S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
State of South Carolina, Respondent,
v.
David G. Avery, Appellant.
Appeal From Aiken County
G. Larry Inabinet, Family Court Judge
Henry F. Floyd, Circuit Court Judge
Opinion No. 24868
Heard November 4, 1997 - Filed December 14, 1998
AFFIRMED
Jack B. Swerling, of Columbia, for appellant.
Attorney General Charles Molony Condon, Deputy
Attorney General John W. McIntosh, Assistant
Deputy Attorney General Donald J. Zelenka,
Assistant Attorney General John P. Riordan, all of
Columbia; and Solicitor Barbara R. Morgan, of
Aiken, for respondent.
BURNETT, A.J.: Appellant was fourteen years old when he
participated in the armed robbery of a convenience store. During the
robbery, the store proprietor was killed. Following a transfer hearing, the
family court waived jurisdiction over appellant to general sessions court.
A jury convicted appellant of murder, armed robbery, and possession of a
weapon during the commission of a violent crime. He received concurrent
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STATE v. AVERY
sentences of life, twenty-five years, and five years, respectively. We
affirm.
FACTS
Transfer Hearing
According to the evidence presented at the transfer hearing,
appellant and two other individuals planned to rob the #1 Market.1 Prior
to the robbery, appellant procured two guns from a relative's home. He
carried one of the guns and pointed the weapon at one of the two store
employees during the robbery. One employee was shot; he died as a result
of the gunshot wound. Shortly after the robbery, appellant returned to his
home in Pennsylvania. He refused extradition to South Carolina. At the
time of the murder and armed robbery, appellant was almost fifteen years
old.2
Two Department of Juvenile Justice (DJJ) employees testified
on appellant's behalf. While both witnesses described appellant as "very
intelligent," one also indicated appellant was "very immature." This
witness stated appellant is a "follower" and respects authority. Both
witnesses concluded appellant would benefit from the programs available
at DJJ. Appellant's mother also testified at the transfer hearing.
The DJJ Preadjudicatory Transfer (Waiver) Evaluation was
admitted into evidence at the hearing. According to the evaluation,
appellant was from Pennsylvania. He had been a successful student until
the ninth grade when he began skipping school. Appellant's mother
reported she sent appellant to live with family members in South Carolina
because he disliked the high school he was attending. Appellant, however,
reported he was sent to South Carolina because he was associating with
friends who were delinquents.
As reported by the evaluation, appellant denied selling illegal
1The two other individuals provided statements identifying appellant
as the third participant.
2 Another participant, Chavados Miles, was also a juvenile. The third
participant, Chasako Glanton, was eighteen years old.
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STATE v. AVERY
drugs but stated his friends sold crack and marijuana. Appellant reported
he had smoked marijuana on a few occasions. He stated he began
drinking beer when he was fourteen years old.
The evaluation noted several factors which could positively
influence appellant's likelihood of rehabilitation. For instance, appellant
had no prior referrals or, adjudications in the juvenile justice system, he
appeared motivated to receive help, and he expressed remorse and
responsibility for his misbehavior. The report noted, "given [appellant's]
parole guidelines of 36 to 54 months, there may be sufficient time to work
toward his rehabilitation in the juvenile justice system."
The evaluation also noted several factors which could
negatively influence appellant's likelihood of rehabilitation. For instance,
appellant was charged with serious and violent offenses, he has a history
of regular alcohol use, and he gave discrepant information during various
interviews, indicating his unwillingness to honestly participate in the
rehabilitative process.
As stated in its waiver order, the family court considered the
testimony from the transfer hearing and the pre-waiver evaluation report
in issuing its findings and conclusions. In making its decision to transfer
jurisdiction, the family court considered the following facts persuasive:
There is probable cause to believe [appellant] committed
the crimes for which he is charged.
The seriousness of the offenses is of such gravity as to
require waiver for the protection of the community.
The alleged offenses are of a willful, malicious, premeditated,
and dangerous nature.
