STATE OF SOUTH CAROLINA COURT OF GENERAL SESSIONS COUNTY OF CHESTER SIXTH JUDICIAL CIRCUIT STATE OF SOUTH CAROLINA, PLAINTIFF, ORDER VS. JAMES ROBERT MCCLURKIN AND RAY CHARLES DEGRAFFENREID, DEFENDANTS. This matter comes before the Court by way of a Motion for a New Trial based on after?discovered evidence. The sole basis for the motion consists of a recantation of testimony of one Melvin "Smokey" Harris, Jr., who had been a witness for the State at the Defendants' 1977 trial. The Motion for a New Trial is denied. The history of this case is as follows: The Defendants were tried and convicted in Chester County Court of General Sessions on November 5, 1977, of Murder and Armed Robbery arising from a crime that had occurred in Chester County on August 5, 1973. At that trial, key testimony was given by Melvin "Smokey" Harris, Jr., an individual who himself had a criminal record and had serious charges pending. Mr. Harris' testimony placed both Defendants at the scene of the crime, planning to commit the robbery and placed the Defendants actually entering the business to be robbed. Mr. Harris further testified to hearing a gunshot shortly after the Defendants entered and that he, Mr. Harris, ran from the scene at that time. All appeals taken from the 1977 convictions have been resolved in favor of the State. On or about March 26, 1992, Melvin "Smokey" Harris, Jr., was arrested. in, Chester County and charged wm?ji Murder? and Armed Robbery that had occurred on March 24, 1992, in Chester County. Mr. Harris was indicted on May 11, 1992, and on or about July 1, 1992, the State served Notice of Intent to Seek the Death Penalty against Mr. Harris. On October 11, 1992, at his request, Mr. Harris gave a statement to Chester County Deputy Sheriff Fred Green in which he recanted his earlier testimony at the Defendants' 1977 trial and stated that he had no knowledge of that 1973 murder and was in fact, "at home mowing the lawn." (Exhibit 1) A copy of the October 11, 1992, statement was supplied to the Defendants herein and provided the basis for this Motion for a New Trial filed on behalf of these Defendants on March 16, 1993, by their attorney, Mr. Dennis Bolt of Richland County. On May 24, 1993, Melvin ?Smokey" Harris entered into an agreement with the State in which Harris plead guilty to Murder witrx Circumstances Aggravation jji exchange for the State withdrawing its request for the Death Penalty. The pleas were accepted and Mr. Harris was sentenced to life in prison without parole consideration for thirty (30) years for Murder and twentyefive (25) years consecutive for Armed Robbery. It was also stated on the record that due to Mr. Harris? prior con? victions for crimes of violence, he may never be eligible for parole consideration. On. May 28, 1993, at the Department (Hf Corrections in Columbia, Mr. Harris was interviewed by Mr. Bolt, attorney for these Defendants. That interview' was transcribed. into affi? davit form and was made a part of this motion, the same being filed on June 1, 3993. The substance of the May 28, 1993, Affidavit was similar to the October 11, 1992, statement in that he recanted his 1977 testimony that incriminated these defendants but differed in that he stated that, Harris, acting alone, had committed the murder and armed robbery on August 5, 1973. This matter came to be heard on November 22, 1993, at the Chester County Courthouse. Present were the Defendants, Mr. McClurkin and Mr. Degraffenreid, along with their attorney, Mr. Dennis Bolt. The State was represented by Solicitor John R. Justice of the Sixth Circuit. Also present and testifying in support of the motion was Melvin "Smokey" Harris, Jr. In testimony taken, Mr. Harris admitted to having made both the October 11 and the May 28 statements. Also upon cross examination. as tx> the events surrounding the murder on August 5, 1973, Mr. Harris gave answers that were in direct contradiction ix) other evidence admitted the record ?of that trial. Testimony was also introduced in regards to numerous convictions of Mr. Harris of crimes of moral turpitude both before and after his 1977 testimony in this case. Motions for a new trial based on after?discovered evidence is addressed to the sound discretion cu? the trial judge. State v. Irvin, 270 sc 539, 243 s.s.2a 195, In State V. Parker, 249 S.C. 139, E53 183 (1967), the Supreme Court said that when the ground for a new trial is based upon a recantation of testimony, ordinarily such testiw mony is; viewed eas unreliable emui should lme subjected ix: the closest scrutiny. In the case at hand, the sole basis for the Motion for New Trial is the recanted testimony of Melvin ?Smokey" Harris. Applying the ?closest scrutiny" to that recantation, I find the following: First, since the time of his arrest in March 1992, Mr. Harris has given two (2) different versions of his recantation. In the October 1992 version, he claims to have no knowledge of the 1973 crimes and was elsewhere at the time of its commission. I note it to be significant that at the time of the October statement, other murder charges were pending against Mr. Harris and the State was seeking the death penalty. The second version of the recantation, reflected in the May 25, 1993, Affidavit and the testimony of November 22, 1993, in which Mr. Harris claims sole responsibility for the 1973 crimes. It is here noted that this version came only after Mr. Harris had been sentenced to life imprisonment for Aggravated Murder and for all practical purposes was immune to additional punishment (there was no valid death penalty at the time of the commission of the 1973 murder). This Court also notes that Mr. Harris' most recent testimony is contradicted by that of other witnesses and physical evidence introduced in the 1977 trial. Due to the Hmltiple versions that Mr. Harris has given in regards to events of August 5, 1973, and the circumstances surrounding each version and Mr. Harris' extensive record of crimes c?f moral 'turpitude, II find that general ins lacks credibility. However, upon reviewing each version and the record of the 1977 trial, I find that the only version that is in part corroborated other evidence if; that testimony given by Mr. Harris in the 1977 trial. IT IS ORDERED that the Motion for a New Trial is hereby denied. 7 7 73" e?ov? 1% ?Hr January' 5f 1994. US ING PRESIDING JUDGE Lancaster, South Carolina. SIXTH JUDICIAL CIRCUIT cc: Honorable John R. Justice Dennis Bolt, Esquire