State v. Smith

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Oran Smith, Appellant.

Appellate Case No. 2009-148486

Appeal From Charleston County
R. Markley Dennis, Jr., Circuit Court Judge

Unpublished Opinion No. 2013-UP-428
Heard October 9, 2013 – Filed November 20, 2013

AFFIRMED

LaNelle Cantey DuRant, of Columbia, for Appellant.

Attorney General Alan McCrory Wilson, Chief Deputy
Attorney General John W. McIntosh, Senior Assistant
Deputy Attorney General Donald J. Zelenka, Assistant
Attorney General Brendan Jackson McDonald, all of
Columbia, and Solicitor Scarlett Anne Wilson, of
Charleston, for Respondent.

PER CURIAM: After the jury was unable to reach a verdict in his first trial, Oran
Smith was convicted of murder in his second trial and sentenced to thirty years'
imprisonment. On appeal, Smith argues the judge presiding over his second trial
erred in denying his request for a Jackson v. Denno1 hearing on the voluntariness
of his statement, relying instead on the Jackson v. Denno hearing held in the first
trial. We affirm.

In June 2009, Smith first stood trial for the June 2007 murder of Cheryl Snow
before Judge Harrington. After the jury was selected in that trial, but prior to the
jury being sworn, the trial court held a Jackson v. Denno hearing, at which time
Smith sought to exclude one of his statements to police wherein he admitted he
strangled Snow. In considering the totality of the circumstances, the trial court
found Smith freely and voluntarily gave his statement to police, and this statement
was thereafter admitted into evidence over Smith's objection. The jury was unable
to reach a verdict in Smith's first trial, resulting in a mistrial. In December 2009,
Smith was retried for Snow's murder with the same two attorneys representing
Smith and the same two solicitors presenting the State's case. However, Judge
Dennis presided over the retrial. After the jury was chosen, but again prior to
being sworn, trial counsel sought a Jackson v. Denno hearing. Finding Judge
Harrington had already ruled on the admissibility of the statement in a Jackson v.
Denno hearing prior to the first trial, Judge Dennis declined to hold another
hearing on the matter.

On appeal, Smith contends Judge Dennis erred in denying his request for a second
Jackson v. Denno hearing at his December 7, 2009 trial, after his first trial ended in
a mistrial. We find no reversible error.

A defendant in a criminal case is entitled to a reliable determination as to the
voluntariness of his statement in an independent evidentiary hearing, by a tribunal
other than the jury charged with deciding his guilt or innocence, prior to the
submission of such statement to the jury. State v. Parker, 381 S.C. 68, 84, 671
S.E.2d 619, 627 (Ct. App. 2008); State v. Creech, 314 S.C. 76, 84, 441 S.E.2d 635,
639 (Ct. App. 1994). This evidentiary hearing must be conducted outside the
presence of the jury, where the State must show the statement was voluntarily
made by a preponderance of the evidence. State v. Simmons, 384 S.C. 145, 162,
682 S.E.2d 19, 28 (Ct. App. 2009). Upon examining the totality of circumstances
surrounding the statement, the circuit court must determine whether the State has

1
378 U.S. 368 (1964).
carried its burden of proving the statement was given voluntarily. Id. Here, a
lengthy, independent evidentiary hearing was conducted by Judge Harrington, a
tribunal other than the jury charged with deciding Smith's guilt or innocence, and it
was conducted outside the presence of the jury. After considering the totality of
the circumstances, Judge Harrington determined the statement in question was
freely and voluntarily given by Smith. Further, the law is clear that the proper
remedy for the denial of a Jackson v. Denno hearing on the voluntariness of a
statement is not a new trial, but is a remand for a Jackson v. Denno hearing on the
voluntariness of the statement. See State v. Primus, 312 S.C. 256, 258, 440 S.E.2d
128, 129 (1994) (remanding the matter to the circuit court for a Jackson v. Denno
hearing since determination of whether appellant was "in custody" presents a
factual issue); Creech, 314 S.C. at 86-87, 441 S.E.2d at 640-41 (holding, when the
trial court failed to hold a Jackson v. Denno hearing to determine the voluntariness
of a statement, neither the Constitution nor the Jackson v. Denno decision
mandated a new trial, if, in a soundly conducted collateral proceeding, the
appellant's confession was determined to be voluntary; the appropriate remedy was
not a new trial, but to remand the matter for a suppression hearing); State v.
Fortner, 266 S.C. 223, 227, 222 S.E.2d 508, 510 (1976) (holding, where the judge
declined to hear any evidence on behalf of appellant concerning circumstances
surrounding his confession, appellant was denied a reliable determination of the
voluntariness of his confession and was entitled to a new hearing on the issue of
voluntariness, and therefore remanding the case "to the Court of General Sessions
[for that county] to hold a hearing before any judge having jurisdiction in that
circuit for a determination of the voluntariness of appellant's confession")
(emphasis added); see also State v. Miller, 367 S.C. 329, 337-38, 626 S.E.2d 328,
332 (2006) (holding, where the trial court improperly denied Miller an in camera
identification hearing, this court properly determined Miller was not entitled to a
new trial, but was entitled to a remand for the purpose of conducting an in camera
hearing on the identification). Here, Smith has already received a proper hearing
on the matter, and there is no assertion by him that any new circumstances
warranted a new hearing or that he would have presented any different evidence in
a new hearing. Because he would only be entitled to a remand for a Jackson v.
Denno hearing, to be heard by any judge having jurisdiction in that circuit, and he
has already received the same, we find no prejudicial error. See State v. Black, 400
S.C. 10, 16-17, 732 S.E.2d 880, 884 (2012) ("To warrant reversal, an error must
result in prejudice to the appealing party.").

AFFIRMED.

HUFF, GEATHERS, and LOCKEMY, JJ., concur.