*1 360 (2d) (1980) (motion judg for relief from 307, 262 913 S.E. when war jurisdiction, lack of upon court’s grounded
ment matter Default right). but a ranted, discretionary is not ren judgments valid service are rendered without judgments and therefore void. See Mo are jurisdiction dered without (Ct. Surdam, App. 296 S.C. 373 S.E. mani v. Van (“[w]hen 1988) served, ‘the Court is not property a defendant defendant, and all based proceedings of the jurisdiction has no ”) v. (citing Wyman are void.’ on the service portended Hoover, 135,136 record that the summons
In the instant case the shows L. Young. Although to Edward were addressed complaint it delivery,” signed marked “restricted was return was receipt shows conclusively The return itself Young. receipt J. Neal into hands of the to whom person that it was not delivered is in the Furthermore, it there no evidence was addressed. n Young authorized to ser- accept record to show J. Neal was cannot registered agent. L. We Young, vice Edward conclude, therefore, Inn served. Days properly over jurisdiction acquired no in having personam There been Inn, against default rendered judgment we reverse the Days con- proceedings to the trial court for and remand cause with opinion. sistent this
Reversed and remanded. J., concur. C.J., Howell, Littlejohn, LONGWORTH, STATE, Respondent Appellant. v. Richard (2d) 219) (438 S.E. Supreme Court *3 H. and John Appellate South Carolina Defense Office of Center, Blume, Resource Penalty of South Carolina Death Columbia, appellant. Medlock, Atty. T. Travis Gen. Attorney Deputy Gen. Chief Coombs, Zelenka, Harold Atty.
Donald Sr. Asst. Gen. M. J. Jr., Columbia, Atty. Rapoport, and Asst. Gen. Norman Mark Gossett, Spartanburg Correspondent. and Sol. Holman C. 8, 1993. Heard June 25, 1993. 5, 1994.
Decided Oct. Reh. Den. Jan Moore, Justice: armed kidnapping, robbery, was convicted of
Appellant in with the deaths of and two counts of murder connection Greene, Alex and James Todd of West- Hopps employees Cinema in was sentenced gate Spartanburg. Appellant Mall twenty-five to death for the murders and kidnapping plus years robbery.1 for armed We affirm.
JURY ISSUES for a Appellant change pretrial moved venue based not tried publicity. agreed appellant The State should be of a Spartanburg County jury jury and consented selection § in Ann. 17-21-85 county pursuant another to S.C. Code 1992). in (Supp. provides part: This statute A circuit in a criminal in which he deter- judge may, case an in the jury mines that unbiased cannot be selected indicted, in county which the defendant was order jury county selection forward some other go selected, to the jury, transported county when be which the indictment was returned for the duration of the trial.
The trial ruled that selection would be held judge jury County transported in York and the jury Spartan- burg objected procedure for trial. to this which pressure jurors “based the inherent upon psychological would face if are taken from their homes and they essentially *4 everyone to around them knows brought county this where who they only about the case ... and are the ones something don’t.”
A of venue is addressed to the change motion for and will judge ruling sound discretion of the trial his an thereof. State v. not be disturbed absent abuse (2d) Caldwell, (1990); v. 494, 300 388 S.E. 816 State S.C. 1 Rocheville, Appellant’s co-defendant, separate in a David was convicted — Rocheville, (2d) —, trial and sentenced to death. See State v. 425 S.E. (1993). 32
364 (2d) (1982). 572, 278 S.C. S.E. a
Copeland, Transfer of §to is similar in to a jury pursuant 17-21-85 effect change venue is same subject scope Further, and to the of review. juror is the defendant’s burden to demonstrate preju- actual Caldwell, dice as a of pretrial publicity. result State v. supra. Here, we find no abuse of discretion in the trial judge’s de- cision a jury § to transfer to to 17-21- Spartanburg pursuant 85. has show the Appellant jury any failed to was tainted by actual juror prejudice pretrial from publicity.
Appellant further contends the trial to judge failed statutory a necessary consider factors to transfer § jury pursuant to 17-21-85.The requires statute trial consider: judge
all logistical expense and, elements consistent with the justice, demands of choose the method that re- sults in the east expense greatest convenience for all parties involved in the case.
