Petition for Writ of Certiorari — South Carolina v. Butler

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Text

Sviorgmy Coupt, U.S,

FILED

SEP 18 1990

E, SPANIOL, JR,

IN THE CLERK

SUPREME COURT OF THE UNITED STATES

October Term, 1990

STATE OF SOUTH CAROLINA,

Petitioner,

HORACE BUTLER,

Respondent,

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE STATE

OF SOUTH CAROLINA

T. Travis Medlock

Attorney General

Donald J. Zelenka

Chief Deputy

Attorney General and

Attorney of Record

Post Office Box 11549

Columbia, S.C. 29211

(803) 734-3737

ATTORNEYS FOR

PETITIONER

als

QUESTIONS PRESENTED FOR REVIEW

I. IS THE FIFTH AMENDMENT RIGHT NOT

TO BE COMPELLED TO BE-A WITNESS AGAINST

HIMSELF VIOLATED WHEN A DEFENDANT DOES NOT

TESTIFY AFTER THE TRIAL JUDGE ADVISES HIM

THAT THERE IS A RISK THE JURY MAY WONDER

WHY HE DID NOT TESTIFY?

II. WHETHER THE STATE COURT'S APPLI-

CATION OF A PRESUMPTION OF PREJUDICE

STANDARD IS APPROPRIATE FOR A VIOLATION OF

A FIFTH AMENDMENT RIGHT NOT TO TESTIFY

WHEN THE DEFENDANT DOES NOT TESTIFY AFTER

THE ALLEGED COERCIVE JUDICIAL COMMENTS TO

HIM?

TABLE OF CONTENTS

Questions Presented for Review

Table of Contents

Table of Authorities

Opinion Below

Jurisdiction

Constitutional Provisions

Involved

Statement of the Case

Re Prior Procedural

History

2. Present Proceedings

3. Pertinent Facts to

these Proceedings

How the Federal Question Was

Raised Below

Reasons Why the Writ Should Be

Granted

Conclusion

Appendix A

Butler v.

State of South

Carolina (June 20,

Appendix B

1990)

Pertinent Portions of

Trial Transcript of

State v.

Butler

iii

TABLE OF AUTHORITIES

Page

Brooks v. Tennessee, 399 U.S.

42 (1970) 19

Butler v. Aiken, 846 F.2d 255

(4th Cir. 1988) 8

Butler v. Aiken, 864 F.2d 24

(4th Cir. 1988) 8

Butler v. McKellar, et al.,

U.S. , 449 &.Ct. 1212,

108 L.Ed.2d 347 (1990) 4, 8

Butier v. South Carolina,

459 U.S. 932 (1982) 5

Butler v. State, 286 S.C. 441,

334 S.E.2d 813 (1985) 7

Butler v. State, 474 U.S.

1093 (1986) 7

Carter v. Kentucky, 450 U.S.

288 (1981) Passim

Chambers v. Maroney, 399 U.S.

42 (1970) 32

Chapman v. California, 386 U.S.

18 (1967) Passim

Delaware v. Arsdall, 475 U.S.

673 (1986) 31

Gideon v. Wainwright, 372 U.S.

335 (1963) 32

Milton v. Wainwright, 407 U.S.

371 (1972) 32

iii

Moore v. Illinois, 434 U.S.

220 (1977)

Payne v. Arkansas, 356 U.S.

560 (1958)

People v. Phillips, 542 N.E.2d

814 (Ill. App. 1989)

Rogers-Bey v. Lane, 896 F.2d

279 (7th Cir. 1990)

Rose v. Clark, 478 U.S. 570

(1986)

114

Rushen v. Spain, 464 U.

(1983)

State v. Butler, 277 S.C. 452,

290 S.E.2d 1 (1982)

State v. Cooper, 291 S.C. 332,

353 S.E.2d 441 (1986)

State v. Gunter, 286 S.C. 556,

335 S.E.2d 542 (1985)

State

346 S.

Pierce, 289 S.C. 430,

-2d 707 (1986)

Mis

Tumey v. Ohio, 273 U.S. 510

(1927)

U.S. v. Arthur, 602 F.2d 660

(4th Cir. 1979)

U.S. v. Curtis, 742 F.2d 1070

(7th Cir. 1984)

United States v. Goodwin,

770 F.2d 631 (2nd Cir. 1985)

Page

31, 33

Passim

United States v. Hasting, 461

U.S. 499 1983)

U.S. v. Teague, 908 F.2d 752

(llth Cir. 1990)

United States v. Washington,

431 U.S. 181 (1977)

Wooten-Bey v. State, 547 A.2d

1086 (Md. App. 1988) aff'd.

568 A.2d 16 (Md. 1990)

Wright v. Estelle, 572 F.2d 1071

(Sth Cir. 1978)

UNITED STATES CODE

28 U.S.C. Section 1257(3)

UNITED STATES CONSTITUTION

Fifth Amendment

Sixth Amendment

SOUTH CAROLINA CODE

Section 16-3-20(B)

Section 16-3-28

Passim

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1990

STATE OF SOUTH CAROLINA,

Petitioner,

HORACE BUTLER,

Respondent,

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE STATE

OF SOUTH CAROLINA

The Attorney General of South Caroli-

na on behalf of the State of South Caroli-

na petitions for a writ of certiorari to

review the judgment of the Supreme Court

of South Carolina which granted the writ

of habeas corpus and remanded the matter

to the Charleston County Court of General

Sessions for a new trial.

ee ee ae ee 6, ee nye

a ee ee el eee i a. - —

OPINION BELOW

The opinion of the Supreme Court

Of South Carolina granting the petition

for a writ of habeas corpus in its origi-

nal jurisdiction was filed on June 20,

1990. The opinion is unreported at the

time of this filing of a petition for

certiorari. It is appended hereto as

Appendix A at pages 35-40.

