State v. Clark

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State,       
Respondent,

v.

Fredward T. Clark,       
Appellant.

Appeal From Horry County

Sidney T. Floyd, Circuit Court Judge

Unpublished Opinion No.  2003-UP- 077

Submitted January 13, 2003 – Filed January 28, 2003

AFFIRMED

Assistant Appellate Defender Robert M. Dudek, of Columbia; for Appellant.

Attorney General Henry Dargan McMaster, Chief
Deputy Attorney General John W. McIntosh, Assistant, Deputy Attorney General
Donald J. Zelenka, Assistant Attorney General Derrick K. McFarland, all of Columbia;
John Gregory Hembree, of Conway; for Respondent.

PER CURIAM: Fredward T. Clark was convicted
of murder, criminal conspiracy, and possession of a weapon during a violent
crime. He was sentenced to imprisonment for a term of forty years for murder,
and to two concurrent five-year terms for conspiracy and possession of a weapon
during a violent crime. Clark appeals the convictions, arguing the trial court
erred in refusing to suppress a statement he made to law enforcement officials. 
We affirm.

FACTS AND PROCEDURAL HISTORY

On the morning of December 18, 1999, Michael Smalls
met with Clark outside of Clark’s apartment.  During the visit, Clark’s mother
came by and told Clark she had been in an argument with James Wilson, who had
slapped her in the face and held a gun to her head. After his mother left, Clark
went with Smalls to Smalls’s home where the two played video games and talked
about Wilson hitting Clark’s mother.  Eventually, Clark asked Smalls for his
pistol, and Smalls gave him a handgun.

After Clark loaded the gun with bullets, he and Smalls
went looking for Wilson. They found Wilson in the backyard of a nearby residence. 
Clark told Smalls he wanted to speak with Wilson and Smalls began walking back
toward his own residence.  A short time later, Smalls heard gunshots in the
distance. Ten minutes later, Clark reappeared at Smalls’s home and the two played
more video games. Clark told Smalls he had walked up to Wilson, said “God bless,”
and shot him.

On the same day as the events recounted above, Beverly
and Anthony Parson invited several friends and family members to their home
for a cookout.  Wilson was one of the guests.  He was upset when he arrived
at the Parsons’ home, but later calmed down.

Ms. Parson was inside her home when she heard what
she thought was fireworks.  When she went to the door, she saw Wilson lying
facedown on the ground and a man wearing a mask standing over his body.  Although
she pleaded with the shooter not to kill Wilson, the shooter shot the victim
again then fled the scene. Wilson died from his wounds, which included three
shots to the head and one in the back.

Lieutenant Charles Sessions, the officer who investigated
the shooting, interviewed Clark on three separate occasions.  On the day of
the shooting, Clark voluntarily went to the Conway Police Department with Officer
Sessions and was given his Miranda [1] warnings. Clark did not admit any culpability
for the shooting during the interview.

Sessions and Captain Larry Alan Schilling next
interviewed Clark on April 25, 2000, the date of Clark’s arrest.  Clark was
again given his Miranda warnings. During the interview, Schilling advised
Clark that “the penalty is up to a judge and jury to decide; there are two things
here.  There’s life imprisonment or there’s death, and that’s what you’re facing,
one of these two things.” Schilling also told Clark that he “might be looking
at the death penalty unless we’ve got your side of the story . . . because that’s
what’s going to help you in the long run, to explain what happened, why it happened
. . . the truth will set you free.” Shilling also mentioned to Clark that a
voluntary or involuntary manslaughter charge might be available if Clark told
his side of the story, but noted that a solicitor would determine the charges. 
In addition, Sessions told Clark that a five or ten year sentence was possible
if he “would just tell his side of the story.” Clark again denied any involvement
in the shooting.

At Clark’s request, another interview was conducted
on May 5, 2000. Clark was again given his Miranda warnings, and orally
waived them.  During the interview, Clark admitted he shot Wilson because he
believed Wilson slapped his mother and pointed a gun at her head. He indicated
that no promises were made to him during the interview.

Prior to trial, Clark’s counsel moved to suppress his
May 5, 2000 statement to police, arguing the statement was the product of coercion
and promises made during his April 25, 2000 interview with police. After an
in camera hearing held pursuant to Jackson v. Denno, 378
U.S. 368, 84 S. Ct. 1774, 12 L.Ed. 2d 908 (1964), the trial judge ruled the
May 5th statement was admissible.  Although the trial judge indicated he did
not intend to allow the April 25th statement to be introduced into evidence,
Clark’s attorney specifically requested that the statement be admitted in light
of the judge’s ruling as to the admissibility of the May 5th statement.

DISCUSSION

Clark asserts that the trial judge erred in allowing
his May 5, 2000 post-arrest statement into evidence because there exists a clear
nexus between the April 25th promises of lesser sentences and coercive threats
of the death penalty and the May 5th statement, thereby rendering both statements
involuntary.  We disagree.

