Lead Opinion
A jury convicted William Dickerson of first degree murder, kidnapping, and criminal sexual conduct, and he was sentenced to death. Dickerson now appeals his sentence pursuant to Section 16-3-25(A) of the South Carolina Code (2003). He argues the circuit court erred: (1) in not excusing a juror for cause; (2) in limiting the cross-examination of the pathologist called by the State; (3) in not charging the jury on the
FACTUAL/PROCEDURAL BACKGROUND
Dickerson and Gerard Roper had been friends, even best friends, since childhood. On the morning of March 6, 2006, Roper went to his friend, Ben Drayton’s, house to play video games. Around the same time, Dickerson went to his friend, Antonio Nelson’s, house asking for a ride to his brother, Armón Dickerson’s, house. Nelson was unable to give Dickerson a ride at that time and told him to come back later. When Dickerson returned later that afternoon, he was carrying a gun.
En route to Armon’s house, however, Dickerson began calling Roper from his cell phone. After receiving no answer, Dickerson asked if they could make a stop at Drayton’s house so he could “get some money.” When they arrived at Dray-ton’s home, Dickerson entered brandishing his weapon and asking for money. Roper told Dickerson “I got your money,” begging “don’t shoot me” and “please don’t kill me.” Dickerson nevertheless fired a shot at Roper but missed. He then struck Roper in the head with the gun, dragged him out of the house, and forced him into Nelson’s cаr. Dickerson then took Roper to Armon’s house.
Armón and Dickerson brought Roper inside and systematically tortured him over approximately thirty-six hours. It started with Dickerson continuing to hit Roper with the gun, knocking out some of his teeth. Armón then left to retrieve Dickerson’s car and some drugs, and blood covered the inside of the house when he returned. Dickerson then called another friend of his, Rashid Malik, and threatened him with death if he did not come to Armon’s house.
Although Dickerson, Armón, and Malik all tortured Roper to varying degrees, Dickerson appeared to be the primary actor.
All told, Roper received over 200 individual wounds to the outside of his body, including lacerations to his anus. He also received several internal injuries, including various broken bones in his face that caused it to appear misshapen, blunt force trauma to his neck resulting in the breaking of various structures, a broken tibia, broken fingers and wrist, brain swelling, and bleeding into the internal structures around his rectum as the result of objects being inserted into it. Although there is no definite timeline of events, Roper survived for eighteen to twenty-four hours after the sodomy occurred, and none of these wounds were inflicted post-mortem. No single wound was fatal. Instead, Roper died from the sum total of his injuries, apparently shortly after he was struck with the mirror and the vase on the morning of March 8.
As these events transpired, Dickerson made several phone calls to various people during which he discussed what he was doing to Roper. Many of them were to Dickerson’s girlfriend, and she managed to record one of them containing his description of the sodomy and even Roper’s own confirmation of what was happening. Dickerson also confirmed the sodomy, as well as the burning of Roper’s scrotum, over the phone to another friend. In a later call to that same friend, he said that Roper
Dickerson and Armón wrapped Roper’s semi-clothed body in a blanket and dumped it in the vacant townhousе next to Armon’s. Dickerson then changed clothes and fled. Armón and Rouse attempted to clean Armon’s house, but they abandoned it upon realizing their efforts would be futile. That same day, a woman who was planning to rent the vacant townhouse entered and discovered Roper’s bloodied and mutilated body.
Dickerson was arrested on March 11, 2006, and indicted for murder, kidnapping, and criminal sexual conduct. During voir dire, Juror 370 was the second venireman to be called. He initially identified himself as the type of juror who was able to recommend a sentence of death or life without parole in the appropriate circumstances. The following exchanges then occurred between Juror 370 and the circuit judge:
Q. I would also instruct you that the only party which has any burden of proof in this proceeding is the State. Mr. Dickerson doеsn’t have to prove anything, he doesn’t have to — he doesn’t have to present any evidence, he has no obligation whatsoever. Would you have any problem following that presumption?
A. No sir.
Q. ... I would tell you that if the jury were to conclude beyond a reasonable doubt that there were aggravating circumstances, that does not mean that that jury has to return a death sentence, only that it is a potential sentence; do you understand that?
A. Yes, sir.
Q. Because the jury would have the right, notwithstanding the conclusion of aggravating circumstances to find that the appropriate sentence would be life imprisonment without the possibility of parole. I would give you an instruction as to that. You could make that consideration, as well; is that correct?
