Davis Adv. Sh. No. 30
S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State Respondent,
V.
Herman Lee Hughes, Jr., Appellant.
Appeal From Calhoun County
Edward B. Cottingham, Judge
Opinion No. 24704
Heard May 20, 1997 - Filed October 27, l997
AFFIRMED
Joseph L. Savitz, III, Deputy Chief Attorney, South Carolina
Office of Appellate Defense, of Columbia, for appellant.
Attorney General Charles Molony Condon, Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General
Donald J. Zelenka, all of Columbia, and Solicitor Walter M.
Bailey, of Summerville, for respondent.
WALLER, A.J.: Appellant, Herman Lee Hughes, Jr., was convicted of
murder, assault and battery with intent to kill (ABIK), armed robbery and grand
larceny of an automobile. He was sentenced to death for murder, twenty-five years
consecutive for ABIK, 25 years consecutive for armed robbery, and five years
concurrent for grand larceny. This appeal consolidates his direct appeal with the
mandatory review provisions of S.C. Code Ann. § 16-3-25(C) (1985). We affirm.
FACTS
On March 18, 1994, Hughes and a cohort, Kelsey Pearce, robbed the Blue
Diamond Casino, a video poker parlor in Orangeburg. Pearce remained outside
while Hughes requested change from the employee of the casino, twenty year old,
Kenneth Pressley. When Pressley opened the cash drawer, Hughes pulled a gun
and told Pressley to give him the money. He simultaneously told Pressley's
p6
STATE v.' HUGHES
seventeen year old girlfriend, Kelly Hoffman, who was sitting behind the desk on
the telephone, to get off the phone. Hughes then asked Pressley for his car keys.
As Pressley handed over the keys, Hughes shot him in the head. He then turned
and shot Hoffman in the chest. He shot Pressley in the head again, and then shot
Hoffman in the face. Finally, he shot Pressley in the head a third time. Hughes
took the money from the cash draw, then turned out the lights as he left the
casino. He and Pearce departed in Pressley's Mazda RX-7. Hoffman survived the
assault, Pressley died.
Hughes and Pearce were subsequently arrested and charged with the crimes.
At Hughes'trial,1 defense counsel sought to call Pearce as an adverse witness. The
solicitor advised that Pearce would not testify for the state and was planning to
assert his Fifth Amendment privilege against self incrimination. Pearce asserted
the privilege during an in camera hearing. The trial court ruled that Pearce was
"unavailable" to testify such that cross-examination before the jury was
inappropriate. Hughes was not permitted to call Pearce to the stand for the
purpose of requiring him to assert his Fifth Amendment privilege.
ISSUE
Did the trial court err in refusing to permit Hughes to call Pearce to the
witness stand for the sole purpose of requiring Pearce to assert his Fifth
Amendment privilege before the jury?
DISCUSSION
Hughes asserts the trial court's refusal to require Pearce to assert his
privilege against self-incrimination before the jury denied him of the opportunity
to present relevant evidence in mitigation under the Eighth Amendment and to
rebut the state's case. He cites two cases of this Court in support of his contention.
See State v. McGuire, 272 S.C. 547, 253 S.E.2d 103 (1979) and State v. Perry, 279
S.C. 539, 309 S.E.2d 9 (1983).2
In State v. McGuire, 272 S.C. 547, 253 S.E.2d 103 (1979), the defendant was
indicted along with a co-defendant, Crosby, for armed robbery and murder. Crosby
was granted immunity from prosecution in exchange for testifying. During an
in camera suppression hearing prior to McGuire's trial, Crosby admitted to several
crimes of moral turpitude. At trial, Crosby testified and implicated McGuire. To
impeach Crosby's credibility, defense counsel sought to cross-examine him about his
prior admissions to crimes of moral turpitude. The judge refused, basing his ruling
on Crosby's Fifth Amendment privilege against self-incrimination. This Court held
1 Hughes and Pearce were tried separately.
2 We granted the State's motion to argue against the precedent of these cases.
p7
STATE v. HUGHES
that, in light of the admissions under oath to crimes of moral turpitude, McGuire
should have been permitted to cross-examine Crosby concerning those admissions.
