THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State, Respondent,

v.

Russell Nelson King, Appellant.

Appeal From Marion County

B. Hicks Harwell, Judge

Opinion No. 24916

Heard November 18, 1998 - March 8, 1999

REVERSED

John D. Delgado, of Columbia, for appellant.

Attorney General Charles M. Condon, Chief Deputy

Attorney General John W. McIntosh, Assistant Deputy

Attorney General Donald J. Zelenka, Assistant Attorneys

General Lauri J. Soles and S. Creighton Waters, all of

Columbia; and Solicitor Dudley Saleeby, Jr., of Florence, for

respondent.

BURNETT, A.J.: Appellant appeals his convictions for

murder, arson and armed robbery. We reverse.

FACTS

Appellant lived in Mullins, South Carolina with his wife and

three children. Appellant's father-in-law, Billy Turbeville, moved in with

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appellant's family after Mr. Turbeville and his wife divorced in 1989. Mr.

Turbeville had suffered a stroke in 1987 and could no longer live alone.

Mr. Turbeville lived in an apartment which had been added to the King's

home, and he paid the second mortgage the Kings had obtained to build

the apartment.

At approximately 5:20 a.m. on the morning of March 1 1995,

appellant woke his wife when he discovered Mr. Turbeville's apartment

was on fire. Because the apartment's door was locked, appellant broke a

window in the door and reached through to open the door. Appellant and

his wife ran into the apartment several times searching for Mr. Turbeville.

The apartment was filled with smoke and they were unable to locate him.

Officer Jimmy Collins testified, when he arrived, appellant was up let and

said his father-in-law might be inside, but the smoke was too thick.

Once the fire department extinguished the fire and the smoke

was blown from the apartment, the body of Mr. Turbeville was found on

the floor beside his bed. Mr. Turbeville had been burned and beaton on

the head with a blunt object such as a hammer.1 He had nine lacerations

to the scalp. A pool of blood was discovered just inside the apartment

door, more than nine feet from the body. Another pool of blood was

discovered under Mr. Turbeville's head. The authorities seized the

trousers appellant was wearing when he entered Mr. Turbeville's

apartment. Examination of the trousers revealed spatters of blood on the

leg and crotch. DNA analysis revealed the blood to be Mr. Turbeville's.

Gasoline-soaked newspapers and paper towels were found in

the apartment. A gasoline-soaked newspaper was found in the recycling

bin inside the Florida room of the King home. The Florida room is located

at the back of the house facing Mr. Turbeville's apartment. Authorities,

seized a gas can found in the garage and another found in the back of

appellant's truck.

Appellant's ex-wife, Gina Turbeville-King,2 testified her father

usually went to the Huddle House restaurant at approximately 3:30 a.m.

A witness testified Mr. Turbeville was at the Huddle House on the

2 Mrs. King divorced appellant in 1996.

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morning of March 10, 1995, and left the restaurant at approximately 4:45

a.m.

Mr. Turbeville received two checks each month totaling

$2200.00. After paying his bills totaling $400.00, Mr. Turbeville kept the

remaining cash in his wallet. A witness from the Huddle House testified

Mr. Turbeville carried money in his front pants' pocket. No wallet or cash

was found on Mr. Turbeville's body. Mrs. King testified her father's VCR

was missing after the fire. Authorities never found the missing VCR or

money.

Mrs. King testified, on the evening before the murder, he

returned to her home at approximately 9:00 p.m. As she arrived home,

she was surprised to see appellant pulling into the driveway because he

was suppose to be home with the children. Later that evening, Mrs. King

discovered approximately $70.00 was missing from her purse. When she

confronted appellant, he first denied and then admitted taking the money.

Appellant left the house around 1:00 a.m. telling his ex-wife he was going

to get some money to repay her. Appellant returned home at

approximately 2:00 a.m. and got into bed with his ex-wife. He again got

out of bed a short while later and returned to bed around 3:00 a.m. Mrs.

