*1 DAVIS, STATE, Appellant. Respondent v. Thomas Lee The (422 (2d) 133) Supreme Court *6 and Frank W. both of South Car- Draper John H. Blume Penalty olina Death Resource Center and South Carolina Of- Columbia, Appellate Defense, appellant. for fice of Deputy Atty. T. Travis Medlock and Attorney Gen. Chief Zelenka, and Sol. William Townes Columbia; Gen. J. Donald Jones, IV, Greenwood, respondent. for 5, 1992. Decided Oct. May 18, 1992;
Heard 5, 1992. Reh. Den. Nov.
Harwell, Chief Justice: Thomas appellant This is an of a trial wherein appeal capital (Davis) murder and sentenced Lee Davis was found guilty affirm. to death. We
FACTS eight evening Thanksgiving Around o’clock the before campus Lisa Marie Schmidt was to leave preparing with friends. She was College spend holidays Lander dormitory, the front of her struck about steps accosted on mouth, dormitory and the front of the eyes along and forced away. a 40 feet Her point growth behind bushes about against surface dormi- rough forehead battered of the and she was Her nude tory, strangled raped. partially and feet body dragged pond to a approximately goldfish face placed down into the water. She was found there Thanksgiving morning.
Minutes before committed, the crime was another student stranger confronted where hallway dormitory she and victim She to the several spoke resided. man for The next after day, discovered, minutes. the victim was gave student a statement of the investigators incident helped prepare composite drawing describing the intruder. Davis, who is mildly retarded,1 confessed the crime February confession, 1989. after the who Shortly student had confronted the intruder was requested photo- view a The graphic lineup. student identified Davis from the lineup. *7 in subsequently Davis was indicted March 1990 for kidnap- criminal sexual conduct and At ping, time, murder.2 this the it State entered notice that would seek death penalty. moved change Davis for a in venue because of the extensive publicity his arrest surrounding and indictment. Rather than the location of the moving trial, however, the trial or- judge a jury dered that be county selected from another and In brought jurors Greenwood. in May 1990, picked were Florence County transported County, and to Greenwood trial, where at they guilty murder, bifurcated found Davis of and in kidnapping, degree. criminal sexual conduct the first The sentenced Davis to jury subsequently death, finding aggravating circumstances criminal sexual con- kidnapping, duct, physical and torture.
DISCUSSION I. PRETRIAL ISSUES Jury A. Selection of first
Davis contends the trial judge possessed no authority to order the jurors selection of in Florence County authority, because statute granting this an Davis has 66. I.Q. originally August kidnapping, Davis in indicted 1989 for criminal sex assault, ual and murder. effec- 1991), did not become § (Supp. Code Ann. 17-21-85 disagree. We the crime was committed. tive until after 17-21-85 provides: Section he deter- case in which in a criminal judge may,
A circuit in the cannot be selected jury an unbiased mines that indicted, order in which the defendant county county other and forward in some go selection jury in county to the selected, transported be when jury, returned for the duration indictment was which the as proceed whether In a determination making trial. of venue for a change to order a this section or allowed ex- logistical consider all trial, the court shall jus- the demands of and, consistent with elements pense in least expense that results tice, choose the method in the involved parties for all convenience greatest county in another All selection expenses case. in the trial occurs. county which paid by must be to crimes only 17-21-85 applies that section argues statute, which was the effective date of committed after Davis, judge’s the trial deci- According 1990. January 31, ap- in the retroactive section 17-21-85 resulted employ sion to of the statute. plication prospective to be presumed are
Generally, statutes or retroactive, they unless are remedial rather than Meares, v. nature. Jenkins procedural is a pro- that section 17-21-85 We find 394 S.E. an alternative to a trial give cedural tool intended to When a statute circumstances. change appropriate of venue ap- a retroactive ordinarily it will be accorded procedural, *8 to actions applied pending in the sense that it will be plication Id. We conclude judge that the trial did not and proceedings. section 17-21-85. utilizing err in Dire Issues Voir B. judge improperly pre- the trial
Davis next asserts their jurors regarding examining prospective him from cluded officers over by police lay testimony presented bias in favor of disagree. We persons. whether he juror a potential
Davis’s trial counsel asked testimony of a uniform to the “give weight would more a The trial give lay person.” than would to officer [he]
335 nature. con- judge queries disallowed further this him of judge’s ruling deprived oppor- tends that the trial to select a and tunity impartial jury. fair
We this in v. previously question addressed State (2d) Adams, denied, 228, 208, S.E. 306 cert. (2d) 1023, 104 558, 464 U.S. S.Ct. 78 L.Ed. 730 Torrence, 45,406 overruled on other grounds, S.C. (2d) (1991). Adams, In we held a juror should not, to prior trial, required identify be which witnesses he will or type believe; believe what of witnesses he will rather, he the credibility must determine of witnesses after he has of the testimony. Therefore, heard all as to the inquiry weight a one juror give would kind of witness over another invades to determine province credibility individual the context of the entire case. Id. on our holding Based Adams, we find that the trial did err in judge not preventing questioning jurors Davis from in an effort to ascertain they give whether more might weight testimony presented by lay persons. officers than police urges
Davis next that the trial judge dis- improperly a qualified prospective who juror stated that she could not the death impose penalty upon mentally retarded We person. disagree.