A. Yes, sir.
Q. Let me just kind of start off with, what is your opinion of the death penalty?
A. I am — I think it needs to be there but there are certain situations that — I mean, I am not too up-to-date on this whole system but I feel like a lot of people get the death penalty when it is not deserved. People die all the time, I mean get put to death, when they’re innocent. So — I don’t know. It’s a big thing.
Q. In those types of situations, now that you know what the term “murder” is, not accident, self-defense, manslaughter or insanity, would you always automatically vote for [the death penalty] if the person who did it meant to do it and they had the right person?
A. I would still have to hear all of the evidence, everything behind it.
Q. Okay.
A. Wfiien, how, where, all that stuff.
Q. Okay. So even if there is no accident, self-defense, manslaughter, insanity, the State has proved it beyond a reasonable doubt, did it, meant to do it and they had the right person; in those cases you’re not going tо automatically vote for the death penalty?
A. I guess — I guess I would. If it was absolute, then definitely.
Q. AVhen you say “absolutely”, you mean—
A. Exactly what you just said, all those.
However, in response to further questioning by Dickerson, Juror 370 stated, “That’s why — all those situations, like who he is, like — that kinds of stuff is what I’d want to hear before I just say ‘give them the death penalty.’ ” He then said he would “certainly” listen to mitigating evidence presented by the defense.
Before turning Juror 370 over to the State, Dickerson pressed the juror on his belief regarding the defendant’s burden of proof during the sentencing phase of a capital trial:
Q. ... [W]ould you expect the defendant or his attorney to present something to you to give you a reason not to vote for death? To kind of convince you, ‘Okay, I found him guilty of murder, I’ve heard all this other stuff but I[’]m for death.’ Would you expect the defense to show, ‘you need to show me stuff that would convince me otherwise, to vote for life’?
A. (No verbal response).
Q. Is that what you’re telling me?
A. I — yeah, isn’t that what you’ve got to do?
Q. And all that bad stuff in there and they just argue for mercy, that is not something that is going to persuade you?
A. No.
Q. So you would be looking at the defense to kind of convince you that a death penalty wasn’t the right sentence?
A. Yeah. Just to represent him, show something — I mean, something had to happen.
During rehabilitation, the State informed Juror 370 that the judge would in fact instruct him that it was improper to hold a defendant’s decision to not present any evidence against him. The following exchange then occurred:
Q. Because just a minute ago you were saying that you would expect the defendant to put something up.
A. Well, I mean — I thought that was kind of how it worked. But if — (pause).
Q. Well, the Judge would tell you that it works differently and—
A. If he told me that, yeah, then I wouldn’t expect it.
Q. You wouldn’t consider that, the fact that he didn’t put anything up — any evidence?
A. Yeah.
Q. So you could follow the Judge’s instructions?
A. Yes, ma’am.
During follow-up questioning by the court, the circuit judge repeated the State’s question of whether Juror 370 would have any trouble abiding by the court’s instruction that Dickerson would have nothing to prove, to which Juror 370 reiterated that he would not. However, Dickerson again asked whether Juror 370 would look to Dickerson to prove why the death penalty was not appropriate, to which Juror 370 said “yes,” but Juror 370 then told the State once again that he would follow whatever the judge instructed him. Dickerson then moved to have Juror 370 disqualified because he was a “burden shifter” who would require the defense to prove that death should not be imposed. The court disagreed, finding Juror 370’s statements that he would follow the law as instructed and he would want tо hear all of the circumstances demonstrated he was not a burden shifter.
During the guilt phase, one of the many witnesses called by the State was Dr. Cynthia Schandl, the pathologist who performed Roper’s autopsy. On direct examination, she testified that the blood toxicology report on Roper was negative, which demonstrated he did not have any drugs in his system when he died. On cross examination, Dickerson attempted to inquire about an initial urine screen test performed by Dr. Schandl that would show whether there were drugs present in Roper’s system up to two days prior to his death. The State objected under Rule 403, SCRE. In her proffer, Dr. Schandl testified that this test was “presumptively positive” for cocaine metabolites, but Dr. Schandl never ordered confirmatory testing. According to her, these initial screening tests produce a large number of false positives and are very unreliable absent any sort of confirmation. Dickerson, however, argued the State’s question about the blood toxicology results opened the door for this line of questioning as it left the jury with the misleading impression that Roper had not used cocaine. Finding the proffered testimony itself was actually misleading, the possibility of prejudice from excluding it was remote, it did not challenge any of Dr. Schandl’s findings, and it would only serve to confuse the jury, the court refused to permit this line of questioning.
