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24718 - State v. Bennett

Davis Adv. Sh. No. 33
S.E. 2d


THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State, Respondent,

v.

Johnny O'Landis

Bennett, Jr., Appellant.

Appeal From Lexington County

Ralph King Anderson, Jr., Judge

Opinion No. 24718

Heard October 7, 1997 - Filed December 1, 1997

AFFIRMED IN PART; REVERSED IN PART.

Daniel T. Stacey, Chief Attorney, South Carolina

Office of Appellate Defense, 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.: Appellant, Johnny O'Landis Bennett (Bennett),

was convicted of murder, kidnaping, armed robbery and grand larceny. He

was sentenced to death for the murder, and consecutively sentenced to 25

years, and 5 years for armed robbery and larceny. We affirm the convictions

p. 13


STATE v. BENNETT

but reverse and remand for a new sentencing proceeding.

FACTS

The victim in this case, 24 year old Benton Smith (Victim), disappeared

on Tuesday, November 27, 1990. He was last seen leaving his residence in

the Happy Town area of Gaston, South Carolina with Bennett. The two left

in Victim's 1980 Toyota, en route to cash Victim's $147.00 unemployment

check. Victim cashed his check at 11:56 AM; this was the last time he was

seen alive. Bennett was seen driving Victim's automobile later that day; he

gave a number of items from Victim's car to friends.

Victim's car was subsequently found outside the school where Bennett's

mother worked. After giving a number of conflicting statements to police,

Bennett confessed to the murder,1 and led police to Victim's body near his

sister's home.

An autopsy revealed 70-75 stab wounds, primarily to Victim's head,

neck and upper back, inflicted with a Phillips head screwdriver. The cause

of death was internal bleeding or asphyxiation secondary to the stab wounds.

ISSUES2

1. Was Juror Number 137 improperly qualified?

2. Was Bennett denied of the opportunity to speak with the

Victim's father?

3. Was Bennett's character improperly placed into evidence by

the State?

4. Did the court erroneously charge the jury with respect to the

elements of armed robbery?

5. Did the state sufficiently prove the corpus delicti of the crime


1However, he maintained his innocence at trial.

2Although unnecessary to our decision today, we address a number of

the sentencing phase issues in order to prevent their recurrence at

resentencing.

p. 14


STATE v. BENNETT

of kidnaping independent of Bennett's statements to police?

6. Was the aggravating circumstance of torture properly

submitted to the jury?

7. Was Bennett deprived of the ability to make a religious

argument to the sentencing phase jury?

8. Did the court err in refusing to order the personnel records of

certain prison guards be disclosed to Bennett?

1. JUROR ROPER

At the end of the voir dire of Juror Number 137, the following

occurred:

Mr. Floyd: ... [D]o you understand that if -- if the jury were to

consider giving the defendant the death penalty, that all twelve

jurors would have to sign on that portion of the verdict concerning

the death penalty. Do you understand me on that?

A: I understand you.

Q: Now, if you had some reservations or doubt after hearing

everything as to whether or not the defendant should get the

death penalty and all eleven other jurors put their name on

the list, could you stand up to that and not put your name on

the list?

A: I believe I would have to go with the majority of the jury.

(Emphasis supplied). The state made no attempt at rehabilitation.

Defense counsel objected to the juror's qualification on the ground

Bennett would be denied an independent decision as to his punishment by

having a juror who would "go along with the majority." The trial court ruled

the juror qualified. Juror Number 137 was thereafter seated on the jury

after the defense had exercised all of its peremptory challenges. Bennett

contends the juror was erroneously qualified. We agree.

In a capital case, the proper standard in determining the qualification

of a prospective juror is whether the juror's views would prevent or

p. 15


STATE v. BENNETT

substantially impair the performance of his duties as a juror in accordance

with his instructions and his oath. State v. Green, 301 S.C. 347, 392 S.E.2d

157, cert. denied, 498 U.S. 881, 111 S.Ct. 229, 112 L.Ed.2d 183 (1990) (citing

Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 853, 83 L.Ed.2d 841

(1985)); State v. George, 323 S.C. 496, 476 S.E.2d 903 (1996), cert. denied__

U.S.__, 117 S.Ct. 1261, 137 S.E.2d 340 (1991). 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 reviewable on appeal unless

wholly unsupported by the evidence. State v. Davis, 309 S.C. 336, 422 S.E.2d

133 (1992), cert. denied, 508 U.S. 915, 113 S.Ct. 2355, 124 L.Ed.2d 263

(1993). When reviewing the trial court's qualification or disqualification of

prospective jurors, the responses of the challenged jurors must be examined

in light of the entire voir dire. State v. Green, supra. The ultimate

consideration is that the juror be unbiased, impartial and able to carry out

the law as explained to him. Id.

