Lead Opinion
John Kennedy Hughey (“Hughey”) seeks a reversal of his conviction and death sentence for the murders of Tesheka Lanyra Jackson (“Jackson”) and Luevinia H. Harris (“Harris”). We affirm.
Factual/Procedural Background
On December 4, 1995, Hughey forcibly entered Harris’s house and had an altercation with his former girlfriend, Jackson. While Hughey and Jackson were arguing, Harris was on the phone with her son, Marcus Harris, from Oklahoma City. Harris told her son to call the police because Hughey had a gun, so he immediately called 911. Harris also called the Abbeville City Police Department to request help. While Harris was on the phone with the dispatcher, Hughey shot both Harris and Jackson with a shotgun. Harris died from a solitary gunshot wound to the head. Jackson had three major injuries: (1) a gunshot wound to the back of her head, from a maximum shooting distance of two feet; (2) a large bruise on her face, likely caused by the blunt end of the shotgun; and (3) a stab wound in her chest.
Within thirty minutes of the shooting, Hughey stole Jackson’s car and used her ATM card in Anderson. Hughey was arrested in Georgia and told the authorities “I killed them, it was an accident, the gun went off.” Prior to the incident, Hughey left a note on his door that stated: “As of this morning I will be dead. Love you all. Please take care of my kids. John K.”
Hughey gave an inconsistent statement during the guilt phase of the trial. He denied making the statement to the police after his arrest. At trial, Hughey claimed Harris invited him in for coffee and Jackson attacked him with a vase and a knife. According to Hughey, Jackson charged him with a knife and he pushed her resulting in a stab. Hughey then ran out of the house to get the shotgun from the car. He claims that Jackson stood on the steps and threatened to kill him. As he approached her, Jackson spit on him and attempted to slam the door. While they struggled at the door, the gun went off and Harris was shot. Hughey admitted that he was angry and attempted to shoot at Jackson. He chased Jackson into the bedroom where he shot her in the back of the head with a twenty gauge shotgun.
On March 11, 1996, Hughey was indicted in Abbeville County for: (1) the murder of Jackson; (2) the murder of Harris; (3) burglary in the first degree; and (4) grand larceny of a vehicle. On October 27, 1997, the jury found Hughey guilty on all four counts. The jury found beyond a reasonable doubt the existence of all statutory aggravating circumstances and returned a recommendation of death for each count of murder. On October 30, 1997, the trial judge sentenced Hughey to: (1) death for each count of murder; (2) a life sentence for burglary in the first degree; and (3) ten years imprisonment for grand larceny.
Hughey appeals his death sentence for both murders, raising the following issues:
(1) Whether the trial judge erred by refusing to disqualify juror # 55, Brian Daly (“Daly”), since he was employed at the McCormick Correctional Institution, and S.C.Code Ann. § 24-3-930 (1989) provides that “[a]ll guards and officers employed at the Penitentiary shall*448 be exempted from serving on a jury”, and whether Daly was the functional equivalent of a law enforcement officer?
(2) Whether the trial judge erred by refusing to provide specific examples of legal provocation in the jury charge of voluntary manslaughter?
(3) Whether the trial judge 'should have excluded the testimony of Mack Harris, the husband of Luevinia Harris, during the guilt phase concerning the blood he cleaned off the floor of his home after the murders?
(4) Whether the trial judge erred by refusing to charge the statutory mitigating circumstances contained in S.C.Code Ann. § 16-3-20(C)(b)(6) (Supp.1998), which allows the jury to consider: (1) the capacity of the defendant to appreciate the criminality of his conduct; or (2) the defendant’s ability to conform his conduct to the requirements of the law?
(5) Whether the trial judge erred by allowing the victim impact witnesses to testify in narrative form, rather than question-answer format, and whether this format was beyond the permissible scope of Payne v. Tennessee,501 U.S. 808 ,111 S.Ct. 2597 ,115 L.Ed.2d 720 (1991)?
(6) Whether the trial judge erred by instructing the jury that a non-statutory circumstance was “one which the defendant contends serves the same purpose” as a statutory mitigating circumstance?
(7) Whether the trial judge erred in admitting State’s Exhibit 95, a graphic color photograph of the victim’s head wound?
Law/Analysis
I. Juror Disqualification
A. Exemption versus Disqualification
Hughey argues section 24-3-930 disqualifies a correctional officer from serving on a jury. We disagree.
