbia Police Department, establishing

new divisions to make the department more

efficient and generally making his depart-

ment one of the best in the State.

During Chief Hess' tenure he knew

that there was an information leak in the

HESS, PETITIONER, v. STATE OF SOUTH CAROLINA 5

department which was leaking word to

Hendrix of the department's undercover

operations against him. However, Chief

Hess could not pinpoint this leak. He

expressed his concern about this to his

deputy chief in the Downer's Grove Police

Department, Louis Fulgaro. In December,

1978, or January, 1979, Joel Hendrix came

to the Petitioner's office to offer him a

bribe. Chief Hess refused this bribe. As

of October, 1980, the Petitioner had not

had much success in his various undercover

operations against Joel Hendrix. He then

attempted to establish a one-man sting

operation in which he would attempt on

different occasions to get Joel Hendrix to

offer him a bribe by offering "stale"

information on ongoing investigations into

matters in which Hendrix had an interest.

On the last occasion, the meeting between

Sh

HESS, PETITIONER, v. STATE OF SOUTH CAROLINA

the two would take place in the City of

Columbia, at which time Chief Hess was

going to arrest Joel Hendrix for bribery.

During these meetings it was Chief Hess'

testimony that he was portraying the role

of a crooked cop only to attempt to get

Joel Hendrix to offer him bribes. Chief

Hess met with Hendrix on three different

occasions. On the second occasion Hendrix

gave him $1,000 at a rest stop in Calhoun

County, S.C. The third and final meeting

between the two took place on January 3,

1981, at a Family Mart Store in West

Columbia, South Carolina. The second

meeting had been audio-taped and video-

taped by the South Carolina Law Enforce-

ment Division, South Carolina's equivalent

to the national Federal Bureau of Investi-

gation. After the third meeting, at which

time no money was passed between the two,

6

HESS, PETITIONER, v. STATE OF SOUTH CAROLINA 7

South Carolina Law Enforcement Division

(otherwise known as "SLED") agents arrested

the Petitioner. As it turned out, Joel

Hendrix had asked for the cooperation of

the State Law Enforcement Division in

"attempting to catch Chief Hess accepting

a bribe." On April 20, 1981, Arthur

Garland Hess was indicted on two counts of

obstruction of justice, two counts of

misconduct in office, one count of extor-

tion, and one count of accepting a bribe

by an officer. The charges were tried at

the June 22, 1981, term of the Court of

General Sessions for Lexington County,

South Carolina, before The Honorable

Joseph R. Moss, Presiding Judge, and a

jury. During the trial the trial judge

severely limited the Petitioner's cross-

examination of prosecution witnesses,

especially that of Joel Hendrix, the chief

HESS, PETITIONER, v. STATE OF SOUTH CAROLINA

prosecution witness. The Petitioner was

not allowed to ask Hendrix about his close

association with past officials of the

Columbia Police Department. Further, the

Petitioner was limited severely in the

presentation of defense evidence by the

trial court. The trial court committed

other errors in jury selection, in admis-

sion of greatly prejudicial evidence, and

in charging on a statute on misconduct in

office that is void for vagueness. The

court also allowed the prosecutor to

introduce the fact that the Petitioner's

counsel represented a brothel in order to

inflame the jury. At the close of all the

evidence the Petitioner moved for judgment

notw'thstanding the verdict and in the

alternative for a new trial based on all

the errors as listed above. These motions

were denied. The Petitioner appealed his

claims to the South Carolina Supreme Court

HESS, PETITIONER, v. STATE OF SOUTH CAROLINA 9

based on ali of the errors stated above

and more and noted in his Brief that all

were violations of either the due process

rights of the Petitioner guaranteed by the

Fourteenth Amendment to the United States

Constitution or of the Petitioner's Sixth

Amendment right to an impartial jury, also

protected by the United States Constitution.

The Supreme Court of the State of South

Carolina affirmed the conviction on March

15, 1983, holding that the majority of the

errors alleged by the Petitioner were

rulings which look to the discretion of

the trial court. The South Carolina

Supreme Court refused to recognize the

Petitioner's constitutional claims and

adopted the rationale of several New

Jersey cases to express its opinion of the

Petitioner's action and of the Court's

belief that the Petitioner had indeed

engaged in misconduct in office. The

HESS, PETITIONER, v. STATE OF SOUTH CAROLINA 10

Opinion of the Court appears in the Appendix

of this Petition. On April 7, 1983, the

Supreme Court of South Carolina denied the

Petitioner's timely petition for rehearing.