In Wainwright, supra, the United States Supreme Court rejected the

notion that a prospective juror in a capital case could only be challenged for

cause if it were demonstrated the juror "unequivocally stated she would

automatically be unable to give a death sentence," 469 U.S. at 419, 105 S.Ct.

at 849. More recently, the Court 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. Morgan v. Illinois, 504 U.S. 719,

112 S.Ct. 2222, 119 L.Ed.2d 492 (1992). "If even one such juror is impaneled

and the death sentence is imposed, the State is disentitled to execute

sentence." Id. at 729, 112 S.Ct. at 2231. The Morgan court rejected the

state's claim that general questions of fairness and impartiality were in all

cases sufficient to detect unqualified jurors, stating:

... such jurors could in all truth and candor respond affirmatively,

personally confident that such dogmatic views are fair and

impartial, while leaving the specific concern unprobed.

504 U.S. at 735.

Here, we find the juror's earlier generalized statements that he could

be fair and impartial and follow the law insufficient to cure his later,

unequivocal response that if the other eleven jurors voted for death, he would

"have to go with the majority of the jury." The juror's responses to the

general voir dire inquiry left uncovered the critical fact that he would not

have been "able to carry out the law as ... explained to him," State v. Green,

supra, but would, instead, have followed the majority. Accordingly, the trial

p. 16


STATE v. BENNETT

court's ruling that the juror qualified to serve is "wholly unsupported by the

evidence," and the case must be remanded for resentencing.3

2. VICTIM'S FATHER

Prior to trial, Victim's father, Paul Smith, advised defense counsel he

had been told by the solicitor not to talk to the defense. Bennett claims this

resulted in a due process violation. We disagree.

According to co-counsel for Bennett, they went to Smith's house on

August 10, 1995,4 and asked to speak to him about the case; Smith replied

that the last time this case had come up for trial, sometime in 1993, he had

been instructed by several attorneys at the solicitor's office to say he had no

comment about the case. At a hearing before the trial court on Aug. 17,

1995, the solicitor advised that nobody in his office had authorization to

advise Smith not to talk to the defense. The solicitor then suggested that he

could get the Smith family in his office, advise them in defense counsel's

presence that they could talk to the defense, and that if anyone from the

solicitor's office had ever advised them differently to disregard it. After

hearing testimony from defense counsel, the court issued an order on August

17, 1995 which was disseminated to the clerk of court and defense counsel.

The order provides that any witness has the absolute right to talk or not talk

to a person and that the decision is to be made by the witness. The order

provides that it is to be disseminated to any witness.

The trial in this case did not begin until nearly two months later, on

October 9, 1995. There is absolutely no indication in the record that defense

counsel sought to speak with Mr. Smith during this two month period.

Accordingly, it is possible that, had counsel attempted to do so, Smith may

have consented to talk to the defense. Having made no such showing,

Bennett has failed to demonstrate substantial interference with his right to

speak with Smith. See State v. Williams, __S.C. __, 485 S.E.2d 99

(1997)(where government improperly interferes with witnesses right to talk


3Juror Number 137's responses in no way reflect upon his ability to

serve in the guilt phase of the trial, nor does Bennett suggest the juror was

disqualified in that regard. On the contrary, in his brief and at oral

argument before this Court, Bennett sought only a resentencing in this

regard. Accordingly, our holding on this issue has no impact on the guilt

phase of the trial.

4The trial in this case was scheduled to begin on October 9, 1995.

p. 17


STATE v. BENNETT

with defense, defendant must demonstrate both substantial interference and

prejudice in order to obtain relief).

Moreover, the present record demonstrates no prejudice. Contrary to

Bennett's contention, Smith's testimony was not "critical" but was, rather,

cumulative to other testimony in the record. State v. McLeod, 303 S.C. 420,

401 S.E.2d 175 (1991) overruled in pt. on other grnds, State v. Evans, 307

S.C. 477, 415 S.E.2d 816 (1992); State v. Galloway, 305 S.C. 258, 407 S.E.2d

662 (Ct. App. 1991) (no prejudice to defendant where testimony is cumulative

to other evidence in the record). We find no error.

3. EVIDENCE OF BENNETT'S CHARACTER

Bennett next contends the State improperly introduced testimony which

reflected upon his character. We disagree.