JURISDICTION

The petition for certiorari is for

review of the opinion of the Supreme Court

of South Carolina which granted a petition

for writ of habeas corpus in its original

jurisdiction from a criminal conviction

for murder which occurred on January 24,

1981. This Court has jurisdiction to

review the lower court opinion in certio-

rari proceedings pursuant to 28 U.S.C.

Section 1257(3) and Rules of the Supreme

Court of the United States, Rule 10.1(b),

(Cc).

CONSTITUTIONAL PROVISIONS INVOLVED.

The Fifth Amendment to the United

States Constitution which provides:

No person shall be held to an-

swer for a capital, or otherwise

infamous crime, unless on a

presentment or indictment of a

Grand Jury, except in cases

arising in the land or naval

forces, or in the Militia, when

in actual service in time of War

or public danger, nor shall any

person be subject for the same

offence to be twice put in jeop-

ardy of life or limb, nor shall

be compelled in any criminal

case to be a witness against

himself, nor be deprived of

life, liberty, or property,

without due prcecess of law; nor

shall private property be taken

for public use without just com-

pensation.

(Emphasis added).

Be The Sixth Amendment to the

United States Constitution which states:

In all criminal prosecutions,

the accused shall enjoy the

right to a speedy and public

trial, by an impartial jury of

the State and district wherein

the crime shall have been com-

mitted; which district shall

have been previously ascertained

by law, and to be informed of

the nature and cause of the

accusation; to be confronted

with the witnesses against him;

to have compulsory process for

obtaining witnesses in his fa-

vor, and to have the assistance

of counsel for his defence.

STATEMENT OF THE CASE

This petition for certiorari comes

before this Court involving habeas corpus

proceedings in the original jurisdiction

of the Supreme Court of South Carolina

occurring after this Court had denied a

previous federal habeas corpus request on

the part of Horace Butler in Butler v.

McKellar, et al., U.S. » 4280 8.Ct.

1212, 108 L.Ed.2d 347 (1990).

l. Prior Procedural History.

On or about July 17, 1980, Pamela

Lane, a seventeen-year old convenience

store clerk, was murdered in Charleston

County, South Carolina. On September l,

1980, Horace Butler made a statement

admitting his involvement in her murder to

the Charleston County Police Department.

Maw 5 WSs,

After an indictment for murder, the

matter was tried before a jury and the

Honorable C. Anthony Harris. A verdict

of guilty was returned on January 24,

1981. On January 26, 1981, the trial jury

further recommended imposition of the

death penalty after finding beyond a

reasonable doubt the existence of the

statutory aggravating circumstance of

murder was committed while in the commis-

sion of the crime of rape.

Butler filed an appeal to the Supreme

Court of South Carolina which affirmed the

conviction and sentence on February 22,

1982. State v. Butler, 277 S.C. 452, 290

S.E.2d 1 (1982). Certiorari was denied by

this Court on October 12, 1982. Butler v.

South Carolina, 459 U.S. 932 (1982).

Butier then made an application for

state post conviction relief. Among the

allegations raised one concerned his

desire to testify in front of the jury in

the guilt phase of the trial. After

hearing the testimony of the defense

attorney and Butler, the Honorable Richard

E. Fieids, Presiding Judge, made the

following findings of fact and conclusions

of law:

The Applicant also alleges that

he desired to testify in the

guilt stage in front of the jury

about the circumstances of his

statement. During the trial,

the trial court made inquiry of

the Applicant about his decision

not to testify. (Tr. pp. 871-

877). During the inquiry, the

Applicant testified that he

agreed with his lawyer's strate-

gy not to have him testify,

understanding the advantages and

disadvantages. (Tr. pp. 871-

872, 874-875). His statements

in open court carry a presump-

tion of verity which the appli-

cant has wholly failed to rebut

in this proceeding. Blackledge

v. Allison, 431 U.S. 63 (1977).

This Court finds that counsel

made an informed decision not to

call the Applicant in the guilt

phase to testify. Counsel's

tactical decision was based upon

the Applicant's version of the

facts, the effect of the reply

testimony of Margo Brown, his

ex-girlfriend, could give and

Court, in hindsight, cannot find

counsel performed outside of the

standard of competence in not

urging the Applicant to testify.

His allegation must be denied.

Butler v. State, Court of Common Pleas

(Honorable Richard E. Fields), January 28,

1984. (Butler v. McKellar., 88-6677,

Joint Appendix, p. 84). An appeal was

taken from the denial of state post con-

viction relief on this claim and other

issues. After the denial of state court

certiorari on some issues, the Supreme

Court of South Carolina denied the appeal

on August 27, 1985. Butler v. State, 286

S.C. 441, 334 S.E.2d 813 (1985). Certio-

rari was denied by this Court on January

26, 1986. Butler v. State, 474 U.S. 1093

(1986).

On May 2, 1986, Butler made a peti-

tion for a writ of habeas corpus in the

United States District Court for the

District of South Carolina. On June 9,

1987, the Honorable G. Ross Anderson, Jr.,

United States District Judge, denied the

Petition. Butler v. Aiken, C.A. No. 86-

1093-3 (D.S.C. 1987). Upon appeal, the

United States Court of Appeals for the

Fourth Circuit affirmed the denial of

habeas corpus relief on May 6, 1988.

Butler v. Aiken, 846 F.2d 255 (4th Cir.