One the potential jurors unequivocally during stated voir she dire that would never impose penalty death on a men- tally retarded no defendant, matter how the crime egregious and slight how the mental The trial dis- retardation. qualified potential juror grounds on the that she be would fulfill duty statutory unable to her to consider the aggravating by which be mitigating may supported circumstances 16-3-20(C) § as S.C. Code Ann. evidence mandated (Supp. 1991). Davis, he was denied an According impartial jury be- disqualified potential juror cause the trial judge who would consideration to the given mitigating have utmost circum- stance of mental retardation. unbiased, be juror
A must impartial, carry able to it is explained Green, out law as v. him. State — 157, 392 S.E. denied, —, cert. U.S. 229, 112 S.Ct. L.Ed. A potential juror must be if his opinions excused would prevent substantially impair or of his duties performance juror as in accordance with his *9 Here, overwhelmingly Id. the record and instructions. oath so irrevo- juror that the was potential the conclusion supports regarding mentally to retarded position committed her cably statutory to any have refused consider that she would persons by the evidence. supported circumstances aggravating to serve juror qualified whether a is The determination is within the sound discretion penalty on case a death on unless appeal and not reversible of the trial affirm the trial the record. Id. We by wholly unsupported of this potential juror. judge’s disqualification to Rights to Waive and Stand Trial Competency C. precluded that mental retardation
Davis contends his rights. him his Miranda3 waiving from Butler of statement, to a Michael making Prior Davis’s first Davis the County Department Police read the Greenwood a for warnings provided from card standard Miranda sentence, after each slowly, paused read purpose. Butler indicate whether Davis, verbally at and asked him to looked occasion, read to him. On each what had been he understood he Butler asked Davis whether de- “Yeah.” responded, Davis “I stated, don’t need a lawyer present. to sired have the in- to Davis that he could end lawyer.” explained Butler any time. Davis indicated that he understood terrogation at The confessionwas proceeded give his confession. this, tape. on cassette recorded dictaphone Butler that the morning
The next discovered by secretary have been utilized to transcribe which secretary take broken. Butler decided have tape agreed statement in shorthand. After Davis down another his statement, rights again he was read Miranda give another of the South Carolina Law Enforcement Divi- Eddie Clark by (SLED). Both Butler and Clark testified that Davis was sion to as to whether he understood the Miranda as questioned responses the same affirmative he warning. Davis made not indicated that he did de- night, made the previous had attorney present. sire to have an Hall at the Institute Davis was tested and observed psychiatrist. Dr. a forensic Larry Montgomery, Columbia his un- Montgomery regarding Davis detail Dr. interviewed Arizona, 436, 86 1602, 16 L.Ed. Miranda v. U.S. S.Ct. *10 of each of the derstanding rights accorded him Miranda: Davis, The examination on or began my asking Mr. ex- to him that we were to plaining going examine him to de- termine his and I competency first, asked I read his him— right, you right have to remain silent. I Then, asked Mr. Davis to me tell what that meant. The to response me was I to questions. don’t have answer any My ques- next tion was anything you say can and will be against used you in a court law. What does mean to you? His I response was anything say go could back to the judge. said Next, you right I have a we lawyer to before con- duct this examination. What that mean? does I He said[.] canI have a lawyer present [said] with me.
Davis other presented witnesses expert who testified that Davis did not have the mental to ability understand the impli- cations of Montgomery Miranda.4 Dr. conceded that Davis’s understanding of his rights Miranda would be on a different, abstract, less level from a person of average intelligence, but that Davis’s comprehension adequate to enable Davis to and knowingly intelligently rights. waive those The trial judge held Davis knowingly voluntarily and waived his rights under fifth amendment to remain silent to and have present counsel with him at the interview.
A waiver of constitutional right requires a showing on the record that the defendant made the waiver knowingly and intelligently. Arthur, 296 S.C. (2d) 495, (1988), 374 S.E. Orr, v. modified, State 185, 403 S.E. overruled on other grounds, Torrence, v. State 406 S.E. We conclude that there was sufficient evidence on record, to lay expert, both and the trial support judge’s determination was competent that Davis to waive his Miranda Ac- rights. find that the trial cordingly, judge we did not err in finding that Davis to competent waive his Miranda rights.
