"Common law offenses are not abrogated simply because there is a statutory offense proscribing similar conduct." McAninch and Fairey, The Criminal Law of South Carolina, 39 (2d Ed. 1989). Rather, it is presumed that no change in common law is intended unless the Legislature explicitly indicates such an intention by language in the statute. Nuckolls v. Great Atlantic & Pacific Tea Co., 192 S.C. 156, 5 S.E.2d 862 (1939).
Here, solicitation and accessory before the fact of murder are separate offenses. Solicitation is counselling, enticing or inducing another to commit a crime. State v. Furr, supra; 74 Atty. Gen. Op. at 328. Although the crimes arose from the same circumstances, the solicitation was complete when Andrews was asked by Prince to find someone to murder Mr. Graham. In contrast, the evidence shows the principal involved in the accessory before the fact of murder charge was a different individual. Under the facts of this case, we do not reach Prince's statutory claim.
As to whether solicitation is a lesser-included offense of conspiracy, the test is whether the greater offense (here, conspiracy) includes all the legal and factual elements of the lesser (here, solicitation). State v. Suttles, 279 S.C. 87, 302 S.E.2d 338 (1983). While a conspiracy involves the combination of two or more persons, S.C. Code Ann. § 16-17-410 (1985), solicitation contains the additional element of inducing another to commit a crime. It is not, therefore, a lesser included offense of conspiracy. State v. Suttles, supra; see McAninch and Fairey, The Criminal Law of South Carolina, 335-336 (2d Ed. 1989) ("Indeed, because they are also separate from each other, it is certainly conceivable that one could be convicted of solicitation, conspiracy and attempt even though the substantive offense to which they relate is never completed."); see also State v. Lewis, 293 S.C. 107, 359 S.E.2d 66 (1987) (convictions for conspiracy, solicitation of murder and accessory before the fact of murder sustained on other grounds).
Prince argues that he was entitled to a mistrial based upon a comment made by Smith's counsel in closing argument. We disagree.
In closing, Smith's counsel told the jury that they could not use McCray's statement against Smith. He further explained:
I'm sure you will follow your oath and
not consider that statement against the
Defendant Charlie Dorn Smith.
And there is a very good reason for
that. This is a situation where we have
no way to cross-examine, to test the
truthtelling of that individual, who
either made the statement or didn't make
it, but purportedly made it. And unless
someone can come into this court and
take the stand and testify against my
client, then a statement of another
person to someone else is not competent
evidence to be considered against him.
And we can really understand the reason
for that, because any of us, next week,
could have someone go to the authorities
and make a statement about us and unless
that person is willing come into court
and testify about it, it can't be used
against us. It should not be used
against us. Now, the Defendant McCray
has elected not to take the stand,
pursuant — (Emphasis added).
Thereupon, counsel for both Prince and McCray objected and moved for a mistrial. Prince's counsel contended that this statement prejudiced Prince, who also did not testify at trial. The mistrial motions were denied, but the trial judge stated that he would instruct the jury on a defendant's absolute, constitutional right not to testify.
It is well-settled that the decision to grant or deny a mistrial is within the sound discretion of the trial judge. State v. Dawkins, 297 S.C. 386, 377 S.E.2d 298 (1989); State v. Howard, 297 S.C. 481, 374 S.E.2d 284 298 (1988). Here, there was no abuse of discretion in the denial of the mistrial. The judge ordered Smith's counsel not to comment further on the co-defendants' right to remain silent, and he later gave an explicit instruction on this right. Under these facts, a mistrial was not warranted. State v. Howard, supra (a co-defendant's statement concerning another murder possibly committed by defendant did not require a mistrial).
Prince contends he was entitled to a severance, arguing he was prejudiced by: (1) the publication of co-defendant McCray's statement; (2) the redaction of certain portions of McCray's statement; and (3) the inability to cross-examine McCray regarding his statement. We disagree.
This was a capital case and this Court has previously warned that serious consideration should be given to severance motions, especially in capital cases, where confessions are involved. State v. Howard, 295 S.C. 462, 369 S.E.2d 132 (1988); State v. Bellamy, 293 S.C. 103, 359 S.E.2d 63 (1987). A review of the facts of Howard and Bellamy shows that in these cases the Court was concerned with the constitutional, evidentiary, and fairness problems arising from situations where a non-testifying co-defendant's statement which implicates another co-defendant was either inadmissible, or unfairly redacted. There is no such problem here, however, since McCray's redacted statement was not inculpatory of Prince.*fn4 Further, the judge repeatedly limited the jury's consideration of McCray's redacted statement to the issue of McCray's guilt or innocence.*fn5 See State v. Harvey, 253 S.C. 328, 170 S.E.2d 657 (1969); State v. Chaffee, 285 S.C. 21, 328 S.E.2d 464 (1984), cert. denied, 471 U.S. 1120, 105 S.Ct. 2370, 86 L.Ed.2d 268 (1985). This case does not present the problems found in Howard and Bellamy.
Prince's third claim is that the denial of his severance motion denied him the right to cross-examine McCray. In State v. Crowe, 258 S.C. 258, 188 S.E.2d 379 (1972), this Court held: "[t]he fact that the refusal to sever resulted in the failure of [defendant] Crowe to have his co-defendant testify in his behalf did not constitute reversible error. The record fails to show that [co-defendant] Wright would testify if a separate trial were granted or that his testimony would exculpate the co-defendant Crowe." Id. at 267, 188 S.E.2d at 383. Here, as in Crowe, there is no showing that co-defendant McCray would have testified favorably to Prince had a severance been granted.
Prince has failed to show any abuse of discretion or resulting prejudice from the joint trial. State v. Crowe, supra.
7. After-Discovered Evidence
Prior to oral argument, Prince petitioned this Court for leave to move before the circuit court for a new trial based upon after-discovered evidence. We deny the motion.
Prince contends he has new evidence that Mr. Graham's body was left unattended in an open garage of the funeral home for two days and one night following the first autopsy. He argues that the body could have been tampered with during this period. The alleged new evidence was received from former employees of the funeral home.
In order to obtain leave to seek a new trial based upon after-discovered evidence, an appellant must make a prima facie showing before this Court of the following elements:
(1) the evidence is such as will probably
change the result if a new trial is granted;
(2) the evidence has been discovered
since the trial;
(3) the evidence could not have been
discovered prior to trial by the
exercise of due diligence;
(4) the evidence is material; and
(5) the evidence is not merely
cumulative or impeaching.
State v. Ford, 301 S.C. 485, 392 S.E.2d 781 (1990).
Here, Prince has failed to establish that this evidence could not have been discovered by due diligence. He attempted to discuss the handling of the body with the funeral home employees prior to trial; therefore, he obviously had some awareness that the body was mishandled. He made no attempt, however, to proffer the testimony of any of the employees at trial. Moreover, there is no showing that he adequately interrogated these employees prior to trial. State v. Kelly, 285 S.C. 373, 329 S.E.2d 442 (1985).
Accordingly, we deny Prince's petition for a new trial based upon after-discovered evidence. The remaining issue is affirmed pursuant to Rule 220(b)(1), SCACR.
We reverse the order granting a new trial on Prince's conviction for accessory before the fact of murder and remand for sentencing. We affirm Prince's convictions for solicitation and conspiracy.
Reversed in part; affirmed in part.