HESS, PETITIONER, v. STATE OF SOUTH CAROLINA 1l

REASONS FOR GRANTING WRIT

de

The Decision Below Conflicts with the

Decisions of the Supreme Court of the

United States as to the Vague Statutory

Language of the South Carolina Misconduct

in Office Statute.

It is unclear from the record whether

the Petitioner was charged with common-law

or statutory misconduct in office in this

~

case. The Petitioner contends that it is

reasonable to assume that he was being

tried on statutory misconduct in office.

This assumption is supported by the fact

that the indictment is silent as to whether

the misconduct charges are common law or

statutory. This assumption is further

based on the fact that the solicitor

states that two of the charges are common

law and two of them are statutory. Since

it is very clear that the extortion charge

HESS, PETITIONFR, v. STATE O* SOUTH CAROLINA

is common law, as are the obstructions of

justice, the solicitor or prosecutor was

obviously including misconduct in office

as one of the two statutory offenses along

with acceptance of a bribe. Further, the

trial judge's charge includes a definition

of misconduct in office that would apply

to either common-law or statutory miscon-

duct. Further, the sentence given to the

Petitioner coincides exactly with the

punishment prescribed by the South Caro-

lina Code of Laws, § 8-1-80, misconduct in

office. The statute under which the

Petitioner was tried and convicted is void

for vagueness in that it does not inform

an accused of what conduct is proscribed.

The statute in question in this case, S.

C. Code § 8-1-80, Code of Laws of S.C.,

1976, as amended, reads as follows:

"Any public officer whose

authority is limited to a

12

HESS, PETITIONER, v. STATE OF SOUTH CAROLINA 13

single election or judicial

district who shall be

guilty of any official

misconduct, habitual neg-

ligence, habitual drunk-

enness, corruption, fraud

Or oppression shall be

liable to indictment and

upon conviction thereof,

shall be fined not exceed-

ing one thousand dollars

and imprisoned not exceed-

ing one year."

It is a basic principle of due process

that an enactment is void for vagueness if

its prohibitions are not clearly defined.

Grayned vs. City of Rockford, 92 S. Ct.

2294, 408 U.S. 104, 33 L. Ed. 2d 222 (1972).

This Court has held that the due process

Clause requires "fair warning" and that this

prohibits states from holding an individual

criminally responsible for conduct which he

could not reasonably understand to be

proscribed. Rose vs. Locke, 96 S. Ct. 243,

423 U.S. 48, 46 L. Ed. 2d 185 (1975). The

Petitioner contends that the statute as

quoted above covers such a variety of

HESS, PETITIONER, v. STATE OF SOUTH CAROLINA 14

actions that it would be impossible to know

whether any particular conduct was pro-

scribed. Thus, the statute does not meet

the required constitutional standard and is

therefore void for vagueness. Men of common

intelligence should not be forced to guess

at the meaning of criminal laws. Smith

vs. Goguen, 94 S. Ct. 1242, 415 U.S. 566, 39

L. Ed. 2d 605 (1974). In the case at bar

the Petitioner passed on certain information

to Joel Hendrix that was admittedly stale

(See Opinion of the Court). It is submitted

that no man of common intelligence could

detect from looking at S. C. Code § 8-1-80

that to pass on stale information would be

in violation of its provision. .A look at

the Transcript shows that indeed the

statutory misconduct was what the Petitioner

was tried on and not the common-law mis-

conduct. Thus, the Supreme Court of South

HESS, PETITIONER, v. STATE OF SOUTH CAROLINA 15

Carolina erred in upholding a statute so

vague that it offends the due process clause

of the United States Constitution.

HESS, PETITIONER, v. STATE OF SOUTH CAROLINA 16

2.

The Decision Below Conflicts with the

Decisions of The Supreme Court of the United

States as to Due Process of Law.

The Supreme Court of South Carolina

refused in its Opinion to consider the

Petitioner's due process arguments. It is

submitted that the overall effect of the

trial was to limit its fairness by limit-

ing the Petitioner's cross-examination of

prosecution witnesses and in limiting the

presentation of defense evidence to such a

point that the Petitioner was unable to

present his theory of the case. First, the

trial court severely limited cross-exami-

nation of the chief prosecution witness

Joel Hendrix on his close association with

local state law enforcement agencies and

his practice of giving legal and illegal

gifts to members of such agencies. The

HESS, PETITIONER, v. STATE OF SOUTH CAROLINA 17

trial court also refused to allow the

Petitioner to present evidence of his

character for honesty in office, since

the defense theory of the case was to show

that the Petitioner had an honest charac-

ter in public office. The court also

refused to hear several defense witnesses

vital to the case. The fundamental require-

ment of due process is the opportunity to

be heard. Armstrong vs. Manzo, 85 S. Ct.

