State v. Luzenski Cottrell (No. 27754)

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. At trial, the State alleged that Cottrell shot and killed Officer McGarry during a scuffle outside of a Dunkin Donuts in Myrtle Beach. The State alleged that McGarry approached Cottrell and attempted to pat him down for weapons, at which time a physical altercation ensued, and Cottrell shot McGarry. On appeal, Cottrell raises five issues

Removal of Cottrell’s trial attorneys.

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. 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, the trial judge afforded Cottrell more than two years before rescheduling the trial so that his new attorneys would have adequate time to prepare.

On appeal, Cottrell characterizes the trial judge’s removal of his counsel as arbitrary and unsupported by any basis in the record. The Supreme Court disagrees, stating that the trial judge “acted properly and in accordance with his broad discretionary authority in removing Cottrell’s appointed attorneys.” Although the Court acknowledges that “it is somewhat problematic that the record does not indicate with specificity what the allegations of misconduct and disagreement actually entail, but the attorneys’ confirmation that the accusations were made and the absence of any rebuttal weighs in favor of affirming the trial judge’s decision.”

Juror Issues

Cottrell next argues the trial court erred in qualifying two jurors after they made statements during the jury selection process indicating they would not consider evidence of a defendant’s background in determining whether to impose the death penalty. The Court quickly dispenses with this issue by noting that the full review of the voir dire process shows that the trial court acted within its discretion in qualifying these two jurors, specifically noting that “Both jurors expressed a willingness to follow the trial judge’s instructions regarding the law, and both indicated they would not automatically impose the death penalty.”

Exclusion of Testimony

The State presented evidence at trial that Officer McGarry had been made aware that Cottrell was a suspect in an unrelated homicide. The State’s theory was that McGarry had this information in mind when he approached Cottrell and attempted to pat him down (which ultimately led to the physical altercation during which Cottrell shot McGarry). Cottrell’s attorneys sought to introduce testimony regarding that homicide investigation in order to show that the State lacked reasonable suspicion that Cottrell was actually involved in the homicide, and therefore McGarry lacked reasonable suspicion to approach and detain Cottrell outside of the Dunkin Donuts. The Court rejects this argument, noting that (1) McGarry was aware of other information about Cottrell, including his involvement in the drug trade, his prior arrests, and another pending attempted murder charge, (2) the witness Cottrell sought to present could not testify to what McGarry actually knew or perceived, (3) for Fourth Amendment purposes, Cottrell was not seized until after he made a gesture towards his waistband. Ultimately, the Court failed to find an abuse of discretion on the part of the trial court for excluding this evidence.

Jury Instruction

During the jury charge conference, Cottrell requested that the trial judge charge the jury not to infer malice from the use of a deadly weapon. The trial judge agreed to remove any instruction permitting the jury to infer malice from the use of a deadly weapon, but he refused to issue an express instruction that the jury could not infer malice from the use of a deadly weapon, noting that the jury has the right to make inferences from the evidence if it chooses to do so. The Court finds that the trial court’s instruction on malice “fully complied with Belcher [385 S.C. 597, 685 S.E.2d 802 (2009)] and did not charge the jurors that they could infer malice from Cottrell’s use of the weapon.” He instructed only that malice could be “inferred from conduct showing a total disregard for human life.”

Jury Note

Lastly, Cottrell argues the trial judge’s refusal to inform defense counsel of the contents of the jury note indicating the jury’s numerical division during sentencing deliberations violated his right to assistance of counsel, a fair jury trial, and a non-arbitrary verdict.

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.

Accepting Cottrell’s argument that the trial judge should have disclosed the numerical split, the Court nevertheless finds that this was harmless error. “Because the trial judge concluded the jury had not yet reached a deadlock such that he needed to give an Allen charge, even if Cottrell had been notified of the numerical split, there was nothing further for him to do at the time to protect his rights.”

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