S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent
V.
David Clayton Hill, Appellant.
Appeal From Georgetown County
Ralph King Anderson, Jr., Judge
Opinion No. 24803
Heard February 2, 1998 - Filed June 8, 1998
AFFIRMED
Assistant Appellate Defender Robert M. Dudek, of
S.C. Office of Appellate Defense, of Columbia, for
appellant.
Attorney General Charles Molony Condon, Deputy
Attorney General John W. McIntosh, Assistant
Deputy Attorney General Donald J. Zelenka, and
Assistant Attorneys General Christie Newman
Barrett and Robert F. Daley, Jr., all of Columbia;
and Solicitor Ralph J. Wilson, of Conway, for
respondent.
MOORE, A.J.: Appellant was convicted of murdering a police
officer and sentenced to death. We affirm.
FACTS
p.60
STATE v. HILL
On March 7, 1994, Officer Spencer Guerry of the Georgetown
Police Department stopped appellant in the parking lot of a car wash.
Appellant was driving a silver/gray Honda Prelude with expired Colorado
plates. He did not have a valid driver's license and he, had marijuana in
the car. Officer Guerry took appellant's Colorado identification card and
car registration and called the information in to the dispatcher. As he
was walking back to appellant's car, he was shot once through the cheek.
After the shooting, appellant drove to his house, picked up his
girlfriend, Wendy, and some of his belongings, and then drove to his
mother's mobile home. He told his mother he was in trouble and asked if
Wendy could borrow her car. His mother refused but offered to drive. His
mother and Wendy followed appellant down a dirt road where appellant
drove his car into a ditch. They then returned to his mother's mobile
home and appellant asked Wendy to report his car stolen. Wendy refused.
Appellant left the mobile home for a while. During his absence, the police
arrived searching for appellant. Later, appellant returned to his mother's
mobile home. He took a shower, washed his clothes, and poured Clorox on
his hands. He then called the police and was arrested. Appellant's
defense at trial was that someone had been hiding in his backseat and
shot Officer Guerry. At trial, several witnesses testified appellant was the
only person in the Honda.
DISCUSSION
Excited Utterance
Appellant contends the trial judge erred in refusing to allow a
witness to testify about hearsay evidence under the excited utterance or
res gestae exception. We disagree.
Kenneth Grant was a block away from the car wash when the
shooting occurred. Fifteen minutes after the shooting, Grant went to the
car wash. He testified in camera that after being at the car wash for
another 15 or 20 minutes, he heard an unidentifiable person in the crowd
state there were two suspects. The trial judge ruled this hearsay
testimony inadmissible.
Ru-le 803 (2), SCRE, states: "The following are not excluded by
the hearsay rule, even though the declarant is available as a witness: ...
(2) Excited utterance. A statement relating to a startling event or
condition made while the declarant was under the stress of excitement
p.61
STATE v. HILL
caused by the event or condition."
The rationale behind the excited utterance exception is that
the startling event suspends the declarant's process of reflective thought,
thus reducing the likelihood of fabrication. See State v. Harrison, 298 S.C.
333, 380 S.E.2d 818 (1989)(decided prior to the adoption of the Rules of
Evidence but discussed the "excited utterance" exception in relation to res
estae . In determining whether a statement falls within the excited
utterance exception, the totality of the circumstances is viewed. Id.