At trial, Bennett denied killing Victim and claimed the last time he had

seen him, Victim was with their mutual friends, Tommy Furtick, Andre

Haskins and Isadore Mack. He claimed he had seen Victim alive on

Thursday morning. In reply, the state presented the testimony of Isadore

Mack who denied having seen Victim on Tuesday, Wednesday or Thursday.

During his questioning, Mack testified he, Furtick and Haskins had run into

Bennett on Wednesday, Nov. 28, 1990 (the day after Victim disappeared) and

they all went to an Orangeburg motel. Mack testified that the next morning,

the four of them went back to Swansea. He was then questioned whether

the four of them had gotten separated, in Swansea, when the following

exchange occurred:

A. Yeah, we got separated. We -- some guys stopped us and --

Q. Okay, don't tell me what some other guys said ... tell what

you did as a result of your conversation with the other fellows.

A. We -- we gave him some drugs and told him to stand on the

corner and sell these until we get back.

Q. Talking about who.

A. Johnny.

Mr. Floyd. Objection, Your Honor. We object.

Mr. Humphries: Your Honor, They've opened that door. You've

already discussed that prior.

Court. Well, proceed from this point. Let's go forward.

Bennett claims Mack's testimony improperly placed his character in issue.

We disagree.

p. 18


STATE v. BENNETT

As an initial matter, Bennett's objection to the question is too vague to

preserve any issue for review. State v. Bailey, 253 S.C. 304, 170 S.E.2d 376

(1969); 4 C.J.S. Appeal and Error § 215 (1993)(trial judge commits no error

in overruling general objection). Here, as Bennett stated no grounds for his

objection, there is nothing for this Court to review.

In any event, we find Mack's testimony was relevant to rebut earlier

testimony elicited of Bennett's girlfriend, Bonita Gonsalves. Gonsalves

testified that on the day of Victim's disappearance, Bennett came to her

house driving Victim's vehicle. He had bandages on his hand and when

questioned about them, he told Gonsalves he had been in a fight with

someone who had given her drugs. The clear inference to be drawn from

Gonsalves' testimony was that Bennett was opposed to drugs. Mack's reply

testimony implying that Bennett was not as adamantly opposed to drugs as

claimed by Gonsalves was therefore within realm of permissible reply. State

v. Doby, 273 S.C. 704, 258 S.E.2d 896 (1979); State v. Outen, 237 S.C. 514,

118 S.E. 2d 175, cert. den., 366 U. S. 977, 81 S.Ct. 1948, 6 L.Ed.2d 1266

(1961), overruled in part on other grds. State v. Torrence, 305 S.C. 45, 406

S.E.2d 315 (1991).

4. ARMED ROBBERY

In charging the jury on implied malice necessary to sustain a murder

conviction, the trial court stated that "if one intentionally kills another with

a deadly weapon, the implication of malice may arise." Immediately,

thereafter, he defined a deadly object as.follows:

Under the law of the state of South Carolina, an object not

normally considered a dangerous or deadly object may under

some circumstances be used in a fashion or in such a manner as

to constitute a dangerous or deadly object. It is for you, the jury,

to determine and decide in this case beyond a reasonable doubt

whether a deadly or dangerous object was used.... Under the law

of the state of South Carolina, the hand or fist of a person is

not normally considered a dangerous or deadly object, but

under some circumstances a hand or fist of a person may be

used in such a fashion or in such a manner to constitute a

dangerous or deadly object.

(Emphasis supplied). Thereafter, in charging the jury on the offense of

armed robbery, the court noted that any person convicted of the crime of

robbery while armed with a deadly weapon is guilty of armed robbery. See

p. 19


STATE v. BENNETT

S.C. Code Ann. § 16-11-330. The court noted that to commit armed robbery,

the robbery must have been committed with a deadly weapon and stated,

"Heretofore, I have defined for you in detail what a deadly object or deadly

weapon is."

Bennett contends the court erred in charging the jury that a hand or

fist could, under some circumstances, be considered a deadly weapon for

purposes of armed robbery. He contends that, unlike murder, a hand or fist

may not be considered a deadly weapon for purposes of armed robbery.5

As an initial matter, we note that Bennett's objection at trial does not

encompass his present argument. Counsel's only objection to the charge

given, as it related to both murder and armed robbery, was that the judge's

use of the term "deadly object" was confusing and that the court should have

used the term "deadly weapon." At no point did Bennett contend a hand or

fist could not be considered a deadly weapon for purposes of armed robbery.

