*1 STATE, Respondent BELL, Jr., Appellant. William H. (406 (2d) 165) Supreme Court *2 Assistant Appellate Shurling, Tara Dawn Defender South Carolina Appellate Defense, Columbia, ap- Office of pellant. *3 Medlock, T.
Attorney Gen. Travis Asst. Attys. Gen. Harold Coombs, M. Jr., Jr. and Miller Shealy, W. and Sol. Columbia, Ducworth, George M. respondent. Anderson, for 25, 1990; Heard Sept. 24, 1991. Decided June Rehearing July 24, 1991. Denied
Gregory, Chief Justice: Appellant was convicted of and robbery murder armed and was sentenced to death. We affirm. case, victim in this of Hepler, principal Dennis was the
West Anderson, Franklin Street School in South Elementary body Carolina. His was found outside the 1:00 school around o’clock a.m. on September 1, 1988. He had been shot twice pistol, with a .25 caliber in back the back once the and once in of the head. were the vic- Appellant’s fingerprints found on tim’s red car the of the parked which was on street in front school. Two nearby complex witnesses from a apartment placed in the o’clock appellant area between 10:00 and 11:00 p.m. on 31 with and August John Glen Kevin . Young. That 1. night September arrested on the of was
Appellant in the first of four statements officers gave police he night, West at the Franklin having ever been which he denied a the guard asked at September 3, appellant On Street School. arresting contact the officers. center to detention near walking He stated he was a second statement. gave then Young. Glen and Kevin with John the school rejoined friends, he his John girl. talk a When with stopped car was of the parked inside a red that front Glen was a At Glen’s player. to remove cassette trying and school of the car door A man came out open. held request, appellant from Young stepped at them. Kevin the shouted school the in the of the school and shot man a wall in front behind scene, ran from heard they and Glen the back. While Young caught them, with up a When gunshot. second youth. Young ride with a fourth threw three obtained a his some bushes front of house. gun into more statements. 4, appellant gave two September On he, Young, Glen First, police he told officers August Ap- on the of 31. grounds night school walking get the cassette attempted unsuccessfully and Glen pellant They of a opening of the car. heard sound door player out building. behind a wall near the school Young and joined a a man said, probably “The man has wallet.” When Young him school, of the moved behind him and told Young came out shot Young his wallet. The victim relinquish complied them jammed. the back. The The victim gun begged him in again. him shot The three fled again. Young not to shoot youth. They split a ride with fourth scene and obtained wallet, for each the three and $20.00 $7.00 $67.00 car, driver of the and threw wallet out the car. a fourth statement iden- Finally, appellant gave essentially *4 it states he took the except gun tical to third jammed, unjammed it, after it him- Young and shot victim All four were admitted into after an self. statements evidence tes- hearing. v. did not extensive Jackson Denno1 tify either trial. phase at (2d) (1964). 1774, 12 L. Ed. 908 U.S. S. Ct.
1 378
15 GUILT PHASE First, appellant claims the Solicitor violated Batson 79, (2d) Kentucky, 476 U.S. 106 S. L. Ct. 90 Ed. 69 (1986), the exercise aof strike peremptory against Juror Galloway. The Solicitor explained this strike stating Galloway Juror “appeared to be weak on very death penalty.” He noted her reluctance to answer death penalty voir dire and the questions fact she several had chil dren age about same as appellant and concluded she would have a difficult time returning a death sentence.
claims this articulated reason was merely pretext because white jurors were seated expressed who reservations about capital punishment or who had children near appellant’s age.
The record discloses that in response questions regard- ing ability her verdict, choose a death Galloway Juror indi- cated at points various she could give not a definite answer. At one point during questioning stated, she “I it’s believe wrong for someone to take somebody else’s In context, life.” is unclear whether this statement referred to the offense com- mitted or jury’s verdict. she Ultimately, however, told the judge she could for vote the death penalty and she was not challenged cause.