In mitigation, Dickerson called several witnesses from the Charleston County Detention Center, where he was being held pending trial, who testified he was a model prisoner. He also called several witnesses who testified extensively regarding his drug use, childhood trauma, and mental problems. These witnesses further opined that he suffered from cocaine psychosis and attendant pаranoia. Additionally, Dickerson’s cousin, Johnette Watson, testified on his behalf. She stated he had always been like a brother to her, a good person who just got mixed up in the wrong things and with the wrong people. However, the court did not permit her to testify as to what impact his execution would have on her family, chiefly that her family would be devastated as it had already lost two close members to homicide.
Ultimately, the jury recommended the court impose a sentence of death, finding the State proved all three aggravating circumstances beyond a reasonable doubt. The court followed the jury’s recommendation. This appeal followed pursuant to section 16-3-25.
ISSUES PRESENTED
Dickerson raises four issues on appeal:
I. Did the circuit court err in qualifying Juror 370?
II. Did the circuit court err in not permitting Dickerson to cross examine Dr. Schandl regarding the urinalysis screen results?
III. Did the circuit court err in not charging the jury оn the law of accessory after the fact?
IV. Did the circuit court err in not permitting Watson to testify regarding the impact Dickerson’s potential execution would have on her family?
LAW/ANALYSIS
I. JUROR QUALIFICATION
Dickerson first argues the court erred when it found Juror 370 qualified to serve on the panel because he was a burden shifter, meaning he improperly placed the burden on the defense to show why death would not be an appropriate punishment. We disagree.
A juror must be excused from service if “the juror’s views would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” Wainwright v. Witt,
A juror who will automatically vote for the death penalty in every case will fail in good faith to consider the evidence of aggravating and mitigating circumstances as the instructions require him to do.... If even one such jurоr is empaneled and the death sentence is imposed, the state is disentitled to execute the sentence.
Morgan v. Illinois,
Although Juror 370 unquestionably displayed some equivocation on how he might vote should the State prove an aggravating circumstance, the State’s rehabilitation revealed this was more the result of a misunderstanding of the trial process than any firmly held belief that he would automatically vote for the death penalty. For exаmple, after stating that he would expect the defense to put forth evidence in mitigation, Juror 370 stated, “isn’t that what you’ve got to do” and “I thought that was kind of how it worked.” He went on to state, however, if the court instructed him that the defense bore no burden, he “wouldn’t expect it.” He also stated he “would have to hear all of the evidence” before he would say “give them the death penalty.” Although similar exchanges occurred throughout the voir dire, the one thing he was unequivocal about was that he would follow the law as it was instructed to him by the court. Consistent with Morgan, Dickerson was allowed to probe the true nature of Juror 370’s beliefs, and that examination produced nothing resembling either a deep-seeded preference for the death penalty or a true belief Dickerson must prove that death is not appropriаte.
After a review of the entire voir dire, the salient portions of which are reproduced above, this in-depth examination produced evidence to support the court’s ruling that Juror 370
II. CROSS EXAMINATION OF DR. SCHANDL
Next, Dickerson argues the circuit court erred in preventing him from asking Dr. Schandl about the urine screen test she performed on Roper in conjunction with the autopsy. We disagree.
“Although relevant, evidenсe may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence.” Rule 403, SCRE. The admission of evidence is within the circuit court’s discretion and will not be reversed on appeal absent an abuse of that discretion. State v. Gaster,
On direct examination, Dr. Schandl testified that Roper’s blood toxicology report was negative, meaning there were no drugs in his system when he died. On cross examination, Dickerson attempted to elicit the results of a preliminary urinalysis test that would show whether Roper used cocaine within two days prior to his death. In her proffer in response to the State’s objection under Rule 403, SCRE, Dr. Schandl stated that while the urine screen test performеd was “presumptively positive,” that test alone is unreliable and no confirmatory testing was done. The circuit court refused to admit this evidence, agreeing this form of testing was inherently unreliable and therefore would be misleading, would confuse the jury, and actually did not challenge any of Dr. Schandl’s conclusions. We agree.
The relevance of whether the victim had used cocaine within the two days prior to his death is dubious, at best, under the facts of this case. Dickerson calls this presumptive test “an inconvenient truth for the [S]tate,” but we fail to see
Dickerson turns to Rule 608(c), SCRE, to supply the requisite relevance and probative value, arguing this testimony demonstrates Dr. Schandl’s bias, prejudice, or motive to lie. “[AJnything having a legitimate tendency to throw light on the accuracy, truthfulness, and sincerity of a witness may be shown and considered in determining the credit to be accorded his testimony. On cross-examination, any fact may be elicited which tends to show interest, bias, or partiality of the witness.” State v. Saltz,
Similarly, we reject Dickerson’s argument that the evidence must be available to rebut the “false impression” created by the State when Dr. Schandl testified that Roper’s blood toxicology report was negative. A defendant generally is entitled to rebut false impressions created by the State’s evidence. See State v. Northcutt,
Accordingly, we hold the circuit court did not abuse its
III. ACCESSORY AFTER THE FACT
Dickerson next argues the circuit court erred in failing to charge the jury on the law of accessory after the fact. We disagree.
