THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
Willie Hicks, Appellant.
Appeal From Aiken County
Henry F. Floyd, Judge
Opinion No. 24784
Heard February 4, 1998 - Filed April 27, 1998
Deputy Chief Attorney Joseph L. Savitz, III, of
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, all of
Columbia; and Solicitor Barbara R. Morgan, of
Aiken, for respondent.
BURNETT, A.J.: Appellant was convicted of murder,
kidnaping, armed robbery, and possession of a firearm or knife during the
commission of a violent crime. He was sentenced to death for murder,
plus thirty years for kidnaping, twenty-five years for armed robbery, and
five years for possession of a firearm or knife during the commission of a
I. Did the trial judge err in determining appellant used two of
his peremptory strikes in a racially discriminatory manner in
violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712,
90 L.Ed.2d 69 (1986), and Georgia v. McCollum, 505 U.S. 42,
112 S.Ct. 2348, 120 L.Ed.2d 33 (1992)?
II. Did the trial judge err by permitting Detective Courtney to
testify charges against Simpkins had been dismissed after
interviews with numerous other individuals when those
individuals did not testify at trial?
III. Did the trial judge given erroneous jury instructions during
the sentencing phase of trial?
During selection of the original jury panel, appellant, who is
black, exercised nine of his peremptory strikes to remove white prospective
jurors and one peremptory strike to remove a black prospective juror from
the panel. The State made a motion for a Batson hearing.
Appellant explained he struck Juror #18 and Juror #25 "to
reach some jurors further down the list."1 Appellant noted, while this
explanation had previously been found unacceptable,2 here the parties
were striking the jurors in order of their qualification, not at random. He
stated, if the jurors had been drawn from the entire qualified venire, he
would not have struck Jurors #18 and #25. The trial judge ruled the
explanation was unacceptable and ordered a re-strike.
The parties agreed to resume striking the jurors at Juror #18.
Ultimately, Juror #18 was seated on the jury and Juror #25 was seated as
the first alternate. Juror #27, one of the original panel members, was
other eight jurors were racially neutral.
2 See State v. Grandy, 306 S.C. 224, 411 S.E.2d 207 (1991).
seated as the second alternate. Neither of the alternate jurors
participated in the jury's deliberations.
Appellant argues the trial Judge erred in ruling his explanation
for striking Jurors #18 and #25 was not race-neutral. We disagree
The Equal Protection Clause of the Fourteenth Amendment to
the United States Constitution prohibits the State from striking a
venireperson on the basis of race. Batson v. Kentucky, supra. In
addition, "the Constitution prohibits a criminal defendant from engaging in
purposeful discrimination on the ground of race in the exercise of
peremptory challenges." Georgia v. McCollum, supra U.S. at 59, S.Ct. at
2359. L.Ed.2d at 51.
At the time appellant's jury was selected,3 a Batson hearing
was conducted in the following manner: 1) the opponent of the
peremptory strike requested a Batson hearing; 2) the party exercising the
peremptory challenge was required to present an explanation which was
racially neutral, related to the case to be tried, clear and reasonably
specific, and legitimate. If the explanation did not satisfy these criteria,
the trial judge could find a Batson violation and quash the jury panel; 3)
if the explanation did meet these criteria, the opponent of the strike had
the burden of proving the allegedly neutral explanation was pretextual.
See State v. Chapman, 317 S.C. 302, 454 S.E.2d 317 (1995); State v. Dyar,
317 S.C. 77, 452 S.E.2d 603 (1994); State v. Green 306 S.C. 94, 409
S.E.2d 785 (1991), cert. denied 503 U.S. 962, 112 S.Ct. 1566, 118 L.Ed.2d
212 (1992). State v. Tomlin, 299 S.C. 294, 384 S.E.2d 707 (1989).