Davis also asserts that he lacked the mental to capacity understand the nature and the proceedings effect of him, around and not subjected thus should have been 4However, expert general these witnesses based their on assertions knowl retardation; edge regarding persons degree they with Davis’s mental had questioned of Miranda. specifically regarding understanding not his possessed determined that Davis
to trial. The trial charges to understand the nature of capacity mental with those the ramifications associated him and against with defense and to consult counsel his charges; assist defense; understand regard strategy them in in the participants judicial process. roles of the comprehension Davis’s Montgomery Dr. evaluated Davis under- According Montgomery, to Dr. judicial process. penalties against possible him charges stood the as- if he was able to imposed convicted; be were might which defense; the role of with his and understood sist his counsel also testified Montgomery officers. Dr. the various courtroom inquiries, and, when appropriately that Davis responded counsel, responded appropri- *11 of his questioned presence Montgomery’s instructions. Dr. conclusions ately to counsel’s Dr. expert witness, According Price. were Davis’s disputed in his because Price, Dr. Davis was unable to assist defense to how- acknowledged, historian. Dr. Price he an unreliable was were, lawyers his and that ever, Davis understood who having someone and with sex killing with charged he had been to. supposed was not with someone he trial whether the to stand competency The for test ability with has to consult present defendant sufficient of rational under degree his with a reasonable lawyer factual, un rational, has as well as and whether he standing Bell, v. 293 him. State derstanding proceedings against of the (2d) denied, 1020, 484 U.S. 391, cert. (1988). that the trial We find 108 S.Ct. 98 L.Ed. was to stand trial competent determination that Davis judge’s find that the support. Accordingly, has See id. we evidentiary competent finding err in that Davis was judge trial did not stand trial.
II. GUILT PHASE Photographic Lineup A. Introduction of of the presentation photographic urges unduly and that student’s lineup suggestive was lineup of him from photographic identification We disagree. unreliable. pre- officer custody, police taken into
After Davis was
shot as well
utilizing
mug
Davis’s
lineup
pared photographic
as a series of other photographs
persons
with similar facial
characteristics
from a
garnered
mug book. Identifying infor-
mation
regarding
appearing
individuals
in the mug shots
was masked. The student selected Davis’s
out
picture
of the
as the
photographic lineup
person whom she had confronted
night
murder.
Davis contends that the manner
presentation
of the pho
tographic
lineup
unduly suggestive because the police of
ficer, while
handing
student
the photographic
lineup,
asked her to
if
recognized
see
she
anyone. Clearly, the student
was aware that the reason she was requested to view the pho
tographic lineup was because the police had a suspect. See
Garcia,
Davis also urges that the student’s identification was tainted because the student had access to a composite drawing she had prepared with the of SLED help agents immediately after the murder. The student denied looking composite at the prior viewing the photographic lineup. However, had, even if she we say cannot that the stu- dent’s identification of Davis was suspect because she pos- sessed a of a based on copy drawing her own memory of the stranger’s face and clothing.
Davis also contends that the trial erred in allow- ing the introduction of photographic into ev- lineup *12 idence. For a photographic lineup shots containing mug admissible, to be the State must show demonstrable need to introduce the photographs; must not photographs imply that the defendant a prior record; has criminal and the man- ner of introduction at trial must be such that it does not draw attention to the source or particular implication of the pho- Robinson, State v. (2d) tographs. 198, 274 S.C. 262 S.E. 729 (1980).
Aside from confession, only Davis’s direct evidence Davis at the scene of the placing murder was the student’s that she had testimony confronted an unknown black male Davis’s meeting description inside the At dormitory. trial, Davis on a challenged, variety grounds, of both the trustwor- thiness of the as well as photographic lineup the student’s
340 of the photo- the introduction Thus, of him.
identification of the determination jury’s crucial to the lineup was graphic validity of the and the lineup the photographic integrity in nothing We discern of Davis. identification student’s could have inferred jury from which the photograph Davis’s and, fact, in he had no record, criminal prior that Davis had a nothing particular to draw Moreover, there was record. prior of the implication photographs. the source or attention to Robinson, we find that the articulated analysis Under the into evidence. admitted lineup properly photographic Testimony B. Mother’s in permitting trial erred judge contends that the
Davis disagree. We testify. the victim’smother to in the first final in the State’s case-in-chief The witness mother, the victim’s of the bifurcated trial was phase goldfish pond near the jacket who identified the found testimony State then elicited to the victim. The belonging as to attend mother the victim’s decision regarding from the value of probative contends that the College. Lander testimony outweighed by impact mother’s unfair to him. Accord jury prejudice on the and its testimony to the Davis, testimony conveyed the mother’s ing to the death because deserving penalty Davis was more strong aspira student with hardworking college victim was a higher tions to education.5 ruling broad discretion in on judge
A trial is accorded See State v. Alexan- admissibility testimony. der, Although 377, 303 S.C. the victim’s mother by possessed some of the comments made value, they prejudiced little we do not probative perceive the outcome of the trial. Davis to such an extent as to affect Much of the elicited from the victim’s mother re- information jury. the victim was known to the Accord- garding already his discretion ingly, judge we find that the trial did not abuse testify during guilt the victim’s mother to permitting phase of the trial. object being a Davis’s trial counsel did not to the mother’s remarks. This
pre-Torrence case, objected if trial had we must review the record as counsel Torrence, See State v. objection. and the trial had overruled his — Davis, holding —, limited 406 S.E. *13 C. Jury Charge Regarding Rights Miranda next asserts the trial failed to instruct jury beyond that it must find a reasonable doubt
that Davis understood his Miranda before it rights could consider Davis’s statements as evidence.