In a capital case, a defendant is entitled to a charge on any lesser-included offenses of murder when supported by the evidence. See Beck v. Alabama,
For when the evidence unquestionably establishes that the defеndant is guilty of a serious, violent offense — but leaves some doubt with respect to an element that would justify conviction of a capital offense — the failure to give the jury the “third option” of convicting on a lesser included offense would seem inevitably to enhance the risk of an unwarranted conviction.
Beck,
It is well-settled that accessory after the fact is not a lesser-included offense of murder in this State.
In Gentry, we held that the concepts of subject matter jurisdiction and sufficiency of an indictment are distinct.
Dickerson extrapolates from this the ability to charge a lesser-related offense because the court would still have subject matter jurisdiction over the claim, and it is therefore inconsequential that he was not indicted as an accessory. Thus, a defendant should be able to request a charge on any related offense supported by the evidence, regardless of whether it is included within the ones for which he was indicted.
The Supreme Court of the United States has held that, unlike lesser-included offenses under Beck, there is no constitutional requirement to charge a jury on lesser-related offenses. Hopkins v. Reeves,
We agree with the Supreme Court’s reasoning in Hopkins that permitting such a charge does not further the policy behind charging lesser-included offenses. The core of Beck’s requirement was to ensure reliability in the proceedings by giving the jury a third option beyond acquittal or conviction so that its verdict will better conform to the evidence presented. The Hopkins Court, on the other hand, believed that charging on lesser-related offenses would diminish the proceeding’s reliability by permitting the jury to convict the defendant of a crime the State never even sought to prove at trial.
Therefore, we adopt the Supreme Court’s holding in Hopkins and hold that a defendant is not entitled to a charge on lesser-related offenses. Here, permitting the jury to convict Dickerson as аn accessory after the fact would permit the jury to find beyond a reasonable doubt elements of a crime the State never sought to prove and Dickerson was not on notice he had to defend against. Accordingly, we affirm the circuit court’s denial of Dickerson’s request to charge.
IV. EXECUTION IMPACT EVIDENCE
Finally, Dickerson argues the circuit court erred in preventing his cousin, Johnette Watson, from testifying as to what effects Dickerson’s execution would have on her family. We disagree.
During the sentencing phase of a capital trial, the defense must be able to present mitigating evidence on “any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Eddings v. Oklahoma,
For example, “[a] capital defendant is prohibited from directly eliciting the opinion of family members or other penalty-phase witnesses about the appropriate penalty. Such questions go to the ultimate issue to be decided by the jury— life in prison versus the death penalty — and are properly reserved for determination by the jury.” State v. Wise,
The thrust of Dickerson’s argument is that the emotional impact an execution would have on his family members demonstrates that he has the ability to form cohesive, lasting relationships with others, a trait that reflects positively on his character. We agree that evidence of a defendant’s ability to form positive relationships with others is evidence that Ed-dings renders admissible. And here, Watson testified without objection to the close bond she shared with Dickerson and how he was like a brothеr to her. However, execution impact evidence can easily cross the line from illuminating a defendant’s character or a plea for mercy to an opinion of what is the proper punishment.
V. PROPORTIONALITY REVIEW
Pursuant to section 16-3-25(0), we must conduct a review of Dickerson’s sentence. In doing so, we must determine whether the sentence was the result of passion, prejudice, or any other arbitrary factor; whether there is evidence to support the jury’s findings; and whether the sentence is excessive or disproportionate to the sentences imposed in similar cases. See id.
First, we cannot find anything demonstrating that the sentence was the result of passion, prejudice, or any other arbitrary factor. Although Dickerson’s attorneys did a com
Second, and similarly, we hold evidence exists to support the jury’s finding that the State met its burden with respect to all three aggravating circumstances. The record readily demonstrates Dickerson kidnapped Roper, committed criminal sexual conduct on him, and tortured him. Indeed, the jury separately convicted Dickerson of kidnapping and criminal sexual conduct during the guilt phase of the trial. We can find nothing reflecting an absence of proof as to any of these aggravating factors.
