STATE v. PACE

Citation Codes

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Docket Number

24108

Attorney(S)

Chief Atty. Daniel T. Stacey, of SC Office of Appellate Defense, Columbia, for petitioner. Atty. Gen. T. Travis Medlock, Chief Deputy Atty. Gen. Donald J. Zelenka, Senior Asst. Atty. Gen. Harold M. Coombs, and Asst. Atty. Gen. Rakale B. Smith, Columbia; Solicitor Charles Molony Condon, North Charleston, for respondent. Sue C. Erwin, of South Carolina Women Lawyers Ass'n, for amicus curiae.

Judges

Per Curiam:

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Smart Summary

Factual and Procedural Background

At trial in Charleston County, defense counsel asked the prosecution's witness, Mr. Brown, "Do you have a criminal record?" The prosecutor objected and the trial judge sustained the objection, calling the question "highly improper" and sending the jury out. In a subsequent in camera admonishment the judge criticized defense counsel for asking a broad question without knowledge of any prior record, repeatedly referring to her as a "nice girl" and a "pretty girl." Later, the prosecution introduced evidence that Mr. Brown had a prior conviction for petty larceny, identified in the opinion as a crime of moral turpitude for which he could be impeached. The Court of Appeals affirmed the conviction, concluding the judge's comments were inappropriate but not prejudicial and noting defense counsel's failure to object to the judge's remarks. The South Carolina Supreme Court granted certiorari and reversed.

Legal Issues Presented

Is Pace entitled to a new trial based upon the comments made by the trial judge concerning defense counsel?

Arguments of the Parties

Petitioner's Arguments

Pace contended that the trial judge's remarks regarding defense counsel deprived him of a fair trial.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State v. Pace, ___ S.C. ___, 425 S.E.2d 75 (Ct.App. 1992).	This information was not available in the provided opinion.	The Court references the Court of Appeals' prior affirmance and its conclusion that the judge's comments were inappropriate but not prejudicial; the Supreme Court granted certiorari and reversed.
State v. MacGuire, 272 S.C. 547, 253 S.E.2d 103 (1979).	This information was not available in the provided opinion.	Cited in a footnote in connection with discussion of prior records and impeachment; the opinion notes Mr. Brown's prior petty larceny conviction was a crime of moral turpitude for impeachment.
State v. Mitchell, 261 S.C. 452, 200 S.E.2d 448 (1973) (Justices Brailsford and Bussey, dissenting).	That reference by a trial judge to an attorney's age, gender, or competence is improper and can constitute reversible error upon a showing of prejudice to the defendant.	The Court applied Mitchell to hold that the trial judge's comments about counsel's age and gender were improper and, given prejudice to the defendant, reversible error; it quotes the Mitchell dissent that such remarks "tended to impugn the credibility of counsel."
State v. Simmons, 267 S.C. 479, 229 S.E.2d 597 (1976).	That a trial judge must act with absolute impartiality and that improper references to counsel can be reversible error when prejudice is shown.	Used alongside Mitchell to support the proposition that references to an attorney's age, gender, or competence are improper and may require reversal if prejudice is demonstrated.
Dunn v. Charleston Coca-Cola Bottling, ___ S.C. ___, 426 S.E.2d 736 (1993).	This information was not available in the provided opinion.	Referenced to support the court's conclusion that an objection to the judge's remarks would have been futile and therefore counsel's failure to object did not waive the claim.

Court's Reasoning and Analysis

The Court began from the principle that a trial judge must act with absolute impartiality (Canon 3 of Rule 501, SCACR). It stated that reference by a trial judge to an attorney's age, gender, or competence is improper and may be reversible error if prejudice to the defendant is shown, citing State v. Mitchell and State v. Simmons. The Court found the judge in this case commented to the jury about the attorney's age and gender, repeatedly referring to her as "nice" and "pretty," and chastised her conduct in a manner that demeaned counsel. The Court relied on the Mitchell dissent's observation that such remarks tend to impugn counsel's credibility. Because defense counsel's credibility was central to Pace's alibi defense, the Court concluded prejudice was evident and that the remarks undermined counsel's ability to effectively represent the client. Regarding waiver, the Court held that the nature and tone of the judge's remarks made any objection futile, and therefore counsel's failure to object did not waive the issue, citing Dunn. On that basis the Court reversed the conviction and remanded for a new trial.