1988). On December 2, 1988, the Court of

Appeals entered its order denying the

petition for rehearing and petition for

rehearing en banc, Butler v. Aiken, 864

F.2d 24 (4th Cir. 1988). Certiorari was

sought and granted on an unrelated issue.

On March 5, 1990, the Supreme Court of the

United States entered its opinion affirm-

ing the judgment of the Court of Appeals

denying the petition for habeas corpus.

Butler v. McKellar, 8. , 220 §.Ct.

1212, 108 L.Ed.2d 347 (1990). Rehearing

was denied on April 23, 1990.

Be Present Proceedings.

After the denial of the petition for

rehearing in this Court, Butler filed a

petition for writ of habeas corpus in the

Original jurisdiction of the Supreme Court

of South Carolina, styled Horace Butler v.

Parker Evatt, Commissioner of the South

Carolina Department of Corrections, and T.

Travis Medlock, Attorney General of South

Carolina. In the pleading, Butler con-

tended that the trial judge's comments to

Butler (out of the jury's presence) on how

a jury may or may not view a defendant's

decision not to testify was a violation of

his Fifth Amendment rights, relying upon

the decisions of the Supreme Court of

South Carolina in State v. Gunter, 286

S.C. 556, 335 S.E.2d 542 (1985); State v.

Pierce, 289 S.C. 430, 346 S.E.2d 707, 710

(1986); and State v. Cooper, 291 S.C. 332,

353 S.E.2d 441, 443 (1986). The State of

South Carolina made its Return to the

| 9

—euuu—————e

Petition on May 29, 1990, contending,

among other things, that the comments by

the trial judge did not violate his Fifth

Amendment rights to protect against com-

pelled self-incrimination because Butler

did not testify and the trial judge's

comments did not deprive him of a funda-

mentally fair trial.

On June 20, i990, the Supreme Court

of South Carolina entered its order grant-

ing the petition for writ of habeas cor-

pus. (Appendix A, pp. 35-40). The court

stated "although we do not condone the

delay in calling this grave constitutional

error to our attention, under the unique

and compelling circumstances of this case

we grant petitioner relief."

ae Pertinent Facts to these Pro-

ceedings.

The issue before this Court concerns

the 1981 trial judge's inquiry of Horace

| Butler concerning his decision not to

testify before the jury in the guilt phase

of his capital murder trial. The record

reveals that after the prosecution had

rested its case, the defense presented

three defense witnesses and then the

defense counsel expressed his desire to

conclude its case. Outside of the jury's

presence, the trial judge inquired of the

defendant, Horace Butler, as to whether he

understood his counsel's statement that he

did not intend to testify and whether he

agreed with that strategy. (Tr. p. 871,

1. 21 - p. 872, 1. 2). The court further

inquired of whether he understood his

right to not testify and his right to

testify. (Tr. OB. Gra, 2. 3 ~ Pp. UT7, I.

2). This colloquy is set forth in full at

Appendix B, pp. 41-50). Particularly, the

trial judge made the following inquiry:

Court: And you have discussed

in great detail, I assume, with

your lawyer the possible advan-

tages of not testifying, along

with the disadvantages of not

em OE 6 elimi! sats es ROE

nr anainne

PCY RAPA NN A IY A AAT Ala i ct te tes atta sates.

testifying, is that correct? In

other words, you have talked

about. the risk that you might be

running by not getting on that

witness stand, talked to your

lawyer about that, haven't you?

Mr. Hill: He doesn't understand,

Your Honor.

Court: All right. Let me

tell you this. Even though I am

going to tell the jury that they

are not to consider in any way

the fact that you don't testify,

I am going to instruct them not

even to mention it, not even to

say to each other "wonder why he

didn't testify." I tell you

that jurors are only human be-

ings and that there is a strong

risk that you will be prejudic-

ing your case by not testifying.

Are you aware of that?

A. Yes, sir.

Court: You are? And you are

willing to take that risk by not

testifying? Don't misunderstand

me, son. I don't mean to be

threatening you in any way. I

am trying to get some informa-

tion which is my job to elicit.

What I want to do is be sure

that you are satisfied with not

testifying.

Court Reporter: I didn't get

his answer.

Court: I understood him to say

yes, sir. I want you to tell

me, son, have you talked to your

lawyer about the fact that no

matter what you say to the jury

about what the law is, I cannot

erase from their minds the natu-

ral tendency of any human being

to wonder or wonder why the

defendant didn't testify. What

I am telling you is that you run

some risk by not testifying.

Are you aware of that risk?

Mr. Butler: Yes, sir.

(Te. p. S7i, A. 2S > Be Gray de 29).

(App. pp. 41-44). The trial court contin-

ued to make inquiry of Butler after a

recess where Butler consulted with his

attorney. In the extended inquiry in

which he tried to explain the risk he may

take by not testifying, Horace Butler

consistently maintained that he did not

want to testify. (Tr. pp. 875-877).

After the inquiry was over, the defense

rested without Mr. Butler testifying. The

trial judge, during his jury instruction,

then stated the following:

Mr. Foreman, ladies, and gentle-

men, the constitution of our

state provides that any person

who is brought to trial on char-

ges in this court may avail

himself of his constitutional

right to trial by jury and elect

not to testify in that case

himself. I tell you that any

person who elects to exercise

that constitutional right not to

testify is entitled to not have

that fact considered by the jury

which listens and makes the

decision as to his guilt or

(innocence). I am instructing

you that you would not in any

way consider in your delibera-

tions the fact that this defen-

dant has not testified. You

will not even mention it when

you go back to your jury room.

Put it from your mind and it

makes no difference anyhow be-

cause, as I have charged you,

the state has the responsibility

of proving the material elements

of the crime of murder.

