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State v. Cottrell

Supreme Court of South Carolina

December 20, 2017

The State, Respondent,
Luzenski Allen Cottrell, Appellant. Appellate Case No. 2015-000731

          Heard May 24, 2017

         Appeal From Horry County The Honorable Larry B. Hyman, Jr., Circuit Court Judge

          Keir M. Weyble and Sheri L. Johnson, both of Cornell Law School, of Ithaca, New York, and Robert M. Dudek, of Columbia, for Appellant.

          Attorney General Alan Wilson, Senior Assistant Deputy Attorney General Donald J. Zelenka and Assistant Attorney General J. Anthony Mabry, all of Columbia, and Solicitor Jimmy A. Richardson, of Conway, for Respondent.



         Appellant Luzenski Allen Cottrell was convicted and sentenced to death by an Horry County jury for the 2002 murder of Myrtle Beach police officer Joe McGarry. On appeal, Cottrell now raises five issues, all of which involve rulings largely addressed to the trial judge's discretion. Finding no abuse of discretion by the trial judge, we affirm his conviction and sentence.


         Shortly after midnight on December 29, 2002, McGarry and fellow police officer Mike Guthinger entered a Dunkin Donuts in the city of Myrtle Beach. Both officers were in uniform and on duty, completing a traffic stop a short time earlier before deciding to get coffee. Upon entering Dunkin Donuts, McGarry immediately recognized Cottrell, who was ordering coffee at the register with two companions, Diane Lawson and Fred Halcomb. McGarry was familiar with Cottrell, having had several previous encounters with him, including arresting Cottrell for possession with intent to distribute marijuana earlier that year. More significantly, Lt. Amy Prock of the Myrtle Beach Police Department had recently notified McGarry that Cottrell had been identified as a possible suspect[1] in the shooting death of Rick Hartman, whose body had been found in a rural part of Horry County roughly a month earlier.

         Upon recognizing Cottrell, McGarry informed Guthinger that Cottrell was identified as a suspect in a shooting and that he was possibly carrying a gun. Rather than proceed in line to get coffee, McGarry and Guthinger exited the Dunkin Donuts and approached Cottrell on the sidewalk as he stepped out the door. McGarry asked Cottrell whether he remembered him, and then inquired as to whether he had taken care of the previous charges for which McGarry had arrested him. Cottrell indicated they were all taken care of. At that point, McGarry asked Cottrell for his identification and informed him he was going to run an NCIC check to see if Cottrell had any outstanding warrants.

         While waiting for a response from the dispatcher after calling in Cottrell's information, McGarry indicated to Cottrell that he was going to perform a pat-down for weapons. Cottrell told McGarry "no" before turning and walking away toward another vehicle driven by Donnie Morgan, who was part of Cottrell's group but unknown to the officers at the time. Cottrell's right hand was somewhere near the front of his waistband as he turned and walked away.[2] McGarry then immediately began yelling for Cottrell to stop and show his hands. When Cottrell did not comply, McGarry unholstered his weapon and again commanded Cottrell to show his hands. With Cottrell's back still turned to him, McGarry reholstered his weapon and rushed towards Cottrell from behind, struggling to grab Cottrell's right hand which was near the front of his waistband, while McGarry's left hand was somewhere on Cottrell's upper back or shoulder, attempting to gain control of him.

         The pair stumbled and separated as they slid toward the rear of the Morgan vehicle. As they regained their balance and squared up, Cottrell raised a .45 caliber handgun and fired a shot, striking McGarry in the face from eight to twelve inches away. The shot incapacitated McGarry, who fell backwards and struck his head on the pavement.[3]

         Immediately upon seeing Cottrell shoot McGarry, Guthinger drew his weapon and fired several shots at Cottrell, striking him in the leg as Cottrell sought cover behind Morgan's car.[4] Guthinger and Cottrell continued to exchange gunfire, and numerous vehicles and nearby buildings were struck by bullets. At some point during the shootout, Cottrell told Guthinger he was surrendering, prompting Guthinger to leave his protected position to place him under arrest. However, as he approached, Cottrell reloaded his firearm and resumed shooting at Guthinger, who retreated to cover and called for backup.

         Cottrell fled the scene and responding officers engaged in a high speed chase through Myrtle Beach until his getaway vehicle was brought to a halt using stop sticks to disable the tires, and he was placed under arrest. Police recovered the .45 caliber weapon that was forensically matched to the bullet which killed McGarry, along with another loaded .357 revolver in the backseat. Officers attempted to perform CPR on McGarry, but he passed away in the Dunkin Donuts parking lot.


         Cottrell was first tried for the murder of McGarry in 2005. At that trial, the jury found him guilty of murder, assault with intent to kill, resisting arrest, and grand larceny. Cottrell appealed the murder conviction, and this Court reversed, finding the trial court erred in refusing to give the jury an instruction on voluntary manslaughter in addition to murder. State v. Cottrell, 376 S.C. 260, 265, 657 S.E.2d 451, 454 (2008) (hereinafter referred to as Cottrell I). The other convictions remained, but Cottrell was granted a new trial on the murder charge.

         Weeks prior to the scheduled start of Cottrell's second trial in March 2012, the solicitors representing the State had separate conversations with Cottrell's appointed attorneys, at which time each accused co-counsel of misconduct and questioned their ability to adequately represent Cottrell in light of their difficulty working together. The solicitors made the trial judge aware of these allegations, and he conducted discussions in chambers with the appointed attorneys, who both confirmed they had indeed made the allegations brought to light by the State. Both attorneys also indicated they felt their inability to work together jeopardized Cottrell's defense.