"Statements which are not based on firsthand information, as
where the declarant was not an actual witness to the event, are not
admissible under the excited utterance or spontaneous declaration
exception to the hearsay rule." 23 C.J.S. Crim. Law § 876 (1989). The
hearsay statement of an unknown bystander is admissible under the
excited utterance exception only when the circumstances which surround it
would affect the declarant in a way that assures its spontaneity and,
therefore, its reliability for trustworthiness. People v. Mares, 705 P.2d
1013, 1016 (Colo. 1985). See also People v. Fields,, 71 III.App.3d 888, 390
N.E.2d 369 (1979)(if nature of event or circumstances indicate bystander
did not observe the act, declaration should be excluded); State v. Kent
157 Mich.App. 780, 404 N.W.2d 668 (1987)(declarant must have had.
opportunity to personally observe the matter of which he speaks);
Commonwealth v. Stetler, 494 Pa. 551, 431 A.2d 992 (1981)(declarant
must have perceived the happening); Underwood v. State, 604 S.W.2d 875
(Tenn. Crim. App. 1979)(excited utterance of bystanders admissible when
declarant observed the act and the declaration arose from personal
observation). Cf Crawford v. Charleston-Isle of Palms Traction Co., 126
S.C. 447, 120 S.E. 381 (1923)(under res gestae exception, declarant must
have had opportunity to personally observe the matter of which he
speaks).
There is no evidence the unidentified declarant witnessed the
shooting. Further, it is unknown whether the declarant was under the
stress of excitement caused by the event. Therefore, the trial judge did
not err in ruling this statement inadmissible.
Presence of Uniformed Officers
Appellant contends the trial judge erred in refusing to clear
the courtroom and the hallways of uniformed officers. Appellant also
moved for the trial judge to order officers who were witnesses to dress in
p.62
STATE v. HILL
civilian clothing.1 Appellant contends this was a show of force which
denied him a fair trial. We disagree.
To prevail on such a claim, appellant must,show that the
measures taken in the courtroom created either an actual or inherent
prejudicial effect on the jury. Inherent prejudice occurs when "an
unacceptable risk is presented of impermissible factors coming into play."
Holbrook v. Flynn, 475 U.S. 560, 572, 106 S.Ct. 1340, 1346-47, 89 L.Ed.2d
525, 535 (1986). State v. Tucker, _ S.C. _, 478 S.E.2d 260.9 271
(1996)(citing Holbrook. In Holbrook, the United States Supreme Court
held the presence of four uniformed officers seated directly behind the
defendant was not so inherently prejudicial that respondent was thereby
denied his constitutional right to a fair trial.
Here, appellant conceded that of the six people he counted,
some were bailiffs and personnel of the solicitor's office. We cannot tell
from the record how many uniformed officers were present. We also
cannot tell if these officers were witnesses waiting to testify. There were
at least 17 police officers (not counting SLED agents) who testified.
In this case, the number of officers is unknown and the role of
the majority of the officers was not to provide additional security, but
rather testify as witnesses. Any actual prejudice in this case is wholly
1 The State argues appellant's argument is procedurally barred
because he made this motion in limine and failed to renew the objection at
trial and obtain a final ruling citing State v. Schumpert, 435 S.E.2d 859,
312 S.C. 502 (1993). The State also argues this same procedural bar for
appellant's issue regarding television cameras. We disagree. Appellant
made these motions during voir dire. Generally, a motion in limine seeks
a pretrial evidentiary ruling to prevent the disclosure of potentially
prejudicial matter to the jury. See State v. Floyd, 295 S.C. 518, 369 S.E.2d
842 (1988). A pre-trial ruling on the admissibility of evidence is
preliminary, and is subject to change based on developments at trial. Id.
Here, the issues appellant raised were not motions in limine. See
Hernandez v. State, 767 S.W.2d 902 (Tex. Ct. App. 1989)(appellant's
motion made during voir dire was not a true motion in limine). The
uniformed officers and television cameras were, according to appellant,
already affecting the jurors. These were not motions in limine about the
admissibility of evidence which would not effect the trial until actually
offered.
p.63
STATE v. HILL
speculative. Appellant simply has presented no evidence to show the
presence of the officers had any effect on the jury. Further, without
anything more than the mere assertion that six officers were present in
the courtroom, we cannot find appellant has shown any inherent prejudice.
Accordingly, we find no actual or inherent prejudice.2
Moreover, at the sentencing phase, appellant renewed his
objection and the trial judge went over specifically the number of officers
in the courtroom. The trial judge again denied the motion and appellant
is not appealing this ruling. Appellant stated there were four bailiffs, one
uniformed officer near him, two uniformed officers near the door and two
uniformed officers on the back row. The appellant then stated if that was
all of the officers in the courtroom, he was satisfied. He was concerned
the courtroom might fill up with officers at a later time. There were
fewer officers present during the guilt phase which is the basis for this
issue on appeal.
