S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent
V.
Joseph Kelsey, Appellant.
Appeal From McCormick County
Marc H. Westbrook, Judge
Opinion No. 24801 ,
Heard February 4, 1998 - Filed June 8, 1998
AFFIRMED
Senior Assistant Appellate Defender Wanda H.
Haile, of South Carolina 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, Senior
Assistant Attorney General William Edgar Salter,
111, Assistant Attorney General Robert F. Daley,,
Jr., all of Columbia; and Solicitor Donald V. Myers,
of Lexington, for respondent.
TOAL, A.C.J.: This case involves the murder of fifteen-year-old
Melanie Richey. Joseph Kelsey and Geoffrey Payne were tried together and
convicted of Richey's murder. Kelsey appeals his conviction. We affirm.
p.30
STATE v. KELSEY
FACTUAL/PROCEDURAL BACKGROUND
In early July 1994, sixteen-year-old Kelsey was staying with his friend,
seventeen-year-old Mike Kirchner in Martinez, Georgia. At the time,
Kirchner's father was away from home on business. On Monday, July 11,
1994, Kirchner left to go to work, leaving Kelsey, seventeen-year-old Geoffrey
Payne, and seventeen-year-old Jamie Lynn Lee ("Defendants") alone in the
house. Defendants decided to manufacture homemade pipe bombs. They
initially constructed a bomb using copper tubing and g-un powder extracted
from firecrackers. They detonated the bomb near a tree in Kirchner's
backyard.
Defendants then decided to construct more sophisticated pipe bombs.
To accomplish this, they shoplifted pipe material and shotgun shells from a
nearby hardware store and Wal-Mart. Under the direction of Kelsey, they
built three galvanized steel pipe bombs, one of which they detonated in
Kirchner's backyard. The explosion produced a crater approximately four
inches deep and one foot wide. It left bomb fragments in the side of
Kirchner's house and in a nearby privacy fence. Kelsey placed the other two
unexploded bombs in his travel bag inside Kirchner's house.
Later that evening, Defendants gathered at Kirchner's house for a
party. In addition to Defendants, the following individuals showed up for the
party: Tom Wurtzinger, April Reese, Tommy Speigel, and Joey Ingram.
Everyone was drinking beer. At around midnight, Lee and Payne left the
party to go to a nearby Texaco station, a popular "hang-out" area among local
teens. When Lee and Payne arrived at the station, they spotted Melanie
Richey standing near a telephone booth. They noticed something was wrong
with her foot. In the process of sneaking out of her house to meet with a
friend, Richey had severely cut her foot. Lee and Payne offered to take
Richey to Kirchner's house in order to clean and bandage her injuries.
Richey accepted.
Lee, Payne, and Richey returned to Kirchner's house at around 1:30
a.m. Lee and Payne helped Richey bandage her foot and then all three re-
joined the party. Soon thereafter, Payne and Richey went outside on
Kirchner's back porch where Payne repeatedly tried to coax Richey into
having sexual intercourse with him. Richey refused Payne's advances. At
several points during the night, Payne expressed to Lee his frustration over
Richey's intransigence. Kelsey testified that at one point he overheard Payne
tell Lee that he was so mad he could kill Richey.
p.31
STATE v. KELSEY
Payne instructed Lee to crush up a tablet of "Ecstacy," a mild
hallucinogen. Payne poured the powder into a mixture of tea and water in
order to hide the taste of the drug. Payne gave the drink to Richey and told
her it would help calm a stomach-ache she had been complaining about
earlier in the evening. Payne did not tell her that the drink was laced with
Ecstacy. Kelsey testified that while this was going on, he was resting on the
floor by the stereo and occasionally changing the music selection.
At around 3:30 a.m., Defendants decided to take Richey home. While
Richey was waiting for Defendants outside of Kirchner's house, Payne asked
Lee to get something to knock Richey out with. Lee retrieved a wrench from
Kirchner's garage. Payne then suggested that Kelsey bring the unexploded
pipe bombs. Kelsey complied by retrieving the bombs from his travel bag.
Kelsey testified that he was unaware, at the time, of what Payne actually
intended to do with the wrench and bombs.1
Defendants and Richey then got into Lee's car, ostensibly to take
Richey home. Lee was driving, Kelsey was in the passenger seat, and Payne
and Richey were in the backseat. Although Richey had given them directions
to her house, Lee detoured in the opposite direction. Richey asked where
they were going; Payne replied that they were going to drive around for a
while. Lee eventually drove across the Georgia border and into South
Carolina. Lee testified that the music was "obscenely" loud in the car, and
he was going about 90 m.p.h.
Soon after entering South Carolina, Lee noticed his tachometer go from
4200 to 6000 r.p.m. Lee looked down at the gear shift and discovered
Richey's foot had knocked the gear into neutral. Lee turned around and saw
that Payne had Richey in a "strangle hold type position." Lee continued to
drive. A few minutes later, Lee "heard two quick, empty thud type sounds."
He again turned around and saw that Payne still had Richey in a strangle
hold. Lee further testified that Payne had the wrench in his hand. Kelsey
testified that he had also turned around and saw that Richey's body was
limp, her face was pale, and her lips were blue.
