State v. Kester

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.

James Kester, Appellant.

Appellate Case No. 2018-001852

Appeal From Richland County
Clifton Newman, Circuit Court Judge

Unpublished Opinion No. 2021-UP-259
Heard May 3, 2021 – Filed July 7, 2021

AFFIRMED

Dayne Phillips, of Price Benowitz, LLP, of Columbia, for
Appellant.

Attorney General Alan McCrory Wilson, Assistant
Attorney General Joshua Abraham Edwards, and
Solicitor Byron E. Gipson, all of Columbia, for
Respondent.

PER CURIAM: James Kester appeals his convictions for eight counts of first-
degree assault and battery and one count of third-degree assault and battery. We
affirm.
1. The circuit court did not abuse its discretion in not ordering a competency
evaluation after being informed Kester had been found competent to stand trial in a
prior evaluation and after observing Kester in a lengthy colloquy regarding his
decision to represent himself. See State v. White, 364 S.C. 143, 147, 611 S.E.2d
927, 929 (Ct. App. 2005) ("[T]he decision of whether to order a competency
examination is within the discretion of the trial judge, whose decision will not be
overturned absent a clear showing of abuse of discretion."); State v. Barnes, 407
S.C. 27, 35-36, 753 S.E.2d 545, 549-50 (2014) (holding the required competency
to waive the right to counsel is the same as that required to stand trial);
McLaughlin v. State, 352 S.C. 476, 481, 575 S.E.2d 841, 843 (2003) ("The test for
competency to stand trial or continue trial is whether the defendant has the
sufficient present ability to consult with his lawyer with a reasonable degree of
rational understanding and whether he has a rational, as well as a factual,
understanding of the proceedings against him.").

2. We affirm the circuit court's decision to grant Kester's motion to represent
himself as Kester was aware of his right to counsel, chose to have his attorneys
remain as standby counsel, and the circuit court repeatedly cautioned Kester about
the dangers of self-representation. See State v. Samuel, 422 S.C. 596, 602, 813
S.E.2d 487, 490 (2018) ("Whether a defendant has knowingly, intelligently, and
voluntarily waived his right to counsel is a mixed question of law and fact which
appellate courts review de novo."); State v. Dial, 429 S.C. 128, 133, 838 S.E.2d
501, 504 (2020) ("The Sixth Amendment to the United States Constitution
guarantees an accused's right to the assistance of counsel. A defendant may waive
his right to counsel, but he must do so knowingly and intelligently."); id. ("For a
knowing and intelligent waiver to occur, the defendant must be '(1) advised of
his right to counsel; and (2) adequately warned of the dangers of self-
representation.'" (quoting Prince v. State, 301 S.C. 422, 423-24, 392 S.E.2d 462,
463 (1990))); Samuel, 422 S.C. at 603-04, 813 S.E.2d at 491 ("Although a
defendant's decision to proceed pro se may ultimately be to his detriment, such
requests 'must be honored out of that respect for the individual which is the
lifeblood of the law.'") (quoting Barnes, 407 S.C. at 35-36, 753 S.E.2d at 550)).

3. Because Kester does not demonstrate he was prejudiced in regards to his use of
peremptory strikes, there is no reversible error. See State v. Patterson, 367 S.C.
219, 224, 625 S.E.2d 239, 242 (Ct. App. 2006) ("In order for an error to
warrant reversal, the error must result in prejudice to the appellant."); State v.
Rayfield, 369 S.C. 106, 113-14, 631 S.E.2d 244, 248 (2006) (explaining prejudice
may be presumed in certain cases involving Batson1 challenges but generally a
defendant has no right to a particular jury), abrogated on other grounds by State v.
Stukes, 416 S.C. 493, 787 S.E.2d 480 (2016); Wilson v. Childs, 315 S.C. 431, 439,
434 S.E.2d 286, 291 (Ct. App. 1993) ("There is no reversible error in the
[e]mpaneling of a jury unless it appears that the objecting party was prejudiced.");
Moore v. Jenkins, 304 S.C. 544, 547, 405 S.E.2d 833, 835 (1991) ("[W]ith regard
to errors in the empaneling of juries, this [c]ourt has previously stated in reviewing
such errors that, 'irregularities in the empaneling of the jury will not constitute
reversible error unless it affirmatively appears that the objecting party was
prejudiced thereby.'" (quoting S. Welding Works, Inc. v. K & S Constr. Co., 286
S.C. 158, 162, 332 S.E.2d 102, 105 (Ct. App. 1985))).