As to requiring the officers who were witnesses to dress in
civilian clothing, we find this issue has no merit. The trial court did not
abuse its discretion in allowing the officers to testify while in uniform
since the officers were acting in their official capacity and not as civilians.
People v. Beil, 76 III.App.3d 924, 395 N.E.2d 400 (1979). See also Brown v.
Indiana, 256 Ind. 444, 446, 269 N.E.2d 377, 378 (1971)("It would be
nothing short of ludicrous for this Court to hold these officers would be
required to change into civilian clothes before entering the court room to
testify.").
Television cameras
Appellant contends the trial judge erred in refusing to order
the television cameras to discontinue filming during jury selection.
Appellant argues the television cameras were intimidating the jurors. We
disagree.
On appeal, appellant points to two jurors. One juror originally
2 The appellant states the presence of the uniformed officers resulted
in a "carnival-like atmosphere." However, he does not point to any
evidence or show how the officers' presence might have disrupted the trial
or influenced the jury.
p.64
STATE v. HILL
had not given correct information about his mental status. The juror sent
the trial judge a note stating he did not give correct information and he
wanted to inform the court he was on medication for depression. The trial
judge cleared the courtroom and inquired as to the jurqr's mental status
and his medication. This juror stated, "[T]here were people in the room
that I did not want to have this information . . . " The juror never stated
he was troubled by only the media or, in particular, the cameras. The
other juror stated he thought the voir dire process was going to be more
private and he did not realize the media and others would be present.
Appellant's argument addresses only the presence of television
cameras in the courtroom, while these jurors' concerns were about privacy
in general. Further, we note both of these jurors were found unqualified
by the trial judge.
Lastly, appellant contends camera crews from three television
stations were present at trial and created a disruptive atmosphere. This
information is not in the record. In fact, when appellant made this
motion, the court noted there was only one television crew present. The
trial judge did not abuse his discretion in refusing to remove the cameras
from the courtroom. Accordingly, this issue has no merit.
Voir Dire Regarding Specific Mitigating Circumstance
Appellant wanted to ask jurors whether they would consider
that appellant did not have a significant prior criminal history of violence.
Appellant contends the trial judge erred in not allowing him to ask this
question on voir dire.3 We disagree.
The authority and responsibility of the trial court is to focus
the scope of the voir dire examination as set forth in S.C. Code Ann.
§14-7-1020 (Supp. 1995). State v. Plath, 281 S.C. 1, 313 S.E.2d 619
(1984). S.C. Code Ann. § 16-3-20(D) (Supp. 1995) grants a capital
defendant the right to examine jurors through counsel but does not
enlarge the scope of voir dire permitted under § 14-7-1020. State v.
Owens, 293 S.C. 161, 359 S.E.2d 275 (1987). The manner in which these
questions are pursued and the scope of any additional voir dire are
matters of trial court discretion. State v. Smart, 278 S.C. 515, 299 S.E.2d
3 We note the trial judge also ruled that he would not let the State
identify any specific aggravating circumstance during voir dire.
p.65
STATE v. HILL
686 (1982).
Appellant cites Morgan v. Illinois, 504 U.S. 719, 119 L.Ed.2d
492, 112 S.Ct. 2222 (1992), for the proposition that general questions
about whether a juror would follow the law are not adequate in voir dire.
In Morgan, the United States Supreme Court held the defendant was
entitled to know if jurors would consider general mitigating evidence. The
Court did not hold that the defendant was entitled to know if a juror
would consider specific mitigating evidence.
In United States v. Tipton, 90 F.3d 861 (4th Cir. 1996), the
court held the trial court's refusal to allow questioning of jurors about
specific mitigating factors did not constitute an abuse of discretion.
