State v. Gilbert , 273 S.C. 690 ( 1979 )

Rhodes, Justice

(dissenting).

I dissent and would reverse and remand for a new trial. The majority opinion does not, in my judgment, accord sufficient weight to the pervasive, prejudicial factors set in motion by the erroneous ruling of the trial judge granting fifth amendment immunity to the appellants while voluntarily testifying as witnesses in their defense.

As the majority recognizes, the trial judge erred in according the appellants protection against self-incrimination despite the fact that they had voluntarily taken the witness stand. Although the error was initiated by counsel for the appellants and was an attempt by the trial judge to safeguard constitutional rights, the effects of such error on this capital trial cannot be minimized for such reasons, but must be assessed by the standard of whether prejudice resulted.

In the course of their testimony, the appellants invoked the fifth amendment to all questions relative to the events surrounding the homicide. 'They answered only questions concerning events occurring after .they were taken into custody and their testimony was primarily related to the issues of voluntariness of their confessions and the contended illegality of their arrests. The record reflects that the appellants invoked the fifth amendment 65 times during the course of their testimony. It is to be noted that this response became so mechanical that (the fifth amendment was even invoked on occasion by appellants to questions asked by their own counsel. The following excerpt from appellant Gilbert’s testimony is typical of the subject matter of the questions to which the right was invoked:

“Q. Is it not a fact that the two of you were together on Tuesday?

“A. I refuse to answer that, Your Honor, on the grounds it might incriminate me.

“Q. Mr. Gilbert, is it not true that you and J. D. Gleaton went to the Soc station in South Congaree to rob the man?

“A. I refuse to answer that on the grounds it might tend to incriminate me.

“Q. Isn’t it true that Mr. Gleaton went inside?

“A. I refuse to answer that, Your Honor, on the grounds it might tend to incriminate me.

“Q. Is it not true that J. D. Gleaton went in and stabbed the man ?

“A. I refuse to answer that, Your Honor, on the grounds it might tend to incriminate me.

“Q. Is it not true that you thereafter went in and shot him?

“A. I refuse to answer that, Your Honor, on the grounds it might tend to incriminate me.

“Q. Did you not try to get in the cash register ?

“A. I refuse to answer that, Your Honor, on the grounds it might tend to incriminate me.”

My first concern is with the impact which this unusual if not unprecedented procedure had upon the jury. I do not feel that the situation here presented can be properly equated to that in which a defendant simply exercises the constitutional right not to take the witness stand. In the latter case, there is only the negative act of not testifying involved. Here, however, the jury is confronted with the affirmative acts of the defendants in taking the witness stand but refusing to answer any questions that were directed to them concerning their guilt or innocence, even though their right to life depended on the outcome of the trial. The physical confrontation of the jury and the defendants present in this case is totally lacking where the defendant simply declines to take the stand. The courtroom atmosphere created by such procedure is incompatible with the very nature of an adversary trial. The refusal to answer the crucial questions asked would strongly imply guilt to a jury. The jury heard these refusals 65 times from the mouths of the appellants. It is illogical to conclude other than that the jury was substantially influenced against the appellants by reason of the procedure here followed.