A few moments later, Payne leaned forward to tell Lee to turn the
music down. According to Lee's testimony, Payne stated, "I'm pretty sure
1Kelsey testified that he assumed Payne wanted to blow up mail boxes
with the pipe bombs. As for the wrench, he thought Payne wanted to steal
a car bumper to give to Kirchner's girlfriend because her bumper had been
damaged earlier in a wreck with Lee's car.
p.32
STATE v. KELSEY
she's knocked out, guys." Payne then instructed Lee to go to "Scary Bridge"
which crossed over Stevens Creek, the boundary line between Edgefield and
McCormick counties. Lee drove to the bridge where he parked the car.
Defendants got out of the car, leaving Richey in the backseat. Payne
informed Lee and Kelsey that he was going to have sex with Richey. Payne
took off his clothes and Richey's shorts. A few moments later, Lee warned
Payne that a car was corning. Defendants quickly got back into Lee's car and
began driving. After the approaching vehicle passed, Lee turned the car
around and went back to the bridge. Lee testified that Richey was
unconscious the entire time, and "she was definitely alive." Kelsey, on the
other hand, testified that he had checked Richey's pulse, and he believed she
was dead.
Lee once again drove away from the bridge. He got approximately 100
feet down the road when Payne told him to stop the car. Defendants pulled
Richey out of the car and carried her into the woods and up an embankment
where they placed her on the ground. Lee returned to the car. Payne and
Kelsey remained by Richey's body.
Kelsey testified that while he was standing over Richey's body, Payne
instructed him to place a pipe bomb into Richey's mouth. Kelsey complied.
Payne then lit the fuse, and the two ran. A few seconds later, the bomb
exploded. Defendants returned to Kirchner's house where they fell asleep.
Defendants were eventually arrested and charged with Richey's murder.
Kelsey was arrested in Maryland and brought back to South Carolina to
stand trial. Kelsey's case was transferred from family court to the Court of
General Sessions where Kelsey and Payne were tried together as adults.
Payne was found guilty of murder and criminal conspiracy. Kelsey was found
guilty of murder, possession of a pipe bomb, and criminal conspiracy. Kelsey
was sentenced to life imprisonment for murder and consecutive sentences of
five years for possession of a pipe bomb and criminal conspiracy.
Kelsey appeals his conviction, raising the following issues:
(1) Did the trial court err in denying Kelsey's directed verdict motions
because there was insufficient proof that Kelsey was guilty of murder
and criminal conspiracy?
(2) Did the family court err in transferring jurisdiction over Kelsey's
case to the Court of General Sessions?
p.33
STATE v. KELSEY
(3) Did the trial court err in denying Kelsey's motion for a change of
venue?
(4) Did the trial court err in failing to declare a mistrial when
Payne's attorney pitted Kelsey's testimony against a police officer's
testimony?
(5) Did the trial court err in not allowing testimony and introduction
of evidence to rebut the State's innuendos that Kelsey's statement was
not given in earnest?
(6) Did the trial court err in precluding Kelsey from introducing
Payne's statement into evidence?
(7) Did the trial court err in not allowing Kelsey to admit evidence
regarding codefendant Payne?
(8) Did the trial court err in denying Kelsey's motion for severance?
(9) Did the trial court err in denying Kelsey's motion for a mistrial
when Payne's attorney cross-examined Kelsey about prior bad acts
that allegedly occurred in Georgia?
(10) Did the trial court err in admitting a diagram and photographs of
the crime scene into evidence?
(11) Did the trial court err in failing to give proper conspiracy and mere
presence instructions?
(12) Did the trial court err in refusing to charge the jury on the law of
mistake of fact?
LAW/ANALYSIS
I. DIRECTED VERDICT MOTIONS
Kelsey argues that the trial court erred in denying his directed verdict
motions because there was insufficient proof that he was guilty of murder
and criminal conspiracy. We disagree.
At the close of the State's case in chief, the defense moved for directed
p.34
STATE v. KELSEY
verdicts on the murder and conspiracy charges, arguing the evidence was
insufficient to support these charges. The court denied the motions. The
defense again moved for directed verdicts on murder and conspiracy at the
end of its case. The court again denied the motions.
In reviewing the denial of a motion for a directed verdict, the evidence
must be viewed in the light most favorable to the State, and if there is any
direct evidence or any substantial circumstantial evidence reasonably tending
to prove the guilt of the accused, an appellate court must find that the case
was properly submitted to the jury. State v. Rowell, 326 S.C. 313, 487
S.E.2d 185 (1997); State v. Venters, 300 S.C. 260, 387 S.E.2d 270 (1990);
State v. Edwards, 298 S.C. 272, 379 S.E.2d 888 (1989). In ruling on a
motion for a directed verdict, the trial court is concerned with the existence
of evidence, not its weight. State v. Williams, 303 S.C. 274, 400 S.E.2d 131
(1991).
A . MURDER
Murder is "the killing of any person with malice aforethought, either
express or implied." S.C. Code Ann. § 16-3-10 (1985). "Malice" is the
wrongful intent to injure another and indicates a wicked or depraved spirit
intent on doing wrong. State v. Johnson, 291 S.C. 127, 352 S.E.2d 480
(1987). Malice may be implied from the defendant's use of a deadly weapon.
State v. Campbell, 287 S.C. 377, 339 S.E.2d 109 (1985).