Appellant had wanted to ask jurors whether they would be willing to
consider mitigating factors such as appellant's "deprived poor background,"
66 emotional," "physical abuse," "young age," "limited intelligence," and "brain
dysfunction." The court stated that "[t]he undoubted fact that such
detailed questioning might have been somehow helpful to appellant in
exercising peremptory challenges does not suffice to show an abuse of
discretion." Id. at 880. The court reasoned that the trial judge had
sufficiently voir dired the jurors to cull out any prospective juror who
would always vote for the death penalty whatever the circumstances.
In Mu'Min v. Virginia, 500 U.S. 415, 11 S.Ct. 1899, 1905, 114
L.Ed.2d 493 (1991), the United States Supreme Court held a defendant is
entitled to specific questions only if the failure to ask them would render
his trial "fundamentally unfair." Here, the trial judge stated he would
allow appellant to ask whether a juror would consider mitigating
circumstances as presented by the defense and as instructed by the court.
This general question covers whether a juror would refuse to consider
mitigating circumstances and does not render appellant's trial unfair.
Accordingly, this issue has no merit.
Victim Impact Evidence
Appellant contends the trial court erred in allowing the
admission of victim impact evidence. We disagree.
At the time of appellant's trial, S.C. Code Ann. § 16-3-1550
(1985) provided that a victim may submit to the court at the time of
sentencing a victim impact statement to be considered by the judge.
Subsection (A) provided: "The provisions of this section govern the
p.66
STATE v. HILL
disposition of any offense within the jurisdiction of the General Sessions
Court, excluding any crime for which a sentence of death is sought, in any
case which involves an identified victim whose whereabouts are known."
(emphasis added).4 Appellant contends this language prohibited victim
impact evidence from being admitted at his trial. We disagree.
This section merely limits the victim impact evidence in non-
capital cases. It does not address the admission of victim impact evidence
in capital proceedings. By merely excluding capital proceedings, this
section does not prohibit any victim impact evidence from being admitted
in capital sentencing proceedings.5 Section 16-3-1550 merely sets forth the
procedure for victim impact statements for other crimes. There is no
statutory section which provides for the introduction of victim impact
evidence in a death penalty case. However, our case law clearly allows for
its introduction.
In Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115
L.Ed.2d 720 (1991), the United States Supreme Court reversed its prior
precedent regarding the admission of evidence of a victim's personal
characteristics and the emotional impact of the murder on the victim's
family in a capital sentencing hearing. We adopted Payne in State v.
Johnson, 306 S.C. 119, 410 S.E.2d 547 (1991). Accordingly, this issue has
no merit.
Appellant's remaining arguments are affirmed pursuant to
Rule 220 (b)(1), SCACR, and the following authorities: Issue 1: State v.
Babb, 299 S.C. 451, 385 S.E.2d 827 (1989)(denial of motion for continuance
will not be disturbed absent clear abuse of discretion resulting in
prejudice); Issue 6: Washington v. Whitaker, _ S.C. 451 S.E.2d 894
(1994)(admission of evidence is within sound discretion of trial court and
its ruling will not be disturbed on appeal absent clear abuse of discretion);
Issue 8: State v. Simpson, __ S.C.__ , 479 S.E.2d 57 (1996)(Simmons V.
South Carolina, U.S. , 114 S.Ct. 2187, L.Ed.2d - (1994),
applies only when defendant is ineligible for parole and future
dangerousness is argued).
4 This section was re-written by 1997 Act No. 141, § 3, effective
October 1, 1997. This exclusionary language is not in the current statute.
5 We also note subsection (F) states: "No sentence may be invalidated
because of failure to comply with the provisions of this section."
p.67
STATE v. HILL
We have conducted the proportionality review pursuant to S.C.
Code Ann. § 16-3-25 (1985). The sentence was not the result of passion,
prejudice, or any other arbitrary factor; the evidence supports the finding
of the aggravating circumstance; and the sentence is not disproportionate
to that imposed in similar cases. State v. South, 285 S.C. 529, 331 S.E.2d
775, cert. denied, 474 U.S. 888, 106 S.Ct. 209, 88 L.Ed.2d 178 (1985).
AFFIRMED.
FINNEY, C.J., TOAL, WALLER and BURNETT, JJ., concur.
p.68