THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State, Respondent,

v.

James Michael

Charping, Appellant.

Appeal From Lexington County

Marc H. Westbrook, Circuit Court Judge

Opinion No. 24855

Heard September 24, 1998 - Filed November 23, 1998

AFFIRMED

Assistant Appellate Defender Robert M. Dudek, of

S.C. Office of Appellate Defense, of Columbia, for

appellant.

Attorney General Charles M. Condon, Chief Deputy

Attorney General John W. McIntosh, Assistant

Deputy Attorney General Donald J. Zelenka, Senior

Assistant Attorney General William E. Salter, III,

all of Columbia, and Solicitor Donald V. Myers, of

Lexington, for respondent.

WALLER., A.J.: Charping was convicted of murder, conspiracy,

kidnapping, and first-degreesexual conduct, and was sentenced to death.

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This Court reversed his murder conviction and remanded for a new trial.1

State v. Charping, 313 S.C. 147, 437 S.E.2d 88 (1993) (Charping I).

Charping was again convicted of murder and sentenced to death. We affirm.

FACTS

Charping, along with cohorts Jeffrey Whitlock, and John Thoman,

abducted Joann Pruitt, the victim in this case, and drove her to an isolated

area near a pond in Lexington County, where she was raped, tortured, and

drowned. The facts are set forth more fully in Issue 1.

Upon his retrial, Charping was again convicted of murder. The jury

found the aggravating circumstances of kidnapping and torture and

recommended a sentence of death.

ISSUES

1. Did the Court err in ruling Charping could not comment on

the State's failure to call Jeffrey Whitlock as a witness?

2. Did the Court err in refusing to permit Charping to introduce

evidence of Whitlock's convictions and life sentence?

3. Did the Court err in requiring Charping to decide, prior to the

solicitor's sentencing phase closing argument, whether he would

personally address the jury?

1. COMMENT ON FAILURE TO CALL WITNESS

Charping's cohort, Jeffrey Whitlock pled guilty to murder, kidnapping,

criminal sexual conduct, and criminal conspiracy for which he was sentenced

to life imprisonment, thirty years, and five years. Whitlock was not called

as a witness at trial either by the state or by Charping. Charping contends

the trial court abused its discretion in refusing to allow him, at sentencing,

to comment on the state's failure to call Whitlock as a witness. We disagree.

Under the circumstances of this case, we find no abuse of discretion in the

review for the failure to obtain an on-the-record waiver of his right to make

the final argument to the jury. His remaining convictions were not subject

to an in favorem review and were therefore unaffected by our reversal.

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trial court's ruling. State v. Patterson, 324 S.C. 5, 482 S.E.2d 760 (1997)

(trial judge vested with broad discretion in determining propriety of closing

argument; rulings on such matters will not be disturbed absent showing

improper closing deprived defendant a fair trial).

This Court has previously stated "it is always proper for an attorney

in argument to the jury to point out the failure of a party to call a witness."

State v. Hammond, 270 S.C. 347, 356, 242 S.E.2d 411, 415 (1978). See also

State v. Bamberg, 270 S.C. 77, 240 S.E.2d 639 (1977) (comment on failure to

produce witness permissible); State v. Cook, 283 S.C. 594, 325 S.E.2d 323

(1985) (no error in allowing solicitor to comment on defendant's failure to

produce his wife); State v. Shackleford, 228 S.C. 9, 88 S.E.2d 778 (1955) (not

improper for prosecutor to comment upon defendant's failure to produce

witnesses, accessible to the accused, or under his control, whose testimony

would substantiate his story).2

However, in Davis v. Sparks, 235 S.C. 326, 333, 111 S.E.2d 545, 549

(1959), we recognized the general rule that "a party is not to be prejudiced

by his failure to call a witness who is equally available to the other party."