In case, this fifty-eight witnesses from the Spartanburg area were noticed to at trial. We testify hold the record supports the trial judge’s finding that a was the transferring jury least expensive and most convenient alternative afford appel- lant a fair and impartial jury. the trial
Appellant complains judge improperly limited Poore, his voir dire of venireman a Billy retired high- way patrolman. to ask him Appellant attempted give whether he would “tend to more credibility to the testi- mony you of a officer than police would to the defendant aor civilian witness?” also claims he would have asked the same of venireman Keith question Pruett who was the son of a retired highway patrolman.
Neither Mr. Poore nor Mr. Pruett was seated on the since jury appellant exercised two of his peremptory strikes to remove them.2 In reviewing challenge juror qualification, we focus those who are jurors seated to determine whether a defendant received a fair trial. State v. Green, Here, 392 S.E. appellant has any failed to prejudice demonstrated since two venire- 2Appellant only permitted exercised seven the ten strikes him under 1992). § (Supp. S.C. Code Ann. 14-7-1110
365 Moreover, not have were seated. questioned he would men regarding in disallowing questions is no error there State v. one witness over another. juror a would weight give — (2d) (1992). Davis, —, 422 133 S.C. S.E. Hall er- Linda potential juror contends to vote of her reluctance disqualified because roneously for sentence. a death or not be excluded his case, juror may
In a a capital unless would against capital punishment her attitude according return a verdict juror that unable to render 1992). 16-3-20(E) The § stan (Supp. Ann. to law. S.C. Code or prevent views would substan juror’s is whether the dard juror. as a of or her duties his tially impair performance determination a is Green, juror whether v. supra. State within the in a case is capital or to serve disqualified qualified on and will not be reversed appeal the trial judge discretion of Id.; v. State Plem evidence. wholly unsupported unless (2d) (1985). Further, in re mons, 765 332 S.E. or of disqualification trial viewing judge’s qualification juror a must challenged jurors, responses prospective Green, v. dire. the entire voir State light examined be 399,308 S.E. State v. supra; Spann, age a son Here, appellant’s she had Ms. Hall stated because impose find it difficult” to “very she would (twenty-two), could not She stated she young person. on penalty death counsel’s in this defense responded for death case vote as questioning follows: further time that I have a difficult
No,A. I’m would telling you men, woman young young the death imposing penalty age range. (Affirmative) Could, you— could Uh-huh. Q.
A. Okay. judge gave convinced that as the it if were
Q. you —do evidence, it was the ap- heard the you law and as you the ju- with the other do, you agreed thing to propriate the case? rors on four times that question me about
A. You’ve asked now— Yes, ma’am.
Q. no. And the answer is still way. A. —in a different Q. You can’t Okay. do it? Is that what you’re me? telling *6 A. No.
We find the record the supports disqualification of Ms. Hall on the ground her views would substantially her impair per- formance juror since, as a contrary views, to her age is not a bar to capital punishment this case. Because Hall Ms. could not consider of a imposition law, allowed penalty by she was properly excused.
Appellant contends veniremen Steve Kay Penland and Johnson were improperly disqualified because of their reluctance to a impose death sentence on a non-trigger-
man.
Ms. Johnson stated she could not vote for death no matter what the degree of the defendant’s involvement. Mr. Penland stated during course of questioning that he “probably could” consider it but then finally responded:
THE COURT: If the facts were bad enough, could you a give non-triggerman the of penalty death?
MR. don’t, PENLAND: I I don’t know. It’s hard to I say. mean it a, would have to be of, lot a lot of evidence I guess to make me believe it.
THE Well, COURT: course, it would. But if it were a lot of evidence, could you give a non-trigger man a sen- tence of death?
MR. Well, PENLAND: really, I don’t really think I could and live with it you know.
THE Yeah, COURT: no matter how much involvement had, he you couldn’t do it?
MR. PENLAND: I don’t think so.
We find the record of the voir dire as a whole supports
the trial judge’s ruling
jurors
these
were disqualified
because their views would substantially impair their
performance
jurors.
as
Major
participation
the crimes com-
mitted combined with reckless indifference to human life is
sufficient culpability impose
death penalty upon a defen-
dant liable for murder under a theory of accomplice liability.
Arizona,
Tison v.