King next remembered appellant yelling to her about the fire. Mrs. King

testified appellant had told her she was to agree that she heard someone

come into their yard that night and argue with her father.3 According to

Mrs. King, appellant had threatened to take the children if she did not

agree with his story. Mrs. King testified she had not heard anything.

Frank Robinson, an acquaintance of appellant, testified

appellant had come to his home at "around 11:00 p.m. or 12:00 a.m." the

night of the murder to ask Robinson if someone had paid in advance for

work appellant was to do for this person. Robinson told appellant he had

not yet received the advanced payment. A few hours later, around 3:00

a.m., appellant returned to Robinson's home asking to borrow $7.00 for

gasoline. Robinson told him to return later in the morning. When

appellant came back between 7:00 and 8:00 a.m., he told Robinson his

father-in-law "got burned last night."

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ISSUES

I. Did the trial judge err in refusing to grant a new trial after

a television news reporter entered the courtroom midway

through the jury charge and filmed the judge, parties, and

jury?

II Did the trial judge err in allowing appellant's ex-wife to

testify regarding appellant's need for money prior to the

murder because this testimony served no purpose other than to

impugn appellant's character and its prejudicial effect

outweighed any probative value?

DISCUSSION

I.

Immediately before beginning closing arguments, the trial

judge ordered the bailiff not to allow anyone "to leave or reenter [the

courtroom] once the arguments begin or [during] the charge of the law."

In the middle of the judge's charge to the jury, a television news reporter

entered the courtroom. With the use of a video camera, the reporter

filmed the proceedings until the end of the jury charge.

Appellant did not object to this situation prior to the jury's

verdict. Instead, appellant raised this issue three days later in his post

trial motion for a new trial. During the post trial motions' hearing,

defense counsel admitted he discussed the situation with appellant and

appellant's father prior to the verdict and "a conscious decision [was] made

not to make a motion for a mistrial." Only after the jury returned with

an unfavorable verdict did defense counsel attempt to raise this issue.

In denying the new trial motion, the trial judge found

appellant had waived this claim because his objection was not timely.

Further, the trial judge found the reporter's activities were in accordance

with Rule 605, SCACR, and did not distract or disrupt the proceedings.

We conclude appellant waived review of this issue by failing to

object prior to the jury's verdict. Rule 103(a)(1), SCRE; State v. Hicks,

330 S.C. 207) 499 S.E.2d 209 (1998) (to preserve an issue for appellate

review, the objection must be timely made, which usually requires it be

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made at the earliest possible opportunity); see also State v. Kelly, 331 S.C.

132, 502 S.E.2d 99 (1998) (a new trial motion may not be used to raise an

evidentiary issue for the first time); McGee v. Bruce Hosp. Syst., 321 S.C.

340, 468 S.E.2d 633 (1996) (an issue may not be raised for the first time

in a motion for a new trial); State v. Penlan , 275 S.C. 537, 538, 273

S.E.2d 765, 767 (1981) (finding appellant waived the issue where he did

not make a motion for a mistrial until after the verdict).

Defense counsel, after consultation with appellant, made a

strategic trial decision not to object. Appellant and defense counsel

weighed their options and, rather than moving for a mistrial, decided to

take the chance appellant would be acquitted. Under these facts,

appellant has no basis on which to assert error.

Appellant's ex-wife, Gina Turbeville-King, testified for the

State. She testified she and appellant first separated in October 1994.

They reconciled in January 1995 and separated again shortly after the

murder. The State, in an attempt to elicit testimony of appellant's recent

drug use, asked Mrs. King if "[a]ny changes in [appellant had taken] place

then that lead [sic] to that separation?" Defense counsel objected on the

basis of relevance. After an in camera hearing, the trial judge sustained

the objection and ruled the State could not introduce evidence of

appellant's drug addiction.

The State then requested permission to elicit testimony to

show appellant had a pattern of taking money from his ex-wife and

staying out late to prove motive and/or to establish the context of the

crimes under the res gestae theory. The prosecution indicated it would

not discuss appellant's drug use. Defense counsel objected claiming these

were inadmissible prior bad acts. The court overruled the objection

explaining the evidence was relevant to establish appellant's need for

money and the prejudicial effect of this evidence did not outweigh its

probative value.4

throughout Mrs. King's testimony and it would be unnecessary to continue

to object.