Citing 20 Am.Jur. 193 Evidence, § 189. See also Baker v. Port City Steel

Erectors, 261 S.C. 469, 200 S.E.2d 681 (1973)(unfavorable inference arising

from failure of a party to call an available material witness may be drawn

only where under all circumstances of case the failure to produce such

witness creates suspicion of a wilful attempt to withhold competent evidence).

Here, Whitlock was clearly accessible to both the state and the defense, and

there is no reason Charping could not have called him as a witness.3

an alibi or insanity defense, then fails to call a witness who would either

have provided the alibi, State v. Bamberg, supra, or who had knowledge of

his mental condition. State v. Cook, supra. A similar result has occurred

when police fail to call an arresting officer. State v. Peden 157 S.C. 459, 154

S.E. 658 (1930). See also Canady v. Martschink Beer Distributors, 255 S.C.

119, 177 S.E.2d 475 (1970) (generally, the rule is applied when the uncalled

witness is a relative of the party failing to call such witness, or within some

degree of control of said party).

3 In fact, when the solicitor objected to Charping commenting on the

state's failure to call Whitlock as a witness, claiming Whitlock was "just as

available to them as he is to us," defense counsel replied, "Mr. Myers can

comment on my failure to call him. That's exactly right." There was no

suggestion at trial that Whitlock was unavailable to the defense.

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Accordingly, under these circumstances, we find the trial court acted within

its discretion in limiting Charping's comment.

Moreover, an adverse inference from the unexplained failure of a party

to call an available witness is generally held not warranted where the

material facts assumed to be within the knowledge of the absent witness

have been testified to by other qualified witnesses. State v. Watts, 249 S.C.

80, 152 S.E.2d 684 (1967). Here, the material facts were testified to by John

and Vanessa Thoman.

John Thoman, who was with Charping and Whitlock the night of the

murder, gave detail, as follows. He testified that the victim, Joann Pruitt,

had gone with them to help them purchase a small quantity of marijuana.

After purchasing the marijuana, they stopped at a convenience store to

purchase cigarette rolling papers. While at the store, Charping told him he

had decided to kill the victim. Thoman testified Charping pulled the victim

from the car and started beating her "upside the head" two or three times

until she fell to the ground. Charping then told him and Whitlock

he intended to rape the victim and brought her into the woods.4 Charping

brought the victim out of the woods 15-20 minutes later and told her she was

going to have sex with all three men. Charping then brought her back into

the woods and called for Whitlock and Thoman approximately 10 minutes

later, at which time Whitlock went into the woods while he, Thoman, stayed

at the car. Thoman went into the woods approximately 30 minutes later

where he saw the victim on her hands and knees naked, with Charping

standing above her punching her in the head, upper body and back, while

Whitlock claimed he was going to have anal sex with her.

Thoman returned to the car briefly then went back to the woods a few

minutes later at which point Charping had a stick, similar to a log, 3-4 feet

long and 4-5 inches in diameter which he was holding like a baseball bat and

hitting the victim "everywhere he could." Whitlock then picked up a stick

and joined in on the beating for 4 or 5 minutes. Charping ordered the victim

to stand up and started pushing her in her back with his stick towards the

pond. Near the pond, Charping told her to stop and bent over and cleared

an area in the pine straw. Charping made the victim get down into the

cleared area and began hitting and kicking her again, using all his strength,

taking 2-3 steps back and coming up to kick her. Whitlock joined in and hit

her once or twice, and then took a stick and rammed it between the victim's

sentencing phase jury did not find the aggravating circumstance of CSC.

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legs. Finally, Charping and Whitlock ceased beating the victim when she

was curled up like a ball with her hands over her head. Charping forced her

onto her stomach and grabbed her around the neck with both hands and

tried to break her neck. Charping then asked her how she wanted to die and

how she liked being raped. He commented to Whitlock and Thoman that the

victim wouldn't die and asked them for a knife, which neither had. Charping

then straddled the victim and placed a log across her neck and started

forcing down on it with "all his might," attempting to strangle her. When

this didn't kill her, he forced her to her feet and walked her out into the

pond. He placed his leg over her back and forced her head under the water,

then let her up for a second or two. He then pushed her back under the

water for 3-4 minutes until she was dead. He dragged the victim's body back

to shore by the hair and covered her with pine straw. The three gathered

the victim's clothes and went to the car. Charping told Whitlock and

Thoman that if they told anyone about the murder, he'd kill them too.