Vacillating to voir dire responses questions regarding the death penalty will support use of a peremptory strike against a Elmore, Batson State v. challenge. 300 S.C. (1989). (2d)
S.E. Where thé a perceives person Solicitor will have difficulty imposing may the death he a penalty, exercise peremptory challenge against juror upon ground as — racially Green, (2d) neutral reason. State v. S.C. 392—, S.E. (1990). Such a challenge proper merely even if the juror expresses against scruples the death be penalty that would not sufficient to him excuse or her for sup cause. Id. The record ports the Solicitor’s reason for his strike based on Juror Gal loway’s responses on voir dire regarding the death penalty. Seated jurors with children appellant’s age did not vacillate re the death garding penalty. Moreover, this Court repeatedly has declined to substitute its judgment for that of the Solicitor re subjective garding responses death dire penalty ques voir tions in the face of claims comparable jurors white seated. — (Patterson II), State v. Patterson —, (1990); Woodruff, State v. 300 S.C. 265, 387 *5 16 of the trial challenges propriety next to the credibil- jury regarding remarks
judge’s opening ity. judge The trial stated: of this However, case is as the usual case nature if this conflicting may there be certain court, that’s tried in this in the case. Now, are contradicting testimony or how what facts are con- jury as a to determine true going contradicting testi- any, if there should be flicting, using your judgment You mony? good will do credibility or sense, by passing upon common be- believability credibility means, what of lievability, that’s the witnesses. adversely on his claims these remarks reflected to remain silent.
right judge’s the trial propriety The test to determine of understood juror is what a would have charge reasonable (2d) Rothell, v. State 168, mean. 301 charge to S.C. (Patterson I), State Patterson v. (1990); 228 299 384 (2d) (1989). would juror 699 find a reasonable not S.E. We guide than as a interpreted any way have this remark other Further, the trial credibility necessary. to determine when in both the judge clearly at the close the evidence charged not to that the consider guilt sentencing phases jury appellant’s testify. failure to the solicitor defined
Appellant complains improperly In his the solici opening “reasonable doubt.” statement any doubt fanciful stated, just tor “Reasonable is not substantial, It is a it’s a doubt.” This very doubt. substantial held it doubt Court has is not error to define a reasonable as Woomer, (2d) v. substantial doubt. State 468, 299 S.E. 278 S.C. Butler, (2d) (1982). (1982); v. 277 S.C. S.E. 1 452, 290 We need not address whether this definition violates re Cage holding cent United States Court Supreme Louisiana, L. Ed. —, 111 S. Ct. (1990). “just The trial as what defined reasonable doubt judge term implies, judge’s charge a reasonable doubt.” error in the Solicitor’s statement of the law. State v. cures Jones, 298 S.C.
Appellant contends his statements should have been suppressed. At the Jackson v. Denno all hearing, *6 police officers testified that appellant was given his Mir anda2 warnings waived his rights before statement, each that he acted voluntarily, and that he did not request an attor ney. Appellant’s at testimony the hearing does not deny this. Appellant claims, however, the statements should have been suppressed because the State did not bring him before a mag istrate “as soon as practicable” as required by the Defense of Indigents Act, 51(A). Supreme Court Rule 51(A)
Rule requires: Every person arrested for commission of a crime ... shall be taken as soon as practicable before designated [a offi- for cial] of purpose securing the accused the right to counsel.
Appellant was arrested on Thursday night and taken before a magistrate on Monday. Appellant claims the delay denied him procedural safeguards in violation of due process.
This Court has specifically held a violation of this procedu-
ral rule does not require suppression of any confession so long
as the confession is voluntarily given after Miranda warnings
are issued.
State v. Bishop,
Appellant challenges the trial judge’s charge on sev- eral grounds. Appellant was indicted for armed rob- bery for taking the victim’s wallet containing $67.00. The trial judge submitted both armed robbery robbery to the jury. Appellant claims the jury have found him could guilty only of “attempted larceny” for the unsuccessful at- tempt to remove the player cassette from the victim’s car as stated in his second statement to police.