We went on to state:
Nor can the trial judge's ruling be justified on the grounds that
exclusion of the evidence was necessary in order to protect Crosby's
Fifth Amendment privilege against self-incrimination. A judge may
not invoke a witness's Fifth Amendment privilege; and, in any case,
it is well settled that a witness who is not also a defendant can invoke
that privilege only after the incriminating question has been put.
272 S.C. at 550-551. The rationale for McGuire is that the privilege against self-
incrimination is personal and may not be invoked by, or on behalf of, a third
person. See 1 McCormick on Evidence, § 120 (1992); 98 C.J.S. Witnesses § 451
(1957). It does not, however, follow from the holding of McGuire that assertion of
the privilege must be made before the jury. In McGuire the witness never
asserted his privilege, either in camera or otherwise, when the judge sua sponte
asserted it for him.
Nevertheless, in State v. Perry, 279 S.C. 539, 309 S.E.2d 9 (1983), this Court
found error in the trial judge's refusal to allow the defendant to call Benjamin
Ashford, who was charged with the same crime as the defendant, to claim his Fifth
Amendment privilege before taking the stand. Citing State v. McGuire, the Court
reversed and remanded for a new trial. Essentially, the holding of Perry requires
a witness to be called solely for the sake of invoking the Fifth Amendment
privilege, for the purpose of permitting the jury to infer wrongdoing from that
assertion. We find the holding in Perry is an unwarranted extension of McGuire.
It is desirable the jury not know that a witness has invoked the privilege
against self-incrimination since neither party is entitled to draw any inference from
such invocation. 1 McCormick on Evidence, § 137 (1992). See also 3 Wharton's
Criminal Procedure, § 354 (13th Ed. 1991)(no inference may be drawn from
witnesses' assertion of privilege since exercise of right is personal to witness and
should not be used to hurt or help a third person); 98 C.J.S. Witnesses § 455
(general rule that no adverse inference may be drawn from witness' assertion of the
privilege).
Most courts addressing the issue hold that it is improper for the prosecution
to put an accomplice on the stand for the purpose of wringing from him a refusal
to testify on the ground of privilege. 98 C.J.S. Witnesses § 434(b); 1 McCormick
on Evidence, § 137 at p. 513 (misconduct sufficient to render a conviction invalid
might occur if the prosecution, knowing that a witness will invoke the privilege,
calls that witness before the 'ury and then makes a "conscious and flagrant attempt
to build its case out of inferences arising from the use of the privilege"). See also
U.S. v. Swanson, 9 F.3d 1354 (8th Cir. 1993); U.S. v. Chapman 866 F.2d 1326
(Ilth Cir. 1989) cert. denied 493 U.S. 932; U.S. v. Doddington 822 F.2d 818 (8th
p8
STATE v. HUGHES
Cir. 1987); Hamm v. State, 782 S.W.2d 577 (Ark. 1990); Clayton v. Commonwealth,
786 S.W.2d 866 (Ky. 1990); Bridge v. State. 726 S.W.2d 558 (Tx. 1986).
See generally Annotation, Propriety and Prejudicial Effect of Prosecution's Calling
as Witness, to Extract Claim of Self-Incrimination Privilege, One Involved in
Offense Charged Against Accused, 19 A.L.R.4th 368 (1983). In Namet v. United
States, 373 U.S.179, 83 S.Ct. 1151, 10 L.Ed.2d 278 (1963), the United States
Supreme Court found error in such an attempt under two circumstances; first,
where the prosecution "makes a conscious and flagrant attempt to build its case out
of inferences arising from use of the testimonial privilege;" second, where the
"inferences from a witness' refusal to answer added critical weight to the
prosecution's case in a form not subject to cross-examination ...... 373 U.S. at 186-7.