South Carolina recognizes a difference between “exemptions” and “disqualifications” from jury duty. An exemp
S.C.Code Ann. § 24-3-930 (1976) provides “that all guards or keepers and other officers employed at the Penitentiary shall be exempted from serving on juries and from military or street duty.” (emphasis added). In drafting this section, the South Carolina legislature chose the term “exempted.” However, in other code sections relating to juror qualification, the legislature chose to use the term “disqualifications.” See, e.g., S.C.Code Ann. § 14-7-430 (1976) (“Persons drawn shall serve unless dead, disqualified, or removed from county”); S.C.Code Ann. § 14-7-820 (1976) (“Disqualification of county officers and court employees”). The use of these separate terms in different sections of the Code demonstrates the legislature’s intent to draw a distinction between an exemption and a disqualification. Therefore, the trial judge did not err in ruling that section 24-3-930 did not disqualify juror Daly.
B. Disqualification under S.C.Code § 14-7-820 (1976)
Hughey argues section 14-7-820 disqualifies a juror who considers himself to be a member of law enforcement. We disagree.
Section 14-7-820 provides “No clerk or deputy clerk of the court, constable, sheriff, probate judge, county commissioner, magistrate or other county officer or any person employed within the walls of any courthouse shall be eligible as a juryman in any civil or criminal case.” “This court has adopted a functional rather than a rigid formalistic approach in interpreting and applying the provisions of this statute.”
This Court held in State v. Johnson,
II. Legal Provocation
Hughey argues the trial judge erred by refusing to provide specific factual examples of legal provocation in the voluntary manslaughter charge. We disagree.
The trial judge is required to charge only the current and correct law of South Carolina. Cohens v. Atkins,
Sudden heat of passion aroused by sufficient legal provocation which may reduce a felonious killing from that of murder to that of manslaughter need not dethrone reason entirely or shut out knowledge and volition, but it refers to an unlawful killing provoked by such circumstances that would naturally disturb the sway of reason and render the mind of an ordinary, reasonable, and prudent person incapable of cool reflection. And to produce what, according to human experience may be called an uncontrollable impulse to do violence.
Now in order for a felonious killing to be reduced from that of murder to that of manslaughter it must have occurred in sudden heat of passion aroused by sufficient legal provocation. The killing of a human being, even in the heat of passion, is murder if there was no sufficient legal provocation. That is the slayer had no reasonable cause for his anger.
Now in connection with what I have just instructed you regarding a cool reflection, that is whether or not a reasonable time for cooling off had elapsed, you should consider the whole circumstances surrounding the event. You should consider the nature of the provocation, should you find some to exist, the defendant’s mental and physical constitution as well as the circumstances and relationships between the parties, the time in which an ordinary person under like*452 circumstances would have called — cooled off is considered to be the reasonable time.
Even when a person’s passion were sufficiently aroused by a legally adequate provocation, if' at the time of the killing those passions had cooled or a sufficiently reasonable time had elapsed so that the passions of the ordinary reasonable person would have cooled, the killing would be murder and not manslaughter.
The trial judge’s refusal to include the specific instructions requested by Hughey does not constitute reversible error. A trial judge’s refusal to provide specific jury instructions is not reversible error if the general instructions are sufficiently broad to enable the jury to understand the law and the issues involved. Cohens,
Hughey requested that specific examples of legal provocation be provided to the jury. Specifically, Hughey requested the following examples of legal provocation: pulling a knife on a defendant, pointing a gun at a defendant, spitting in a defendant’s face, assault of a family member, sudden mutual combat where one of the participants is killed by the other without a previously informed intention to do so, finding one’s spouse in the act of adultery, or the deceased having molested a defendant’s minor child. The requested examples constitute a direct charge on the facts because Hughey alleges that a knife was pulled on him, Jackson spit in his face, and there was sudden mutual combat. The requested jury charge elevates the specific facts of the case, such as spitting in a person’s face, to an acceptable act of legal provocation. Because the requested charge is an instruction on the facts, and the requested charge is fully and fairly covered by the trial judge’s general charge, refusal of the requested instruction is not reversible error. See State v. Barwick,
III. Prejudicial Testimony
Hughey argues the trial judge erred in overruling their objection to a portion of George Harris’s testimony. We disagree.
Question: When you got back in that house, did you notice any red colored substance on the floor of your kitchen?
Mr. Garrett: Objection, Your Honor, relevance?
The Court: Overruled.
The Witness: When I got back in my house I cleaned that blood up, I (witness is crying) me and another friend. I removed all that blood. There was blood on the floor, blood down the hall in that door into that back bedroom, there was blood and fragments of bone on that floor. The police officers told me—
Mr. Garrett: Objection, Your Honor. As to what the police officers said.
Mr. Jones: Don’t tell me what they told you, just tell me—
The Court: The question is simply if you saw that on the floor or if it was there before you left?
Question: Was it on the floor before you left at 10:50?
Answer: No sir.
Question: Was it there when you came back?
Answer: Yes, it was.
