THE STATE OF SOUTH CAROLINA
In The Supreme Court
John Babe Ray, Jr., Petitioner,
State of South Carolina, Respondent.
ON WRIT OF CERTIORARI
Appeal From Spartanburg County
Gary E. Clary, Judge
Opinion No. 24774
Heard October 4, 1995 - Filed March 23, 1998
Assistant Appellate Defender Robert M. Pachak, of S. C. Office
of Appellate Defense, of Columbia, for petitioner.
Attorney General Charles Molony Condon, Chief Deputy
Attorney General Donald J. Zelenka, Senior Assistant Attorney
General Harold M. Coombs, Jr., and Assistant Attorney
General William Edgar Salter, III, all of Columbia; and
Solicitor Holman C. Gossett, Jr., of Spartanburg, for
PER CURIAM: This is a death penalty case. Petitioner1 raises two
certiorari. Petitioner's trial attorneys neglected to file a timely appeal,
issues on certiorari from his resentencing, one relating to the admission of
certain photos and the second to the sufficiency of the evidence of the
aggravating circumstance of kidnapping. We consider those issues,
conduct the review mandated by S.C. Code Ann. § 16-3-25 (C) (1985), and
Petitioner Ray pled guilty2 to murder and to unrelated charges
of armed robbery, assault and battery with intent to kill (ABIK), first
degree burglary, and grand larceny in 1991. The State sought the death
penalty on the murder charge. After a hearing, the judge imposed a death
sentence, finding kidnapping as the aggravating circumstance. Ray
received consecutive sentences on the unrelated crimes. Ray appealed only
his murder plea and sentence.
On appeal, this Court affirmed the murder conviction but
reversed and remanded for resentencing. State v. Ray , 310 S.C. 431, 427
S.E.2d 171 (1993). On remand, Ray was again sentenced to death by the
circuit judge sitting without a jury. This writ followed.
Petitioner and several other individuals engaged in a course of
criminal conduct, among other things stealing guns which they secreted in
a barn. The victim, Josylin Ballenger, was a teenage girl who dated one
of the men involved in the crime spree. Petitioner and others in the group
suspected the victim was about to turn them in to the police. Late one
evening, petitioner, the victim, and several others were gathered at the
barn when petitioner shot the victim in her side.
The people at the barn agreed to take the victim, who
remained conscious, to the hospital emergency room. Petitioner got in the
back of the victim's pickup truck, and the victim got in the back and
leaned against him. Petitioner and the truck's driver had several
conversations through the truck cab's sliding window on the way to the
hospital, and at one point the truck stopped and someone (either petitioner
or the driver) made a quick phone call. A passenger in the bed of the
truck testified that shortly after the phone call, the truck drove past the
2 Pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d
highway exit leading to the hospital, and proceeded towards a rural area.
As the truck turned onto a dirt road, petitioner began to choke the victim
with a length of cord taken by him from the barn.
When the truck stopped at an isolated junkyard, petitioner
began to beat and kick the victim. He then took a knife and stabbed her
at least four times, the last time so deeply that he had to use both hands
to pull it out. Petitioner licked the blood off the knife blade, made a
sexual reference, and said, "I want to do somebody else. You get as much
time for killing a hundred as you do for killing one." Petitioner and the
driver dumped the victim's body head first into an abandoned well, and
debris was thrown in on top of her. Petitioner then attempted to shoot
one of the eyewitnesses whom he believed had exhibited signs of faint-
heartedness during the murder, but the gun jammed.
Petitioner first contends he was deprived of a fair sentencing
proceeding because the State was permitted to introduce five color photos
of petitioner's ABIK victim and eleven color autopsy photos of the victim.
We find no reversible error under the circumstances of this resentencing
Petitioner's crime spree commenced when he and several other
young men assaulted and robbed Glen Sellars. Petitioner and the others
beat Mr. Sellars in the head with nightsticks and fists to the point that
witnesses at the scene saw Sellars' exposed brain. The evidence showed
that during the assault petitioner bit off Sellars' ear, and several of
Sellars' teeth were knocked out. It took over 100 stitches to close his head
wounds, his jaws were wired shut, and Mr. Sellars spent at least seven
days in the hospital. The photos admitted at the resentencing, taken at
the hospital the day after the beating, are shocking and illustrate a savage
beating. On the other hand, the autopsy photos at issue depict the
victim's body in a "cleaned-up state", and allowed the pathologist to
illustrate his testimony regarding the victim's pre- and peri-mortem
The general rules governing the admission of photographs in a
criminal trial are clear. It is well established that photographs are
relevant to show both the circumstances of the crime and the defendant's
character, and are admissible in a sentencing proceeding unless unfairly
prejudicial. State v. Franklin, 318 S.C. 47, 456 S.E.2d 357 (1995); State
v. Shaw, 273 S.C. 194, 255 S.E.2d 799 (1979). Unfair prejudice exists
where the photos tend to suggest the penalty decision should be based on
an improper basis such as emotion. State v. Franklin, supra.
We conclude the autopsy photos are not inflammatory, were
illustrative of the forensic testimony, and were properly admitted. State v.
Franklin, supra. We are somewhat troubled by the gory photos of Mr.
Sellars. Evidence of other crimes committed by the defendant is
admissible at the sentencing phase of a capital trial. There is neither an
assertion, nor any evidence, that this judge was improperly influenced by
the photographs. We find no reversible error under these circumstances.
Petitioner next argues there was insufficient evidence that the
murder was committed in the course of a kidnapping. Since kidnapping
was the sole aggravating circumstance upon which the State relied in
seeking the death penalty, petitioner contends the judge should have
directed a sentence of life imprisonment. We disagree.
The victim was inveigled into getting in the truck under the
pretense she was being taken to the hospital. Petitioner's intent not to
take her to the hospital is evidenced by his taking the rope from the barn
before they left. This conduct constituted kidnapping under S.C. Code Ann.
§16-3-910 (Supp.1994). At the latest, the kidnapping occurred when they
passed the last exit to the hospital. The "directed verdict" was properly
denied. State v. Plath, 281 S.C. 1, 313 S.E.2d 619 (1984).
We have reviewed petitioner's sentence pursuant to S.C. Code
Ann. §16-3-25 (C) (1985). We find the evidence supports the statutory
aggravating circumstance of kidnapping, and that the sentence is not the
result of passion, prejudice or any other arbitrary factor. Further, we find
the death sentence here is proportional to that imposed in State v. Owens,
293 S.C. 161, 359 S.E.2d 275 (1987); State v. Koon, 285 S.C. 1, 328 S.E.2d
625 (1984); and to that imposed on appellant Arnold in State v. Plath,
supra. Accordingly the sentence is