Thoman's sister, Vanessa Thoman, who was Charping's girlfriend at the

time of the murder, also testified at trial. Although she did not witness the

murder, she testified she went back to the murder scene with Charping to

bury the body because she didn't believe him when he told her he'd killed

someone. When they got to the victim's body and Vanessa attempted CPR,

Charping told her "If you bring her back, I will kill her again," and that if

she, Vanessa, screamed, he would kill her too.

As summarized, it is clear the material facts were testified to by John

and Vanessa Thoman such that no adverse inference was warranted by the

state's failure to call Whitlock as a witness. State v. Watts, supra.

Accordingly, the court committed no error in disallowing the comment.

Finally, given the testimony of the Thomans, indicating the incredible

brutality and torture inflicted upon Joann Pruitt by Charping, we find his

inability to comment on the state's failure to call Whitlock could not have

affected the result. Accordingly, any conceivable error was harmless beyond

a reasonable doubt. Accord Arnold v. State, 309 S.C. 157, 420 S.E.2d 834

(1992)(error is harmless where, beyond a reasonable doubt, it did not

contribute to verdict obtained).

2. CO-DEFENDANT'S SENTENCE

Charping next asserts he should have been permitted to introduce

evidence Whitlock received a life sentence, contending it was relevant to the

circumstances of the crime, and the aggravating circumstance of criminal

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sexual conduct. We disagree.

The sentencing jury in a capital case may not be precluded from

considering as mitigating evidence any aspect of the defendant's character or

record and any circumstances of the crime that may serve as a basis for a

sentence less than death. State v. Bell, 305 S.C. 11, 406 S.E.2d 165 (1991),

cert. denied 502 U.S. 1038 (1992). A codefendant's "demeanor" does not fall

within this category of evidence. Id. We find evidence Whitlock was

sentenced to life is irrelevant to establish Charping's character, and does not

demonstrate the "circumstances of the crime."

Charping cites State v. Brewington, 267 S.C. 97, 103, 226 S.E.2d 249,

251 (1976) for the proposition that "the sentence imposed upon a codefendant

for the same offense and upon others for similar offenses are among a wide

variety of factors which may be properly considered in determining a proper

punishment." Brewington is inapposite. Brewington merely held the trial

court did not commit reversible error in considering, among other factors, the

sentence of an accomplice; Brewington does not stand for the proposition that

trial courts are required to consider the sentences of codefendants.

Further, Brewington is not a death penalty case. In South Carolina,

the function of conducting a proportionality review in death penalty cases is

for this Court. S.C. Code Ann.§ 16-3-25. Accordingly, it is not for the jury

in a capital case to weigh the sentence of similarly situated defendants.

Accord Brogdon v. Blackburn, 790 F.2d 1164 (5th Cir. 1986) (codefendant's

life sentence not relevant to defendant's character or offense; fact is relevant

only to the task of comparing the proportionality of Brogdon's sentence to the

sentences of others similarly situated, a function assigned by statute to State

Supreme Court).

Finally, a number of courts hold a co-defendant's acquittal or life

sentence is not a relevant mitigating circumstance. See e.g., State v. Bond,

478 S.E.2d 163 (N.C. 1996) (accomplices' punishment is not an aspect of the

defendant's character or record nor a mitigating circumstance of the

particular offense); Roche v. State, 596 N.E.2d 896 (Ind. 1992); State v. Berry,

650 N.E.2d 433 (Ohio 1995); People v. Carrera, 777 P.2d 121 (Cal. 1989);

Johnson v. State, 477 So. 2d 196 (Miss. 1985); Commonwealth v. Frey, 554

A.2d 27 (Pa. 1989)(codefendant's life sentence not a mitigating circumstance

as to defendant's role in crime). We agree with the reasoning of these courts.

