The STATE, Respondent v. Clinton Robert NORTHCUTT, Appellant.
No. 26271.
Supreme Court of South Carolina.
Feb. 20, 2007.
Rehearing Denied March 22, 2007.
641 S.E.2d 873
Heard Oct. 17, 2006.
CONCLUSION
We accept the Agreement for Discipline by Consent and definitely suspend respondent from the practice of law for a sixty (60) day period, retroactive to the date of respondent‘s interim suspension. Within fifteen days of thе date of this opinion, respondent shall file an affidavit with the Clerk of Court showing that she has complied with Rule 30, RLDE, Rule 413, SCACR. Finally, within sixty (60) days of the date of her reinstatement by the Court, respondent shall pay the costs incurred by ODC in its investigation and prosecution of this matter.
DEFINITE SUSPENSION.
TOAL, C.J., MOORE, WALLER, BURNETT and PLEICONES, JJ., concur.
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, and Assistant Deputy
Justice BURNETT:
Clinton Robert Northcutt (Appellant) was convicted of killing his infant daughter and sentenced to death. We rеverse and remand for a new sentencing proceeding.
FACTUAL/PROCEDURAL BACKGROUND
Appellant, his wife, Angie, who was pregnant with their second child, and their four-month old daughter, Breanna, resided in Lexington County, South Carolina. In early January 2001, Ms. Northcutt threatened to leave Appellant, but he took her car keys and prevented her from doing so. Two days later, Appellant shook, squeezed, slapped, punched, bit, strangled, and beat his infant daughter to death in an apparent fit of rage when she would not stop crying.
Appellant fled the home and was arrested near Atlanta later that day. Ms. Northcutt returned home from work that evening and found Appellant‘s wedding ring lying on a table and a message on the answering maсhine in which Appellant told his wife the baby was dead and apologized for what he had done. He also told her he was leaving and going far away so he would no longer hurt anyone. Ms. Northcutt then found the baby‘s body in the crib, and called emergency personnel.
An autopsy revealed severe and extensive trauma to the child‘s body and significant bruising, internal hemorrhaging, and bone fractures indicative of shaken baby syndrome. According to the examining pathologist, more than one of the baby‘s injuries alone were potentially fatal. He estimated the injuries were inflicted over a seven to fifteen minute time frame, although it could have been as little as two to three minutes. He testified therе were no old bruises or injuries on her body and that all injuries stemmed from this single event.
The jury found Appellant guilty of murder. In the sentencing phase the State introduced evidence in aggravation of punishment including: (1) suspensions and school vandalism by the Appellant when he was in middle school; (2) an incident, for which he served one year in the Department of
ISSUES
- Did the trial judge err in denying Appellant‘s request to submit homicide by child abuse as a lesser-included offense of murder?
- Did the trial judge err in requiring Appellant to direct his expert witnesses to generate written reports for the prosecution?
- Did the trial judge err in admitting evidence that the baby had suffered a broken leg at age ten-weeks while Appellant was removing her from a swing-seat, in the absence of any evidence that the injury was the result of child abuse?
- Did the trial judge err in admitting a letter from Ms. Northcutt to a defense social worker in which Ms. Northcutt stated she had “no sympathy” for Appellant?
- Should Appellant have been permitted to introduce a letter to his wife expressing remorse for the death of their baby in response to the wife‘s testimony that Appellant‘s post-arrest phone calls to her had shown a lack of remorse and concern?
- Did the solicitor‘s closing argument so infect the jury‘s sentencing determination with passion and prejudice that it requires reversal of the death sentence?
In criminal cases, this Court sits to review errors of law only. State v. Cutter, 261 S.C. 140, 199 S.E.2d 61 (1973). This Court is bound by the trial judge‘s factual findings unless they are clearly erroneous. State v. Wilson, 345 S.C. 1, 545 S.E.2d 827 (2001).
LAW/ANALYSIS
I. Lesser-Included Offense
Appellant argues the trial judge erred in failing to submit homicide by child abuse as a lesser-included offense of the murder of a child under age twelve. We disagree.
The indictment charged Appellant with the crime of murder under
The test for determining whether a crime is a lesser included offense of the crimе charged is whether the greater of the two offenses includes all the elements of the lesser offense. Hope v. State, 328 S.C. 78, 492 S.E.2d 76 (1997). If the lesser offense includes an element not included in greater offense, then the lesser offense is not included in the greater. Id.
