Anderson v. State

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Moses Anderson,       
Appellant,

v.

State of South Carolina,       
Respondent.

Appeal From York County

 Howard P. King, Circuit Court Judge

Unpublished Opinion No. 2003-UP-130

Submitted January 10, 2003 – Filed February 19, 2003

APPEAL DISMISSED

Chief Attorney Daniel T. Stacey, of Columbia; for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh and Assistant Deputy Attorney General B. Allen Bullard,
all of Columbia; for Respondent.

PER CURIAM:  Moses Anderson appeals his
conviction for murder, arguing that the state failed to prove his indictment
was true-billed.  Pursuant to Anders v. California, 386 U.S. 738 (1967),
Anderson’s counsel attached a petition to be relieved as counsel to the final
brief, stating she reviewed the record and concluded this appeal lacks merit. 
Anderson filed a separate pro se brief, in which he argues that even
if the State proved that the grand jury true-billed his indictment, the trial
court lacked subject matter jurisdiction because the indictment returned by
the grand jury failed to allege the element of intent.  We dismiss [1] Anderson’s appeal and grant counsel’s
motion to be relieved. 

FACTS/PROCEDURAL HISTORY

A jury found Anderson guilty of murder in 1985, and
he was sentenced to life in prison. In 1998, Anderson filed a writ of mandamus
in which he alleged that the trial court lacked subject-matter jurisdiction
to convict him.  The state moved the circuit court for summary dismissal, and
the circuit court granted the motion. Anderson appealed, and our court remanded
the case for a hearing into subject-matter jurisdiction because the indictment,
although signed by the forelady of the jury, did not indicate whether or not
it was true-billed.

At the subject matter jurisdiction hearing, the State
presented two witnesses.  Its first witness was Darvin Dover who was an employee
of the police department and who presented criminal cases to the grand jury
at time of Anderson’s indictment. Dover testified that he put a checkmark on
the file of every case that was true-billed and that Anderson’s file had such
a checkmark. The State’s second witness was Robin Shillinglaw, who was the forelady
of the grand jury in 1985. Although Shillinglaw admitted that she had no individual
recollection of Anderson’s case, she testified that during her period on the
grand jury, the members only no-billed one case, and that involved drugs or
alcohol, not murder.

The circuit court found that this circumstantial evidence
was sufficient to meet the state’s burden of proving by a preponderance of evidence
that a true bill was returned on the indictment against Anderson. Anderson appeals.

ISSUE

Anderson argues the State failed
to prove that his indictment was true-billed by the grand jury.  Without a true-billed
indictment, the circuit court did not have subject matter jurisdiction to convict
him of murder.

“A facial irregularity in an indictment does not
render the indictment invalid where the indictment is in writing and published
by the clerk.”  State v. Bultron, 318 S.C. 323, 328, 457 S.E.2d 616,
619 (Ct. App. 1995) citing Pringle v. State, 287 S.C. 409, 339
S.E.2d 127 (1986).  The failure to stamp “true bill” may be considered a scrivener’s
error where other evidence indicates that the indictment was true-billed.  Bultron,
318 S.C. at 329-330, 457 S.E.2d at 620.    Absent evidence to the contrary,
proceedings in a court of general jurisdiction will be presumed regular.  Pringle,
287 S.C. 409, 339 S.E.2d 127.

In this case, a law enforcement officer testified
that he was present in the courtroom when the indictments were returned by the
grand jury and that he made a checkmark on Anderson’s folder to indicate Anderson’s
indictment had been true-billed.  In addition to this testimony, the forelady
of the grand jury testified that she remembered only no billing one indictment
and that the no-billed indictment was not a murder case. 

Because
it is evident from the record that 1) the subject indictment is in writing and
signed by the grand jury forelady; 2) the State presented circumstantial evidence
that the indictment was true billed; and 3) no evidence presented suggested
the indictment was no billed, we agree with the circuit court that Anderson’s
indictment was true-billed.  Thus, the circuit court had jurisdiction to convict
Anderson.

PRO SE ISSUE

In his pro se brief, Anderson argues that
the circuit court lacked subject matter jurisdiction because the indictment
returned by the grand jury failed to allege the element of intent.  However,
the body of Anderson’s indictment states that “the Grand Jurors of York County
present upon their oath that Moses Anderson, Jr. did with malice aforethought
. . . kill one Leroy Hemphill[.]”  Malice aforethought is defined as “an intent,
at the time of a killing, willfully to take the life of a human being, or an
intent willfully to act in callous and wanton disregard of consequences to human
life[.]”  Black’s Law Dictionary 957 (6th ed. 1990).  Therefore, Anderson’s
indictment alleged the element of intent, and the circuit court had subject
matter jurisdiction to convict Anderson.

CONCLUSION

We dismiss Anderson’s appeal and grant counsel’s motion to be relieved.         

APPEAL DISMISSED.

[1] We decide this case without oral argument pursuant
to Rule 215, SCACR.