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Before the jury, the State asked Mrs. King whether an

changes in appellant's conduct led to the separation. Mrs. King responded

appellant had been staying out late and he would leave several times

during the night.

The State then asked Mrs. King about appellant's need for

money. She testified appellant had admitted taking items from their

home, pawning them, then redeeming them and returning them to the

home. Mrs. King also testified appellant stole cash from her purse, forged

checks on her bank account, stole cash from her bank account by using

her ATM card, and stopped paying his share of the bills. These incidents

occurred prior to their separation in October 1994 and began to occur

again after they reconciled in January 1995. Mrs. King testified their

financial situation had not changed during this time.

Mrs. King then testified appellant stole $70 from her purse on

the evening before the murder. According to Mrs. King, when she

confronted appellant he first denied, then admitted, taking the money.

Mrs. King testified appellant promised to repay her. After this

confrontation, appellant left the house at approximately 1:00 a.m. He

returned around 2:00 a.m. Later, he got up from bed and returned around

3:00 a.m. Mrs. King testified she was not aware of appellant leaving the

bed again until he woke her yelling there was a fire.

Appellant argues the trial judge erred in admitting Mr . King's

testimony regarding his prior bad acts of stealing because this testimony

only served to establish his criminal propensity to commit the charged

crimes and he is a bad person. The State argues this testimony as

admissible to establish motive and/or to provide the context of the':crimes.

In a criminal case, the State cannot attack the character of the

defendant unless the defendant himself first places his character in issue.

Rule 404(a), SCRE; Mitchell v. State, 298 S.C. 186, 379 S.E.2d 12 (1989).

Further, evidence of prior bad acts is inadmissible to show criminal

propensity or to demonstrate the accused is a bad person. Mitchell v.

State, supra.

South Carolina law precludes evidence of a defendant' prior

crimes or other bad acts to prove the defendant's guilt for the crime

charged except to establish (1) motive, (2) intent, (3) the absence of

mistake or accident, (4) a common scheme or plan, or (5) the identity of

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the perpetrator. Rule 404(b), SCRE; State v. Adams, 322 S.C. 114,;! 470

S.E.2d 366 (1996); State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923). The

evidence of the prior bad acts must be clear and convincing to be

admissible. State v. Adams, supra. The record must support a logical

relevance between the prior bad act and the crime for which the defendant

is accused. State v. Adams, supra; State v. Smith, 309 S.C. 442, 424

S.E.2d 496 (1992); State v. Gilchrist, 329 S.C. 621, 496 S.E.2d 424 (Ct.

App. 1998). Further, even though the evidence is clear and convincing

and falls within a Lyle exception, it must be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice to the

defendant. Rule 403, SCRE; State v. Adams, supra.

The res gestae theory recognizes evidence of other bad acts

may be an integral part of the crime with which the defendant is charged,

or may be needed to aid the fact finder in understanding the context in

which the crime occurred. State v. Adams, supra. This evidence f other

crimes is admissible:

when such evidence "furnishes part of the context of the

crime" or is necessary to a "full presentation" of the case,

or is so intimately connected with and explanatory of the

crime charged against the defendant and is so much a

part of the setting of the case and its "environment" that

its proof is appropriate in order "to complete the story of

the crime on trial by proving its immediate context or

the 'res gestae"' or the "uncharged offense is 'so linked

together in point of time and circumstances with the

crime charged that one cannot be fully shown without

proving the other . [and is thus] part of the res gestae

of the crime charged." And where evidence is admissible

to provide this "full presentation" of the offense, "[t]here

is no reason to fragmentize the event under inquiry" by

suppressing parts of the "res gestae."