Homicide by child abuse requires proof of the death of a child under age eleven during the commission of child abuse or neglect and the death occurs under circumstances showing extreme indifference to human life.
[5] Homicide by child abuse is not a lesser included offense of murder. An element of homicide by child abuse, the death of a child under age eleven, is nоt an element of murder. Thus, the elements test has not been met. “A lesser offense is included in the greater only if each of its elements is always a
When an offense fails to meet the elements test, this Court will nevertheless construe it as a lesser included offense if the offense has traditionally been considered a lesser included offense of the greater offense charged. State v. Burton, 356 S.C. 259, 264, 589 S.E.2d 6, 8 (2003) (citing State v. Watson, 349 S.C. 372, 563 S.E.2d 336 (2002)). There is no historical antecedent suggesting homicide by child abuse is a lesser included offense of murder. Because homicide by child abuse is not a lesser included offense of murder under either the elements test or the historical antecedent test, the trial judge did not err in denying Appellant‘s request to submit homicidе by child abuse as a lesser included offense of murder.
II. Expert Reports
Appellant argues the trial judge erred by requiring him to direct his expert witnesses to generate written reports for the benefit of the prosecution. We agree.
Before trial, the State submitted a motion requesting the names and addresses of all potential expert witnesses upon whom Appellant intended to rely to establish a mental defense or “any other mental deficiency.” The State also requested Appellant “disclose the conclusions and reports of any and all potential expert witnesses reduced to writing and accompanied by any and all written materials and all other materials upon which such an opinion is based.” The motion failed to cite any South Carolina rule governing pretrial discovery. The trial judge ordered Appellant to comply with the State‘s request,
If the defendant requests disclosure under subdivision (a)(1)(C) or (D) of this rule, upon compliance with such request by the prosecution, the defendant, on request of the prosecution, shall permit the prosecution to inspect and copy any results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the particular case, or copies thereof, within the possession or control of the defendant, which the defendant intends to introduce as evidence in chief at the trial or which were prepared by a witness whom the defendant intends to call at trial when the results or reports relate to his testimony.
The rule requires the production of reports “within the possession” of the defense. However, it does not authorize the trial judge to require parties to generate written reports solely for the benefit of the opponent. Therefore, the trial judge erred in requiring Appellant to direct his expert witnesses to prepare written reports for the prosecution.
Determining the trial judge committed error is the first step of our analysis. Next we must determine whether the error was harmless. Franklin v. Catoe, 346 S.C. 563, 572, 552 S.E.2d 718, 723 (2001) (“the harmless error rule and a prejudice analysis are no strangers to cases involving the death penalty“).
Whether an error is harmless depends on the circumstances of the particular case. No definite rule of law governs this finding; rather, the materiality and prejudicial character of the error must be determined from its relationship to the entire case. Error is harmless when it “could not reasonably have affected the result of the trial.” State v. Mitchell, 286 S.C. 572, 573, 336 S.E.2d 150, 151 (1985) (citing State v. Key, 256 S.C. 90, 180 S.E.2d 888 (1971)).
Appellant argues the State was unfairly benefited by the reports and was able to prosecute and cross-examine more vigorously because of the reports. The State contends, and we agree, the written reports generated by Appellant‘s ex-
Appellant also argues the erroneous extension of
Although Dr. Gunter‘s entire testimony was critical in establishing mitigating evidence for Appellant, there was no prejudice to Appellant. Dr. Gunter was able to convey the crux of her testimony by stating she was hampered in her evaluation of Appellant in 1995 by a lack of DSS records showing the abuse Appellant had endured at the hand of his father. Dr. Gunter expressed concerns at the time of the evaluation that Appellant might have Post-Traumatic Stress Disorder or some type of dissociative disorder. She further stated her 1995 diagnosis was not reliable or credible duе to the lack of DSS records made available to her. Because the erroneous extension of
III. Evidence of the Baby‘s Prior Injury
Appellant argues the trial judge erroneously admitted evidence the baby suffered a broken leg at age ten-weeks when Appellant removed her from a swing-seat. We agree.