(Tr. p. 945, 1. 16 - p. 946, 1. 4). The

jury subsequently convicted Butler of mur-

der. A sentencing proceeding was held in

which Butler continued to not testify.

During the argument, however, Butler chose

to make an unsworn argument pursuant to

South Carolina law to the jury as to why

the death penalty was not appropriate.

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(Tr. p. 1015). Sections 16-3-20(B), 16-3-

28, CODE OF LAWS OF SOUTH CAROLINA (1976).

HOW THE FEDERAL QUESTION WAS RAISED BELOW

In his recent habeas corpus proceed-

ings, Butler sought to challenge his

conviction for the first time because the

trial judge's comments violated his Fifth

Amendment rights as determined by the

State Supreme Court's prior decisions in

Gunter, supra; Pierce, supra; and Cooper,

supra. Further, he asserted that those

cases created an irrebuttable presumption

of prejudice in violation of a criminal

defendant's Fifth Amendment right not to

be compelled in a criminal case to be a

witness against himself when a trial judge

comments to a criminal defendant how a

jury may or may not view a defendant's

decision not to testify, citing Pierce,

346 S.E.2d at 710. In Pierce, the Supreme

Court of South Carolina stated:

Although Pierce did not testify,

he had the right to make that

decision free of any influence

Or coercion from the trial

judge. It is virtually impossi-

ble to determine the actual

effect the judge's improper

statements had on Pierce; but we

do not agree with the state's

position that, because Pierce

did not testify, the judge's

comments are harmless error.

Pierce, 346 S.E.2d at 710. He further

relied upon State v. Gunter, supra, in

which the Supreme Court of South Carolina

held "it is a violation of a defendant's

Fifth Amendment rights for a judge to make

comments on how a jury may or may not view

a defendant's decision not to testify."

Pierce, 346 S.E.2d at 710, citing Gunter.

In granting the petition for the

writ, the Supreme Court of South Carolina

concluded that the habeas request "is

based on the fact that at his trial, the

same trial judge [as in Gunter, Pierce,

and Cooper] committed this identical

error. If anything, the error here was

more egregious since it was subsequently

determined that petitioner is mentally

retarded ...." The Supreme Court of South

Carolina, finding that "petitioner seeks

to take advantage of constitutional prin-

ciples recognized after his trial, appeal,

and exhaustion of state post conviction

relief proceedings." granted habeas relief

on this "grave constitutional error under

the unique and compelling circumstances of

this case." (Appendix A, pp. 38-39).

REASONS WHY THE WRIT SHOULD BE GRANTED

The Fifth Amendment to the United

States Constituiton provides in part that:

"No person ... shall be compelled in any

criminal case to be a witness against

REMORSE sce” In United States v. Wash-

ington, 431 U.S. 181, 187 (1977), this

Court recognized that "absent some offi-

cially coerced self-accusation, the Fifth

Amendment privilege is not violated ...."

In conflict with the decisions of this

Court, other state courts and federal

courts of appeal, the Supreme Court of

South Carolina has erroneously interpreted

the Fifth Amendment to preclude judicial

comment to a criminal defendant of a risk

that a jury may wonder why a defendant did

not testify when determining whether he

understood his right to testify or not

testify. The lower court has further

struck new ground by placing this alleged

"grave constitutional error" with a pre-

sumption of prejudice where an appropriate

standard under this Court's precedent for

similar constitutional violations should

be subject to a harmless error analysis.

The lower court's decision shakes the

foundation of both the Fifth and Sixth

Amendments because it fails to recognize

that "whether the defendant is to testify

is an important tactical decision as well

as a matter of constitutional right."

Brooks v. Tennessee, 406 U.S. 605, 512

(1972). Certiorari should be granted to

ensure that the focus of the Fifth Amend-

ment right not to be compelled to be a

witness against himself is on whether the

defendant was officially compelled to be a

witness. Further, this Court should

establish that Fifth Amendment violations

are subject to an appropriate harmless

error analysis, particularly where such

comment did not change a defendant's

tactical decision.

i. The decision of the Supreme

Court of South Carolina conflicts with the

decisions of this Court and other state

and federal courts.

In Carter v. Kentucky, 450 U.S. 288,

302, n. 18 (1981), the United States

Supreme Court recognized that "it has been

universally thought that juries notice a

defendant's failure to testify" and that

"the layman's natural first suggestion

would probably be that the resort to

privilege is a clear confession of crime."

Importantly, in Carter, the court stated

the following principle:

A trial judge has a powerful

tool at his disposal to protect

the constitutional privilege --

the jury instruction -- and he

has an affirmative constitution-

al obligation to use that tool

when a defendant seeks its em-

ployment. No judge can prevent

jurors from speculating about

why a defendant stands mute in

the face of a criminal accusa-

tion, but a judge can, and must,

if requested to do so, use the

unique power of the jury in-

struction to reduce that specu-

lation to a minimum.

Carter, 450 U.S. at 303.

Here, the state trial judge properly

gave a "no influence" instruction required

by Carter. The perceived Fifth Amendment

problem solely derives by the trial

judge's comment to the defendant that

there was a risk the jury might wonder why

he did not testify. The state court

characterized this judicial comment of a

fact recognized by this Court in Carter to

be a Fifth Amendment violation and a

“grave constitutional error." Clearly, we

submit that such comment was no constitu-

tional error.