         In a pre-trial hearing, the trial judge expressed his concerns over the allegations made by Cottrell's attorneys, questioning whether it was possible for them to effectively represent Cottrell. Cottrell's attorneys stated they could put their differences aside and work together so the case could proceed, but acknowledged they would defer to the trial judge's decision. One of the attorneys admitted that the allegations were probably sufficient to solidify post-conviction relief if the case went forward. The trial judge then gave Cottrell an opportunity to discuss the matter with his attorneys. After their discussion, Cottrell reiterated he felt confident in his attorneys' ability to represent him, but that he would defer to the trial judge's decision. Ultimately, due to his concerns for Cottrell's representation and the ability of the attorneys to overcome their problems just two weeks before trial, the trial judge decided to relieve both attorneys. After appointing new defense counsel, [5] the trial judge afforded Cottrell more than two years before rescheduling the trial so that his new attorneys would have adequate time to prepare.

         Cottrell was eventually tried and found guilty of murder, and the case proceeded to sentencing. During the sentencing phase, the jury heard evidence of Cottrell's prior bad acts, including a prior conviction for the murder of Jonathan Love in Marion County, as well as testimony surrounding Hartman's murder, which the State asserted Cottrell was responsible for although the case had not yet been tried.[6]

         After deliberating for approximately two hours over Cottrell's sentence, the jury sent a note to the trial judge indicating there were eleven jurors for the death penalty and one for life, asking, "What is the next step?" The trial judge did not disclose to the parties what the split was at that time, instead reading a redacted version without the numerical count, and informing them that he would instruct the jury to continue deliberations. Because the jury had only been deliberating for two hours, the trial judge concluded it was too early to give an Allen[7] charge. The jury continued its deliberations and ultimately returned with a unanimous recommendation that Cottrell be sentenced to death.[8] Cottrell now raises five issues in his appeal to this Court.


         I. Did the trial judge's removal of Cottrell's appointed attorneys violate his right to counsel and due process under the Sixth and Fourteenth Amendments?

         II. Was Cottrell's right to a fair and reliable sentencing determination violated as a result of the qualification and seating of two jurors whose expressed views prevented or substantially impaired their ability to consider constitutionally relevant mitigating evidence?

         III. Did the trial judge err in excluding the testimony of Detective Nathan Johnson on the grounds that the risk of prejudice substantially outweighed its probative value?

         IV. Did the trial judge err by refusing to instruct the jury not to infer malice exclusively from the use of a deadly weapon?

         V. Did the trial judge err by refusing to disclose the contents of a jury note to Cottrell's defense counsel during sentencing deliberations?



         Cottrell contends that the removal of his appointed counsel without any factual findings on the record was an unnecessary termination of his existing attorney-client relationship and a violation of his Sixth Amendment rights. On the other hand, the State asserts the removal of Cottrell's counsel was an appropriate exercise of discretion by the trial judge. Given the trial judge's discretionary authority and his duty to ensure the integrity of the judicial process and safeguard Cottrell's right to effective counsel, we find the trial judge did not abuse his discretion in removing Cottrell's attorneys and appointing new counsel.

         An accused has the right to assistance of counsel. U.S. Const. amend. VI. However, the Sixth Amendment right to counsel is "circumscribed by the trial court's obligation to safeguard the integrity of the proceedings and ensure trials are conducted according to the ethical standards of the profession." State v. Sanders, 341 S.C. 386, 389, 534 S.E.2d 696, 697 (2000). Thus, a motion to relieve counsel is left to the discretion of the trial judge and will not be disturbed absent an abuse of discretion. State v. Justus, 392 S.C. 416, 418, 709 S.E.2d 668, 670 (2011). In determining whether to remove a defendant's attorneys, a court must balance a defendant's right to choose his own counsel "against the need to maintain the highest ethical standards of professional responsibility." Sanders, 341 S.C. at 390, 534 S.E.2d at 698. The Fourth Circuit has explained that a trial judge must be allowed "substantial latitude" and broad discretion in disqualifying a defendant's chosen lawyer so the trial judge may "rule without fear that it is setting itself up for reversal on appeal." U.S. v. Howard, 115 F.3d 1151, 1155 (4th Cir. 1997).

         Cottrell characterizes the trial judge's removal of his counsel as arbitrary and unsupported by any basis in the record, citing to United States v. Gonzales-Lopez, 548 U.S. 140, 147-48 (2006), for the proposition that the removal of his attorneys was a structural error under the Sixth Amendment. We disagree.

         While Cottrell is correct in asserting that the erroneous deprivation of a defendant's counsel of choice is a structural error in violation of the Sixth Amendment, the key qualifying language in that statement of law requires that the removal of defendant's chosen counsel be erroneous. In Gonzales-Lopez, the United States Supreme Court noted that the right to counsel of choice is not absolute and is subject to several limitations, but because the government conceded that the district court erroneously deprived respondent of his counsel of choice and without proper justification, the broad discretion normally afforded to trial judges was not applicable. Id. at 152. Importantly though, the Gonzalez-Lopez court made clear that its holding did not cast any doubt or place any qualifications upon its prior holdings that "limit the right to counsel of choice and recognize the authority of trial courts to establish criteria for admitting lawyers to argue before them." Id. at 151. Reaffirming its earlier holdings, the Court further noted this right to counsel of choice does not extend to defendants represented by appointed counsel. Id. The Court also reiterated the wide latitude that ...

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