Holding and Implications

REVERSED AND REMANDED

Direct effect: The South Carolina Supreme Court reversed Pace's conviction for grand larceny and remanded the case for a new trial. The opinion applied existing standards regarding judicial impartiality and improper remarks about counsel; it did not announce a new legal rule beyond those applications and therefore did not establish novel precedent beyond its holding in this case.

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The State, Respondent, v. Beondi Clifford Pace, Petitioner.

Per Curiam:

We granted certiorari to review Petitioner's (Pace) conviction for grand larceny as affirmed by the Court of Appeals.

State v. Pace, ___ S.C. ___, 425 S.E.2d 75 (Ct.App. 1992).

We reverse.

FACTS

At trial, defense counsel asked Mr. Brown, a witness for the prosecution, "Do you have a criminal record?" The judge sustained the prosecution's objection, stating the question was "highly improper", then sent the jury to its room.

In camera, the judge chastised defense counsel that such a broad question amounted to a "fishing expedition", since counsel had no knowledge of any prior record against Mr. Brown. During his admonishment of counsel, the judge continuously referred to her as a "nice girl" and a "pretty girl." Thereafter, evidence was introduced establishing Mr. Brown's prior conviction for petty larceny, a crime of moral turpitude for which he could be impeached.

See State v. MacGuire, 272 S.C. 547, 253 S.E.2d 103(1979).

Upon the jury's return to the courtroom, the judge made the following statement:

The Court: All right. Now let me say what happened in this last thing and I'm going to let it calm down here. But, the question was asked, does he have a criminal record. Counsel had admitted that she did not know, it was a pitch in the dark, which is improper. And she's sorry, she's apologized to the Court.

However, I ask — because the procedure is always, I think he's entitled to know that she doesn't have that information. So the Public Defender's normally, what they have to do is ask the Solicitor because they got the computer. It don't take but two or five minutes. So all they got to do is ask. Whatever, ask me and I'll see they got it there ain't no question about it. Because they're entitled to know. And as it turns out I think we can stipulate, is this agreeable? I hate to fuss at a pretty girl, fuss at an old man, but a pretty girl I hate to fuss. But it was a kind of below the belt shot. But she was doing the best, she thought. But anyhow as she gains experience — if they don't give it to her all she does have to do is ask me, and I certainly will. And she hasn't asked the Solicitor, any how. It was a shot in the dark which implies wrongdoing.

* * * * * *

So don't hold it against her, she's a nice girl. I was young once myself, I put it to plain inexperience or whatever, but you'll get over it as you learn. So don't hold it against her. She's a nice girl.

The Court of Appeals, although holding that these comments were inappropriate, concluded no prejudicial error resulted. Moreover, as a procedural ground, the Court noted counsel's failure to object at trial to the judge's comments. We granted certiorari.

ISSUE

Is Pace entitled to a new trial based upon the comments made by the trial judge concerning defense counsel?

DISCUSSION

Pace contends that the remarks in question deprived him of a fair trial. We agree.

The trial judge must act with absolute impartiality in the performance of judicial duties. Canon 3 of Rule 501, SCACR. Reference by a trial judge to an attorney's age, gender, or competence are improper and constitute reversible error upon a showing of prejudice to the defendant. State v. Mitchell, 261 S.C. 452, 200 S.E.2d 448 (1973) (Justices Brailsford and Bussey, dissenting); State v. Simmons, 267 S.C. 479, 229 S.E.2d 597 (1976).

Here, the judge commented to the jury upon the attorney's age and gender. As the dissent stated in State v. Mitchell, supra, "[t]he remarks of the court tended to impugn the credibility of counsel and to diminish him and his defense of appellant in the eyes of the jury." 261 S.C. 461, 200 S.E.2d 453. Prejudice to Pace is evident on this record since his attorney's credibility was crucial to his defense of alibi. We hold that these remarks undermined counsel's ability to effectively represent her client and constituted reversible error.

As to counsel's failure to raise an objection, the tone and tenor of the trial judge's remarks concerning her gender and conduct were such that any objection would have been futile. Accordingly, we find no waiver of this issue. Cf. Dunn v. Charleston Coca-Cola Bottling, ___ S.C. ___, 426 S.E.2d 736 (1993).

We reverse the conviction and remand for a new trial.

Reversed and remanded.

/s/ A. Lee Chandler A.J. /s/ Ernest A. Finney, Jr. A.J. /s/ Jean H. Toal A.J. /s/ James E. Moore A.J. /s/ Walter J. Bristow, Jr. A.A.J.