The problem with the state court

decision is that it refuses to acknowledge

the principle set forth in Carter that "no

judge can prevent jurors from speculating

about why a defendant stands mute in the

face of a criminal accusation." Id. When

the state trial judge made the comment

that there was a risk the jury may specu-

late about why he did not testify, it is

clear the judge was stating the principle

“universally recognized." In light of

the Court opinion in Carter, would it have

been appropriate for the trial judge to

tell a criminal defendant when he is

making his decision on whether to testify

that without any doubt the jury will not

speculate about why he failed to testify?

Clearly, that comment would be factually

wrong according to Carter. Here, the

trial judge essentially told t’e defendant

that by giving the no inference instruc-

tion he would reduce the risk of specula-

tion to a minimum. Such comment was in

accord with Carter and the Fifth Amend-

ment, particularly when a defendant,

through counsel, states he did not under-

stand the advantages and disadvantages of

not testifying.

Similarly, other state and federal

courts have rejected uniformly the ap-

proach adopted by the State Supreme Court.

In a case remarkably similar to the situa-

tion at hand, the Court of Special Appeals

of Maryland has held that a trial judge's

explanation of a defendant's right to

testify in which he acknowledged that the

juror might infer from defendant's failure

to testify that he was guilty, did not

constitute reversible error. Wooten-Bey

v. State, 547 A.2d 1086, (Md. App. 1988)

aff'd. 568 A.2d 16 (Md. 1990). In Wooten-

Bey,

dant:

the trial judge stated to the defen-

The Court ... let me see if I can

address it to you in layman's terms.

If you choose not to take the witness

stand, part and parcel of what goes

along with that is the possible dis-

advantage that someone on that jury

panel is going to say, look, this guy

is obviously guilty, because quilty

people hide. And innocent people are

willing to talk. That could happen

and all the judges' instructions in

America cannot overcome a person who

is of contrary mind, if you know what.

I mean. I sit there and say you

can't do this, and they say, the hell

I can't. So if you don't testify,

obviously one of the disadvantages

that could go along with not testify-

ing, it doesn't mean it will. If

they listen to my instructions to a

fare thee well and most jurors do.

It is my experience that they fol ow

judges' instructions right down the

line. Then that adverse part would

not play a part. I cannot tell you,

you are saying to me, but what is

this business about Harvey getting to

cross-examine me? Well, if you do

take the witness stand, Harvey, Mr.

Harvey will have the right to cross-

examine you. You may choose not to.

Although honesty impels me to say, I

can't conceive of that. Ibid. at

1093.

In Wooten-Bey, the defendant did take the

stand (unlike the instant situation in

Butler) and testify and the Court of

Appeals found that the issue before them

was "whether appellant was misled and

induced by the trial judge's explanation

into taking the stand, thus risking the

juror's exposure to his prior criminal

record." The court then found that the

defendant, from statements contained in

the trial record, had made the decision to

testify “long before the trial judge made

these allegedly erroneous comments" and

that therefore, in light of the fact that

the trial judge covered the basics, on

defendant's right not to testify and his

remarks, the trial judge did not err. The

trial judge's comments were not found to

be error in spite of the fact that the

defendant there did testify, while in the

instant case, Horace Butler did not testi-

fy just as he asserted he had chosen not

to testify prior to Judge Harris' alleged-

ly offensive remarks. Just as the court

in Wooten-Bey pointed out, if the remarks

of the trial judge do not sway the defen-

dant to a change of position, although his

statements may be inappropriate, no re-

versible error has been committed.

In the case of United States v.

Goodwin, 770 F.2d 631 at 637 (2nd Cir.

1985), the Court of Appeals found comments

by a trial judge that may have coerced the

defendant to testify allegedly in viola-

tion of the Fifth Amendment were a consti-

tutional violation but that the violation

was harmless beyond a reasonable doubt.

In Goodwin, the defendant upon question-

ing by the trial judge as to whether she

had decided not to testify responded "I

don't know what would be best. Most of

the things that have been brought out I

just don't know. I feel that would proba-

bly be best." 770 F.2d at 636. The

nconnLzA ~——Nm—— ———

defendant affirmed that she understood her

rights both to testify and not to testify

and asked to speak with her sons for a few

minutes. The judge's comments therein

included language as to whether the jury

) would be desirous of hearing her position

i of innocence, that he was surprised by her

decision about testifying and his impres-

sion was that she was going to maintain

her innocence and take the position that

the government witnesses were lying. The

nS be eA EPL Ne a mle NT oo ll

defendant later decided to testify,

against the advice of her attorney. The

Court of Appeals found that while they

were certain the defendant took the

judge's comments into consideration in

making her decision, her will was not

overborne.

Furthermore, even if the judge's

comments did compel Goodwin to testi-

fy, in violation of the Fifth Amend-

ment, we believe that the constitu-

tional error was harmless beyond a

reasonable doubt. Ibid at 637.

Again, as in Wooten-Bey, the effect of the

judge's comments, whether or not they were

actually coercive in nature, resulted in

the defendant's decision to testify,

whereas in the instant case, Horace Butler

steadfastly held firm to his original

decision, concurring in the advice of his

attorney, not to testify concerning the

facts and circumstances of his case in

front of the jury.

In a related case, People v. Phil-

lips, 542 N.E.2d 814 (Ill. App. 1989), the

appellate court of Illinois held that a

trial judge's requirement that the defen-

dant had to testify immediately after the

close of the state's case, if he were to

testify at all, though erroneous was

harmless error since the defendant had

already made his decision not to testify

prior to the trial as part of his defense

strategy with his attorneys concurrence

and therefore "there was no prejudice to

ia teaeelle

a ate Ae

the defendant as a result of this error."

542 N.E.2d at 819. Although the facts of

the case are different, the situation and

result are the same as in this case where

Butler had earlier made his decision not

to testify as part of the defense strategy

prior to the questioning by the judge and

stuck to that decision.