In order to determine the admissibility of a statement,
the trial court must ascertain whether, under the totality of the circumstances,
it was knowingly, intelligently, and voluntarily given.  State v. Peake,
291 S.C. 138, 139, 352 S.E.2d 487, 488 (1987).   In order to introduce a statement
made after a defendant has been advised of his Miranda rights, the State
must establish by a preponderance of the evidence that the defendant voluntarily
waived those rights.  State v. Reed, 332 S.C. 35, 42, 503 S.E.2d 747,
750 (1998).  “Once a voluntary waiver of the Miranda rights is made,
that waiver continues until the individual being questioned indicates that he
wants to revoke the waiver and remain silent or circumstances exist which establish
that his ‘will has been overborne and his capacity for self-determination critically
impaired.’”  State v. Rochester, 301 S.C. 196, 200, 391 S.E.2d 244, 246
(1990) (quoting State v. Moultrie, 273 S.C. 60, 62, 254 S.E.2d 294, 294-95
(1979)). 

To be deemed voluntary, a confession may not be
“extracted by any sort of threats or violence, [or] obtained by any direct or
implied promises, however slight, [or] by the exertion of improper influence.” 
State v. Rochester, 301 S.C. 196, 200, 391 S.E.2d 244, 246 (S.C. 1990)
(citing Hutto v. Ross, 429 U.S. 28, 30, 97 S. Ct. 202, 203, 50 L. Ed.
2d 194, 197 (1976)).   “A statement induced by a promise of leniency is involuntary
only if so connected with the inducement as to be a consequence of the promise.”  
Peake, 291 S.C. at 139, 352 S.E.2d at 488.  On appeal, this court will
not disturb the trial judge’s resolution of the issue absent an error of law.
State v. Franklin, 299 S.C. 133, 138, 382 S.E.2d 911, 914 (1989).

Clark concedes no promises, threats, or other improper
methods were used during his May 5th interrogation.  Nonetheless, he would have
this court hold that his May 5th statement was so inextricably linked to his
April 25th interrogation that any improper promises or coercion the police made
or used during the April interrogation induced his May confession.  We agree
with the trial judge that no such nexus exists between the two interviews. 
Both prior to and during the April 25th interrogation, Clark denied any involvement
in Wilson’s shooting. Thus, there is no evidence that his will was overborne
or his capacity for self-determination impaired during the course of the April
25th interview.  Moreover, there is no evidence he was induced by statements
the officers made during the April 25th interview to immediately admit his involvement
in the shooting.  Indeed, he considered his position for more than one week
before he initiated contact with the officers and requested another meeting. 
There is no evidence in the record indicating that during the interim he was
in any way further influenced by law enforcement officials to confess to the
shooting. 

Because there is no evidence that any improprieties
occurred during the May 5th confession, and because we agree with the trial
court that the April 25th interrogation was not inextricably linked to Clark’s
May 5th confession, we hold the May 5th statement was voluntarily made and,
therefore, properly admitted.

In any event, we hold the statements the officers
made to Clark during the April 25th interrogation did not amount to impermissible
promises or coercive threats.  It is undisputed the officers discussed lesser
charges and lessened sentence exposure with Clark.  However, unlike the circumstances
in Peake, where the defendant’s inculpatory statement was involuntary
because he made it after interrogating officers unequivocally told him the State
would not seek the death penalty if he gave a statement, there is no evidence
indicating the solicitor assured Clark his confession would enable him to avoid
the death penalty.  See Peake, 291 S.C. at 139, 352 S.E.2d at
488. To the contrary, Clark’s interrogators expressly informed him that the
solicitor would determine the charges to be brought against him, and a judge
would determine his sentence.  Further, we are aware of no authority, and Clark
cites none, in support of the proposition that the mere mention of the death
penalty during an interrogation stemming from a murder investigation will automatically
render a statement involuntary.  Notably,  the mention of the death penalty
in this case did no more than illustrate the seriousness of the crime Clark
was charged with, inasmuch as the facts of the case actually did give rise to
the possibility that the solicitor would seek the death penalty upon Clark’s
conviction.  See S.C. Code Ann. § 16-3-20(C)(a)(3)(1976) (including,
among enumeration of aggravating circumstances, that “[t]he offender by his
act of murder knowingly created a great risk of death to more than one person
in a public place by means of a weapon or device which normally would be hazardous
to the lives of more than one person.”).

Further, to the extent Clark argues on appeal that
he was essentially forced into testifying in his own defense at trial by the
trial court’s ruling as to the admissibility of his statement, we reject the
contention.  The trial court properly ruled the statement was voluntary and
admissible.  As such, Clark’s decision to testify on his own behalf was tactical
in nature and did not stem from any error on the part of the trial court in
admitting the statement.  

For the foregoing reasons, the conviction is

AFFIRMED. 

HEARN, C.J., CURETON, AND ANDERSON, J.J., concur.

[1]           Miranda v. Arizona, 384 U.S.
436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).