The trial at the judge charged jury conclusion of that: guilt phase
While the generally court determines the admissibility evidence, I instruct that as you regards any alleged state- ment made this defendant that by you members of the whether, not, make the ultimate determination of or the defendant made the said statement. And if he did statement, make the whether the statement was by made voluntarily the defendant and of his own free will ac- finally, just cord. And what if weight, any, should be any statement. I given alleged charge you you must determine if the alleged statement was a product an free essentially and unconstrained choice its maker. was, If you determine it and the burden is the state upon prove this fact as all other facts a reasonable beyond doubt, you may then the statement such further con- give you sideration as deem If determine the al- proper. you leged voluntary statement was not the free and willed ex- defendant, of the then should not consider pression you the statement at all. In whether a defen- determining statement, you will overcome in obtaining dant’s should consider both the characteristics of the accused interrogation, and the details of the which is referred to totality in the law as the of the circumstances. Some of the factors that must consider are: The you age ac- cused; education, thereof; ability, his or lack his mental or I.Q. intelligence; his or his and envi- capacity; background ronment; thereof, or lack to the his advice, accused of constitutional but not limited to the rights, including pro- warnings, cedural known as the Miranda con- safeguards silent; to remain that a statement could cerning right law; used him in a court of to have a against right be if an that is he could not afford a lawyer present; indigent, would be lawyer, lawyer appointed represent then cost; and that he could any stop making him without *14 consider are the factors to time. Other any at statement of the ques- the nature and length of detention and place all of the carefully scrutinize must You, jury, the tioning. any weight you give before circumstances surrounding a rea- beyond be satisfied You must alleged an statement. made the ac- that the statement sonable doubt threat of in- reward, by promise uninfluenced cused^ of his rights.6 or diminution jury, with our comply judge the trial failed claims that (2d) 582 Adams, 115, 283 S.E. 277 S.C. in State v. holding must impress a trial (1981). we held that In Adams unless it any confession it cannot consider that upon jury his gave that the accused reasonable doubt a beyond finds of the cir- totality under the voluntarily and freely statement understood his received and that the accused cumstances, and rights. Miranda with complied law enforcement
The whether question court, for the not of Miranda is the requirements (1989). § Once the Law 1292 C.J.S. Criminal jury. 23A and understood received that a defendant court determines It then into evidence. allows a confession his the court rights, confessionwas whether the ultimately to decide jury is for the in Adams sub- However, holding appears our voluntary. Id. voluntariness, but also jury only question mit to the not enforcement’s actions as to whether law issue separate of Miranda. requirements to the conformed on the Mi- separate finding to make a jury Requiring federal and weight of both against randa issue is Seizures, Searches & authority. Ringel, See 3 W. state 1991). 30.2(c) (2d Properly § ed. and Arrests Confessions given that the defendant stated, demonstrating facts but two elements rights comprise Miranda understood his the circumstances totality under the jury must examine a confession was made it seeks to determine whether when 1,239 voluntarily. Pendergrass, See State v. extent that it limit Adams to the Accordingly, we that the de- separate finding make a jury mandates that the his Miranda rights. and understood fendant received virtually charge at the conclusion judge gave jury The identical trial sentencing phase of the of the trial. We judge’s conclude the trial instruction ex- properly plained jury to the that it should determine the voluntariness of Davis’s confession under the totality circumstances, Miranda and that Davis’s of his receipt warnings ability warnings understand those were factors to appropriate consider in whether deciding freely given. confession was Davis’s assertion is without merit. Deadly Weapons Charge
D.
Davis next contends the trial judge erred that a hand or fist charging may be considered a deadly disagree. as We weapon.
Immediately charging jury after the that malice be im- may plied dangerous deadly object, from the use of a or the trial judge stated:
What a dangerous, deadly, object? or That is a factual matter that the jury decide, must or determine. You must answer that based on this question factually evidentiary you. record before Under the law of the State of South Carolina, hand, fist, the or of a is not con- person normally dangerous, deadly, object, sidered a or but under some circumstances, hand, fist, may a or of a be used in person manner, such a or in such a as to constitute a dan- fashion, or It is for to deter- gerous, deadly object. you, jury, mine beyond and decide this case a reasonable doubt whether, not, hand, fist, dangerous, or a or constitutes a deadly, object.7 or designed instruments for the
According Davis, only easily or which and read- personal injury objects use of injury recog- are able to inflict have been ily personal by deadly weapons by legisla- nized to be legislature (1976) ture. See S.C. Code Ann. rifle, § (shotgun, pis- 16-3-625 (1985) id. knife); (dirk, slingshot, § 24-13-440 metal tol, or knuckles, razor, firearm, any deadly weapon usually or other However, under the com- personal injury). used for infliction law, ordinary objects may deadly weapons mon also become inflict they the facts indicate that have been used to seri- when Johnson, State v. See death. 187 S.C. bodily ous harm or 7 A similar jury sentencing charge given at the conclusion of the phase of the trial. (bar (1882) Smalls, (hoe); (1938)
degree criminal sexual conduct conduct.8 degree criminal sexual offense second in- failing that the trial erred in to further urges judge 8 degree requires showing sexual assault in the first a that the de Criminal accomplish battery, aggravated force to a sexual or that the vic fendant used battery by where she is also the victim of tim submits to sexual circumstances § kidnapping. Ann. Crimi a confinement or S.C. Code 16-3-652 forcible perpetrator degree in the second occurs when the utilizes nal sexual conduct § aggravated coercion. Id. 16-3-653.