Appellant was not indicted for unlawfully taking any prop- erty other than the victim’s wallet. A conviction for larceny of Arizona,
2 Miranda v. (1966). S. Ct. L. Ed. 436, 86 robbery of the on the indictment player the cassette based Munn, been invalid. wallet would have victim’s Moreover, defense counsel 497, 357 S.E. larceny not to submit judge asked the trial repeatedly merit. has no jury. exception This judge inadequately claims the trial further trial judge jury accomplice liability. charged follows: charged jury as the hand of one
Now, charge you I’m going hand of one is the Now, of all. as to the law that the hand the acts of guilty all could be oth- hand of all and that guilty find the Defendant murder ers, before could beyond find reasonable doubt from you would have to persons that two or more presented all of evidence that the robbery robbery two or committed armed *7 together conspired together planned more have or persons by or shown their agreement to do such either verbal concerted act acts. or further, beyond would have to find a you
You would the two persons reasonable that or more doubt or together together and either assist- knowingly acting together together or the commission' ing participating a killing should offense, of the further find or probable consequence or homicide was a natural the of or robbery robbery. armed beyond All that a unlawful so, If then the law is that under these reasonable doubt. all; of of circumstances, those the act is the act the or one one is of all. hand of the hand charge clearly not instruct First, appellant contends did robbery that in convicted armed under jury order be of have to find theory accomplice liability, jury ap- a of would robbery others to armed combined with commit the pellant To the find the under- contrary, rather than lesser crime. we the first language paragraph charge permits scored of the guilty to find act he com- jury appellant only whichever commit, robbery. with others to armed This robbery bined standard. charge adequate juror is under reasonable I, Rothell, supra; supra. Patterson Second, charge claims the defective because appellant it did instruct to find the was a natural and jury killing not probable appellant of the act combined consequence specific Peterson, with 244, others to commit. See State v. 287 S.C. disagree. language We The underscored charge jury of the second of the instructs the paragraph must find the was a natural and killing probable consequence to, of whichever act was an accomplice armed rob- bry or This under the robbery. charge adequate reasonable Rothell, I, juror standard. State v. Patterson supra; supra. the trial defined Appellant complains judge improperly malice as “the of a act doing wrongful intentionally without cause or excuse.” He just claims the instruc- tion burden-shifting created an unconstitutional presumption. disagree. We The trial definition of malice is judge’s correct, Judge, 497, (1946), State v. 208 S.C. and the charge given any Moreover, is devoid of the trial presumption. judge clearly jury instructed the it was the State’s burden to prove malice.
SENTENCING PHASE trial judge’s require claims the refusal to try State to him his codefendant Kevin de- Young with prived him of the evidence in opportunity present mitigation by jury to observe allowing Young’s demeanor. sentencing jury capital may in a case not be precluded considering mitigating any aspect as evidence of the de fendant’s character of the or record circumstances may crime that serve as a basis for a sentence less than death. Hitchcock v. 107 S. Ct. 95 L. Ed. Dugger, *8 (2d) (2d) 441 (1987); 332, 353 347 State v. 291 S.C. S.E. Cooper, (1986). A codefendant’s “demeanor” does not fall within this of evidence. The trial did not his category judge abuse discre tion in motion for refusing appellant’s joinder.
Further, trial, at counsel evidence that code- proffered was convicted of Young previously fendant assault and with intent to kill. battery Appellant claims trial judge excluding erred in this evidence because it was relevant to statutory mitigating two circumstances submitted to the (1) an jury: merely accomplice par- was whose appellant (2) relatively minor; was that he ticipation acted under § duress or the domination of another. S.C. Code Ann. 16-3- 20(C)(b)(4) (5) 1989). (Supp.
20
Essentially, argument appellant’s contesting exclusion Young’s record rests on the it hypothesis was evidence re circumstances of the crime. Evidence garding relating to the circumstances of the crime is in capital relevant sentencing if proceeding provides “information relevant to the defen Gathers, South Carolina v. dant’s moral culpability.” (2d) (1989). 805, 812, 109 2207, 2211, 104 S. Ct. L. Ed. We find the proffered evidence of Young’s prior record, ab sent any evidence its establishing logical relevance to the cir of the crime, cumstances is not probative the issue of ap pellant’s moral culpability.