During the sentencing phase of Appellant‘s trial, the State introduced evidence that in October, 2000, nearly two months prior to the baby‘s death, Appellant accidentally injured her while removing her from a swing-seat. The baby was diag-
The admission of evidence is left to the sound discretion of the trial judge whose decision will not be reversed on appeal absent an abuse of discretion. State v. McDonald, 343 S.C. 319, 540 S.E.2d 464 (2000). The trial judge abused his discretion in admitting evidence of the prior injury because it unfairly prejudiced Appellant. Not only is such evidence arguably irrelevant, it is highly prejudicial and should have been excluded pursuant to
IV. Letter from Ms. Northcutt
Appellant argues the trial judge erred by admitting a letter from Ms. Northcutt to a defense social worker in which
On cross-examination, Dr. Arlene Andrews, a defense social worker, testified she tried to talk with Ms. Northcutt about the parental care of the baby; however, Ms. Northcutt declined to be interviewed. In an effort to impeach the witness, the solicitor read a letter written to Dr. Andrews by Ms. Northcutt in which Ms. Northcutt stated: “I have no sympathy for him and his actions, nor do I have any recollections or thought (sic) that would be sympathetic to him in any way.” The trial judge overruled Appellant‘s objection and allowed the letter into evidence.
Appellant argues the State improperly introduced evidence of the victim‘s family member‘s opinion in violation of Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), overruled on other grounds by Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991) (“admission of a victim‘s family members’ characterizations and opinions about the crime, the defendant, and the appropriate sentence violates the Eighth Amendment“). Expressing a lack of sympathy, however, does not offend the Booth proscription. Rather than expressing her opinion of Appellant, Ms. Northcutt was responding to Dr. Andrew‘s inquiry.
The trial judge did not err in admitting the letter from Ms. Northcutt to Dr. Andrews. Even if the admission of the letter were error, the error was harmless. In light of Ms. Northcutt‘s testimony and the record before us, the admission of the letter did not prejudice Appellant nor did it affect the result of the trial.
V. Letter from Appellant
Appellant argues he should have been permitted to introduce a letter he wrote to his wife expressing remorse for the death of their child in response to Ms. Northcutt‘s testimony that his post-arrest phone calls to her showed a lack of remorse and concern. We agree.
Ms. Northcutt testified of a series of phone calls she received from Appellant while he was in pre-trial confinement. Ms. Northcutt‘s testimony implied Appellant never expressed
The trial judge erroneously excluded the evidence. The prosecution had opened the door for Appellant to present evidence of his remorse. Appellant is entitled to rebut the State‘s argument and correct the false impression the State conveyed to the jury. The portion of the letter directly addressing Appellant‘s remorse was admissible. The State cannot preclude the jury from considering “any relevant mitigating evidence” the defendant proffers in support of sentence less than death. Payne, 501 U.S. at 822, 111 S.Ct. at 2606, 115 L.Ed.2d at 721 (citing Eddings v. Oklahoma, 455 U.S. 104, 114, 102 S.Ct. 869, 877, 71 L.Ed.2d 1, 1 (1982)). The letter, as a whole, however, is subject to redaction because portions are inadmissible hearsay.5 A portion of the letter is admissible for the limited purpose of rebutting the State‘s argument Appellant had no remorse.
Although it was error for the trial judge to exclude the letter written from Appellant to Ms. Northcutt expressing remorse, the error was harmless. The record contains evidenсe of Appellant‘s remorse. Appellant was not prejudiced, nor was the outcome of the trial affected.
VI. Closing Argument
Appellant argues the solicitor‘s sentencing-phase closing argument so infected the jury‘s sentencing determination with passion and prejudice that it requires reversal of Appellant‘s death sentence. We agree.
While the solicitor should prosecute vigorously, his duty is not to convict a defendant but to see justice done. The solicitor‘s closing argument must, of course, be based upon this principle. The argument therefore must be carefully tailored so as not to appeal to the personal bias of the juror nor be calculated to arouse his passion or prejudice.
We evaluate the closing argument in light of
Appellant argues the solicitor violated this well-established rule by (1) crying numerous times throughout the argument; (2) telling the jury “we will kick the baby some more” if they returned a life sentence; (3) dehumanizing Appellant (“I don‘t even call him a person“); (4) threatening the jury (“it will be on your heads if he kills someone else [during his life sentence in prison]“); (5) declaring an “open season on babies;” (6) telling the jury he “expects” the death penalty; and (7) enacting a funeral procession complete with a black shroud covering the baby‘s crib.