State v. Adams, 322 S.C. at 122, 470 S.E.2d at 370-71 (quoting United

States v. Masters, 622 F.2d 83~ 86 (4th Cir. 1980) (citations omitted)). The

evidence of prior bad acts is inadmissible as part of the res gestae, "where

the record does not support any relationship between the crime and [prior

bad acts]." State v. Hough, 325 S.C. S8, 480 S.E.2d 77 (1997). Under this

theory, it is important that the temporal proximity of the prior bad act be

closely related to the charged crime. State v. Hough, supra. Even if the

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evidence is relevant under this theory, prior to admission the trial judge

should determine whether its probative value clearly outweighs any unfair

prejudice. Rule 403, SCRE; State v. Bolden, 303 S.C. 41, 398 S.E.2d 494

For purposes of this discussion we have divided the evidence

presented by the State into two categories: (1) the evidence of his

numerous prior thefts from his ex-wife beginning in 1994 (remote thefts)

and (2) the evidence of the theft on the night before the murder

(immediate theft). The remote thefts were not admissible under any

theory. This evidence shows appellant's bad character and his propensity

to commit crimes. These are inadmissible purposes. The temporal

connection between t&se petty thefts and the charged crimes is too

attenuated for admissibility under the res gestae theory or under Lyle.5

Thus, the trial judge erred in admitting evidence of the remote thefts.

In our opinion, the admission of this evidence is not harmless

beyond a reasonable doubt.6 State v. Bolden, supra. Whether the

improper introduction of this evidence is harmless requires the Court to

determine whether appellant's "guilt is conclusively proven by competent

evidence, such that no other rational conclusion could be reached." State

v. Parker, 315 S.C. at 234, 433 S.E.2d at 833; see also State v. Reeves,

301 S.C. 191, 194, 391 S.E.2d 241, 243 (1990) (finding an error is harmless

if it could not reasonably have affected the result of the trial),; State v.

Davis, 309 S.C. 326, 422 S.E.2d 133 (1992) (even if evidence, was wrongly

motive under Lyle, the prejudicial effect of this evidence far outweighed

this slight probative value.

6 The State suggests any error in the admission of this evidence is

harmless beyond a reasonable doubt because Mrs. King's testimony was

cumulative to Robinson's testimony about appellant's need for money. We

disagree. Robinson's testimony only established appellant had asked to

borrow money from Robinson in the past and on the night of the murder.

There was no suggestion that appellant had attempted to steal money.

Mrs. King's testimony established appellant stole money from her and

pawned household items for money. Her testimony was much more

damaging to appellant. Thus, her testimony was not cumulative to

Robinson's testimony.

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admitted, its admission may constitute harmless error if the evidence did

not affect the outcome of the trial).

Here, all the evidence was circumstantial. While this

circumstantial evidence pointed to appellant's guilt, especially the blood

evidence, the evidence was not overwhelming. The admission of the

remote thefts was too prejudicial to be held harmless. The admission of

this testimony allowed the State to insinuate to the jury that appellant

had a drug problem. The Solicitor's questions eliminated many legitimate

reasons why appellant would need money. In the State's closing

argument, the Solicitor's use of words such as "craving" and "insatiable"

implied to the jury that appellant's reason for needing money was bad and

was probably related to an illegal activity -- drug use. Appellant's drug

use was properly found inadmissible by the trial judge because of its

prejudicial effect. However, by way of the back door, the State was able to

introduce appellant's drug problem to the jury.

This improper evidence suggested to the jury that appellant

was guilty of committing the charged crimes because of his criminal

propensity to commit crimes and his bad character. The State

continuously stressed this improper testimony in its closing argument.

Therefore, it is impossible under these circumstances to conclude the

improper evidence did not impact the jury's verdict. This improper

testimony permeated the trial and the jury likely used this evidence to

infer that since appellant had previously stolen from his ex-wife, he

probably committed these crimes against his father-in-law also. See State

v. Hough, supra.

Because analysis of the immediate theft is unnecessary for the

resolution of this case, we decline to address it.

REVERSED.

FINNEY, C.J., TOAL, MOORE, JJ., and Acting Associate

Justice George T. Gregory, Jr., concur.

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