The trial court properly excluded evidence of Whitlock's convictions and

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sentence.5

3. FINAL JURY ARGUMENT

Finally, Charping claims his waiver of the right to address the jury

was rendered involuntary by the trial court's requirement that he decide,

prior to the solicitor's closing argument, whether he wished to exercise the

right. We disagree.

S.C. Code Ann.§ 16-3-28 requires "in any criminal trial where the

maximum penalty is death or in a separate sentencing proceeding following

such trial, the defendant and his counsel shall have the right to make the

last argument." We have repeatedly held there must be a knowing and

voluntary waiver of the right to final argument on-the-record.6 See State v.

Orr, 304 S.C. 185, 403 S.E.2d 623 (1991); State v. Reed, 293 S.C. 515, 362

S.E.2d 13 (1987). However, we have never held, nor does the statute require,

the decision whether to personally address the jury must be made after the

solicitor's closing.7 We find it is within the trial court's discretion to require

a decision after the presentation of evidence, but prior to the state's closing

argument.

Moreover, the record is abundantly clear Charping was well aware of

not be mitigating. However, although a codefendant's participation might

be relevant to the circumstances of the offense and therefore mitigating, the

fact that codefendants received lesser sentences could no more be considered

mitigating than could the fact that a codefendant received the death penalty

be aggravating. Accord State v. Gerald, 549 A.2d 792 (N.J. 1988).

6 Charping's original murder conviction was reversed for this reason.

See Charping I.

7 The cases cited by Charping are inapplicable. He cites Brooks v.

Tennessee, 406 U.S. 605 (1972) and Ferguson v. Georgia, 365 U.S. 570 (1961),

both of which involved the decision on whether to exercise the right to

testify. In Brooks, the Court invalidated a Tennessee statute which required

the defendant, if he planned to, to testify prior to any other testimony for the

defense. The Court held this required a premature decision precluding an

informed tactical decision based on all the evidence offered at trial. A

solicitor's closing argument is not evidence. Sossebee v. Leeke 293 S.C. 531,

362 S.E.2d 322 (1987).

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his right to personally address the jury and that his waiver of that right was

knowing and voluntary. Although he would have preferred to make a

decision following closing arguments, there is absolutely no evidence he did

not understand his right, or that the decision was not knowing and

voluntary.

CONCLUSION

Charping's conviction for murder is affirmed.8 Pursuant to S.C. Code

Ann.§ 16-3-25(c)(1985), we find the death sentence in this case is

proportionate to that in similar cases and is neither excessive nor

disproportionate to the crime. State v. Conyers, _ S.C. _, 487 S.E.2d 181

(1997); State v. Byram, _ S.C. _, 485 S.E.2d 360 (1997); State v. Nance,

320 S.C. 501, 466 S.E.2d 340, cert. denied, 518 U.S. _, 116 S.Ct. 2566, 135

L.Ed.2d 1083 (1996).

AFFIRMED.

TOAL, A.C.J., BURNETT, A.J., and Acting Associate Justices

George T. Gregory, Jr. and L. Henry McKellar, concur.

SCACR and the following authorities: Issue 4- State v, Powers, 331 S.C. 37,

501 S.E.2d 116 (1998); State v. Hill, 331 S.C. 94, 501 S.E.2d 122

(1998)(defendant not entitled to open-ended inquiry regarding prospective

jurors' sentiments on each and every possible aggravating and mitigating

circumstance; general questions as to whether jurors would consider

mitigating circumstances were sufficient). Issue 5- State v. Kornahrens, 290

S.C. 281, 350 S.E.2d 180 (1986); State v. Nance, 320 S.C. 501, 466 S.E.2d

349, cert. denied, _ U.S. _, 116 S.Ct. 2566, 135 L.Ed.2d 1083

(1996)(relevance, materiality and admissibility of photographs are matters

within the sound discretion of the trial court.).

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