Three of the solicitor‘s arguments require reversal of the sentence.6 First, the solicitor suggested declaring an “open season on babies in Lexington County” if the death
Any one of these three miscues requires reversal of Appellant‘s sentence. The State admits the solicitor‘s comments constituted error, but contends the brutality of the crime and the fact Appellant himself asked fоr the death penalty require this Court uphold the sentence.8 While it is difficult to determine the impact of the evidence on the jury and the Appellant‘s own request for a death sentence, it is clear the solicitor was overly zealous in his argument. State v. White, 246 S.C. 502, 507, 144 S.E.2d 481, 483 (1965) (“In view of the absolute discretion of the jury with regard to the issue of mercy, it is impossible to determine whether the argument actually had a prejudicial effect upon the verdict.“). We conclude the solicitor‘s closing argument requires reversal of Appellant‘s death sentence because the sentence was imposed under the influence of passion and prejudice in violation of
CONCLUSION
Because of the solicitor‘s prejudiсial closing argument and the inclusion of evidence of the child‘s prior leg injury, we
REVERSED AND REMANDED.
MOORE and WALLER, JJ., concur.
TOAL, C.J., dissenting in a separate opinion.
PLEICONES, J., concurring in a separate opinion.
Chief Justice TOAL, dissenting:
I respectfully dissent. In my view, the trial court did not err in admitting evidence regarding the victim‘s prior leg injury. Furthermore, I disagree with the majority‘s conclusion that the solicitor‘s conduct during his closing argument rose to the level of a constitutional violation or otherwise requires reversal.
The relevant jurisprudence instructs that “the Constitution requires the jury to make an individualized determination as to whether the defendant should be executed based on the ‘character of the individual and the circumstances of the crime.‘” Payne v. Tennessee, 501 U.S. 808, 818, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991) (quoting Booth v. Maryland, 482 U.S. 496, 502, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), and Zant v. Stephens, 462 U.S. 862, 879, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983)). Accоrdingly, it is well established that evidence which is probative of the defendant‘s character is admissible in a capital sentencing proceeding. See State v. Gaskins, 284 S.C. 105, 124, 326 S.E.2d 132, 143 (1985)9 (quoting Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), and citing Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). In my view, this practice derives from the command that the decision to impose the death penalty be based on who the defendant is and what he has done. In my opinion, the majority incorrectly posits that the evidence regarding the victim‘s prior leg injury was irrelevant and mistakenly concludes that this evidence, if admitted improperly, prejudiced Appellant.
Furthermore, assuming, as the majority seems to, that
The majority‘s finding of prejudice in this case is all the more remarkable given the brutal events which were the subject of this sentencing proceeding.11 The solicitor referred to the victim‘s prior injury only once in his closing argument, remarking that it demonstrated that Appellant was not handling the victim “carefully” and “lovingly” two months prior to the victim‘s death. As a notable jurist once stated, “[s]urely
The majority also concludes that three aspects of the solicitor‘s closing argument require reversal in this case “because the [death] sentence was imposed under the influence of passion and prejudice in violation of
As a primary matter, Appellant did not contemporaneously object to the solicitor‘s use of the black cloth and crib during closing argument. Thus, Appellant did not preserve any argument for our review as it relates to this conduct. See Varnadore v. Nationwide Mut. Ins. Co., 289 S.C. 155, 159, 345 S.E.2d 711, 714 (1986) (stating that “the proper course to be pursued when counsel makes an improper argument is for opposing counsel to immediately object....“).
As I explained in my dissenting opinion in State v. Burkhart, 371 S.C. 482, 640 S.E.2d 450 (2007), I believe this Court‘s jurisprudence which suggests that
The Eighth Amendment is violated when the decision to impose the death penalty is made in an arbitrary manner, or
When viewed in the context of the entire record, I do not believe that the solicitor‘s comments so infected Appellant‘s sentencing proceeding with unfairness as to result in a denial of due process. Regardless of whether the majority is correct in its assertion that the sole purpose of the solicitor‘s “open season” comment was to inflame the jury, the relevant inquiry is whether the argument, taken as a whole, resulted in a violation of the Fourteenth Amendment.