2. The presumption of prejudice

standard adopted by the State Supreme

Court is not the appropriate standard for

a Fifth Amendment violation when a defen-

dant does not testify.

Here, the state court concluded that

the mere statement by a trial judge to a

defendant that the jury may speculate why

he did not testify was reversible consti-

tutional error even though such comments

did not compel Butler to testify. In

doing so, it rejected a request for harm-

less error analysis under Chapman vv.

California, 386 U.S. 18 (1967), by apply-

ing a presumption of prejudice standard it

had earlier adopted in-State v. Pierce,

289 S.C. 430, 346 S.E.2d 707, 710 (1986).

This approach is in conflict with the

decisions of this Court and other federal

circuit courts.

In Wright v. Estelle, 572 F.2d 1071

(5th Cir. 1978), adhering to 549 F.2d 971

(5th Cir. 1977), the Fifth Circuit applied

the Chapman harmless error standard to a

question as to whether a defendant was

deprived of a constitutional right to

testify. More recently in U.S. v. Teaque,

908 F.2d 752 (llth Cir. 1990), the Elev-

enth Circuit applied a Chapman harmless

error analysis to whether Teague made a

knowing, voluntary, and intelligent waiver

of his right to testify. Similarly, in

Rogers-Bey v. Lane, 896 F.2d 279, 283 (7th

Cir. 1990), the court rejected a presump-

tion of prejudice standard while also

concluding the petitioner was not denied

his right to testify by trial counsel's

advice. Similarly, such a standard was

again rejected in U.S. v. Curtis, 742 F.2d

1070, 1075-76 (7th Cir. 1984), when that

court held that when a defendant persisted

in a desire to testify, but planned to

offer perjured testimony, a defendant's

right to testify was not violated when the

attorney failed to allow him to take the

witness stand. We have previously noted

the application of the Chapman test to

situations in Wooten-Bey, supra; U.S. v.

Goodwin, supra, and People v. Phillips,

supra. Also U.S. v. Arthur, 602 F.2d 660,

664 (4th Cir. 1979) (application of Chap-

man standard appropriate where interroga-

tion of advice about right not to testify

took place out of jury’s presence and had

no effect on the outcome of the trial).

The harmless error standard of Chap-

man, under which a reviewing court should

not set aside an otherwise valid convic-

a 2.

a ae

tion if the court may confidently say, on

the whole record, that the constitutional

error in question was harmless beyond a

reasonable doubt, should apply to judicial

comments about the effect a jury may give

to a failure to testify which do not

induce a defendant to testify. Here, it

was the developed strategy that Butler

would not testify which Butler has ac-

knowledged both at trial and in state post

conviction relief proceedings. Where the

prejudicial comments do not "compel" a

defendant to take the witness’ stand,

Clearly there has been no constitutional

violation of his Fifth Amendment right

mandating a new trial. Since Chapman,

this Court has repeatedly applied that

standard to a variety of constitutional

errors of similar magnitude. E.g., Rose

v. Clark, 478 U.S. 570 (1986) (erroneous

malice instructicn); Delaware v. Arsdall,

475 U.S. 673 (1986) (failure to permit

~ + eats ries

cross-examination concerning witness

bias); Rughen v. Spain, 464 U.S. 114, 118

(1983) (per curiam) (denial of right to be

present at trial); United States v. Hast-

ing, 461 U.S. 499, 508-509 (1983) (improp-

er comment on defendant's failure to

testity); Moore v. Illinois, 434 U.S. 220,

232 (1977) (admission of witness identifi-

cation obtained in violation of right to

counsel); Milton v. Wainwright, 407 U.S.

371 (1972) (admission of confession ob-

tained in violation of right to counsel);

Chambers v. Maroney, 399 U.S. 42, 52-53

(1970) (admission of evidence obtained in

violation of the Fourth Amendment). It is

only when constitutional errors either

aborted the trial process, as in Payne v.

Arkansas, 356 U.S. 560 (1958) (use of a

coerced confession), or denied it alto-

gether, as in Gideon v. Wainwright, 372

U.S. 335 (1963) (complete denial of coun-

sel); Tumey v. Ohio, 273 U.S. 510 (1927)

Pi anne leith tian ALN cs ankle a

(adjudication by a biased judge), that the

Court has concluded such errors could

never be harmless. While there are some

errors to which the harmless error stan-

dard does not apply, this is the exception

rather than the rule. Rose v. Clark,

supra, 478 U.S. at 578. Here, certiorari

is appropriate to resolve its applicabili-

ty to judicial comments which neither

compel testimony from a defendant nor

misstate universal facts recognized by

this Ccurt.

The State of South Carolina submits

that the granting of certiorari would

ensure that the purpose of the Self-In-

crimination Clause is maintained. That

purpose, we submit, is to "determine

whether the petitioner has been ‘compelled

to be a witness against himself. '

Compulsion is the focus of the inquiry."

Carter, supra, 450 U.S. 306 (Powell, J.,

concurring). As Justice Powell ciearly

stated: "A defendant who chooses not to

testify hardly can claim that he was

compelled to testify." Id. at 306. The

Supreme Court of South Carolina's determi-

i tt i at

nation to the contrary demands reconsider-

ation upon certiorari by this Court.

CONCLUSION

For all reasons set forth within the

petition, we respectfully request this

Court to grant our petition for certiora-~-

ri.

Respectfully submitted,

T. TRAVIS MEDLOCK

Attorney General

DONALD J. ZELENKA

Chief Deputy Attorney

General and Counsei

of Record

CHARLES MOLONY CONDON

| Solicitor, Ninth

Judicial Circuit

ATTORNEYS FOR

| PETIT ER

By: .

