S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
V.
Ted Benjamin Powers, Appellant.
Appeal From Lexington County
Ralph King Anderson, Jr., Judge
Opinion No. 24804
Heard March 17, 1998 - Filed June 8, 1998
AFFIRMED
Assistant Appellate Defender Robert M. Dudek, and
Deputy Chief Attorney Joseph L. Savitz, both of the
South Carolina Office of Appellate Defense, all of
Columbia, for appellant.
Attorney General Charles M. Condon, Deputy
Attorney General John W. McIntosh, Assistant
Deputy Attorney General Donald J. Zelenka, Senior
Assistant Attorney General William Edgar Salter,
III, all of Columbia, and Solicitor Donald V. Myers,
of Lexington, for respondent.
WALLER, A.J.: Powers was convicted of murder, first degree burglary,
and assault and battery with intent to kill (ABIK). He was respectively
sentenced to death, life imprisonment and twenty years. We consolidate
Powers' direct appeal with our mandatory review of his death sentence. We
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STATE v. POWERS
affirm.
FACTS
In the early morning hours of September 8, 1960, Powers, then 16
years old, broke into the home of 68 year old Yeoman Senn (Victim) and his
wife Linnie. He went to their bedroom where he stabbed Victim 10 times in
the chest, shoulder and arm; one of the wounds slashed Victim's aorta; he
bled to death. Linnie Senn was beaten in the face and chest and suffered a
broken collar bone and 6 fractured ribs. Powers stole several dollars in small
change from the Senn's home.
While in custody on larceny charges in January, 1991, Powers confessed
to Yeoman Senn's murder. The matter was transferred from juvenile court
to general sessions court where, after a trial in February, 1996, Powers was
sentenced to death.
ISSUES
1. Did the State's strike of Juror #28 violate Batson v.
Kentucky?1
2. Did the court err in requiring Powers, for purposes of jury
selection, to reveal his witness list?
3. Does the State's delay in filing a notice of intent estop it from
seeking a death sentence?
4. Should the trial court have held an in camera hearing to
determine the admissibility of victim impact testimony?
5. Did the court err, at sentencing, in admitting color
photographs of the victim?
6. Did the court err, at sentencing, in admitting a videotape of
the crime scene?
7. Did the court err in refusing to permit defense counsel to
specifically voir dire the jury as to whether it would consider
Powers' age as a mitigating circumstance?
1476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
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STATE v. POWERS
1. JUROR # 28
Powers contends the state's strike of Juror # 28 violated Batson v.
Kentucky, and Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120
L.Ed.2d 33 (1992). This issue is patently unpreserved for review.
After both sides had exercised peremptory challenges and a jury had
been chosen, the trial court asked, "[w]hat is the position of the defense in
regard to a Batson hearing? Do you request one or not?" Counsel for Powers
specifically responded, "[w]e do not make a Batson challenge." The trial court
nonetheless required the solicitor to articulate the reasons for his peremptory
challenges. After the solicitor had stated the basis for his strikes, the trial
court asked if the defense "wanted to put anything on the record in regard
to solicitor's presentation." Defense counsel declined.
Powers' failure to raise any objection to the strike precludes review of
this issue on appeal. State v. Williams, 321 S.C. 455, 469 S.E.2d 49 (1996);
State v. Johnston, 489 S.E.2d 228 (Ct.App. 1997) (failure to object to
dismissal of juror in violation of Batson and Georgia v. McCollum constitutes
waiver of those issues on appeal). See also People v. Baker, 621 N.Y.S.2d
615 (1995)(argument that prosecutor improperly exercised peremptory
challenges to exclude homosexual prospective jurors unpreserved). Contrary
to Powers' contention, the mere fact that jurors have an equal protection
right to serve does not relieve him of the burden of preserving the issue for
appeal. See State v. McWee, 322 S.C. 387, 472 S.E.2d 235 (1996); State v.
Byram, __ S.C.__, 485 S.E.2d 360, (1997) (failure to raise constitutional
issues at trial results in waiver on appeal). Accordingly, we decline to
address this issue.
2. WITNESS LIST
The trial court ordered "that the State and the defendant present to the
Court and identify to the Court all witnesses to be called at trial so that I
can qualify this jury with some decree of accuracy and pursuant to the law."
Powers contends this ruling conflicts with our holdings in State v. Miller, 289
S.C. 316, 345 S.E.2d 489 (1986) and State v. Hall, 268 S.C. 530, 235 S.E.2d
112, 114 (1977). We disagree.
In Miller, we held it is error to require, prior to trial, that the
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STATE v. POWERS
defendant supply the state with a list of his witnesses.2In Hall, 268 S.C.