There is sufficient merit to warrant the grand jury
returning a true bill on the charges.
The offenses of Murder and Armed Robbery are felonies.
The pre-waiver evaluation reported [appellant's]
sophistication and maturity as adequate. However, [a
witness] from [DJJ] testified that, in light of the
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STATE v. AVERY
juvenile's intelligence, his level of sophistication and
maturity is low.
The crimes with which [appellant] is charged are of a
serious nature and if found guilty, would suggest he is
capable of acting without regard for others.
According to the pre-waiver evaluation, certain factors
such as the serious and antisocial nature of the charges,
the juvenile's use of drugs and alcohol and his failure to
discuss his life honestly negatively affect the likelihood of
rehabilitation.
Further, this Court finds that the juvenile would not
likely benefit from any programs or services offered by
the [DJJ].
The family court concluded it was unlikely appellant could be
rehabilitated in the juvenile justice system and it was in the best interest
of appellant and the community to transfer, jurisdiction to general sessions
court. The family court specifically stated its findings were based on the
criteria set forth in Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16
L.Ed.2d 84 (1966).3
3 In Kent, id., the United States Supreme Court established the
following criteria for determining whether jurisdiction should be waived
under the District of Columbia Juvenile Court Act:
1. The seriousness of the alleged offense to the community
and whether the protection of the community requires waiver.
2. Whether the alleged offense was committed in an
aggressive, violent, premeditated, or willful manner.
3. Whether the alleged offense was against persons or against
property, greater weight being given to offenses against
persons especially if injury resulted.
4. The prosecutive merit of the complaint, i.e., whether there
is evidence upon which a Grand Jury may be expected to
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STATE v. AVERY
Trial
At trial, the victim's son, John Reiner, Jr.,4 testified he and his
father owned the #1 Market. On the day of the robbery and shooting,
Chasako Glanton, who Reiner knew, entered the convenience store.
Glanton purchased three drinks from Reiner with a hundred dollar bill.
Reiner had to make change with money kept beneath the counter. Reiner
noticed another individual waiting in Glanton's vehicle outside the store.
Approximately one and one-half hours later, three slim young
males wearing stocking masks entered the store. Based on the clothes
Glanton had been wearing earlier in the day, Reiner recognized Glanton.
Reiner testified Glanton held his father at gunpoint and demanded he give
him the money from his pockets. Another robber held Reiner at gunpoint
and ordered him to remove money from the cash register and from under
the counter. The third participant remained at the door as a lookout. As
return an indictment
5. The desirability of trial and disposition of the entire offense
in one court when the juvenile's associates in the alleged
offense are adults who will be charged with a crime ....
6. The sophistication and maturity of the juvenile as
determined by consideration of his home, environmental
situation, emotional attitude and pattern of living.
7. The record and previous [criminal or adjudicative] history
of the juvenile . . .
8. The prospects for adequate protection of the public and the
likelihood of reasonable rehabilitation of the juvenile (if he is
found to have committed the alleged offense) by the use of
procedures, services and facilities currently available to the
Juvenile Court.
Id. U.S. at 567, S.Ct. at 1060, L.Ed.2d at 100.
4 Reiner was twenty five years old at the time of trial.
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STATE v. AVERY
Reiner was complying with the instructions, he heard a gun shot. The
three men ran away with money from the store.
Reiner admitted he was addicted to crack cocaine. He denied,
however, buying drugs from Glanton. He also denied planning a staged
robbery of the convenience store with Glanton.
Chavados Miles testified he participated in the shooting and
armed robbery at the #1 Market with appellant and Glanton. He testified
prior to the robbery the three took his grandmother's stockings. Appellant
stated he knew where the three could obtain guns. Appellant, Glanton,
and Miles went to appellant's aunt's home and confiscated two guns.
Miles testified the three placed the stockings over their faces
before entering the convenience store. Miles stated he stood as sentry
while appellant pointed one of the guns at Reiner and directed him to
remove the cash from the register and from under the counter. Glanton
pointed his gun at Reiner's father. Miles heard a gunshot then the three
fled.