In the instant case, we find there was sufficient evidence to submit the
murder charge to the jury. The following evidence supports our conclusion:
(1) Lee's testimony that Kelsey essentially masterminded the
construction of the pipe bombs at Kirchner's house on July 11; that Kelsey
and Payne were alone together in the woods with Richey's body; that Lee
believed Richey was definitely alive, but unconscious, while in the car; and
that Kelsey and Payne were running out of the woods away from Richey's
body when the pipe bomb exploded;
(2) SLED agent Joseph Powell's testimony that metal fragments found
at the crime scene matched fragments found at Kirchner's house;
(3) the forensic pathologist's testimony that the explosion was the more
probable cause of death;
(4) April Reese's and Tom Wurtzinger's testimony corroborating Lee's
p.35
STATE v. KELSEY
statements concerning the events that took place at Kirchner's house on July
11 & 12; and
(5) Kelsey's admission that he was the one who placed the pipe bomb
into Richey's mouth.
Therefore, when the evidence is viewed in the light most favorable to
the State, the trial court correctly denied Kelsey's motion for a directed
verdict on the murder charge.2
B . CONSPIRACY
Conspiracy is defined as the "combination between two or more persons
for the purpose of accomplishing a criminal or unlawful object or an object
neither criminal nor unlawful by criminal or unlawful means." S.C. Code
Ann. § 16-17-410 (1985). To establish the existence of a conspiracy, proof of
an express agreement is not necessary, and direct evidence is not essential,
but the conspiracy may be sufficiently shown by circumstantial evidence and
the conduct of the parties. State v. Fleming, 243 S.C. 265, 133 S.E.2d 800
(1963). In State v. Childs, 299 S.C. 471, 385 S.E.2d 839 (1989), the
defendant argued that the trial court erred in denying his motion for a
directed verdict on a conspiracy charge. We disagreed, finding that the
following facts tended to prove the defendant's guilt: evidence that defendant
knew codefendant; defendant was seen running from the area where the
victim's body was found; bloodhounds had tracked the victim's scent to the
codefendant's house; arid defendant had given a written statement stating
that he agreed to be a lookout for codefendant.
In this case, evidence indicated that Kelsey was instrumental in
constructing the pipe bombs at Kirchner's house; that Kelsey was with Lee
and Payne on the night of the murder; that Kelsey helped Payne carry
Richey into the woods; that Kelsey and Payne were alone together in the
woods with Richey's body; and that Kelsey placed the pipe bomb into Richey's
mouth. We therefore find the evidence was sufficient to subrnit the
conspiracy charge to the jury.
2Kelsey also argues that he should be exonerated because there was
evidence supporting the defense of duress. However, in South Carolina,
duress is not a defense to murder. State v. Rocheville, 310 S.C. 20, 425
S.E.2d 32 (1993).
p.36
STATE v. KELSEY
II. TRANSFER OF JURISDICTION
Kelsey argues that the family court erred in transferring jurisdiction
over his case to the Court of General Sessions. We disagree.
In making its motion to transfer jurisdiction, the State relied on S.C.
Code Ann. § 20-7-430(4) & (6) (1985). Section 20-7-430(4) provides that the
family court may transfer jurisdiction if that court finds "it contrary to the
best interest of such child or of the public to retain jurisdiction,3 After
conducting a hearing on the State's transfer motion, the family court ordered
jurisdiction over Kelsey's case be transferred to the Court of General
Sessions. The family court found it was in the best interest of Kelsey and
the community to have Kelsey tried as an adult. The family court's findings
were based primarily upon criteria established in the appendix to the United
States Supreme Court case of Kent v. United States, 383 U.S. 541, 86 S. Ct.
1045, 15 L. Ed. 2d 84 (1966).4
3Section 20-7-430(4) provides, in full:
If a child sixteen years of age or older is charged with an offense
which would be a misdemeanor or felony if committed by an
adult and if the court, after full investigation, deems it contrary
to the best interest of such child or of the public to retain
jurisdiction, the court may, in its discretion, acting as committing
magistrate, bind over such child for proper criminal proceedings
to any court which would have trial jurisdiction of such offense
if committed by an adult.
4In Kent, the Court established the following criteria for determining
whether jurisdiction should be waived under the District of Columbia
Juvenile Court Act:
(1) The seriousness of the alleged offense to the community and
whether the protection of the community requires waiver.
(2) Whether the alleged offense was committed in an aggressive,
violent, premeditated, or willful manner.
(3) Whether the alleged offense was against persons or against
property, greater weight being given to offenses against persons
especially if personal injury resulted.
(4) The prosecutive merit of the complaint, i.e., whether there is
evidence upon which a Grand Jury may be expected to return an
indictment (to be determined by consultation with the United
p.37
STATE v. KELSEY
It is the responsibility of the family court to include in its waiver of
jurisdiction order a sufficient statement of reasons for, and considerations
leading to, that decision. Conclusory statements, or a mere recitation of
statutory requirements, without further explanation will not suffice. In re
Sullivan, 274 S.C. 544, 265 S.E.2d 527 (1980). The serious nature of the
offense is a major factor in the transfer decision. See Sanders v. State, 281
S.C. 53, 314 S.E.2d 319 (1984)(transfer upheld where defendant was charged
with two counts of murder and two counts of assault and battery with intent
to kill); State v. Wright, 269 S.C. 414, 237 S.E.2d 764 (1977)(transfer upheld
where defendants were charged with armed robbery and assault and battery
with intent to kill).