345 it jury any struct the should resolve reasonable doubt as guilty greater to whether the accused is of the lesser or of- disagree. fense favor of the lesser offense. We
In
King,
251,
(1930),
State v.
158 S.C.
judge. PHASE
III. SENTENCING Right Testify to A. Waiver denied his constitu- that he was
Davis next asserts testify sentencing phase to at the right tional to right that he was denied his trial. Davis’s assertion two encompasses of the trial sentencing phase at the testify (1) right of his to tes- whether Davis’s waiver related issues: (2) record, and whether shown on the tify satisfactorily only re- testify Davis that he could trial counsel misinformed background. his garding that a record, we have held sufficiency
As to the that a to demonstrate developed full record must be State v. right testify. has waived his to See defendant Orr, requirement 403 S.E. This record between the trial by colloquy on the may be satisfied Here, reported Id. trial counsel and trial counsel. judge Davis’s waiver regarding their discussions with Davis depth in- they Trial counsel stated that had right testify. of his to he different occasions that had formed Davis on several to that he wanted on right jury, say anything “to talk to counsel, however, to trial Davis consis- According his behalf.” I maintained, say anything; “I don’t want to want to do tently before, there, I want to sit I don’t exactly you just as I told concluded, Trial counsel based on their say nothing.” want to Davis, with Davis understood his year-long relationship decision, that it was Davis’s from right testify, apart and him, testify. that trial counsel not to Based on any gave advice counsel, judge the information to him trial the trial given knowingly voluntarily that Davis had waived determined of the trial. testify during sentencing phase his right We find that the between trial counsel and the trial colloquy cognizant was sufficient to demonstrate that Davis was right testify, knowingly intelligently of his and that he that right. waived misinformed,
As to Davis’s claim that he was Davis as- that trial advised him that he incorrectly serts counsel testifying background. was limited to about his See — (1991)(defendant Davis, —, 411 S.E. facts that are in evidence to may present argument regarding attention to the circumstances of the crime or jury’s direct *18 the defendant’s own characteristics since these are proper considerations). sentencing to trial According counsel, Davis that he right understood had the to “explain anything about himself that he would like to be made known.” Trial counsel stated that they explained to Davis that he had the “opportu- to nity say anything jury to the regarding segment this of the trial.” Trial counsel also told say Davis that he could “any- thing about his background, anything at all about Tommy Lee” jury that the could consider in mitigation.
As we construe the record for of direct purposes appeal, trial counsel advised Davis that he could anything discuss that jury the could properly during consider the sentencing phase trial, that, but from a strategic standpoint, Davis should confine his remarks to a discussion of his background. Thus, we conclude that Davis’s waiver was intelligently made. We note that if other facts not in the appearing record before us would show that did Davis indeed receive informa- erroneous tion from trial counsel, our construction of the record bemay collaterally attacked via an for application postconviction re- lief based on ineffective assistance of counsel.
B. Solicitor’s Comment on Davis’s Failure to Testify
Davis asserts that the solicitor commented clos during ing argument on Davis’s failure to We testify. disagree. The fifth amendment privilege against self-incrimina tion extends to the penalty of a phase capi bifurcated Hawkins, State v. tal proceeding. 418,357 292 S.C. S.E. (2d) overruled grounds, on other State v. Torrence, (1991). 45, 406 305 S.C. S.E. A corollary of the to right remain silent is the prohibition prosecutorial comment upon Id. testify. Here, failure to in summation, his the solicitor urged jury to find that the physical murder involved tor ture. He may stated that the victim have been conscious while she being strangled, was but that “we don’t know that she at point time, was conscious in but we don’t know that she wasn’t. Only person one knows that.”