Bennett's current argument is clearly not encompassed in his objection to the

trial court's instructions; accordingly, this issue is unpreserved. State v.

Hudgins, 319 S.C. 233, 460 S.E.2d 388 (1995), cert. denied__ U.S. __, 116

S.Ct. 821, 133 L.Ed.2d 764 (1996)(party may not argue one ground below

then argue different ground on appeal); State v. Bailey, 298 S.C. 1, 377

S.E.2d 581 (1989). In any event, however, we find no error in the trial

court's charge under the circumstances of this case.

There is a split of authority in other jurisdictions as to whether or not

hands, fist, teeth, and the like may be considered deadly weapons for

purposes of offenses such as assault and robbery. See generally Vitauts

Gulbis, Annotation, Parts of the Human Body, Other than Feet, As Deadly

or Dangerous Weapons For Furposes of Statutes Aggravating Offenses such

as Assault and Robbery, 8 A.L.R. 4th 1268 (1981). Under the law of this

state, and the facts of this case, however, we find the trial court properly

charged the jury.

A deadly weapon is generally defined as any article, instrument or

substance which is likely to produce death or great bodily harm. State v.

Scurry, 322 S.C. 514, 473 S.E.2d 61 (Ct. App. 1996); State v. Campbell, 287

S.C. 377, 339 S.E.2d 109 (1985). The question of whether an instrument


5He makes the same contention with respect to the aggravating

circumstances of robbery while armed with a deadly weapon and larceny

while armed with a deadly weapon, both of which were submitted to the

sentencing phase jury.

p. 20


STATE v. BENNETT

used in the commission of a robbery qualifies as a deadly weapon, thereby

qualifying the incident as armed robbery, is a factual determination for the

jury. State v. Gourdine, 322 S.C. 396, 472 S.E.2d 241 (1996); State v. Tasco,

292 S.C. 270, 356 S.E.2d 117 (1987).

Although we have not specifically addressed whether a hand or fist may

be considered a deadly weapon for purposes of-armed robbery, we have held,

in the context of murder, that a hand or fist may be considered a deadly

weapon. depending on the factual circumstances. "Whether an object has

been utilized as a deadly weapon depends upon the facts and

circumstances of each case." State v. Davis, 309 S.C. 326, 422 S.E.2d 133

(1992) (emphasis supplied). Although Davis was a murder case, nothing in

our opinion limits its application to murder.6

We find the factual circumstances of this case sufficient to submit the

issue to the jury. In one of his statements to police, Bennett admitted he

had struck Victim in the jaw hard enough to knock him unconscious.

Additionally, there is evidence that the blow to the chin suffered by Victim

was typical of that found in people who die in prize fights, and that it could

have caused a fatal concussion. Moreover, given the disparity of size between

the Victim and Bennett (Victim was 5'8" tall and weighed 135 pounds;

Bennett is 6'5" tall and weighs approximately 235-240 pounds), we hold that

it was for the jury to determine whether the hand or fist was a deadly

weapon.

Finally, even were we to hold that hands or fists may not be deemed

deadly weapons for purposes of armed robbery, Bennett suffered no prejudice

in this case. It is undisputed that Victim was stabbed some 70-75 times

with a Phillips head screwdriver, and Bennett raises no contention that the

screwdriver was not a deadly weapon. In State v. Keith, 283 S.C. 597, 325

S.E.2d 325 (1985), this Court held that when a defendant commits robbery

without a deadly weapon, but becomes armed with a deadly weapon before

asportation of the victim's property, a conviction for armed robbery will stand.


6We decline to limit the application of Davis in such a manner as to

produce the incongruous result of permitting a jury to find that a hand may

constitute a deadly weapon for purposes of the greater offense of murder, but

could not be a deadly weapon for purposes of armed robbery. Similarly, we

decline to permit the untenable result that a toy which is incapable of

producing bodily injury may be deemed a deadly weapon by the jury, and yet

a hand or fist, in circumstances in which it may inflict great bodily injury or

death, may not. See State v. Tasco, 292 S.C. 270, 356 S.E.2d 117 (1987).

p. 21


STATE v. BENNETT

Here, in light of the fact that the Victim was stabbed some 75 times, it is

inescapable that the perpetrator became armed prior to asportation of his

property. Accordingly, any error resultant from the charge is harmless

beyond a reasonable doubt, as the jury would necessarily have found armed

robbery from the use of the Phillips head screwdriver. Arnold and Plath v.