Likewise, I disagree with thе assertion that the solicitor‘s remark in which he expressed that he expected the death penalty requires reversal. The solicitor‘s closing argument fills thirty-five pages of the record. I seriously doubt that either of these two comments, each filling only one line on separate pages of the record, permeated the sentencing proceeding with any degree of unfairness.
The majority cites two cases as examples of jurisprudence from this Court “rebuk[ing]” such an imposition of the solicitor‘s personal belief into a capital sentencing proceeding. As I stated in my Burkhart dissent, these cases are but examples of a line of this Court‘s precedent which is based upon what I believe is a skewed reading of
Affirming a conviction which follows an argument containing improper components is an unpleasant task. Appellant‘s sentencing proceeding was not perfect, but few are. On the record presented for our review, however, I cannot conclude that Appellant‘s sentencing proceeding was fundamentally unfair. Our jurisprudence unwaveringly provides that we are to presume that juries follow their instructions and that proper instruction of the jury by the court cures most errors. See State v. Ard, 332 S.C. 370, 386, 505 S.E.2d 328, 336 (1998) (citing State v. Pierce, 289 S.C. 430, 346 S.E.2d 707 (1986)).12 Instead of fоllowing this jurisprudence in the capital arena, I believe we have ignored it. We ought to be more dutiful and genuine in our analysis. The jury was instructed that it was the sole finder of facts in the proceeding; that it was to give Appellant every benefit of every reasonable doubt; that the burden of proof rested entirely upon the State; and that the jury was to make its decision dutifully, fairly, impartially, without passion, without prejudice, and without excessive emotion. I would presume that the jury followed these instructions, and I would find that the jury‘s verdict calling for the death penalty was not imposed in violation of the Eighth Amendment. For the foregoing reasons, I would hold that even if the trial court erred in admitting evidence relating to the victim‘s prior injury, Appellant has not shown prejudice to warrant reversal of his sentence. Also, I would hold that the solicitor‘s closing argument was not so improper as to violate the Eighth or Fourteenth Amendments to the Constitution.
I concur in the majority‘s decision to reverse appellant‘s capital sentence but write separately because I would decide certain issues differently.
Specifically, I view the admission of Ms. Northcutt‘s letter to Dr. Andrews as error, and would find the solicitor‘s closing argument improper in at least one aspect deemed acceptable by the majority. As to the letter, I find Ms. Northcutt‘s reason for declining to speak with Dr. Andrews simply irrelevant. Sеe e.g., State v. Burkhart, 371 S.C. 482, 640 S.E.2d 450 (2007), (evidence in the sentencing phase must be relevant to the defendant‘s character or the circumstances of the crime). As to the solicitor‘s closing argument, in my view it was improper for him to argue the jury would be responsible for any future criminal acts of appellant if a life sentence were returned. This argument, which projects personal responsibility upon jurors and plays to their fear, “injects an arbitrary factor” into the sentencing decision. State v. Shuler, 353 S.C. 176, 577 S.E.2d 438 (2003). I cannot agree with the majority that it was a “permissible argument ... based on the record and reasonable inferences from it.” Technically, perhaps, the crying, the “kick the baby some more,” and the dehumanizing of appellant arguments are within allowable parameters, but it is beyond dispute that the closing argument here repeatedly transgressed firmly established boundaries and precedents. It does not serve justice for a prosecutor to engage in such histrionic gamesmanship, especially where a jury is being asked to make a life or death decision.
With these qualifications, I concur in the majority‘s decision to reverse appellant‘s capital sentence and remand the matter for a new proceeding.
Notes
Appellant fails to cite any exception to the hearsay rule which would allow the introduction of the entire letter. Appellant‘s reliance on
Also, Appellant‘s reliance on State v. Cabrera-Pena, 361 S.C. 372, 605 S.E.2d 522 (2004), is misplaced. In Cabrera-Pena, the Court applied the “rule of completeness” to allow the defendant to develop the full substance of a conversation when the prosecution witness testified to only portions of the conversation. The instant case lacks the contemporaneous quality оf the conversation in Cabrera-Pena.