137,
481 U.S.
GUILT PHASE ISSUES in this night January murders case occurred on the 1991. An off-duty employee, David returned to Hopkins, Cinema and al- Westgate employees Mall found no present films were still though being body shown. The of nineteen- year-old Alex out- Hopps was discovered behind theatre side an exit door. He range had been shot at close in the left temple.
When arrived at the rec- Hopkins theatre he had seen and ognized co-defendant, Rocheville, appellant’s David rummag- ing James car in through Greene’s lot.3 Greene parking was the other employee duty Hopps with Alex and he was Police missing from theatre. arrested Rocheville at 5:00 a.m. the A morning. later, next few hours Rocheville police led *7 to the of body James Greene which found in a shallow ditch side on the of a rural road several miles from the cinema. Appellant was arrested later that day.
Appellant consented to be by police interviewed officers after waiving rights. his At the end Chief interview, of the the Murray prepared followingstatement from his notes: that on [Longworth] January 7,1991, stated he left his home at four o’clock in meet approximately p.m. route to friend, Rocheville, his David at a television repair shop Rocheville meeting him, where worked. After both they Duncan, traveled to home in Rocheville’s South Carolina where Rocheville cleaned left there in up. They Long- mini worth’s van that is his father in actually by owned route to the Continental Cafe in the Hillcrest located in Spartanburg. Mall at approximately arrived there 7:30 where
They p.m. he, Longworth, drank six beers three approximately and there, they kamikazes. While to a bartender the spoke Larry, unknown, name of last name who works there and cafe, them. After the he and leaving knows Rocheville time, the mini a drove around town in van for short and an eventually at unknown between Hill- stopped place West a they pack crest and Gate where twelve purchased of continued all They driving beer. around the while employees appellant Both and were theater Bocheville former the owner. Cinema. beer, to rob the West Gate and decided
drinking Theater at an unknown at the Gate They arrived West midnight. twelve o’clock But he knows it was before time. see- theatre, remembered Longworth the Upon entering and, fact, an waved Greene, employee, James ing inside the walked around him. and Rocheville Longworth the two of them time, a and believed theatre for short Dances with Wolves was where the movie went inside they that when entered remembers Longworth playing. door, there was no one theater the front through the in without they walked accordingly, the ticket booth. And having pay. time, a they in the theater for short being
After seated walked out place. they time to the As decided was rob theater, Longworth saw lobby toward the the end of a counter. usher, near Hopps, standing Alex him, started down they walking He went over to take the usher outside His was to hallway talking. plan him unconscious. and knock he hallway, down the knocked they As walked from under his feet out by sweeping usher to floor him, his placed then immediately jumped him. He Rocheville, who had been over the usher’s mouth. hands had carried into the the- Longworth given gun coat, was in a shoulder holster hidden under his ater and the usher watching activity. Longworth As near where he and outside a side exit using walked theater, they in the were fol- Rocheville had been seated *8 Rocheville. by lowed outside, that he the Longworth grabbed
Once stated it his back. up the arm and twisted behind right usher high then the usher to lean over waist bar He forced the or a to, building cooling that was in to place protect the usher or unit, pushing pin- and then took his left hand him the then shot the usher the on bar. Rocheville ning holding the head while was him. Longworth left side of Longworth and the one which earlier weapon used it Ruger, him is .44 and was loaded given magnum [a] had semi wad cutters. with weapon
After the Rocheville returned the to shooting, it in the aforementioned shoul- and he Longworth, placed der holster. Longworth stated that he did not know the usher it was although pointed out to him that the usher had at one time worked him the at Converse Theaters Longworth when was an manager. assistant After the shooting, Longworth advised that he and Rocheville walked around the front the theater to proceed with robbery. However, the they when at front, arrived the the doors were locked. stated
Longworth that he again Greene, saw James and motioned to him to the doors. open complied. Greene inside, Once Longworth stated that he drew this same Greene, gun and something stated to the effect that he sorry. But he was going to rob the theater. And re- quested Greene, that Greene the open safe. upon seeing the gun, became so nervous that took him three tries to successfully open safe.