After the shooting and robbery, the three men rented a hotel
room. They went swimming, went out to eat, and returned the two guns
to appellant's aunt. Miles described Glanton as nervous; he described
appellant as "normal."
Miles did not testify the robbery was staged. Miles pled guilty
to murder and armed robbery.
In his statement to the police, Glanton stated he, Miles, and
appellant had participated in the armed robbery and shooting at the #1
Market. Appellant had suggested the three obtain guns. Before entering
the convenience store, appellant shook hands with Glanton and Miles.
Appellant demanded the money inside the store. Glanton admitted
shooting the victim, but explained the gun discharged unintentionally
when he turned to run from the store.
At trial, Glanton testified he sold drugs to Reiner on a daily
basis. Reiner paid him with money from the store's cash register. Prior
to the robbery, Glanton stated Reiner owed him money for drugs. Glanton
maintained Reiner had suggested Glanton conduct a staged holdup of the
convenience store to obtain the money owed to him.
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STATE v. AVERY
Glanton testified appellant and Miles participated in the
robbery. He did not know if appellant and Miles knew the robbery was
staged. Glanton testified he first entered the convenience store alone; a
crowd of people were inside. Reiner indicated he was to return later.
Glanton testified appellant obtained the two guns. Glanton maintained
the safeties were placed on the guns. He stated no one other than Reiner
was to be present during the staged holdup. Glanton stated he was the
leader while appellant and Miles were the followers.
Appellant presented no witnesses and did not testify.
ISSUES
I. Did the family court abuse its discretion by transferring
jurisdiction to the Court of General Sessions?
II. Did the trial judge err by failing to grant appellant's
motion for a directed verdict on the murder charge?
III. Did the trial judge err by denying appellant's motion for
a severance?
IV. Did the trial judge err in charging the jury it could not
find appellant guilty of involuntary manslaughter if it found
the killing occurred during the commission of a felony?
DISCUSSION
Appellant contends the family court judge erred in transferring
jurisdiction to general sessions court. We disagree.
South Carolina Code Ann. 20-7-430(6) (1985) authorizes the
family court, to determine whether it is appropriate to transfer a juvenile
charged with murder to the general sessions court.5 The appellate court
will affirm a transfer order unless the family court has abused its
5 Section 20-7-430 was repealed by 1996 Act No. 383, 2, effective July 1, 1996.
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STATE v. AVERY
discretion. Sanders v. State, 281 S.C. 53, 314 S.E.2d 319 (1984); State v.
Wright, 269 S.C. 414, 237 S.E.2d 764 (1977).
The serious nature of the offense is a major factor in the
transfer decision., See State v. Kelsey , 331 S.C. 50, 502 S.E.2d 63
(1998)(transfer upheld where defendant was charged with murder);
Sanders v. State, supra (transfer upheld where defendant was charged
with two counts of murder and two counts of assault and battery with
intent to kill); State v. Wright supra (transfer upheld where defendants
were charged with armed robbery and assault and battery with intent to
kill). The best interests of the public or of the juvenile may require the
juvenile be held accountable as an adult for his criminal conduct. In the
Interest of Shaw, 274 S.C. 534P 265 S.E.2d 522 (1980).
[I]t is the responsibility of the family court to include in its
waiver of jurisdiction order a sufficient statement of the
reasons for, and considerations leading to, that decision.
Conclusory statements, or a mere recitation of statutory
requirements, without further explanation will not suffice. The
order should be sufficient to demonstrate that the statutory
requirement of full investigation has been met and that the
question has received full and careful consideration by the
family court. The salient facts upon which the order is based
are to be set forth in the order.
In re Sullivan, 274 S.C. 544, 548, 265 S.E.2d 527, 529 (1980).