September 18, 1990

Columbia, South Carolyn

iii ell

APPENDIX A

THE SUPREME COURT OF SOUTH CAROLINA

: Horace Butler, Petitioner,

Vv.

The State of South Carolina, Respondent.

ORDER

Petitioner, a death row inmate, seeks

a writ of habeas corpus. After careful

consideration of the important issues

raised by his petition, and in light of

the unique circumstances involved in this

matter, we grant the writ.

Petitioner's conviction and sentence

were affirmed on direct appeal. State v.

Butler, 277 S.C. 452, 290 S.E.2d 1 (1982),

cert. denied, 459 U.S. 932 (1983). Three

years later we affirmed the denial of

petitioner's request for post conviction

relief. Butler v. State, 286 S.C. 44l,

334 S.E.2d 813 (1985), cert. denied, 474

U.S. 1094 (1986). Petitioner has now

exhausted his federal reviews.

Three and one-half years after peti-

tioner's direct appeal was affirmed, and

approximately one and a half months after

the decision in Butler v. State, this

Court issued its opinion in State v.

Gunter, 286 S.C. 556, 335 S.E.2d 542

(1985). In Gunter we held the trial judge

violated the defendant's fifth amendment

rights by coercing him to take the witness

stand in his defense. We deplored the

judge's warning that even though he would

charge the jury they could not consider

the defendant's failure to testify, the

jury would most likely ignore this in-

struction.

Subsequently, two capital cases

raising this issue came before us. In

State v. Pierce, 289 S.C. 430, 346 S.E.2d

707 (1986), and State v. Cooper, 291 S.C.

Oe eS

ee aye =

332, 353 S.E.2d 441 (1986), the same trial

judge made similar comments to each defen-

dant. Both defendants had chosen not to

testify, and neither was swayed by the

judge's comments. The State argued,

therefore, that any error was harmless

since the defendants were not prejudiced.

We rejected the suggestion that these

types of comments could ever constitute

harmless error, noting, “The comments by

the judge were erroneous, improper and

contrary to South Carolina law." state v.

Pierce, 289 S.C. at 434, 346 S.E.2d at

710.

Petitioner's request for habeas

corpus is based on the fact that at his

trial, this same trial judge committed

this identical error. If anything, the

error here was mcre egregious since it was

subsequently determined that petitioner is

mentally retarded.’ A review of the col-

logquy in light of this fact (unknown to

the trial judge at the time) raises seri-

ous questions whether petitioner even

understood the proceedings. Cf., State v.

Arthur, 296 S.C. 495, 374 S.E.2d 291

(1988) (valid waiver not established by

mentally retarded defendant's bare assent

to leading questions).

"The great and central office of the

writ of habeas corpus is to test the

legality of a prisoner's current deten-

tien.” Walker v. Wainwright, 390 U.S.

335, 88 S.Ct. 962, 19 L.Ed.2d 1215 (1968).

Here, petitioner seeks to take advantage

of constitutional principles recognized

after his trial, appeal, and exhaustion of

“Some evidence of petitioner's retar-

dation was produced at the sentencing

phase of his trial; the judge's comments

were made during the guilt phase. The

most recent testing indicates petitioner

has a Full Scale I.Q. of 61, a Verbal I.Q.

of 65, and a Performance I.Q. of 61.

Ciel sarees WA ee Oca

State post conviction relief proceedings.

We caution that not every intervening

decision, nor every constitutional error

at trial will justify issuance of the

writ. Rather, the writ will issue only

under circumstances where there has been a

"violation, which, in the setting, consti-

tutes a denial of fundamental fairness

shocking to the universal sense of jus-

tice." State v. Miller, 16 N.J.Super.

251, 84 A.2d 459 (1951) (emphasis added);

see also Uveges v. Commonwealth of Penn-

sylvania, 335 U.S. 437, 69 S.Ct. 184, 93

L.Ed. 127 (1948). Although we do not

condone the delay in calling this grave

constitutional error to our attention,

under the unique and compelling circum-

stances of this case we grant petitioner

relief.

Accordingly, the writ of habeas

corpus is granted. The matter is remanded

to the Charleston County Court of General

Sessions for a new trial.

IT IS SO ORDERED.

s/ George T. Gregory, Jr., C.J.

s/ David W. Harwell, A.J.

s/ A. Lee Chandler, A.J.

s/ Ernest A. Finney, A.J.

s/ Jean H. Toal, A.J.

ee Tare eee mT Sree nee Sot err e

Columbia, South Carolina

June 20, 1990

APPENDIX B

erate ot ath nate anne ets

THE COURT OF GENERAL SESSIONS

FOR CHARLESTON COUNTY, SOUTH CAROLINA

STATE OF SOUTH CAROLINA

Vv.

HORACE BUTLER

EXCERPTS FROM TRIAL

[871]

(Jury retires to the jury room.)

COURT: Mr. Butler, I want you to stand

up, please. Your lawyer tells me, as you

just heard him say, he does not intend for

you to testify in this case. You under-

stand that?

MR. BUTLER: Yes, sir.

COURT: Do you agree with your lawyer's

strategy in not [872] testifying?

’ MR. BUTLER: Yes, sir.

COURT: You know that the Constitution

of the United States and of South Carolina

both gives to anyone who is charged with a

crime, any crime, the right to be tried by

a jury which you have quite properly

elected to do, avail yourseif of, and to

stand that trial without having to get on

the witness stand and testify if that

defendant doesn't want to do so. You

understand that right?