Appellant next claims that since the record contains no waiver “right” of his to have parole eligibility charged Atkins, under State v. (2d) (1987), the judge trial erred in failing give to In charge. Atkins, this a capital Court held defendant tried under the Omnibus Criminal Justice Improvements Act may request that the jury charged be regarding parole eligibility. There is no requirement charge be absent a given request and it is defendant’s burden show a was made. request further argues parole eligibility relevant is
evidence in mitigation. contrary, To the this Court has not evidence. eligibility held parole mitigating Patterson, (1989). 280, 384 299 S.C. S.E. the trial judge claims erred in failing to sua declare a after sponte mistrial the solicitor summarized the testimony Morgan, of Dr. a psychiatrist, as indicating appel- lant “would be likely follow other violent leaders in commit- violence” ting and that he is “prone toward violence.” Appel- lant claims these comments are not supported by the record. disagree. We
Dr. Morgan testified on direct examination that appellant average his adaptability to life. On prison cross-exami nation, however, Dr. Morgan stated that if prisoner another provoke appellant, it was his opinion would retaliate. He also stated appellant’s character was that of a follower and if he attached himself to a leader inclined toward he violence, would follow. Based on this testimony, we find the
Solicitor’s remakrs were well within the record and were Caldwell, State v. therefore proper. 300 S.C. *9 “mitigat- definition of judge’s claims trial the consider the jury not allowthe circumstance” did
ing regarding ap- evidence mitigating presented extensive explaining mitigating In background. character and pellant’s the as follows: charged jury the trial circumstances, judge considering statutory aggravat- Now, addition to each circumstance, alleged shall also consider ing the evi- by mitigating supported circumstance statutory fact, circumstance is a de- statutory mitigating dence. A Assembly the General tail, incident or occurrence which statute would render by of South Carolina has declared of murder severe, that is to the offense mitigate, less accompanies or occurrence fact, detail, when that incident that act of murder. recognized is one statutory mitigating
A circumstance mercy which in fairness and by circumstance, statute as a or as the de- extenuating reducing shall be considered as the act of of moral for the commissionof gree culpability circumstance, noted, it should be mitigating murder. A justification would not constitute either or excuse Such a circumstance would question. simply offense blameworthy make him less guilt, lessen one’s that is culpable. less several jury regarding then judge charged
The trial circumstances, including statutory mitigating crimes. of convictions for violent history no significant had “other mitigating to consider judge charged jury also that are sup- or allowed law circumstances authorized the evidence.” ported by fo of the language charge claimsthe underscored the crime to attention on the circumstances of jury’s
cused find,We from background. exclusion of his character and reasonable likelihood the context of the there is no charge, jury considering mitigat charge prevented Boyde California, mercy. evidence in fairness and ing 1190, 108L. Ed. U.S. S. Ct. required by review
We have conducted the sentence (1985) § and conclude the evi- S.C. Code Ann. 16-3-25 of an cir- finding aggravating supports jury’s dence im- arbitrarily was not We find the death sentence cumstance. *10 posed and is proportionate to the in similar penalty cases. See I, Patterson supra.
Affirmed.
Harwell, Toal, J.J., Chandler concur.
Finney, J., dissenting separate opinion.
Finney, Justice (dissenting): I respectfully my dissent. In opinion, state’s articulated racially neutral striking reason for prospective black juror Katherine (Galloway) M. Galloway clearly a pretext, vi olation of Batson v. Kentucky, S. Ct. L. Ed. 69 (1986), Oglesby, and State v. I would reverse.
The state claims Galloway was excluded because she “ap- peared very to be weak on the death penalty,” based upon her answers to voir questions, dire and the fact that she had chil- dren of about the age same as the appellant.
According record, to this the state white accepted jurors whose similarity answers bore marked to Galloway’s. Addi- tionally, white jurors seated state had children of about age same as the appellant.
Following is the pertinent portion Galloway’s voir dire testimony.
COURT: Are you in favor of the death penalty, opposed to it just where do you sit?