State, 309 S.C. 157, 420 S.E.2d 834 (1992), cert. denied, 507 U.S. 927, 113

S.Ct. 1302, 122 L.Ed.2d 691 (1993) (error is harmless beyond a reasonable

doubt where it did not contribute to the verdict obtained).

5. CORPUS DELICTI OF KIDNAPING

Bennett next asserts error in the denial of his motion for a directed

verdict on the kidnaping charge as the state failed to prove the corpus delicti

of the crime independent of his statement. We disagree.

The corpus delicti of kidnaping may be proved by circumstantial

evidence. State v. Davis, 309 S.C. 326, 422 S.E.2d 123 (1992); State v.

Owens, 291 S.C. 116,352 S.E.2d 474, cert. denied, 484 U.S. 982, 108 S.Ct.

496, 98 L.Ed.2d 495 (1987). Kidnaping is a continuing offense. The offense

commences when one is wrongfully deprived of freedom and continues until

freedom is restored. State v. Hall, 280 S.C. 74, 310 S.E.2d 429 (1983) (citing

State v. Zeigler, 274 S.C. 6, 10, 260 S.E.2d 182, 184 (1979)).

Here, the only direct evidence Victim was seized, confined, or carried

away came from Bennett's own statement that he had knocked Victim

unconscious then put him in the car and drove him to the ballfield in

Swansea.7 However, the pathologist testified that one of the blows to the chin

may have rendered Victim unconscious. Additionally, the Victim had

numerous defensive wounds on his hands, and his body was found in a

remote location buried in the woods behind Bennett's sister's house. Further,

Victim's automobile was found parked in a school parking lot where Bennett's

mother worked, some distance from the body. Moreover, there was testimony

that Victim was very possessive of his automobile and did not allow others

to drive it. Although circumstantial, a jury could have inferred from this

evidence that either Victim was forcibly taken to the woods, or that he was,

at some point, confined (as is evidenced by the defensive wounds), and later

taken to the woods. Accordingly, we find it is sufficient circumstantial

evidence to warrant submission of the kidnaping charge to the jury. State


7Bennett does not contest the sufficiency of this evidence to prove

kidnaping; he merely claims his statement is not corroborated by any other

evidence.

p. 22


STATE v. BENNETT

v. Butler, 277 S.C. 452, 290 S.E.2d 1, cert. denied, 459 U.S. 932, 103 S.Ct.

242, 74 L.Ed.2d 191 (1982) (aggravating circumstance is properly submitted

to jury if supported by any direct or circumstantial evidence); cf. State v.

Copeland, __ S.C.__, 468 S.E.2d 620 (1996) (circumstantial evidence of

manner of victim's disappearance, coupled with victim's unlikely voluntary

departure as evidence by his personal habits and relationships, sufficient to

establish corpus delicti of murder).

6. TORTURE

Bennett next asserts the aggravating circumstance of torture was

improperly submitted to the jury. We disagree.

In determining whether to submit an aggravating circumstance to the

jury, the trial court is concerned only with the existence of evidence, not its

weight. State v. Smith, 298 S.C. 482, 381 S.E.2d 724 (1989), cert. denied 494

U.S. 1060, 110 S.Ct. 1536, 108 L.Ed.2d 775 (1990). The aggravating

circumstance is properly submitted if supported by any direct or

circumstantial evidence. State v. Butler, supra.

In State v. Elmore, 279 S.C. 417, 308 S.E.2d 781 (1983), overruled in

part on other grounds, State v. Torrence, supra, this Court held that physical

torture occurs when a person is subject to "serious physical abuse" and

"aggravated battery." See also State v. Smith, 298 S.C. 482, 381 S.E.2d 724

(1989), cert. denied, 494 U.S. 1060 (1990) (physical torture occurs when the

victim is intentionally subjected to serious physical abuse prior to death).

Here, the evidence adduced during the guilt and sentencing phases revealed

that Victim had been stabbed in the head, back and neck some 70-75 times

with a Phillips head screwdriver. The defensive wounds tended to indicate

Victim was conscious at least through a portion of the attack, and there was

testimony that most of the wounds were inflicted before death. Dr. Sexton

testified that Victim could have lived between 3-15 minutes after the stab

wounds were inflicted. This is clearly sufficient evidence from which the jury

could have found Victim was intentionally subjected to serious physical abuse

prior to death.