MR. BUTLER: Yes, sir.

COURT: By the same token, you have

every right to testify and to tell your

side of it, to tell any circumstances

which you think would help you. You

understand that?

MR. BUTLER: Yes, sir.

COURT: And you have discussed in great

detail, I assume, with your lawyer the

possible advantages of not testifying,

along with the disadvantages of not testi-

fying, is that correct? In other words,

you have talked about the risk that you

might be running by not getting on that

witness stand, talked to your lawyer about

that, haven't you?

MR. HILL: He doesn't understand, Your

Honor.

COURT : All right. Let me tell you

this. Even though I am going to tell the

jury that they are not to consider in any

way the fact that you don't testify, I am

going to instruct them not even to mention

it, not even to say to each other [873]

“wonder why he didn't testify." I tell

you that jurors are only human beings and

that there is a strong risk that you will

be prejudicing your case by not testify-

ing. Are you aware of that?

A. Yes, sir.

COURT: You are? And you are willing to

take that risk by not testifying? Don't

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misunderstand me, son. I don't mean to be

threatening you in any way. I am trying

to get some information which is my job to

elicit. What I want to do is be sure that

you are satisfied with not testifying.

COURT REPORTER: I didn't get his

answer.

COURT : I understood him to say yes,

sir. I want you to tell me, son, have you

talked to your lawyer about the fact that

no matter what you say to the jury about

what the law is, I cannot erase from their

minds the natural tendency of any human

being to wonder or wonder why the defen-

dant didn't testify. What I am telling

you is that you run some risk by not

testifying. Are you aware of that risk?

MR. BUTLER: Yes, sir.

COURT : And you are willing to take that

risk in order to avoid going on the wit-

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ness stand and being cross examined by the

solicitor, is that right?

MR. BUTLER: I can't answer that.

COURT : Sir?

MR. HILL: He said he couldn't answer that.

[874] COURT: Well, you are going to

have to answer that before we proceed with

the trial. I want to know and be sure

that he has been thoroughly apprised of

what is about to transpire here and he

personally agrees with that course of

conduct. All right, let's start over

again. During lunch time you and your

lawyer talked about this case, didn't you,

son?

MR. BUTLER: Yes, sir.

COURT : And he talked about you not

testifying, did he? Tell me what you all

talked about at lunch. Wasn't it about

your case? Mr. Hill, I am going to ask

you to take your client somewhere private-

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ly and talk to him so that he can properly

answer my questions. :

MR. HILL: All right.

COURT : I am sure you have already done

so. I am not suggesting that you haven't.

Advise him of what I am trying to do. I

am not trying to get him to change his

mind or do anything, but I am not going to

waste three days of my time and yours and

these jurors by having him say I don't

know. I can't make up mind or not. He is

going to have to tell me something before

we proceed with the trial.

MR. HILL: He wants to go in the room

with me, Your Honor.

COURT : Certainly. that is what I

meant. But you understand what I mean,

Mr. Hill.

MR. HILL: Yes, sir.

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COURT : I want him to tell me that he

has discussed it [875] with you and he

agrees not to testify.

(Mr. Hill and Mr. Butler leave the court-

room. ) "i

(Mr. Hill and Mr. Butler return to the

courtroom. )}

COURT : Mr. Butler, let me talk with you

further, if you will. While ago you heard

the lawyer say that is the defendant's

case. You heard him say that. That means

that you are not going to testify. You

understand that?

MR. BUTLER: Yes, sir.

COURT: Means you are not going to come

around here and sit down there and tell

that jury your side of this controversy.

You are not going to get a chance to say

"I didn't do it; I wasn't around there" or

say anything like that. Do you understand

that? You have talked to your lawyer

a ee ee Bia Be Be a ie ed oe)

about that procedure, didn't you, about

you not testifying?

MR. BUTLER: Yes.

COURT : Before he told me that is the

defendant's case, you ail had already

talked about that, right?

MR. BUTLER: Yes, sir.

COURT: Now, do you agree with your

lawyer that you ought not to testify in

this case?

MR. BUTLER: Yes, sir.

COURT : Do you know that, as I just

finished telling you, there is a serious

risk involved in that procedure because

human beings are naturally going to wonder

why he didn't testify. Are you aware of

that?

[876}

MR. BUTLER: Yes, sir. I ain'c guilty.

COURT : I am not arguing with you about

that, son. It is just like. for instance,

if a couple of fellows stand around and

one of them accuses the other one of doing

something and that one never says a word,

makes you wonder, doesn't it, wonder why |

he didn’. deny that he did it. That

fellow accused him of doing it and he

wouldn't deny it. It would raise a ques-

tion in your mind, wouldn't it?

MR. BUTLER: Say that over again.

COURT: . Suppose you and I are out here,

not in court, anywhere else, but I walk up

to you and say, "Dad gum it, Horace, you

stole my wallet," and you don't say a

word. I say, "Dad gum it, I say you stole

my wallet," and you don't say a word. A

fellow standing over here and listening to

us is going to think you stole my wallet,

isn't he, because he will think if Horace

didn't do it, he is going to say I didn't

do it. See what I mean?

MR. BUTLER: Yes, sir.

—_

ma |

COURT : All right. That risk is what

you are taking with this jury, even though

I tell them they can't do that. They

might do it anyhow and I have got no way

of controlling them, once they go in the

jury room. Do you understand? -

MR. BUTLER: Yes, sir.

COURT : And are you now being advised of

that risk, satisfied with the position

which your lawyer and you have agreed

[877] on not to testify in this case?

MR. BUTLER: Yes, sir.

COURT: All right. Thank you. Be

seated.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.