In this case, the family court's transfer hearing was extensive. It not
only included the testimony of relevant witnesses, including Kelsey, but also
the submission of a lengthy preadjudicatory transfer evaluation. Additionally,
the family court's transfer order was detailed. and raised the following points:
(1) Kelsey was charged with the serious and violent offense of murder, and
the victim was a young girl; (2) it was likely that the Grand Jury would
return an indictment against Kelsey; (3) Kelsey's two codefendant's were
going to be tried in the Court of General Sessions; (4) if tried as a minor,
Kelsey would only get 24 to 54 months if convicted of the murder charge --
this was not in the community's best interest due to the seriousness of the
States Attorney).
(5) The desirability of trial and disposition of the entire offense
in one court when the juvenile's associates in the alleged offense
are adults who will be charged with a crime in the U.S. District
Court for the District of Columbia.
(6) The sophistication and maturity of the juvenile as determined
by consideration of his home, environmental situation, emotional
attitude and pattern of living.
(7) The record and previous history of the juvenile, including
previous contacts with the Youth Aid Division, other law
enforcement agencies, juvenile courts and other jurisdictions,
prior periods of probation to this Court, or prior commitments to
juvenile institutions.
(8) The prospects for adequate protection of the public and the
likelihood of reasonable rehabilitation of the juvenile (if he is
found to have committed the alleged offense by the use of
procedures, services and facilities currently available to the
Juvenile Court.
p.38
STATE v. KELSEY
crime; and (5) Kelsey would have less of a chance of rehabilitation in the
juvenile justice system because his sentence under that system would be
brief.
We therefore find the family court properly transferred jurisdiction to
the Court of General Sessions pursuant to section 20-7-430.5
III. CHANGE OF VENUE
Kelsey argues that the trial court erred in denying his motion for
change of venue due to the enormous amount of pretrial publicity
surrounding his case. We disagree.
During voir dire, the trial judge asked all of the prospective jurors
whether they had heard anything about the case through the news media.
Of the ninety prospective jurors, seventy-nine indicated that they had heard
something about the case. The trial judge then asked these prospective
jurors whether they could put aside what they had heard and base their
verdict on the evidence presented at trial. Thirty-five indicated that they
could not and were consequently excused by the trial judge. The trial judge
further questioned three of the remaining jurors after defense counsel
expressed concern about their initial responses. After voir dire was
completed, the defense renewed its motion for a change of venue. The trial
judge denied the motion, stating:
My sound instinct though tells me that just because these people
have heard about the case doesn't have to necessarily mean that
they have formed some opinion about the case. To do that I
think would have to, in essence, assume that they believed
everything they had seen or read and that, in essence, they were
some sort of automatons that were dictated to by the news
media. I don't think I can go that far.
Of the twelve jurors finally seated, three had not heard anything about the
case.
Kelsey argues that the media attention surrounding his case was so
great that it precluded any possibility of him obtaining a fair trial by an
impartial jury as guaranteed by the Sixth Amendment to the United States
5Section 20-7-430 was repealed by 1996 Act No. 383, § 2, effective July
1, 1996.
p.39
STATE v. KELSEY
Constitution. Kelsey further argues that this prejudice is demonstrated by
the fact that such a high number of prospective jurors indicated, during voir
dire, that they had heard something about the case. Kelsey suggests that all
of the prospective jurors not excused during voir dire were in some way
subconsciously affected by the high volume of media coverage surrounding the
case.
A motion for a change of venue is addressed to the sound discretion of
the trial judge and will not be disturbed absent an abuse of discretion. State
v. Caldwell, 300 S.C. 494, 388 S.E.2d 816 (1990). When the trial judge bases
his ruling upon an adequate voir dire examination of the jurors, his
conclusion that the objectivity of the jury panel has not been polluted by
outside influence will not be disturbed absent extraordinary circumstances.
State v. Patterson, 324 S.C. 5, 482 S.E.2d 760 (1997); State v. Caldwell, 300
S.C. 494, 388 S.E.2d 816; State v. Thompson, 278 S.C. 1, 292 S.E.2d 581
(1982), overruled on other grounds by State v. Torrence, 305 S.C. 45, 406
S.E.2d 315 (1991). Mere exposure to pretrial publicity does not automatically
disqualify a prospective juror. State v. Caldwell, 300 S.C. 494, 388 S.E.2d
816. When jurors have been exposed to such publicity, a denial of a change
of venue is not error where jurors are found to have the ability to lay aside
any impressions or opinions and render a verdict based on the evidence
presented at trial. Id. Moreover, it is the defendant's burden to demonstrate
actual juror prejudice as a result of news accounts of the defendant's case.
State v. Owens, 293 S.C. 161, 359 S.E.2d 275 (1987).
Kelsey cites Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6 L. Ed. 2d
751 (1961) and Patton v. Yount, 467 U.S. 1025, 104 S. Ct. 2885, 81 L. Ed. 2d
847 (1984), for the proposition that pretrial publicity may be so severe as to
create a presumption of prejudice in the community, and therefore, make it
impossible for the defendant to receive a fair trial. However, in Dowd, the
Court stated there was no requirement that jurors -be totally ignorant of the
facts and issues involved in the case. "It is sufficient if the juror can lay
aside his impression or opinion and render a verdict based on the evidence
presented in court." Dowd, 366 U.S. at 723, 81 S. Ct. at 1643, 6 L. Ed. 2d
at 756. The Court in Dowd ultimately concluded that the pretrial publicity
was unduly prejudicial to the defendant because eight of the twelve jurors
finally placed in the jury box expressed, during voir dire, their belief that the
defendant was in fact guilty.6
6In Dowd, the pretrial news coverage was extremely intense and
negative toward the defendant. The coverage included details of the
defendant's background, including references to crimes he committed when
p.40
STATE V. KELSEY
In the instant case, there was no indication that any of the jurors
finally seated had formed a pretrial opinion that Kelsey was guilty. Nine of
the twelve jurors admitted they had been exposed to some pretrial media
coverage, but they told the trial judge they could put aside what they had
heard and render a verdict based on the evidence presented at trial.