1187, 380 U.S. 545, 14 L. Ed. 2d 62 (1965);

Logan vs. Zimmerman Brush Co., 102 S. Ct.

1148 (1982). Due process requires that

there be an opportunity to present every

available defense. Lindsey vs. Normet, 92

S. Ct. 862, 405 U.S. 56, 31 L. Ed. 2d 36

(1972). Procedural due process rules are

meant to protect persons not from depri-

vation, but from mistaken cr unjustified

deprivation of life, liberty or property.

Carey vs. Piphus, 98 S. Ct. 1042, 435 U.S.

HESS, PETITIONER, v. STATE OF SOUTH CAROLINA 18

247, 55 L. Ed. 2d 252 (1978). The right

to confront and cross-examine witnesses is

a fundamental aspect of procedural due

process. Jenkins vs. McKeithen, 89 S. Ct.

1843, 395 U.S. 411, 23 L. Ed. 2d 404 (1969);

Goldberg vs. Kelly, 90 S. Ct. 1011, 397

U.S. 254, 25 L. Ed. 2d 287 (1970). The

right to present evidence is essential to

the fair hearing required by the due

process clause, and the right becomes

particularly fundamental where the proceed-

ing results in a finding that the particular

individual was guilty of the crime.

Jenkins vs. McKeithen, supra. Due process

is an illusive concept. Its exact boundaries

are undefinable, and its content varies

according to specific factual context.

Whether the constitution requires that a

particular right obtain in a specific

proceeding depends upon a complexity of

HESS, PETITIONER, v. STATE OF SOUTH CAROLINA 19

factors. The nature of the alleged right

involved, the nature of the proceeding and

the possible burden on that proceeding are

all considerations which must be taken

into account. Hannah vs. Larche, 363 U.S.

420 (1960). When one examines this case

as a whole, it is clear that the Petitioner

very clearly was limited in his right to

present his defense by the conduct of the

trial court. Such a limitation is in

violation of the due process rights

guaranteed by the Fourteenth Amendment to

the United States Constitution.

HESS, PETITIONER, v. STATE OF SOUTH CAROLINA 20

3.

The Decision Below Refusing to Remand

the Case to the Trial Court for Consider-

ation of a Motion for a New Trial on

After-discovered Evidence Conflicts with

the Decisions of The Supreme Court of the

United States as to Due Process of Law.

On two occasions the Petitioner made

motions to the South Carolina Supreme

Court to remand the case on a motion for

new trial on after-discovered evidence.

Subsequent to the trial of the case, it

was discovered that the transcript pre-

pared by the South Carolina Law Enforce-

ment Division of the conversation of

October, 1980, between Joel Hendrix and

Arthur Hess contained a major inaccuracy.

Also, during the trial of the Petitioner,

there was much dispute as to what happened

to the $3,000 allegedly paid to Arthur

HESS, PETITIONER, v. STATE OF SOUTH CAROLINA 21

Hess by Joel Hendrix on January 3, 1981,

at the Family Mart in West Columbia. This

money had never been found. Subsequent to

Hess' conviction in Lexington County,

$3,000 was mailed in to a reporter for the

Columbia State newspaper. The money was

purportedly that which Joel Hendrix was

supposed to have paid to Arthur Hess in

some manner. The Supreme Court of South

Carolina refused, upon proper motion, to

remand the case to the lower court for a

hearing on motions for new trial on after-

discovered evidence on two separate occa-

sions, without a hearing. These decisions

are in direct conflict with the ruling of

this Court in Remmer vs. United States,

74 S. Ct. 450, 347 U.S. 227, 98 L. Ed. 654

(1953), which holds that the party who

files a motion for a new trial is entitled

to a hearing on that motion. The Court

HESS, PETITIONER, v. STATE OF SOUTH CAROLINA 22

cannot dispose of the motion after reading

the affidavits without a hearing. Although

such authority was directed towards trial

courts, it is clear that the same should

be held for state Supreme Courts, that the

principle should not differ. It is asserted

that this action by the South Carolina

Supreme Court violated the Petitioner's

due process rights guaranteed by the

Fourteenth Amendment to the United States

Constitution.