In State v. Grandy, 306 S.C. 224, 411 S.E.2d 207 (1991), the
solicitor exercised a peremptory strike to exclude a black person from the
juy. The solicitor stated the reason for striking the prospective juror was
"to seat other venirepersons who had not yet been presented." The trial
judge ruled the reason was race-neutral; he did not require the defendant
to establish pretext. On appeal, this Court concluded to the contrary:
[T]he solicitor failed to articulate a racially neutral explanation
adopted the Batson procedure set forth in Purkett v. Elem, 514 U.S. 765,
115 S.Ct. 1769., 131 L.Ed.2d 834 (1995). Adams was filed on April 29,
1996, one week after the jury selection in the present case began.
in his assertion that he excluded the prospective black juror
because he wanted to seat other venirepersons. Additionally,
the solicitor did not give any reason why it was desirable to
have other venirepersons seated, as opposed to the black juror.
The effect was the same as if no reason was given for striking
the black juror. His explanation was neither clear, reasonably
specific nor legitimate.
306 S.C. at 227-28, 411 S.E.2d at 209.
Quoting Batson, the Court stated:
[T]he prosecutor [could not] rebut the defendant's case merely
by denying that he had a discriminatory motive or affirming
his good faith in making individual selections. If these general
assertions were accepted as rebutting a defendant's prima facie
case, the Equal Protection Clause would be but a vain and
306 S.C. at 227, 411 S.E.2d at 208.
The trial court properly determined appellant did not offer a
clear, reasonably specific or legitimate reason for striking Jurors #18 and
#25. Although he could anticipate which jurors would be seated, appellant
offered no explanation as to which jurors he was attempting to seat or
why other jurors were more desirable than Jurors #18 ind #25.4 "The
effect was the same as if no reason was given for striking the [white]
juror[s]." Id. Even though the jury selection method may have been
different than in Grandy, appellant's explanation is no more persuasive
than the prosecutor's explanation in Grandy. Accordingly, we affirm the
trial judge's finding appellant failed to assert a racially-neutral
explanation for striking Jurors #18 and #25. State v. Dyar, supra (the
trial court's findings regarding purposeful discrimination are entitled to
great deference and are to be set aside only if clearly erroneous).5
in older to seat Juror #27. He states Juror #27 was preferable to Juror
#18 because she had lived outside the South.
5 Under the procedure adopted in State, v. Adams, supra, the outcome
may be different. See Evans v. Georgia, 458 S.E.2d 665 (Ga. App. 1995)(in
Seventy-three-year-old Andrew Hagan was killed in his home
during the late morning or afternoon hours of December 29, 1993. While
his arms and legs were bound, he was stabbed over thirty-four times in
the neck, chest, and abdomen, and beaten in the head with a flashlight.
Five men, including appellant and Willie Simpkins, had been
at the victim's home the evening before the murder and had sold the
victim construction equipment. By mid-January 1994, appellant,
Simpkins, and two of the other men had been arrested and charged with
the murder. There was no direct physical evidence connecting appellant or
any of the other suspects with the murder.6 The arrests were made
primarily on the basis of a statement given by one of the suspects. In
addition, the victim's neighbor stated she had seen a vehicle similar in
description to the one driven by Simpkins at the victim's home on the
afternoon of the murder.
Simpkins testified after his arrest, the police searched his
mother's home and found some Canadian dimes and buffalo nickels.
Simpkins' mother testified Simpkins was living with her in December
1993. She stated the police searched her home in February 1994 and
found Canadian coins in her son's bedroom. Mrs. Simpkins provided the
police with coins she kept in her own bedroom. She testified she had
these coins for many years.
Gary Hagan, the victim's son, testified after the police
processed his father's home, he looked through the home and determined
nothing was missing. A couple of days later, he hired a housekeeping
service to clean his father's home. Hagan testified his father had kept
foreign coins in a metal can in the top drawer of his dresser. He testified
after the cleaning crew left, he noticed the can was empty. Hagan
testified he thought the coins had been taken by someone from the
bottom of the jury list was reasonable and race-neutral).
6Only the victim's blood was found at the crime scene. The victim's
blood was not found on the suspects' clothes. Only the victim's son's
fingerprints were found at the victim's home. The murder weapon was not
On cross-examination, Hagan testified the police had showed
him some coins. Hagan admitted in his February 1994 statement to the
police he had identified two of the coins as being from his father's
collection and had stated other coins were similar to those his father had
collected. During his testimony, however, he explained his father's coins
were not rare and he could not positively identify any of the coins as
belonging to his father.