530, 235 S.E.2d 112, 114 (1977), we held a defendant is not required to
announce in advance the nature of his defense. Miller and Hall are
inapposite. Here, Powers was not required to reveal, as a matter of pretrial
discovery, his witness list to the state, nor was he required to announce the
nature of his defense. He was merely required at the outset of trial to
disclose his witnesses to the court for purposes of jury selection.
It is the duty of the trial judge to see that a jury of unbiased, fair and
impartial persons is impaneled. State v. Matthews, 291 S.C. 339, 353 S.E.2d
444 (1986); State v. Caldwell, 300 S.C. 494, 388 S.E.2d 816 (1990). The
determination of whether a juror is qualified to serve on a death penalty case
is within the sole discretion of the trial judge and is not reversible on appeal
unless wholly unsupported by the evidence. State v. Plemmons, 286 S.C. 78,
332 S.E.2d 765 (1985), vacated on other grounds, 476 U.S. 1102, 106 S.Ct.
1943, 90 L.Ed.2d 353 (1986); State v. Spann, 279 S.C. 399, 308 S.E.2d 518
(1983).
Although we have not previously addressed this issue, other courts have
mandated a defendant divulge his witness list prior to voir dire of the jury.
See State ex rel Hill v. Reed, 483 S.E.2d 89 (W.Va. 1996) (lower court acted
within its discretion in ordering state and petitioner to provide the court with
a list of witnesses on the first day of trial prior to voir dire of jury); People
v. Cangiano, 502 N.Y.S.2d 349 (1986) (disclosure of prospective witnesses is
required to determine whether any prospective juror is related to or knows
any one of them and may be challenged for cause3, and disclosure
immediately prior to jury selection cannot prejudice defense absent
extraordinary circumstances); State v. Ussery, 416 S.E.2d 610 (N.C. 1992)(no
abuse of discretion in requirement that defendant divulge potential witnesses
for voir dire purposes); People v. Perry, 569 N.E.2d 287 (111. App. 1991); Com.
v. Larsen, 682 A.2d 783 (Pa. 1996). See also Mau v. North American
Asbestos Corporation, 509 N.E.2d 112 (Ill. App. 1987) (list of witnesses is not
"work product" and statute limiting disclosure of witnesses applied only to
pretrial discovery). We find the trial court acted within its discretion in
2Miller dealt with former Circuit Court rule 103, now Rule 5,
SCRCrimP. Rule 5 is inapplicable here; it deals with pre-trial discovery of
documents in a criminal case; it does not address disclosure of witness lists
during voir dire for purposes of jury selection.
3Notably, in the present case, the trial court struck one juror for cause
after the defense disclosed its witnesses.
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STATE v. POWERS
requiring disclosure of Powers' witness list during jury selection.
3. ESTOPPEL TO SEEK DEATH PENALTY
Powers next asserts the trial court erred in denyin4 his motion to estop
the state from seeking the death penalty where it failed to serve him with
a "Notice of Intent To Seek The Death Penalty" for more than three years
after his indictment. We find no estoppel.
Powers' failure to raise a speedy trial motion precludes review of this
issue. State v. Burroughs, Op. No. 2726, S.C. Ct. App. filed Sept. 27, 1997
(Davis Adv. Sh. No. 28).
In any event, the only notice requirement for the state to seek the
death penalty is that the defendant be given 30 days notice prior to trial.
S.C. Code Ann. § 16-3-26(A) (Cum.Supp. 1996); State v. Young, 319 S.C. 33,
459 S.E.2d 84 (1995). Powers claims, citing Riggins v. Nevada, 504 U.S. 127,
112 S.Ct. 1810, 118 L.Ed.2d 479 (1992), that the jury "was entitled to see the
true demeanor of the defendant at the time that the crime was committed."
Riggins merely held that forced medication, during trial, denies a defendant
due process unless it is essential to medicate the defendant to enable him to
be tried. Riggins is inapplicable.
As Powers was given the notice required by section 16-3-26, the trial
court properly ruled the state was not estopped to seek the death penalty.
4. VICTIM IMPACT EVIDENCE
Powers next contends the trial court erred in failing to hold an in
camera hearing on the admissibility of the state's victim impact evidence.
We disagree.
This Court has never required an in camera hearing prior to admitting
victim impact evidence, and the cases implicitly recognize that such a hearing
is not necessary. See State v. Byram, _ S.C. _, 485 S.E.2d 360, 365
(1997). On the contrary, we have held it is within the trial judge's discretion
whether to rule on the admissibility of evidence prior to its being offered in
the regular course of the trial. State v. Bridges, 278 S.C. 447, 298 S.E.2d
212 (1982). We have also recognized that in all situations other than an
assault on the voluntariness of a confession, the granting of a motion for a
suppression hearing is a matter committed to the discretion of the trial judge.