HESS, PETITIONER, v. STATE OF SOUTH CAROLINA 23

4.

The Decision Below Conflicts with the

Settled Authority on Demonstrative Evidence.

The solicitor prepared for use at

trial a large diagram (4 feet by 8 feet)

on which he attempted to place the chro-

nology of events that occurred during the

State's investigation. The diagram was

cffered into evidence as State's Exhibit

40 and was admitted over the Petitioner's

objection. After a verdict was returned,

the Petitioner made a motion for a mis-

trial on the grounds that the diagram was

improperly admitted into evidence, which

motion was overruled. The diagram con-

tained inaccurate information in that it

incorporates an erroneous date critical to

the prosecution's version of the facts.

The date placed on the board was contrary

to the evidence submitted by the State

HESS, PETITIONER, v. STATE OF SOUTH CAROLINA 24

itself and there was absolutely no evidence

to support the date allowed to be placed

on the exhibit. The South Carolina Supreme

Court erred when it refused to reverse the

lower court for admitting the diagram into

evidence, rather than limiting it to use

in argument only. Although no authority

could be found presented by this Court,

several circuit court decisions are on

point. The holding of the Ninth Circuit

in United States vs. Cox, 633 F.2d 871,

cert. denied, 102 S. Ct. 159 (1980), is on

point. The Court held that it is better

to exclude illustrative evidence from the

jury room since the role of such evidence

is preferably that of testimonial and for

the witnesses or as an aid to counsel

during argument; otherwise, evidence of

this sort may cause error in that it can

present an unfair picture of testimony at

HESS, PETITIONER, v. STATE OF SOUTH CAROLINA 25

trial and can be a potent weapon for harm

due to its great persuasiveness. It is

submitted that the large board placed by

the solicitor into evidence was harmful in

that it surely dominated the jury room

during deliberations, and in addition

contained incorrect information. In

addition, it is respectfully submitted

that the trial court erred in placing into

evidence transcripts of taped conversations

between the Petitioner and the chief

prosecuting witness. The circuit courts

have held that such prepared transcripts

prepared by the government may be used in

certain specified ways, and not in others.

In the case of United States vs. Papia,

560 F.2d 827 (7th Cir. 1977) the court

held that it was not error to provide

jurors with government-prepared transcripts

of a taped conversation played at trial

where the defendants were permitted to

HESS, PETITIONER, v. STATE OF SOUTH CAROLINA 26

compare the government's transcripts

against the tapes and correct any discrep-

ancies. The transcripts were not intro-

duced into evidence and were not given to

the jury for use in deliberation. Further,

the jury was instructed that the trans-

cripts were merely an aid, and that their

recollection as to the contents of the

tapes was controlling. Otherwise, the

court held that such transcripts could

have been prejudicially cumulative, as

placing undue emphasis on hearsay portions

of the evidence. It is submitted that the

requisite safeguards as denominated by the

Seventh Circuit did not appear in the

present case in that undue emphasis was

placed on the transcripts. Indeed, the

defense was not permitted to correct any

discrepancies prior to trial. The trans-

cripts were indeed introduced into evi-

HESS, PETITIONER, v. STATE OF SOUTH CAROLINA 27

dence and were indeed given to the jury

for use in deliberation. Further, no

limiting instruction was given to the

jury. As has been stated, in addition,

the transcripts contained at least one

erroneous interpretation of what had been

said on a tape between the Petitioner and

the chief prosecution witness. Thus, the

weight of authority in the circuit courts

would tend to show the Supreme Court of

South Carolina committed error in refusing

to reverse the lower court for the admis-

sion of two highly prejudicial pieces of

evidence into the jury room during their

deliberations.

HESS, PETITIONER, v. STATE OF SOUTH CAROLINA 28

5.

The Decision Below Conflicts with the

Decision of the Supreme Court of the

United States as to the Impartiality of

the Jury.

It should be noted that the prosecu-

tor referred to the Petitioner's counsel

during the course of the trial as being

defense counsel for the DeSoto Hotel, an

establishment allegedly constituting a

brothel in the City of Columbia, South

Carolina. It should be noted that such a

remark was meant solely to inflame the

jury. The Petitioner objected to such a

statement at the appropriate times. It

should be noted that the touchstone of due

process analysis in cases of alleged

prosecutorial misconduct is the fairness

of the trial. Smith vs. Phillips, 102 S.