"[A defendant's] mere assertion that the jurors could have been
subconsciously affected by. . .media exposure is insufficient to show
prejudice." State v. Owens, 293 S.C. at 167, 359 S.E.2d at 278. Kelsey has
not gone beyond this mere assertion to show actual prejudice in his case.
Although media coverage was widespread and intense before Kelsey's trial,
there was no indication that the trial court's voir dire failed to produce an
impartial jury.
IV. PITTING OF WITNESS
Kelsey argues that the trial court erred in failing to declare a mistrial
when Payne's attorney attempted to pit Kelsey's testimony against a police
officer's testimony. We disagree.
Kelsey was arrested by officer Slavin in Maryland. At trial, Slavin
testified that when Kelsey was detained in his police car, Kelsey asked if he
was going to be treated as an adult or juvenile. Slavin told him he would be
treated as an adult. Slavin then testified, "[Kelsey] wanted to know why
because he said he was a juvenile when he did it." The State also introduced
into evidence a copy of Slavin's incident report to corroborate his testimony.
During Payne's cross-examination of Kelsey, the following exchange
occurred:
Q. Have you read that document [Slavin's incident report] you
just denied ever seeing?
A. I have never read through this document.
Q. You have never seen anything like that?
he was a juvenile, convictions for arson almost 20 years previously, and
burglary and AWOL court-martial charges. The news media further accused
him of being a parole violator, announced his police line-up identification, his
confession to the six murders, and his offer to plead g-uilty. Dowd, 366 U.S.
at 725, 81 S.. Ct. at 1644.
p.41
STATE V. KELSEY
A. No, sir.
Q. Anyone who says you have would, of course, be mistaken
or lying; is that correct?
Kelsey's attorney immediately objected, arguing the question improperly
pitted Kelsey's testimony against Slavin's testimony. Kelsey moved for a
mistrial. The trial judge sustained Kelsey's objection, but denied his motion
for a mistrial. Payne's counsel continued with the cross-examination of
Kelsey:
Q. So when [Slavin] said that you said, "I was juvenile when
I did it," Mr. Slavin was incorrect?
A. Yes, sir, he was.
Kelsey again objected on the same grounds as before. The trial judge
sustained the objection but denied Kelsey's motion for a mistrial.
The decision to grant or deny a mistrial is within the sound discretion
of the trial judge and will not be overturned on appeal absent an abuse of
discretion. State v. Crim, 327 S.C. 254, 489 S.E.2d 478 (1997); State v.
Dawkins, 297 S.C. 386, 377 S.E.2d 298 (1989). The power of the court to
declare a mistrial ought to be used with the greatest caution and for plain
and obvious causes stated into the record by the trial judge. State v.
Dawkins, 297 S.C. 386, 377 S.E.2d 298. The granting of a motion for a
mistrial is an extreme measure which should be taken only where an incident
is so grievous that prejudicial effect can be removed in no other way. 75B
Am. Jur. 2d Trial § 1706 at 491 (1992).
We first note that any prejudice to Kelsey could have been removed by
the trial court striking the testimony and giving a curative instruction to the
jury. See State v. Simpson, 325 S.C. 37, 479 S.E.2d 57 (1996)(an instruction
to disregard incompetent evidence usually is deemed to have cured the error
in its admission unless on the facts of the particular case it is probable that
notwithstanding such instruction or withdrawal the accused was prejudiced).
However, Kelsey's attorney failed to make such a motion before the trial
court. See 75 Am. Jur. 2d Trial § 467 at 642 (a motion for mistrial does not
automatically include a motion to strike as a lessor prayer for relief).
Nonetheless, we find that Kelsey was not unfairly prejudiced by the
p.42
STATE v. KELSEY
testimony. Although it is improper for an attorney to cross-examine a
witness in such a manner as to force him to attack the veracity of another
witness, improper "pitting" constitutes reversible error only if the accused was
unfairly prejudiced. State v. Sapps, 295 S.C. 484, 369 S.E.2d 145 (1988).
VVhlle Kelsey's credibility was at issue in the case, Kelsey admitted on direct
examination that he had, in fact, placed the pipe bomb into Richey's mouth.
The critical issue for the jury to decide was whether Richey was alive or dead
when Kelsey committed this act. The above colloquy between Kelsey and
Payne's attorney did not directly relate to this issue. Kelsey merely disputed
telling Officer Slavin that he was a juvenile when he "did it." Any prejudice
to Kelsey was minimal and does not warrant reversal.
V. PRIOR STATEMENTS
Kelsey argues that the trial court erred in denying his right to
introduce a prior statement in order to defend against the State's allegation
that he testified untruthfully during his testimony before the jury. We
disagree.