State v. Patton, 322 S.C. 408, 472 S.E.2d 245 (S.C. 1996), citing United
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STATE v. POWERS
States v. Odom, 736 F.2d 104, 110 (4th Cir.1984). See also State v. Silver,
307 S.C. 326, 414 S.E.2d 813 (Ct.App.1992), aff'd as modified, 314 S.C. 483,
431 S.E.2d 250 (1993) (criminal defendant does not have an absolute right to
a pretrial, in camera hearing and ruling on an in limine motion to exclude
breathalyzer results in a DUI trial). We hold it is within the trial court's
discretion whether to hold an in camera prior to admitting victim impact
evidence.
Moreover, the victim impact evidence in this case was properly
admitted. The entirety of the evidence presented was the brief testimony of
Senn's daughter, Deborah, and his wife, Linnie. This testimony was well
within the parameters of previous cases of this state, and was permissible to
demonstrate Mr. Senn's uniqueness as a human being and the impact his
death had on his family. See State v. Rocheville, 310 S.C. 20, 425 S.E.2d 32,
cert. denied, 508 U.S. 978, 113 S.Ct. 2978, 125 L.Ed.2d 675 (1993) (victim
impact evidence served purpose of showing the specific harm committed by
the defendant and merely portrayed victims as unique individuals); Riddle v.
State, 314 S.C. 1, 443 S.E.2d 557, cert. denied, 513 U.S. 1003, 115 S.Ct. 518,
130 L.Ed.2d 424 (1994) (testimony of victim's stepdaughter regarding victim's
standing in the community, victim's grandchildren, and the impact the crime
personally had on stepdaughter was relevant to establish the victim as a
unique human being and to show specific harm committed by defendant);
State v. Ivey , _ S.C. _, 481 S.E.2d 125 (1997) (testimony of victim's
mother that victim pled for his life and that his death was useless held
permissible). We find no error.
5. COLOR PHOTOGRAPHS
Powers next asserts 6 color photographs admitted at the sentencing
phase of his trial were so gruesome and prejudicial as to require reversal.
We disagree.
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, supra; 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). 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. State v. Todd ' 290 S.C.
212, 349 S.E.2d 339 (1986). Photographs of the victim's body are admissible
in the sentencing phase of a capital trial to show the circumstances of the
crime and the character of the defendant. State v. Kornahrens, 290 S.C. 281,
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STATE v. POWERS
350 S.E.2d 180 (1986). The trial judge must balance the prejudicial effect of
the photographs against their probative value. However, the scope of the
probative value is much broader during the sentencing phase of a capital
trial. State v. Williams, 321 S.C. 327, 468 S.E.2d 626 (1996).
We have viewed the photos and, although they are not pleasant, they
depict the victim's body in substantially the same condition as Powers left it,
and are relevant to demonstrate the circumstances of the crime. The autopsy
photographs corroborate the pathologist's testimony describing the wounds
Victim received. Accordingly, we find the photos were properly admitted.
Powers contends, citing State v. Franklin, 318 S.C. 47, 456 S.E.2d 357
(1995), that photographs are admissible only to demonstrate an aggravating
circumstance in the case. We disagree. Although Franklin held certain color
photographs admissible because they served to demonstrate the aggravating
circumstance of torture, Franklin does not stand for the proposition that such
photographs may be admitted only to demonstrate an aggravating
circumstance. Such a holding would be contrary to the majority of this
Court's opinions addressing the admissibility of color photos at the sentencing
phase of a capital trial and finding them relevant and admissible so long as
they demonstrate the circumstances of the crime and the character of the
defendant, or they depict the victim's body in substantially the same
condition in which the defendant left it. State v. Tucker, supra, State v.
Williams, supra; State v. Komahrens; Riddle v. State 314 S.C. 1, 443 S.E.2d
557 (1994); State v. Gilbert, 277 S.C. 53, 283 S.E.2d 179 (1981). See also
State v. Shaw, 273 S.C. 194, 255 S.E.2d 799 (1979) (photographs depicting
postmortem abuse to victim's body properly admitted, not as additional
evidence in aggravation of punishment, but as evidence of the
circumstances of the crime and the characteristics of the individual
defendant). Accordingly, we find the photos were properly admitted.
6. VIDEOTAPE
Powers next asserts error in the admission of a videotape, at
sentencing, of the crime scene as police found it in the early morning hours
of Sept. 8, 1990. The videotape depicts Victim's body exactly as police found
it, and is not unduly gruesome. We find the videotape permitted the jury to
gain a true perspective of the scene precisely as Powers left it. Accordingly,
it was properly admitted. Accord State v. Kelley, 319 S.C. 173, 460 S.E.2d
368 (1995).
Moreover, unlike still photographs, the videotape allowed the jury to
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STATE v. POWERS
gain a dimensional viewpoint, accord Camargo v. State, 941 S.W.2d 404 (Ark.