Ct. 940 (1982). Such a remark by the

prosecutor was highly unfair and attempted

HESS, PETITIONER, v. STATE OF SOUTH CAROLINA 29

to cast dispersions on the Petitioner's

attorney in front of the jury. It is felt

that such a remark constituted reversible

error, and the lower court should have

granted a new trial or in the alternative,

a judgment notwithstanding the verdict.

It is clear that the result of this remark,

combined with the other limitations placed

upon the defense counsel by the trial

judge, constitute an unfair trial, and

that the entire matter should have been

reversed by the lower court and remanded

for a new trial, or in the alternative

judgment notwithstanding the verdict

should have been granted.

HESS, PETITIONER, v. STATE OF SOUTH CAROLINA 30

6.

The Decision Below Conflicts with the

Decision of the Supreme Court of the

United States and the Courts Below as to

the Impartiality of Jurors.

Constitutional standards of fairness

require that a state defendant have a

panel of impartial, indifferent jurors.

Murphey vs. Florida, 95 S. Ct. 2031, 421

U.S. 794, 44 L. Ed. 2d 589 (1975). Pros-

pective jurors are subject to voir dire

examination, to challenge for cause and to

preemptory challenge. Singer vs. United

States, 85 S. Ct. 783, 380 U.S. 24, 13 L.

Ed. 2d 630 (1965). The right to a pre-

emptory challenge is one of the most

important of rights secured to the accused,

and denial or impairment of such a right

is reversible error even without showing

prejudice. Swain vs. Alabama, 85 S. Ct.

824, 380 U.S. 202, 13 L. Ed. 2d 759,

HESS, PETITIONER, v. STATE OF SOUTH CAROLINA 31

Rehearing denied, 85 S. Ct. 1528, 381 U.S.

921, 14 L. Ed. 2d 442 (1965). Generally,

it is error for the court to force a party

to exhaust his preemptory challenges on a

person who should be excused for cause.

United States vs. Nell, 526 F.2d 1223 (5th

Cir. 1976). If actual bias is discovered

on voir dire of a prospective juror, then

the court must grant the challenge for

cause. Id. The Fifth Circuit case of

United States vs. Nell, supra, merely

takes up the challenge issued by this

Court in Swain vs. Alabama, supra, in

which the Court emphasized the preemptory

challenge as one of the most important of

rights secured to an accused. It is sub-

mitted that in the case at bar this impor-

tant right was indeed violated in that a

former employee of the South Carolina Law

Enforcement Division was left on the jury

panel, and the Petitioner was forced to

HESS, PETITIONER, v. STATE OF SOUTH CAROLINA 32

use one of his preemptory challenges to

excise that juror from the jury pool. The

Petitioner's Sixth Amendment right to an

impartial jury was severely affected, and

the South Carolina Supreme Court erred in

refusing to reverse the lower court's

inclusion of this member of the jury

panel. Further authority for this propo-

sition appears in the case of Hines vs.

Enomoto, 658 F.2d 667 (9th Cir. 1981). The

Ninth Circuit held that a criminal defen-

dant may not be denied the full number of

preemptory challenges available, and any

curtailment on the exercise of the chal-

lenges is reversible error. The jury box

is a holy place. The full complement of

preemptory challenges is crucial. At

stake is a party's right guaranteed by the

Sixth Amendment to an impartial jury. In

the case at bar the South Carolina Supreme

“”

a

Vy ae

HESS, PETITIONER, v. STATE OF SOUTH CAROLINA 33

Court violated the Petitioner's Sixth

Amendment right by inclusion on the jury

panel of a former employee of the very

agency that investigated the Petitioner

and subsequently arrested him. Such a

juror could not be anything but biased in

her view of the Petitioner, and she should

have been excused for cause.

—. #

i) me) 4

HESS, PETITIONER, v. STATE OF SOUTH CAROLINA 34

CONCLUSION

The right of an accused in a criminal

trial to due process is in essence the

right to a fair opportunity to defend

against the State's accusations. Chambers

vs. Mississippi, 93 S. Ct. 1038, 410 U.S.

284, 35 L. Ed. 2d 297 (1973). It is clear

in the case at bar that the Petitioner's

due process rights under the Fourteenth

Amendment of the United States Constitution,

and in addition, his rights to an impartial

jury under the Sixth Amendment of the

United States Constitution were severely

infringed upon by the Supreme Court of the

State of South Carolina. The Petitioner

was severely limited in the presentation

of his case by the trial judge. In addi-

tion, several pieces of prejudicial evi-

dence were admitted to the jury room

during deliberations. Next, the Petitioner

HESS, PETITIONER, v. STATE OF SOUTH CAROLINA 35

was forced to excuse a clearly biased juror

by the exercise of one of his preemptory

challenges as opposed to having that juror

excused for cause. All of these are

severe violations of the Petitioner's

constitutional rights.