Longworth took several money bags safe, from the and then if asked Greene he had the deposits. made Greene responded yes, and Longworth stated don’t lie to me. stated Greene in his deposits personal were car. them, The three of Longworth, Greene, and Rocheville then walked to Greene’s vehicle at the parked side cinema, obtained the remaining money bags, gave them all to Rocheville. all They then into got the afore- van, mentioned mini which was next to parked Greene’s Longworth vehicle. was driving. Rocheville inwas back. And Greene was seated in the passenger side. he
Longworth gave stated that then the .44 magnum Ruger Rocheville, and stated if he him moves shoot re- ferring to Greene. The three of them then proceed to drive up highway Inman, number toward and then turned off right number 176 onto an unknown road. They drove a short distance and stopped the van. Longworth then told to get van, Greene out of the paces, walk five on your knees, down and stare get straight ahead.
He did as at point, instructed. And this Rocheville got out of the van with partially one foot on perhaps van, and the other in the ground shot Greene of the back head. Green then rolled over into the ditch near where he and been kneeling. *9 v ‡ ‡ % # initially that told James did mention he
[Longworth] him, hurt and that he was that he would not Greene He that in a field unharmed. stated to let him out going he pleaded did believe him as not apparently Greene that him, assured them he would them not to hurt and He live so that he could just them. wanted to identify not his girlfriend. see interview, the during Longworth
At one point and we table, my god fist on the exclaimed slammed his hundred killed kids for fifteen dollars. those statement, say- asked this declined sign appellant When to attorney to read it The statement was he wanted an first. ing The during Murray’s testimony. at trial Chief Solici- admitted if in- he recalled else not Murray anything tor then asked Murray in the responded: cluded statement Yes, sir, point during A. I do recall at one interview one something sup- to the effect that no was he said that that anyone get to killed or was not intended be posed killed. (Affirmative)
Q. Uh-huh. And, that, had thing A. and one other that he mentioned him he had taken Alex outside and put when the bar, raising gun up over he observed Rocheville head, nothing just Alex’s and he did to him. He stop to watched him. to him?
Q. nothing stop Who did stop A. did to him. Longworth nothing Did he he knew what was Q. say happening?
A. He he knew what was going happen. said right, All sir Q. he him. nothing
A. But did to stop trial out. jury sent Appellant objected judge had received complained then he never notice the effect that he what was going statement to knew any Alex Hopps. judge before Rocheville killed trial happen Murray himself and determined that such questioned Chief The trial Murray’s judge was not included notes. statement instruction: jury gave following then called back and *10 ladies and Foreman, gen- Now Mr. THE COURT: testimony being pre- that was tlemen, the, the during had You properly. sented, objected the defense counsel Murray Chief by the statement testimony heard from gun, with the I saw Rocheville says that the defendant of the statement. part to it. That’s nothing stop and I did I knew say Longworth on to did say The solicitor went And Chief happen. was to what, going he knew what hap- was to going he he knew what says yes, says Murray in the statement. true. And that’s not And that’s not pen. in here this Murray with Chief And I have conferred his interpretation. And that is on the record. courtroom you I must ask the defendant. not a statement That is from mind. your that comment that, wipe to disregard to trial, you to into this thing injected It is be improper important. It is so entirely please. disregard Rocheville, and I I saw made was only statement it as best I that’s the end of him. And nothing stop did to Murray further from Chief anything Disregard can tell. Thank right. All you. I outlined to as have point on you. in his denying erred judge claims the trial
Appellant knowingly the Solicitor a mistrial because motion for in- and the curative testimony false to use attempted the prejudice. to cure was not sufficient struction with So- judge’s colloquy of the trial find the record We Murray know Chief was did not indicates the Solicitor licitor Further, the curative instruction he did. testify as going did not attribute jury to ensure clearly sufficient was complains, Appellant to appellant. statement Murray’s Chief told judge the trial however, because prejudiced he was of what appellant Murray’s “interpretation” it was Chief jury “the imprimatur the statement said, thereby giving had credibility.” is evidence incompetent to disregard
An instruction admission. State error in its any to cure deemed usually (2d) 298 Dawkins, 386, 377 S.E. v. dis- totally jury told trial
Here, judge emphatically could have jury if the Even testimony. the challenged regard Murray’s that Chief instruction judge’s the trial inferred from valid, “interpretation” prejudice. we find no Under a the- ory accompliceliability, it is immaterial whether appellant knew beforehand that Rocheville was to shoot going Hopps. See, (1991)(accom- Bell, v. State 406 S.E. to murder which is natural and plice liability applies probable robber). consequence of armed Nor is such mate- knowledge rial to of the death under the imposition penalty law set forth Arizona, v. Tison we find no error. supra. Accordingly, contends the trial erred in judge failing to include element of intent his charge kidnapping. Appellant made no nor to the request objected charge given and this *11 event, issue is therefore not before us. In properly any trial judge did state that to constitute a kidnapping carrying must a away be “with to violate the law.” purpose See State v. (2d) (1990) 302 Ferguson, 269, S.C. 395 S.E. 182 (equating “intent”). “purpose” contends the trial judge’s charge on reasonable in phases
doubt both of the trial did not comply with this Court’s decision in v. Manning, 413, State 305 S.C. 409 S.E. (2d) (1991). 372 charge given this case suffers none of the infirmities in Manning found allow a improperly less- — also, Baker, ened degree proof. —, See State v. S.C. 424 (2d) (1992) (reversible 492 S.E. error to charge reasonable doubt as “strong uncertainty”). Nor did we mandate in Man- ning that be specific charge given. Accordingly, we find no error here.