Defense counsel objected to Mr. Harris’s testimony on the grounds of relevance. The trial judge has considerable discretion in ruling on the admissibility of testimonial and non-testimonial evidence. See State v. Davis,
“Evidence is relevant if it tends to establish or makes more or less probable some matter in issue upon which it directly or indirectly bears.” State v. Alexander,
Although Mr. Harris’s testimony may have been of little probative value, in light of the evidence already presented by the State, its admission did not result in prejudice to the Appellant. In State v. Davis, supra, this Court upheld the admission of testimony by the victim’s mother where the testimony was of little probative value but concerned facts already known to the jury. The testimony by Mr. Harris in the instant case did not contain any evidence that was not described, rather graphically, by the police, the pathologist, and a SLED agent. This Court concluded in Davis that although the testimony by the victim’s mother was of little probative value, the testimony did not prejudice the defendant to the extent of affecting the outcome of the trial. Davis,
Therefore, even if the testimony of Mr. Hams was irrelevant and inadmissible, because the questionable testimony was brief and no new evidence was presented, the admission constituted a harmless error. •
IV. Statutory Mitigating Circumstances
Hughey argues the trial judge erred by refusing to instruct the jury on the statutory mitigating circumstance contained in S.C.Code Ann. § 16 — 3—20(0(b)(6) (Supp.1998), which would allow the jury to consider Hughey’s capacity to appreciate the criminality of his conduct, or his ability to conform his conduct to the requirements of the law. We disagree.
Section 16 — 3—20(C)(b)(6) authorizes the trial judge to instruct the jury on certain statutory mitigating circumstances that may be supported by evidence. Specifically, section 16 — 30—20(C)(b)(6) states that the jury may consider “[t]he capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.” The trial judge has a duty to review all statutory mitigating circumstances and instruct the jury as to any circumstances which may be supported by
Hughey argues the trial judge should have instructed the jury to consider the statutory mitigating circumstances contained in section 16-3-20(C)(b)(6) based on the following testimony provided by Dr. James Evans, a specialist in neuropsychology:
Question: You’re offering them as explanations for his individual characteristics.
Answer: Yes, in a way I’m offering them as fact the [sic] would appear to modify or mitigate or whatever the crime — it would — it wasn’t — it might be something that— He’s different from the average person in many ways. And those are the ways we’ve talked about now. And those certainly there is question whether they were factors — it needs to be asked are those factors in the crime. And they may well have been.
Question: In your opinion, they could definitely have impacted him on December 4,1995?
Answer: They could have been factors, yes.
Question: And, Doctor, in your medical opinion as neuropsychologist, if an individual who suffers from organic brain dysfunction is exposed to violence at an early age, abused, and then suffers a series of head traumas, in you opinion as an expert, would those factors affect that person’s ability to cope and deal with stress and life itself?
Answer: Yes.
Question: And, Doctor, in your evaluation and study of John Kennedy Hughey, have you found organic brain dysfunction?
Answer: I found a lot of converging evidence for organic brain dysfunction to the point I would say, yes, it exists.
Dr. Evan’s testimony implies that Hughey could not deal with stress, not that Hughey would be unable to appreciate the
In State v. Caldwell, this Court held the trial judge erred by failing to charge the statutory mitigating circumstances contained in section 16 — 3—20(C)(b)(6) where the defendant suffered from a psychopathic personality. Caldwell,
Hughey argues that he was entitled to an instruction on the mitigating circumstances in section 16 — 3—20(C)(b)(6) because of his abuse as a child, several head traumas, a car accident, and the death of his mother. The trial judge adequately submitted the issue of Hughey’s mental well-being to the jury by instructing the jury to consider as non-statutory mitigation, “his level of intellectual function whether as a natural consequence of his birth or as a result of physical and/or emotional trauma suffered as a child or as an adult.” See State v. Plemmons,
The trial judge in the present case did not err by refusing to charge the statutory mitigating circumstances contained in section 16-3-20(C)(b)(6) because no evidence introduced supported it and the jury was advised to consider Hughey’s mental state through the judge’s non-statutory mitigating circumstances charge.
Hughey argues the trial judge improperly allowed the State’s victim impact witnesses to testify in narrative form rather than question-answer format in violation of Payne v. Tennessee,
Victim impact evidence is admissible in the sentencing phase to demonstrate the “uniqueness” of the victim and the specific harm committed by the defendant. State v. Rocheville,
Hughey argues the trial judge’s instruction on non-statutory mitigating circumstances constituted reversible error. We disagree.
A jury instruction must be viewed in the context of the overall charge. See State v. Hicks,
Now you are also permitted under the law to consider ... you should consider, any non-statutory mitigating circumstances which have been shown to exist by the evidence in the case.