Wherefore, the Petitioner respect-

fully prays that a writ of certiorari be

granted to review the judgment and opinion

of the Supreme Court of South Carolina.

Respectfully submitted,

J. MARVIN MULLIS, UR.

F. DAVID BUTLER

1825 Sumter Street

Columbia, SC 29201

803-799-9577

Counsel for Petitioner

JAMES B. RICHARDSON, JR.

1338 Main Street, Suite 1202

Columbia, SC 29201

803-799-9412

Counsel of Record

APPENDIX

HESS, PETITIONER, v. STATE OF SOUTH CAROLINA 37

OPINION NO. 21322

Filed March 15, 1983

AFFIRMED

J. Marvin Mullis, Jr., of Law Offices

of J. Marvin Mullis, Jr., of Columbia, for

Appellant.

Attorney General T. Travis Medlock,

Retired Attorney General Daniel R. McLeod

and Senior Assistant Attorney General Brian

P. Gibbes, all of Columbia; and Solicitor

Donald V. Myers, of Lexington, for res-

pondent.

LEWIS, C.J.: Appellant, the former

Chief of the Columbia Police Department,

was found guilty on two indictments charg-

ing misconduct in office. We affirm both

convictions.

In October, 1980, while serving as the

Columbia Police Chief, appellant initiated

a series of secret contacts with one Joel

HESS, PETITIONER, v. STATE OF SOUTH CAROLINA 38

Hendrix. The record shows that Hendrix was

reputed to be a key figure both in organized

criminal activities and in past corruption

scandals touching local law enforcement. At

trial, appellant steadfastly contended that

the purpose of these contacts was to lure

Hendrix into acts of bribery by offering

protection and information in return for

periodic payments at a rate of $1,000.00 a

month. Appellant maintained that he

deliberately conducted this operation as

a one-man affair out of fear that Hendrix'

pervasive influence within the police

department might result in a compromise of

the plan.

A number of facts are not disputed in

the lengthy record of this trial. On

October 18, 1980, appellant did accept

$1,000.00 in cash from Hendrix. On

October 31, 1980, appellant did accept

HESS, PETITIONER, v. STATE OF SOUTH CAROLINA 39

$1,000.00 in cash from Hendrix. On

October 31, 1980, appellant did reveal to

Hendrix certain police information that he

as Chief of Police had received from a

subordinate. On January 3, 1981, appellant

again revealed to Hendrix information

obtained through his office. On that date

appellant also met with Hendrix to receive

one of the payments described above. He

was arrested at that time by agents of the

State Law Enforcement Division (SLED) who,

on Hendrix' information, had followed the

case almost from the beginning and actually

recorded most of the meetings.

The two indictments charge that on

October 31, 1980, and again on January 3,

1981, appellant did "corruptly inform"

Hendrix in the manner just described.

While conceding all the facts recited

above, appellant met the charge of mis-

HESS, PETITIONER, v. STATE OF SOUTH CAROLINA 40

conduct by a presentation of testimony

designed to show that his intentions were

wholesome even though his methods were

unorthodox. Likewise, appellant sought to

cast doubt upon the State's case by close

and penetrating cross-examination of

prosecution witnesses, especially Hendrix.

Thus, the key issue of fact for determi-

nation by the jury was the true intent or

motive behind appellant's actions.

We believe that this crucial question

of fact was ably contested by both sides

and brought into focus by the definition of

"corruption" given in the trial court's

jury instructions: "Corruption is an act

done with intent to gain advantage, not

consistent with official duty and rights of

others. Corrupt is defined to be dishon-

est, without integrity, guilty of dishon-

esty ... ." Reviewing the record as a

HESS, PETITIONER, v. STATE OF SOUTH CAROLINA 41

whole, we cannot conclude that a jury

finding of corrupt intent would have been

without evidentiary support beyond a

reasonable doubt.

Appellant contends, however, that the

trial was infected with numerous errors

that determined its outcome. We note that

most of his exceptions, and questions

presented, arise from rulings which rest

upon the sound discretion of the trial

court. Appellant objected to the seating

of a juror who had once worked for SLED and

to the introduction of testimony concerning

the meeting of October 19, 1980, in Calhoun

County. We find no abuse of discretion in

either instance and dismiss the issues as

without merit.