Our review of the closing argument upon based whether the solicitor’s comments so infected the trial with unfairness as to make resulting conviction a Caldwell, State v. denial of due process. 494, 388 300 S.C. (1990). When read the context of the ar- solicitor’s in was not that his statement clear whole, it is as a gument rea testified. A had not jury remind the to tended remark the solicitor’s interpreted have would juror sonable were murderer and the only victim that, because mean required was murder, jury night present the victim whether evidence from circumstantial infer the solicitor’s we find that Accordingly, tortured. physically evidence circumstantial referred permissibly statement at its ver arriving consider required which (2d) 587 86, 212S.E. Durden, dict. See *19 Circumstance Aggravating Kidnapping C. Overbreadth of of “kid- definition statutory that the asserts Davis next disagree. is overbroad. We napping” (1976)10 part in pertinent provides § 16-3-910 Ann. S.C. Code seizes, unlawfully a person occurs when kidnapping that a away or carries abducts kidnaps, decoys, confines, inveigles, authority without whatsoever by any means person any other does not channel Davis, 16-3-910 section According of law. penalty, death the imposing in discretion jury’s or limit Thus, of seizure. some sort murders involve all nearly because minimize risk fails to 16-3-910 Davis, section according in sentenc- capriciously arbitrarily act would jury that the (2d) 276 S.E. 164, 268 Smith, S.C. v. 275 See State ing him. (1980). on section attacks overbreadth rejected have previously
We section 16-3- that to our determination 16-3-910,and adhere See murder. all of cases encompass as to broad 910 not so cert, (2d) 63 572, 300 Copeland, State v. (2d) (1983); 1802,76 L.Ed. S.Ct. 1103, 103 U.S. denied, 460 findWe 528, 298 S.E. S.C. Koon, 278 merit. is without contention that Davis’s 16-3-910is not if section even that urges Davis next a determina- support fails to overbroad, the evidence the com- during was committed murder that the tion disagree. We a kidnapping. of mission when “hollered” the victim indicated that statement Davis’s hit her several result he as a her, and that touched scat- was found carrying the victim clothing The times. of section amendment 16-3-910 prior crime was committed The 1991. tered inside the front door of the and one of dormitory, her shoes was found in a lying corner, indicating she was forcibly removed from the premises.11We find that the record supports jury’s finding the murder was committed during commission of a kidnapping. State v. Owens, 291 Cf. (1987) 352 S.E. delicti (corpus of kidnapping was established circumstantially by evidence of struggle home). victim’s
D. Aggravating Circumstance Physical Torture of Davis next asserts that the trial judge improperly
charged regarding statutory aggravating circumstance of “physical torture.” We disagree. The trial judge instructed the jury that:
Torture occurs when the victim is subjected to serious physical abuse death. Torture occurs when the vic- before tim is subjected to aggravated battery. What is aggra- vated ? An battery aggravated battery is an act unlawful violent injury another, to the person accompanied of of by circumstances aggravation, such as the use dangerous, or deadly, object; serious bod- infliction of ily injury with intent to commit felony; a great dispar- ity between the ages physical condition the parties; *20 in the sexes. Physical torture is the inten- difference tional infliction of serious, vile, horrible, or inhuman abuse, upon the body of another before death. The instan- taneous death of the victim does not constitute torture. Physical torture may include the malicious infliction of bodily harm to by another her depriving of a member of body, her or by rendering member of her body useless, byor seriously her disfiguring body, or a member of her body, or the intentional and unmerciful prolonging of se- vere pain and abuse the upon body, or the intentional and unmerciful infliction of serious and physical extensive pain and to body added.) abuse the of another. (Emphasis Davis contends that the proper jury charge regarding phys- ical torture is limited to the instruction found in v. State El- more, (2d) 417, 423 n. 2, 308 S.E. 781, 785 n. 2 11The victim’s floating other shoe was goldfish pond found in the next to body. her the expanded impermissibly the trial judge Davis that urges initial four he added the when torture of physical definition physical with “serious deal charge of which sentences the However, in Elmore we battery.” “aggravated abuse” and subject is person when torture occurs physical held that 422, Id. at battery.” and “aggravated abuse” physical “serious 482, 381 Smith, 298 S.C. (2d) 785;see also at 308 S.E. 1060, 110S.Ct. 494 U.S. (2d) denied, cert. (1989), the (1990) occurs when torture (physical L.Ed. abuse to serious subjected physical intentionally is victim death). is without merit. Davis’s assertion prior that he there was no evidence that Davis asserts next from separate the victim an intent torture possessed disagree. her. We murder an intent to battered forehead was that the victim’s shows The evidence enough with dormitory wall surface of the rough against her skull and away soft tissue her skin and peel force to .from hemorrhage. her encasing eyes to plate the orbital to cause Moreover, the bone protruded. so that was broken Her nose blood hemorrhaged an extensive number victim had hemor- pathologist, to the According eyes. in her vessels strug- “a lot of that there was indicated blood rhaged vessels strangulation and that strangulation, during gling” that the vic- Davis confessed ten minutes. lasted excess drag- he when commenced moving” still tim’s “stomach also confessed goldfish body pond. her ging Accordingly, the water.12 into face down he placed victim an in- Davis possessed there is evidence we discern that an intent from separate the victim which tent to torture her. to murder torture physical definition of claims that the
Davis also statutory ag rendered the the trial utilized torture overbroad. physical circumstance gravating circum aggravating of an and application The construction channel or if it does not broad unconstitutionally stance State penalty. imposing death discretion jury’s limit the denied, cert. 482, 381 S.E. Smith, 298 S.C. v. *21 12 certainty victim was state medical could not with pathologist The water; however, he at placed face into the down when she still alive strangulation, rather than to injuries her head and her death tributed drowning.