GALLOWAY: I—I believe in our legal I system, and feel when everything is brought to the court and presented to the court, I do believe in the jury selection, well, choosing a verdict. I don’t really say yes or no. —can’t GALLOWAY: I believe it’s wrong for take someone to somebody else’s life.
COURT: Well, could you, you, however —could an- just swer, not in case, but if the facts were bad enough, could you return a death penalty?
GALLOWAY: If all the evidence pointed to that person, I I believe could. speaks
COURT: And could return a verdict you if either a life sentence or according your finding truth stated, you the other a death was, way, penalty, it as could do that? You could consider both? them both.
GALLOWAY: I could consider your penalty Could name to a death you sign COURT: the other twelve along jurors? with all difficult, but I— GALLOWAY: I think would be kind if I—if what we chose as a verdict— that’s *11 might the fact that the Defendant be Would STATE: make your might about the same as some of children age death you penalty? it more difficult for to vote for the I, I say. GALLOWAY: That’s hard to or [sic] don’t — I course, age. think that I have a child that sound ruthless when I but this is that’s that say, something happened to be decided if I’ve been chosen as a upon, needs fair, juror, my everybody I would do best with else be and I would sign. juror,
As an the voir dire of one white example, testimony voir Gast, Galloway’s Grace Ann follows for with comparison dire responses. the death penalty?
COURT:... What is on your position until I was thought I it a whole lot of give GAST: hadn’t in South Carolina it case. I know particular called this I feel if Personally in this state. has the death penalty have murdered they crime that somebody admits to a is in order. If penalty then I feel like the death somebody, innocent, maintains he’s we know, the you person its— have decide, people of twelve group and a go through and then decide what the all, guilty, first of innocence with, problem be, personal I have should punishment says that person and be I sit there you know, up can I don’t know how I don’t know—I man’s to die. got this about that. feel regardless just automatically Would you
COURT: auto— imprisonment? return life are, only of what the facts Could consider both sides? you the moral point down to the guess gets GAST: I and, you know, if we have all of this evidence issue. Even know, yes, says, you eleven other in that room people I’m the last know, I look at it that, you death penalty say, you I situation, would be able vote, hypothetical me like yes. playing vote in and To it’s know, put my say, in I know. I’ve never been God in some cases. don’t I do. I don’t know what would position. case, talking you this, Let me ask not about
COURT: case, enough any If the facts were bad about case. if one, enough— now not this the facts bad of death with along COURT:—could return a verdict eleven jurors? other GAST:Possibly.
COURT: You could consider it?
GAST:Uh-huh. Juror accepted the state posing any questions, Without than was, view, vacillatory more position my Gast whose *12 “neutral” Thus, I would conclude that state’s Galloway’s. “weak on the death excluding prospective jurors reason of where, a for racial discrimination of two penalty” pretext accepts similar the state persons expressing viewpoints, rejects venireperson white and the black venireperson (Patterson Patterson, II), her See State v. viewpoint. basis of — (1990) —, (Finney dissenting). Galloway articulated for striking The state’s second reason appel- that had children of about the same as the age she age, had children of similar all of venirepersons lant. Six white six, the state. Of the three were ex- accepted by whom were jury. cluded the defense and three were seated on that the solicitor state contends the has not shown concerning ages venireper- was aware of information this information is fur- sons’ children. The record reflects that prior to juror completed sheets questionnaire nished on such informa- suggestion that term. I find ludicrous court not available the state. tion was rea- racially neutral the state’s asserted
I would hold venireperson Galloway pre- black excluding sons similarly accepted since state for racial discrimination text I re- Oglesby, supra. would jurors. situated white verse. BANK, ADAMS, Respondent R. Deb v. Howard BROTHERS
ANDERSON Commission, Conway Adams, Tax National D. The South Carolina orah Rental, Carolina, Bank, Bank of South McCollum Car National Whatcha S.C., Larry Company of & Trust Chandler First Citizens Bank Defendants, Jr., Larry Of Lyerly, Whom Chandler William C. Jr., Larry Lyerly, Appellants. And CHANDLER William C. are ANDERSON, Jr., Appellants Respondent. v. Howard Lyerly, William C. 173)
(406 Supreme Court