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Davis Adv. Sh. No. 30
S.E. 2d

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

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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

2 We granted the State's motion to argue against the precedent of these cases.

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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

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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

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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.

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.

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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.

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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;

d2; State v. Bryant, 523 A.2d 451 (Conn. 1987).

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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).

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