State v. Byers

FACTS

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE
239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State,       
Respondent,

v.

Charles B. Byers,       
Appellant.

Appeal From Berkeley County

Daniel  F.  Pieper, Circuit Court Judge

Unpublished Opinion No.  2005-UP-018

Submitted December 1, 2004 – Filed January
13, 2005

AFFIRMED

Assistant Appellate Defender Robert M. Dudek, Office of Appellate
Defense and Jeffrey P. Bloom, both of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka,
all of Columbia; and Solicitor Ralph E. Hoisington, of Charleston, for Respondent.

PER CURIAM:  Charles B. Byers appeals a
circuit court’s determination that his indictment sufficiently conferred subject
matter jurisdiction.  We affirm. [1]

FACTS

In December 1999, Byers was convicted of murder
and sentenced to life imprisonment.  Subsequently, Byers appealed the conviction
to this Court.  In State v. Byers, 2002-UP-486 (Ct. App. 2002), we remanded
the case for an evidentiary hearing to determine whether the circuit court possessed
subject matter jurisdiction in light of the fact that the indictment in the
record did not indicate whether it was true billed. 

The remand hearing was held on December 12, 2002. 
The circuit court considered a variety of evidence, including indictments, testimony
from Carla D. Hartley, grand jury foreperson at the time of the disputed indictment,
and Sharon Cato, an employee in the county clerk of court’s office. 

There are two indictments that are relevant to
the current appeal.  The First is signed by Hartley, and contains the notation
“true” underneath the heading “VERDICT.”  This indictment includes a
date of “6/30/99.”  The second indictment is also signed by Hartley, but underneath
“VERDICT” the word “guilty” appears.  Beside “guilty” is the date “12/8/99.” 
Below these entries is the signature of the petit jury foreperson.  The circuit
court noted that two copies of the indictment existed because the original indictment
was redacted to omit the word “true” for petit jury use. 

Hartley testified she was not the regular grand jury
foreperson, but served in the absence of the previously appointed foreperson. 
Although she did not have an independent recollection of Byers’ indictment,
Hartley testified it was her signature and explained that during the grand jury
process, she wrote either “true” or “no” on each indictment to signify whether
it was “true billed” or “no billed.”  Specifically, when questioned as to what
the word “true” signified, Hartley responded that “[i]t meant that the entire
grand jury had voted that this particular case was a true bill.”

Hartley was also questioned about the role a bailiff
played in the grand jury proceedings.  She explained that when she got to court
and discovered she would be foreperson, “the bailiff was the one that brought
me the information and told me what to . . . do and how to sign [the indictment].” 
Later, she clarified that after the bailiff told her how to proceed and sign
the documents, he left the room, did not reappear until the grand jury was finished
deliberating, and only returned to usher in the next law enforcement officer. 

LAW/ANALYSIS

Byers contends the circuit court erred in finding
the State carried its burden of proof in showing the indictment properly vested
the court with subject matter jurisdiction.  He further contends the grand jury
proceedings were improper because of irregularities involving the role of the
bailiff in those proceedings.  We disagree.

Typically, “a circuit court does not have subject
matter jurisdiction to hear a guilty plea unless the defendant has been indicted
by a grand jury or has waived presentment.”  State v. Grim, 341 S.C.
63, 66, 533 S.E.2d 329, 330 (2000).  The lack of subject matter jurisdiction
may be raised at any time.  Id. at 66, 533 S.E.2d at 330.  In this case,
Byers did not waive presentment and he asserts irregularities in the indictment
process.  Proceedings in a court of general jurisdiction, however, will be presumed
regular absent evidence to the contrary.  Pringle v. State, 287 S.C.
409, 410-11, 339 S.E.2d 127, 128 (1986).

In Byers first appeal we were unable to determine
from the record if the indictments were properly true billed and accordingly,
we remanded the case to the trial court for that determination.  See
generally Anderson v. State, 338 S.C. 629, 633, 527 S.E.2d 398,
400 (Ct. App. 2000) (“It is appropriate to remand to the trial court for a determination
when there is not sufficient evidence for the court to determine if the indictment
was true billed.”).  The trial court heard evidence from the jury foreperson
and determined the indictment was properly true billed.  Byers argues the trial
court erred in ruling the State carried its burden of proof, and that such burden
is by clear and convincing evidence.

Multiple South Carolina cases have been remanded
for a determination of whether an indictment was true billed, yet none of these
has enunciated the burden of proof the State is required to meet.  Byers asserts
the burden is by clear and convincing evidence and that this standard is supported
by language from Grim that “caution must be exercised to ensure the presence
of subject matter jurisdiction.”  Grim, 341 S.C. at 66, 533 S.E.2d at
330.  The State, on the other hand, urges the court to adopt a preponderance
of the evidence standard.  Because it is unnecessary to our decision in this
case, we decline to adopt any specific standard as the evidence in this case
fulfills either.

In Pringle, an indictment was stamped “true
bill,” but did not contain the foreperson’s signature.  Pringle, 287
S.C. at 410, 339 S.E.2d at 128.  The court pointed to testimony by the foreperson
that rather than signing the indictment, the usual procedure was to have the
clerk publish the indictment in open court after the grand jury returned a true
billed indictment.  Id. at 411, 339 S.E.2d 128.  The court determined
the foreperson’s signature was not essential to the validity of an indictment. 
Id. at 410, 339 S.E.2d 128.

Anderson involved an indictment that did
not contain the term “true bill.”  Anderson, 338 S.C. at 632, 527 S.E.2d
at 399.  The court remanded the case to determine if subject matter jurisdiction
existed because no evidence demonstrated that the indictment was true billed.  
Id. at 633, 527 S.E.2d 400. 

Unlike Anderson, the record in Bultron,
contained extensive evidence that the grand jury true billed an indictment that
was not otherwise marked as true billed.  Id. at 328, 457 S.E.2d at 619. 
The record contained testimony from the county docket coordinator that during
the term containing the Bultron indictment, the grand jury true billed
every proposed indictment.  Id. at 329, 457 S.E.2d at 619-20.  This testimony
was corroborated by the testimony of the court reporter present when the findings
of the grand jury were announced and a legal secretary for the county.  Id.

This case is factually similar to Bultron,
in that there is uncontroverted testimony by an individual involved in the process
that this indictment was true billed.  This testimony comes from the actual
grand jury foreperson, who testified that the indictment was signed by her,
marked “true” by her, and that by marking “true,” she signified the indictment
was true billed.  This evidence proves by either standard that this indictment
was properly true billed.

During the hearing on remand, there was also testimony
that the bailiff provided directions to the grand jury foreperson.  Byers argues
such direction constitutes active participation by the bailiff in the grand
jury process, and that advice to the grand jury should only come from a judicial
official.  After a thorough review of the record, we find the bailiff’s directions
were administrative in nature and made necessary by the fact the normal grand
jury foreperson was absent.  The directions were given within the first few
minutes of the jury coming together and the foreperson made it clear in her
testimony that the bailiff was never a part of deliberations.  We find these
actions to have caused no prejudice.

CONCLUSION

Based on the foregoing,
the circuit court’s order is

AFFIRMED.

HEARN, C.J., GOOLSBY and WILLIAMS,
JJ., concur.

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