The transfer order demonstrates a full investigation had been
conducted and reflects consideration of the testimony from the transfer
hearing and of the DJJ's Preadjudicatory Transfer Evaluation. The order
found persuasive the premeditated and serious nature of the crimes with
which appellant was charged, appellant's lack of sophistication and
maturity, and his unwillingness to participate in the rehabilitative process
before concluding both the public's and appellant's best interests required
transfer of jurisdiction. The facts upon which the court's decision is based
are adequately stated within the order and are fully supported by the
testimony and evidence from the transfer hearing. The family court did
not abuse its discretion in transferring jurisdiction to the Court of General
Sessions and it should be affirmed. Sanders v. State, supra ; Wright v.
State, supra.
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STATE v. AVERY
II.
Appellant argues the trial judge erred by failing to grant his
motion for a directed verdict on the murder charge. Specifically, he claims
there was no evidence of malice on his behalf. We disagree.
In ruling on a directed verdict, the trial judge is concerned
with the existence of evidence, not its weight. State v. Williams, 303 S.C.
274, 400 S.E.2d 131 (1991). Viewing the evidence in the light most
favorable to the State, a jury question exists if there is any direct or
substantial circumstantial evidence which reasonably tends to prove the
guilt of the accused or from which guilt may be fairly and logically
deduced. Id.
When two or more combine together to commit a robbery and,
during the robbery, a homicide is committed as a natural and probable
consequence, all present and participating in the robbery are as guilty of
the killing as the one committing the homicide. State v. Crowe, 258
S.C. 258, 188 S.E.2d 379, cert. denied, 409 U.S. 1077, 93 S.Ct. 691, 34 L.Ed.2d
666 (1972). If a person intentionally kills another during the commission
of a felony, malice may be inferred. State v. Norris, 285 S.C. 86, 328
S.E.2d 339 (1985), overruled on other grds., State v. Torrence, 305 S.C. 45,
406 S.E.2d 315 (1991).
There was evidence appellant planned and participated in the
armed robbery of the #1 Market. He obtained weapons for the robbery,
carried one of the weapons, wore a mask, and demanded Reiner give him
the money from the cash register while pointing a gun. Reiner's father
was fatally shot even though Reiner complied with appellant's instructions
to give him the money. Appellant acted "normally" after the shooting.
Viewing this evidence in the light most favorable to the State, the trial
judge properly denied appellant's motion for a directed verdict on the
murder charge.
III.
Appellant contends the trial judge erred by failing to grant his
motion for a severance. Before trial, he argued his defense was
antagonistic to that of his co-defendant Glanton and, therefore, a
severance was necessary in order for a fair trial under the Sixth
Amendment. We disagree.
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STATE v. AVERY
Appellant was jointly charged with murder. He was not
entitled to a separate trial as a matter of right. State v. Crowe, supra.
The trial judge's refusal to grant a severance did not constitute an abuse
of discretion. Glanton admitted he shot the victim, but claimed the
shooting was unintentional. Glanton explained the robbery was merely
staged. Glanton's testimony was favorable to appellant. Appellant's
defense was not antagonistic to Glanton's defense.
Moreover, if appellant had been tried separately from Glanton,
the same evidence could have been presented. Appellant could still have
been prosecuted under the theory of accomplice liability for the murder.
Appellant has failed to show any abuse of discretion or prejudice from the
joint trial. Id.
IV.
Appellant argues the trial judge erred by instructing the jury it
could not return a verdict of armed robbery and involuntary manslaughter.
We disagree.
During the charge conference, the trial judge stated he would
charge the jury on the lesser-included offense of involuntary manslaughter,
but would instruct the jury it could not return a verdict of involuntary
manslaughter if it found a felony had been committed. Appellant
responded, stating inconsistent verdicts are permitted. The trial judge
stated, "we'll cross that bridge when we get to it."
The judge instructed the jury as follows:
Now, ladies and gentlemen, with regard to the crime of
involuntary manslaughter, it does not include the killing of
another while engaged in a felony. I would charge you that
under South Carolina law armed robbery, if you find the State
has established that beyond a reasonable doubt and a violation
of 1-6-23-490 [sic] which is the display of a deadly -- of a
weapon in the course of a violent crime, both constitute
felonies. And if you find a felony in fact occurred then
involuntary manslaughter does not apply.