During the State's cross-examination of Kelsey, the solicitor emphasized
that Kelsey's trial testimony was inconsistent with testimony he had given
at the December 5, 1994 family cour-t waiver hearing and with statements he
had given to SLED agent Dan Choate on September 29, 1994. In response,
Kelsey called Choate to the stand and attempted to elicit testimony from him
concerning Kelsey's prior September statement. The State objected, arguing
the defense was trying to introduce a prior consistent statement which was
impermissible under Rule 801(d)(1), SCRE. Kelsey's attorney responded,
arguing that he was entitled to have the entire inconsistent statement
introduced so that it could be viewed in context. The trial judge sustained
the State's objection. Kelsey did not proffer any of the excluded testimony.
Generally, where a portion of a witness's prior inconsistent statement
has been introduced to impeach that witness, the entire statement is
admissible in rebuttal to explain the inconsistency. See 98 C.J.S. Witnesses
§ 622 at 636 (1957); Wigmore On Evidence § 1045 (Chadbourn rev. 1970).
However, the mere mention of a conversation or statement does not
automatically entitle the opponent to bring out the other parts. Remaining
portions which are not relevant or material in the explanation of the
inconsistency are not admissible. See People v. Cowper, 496 N.E.2d 729 (111.
App. Ct. 1986); State v. Eugenio, 565 N.W.2d 798 (Wis. Ct. App. 1997); 98
C.J.S. Witnesses § 622 at 637. The trial court has broad discretion in
determining whether to admit such evidence. See State v. Daly, 798 S.W.2d
p.43
STATE v. KELSEY
725 (Mo. Ct. App. 1990).
At trial, the solicitor asked Kelsey if Richey's mouth was bleeding
inside the car. Kelsey responded that there was a small trace of blood on
Richey's mouth. The following colloquy then took place between Kelsey and
the solicitor:
Q. Mr. Choate over here. You had a conversation with Mr. Choate
and your lawyer was there?
A. Yes, sir.
Q. Do you remember Mr. Choate said, "Mr. Kelsey, was there any
blood on Melanie or anywhere in that car?" You said, "No, sir, it
wasn't." Didn't you?
A. I don't remember that brief conversation. I mean. I tried to write
down exactly what we talked about right afterwards. I said we
had a brief conversation before and that then they gave me the
forms and I wrote it down.
At trial, Kelsey's attorney argued that Kelsey had a right to have the
entire statement introduced so that it could be viewed in context. However,
there was no attempt to explain why the other portions of the September
statement were relevant or material in explaining the inconsistency.
Additionally, Kelsey failed to proffer any of the excluded testimony. See
State v. Anderson, 304 S.C. 551, 406 S.E.2d 152 (1991)(where no proffer of
excluded testimony is made, the Court is unable to determine whether the
appellant was prejudiced by the trial judge's refusal to admit the testimony
into evidence). We therefore find that the trial court did not abuse its
discretion in sustaining the State's objection.
VI. CODEFENDANT'S STATEMENTS
At trial, Kelsey's attorney called F.B.I. agent Harold Harrison to the
stand to testify. Kelsey sought to elicit testimony from Harrison concerning
statements Payne made to the F.B.I. during its investigation of Richey's
death. Payne's attorney objected, arguing Payne's credibility could not be
impeached unless Payne took the stand. Kelsey's attorney responded, stating
that the purpose of the testimony was to rebut Payne's theory that Kelsey
had co-opted Payne's statement and made it his own. Kelsey made an in
carnera proffer of the testimony. The proffer revealed that the interview did
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STATE v. KELSEY
not contain any admission of guilt by Payne, but did discuss the sequence of
events surrounding the crime. The trial judge sustained the objection, stating
that Payne might still present a defense.
Even if Payne's statements were relevant as rebuttal evidence, Kelsey
was not prejudiced by the trial judge's ruling. Lee had already testified that
Payne fabricated his story and had instructed Lee to "Rip everything around"
and tell the authorities that Kelsey killed Richey if questioned. Moreover,
Lee's story at trial was more consistent with Kelsey's version of events than
with Payne's. Thus, even if Payne's statements were relevant, they were, at
best, needless presentation of cumulative evidence. See Rule 403, SCRE.
VII. CODEFENDANT'S PHYSICAL APPEARANCE
Kelsey argues that the trial court erred in not allowing him to present
evidence concerning Payne's altered appearance at trial. We disagree.
At trial, Kelsey called Mae Guin, a guidance counselor from Payne's
former high school. Kelsey's attorney attempted to question Guin about
Payne's changed appearance since high school. Payne's attorney objected,
arguing Payne's altered appearance was irrelevant. Kelsey argued that
Payne's appearance at trial was an attempt to give the impression that he
was something he was not. The trial judge sustained Payne's objection and
gave a curative instruction to the jury.
Evidence regarding the physical condition of a party is admissible if
relevant to an issue in the case. 29 Am. Jur. 2d Evidence § 560 at 627. The
only ground offered by Kelsey to support the introduction of Guin's testimony
was that Payne was trying be something he was not. Payne's appearance
was in no other way relevant to the case. We hold that the prejudicial effect
of such evidence substantially outweighed any probative value it may have
had. See Rule 403, SCRE. Thus, it was properly excluded.
VIII. SEVERANCE
Kelsey argues that the trial court erred in denying his motion for
severance in the case. We disagree.