Finally, we believe Dickerson’s sentence is neither excessive nor disproportionate in light of the results in similar cases. In capital cases where the State proceeded on the aggravating circumstances of kidnapping, criminal sexual conduct, torture, or any combination thereof, this Court has routinely affirmed the sentence of death. See State v. Stanko,
Accordingly, we find that the death penalty was warranted in this case.
CONCLUSION
For the foregoing reasons, we affirm Dickerson’s conviction for murder and the circuit court’s sentence of death.
Notes
. After dropping Dickerson and Roper off, Nelson left and did not return. There is no suggestion he knew of Dickerson’s plans beforehand or had any involvement in the subsequent events.
. Malik attempted to bring Dickerson’s mother to Armon’s house to calm Dickerson down. When Dickerson learned of this, he threatened
. Armon's girlfriend, Selena Rouse, was in and out of the house during that evening, along with her young son. At some point, Dickerson asked her whether he should let Roper live or die. However, there is no evidence that she actually participated in the torture.
. We emphasize that there is absolutely no suggestion, let alone evidence, that Dr. Schandl or the State purposefully failed to run confirmatory tests in order to exclude the evidence Dickerson sought to introduce.
. The elements of accessory after the fact are that the felony has been completed, the accused had knowledge that the principal felon commit
. Under Dickerson’s view, only the defendant would have the option of requesting this additional charge. The Supreme Court of California resoundingly rejected this very point. Birks,
an unfair one-way street where lesser related offenses are at issue. On the one hand, the defendant’s right to notice of the charges limits the circumstances in which a jury, over the defendant’s objection, may receive instructions on lesser offenses which are not necessarilyincluded in those to which a plea was entered. On the other hand, if a lesser оffense is related to the charge, as Geiger defines that term, Geiger gives the defendant an absolute entitlement to such instructions on request, regardless of notice or prejudice to the People, and even over their objection.
Where lesser related offenses are concerned, the Geiger rule therefore may actually permit and encourage a one-sided use of the "gambling hall” strategies we have consistently denounced. If the evidence suggests the possibility of a related lesser offense neither charged nor tried by the prosecution, the defendant either may demand that instructions on that offense be given, or may raise notice objections which, if successful, will prevent such instructions from being given at the prosecution’s behest. Geiger thus affords the defense a superior right at trial to determine whether the jury will consider a lesser offense alternative, or instead will face an all-or-nothing choice between conviction of the stated charge and complete acquittal. Such a rule is neither just nor rational.
Id.,
. We recognize that the vast majority of jurisdictions to address this issue have found exeсution impact evidence to be inadmissible. See Woods v. State,
. Before the circuit court, Dickerson argued that our current proportionality review is deficient because it fails to examine cases where death was not imposed and cases where death was not even sought. See State v. Copeland,
Had the Georgia Supreme Court looked outside the universe of cases in which the jury imposed a death sentence, it would have found numerous case's involving offenses very similar to petitioner's in which the jury imposed a sentence of life imprisonment. If the Georgia Supreme Court had expanded its inquiry still further, it would have discovered many similar cases in which the State did not even seek death. Cases in both of these categories are eminently rеlevant to the question of whether a death sentence in a given case is proportionate to the offense. The Georgia Supreme Court’s failure to acknowledge these or any other cases outside the limited universe of cases in which the defendant was sentenced to death creates an unacceptable risk that it will overlook a sentence infected by impermissible considerations.
Id. at 455-56 (citations omitted). This issue is not before us on appeal, and it would require us to overrule our prior decision in Copeland. However, we note our concern that restricting our statutorily-mandated proportionality review to only similar cases where death was actually imposed is largely a self-fulfilling prophecy as simply examining similar cases where the defendant was sentenced to death will almost always lead to the conclusion that the death sentence under review is proportional.
Concurrence Opinion
I concur in the decision to affirm this capital appeal and sentence, but write separately to address both the lesser-included issue and the majority’s suggestion in footnote 8 that we should consider altering our approach to proportionality review.
I agree with the majority that appellant has no constitutional right to a charge on a lesser-related offense. Hopkins v. Reeves,
Unlike the majority, I find nothing in People v. Birks,
On the merits, I find no reversible error in the circuit court’s decision not to charge the jury on the lesser-related offense of accessory after the fact because such a charge was not supported by the evidence. See State v. Collins,
On the merits, I agree that the death sentence imposed upon appellant is not disproportionate.
For the reasons given above, I concur.
. Like the majority, I have enormous respect for Justice Stevens. If we were to be true to his views on capital sentencing, however, we would join his minority view that imposition of the death sentence violates the Eighth Amendment's prohibition on cruel and unusual punishment. Baze v. Rees,