SENTENCING PHASE ISSUES Appellant contends the trial erred in judge his refusing request jury be not to charged speculate whether the sentence would deter imposed others. We recently (2d) held in v. Simmons, _ S.C._, State 427 S.E. (1993), 175 that the of this propriety charge need not be con sidered where the State does not deterrence. argue Here the Solicitor did not mention general deterrence. We find no error in the refusal of appellant’s requested charge.
Further, appellant contends the trial judge improperly limited his closing argument regarding general deter- ' rence. argued: Counsel
373 It’s been said that the death penalty is a deterrent. I ask you whether or not if life imprisonment is not a deterrent to this crime or to other crimes? How would the death penalty—
At this point, Solicitor objected. The trial judge then ruled:
Yes, sir, deterrence would not an be issue this case. But. . . whether this defendant in this crime is deserv- of which ing penalty authorized our law.
Appellant claims disallowing his argument regarding general deterrence is error under of fundamental “principles fairness” in view of our previous decisions allowing Solicitor to argue general Truesdale, deterrence. See State v. 301 546, S.C. (2d) 393 S.E. (1990); Jones, 168 State v. 118, 378 S.E. (2d) (1989); Yates, State v. 310 S.E.
While we decline to reconsider at this time the propriety of allowing argument deterrence, regarding general we hold the restriction of appellant’s argument in this case resulted in no fundamental unfairness since the trial judge permitted nei- ther the Solicitor nor appellant it. We find argue no re- versible error.
CONCLUSION Appellant’s remaining exceptions are affirmed pursuant to 220(b)(1), Rule SCACR. Issue 6: State v. Davis, _ S.C. _, (2d) 422 S.E. 133 (1992); Rocheville, _ S.C. Issue 9: State v. (2d) _, 425 (1993); S.E. 32 Rocheville, Issue 10: State v. Davis, 11: supra; Issue State v. supra; Green, Issue 12:State v. (2d) 347, 392 S.E. 157 We have conducted the madatory review provided S.C. (1985) §Ann. Code 16-3-25 and conclude the sentence is not arbitrary, successive, or and the disproportionate evidence supports finding aggravating circumstances.
Affirmed.
Harwell, C.J., toal, J.J., and Chandler concur. Finney, J., dissents in separate opinion. Justice, dissenting:
Finney, For the reasons set forth in my dissenting opinion State — Rocheville, —, (1993), v. 425 S.E. I would re- for a sentencing mand new proceeding. CAMPBELL, Respondent.
In the Matter of Larkin V. (438 (2d) 230) S.E. Supreme Court Pride, II, P. Hemphill Columbia, respondent. for Medlock, Atty. Gen. T. Travis Deputy Atty. Gen. William Moore, K. Atty. Asst. Gen. James Bogle, Columbia, G. complainant. 7, 1993.
Submitted Oct. 8, 1993.
Decided Nov.
Per Curiam:
In this attorney grievance matter, respondent admits to nu- merous acts of misconduct and consents to disbarment pur- *13 suant to 27 of the Rule on Paragraph Procedure, Disciplinary Rule SCACR. We accept respondent’s admission and dis- bar him.