See also People v. Pirello, 520 N.E.2d 399, 404-5 (Ill. 1988)(reversible error for
prosecutor to compel witness to claim privilege before jury when effect is to suggest,
by implication or innuendo, that the defendant is guilty of a crime); 81 Am.Jur.2d
Witnesses § 121 (calling witness to stand solely to have him claim Fifth
Amendment privilege in presence of jury may have disproportionate impact and
permit inference from refusal to testify, adding weight to case in form not subject
to cross-examination).
Although most of the cited cases deal with the prosecution's attempt to draw
improper inferences, it has been recognized that neither the state nor the
defendant should be allowed to call witnesses who either side knows will invoke
the Fifth Amendment in front of the jury and then be subject to inferences in a
form not subject to cross-examination. State v. Heft, 517 N.W. 2d 494, 501 (Wis.
1994). See also U.S. v. Crawford, 707 F.2d 447 (10th Cir. 1983); U.S. v. Beechum,
582 F.2d 898 (5th Cir. 1978) cert. denied 440 U.S. 920 (1979); Hamm v. State, 782
S.W.2d 577 (Ark. 1990); State v. Polsky, 482 P.2d 257 (N.M. 1971) cert. denied 404
U.S. 1015 (1972); Commonwealth v. Greene, 285 A.2d 865 (Pa. 1971) (witness'
assertion of privilege may not be made basis of any inference before the jury,
favorable to either the prosecution or the defense); United..States v. Duran, 884
F.Supp. 573 (D.D.C. 1995) (neither defendant nor government may ask questions
of witness solely for purpose of requiring witness to invoke privilege before jury).
Further, many courts have found no abuse of discretion in a trial court's refusal to
permit defense counsel to call a codefendant to the stand solely to require them to
assert the privilege in the presence of the jury. State v. Gerard, 685 So.2d 253 (La.
1996); People v. Yager, 640 N.Y.S.2d 642 ((N.Y. App. Div. 1996); State v. Robinson,
601 A.2d 1162 (N.J. 1992); Clayton v. Commonwealth, 786 S.W.2d 866 (Ky. 1990);
State v. Eichstedt, 567 A.2d 1237 (Conn. 1989). Finally, it has been recognized
that when a witness intends to claim the privilege as to essentially all questions,
the court may, in its discretion, refuse to allow him to take the stand. U.S. v.
Kaplan, 832 F.2d 676 (1st Cir. 1987) cert. denied 485 U.S. 907 (1988). See also
State v. Hatter, 700 S.W.2d 138 (Mo. 1985) (finding no error in trial court's refusal
to require witness to take stand merely for purpose of asserting privilege).
Here, defense counsel knew Pearce would invoke his privilege against self-
incrimination and sought to put him on the stand solely to allow the jury to draw
p9
STATE v. HUGHES
adverse inferences from his refusal to testify. We concur with the above-cited
jurisdictions that such an inference is impermissible. Accordingly, to the extent
State v. Perry may be read to require the calling of a witness solely for the sake
of invoking his or her Fifth Amendment privilege,3 it is hereby prospectively
modified from the date of this opinion.4
As our modification of Perry is prospective only, it is clear that, under the
law as it existed at the time of trial, Hughes should have been permitted to put
Pearce on the stand for the purpose of invoking his Fifth Amendment privilege.
However, we find any error in the trial court's refusal to do so in this case was
harmless beyond a reasonable doubt.
In State v. Gaskins, 284 S.C. 105, 326 S.E.2d 132 (1985) cert denied 471 U.S.
1120, overruled in part on other grounds State v. Torrence, 305 S.C. 45, 406 S.E.2d
315 (1991), this Court recognized that an error under State v. Perry may be
deemed harmless where the testimony would have been cumulative to other
testimony admitted. See also 1 McCormick on Evidence § 137 at p. 513 (whether
other evidence has been introduced on those matters as to which the jury might
draw an inference from the witness's testimony is a factor in determining harmless
error); State v. Heft, supra (defendant not deprived a fair trial notwithstanding
refusal to require witness to assert privilege before jury, where defendant was
afforded opportunity to present complete defense and evidence supporting her
theory).