Before trial, Payne's attorney moved to have separate trials. Kelsey did
not join in the motion. The trial judge denied Payne's motion. After the
defense rested its case, Kelsey's attorney moved for a mistrial and argued
that Kelsey was entitled to a severance. The trial judge denied the motion.
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STATE v. KELSEY
In South Carolina, crirrlinal defendants who are jointly tried for murder
are not entitled to separate trials as a matter of right. State v. Holland, 261
S.C. 488, 201 S.E.2d 118 (1973); State v. Crowe, 258 S.C. 258, 188 S.E.2d 379
(1972). Motions for a severance and separate trial are addressed to the
discretion of the trial court. State v. Nichols, 325 S.C. 111, 481 S.E.2d 118
(1997); State v. Chaffee, 285 S.C. 21, 328 S.E.2d 464 (1984), overruled on
other grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991).
Absent a showing of an abuse of discretion, this Court will not disturb the
trial court's ruling on appeal. State v. Thompson, 279 S.C. 405, 308 S.E.2d
364 (1983).
Kelsey argues that severance should have been granted based on the
prejudice discussed in issues 5, 6, and 7 of this appeal. As discussed above,
Kelsey was not unfairly prejudiced by any of the trial court's rulings
discussed in issues 5, 6, and 7, nor was he unfairly prejudiced in any other
way. At most, any prejudice was incidental and therefore insufficient to
demonstrate an abuse of discretion on the part of the trial court in denying
severance. See United States v. Martinez, 922 F.2d 914 (Ist Cir. 1991).
IX. PRIOR BAD ACTS
Kelsey argues that the trial court erred in denying his motion for a
mistrial when Payne's attorney cross-examined him about prior bad acts that
allegedly occurred in Georgia. We disagree.
On cross-examination, Payne's attorney asked Kelsey if he had had any
legal problems or been arrested before July 12, 1994, in Georgia. Kelsey
responded that he had not. Payne's attorney then asked Kelsey if he had
had any legal problems after July 12, 1994. Before Kelsey could answer,
Kelsey's attorney objected. Payne's attorney made an in camera proffer of
the testimony. Kelsey was asked whether he had ever been charged with the
crime of forgery. Kelsey responded that he was not aware of any such
charges. Payne's attorney withdrew the question. Kelsey moved for a
mistrial which the trial judge denied. When the jury returned, the trial
judge gave the following curative instruction: "I have stricken the last
question. Let me be sure and remind you that an attorney's question is not
evidence and I have stricken all that. So you will disregard that."
Under Rule 608(b), SCRE, specific instances of the conduct of a witness
may be inquired into on cross-examination if probative of the witness's
character for truthfulness or untruthfulness. South Carolina's Rule is
identical to the Federal rule. The inquiry under Rule 608(b) is limited to
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STATE v. KELSEY
those specific instances of misconduct which are clearly probative of
truthfulness or untruthfulness such as forgery, bribery, false pretenses, and
embezzlement. See Weinstein's Federal Evidence, Character and Conduct of
Witness § 608.12(4)(a-b) (1998). However, the cross-examiner may not go on
a "fishing expedition" in the hopes of finding some misconduct. State v.
McGuire, 272 S.C. 547, 253 S.E.2d 103 (1979).
In this case, Payne's attorney inquired into a prior act of forgery.
When Kelsey stated he was not aware of any such charge, Payne's attorney
properly withdrew the question. See Rule 609(b), SCRE (specific instances
of conduct may not be -proved by extrinsic evidence). We hold that any
prejudice to Kelsey was cured by the trial judge's curative instruction to the
jury. See State v. Simpson, 325 S.C. 37, 479 S.E.2d 57 (an instruction to
disregard incompetent evidence usually is deemed to have cured the error in
its admission unless on the facts of the particular case it is probable that
notwithstanding such instruction or withdrawal the accused was prejudiced).
Thus, the trial judge did not abuse his discretion in denying the motion for
mistrial. See State v. Crim, 327 S.C. 254, 489 S.E.2d 478 (decision to deny
mistrial will not be overturned on appeal absent abuse of discretion).
X. DIAGRAM & PHOTOGRAPHS
Kelsey argues that the trial court erred in admitting State's exhibits 18
and 19 into evidence. We disagree.
Exhibits 18 and 19 consisted of a diagram of the crime scene and
photographs of various bone and bomb fragments and clothing found at the
scene. Kelsey notes that Richey's body was discovered some forty-six days
after the crime was conunitted. Kelsey suggests that weather or local fauna
could have altered the crime scene during this period. Thus, the State's
depictions were inaccurate representations of the scene and therefore
prejudicial to Kelsey. Kelsey also argues the evidence was cumulative.
The relevance, materiality, and admissibility of photographs are matters
within the sound discretion of the trial court. If the photographs serve to
corroborate testimony, it is not an abuse of discretion to admit them. State
v. Tucker, 324 S.C. 155, 478 S.E.2d 260 (1996). A photograph should be
excluded only if it is calculated to arouse the jury's sympathy or prejudice or
is irrelevant or unnecessary to substantiate facts. Id. In this case, the
photographs corroborated other testimony concerning the condition of Richey's
body as first discovered by police at the crime scene. Additionally, the
location of bone and bomb fragments clearly supported testimony that a bomb
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STATE v. KELSEY
detonated in Richey's mouth. Kelsey merely hypothesizes that the crime
scene could have been disturbed by natural forces. We hold that the trial
court did not abuse its discretion in admitting the exhibits into evidence.