Appellant did not object to this instruction.
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STATE v. AVERY
Approximately forty-five minutes after the jury began
deliberating, it asked the following questions:
Involuntary manslaughter and armed robbery, can these
verdicts [be rendered] together? Do we have to convict of
murder if we convict of armed robbery? Can we convict the
shooter, Mr. Glanton, of murder, do we have to convict Mr.
Avery of the same or can we convict Mr. Avery of armed
robbery and manslaughter?
After discussing a response with the parties, the trial judge
instructed the jury as follows:
All right, the first question is, if I can make a fair
interpretation of it, is it possible to return an involuntary
manslaughter and an armed robbery conviction as a possible
form of the verdict? ... involuntary manslaughter does not
include the killing of another while engaged in a felony... If
you find beyond a reasonable doubt that one or more of the
defendants committed the crime of armed robbery, and you
find that a homicide was committed during the course of that
robbery, you may not return a verdict of involuntary
manslaughter.
You may then have the option of returning a verdict of
murder, if you're satisfied that the State has proven the
elements of that crime beyond a reasonable doubt, or you have
the option of returning a verdict of not guilty of murder, but
you may not return a verdict of involuntary manslaughter, if
you find beyond a reasonable doubt that one or more of the
defendants committed the crime of armed robbery.
In response to the jury's third question, the trial judge restated
his instruction on accomplice liability. At the conclusion of the
supplemental instructions, appellant requested the trial judge charge the
jury it could acquit him of murder and armed robbery but convict him of
involuntary manslaughter. The trial judge denied this request.
Although appellant originally suggested the jury could return
inconsistent verdicts on armed robbery and involuntary manslaughter, he
did not object to the trial judge's initial or supplemental instructions
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STATE v. AVERY
regarding armed robbery and involuntary manslaughter. Accordingly, this
issue is not preserved for appeal. State v. Longworth, 313 S.C. 360, 438
S.E.2d 219 (1993), cert. denied, 513 U.S. 831, 115 S.Ct. 105, 130 L.Ed.2d
53 (1994)(where appellant fails to object to jury charge, issue is not
preserved for consideration on appeal).
In any event, although the jury could have returned a verdict
of armed robbery and involuntary manslaughter,6 it would have been an
incorrect statement of law for the trial judge to instruct the jury appellant
could be convicted of involuntary manslaughter and armed robbery. State
v. Tucker, 324 S.C. 155, 478 S.E.2d 260 (1996), cert. denied, ___U.S.___,
117 S.Ct. 1561, 137 L.Ed.2d 708 (1997)(involuntary manslaughter is
defined, in relevant part, as the killing of another without malice and
unintentionally, but while one is engaged in the commission of some
unlawful act not amounting to a felony and not naturally tending to cause
death or great bodily harm). The trial judge is required to charge the
current and correct law of South Carolina. State v. Foust, 325 S.C. 12,
479 S.E.2d 50 (1996).
Appellant's Argument II is affirmed pursuant to Rule 220(b)(1),
SCACR, and the following authority: State v. Longworth, supra.
AFFIRMED.
MOORE, WALLER, JJ., and Acting Associate Justice George
T. Gregory, Jr., concur. FINNEY, C.J., dissenting in separate
opinion.
6 State v. Alexander, 303 S.C. 377, 401 S.E.2d 146 (1991)(abolishing
rule against inconsistent verdicts).
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STATE v. AVERY
FINNEY, C.J.: I respectfully dissent. In my opinion, the waiver
order is insufficient because it does not set forth the basis for its decision
with sufficient specificity to permit meaningful review. Kent v. United States,
383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). 1 would hold
that the order inadequately explains why the family court judge
discounted the evidence showing appellant could benefit from
rehabilitation, and the other evidence militating against the transfer of
jurisdiction to the circuit court. Accordingly, I would reverse and remand
to the family court for reconsideration of the waiver issue.
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