351 (2d) (1990). In our 1060, 110 1536, 108 494 U.S. S.Ct. L.Ed. 775 torture” utilized “physical the definition of opinion, complies limiting requirements trial with judge amendment. Davis’s assertion is without merit. eighth Aggravating E. Submission Three Circumstances finally judge’s asserts that the trial submission kidnapping, conduct, physical criminal sexual and aggravating torture as circumstances this case ren- arbitrary dered his death sentence and unreliable. We dis- agree. aggra
The trial must submit to the those vating circumstances which the State has noticed the defendant, if the circumstances are aggravating sup Kornahrens, the evidence. State v. 281, 350 290 S.C. ported by (2d) denied, cert. (1986), 940, 107 1592, S.E. 180 480 U.S. S.Ct. (2d) (1987). Here, 94 L.Ed. 781 the evidence the sub supports of the three aggravating mission of each circumstances of conduct, torture, criminal and physical kidnapping. sexual We State v. conclude that Davis’s assertion is without merit. Cf. (2d) (1981). Woomer, 170, 284 277 S.C. 357 PROPORTIONALITY REVIEW We have reviewed the entire record vitae favorem and conclude that the death sentence was not the re or passion, prejudice, arbitrary factor, sult of other and circum supports jury finding aggravating the evidence 16-3-25(C)(l)-(2) (1985). § stances. S.C. Code Ann. The death penalty sentence is not excessive or to the disproportionate (C)(3). Sims, in similar cases. Id. at See State v. 304 imposed — (2d) denied, cert. 112 409, (1991), —, 405 S.E. 377 U.S. (2d) Bell, State v. 1193, 117 (1992); 18, S.Ct. L.Ed. 434 302 S.C. — (2d) denied, cert. 111 364, U.S., 227, 393 S.E. S.Ct. (2d) Bell, (1990); 391, L.Ed. 360 S.E. denied, cert. U.S. S.Ct. 1020, 108 98 L.Ed. and are The convictions sentences Affirmed. Toal, JJ., P. Gardner, Acting
Chandler John Justice, Associate concur.
Finney, J., dissents opinion. in separate (dissenting): Justice Finney, record reflects the my opinion, In I dissent. respectfully of phases penalty and guilt both the during error prejudicial for a remand and I reverse trial. would bifurcated appellant’s trial. new PHASE
GUILT Testimony Mother’s his did not abuse the trial that finding majority’s
The testify during to victim’s mother the in permitting discretion Ostensi- the record. by is the trial refuted of phase the guilt found near a identify jacket to called mother was bly, the the solici- completed, identification scene. After crime tall was how asking mother the questioning, tor continued daughter her to send did she choose why daughter, her daughter. her close with and was Lander, she and bearing upon if it direct relevant has Evidence the matter less probable make more or or to establish tends Alexander, 377, 401 In v. controversy. State relevant, although rule that adopted the (1991),this Court prejudice unfair danger if excluded may be evidence value. probative its outweighs substantially identifi- that the mother’s in the record showing nois There remotely essen- evidence even constituted the jacket cation of her identifica- value Hence, any probative case. tial to tendency outweighed by substantially tion evidence unduly victim’s mother from the testimony of additional the basis upon verdict their to decide jury influence testimony should mother’s hold that the I would sympathy. prejudicial highly probable its due to most excluded have been effect. Rights Miranda Charge Regarding
Jury failure judge’s the trial by upholding suggest I they and conclusively unambiguously the jury charge accused under that the reasonable doubt beyond find must 436, 86 Arizona, 384 U.S. v. Miranda rights his under stood now seeks majority 1602, 16L.Ed. S.Ct. interject- of this law state established limit the arbitrarily ing that an accused’s under Miranda are rights merely “ap- factors to consider” in propriate deciding whether or not con- fessions are given freely voluntarily.
South Carolina law is clear on the prerequisites to be estab lished before a jury may consider the confession of an accused. First, the must find beyond reasonable doubt that the confession was given freely voluntarily under the totality *23 of the circumstances. Second, when the accused is in custody at the time such made, confession is the jury must be con vinced that he received and understood his Fifth and Sixth Amendment rights under Miranda. See State v. Torrence, 305 (2d) 45,406 (1991); S.C. S.E. 315 State v. 291 S.C. Cooper, 332, (2d) (1986); 353 S.E. 441 Adams, 115, 283 State v. (2d) (1981). S.E. 582
I would hold that this limiting charge regard with to Mi- randa is in derogation of the United States Constitution and South Carolina case law and was prejudicial to the rights appellant. the
Deadly Weapons Charge
I from majority’s dissent the affirmance of the trial judge’s that charge a hand or fist could be used in such a fashion or manner deadly as to constitute a weapon object. or
The majority
upon
Hariott,
relies
State v.