XI. CONSPIRACY AND MERE PRESENCE
Kelsey argues that the trial court erred in failing to give proper
conspiracy and mere presence instructions. We disagree.
Kelsey contends that the trial court's mere presence charge was blended
in so closely with the accomplice liability charge that it was misleading.
Kelsey further argues that the trial court improperly failed to instruct the
jury that one's mere association with a person who conu-nits a crime does not
make a defendant an accomplice or a co-conspirator to the guilty perpetrator.
The trial court's instruction provided, in part:
Now of course, mere presence at the scene is insufficient to prove
someone guilty of a crime. The burden is upon the state to prove
every element of the crime charged. If you find after reviewing
all of the evidence that the state has proven that the defendant
was only present at the scene of the crime and they have not
proven beyond a reasonable doubt any other participation in the
crime, then you must find a defendant not guilty.
The law says that proof of mere presence at the scene of the
crime is not sufficient to find someone guilty. But, of course the
law also says that the hand of one is the hand of all.
The law says -- that if a person -- if a crime is committed by two
or more persons who are acting together in the commission of a
crime, then the act of one is the act of both.
We find the trial court's charge was not misleading. It clearly
explained that the prosecution had to prove every element of the crime and
that mere presence was not enough to sustain a conviction. Moreover, the
trial judge extensively instructed the jury on the requisite criminal intent for
each of the charged crimes. In charging the jury on conspiracy, the trial
judge explained, "Before a defendant may be convicted ... it must be proven
beyond a reasonable doubt that a conspiracy existed and that the defendant
was a knowing party to the conspiracy . . . ." (emphasis added). We hold
that the trial court's instructions, taken as a whole, were adequate. See
State v. Sims, 304 S.C. 409, 405 S.E.2d 377 (1991)(jury instructions must be
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STATE v. KELSEY
considered as a whole and if as a whole, they are free from error, any
isolated portions which might be misleading do not constitute reversible
error).
XII. MISTAKE OF FACT
Kelsey argues that the trial court erred in refusing to charge the jury
on the law of mistake of fact. Kelsey contends that he believed Richey was
dead when he placed the pipe bomb into her mouth. He asserts that even
if Richey were alive when he did this, his mistaken belief that she was dead
negates the criminal intent required to be convicted of murder. Thus, he was
entitled to a jury charge. We disagree.
At trial, Kelsey requested the following jury instruction:
In this case the state is required to prove beyond a reasonable
doubt that the defendant Joe Kelsey was not operating under a
mistake of fact. If the state can not prove beyond a reasonable
doubt that defendant Joe Kelsey knew that the victim was still
alive when the pipe bomb was placed in her mouth, then
defendant Joe Kelsey is entitled to a verdict of not guilty as to
the charge of murder.
A mistake of fact which negates the existence of the mental element of
the offense, will preclude conviction. 21 Am. Jur. 2d Criminal Law, § 141 at
276 (1981); William Shepard McAninch, Criminal Law of South Carolina, 542
(1996). If the particular offense is a general intent crime, the mistake of fact
must be reasonable. See State v. Dizon, 390 P.2d 759 (Haw. 1964)(the
mistake must not be due to the negligence or carelessness of the defendant).
Moreover, a trial court is not required to give an instruction on mistake of
fact unless and until the defendant introduces some evidence, direct or
circumstantial, of a reasonable basis for having made the mistake. United
States v. Norquay, 987 F.2d 475 (8th Cir. 1993).
It is dubious, at best, to suggest that Kelsey's belief in this regard was
objectively reasonable. Despite this, there are more fundamental reasons for
rejecting Kelsey's argument. First, the trial judge extensively charged. the
jury on the requisite criminal intent for murder. The trial judge's instruction
provided, in pertinent part:
Murder is the killing of any person with malice aforethought,
either express or implied. Again, murder is the killing of any
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STATE v. KELSEY
person with malice aforethought, either express or implied. Now,
in order to convict these defendants on murder . . . the state
must prove not only that the defendant killed Melanie Kaye
Richey; but they must also prove beyond a reasonable doubt that
they did so with malice aforethought. . . . There must be a
combination of the previous evil intent and the act producing the
fatal result. Proof of malice may be express or direct, such as,
where there is evidence of previous threats or evidence of lying
in wait. In other words, circumstances which show directly that
an intent to kill existed.
The trial court's instructions made clear that the State not only had to prove
that Kelsey killed Richey, but that he did so with the requisite intent, i.e.,
with malice aforethought. Therefore, Kelsey's belief that Richey was dead
would be part of the determination of whether Kelsey "intended" to kill
Richey.
We also note that Kelsey's requested jury instruction did not accurately
state the law in that it failed to provide that Kelsey's mistake of fact must
have been reasonable. The proposed charge orily stated that the State must
prove beyond a reasonable doubt that Kelsey was not operating under a
mistake of fact. Thus, it was not error for the trial court to refuse to give
the requested jury charge. See State v. Davis, 282 S.C. 45, 317 S.E.2d 452
(1984)(a trial court does not err in refusing to give a requested jury
instruction where it does not state the correct law).
CONCLUSION
Based on the foregoing, we AFFIRM the trial court on all issues.
MOORE, WALLER, BURNETT, JJ., and Associate Justice C. Thlbert
Goolsby, concur.
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