A non-statutory mitigating circumstance is one which is not provided for by statute, but is one which the defendant contends serves the same purpose. That is to lessen or reduce the degree of the defendant’s guilt in the commission of the crime of murder.
Those that the defense contends should be considered are: any prior good acts of the defendant, the defendant’s level of intellectual functioning whether as a natural consequence of his birth or as a result of physical and/or emotional trauma suffered as a child or as an adult, and any other evidence relating to a mitigating circumstance which you find to be appropriate and which you find to have been established by the evidence in this case.
Now while there must be some evidence which supports a finding by you of the existence of one or more statutory or non-statutory mitigating circumstances, it is not necessary that you find the existence or a circumstance or circumstances beyond a reasonable doubt. And you may recom*459 mend a sentence of life imprisonment and [sic] whether or not you find the existence of a statutory or nonstatutory mitigating circumstance.
In making your determination as to which sentence to recommend in these cases, you should consider the statutory aggravating circumstances, the statutory mitigating circumstances, and any non-statutory mitigating circumstances in arriving at your decision....
Simply stated, you may recommend a sentence of life imprisonment for any reason or for no reason at all other than as an act of mercy, (emphasis added).
Considering the jury charge as whole, a reasonable juror would understand that either a statutory or a non-statutory jury circumstance could reduce the sentence to life imprisonment. Hughey contends the trial judge’s instruction was erroneous because the charge defined non-statutory circumstances as those “the defendant contends” the jury should consider, not what the law authorizes the jury to consider. The jury charge adequately apprised the jury of the function of non-statutory mitigating circumstances because it repeatedly emphasized that both statutory and non-statutory circumstances should be considered when forming a recommendation. In fact, the judge instructed the jury that they could recommend life imprisonment for “any reason or no reason at ah.” See State v. Atkins,
Moreover, the jury charge in the present case is similar to other charges of non-statutory mitigating circumstances upheld by this Court. The jury charge authorized the jury to recommend life imprisonment even if they did not find the existence of mitigating circumstances. Similar jury instructions have been found adequate by this Court. See State v. Hicks,
Hughey contends the jury instruction was confusing because it suggested that an act of mercy would have been an invalid reason for a life vote. The trial judge told the jurors “you may recommend a sentence of life imprisonment for any reason or no reason at all other than as an act of mercy.” (emphasis added). This argument is without merit because a judge’s charge that the jury should not be guided by sympathy, prejudice, passion, or public opinion is not reversible error. See Singleton,
The jury charge, reviewed in its entirety, is not confusing because it advises the jurors to consider all mitigating circumstance in making their recommendation. The non-statutory circumstances are repeatedly emphasized by the trial judge and are adequately defined according to current South Carolina case law.
VII. Photograph
Hughey argues the trial judge erred in admitting State’s Exhibit 95, a graphic color photograph of Jackson’s head wound, because the photograph was so inflammatory that it denied his right to a fair sentencing hearing. We disagree.
The relevancy, materiality, and admissibility of photographs are matters left to the sound discretion of the trial judge and those rulings will not be disturbed absent a showing of an abuse of discretion. State v. Nance,
In the sentencing phase, the scope of the probative value of evidence is much broader. State v. Rosemond,
During the sentencing phase the State introduced a graphic photograph of the victim’s face after she was shot in the back of the head with a twenty gauge shotgun. Although the photograph is gruesome, it depicts the condition in which Hughey left the victim and the circumstances of the crime. The photograph is probative of the circumstances of the crime because it demonstrates the shot was intentional rather than accidental. The defense argued in the guilt phase that the gun accidently fired when Hughey and Jackson were struggling over the gun. The photograph demonstrates that Jackson was shot deliberately from behind, in a manner in which she was least able to defend herself, and not as a result of a struggle over the gun. The photograph also demonstrates that Hughey shot Jackson at a very close range. See Rosemond,
Conclusion
After reviewing the entire record, we conclude the death sentence was not the result of passion, prejudice, or any other arbitrary factor, and the jury’s finding of statutory aggravating circumstances is supported by the evidence. See S.C.Code Ann. § 16-3-25 (1985). Further, the death penalty is neither excessive nor disproportionate to that imposed in similar cases. See State v. Powers,
AFFIRMED.
Notes
. Defense counsel adequately preserved this issue for appeal by objecting to the family members “continuing without questions.”
. The family members testified that Harris was a good mother, they missed her company, they missed her cooking, and that the holidays were going to be painful without her.
. The family members' testimony in this case is similar to other victim impact testimony permitted by this Court. See State v. Ivey,
Dissenting Opinion
I respectfully dissent. In my opinion, the testimony from the neuropsychologist coupled with the evidence of appellant’s head traumas and his car accident constitute some evidence warranting a charge on the statutory mitigating circumstance of capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. State v. Caldwell,