Contrary to Bennett's assertion, the mere fact that the state's

pathologist testified this was not a "typical" case of torture is simply not

dispositive of the issue; the pathologist specifically testified that the multiple

injuries here could "in a sense" be interpreted as torture and that each of the

superficial wounds would have been painful. Further, although he testified

that the individual inflicting the wounds likely did not intend for the wounds

p. 23


STATE v. BENNETT

to constitute torture, they may have been interpreted that way by Victim.

We find the aggravating circumstance of torture was properly submitted to

the jury.

7. RELIGIOUS ARGUMENT TO JURY

During his pro se statement to the sentencing jury, Bennett stated:

BENNETT: Like I said, I've changed and I'm not going go sit

here and try to persuade you one way or the other in the ways

I have changed because that's between me and God and I'm not

afraid to die. Never was and never will be because I know when

I do leave here, its not going to be man passing the judgment on

me. It's going to be my God the Almighty creditor [sic] Himself

and God says vengeance is mine ---

SOLICITOR: Objection. He's going outside the evidence now,

Your Honor.

COURT: Stay within the record, Mr. Bennett.

BENNETT: But like I say, either way it goes, whatever you

decide, I can adapt .... I have adapted for five years and one day

this all is going to be over. It's all going to be behind me and

the judgment that you pass upon me now it's going to be

reversed. I mean, I'm not threatening you. It's something that

I believe in because I know that my God is for me and no man

can be against me and one day me and my family -- oh yeah, we

will walk out of here again hand-in-hand.

Bennett contends he was deprived of the right to make a religious argument

to the jury. We disagree.

The record clearly demonstrates that Bennett did, in fact, make his

religious argument to the jury. Accordingly, he has failed to demonstrate any

prejudice from the trial court's ruling. State v. Torrence, 305 S.C. 45, 406

S.E.2d 315 (1991) (no prejudice resultant from trial court's ruling where

witness is able to make point before the jury); State v. McDowell, 266 S.C.

508, 224 S.E.2d 889 (1976) (trial court's limitation of argument to jury did

not deprive defendant's ability to make point).8


8Since Bennett was able to make his religious point, we need not

address whether such argument would, in fact, be permissible before the jury.

p. 24


8. PERSONNEL RECORDS

At sentencing, Bennett sought disclosure of the personnel records of a

number of guards from the Lexington County Detention Center on the theory

they may have contained information with which he could have impeached

certain witness. The trial court ordered portions of the records disclosed, but

declined to release the remainder of the records, ordering them sealed for this

Court's review.

We have thoroughly reviewed the records sealed to this Court. Our

review reveals no relevant evidence which Bennett could have used for

impeachment purposes. Accordingly, the trial court committed no error in

refusing disclosure of these files.

Bennett's remaining issues are affirmed pursuant to Rule 220(b)(1),

SCACR and the following authorities: Bennett's Issue 8: State v. Kornahrens,

290 S.C. 281, 350 S.E.2d 180 (1986) cert. denied 480 U.S. 940, 107 S.Ct.

1592, 94 L.Ed.2d 781 (1987); State v. Franklin, 318 S.C. 47, 456 S.E.2d 357,

cert. denied 116 S.Ct. 160, 133 L.Ed.2d 103 (1995); State v. Williams, 321

S.C. 327, 468 S.E.2d 626, cert. denied, __ U.S. __, 117 S.Ct. 230, 136

L.Ed.2d 161 (1996); Bennett's Issue 10: State v. Byram, __ S.C. __, 485

S.E.2d 360 (1997); State v. Whipple, __S.C.__ , 476 S.E.2d 683, cert.

denied __ U.S. __, 117 S.Ct. 618, 136 L.Ed.2d 541 (1996); State v. Young,

319 S.C. 33, 459 S.E.2d 84 (1995), cert. denied 116 S.Ct. 718, 133 L.Ed. 2d

671 (1996); Bennett's Issue 12: Bozeman v. State, 307 S.C. 172, 414 S.E.2d

144 (1992); see also State v. Motley, 251 S.C. 568, 164 S.E.2d 569 (1968).

CONCLUSION

We affirm Bennett's convictions and the sentences imposed for armed

robbery and larceny. The sentence of death is reversed and remanded for a

new sentencing proceeding.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED

FOR RESENTENCING.


But see generally Bennett v. Angelone, 92 F.3d 1336 (4th Cir.), cert. denied,

__U.S.__, 117 S.Ct. 503, 136 L.Ed.2d 395 (1996) (recognizing federal and

state courts which have condemned such arguments).

p. 25


TOAL, MOORE, BURNETT, A.J., and Acting Associate Justice

George T. Gregory Jr, concur.

p. 26