1997); Flores v. State, 915 S.W.2d 651 (Tex. App. 1996) (generally, videotapes
give a more panoramic representation of the evidence than a still photograph
and, thus, may be more helpful to the jury than a still photo), and sheds
light on the violence done to the victim. See Williams v. State, 874 S.W.2d
369 (Ark. 1994) (videotape and photographs showed the nature and extent of
wounds which were relevant to showing the defendant's intent as could be
inferred from the type of weapon used, the manner of use, and the nature,
extent and location of wounds); Wellons v. State, 463 S.E.2d 868 (Ga. 1995)
(videotape showing location of body and murder scene was probative of
defendant's intent and mental state). See generally Allen, Admissibility of
Visual Recording, 41 A.L.R.4th 877, § 11(a) (1985). Admission of the
videotape was proper.
7. VOIR DIRE RE MITIGATING CIRCUMSTANCES
Powers contends, citing Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222
(1992), that he should have been permitted to ask prospective jurors their
opinion of various mitigating circumstances. We recently rejected an
identical contention in State v. David Claylon Hill, S.C. Sup. Ct. Op. No. 24803
(filed June 8,, 1998) (Davis Adv. Sh. No. 21 at 60) See also State v.
Patterson, 324 S.C. 5, 482 S.E.2d 760 (1997) (upholding trial court's
limitation of voir dire regarding mitigating circumstances).
As noted by our opinion in Hill, Morgan v. Illinois does not require the
questioning concerning specific mitigating factors. Morgan merely recognized
that a capital defendant may challenge for cause any prospective juror who
indicates he or she will automatically vote for death in every case.4Morgan
does not, however, stand for the proposition that a defendant is entitled to
open-ended inquiry regarding a prospective juror's sentiments on each and
every possible aggravating and mitigating circumstance. Other courts have
specifically rejected an identical contention. See State of North Carolina v.
Skipper, 446 S.E.2d 252, cert. denied 115 S.Ct. 953, 130 L.Ed.2d 895 (N.C.
1994) (holding that Morgan does not require a defendant to be permitted to
4Recently, in State v. Bennett, we reversed a sentencing phase
proceeding where a juror's response to voir dire indicated that if eleven other
jurors so voted, he would always go along with the majority and vote for a
sentence of death. Under these circumstances, we found he would
"automatically" vote for death such that he was not qualified. State v.
Bennett, Op. No. 24718, S.C. Sup. Ct. filed Dec. 1, 1997 (Davis Adv. Sh. No.
33).
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STATE v. POWERS
voir dire jurors regarding how they would be affected by evidence of mental
impairment, age, and other mitigating circumstances, since such questions
would "stake out" juror and pledge him to a future course of action; general
questions as to whether juror would consider mitigating circumstances as
charged by the judge are sufficient); State v. Wilson, 659 N.E.2d 292 (Ohio
1996) (Morgan does not require individual voir dire on separate mitigating
factors); State v. Kreutzer, 928 S.W.2d 854 (Mo. 1996).
Here, Powers was permitted to question jurors if they would consider
aggravating and mitigating circumstances as charged by the trial court; and
was specifically permitted to ask if they would consider age as a mitigating
circumstance if so charged by the judge. The trial court acted within its
discretion in limiting the scope of voir dire in this case. State v. Patterson,
supra (manner and scope of additional voir dire are matters within trial
court's discretion).
Powers remaining issues are affirmed pursuant to Rule 220(b), SCACR,
and the following authorities: Powers' Issue 4 (Notice of Prior Bad Acts)--
State v. Gaskins, 284 S.C. 105, 326 S.E.2d 132 (1985); State v. Plath, 277
S.C. 126Y 284 S.E.2d 221 (1981); Powers' Issue 5 (Polygraph)-- State v.
Pressley, 290 S.C. 251, 349 S.E.2d 403 (1986); State v. Coipeland, 278 S.C.
572y 300 S.E.2d 63 (1982); Powers' Issue 9 (Solicitor's closing)-- State v.
Franklin, 318 S.C. 47, 456 S.E.2d 357 (1995); State v. Bell, 302 S.C. 18, 393
S.E.2d 364 (1989).
CONCLUSION
Powers' convictions and sentences are affirmed. We have conducted the
proportionality review required by S.C. Code Ann. § 16-3-25(c) (1985). The
death sentence in this case is proportionate to that in similar cases and is
neither excessive nor disproportionate to the crime. State v. Wright, 322
S.C. 253, 471 S.E.2d 700 (1996); 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 f,.Ed.2d 1083 (1996).
AFFIRMED.
TOAL, MOORE, BURNETT , JJ., and Acting Associate Justice L. Henry
McKellar, concur.
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