Appellant urges that the jury was

improperly allowed to take copies of tape

transcripts into the jury room. It is

HESS. PETTTIONER, v.. STATE OF SOUTH CAROLINA 42

contended that possession of the tapes gave

undue emphasis to the evidence. State v.

Gulledge, S.C. , 287 S.E.2d 488;

State v. Plyler, 275 S.C. 291, 270 S.E. 2d

126. We read the record otherwise. In

this case there was no dispute as to the

essential facts as summarized earlier.

Appellant’ does not claim that the tran-

scripts were inaccurate in reproducing the

actual meetings between himself and

Hendrix. The critical factual issue was

appellant's intent and not the fact of his

contacts with Hendrix. Thus, the impact of

any undue emphasis on the tapes and tran-

scripts had little effect on appellant's

defense. Any error under our cases was

clearly harmless.

Appellant complains that on cross-

examination the State improperly elicited

from him the fact that one of his trial

HESS, PETITIONER, v. STATE OF SOUTH CAROLINA 43

counsel had once represented an individual

alleged to have operated a brothel which

the Columbia police were seeking to close.

Clearly that fact was irrelevant to the

issue of appellant's guilt or innocence,

but no timely objection was made to the

question. The issue is not before us for

review.

Appellant urges that reversible error

occurred when the trial judge limited his

cross-examination of Hendrix, the key

witness for the State. A similar error is

urged against the trial judge's limitation

of witnesses whom appellant offered to

demonstrate his competence, character and

good reputation as a police officer. We

find the rulings of the trial judge to have

been soundly based on principles of rele-

vancy and the inadmissibility of cumulative

testimony. There was no abuse of discre-

tion in these rulings.

HESS, PETITIONER, v. STATE OF SOUTH CAROLINA 44

We find, moreover, that no prejudice

resulted to appellant by reason of these

limitations. The record reveals that

counsel for the appellant succeeded in

winning acquittal under four other indict-

ments which alleged bribery, extortion and

two instances of obstruction of justice.

The jury was given ample opportunity to

weigh the credibility of Joel Hendrix.

With respect to appellant's other

witnesses, we find no prejudice in the

court's limiting character testimony as it

did. It must be remembered that appellant

confided in no one during the course of his

eingle-handed operation against Hendrix.

One simply cannot conceive of any direct

testimony by live witnesses which could

shed additional light on the question of

appellant's intent during the months at

issue. At best, these witnesses could have

HESS, PETITIONER, v. STATE OF SOUTH CAROLINA 45

testified that appellant was an honest man

worried about corruption in the Columbia

Police Department. That contention was

more than once put to the jury in the

record before us. The absence of further

corroboration worked no prejudice.

Appellant objected to Exhibit 40 of

the State which was a large display board

upon which the events from October, 1980,

to January, 1981, were represented for jury

reference. Part of appellant's defense was

his argument that the information divulged

in October, 1980, was actually stale. The

testimony indeed bears him out on this

point. For some reason, the State's exhi-

bit confused the sequence of events, and

from this appellant concludes that the jury

may have decided that he in fact comprom-

ised an ongoing investigation.

Unfortunately, this mistake was not

specifically brought to the trial court's

HESS, PETITIONER, v. STATE OF SOUTH CAROLINA 46

attention. Appellant's general objection

to admission of the display board contained

a nebulous reference to "one or two in-

accurate facts," but the specific inaccu-

racy complained of on appeal was never

mentioned. The trial court was denied

opportunity to rule on this complaint, and

accordingly we deem the issue not preserved

for our review.

We note, however, that there is very

little likelihood of preseiien resulting

from this exhibit. To bolster his own

version of the October 3lst disclosure,

appellant submitted in evidence a calendar

showing clearly that the information was

stale and he so knew it to be well before

his fateful disclosure to Hendrix. That

calendar was marked as an exhibit, and the

jury had the benefit of it in connection

with evidence of the State.

HESS, PETITIONER, v. STATE OF SOUTH CAROLINA 47

In the final analysis, the relative

value of the police infoymation actually

disclosed has little bearing upon the

ultimate issue in this case, because we

find appellant's actions to be official

misconduct in any event.

Appellant correctly notes that South

Carolina has no cases applying the common

law of misconduct in office. Indeed this

was the basis of the indictments rather

than statutory offenses such as violations

of Section 8-1-80, 1976 Code of Laws

(general misconduct statute) or Code

Section 8-13-4400, (prohibition on disclo-

sure. of scutsdentsad information for

financial gain).