4. We find the circuit court's Allen2 charge was not unconstitutionally coercive as
the circuit court was not made aware of the division of jurors and its charge did not
impermissibly address the minority jurors. Additionally, the charge did not
admonish jurors that they must reach a verdict, and the charge cautioned jurors
they should not give up their opinions simply in order to arrive at a verdict. See
Green v. State, 351 S.C. 184, 194, 569 S.E.2d 318, 323 (2002) ("A trial judge has a
duty to urge, but not coerce, a jury to reach a verdict."); Workman v. State, 412
S.C. 128, 130-31, 771 S.E.2d 636, 638 (2015) ("The four factors adopted by this
[c]ourt in Tucker [v. Catoe, 346 S.C. 483, 552 S.E.2d 712 (2001)], to determine
whether an Allen charge is unconstitutionally coercive are: (1) Does the charge
speak specifically to the minority juror(s)? (2) Does the charge include any
language such as 'You have got to reach a decision in this case'? (3) Is there an
inquiry into the jury's numerical division, which is generally coercive? [and] (4)
Does the time between when the charge was given, and when the jury returned a
verdict, demonstrate coercion?"); Green, 351 S.C. at 195, 569 S.E.2d at 323-24
(2002) (finding an Allen charge appropriate when the charge "adequately and
correctly told the jurors they should listen to what the other side had to say; to be
open to change one's mind; and to not change one's mind if it would do violence to
one's conscience"); but see State v. Taylor, 427 S.C. 208, 214, 829 S.E.2d 723, 727
(Ct. App. 2019) ("South Carolina approves the use of a modified Allen charge,
which must be neutral and even-handed, instruct both the majority and minority to
reconsider their views, and cannot be directed at the jurors in the minority."); Id. at
218, 829 S.E.2d at 729 (finding the Tucker factors are not exclusive and the trial
court's failure to emphasize jurors "should not surrender their conscientiously held
beliefs simply for the sake of reaching a verdict" in addition to its statements

1
Batson v. Kentucky, 476 U.S. 79 (1986).
2
Allen v. United States, 164 U.S. 492 (1896).
regarding the expense of retrying the case constituted a coercive charge).

5. We conclude the circuit court's sentencing Kester to the maximum amount of
time for each conviction to run consecutively was not an unconstitutional de facto
life sentence simply because Kester is an older defendant. His sentences are parole
eligible and his actions of driving a car into a crowd of innocent people warranted
significant punishment. See State v. Finley, 427 S.C. 419, 423, 831 S.E.2d 158,
160 (Ct. App. 2019) (stating when considering whether a sentence constitutes cruel
and unusual punishment, "this court will not disturb the circuit court's findings
absent a manifest abuse of discretion"); Major v. S.C. Dep't of Prob., Parole &
Pardon Serv. .384 S.C. 457, 465-66, 682 S.E.2d 795, 799-800 (2009) ("A
c ourt's final judgment in a criminal case is the pronouncement of the
sentence[,] which includes the ability to designate whether sentences run
concurrent or consecutive, subject to statutory restrictions."); Thompson v.
S.C. Dep't of Pub. Safety, 335 S.C. 52, 56-57, 515 S.E.2d 761, 763-64 (1999)
(explaining when a drunk driver injured multiple victims in a single car crash,
it is "simply incorrect to assert that [the driver] committed only a single
offense—he committed only one type of offense. . . . [W]e do not believe [the
driver] is entitled to be rewarded by concurrent suspensions simply because he
fortuitously seriously injured three people in one accident rather than injuring
each in a separate accident.").

AFFIRMED.

KONDUROS, GEATHERS, and MCDONALD, JJ., concur.