Here, during the in camera testimony, counsel inquired whether, after
Hughes had shot the victims twice, Pearce had then gone into the Blue Diamond
and shot Pressley twice. Pearce was also questioned whether he had obtained the
gun used in the crime from his uncle, and whether he had talked Hughes into
robbing the Blue Diamond. Essentially, Hughes claims he should have been
permitted to ask these questions in front of the jury in order that the jury could
infer that Pearce was more the aggressor of the two and that Pearce had also been
a shooter, on the theory that perhaps the jury would have found this "testimony"
mitigating and imposed a life sentence.
3 We express no opinion as to the situation in which, for example, a witness
testifies for the prosecution on direct exam, then asserts the privilege on cross-
exam. Some courts hold that where there is a reasonable expectation the witness
will provide some testimony in addition to invoking the privilege, the court may
require the witness to take the stand. Kaplan, supra; State v. Sanders, 842 S.W.2d
170 (Mo. 1992). As that is not the situation presently before this Court, we decline
to address it.
4 We find it unnecessary to modify McGuire. McGuire stands only for the
proposition that a trial judge may not invoke a witness' Fifth Amendment privilege.
There is no reason such a privilege may not be invoked in camera.
p1 0
STATE v. HUGHES
We find no prejudice whatsoever to Hughes from omission of this "testimony."
At no point during trial did Hughes contest his guilt. During opening argument,
counsel conceded Hughes' guilt under the law of felony murder, and that it did not
matter who had the gun or who pulled the trigger. It was undisputed at trial that
Hughes and Pearce had obtained the murder weapon from Hughes' 23 year old
uncle, Henry Daniel Owens. Further, there was testimony that Pearce was the
more aggressive of the two and that Hughes was more passive. Finally, there was
testimony from two witnesses that Pearce had told them he had "done the crime,"
and that Pearce had told one witness that he had shot Kelly Hoff-man and another
guy. Further, during closing argument, counsel for Hughes stressed to the jury
that Pearce had been a shooter. Finally, at the sentencing phase closing, counsel
argued that Pearce was the aggressor, that Hughes was the passive one, and that
the whole thing would not have happened but for Kelsey Pearce. He also reiterated
his theory that Pearce may have also been a shooter. In sum, testimony was
presented as to each of the questions Hughes proposed to ask Pearce, and the
matter was rigorously argued to the jury in an attempt to mitigate punishment.
We find Hughes was not denied his right to present evidence in mitigation, and
Pearce's "testimony" would have been merely cumulative to other testimony
presented. Accordingly, any error under Perry was harmless.
CONCLUSION
We prospectively modify State v. Perry to the extent it permits the calling
of a witness solely for the sake of invoking his or her Fifth Amendment privilege.
We affirm Hughes' convictions, however, as we find any error in the trial court's
refusal to permit Hughes to call Pearce to the stand in this case was harmless
beyond a reasonable doubt.
Finally, we find the death sentence in this case is proportionate to that in
similar cases and is neither excessive nor disproportionate to the crime. State v.
Bell, 305 S.C. 11, 406 S.E.2d 165 (1991) cert. denied 502 U.S. 1038, 112 S.Ct. 888,
116 L.Ed.2d 791 (1992)(murder and armed robbery of school principal in Anderson);
State v. Sims, 304 S.C. 409, 405 S.E.2d 377 (1991) cert. denied 502 U.S. 1103, 112
S.Ct. 1193, 117 L.Ed.2d 434 (1992)(robbery and murder of Domino's Pizza
employee); State v. Green, 301 S.C. 347, 392 S.E.2d 157, cert. denied 498 U.S. 881,
Ill S.Ct. 229, 112 L.Ed.2d 183 (1990)(robbery and murder of woman outside a mall
in Charleston). Accordingly, Hughes' convictions and sentences are
AFFIRMED.