210
290,
S.C.
42
(2d)
S.E.
385 (1947),
only
which not
that
states
fists generally
are not
deadly
considered
but
been
weapons,
has
cited
sup
port of the
that
proposition
parts of the human
are
body
not to
be regarded
dangerous
as
See
weapons.
Davis,
Commw. v.
10
(2d)
App. 190,
Mass.
406 N.E.
420
and People v.
(2d)
Diver,
352, 263
Van
80 Mich.App.
370, 372
N.W.
Moreover,
research
thorough
uncovers no South Carolina
case law construction or statutory provision evincing legisla
tive intent to
human
classify
bodily extremities as deadly
under the facts herein
weapons
presented.
by
As noted
the
trial
“... we deal with
judge,
unchartered waters and confront
a case and issue of novel
impression
South Carolina.” For
guidance, the trial court looked to the neighboring jurisdiction
(2d)
See
v.
Georgia.
State,
Thomas
237 Ga. 690, 229 S.E.
458
(1976);
State,
(2d)
Kirby v.
The trial court’s during summation. by made solicitor comments prejudicial because if deadly weapons hands as I mention his Now, deadly as hands find that he used his jury, you, hitting, beating both for night, weapons testified Dr. Sexton also recall, and if we face, about nose, her around injuries nose that she had broken caused not in his were opinion said cut marks he surface, a smooth say, by he did surface, what rough but fists, hands, or caus- fists, gloved or hands, either used the defendant you But if conclude injuries. ing could conclude you then deadly weapons, hands as his that these instance, in this malice implied that there is malice, rise to deadly weapons, giving were as hands used *24 rise to giving murder. the cumu- for reversal ground find as an additional
I would of the so- together, considered effect, when prejudicial lative charge erroneous judge’s and the trial argument jury licitor’s new guilt- to a view, appellant entitle would, my which trial. phase PHASE
SENTENCING Testify to Right Waiver of opinion majority I the conclusion
Finally, reject the sen- during testify his to right waiver of appellant’s waived. intelligently was of his trial tencing phase appellant the record I believe shows Conversely, of trial sentencing phase at the testify to right denied the ad- correctly and adequately failure to trial counsel’s due which was testimony per- the nature of of appellant vise concerning judge’s question to the trial In response missible. during the sen- right testify Fifth Amendment appellant’s responded: counsel his trial tencing phase, ... I him, asked to him what this explained procedure best I could so that he could understand it... I him about, told this was not the of the trial to talk or part have no innocence, discussions about or because that guilt was over. IAnd told him that where we were at in this portion the trial was in the mitigation any- area and thing he could say Tommy about Lee in terms —that would touch upon jury mitigation, this in line ex- him, plained that to anything background, about his any- thing at all about Tommy jury Lee that this con- may that, sider in I mitigation. very made it clear I Tommy, there, don’t want you get up you get up or can’t there innocence, and talk about the or guilt, we can’t touch that because upon already that’s behind us. And he un- derstood. I said, now, considering And what the rules of the game you get up are do want to there and talk to the and . . testify. An may prohibited accused be from unsworn offering testi- to the mony his statement sentencing-phase jury. However, a defendant may present argument facts in evi- regarding jury’s dence to direct the attention to the circumstances of the crime or to his personal characteristics since these are proper — sentencing considerations. State v. Davis, —, S.E. (1991).
The and knowing voluntary waiver must be requirement satisfied a full record, and established may by colloquy be between the court and himself, the accused between the court accused, Orr, counsel for the both. State v. or is,
Trial the court at foregoing best, counsel’s statement to with ambiguous seriously regard accuracy. deficient Furthermore, any the record is devoid of indication that ei ther of counsel informed him that he could appellant’s trial the facts of the case as relate to his before they plea discuss *25 mitigation of his sentence. jury seeking Obviously, full and adequate singularly mandate for a record becomes light concerning appellant’s crucial evidence mental Orr, Arthur, See State v. and State v. capacity. supra, 495, 374S.E. case fails to establish that the record this
I would hold right of his appellant intelligent waiver knowing and is, that he of his trial and sentencing phase testify during trial. sentencing-phase entitled to a new therefore, and re- I reverse this case would foregoing'reasons, For the mand for new trial. Warehouse, HUMPHRIES, Individually and d/b/a The Carolina’s
David CO., INC., Cooke, Denny and D. Plaintiff v. WHITLOCK COMBING Polkens, the Estate of M. Karl A. Executors of Robert H. Moore and Co., Defendants, McLendon, Jr., Combing Murray of whom Whitlock Inc., Denny Cooke, Robert H. Moore and Karl A. Appellant, and D. McLendon, Murray Jr., Folkens, M. are Executors of the Estate of Respondents. (422 (2d) 154) Appeals Court of