Appellant also directs this Court toa

number of well considered decisions by the

New Jersey Supreme Court which form a

persuasive body of law on official mis-

Sy rt

Bm > +.

HESS, PETITIONER, v. STATE OF SOUTH CAROLINA 48

conduct. In good part we adopt the rat-

ionale of these leading cases.

Misconduct in office occurs when

duties imposed by law have not been prop-

erly and faithfully discharged. State v.

Furey, (N.J.) 318 A. 2d 783; State v.

Begyn, (N.J.) 167 A.2d 161, 165, 168. The

existence of a duty owed to the public is

essential, for otherwise the offending

behavior becomes merely the private mis-

conduct of one who happens to be an offi-

cial. State v. Weleck, (N.J.) 91 A.2d 751,

756. The jury instruction of the trial

court in this case satisfactorily stated

the rule as follows: "Misconduct includes

any act, any omission, in breach of duty of

public concern by persons in public office

provided it is done wilfully and dishon-

estly." (Again, it should be noted, the

wilful and dishonest character of appel-

lant's conduct was the threshold fact issue

* -

HESS, PETITIONER, °v.SSTATE OF SOUTH CAROLINA 49

to be determined by the jury. Having found

bad faith and corrupt intent, the jury

could then proceed to determine whether or

not the requisite elements of bribery,

extortion, obstruction of justice and

official misconduct had been proven under

each of the separate indictments.)

New Jersey normally requires that a

criminal indictment for official misconduct

recite the duty that has been breached.

State v. Furey, supra; State Vv. Begyn,

supra; State v. Cohen, (N.J.) 153 A.2d 688;

State v. Winne, (N.J.) 96 A.2d 63; State

v. Weleck, supra. The leading case of

Driscoll v. Burlington-Bristol Bridge Co.,

(N.J.) 86 A.2d 201, however, suggests a

duty of accountability "imposed by the

common law on public officers and assumed

by them as a matter of law upon their

entering public office." 86 A. 2d at 222.

The Court in Driscoll states this common

HESS, PETITIONER, v. STATE OF SOUTH CAROLINA 50

sense obligation as follows:

Public officers must be imper-

vious to corrupting influences

and they must transact their

business frankly and openly in

the light of public scrutiny so

that the public may know and be

able to judge them and their

work fairly.

86 A.2d at 221.

Whatever else may be said of appel-

lant's actions, it is clear from this

record that he provided no mechanism by

which the public could openly, frankly or

fairly judge him or his work. It is not

- enough, in fulfillment of his duty, to

await a criminal indictment before making a

record of one's true motives. We do not

deny the need for confidentiality in police

investigations but rather we hold that even

officials operating in secrecy must be at

the same time and in some manner account-

able. Appellant so designed his operation

against Hendrix that not even superior

VW

a

HESS, PETITIONER, v. STATE OF SOUTH CAROLINA 51

officials, whom he professed to trust,

could monitor or vouch for his undertaking.

A duty was owed, and the jury was entitled

to conclude from the evidence that this

duty was breached.

We note that the adequacy of the

indictment is not attacked on this appeal.

Instead appellant challenges the jury

instruction of the trial court upon the

narrow grounds that malfeasance, mis-

feasance and nonfeasance were charged

together and further that the jury might

have been led to convict upon a showing of

mere negligence. The record decisively

defeats the latter contention, for the

trial court made it abundantly clear that

dishonesty and corruption were required for

any finding of criminal misconduct in

office. The fact that three variants of

misconduct were charged and also explained

worked no prejudice, for the jury could

1

be, Oe

HESS, PETITIONER, v. STATE OF SOUTH CAROLINA 52

have properly condemned appellant's actions

under one or all of these headings. Di-

vulging police information for payment

without adequately recording the trans-

action for purposes of accountability could

be deemed a wrongful act in itself, hence

malfeasance. The same behavior might

constitute a lawful investigatory device

done in a wrongful manner, hence misfea-

sance. With equal logic, such action could

be viewed as a substantial failure to

perform the duty of good faith and

accountability, from which conviction for

nonfeasance would flow. Appellant's

exception to the jury charge clearly is

without merit.

All questions being determined ad-

versely to appellant, the convictions and

judgments are hereby affirmed.

LITTLEJOHN, NESS, GREGORY and HARWELL,

J.J., concur.