TOAL, MOORE and BURNETT, JJ., concur. FINNEY, C.J.,
dissenting in separate opinion.
p11
STATE v. HUGHES
FINNEY, C.J.: I respectfully dissent and would remand this case for a
new sentencing hearing at which appellant would be permitted to call and
examine Pearce before the jury.
First, I disagree with the majority's adoption of a rule which
would bar a defendant from ever calling a witness solely for the purpose of
having the witness invoke his Fifth Amendment privilege. My research
indicates that of the four jurisdictions cited by the majority, all except
Louisiana have not, in fact, adopted an absolute prohibition on this
practice. New York vests the discretion in the trial judge to determine
whether to allow this type of evidenced1; Connecticut has acknowledged that
in situations where there is substantial evidence implicating the witness in
the crime, such testimony may be properd2; and New Jersey has left the
door open to this type of evidence by explicitly acknowledging, "There may
be constitutional issues and questions of fundamental fairness projected by
the inability of a defendant in certain circumstances to call a witness for
purposes of asserting his Fifth Amendment privilege before the jury and
obtaining a beneficial inference." State v. Robinson, 601 A.2d 1162, 1173
(N.J. Super. Div. 1992). I believe these jurisdictions, and perhaps
Louisiana as well, would find the circumstances of this case compelling: A
man, on trial for his life, seeks to mitigate his sentence by evidence that
his codefendant was the more culpable individual, the one who planned
the crime, obtained the weapon, and repeatedly shot the dying victim. If
we are to change the holding in Perry, then we must acknowledge that in
some cases the new rule must yield to "fundamental fairness." This is
such a case. The trial court erred in refusing to allow appellant to call
Pearce, and should therefore be reversed.
Just as disturbing as the majority's decision to abandon Perry
in favor of a rigid rule, however, is its determination that the error in this
case was harmless. The majority points to three inferences appellant
sought to draw from questioning Pearce:
1. that the crime was planned by Pearce;
d1; People v. Yager, 640 N.Y.S.2d 642 (N.Y. App. Div. 1996).
d2; State v. Bryant, 523 A.2d 451 (Conn. 1987).
p12
STATE v. HUGHES
2. that Pearce alone obtained the gun from his uncle;
and
3. that as Pressley lay dying, Pearce reentered the Blue
Diamond and shot him two more times.
The majority deems this evidence merely cumulative to evidence that
Pearce admitted his guilt and claimed he had shot both victims; that
Pearce and appellant had procured the gun; and evidence that Pearce was
more aggressive in general than appellant. Clearly this evidence did not
show Pearce to be the planner nor sole procurer of the gun, nor did it
show him to have mercilessly shot the dying man. This evidence cannot
properly be deemed cumulative to the inferences which would have been
drawn from Pearce's silence. The majority attempts to bolster its
cumulative conclusion by emphasizing appellant did not contest his guilt,
and by noting that appellant's counsel was allowed to argue his theory to
the jury, albeit a theory unsupported by evidence. That appellant did not
contest his liability is simply not relevant to the Pearce issue: Appellant
sought to call Pearce not to cast doubt on his own guilt, but rather in an
attempt to mitigate his sentence. Further, to suggest that counsel's
theoretical (and improperd3; ) argument substitutes for evidence is contrary
to both con=on sense and the law, since it is well-settled that argument
of counsel is not evidence. e.g.,Sosebee v. Leeke, 293 S.C. 531, 362 S.E.2d
22 (1987).
Where, as here, evidence has been improperly excluded, this
Court has deemed the error harmless only where the excluded evidence
was cumulative to other evidence in the record or irrelevant, or where the
record contained overwhelming evidence of guilt. None of these conditions
are met in this case. I would reverse and remand for a new sentencing
proceeding where appellant would be permitted to call Pearce.
d3; Defense counsel is limited to arguing evidence in the record and the
inferences which can be drawn from it. e.g., State v. Robinson, 238 S.C.
140, 119 S.E.2d 671 (1961).
p13