Approximately halfway through the State's case, Detective
Courtney testified a second time. He explained he had investigated
several leads from January through March 1994 none of the leads
Thereafter, the following transpired:
Q. All right, and by mid-April how about the leads with
regard to the coins and Mr. Simpkins' car, where had they
A. By that point in time, we'd pretty much determined that
there was no specific manner for Mr. Gary Hagan to
absolutely, positively identify the coins that had been obtained
from Ms. Simpkins . . .
[Defense Counsel]: Objection to this, Judge.
The Court: And your objection is?
[Defense Counsel]: Mr. Hagan's statement can speak for itself.
He undermines the credibility of that witness.
After a bench conference, the trial judge sustained appellants
objection, noting Detective Courtney was prohibited from commenting
the testimony of another witness. The judge stated:
He can certainly testify that they had this lead, if you address
for example, coins, which you were, he may either say they
pursued that lead or they abandoned it. But as to the why
that goes to the issue of credibility, pits one witness against
another, and that's for the jury to work out.
The solicitor continued her cross-examination of the detective:
Q. I asked you a question as to did you, through the course
of your investigation, continue to pursue any connections with
the coin information you had originally received?
A. Yes, ma'am, we did.
Q. And what did you do in regards to those coins?
A. The theory of those coins was just dismissed.
Q. And was that based on interviews with several people?
A. Yes, it was.
Q. And how about the situation with the car and any
attachments of the car to the murder of Andrew Hagan?
A. Eventually, that theory was also dismissed.
Q. And that was based on results and witnesses?
A. That's correct.
Q. And we are talking about numerous witnesses you
A. Yes, ma'am.
Q. When you say you're following up, you interviewed how
A. Somewhere between twenty and thirty myself, I believe. It
was a very large number of people that we talked to.
Detective Courtney then testified the suspect who had given
the statement providing the basis for the arrest of the four men had
recanted his story. Courtney stated as a result of a conversation with
another suspect's attorney, he spoke with Danny Felder.7 Ultimately,
Felder testified he witnessed appellant stab and beat the victim and steal
$210 from the victim's wallet.
Appellant now argues the trial judge erred in allowing
Detective Courtney to testify the charges against Simpkins were dismissed
based on interviews with individuals who did not testify at trial.8 He
maintains he was prejudiced by this testimony because it corroborated
Felder's account of the crime and bolstered Felder's credibility. Appellant
relies on State v. Coleman, 301 S.C. 57, 389 S.E.2d 659 (1990), where the
solicitor stated during closing argument he had not called the two other
suspects as witnesses because they did not have probative testimony.
Appellant's only objection at trial concerned Detective
Courtney's suggestion Gary Hagan's statement positively identifying the
coins taken from Simpkins as the coins from his father's collection was
unreliable. Appellant's objection to the solicitor pitting witnesses was
sustained. Appellant offered no objections however, to Detective Courtney'
comments concerning his reason for dismissing the charges against
Simpkins. Accordingly, this issue is not preserved for appeal. State v.
Byram, 326 S.C. 107, 485 S.E.2d 360 (1997)(to be preserved for appeal, a
issue must be raised to and ruled on by the trial judge).
In any event, there was no error in Detective Courtney
testifying he conducted numerous interviews and, as a result, the charges
against Simpkins were dismissed. Coleman is inapposite. Unlike the
solicitor's argument in Coleman, Detective Courtney's testimony was base
on his own knowledge and investigation and he was subject to appellant's
8 Based on German v. State, 325 S.C. 25, 478 S.E.2d 687 (1996),
appellant agrees the testimony was not objectionable as hearsay. The fact
individuals provided information exculpating Simpkins was not offered
proof Simpkins was not guilty (for the truth of the matter asserted) but
rather, for the purpose of showing why Detective Courtney dismissed
Simpkins as a suspect. State v. Brown, 317 S.C. 55, 451 S.E.2d 888
Appellant argues the penalty phase instructions were
erroneous. Specifically, he contends the trial judge erred by charging the
jury the following:
• Any decision you make with regard to sentence for the
defendant must be based upon proof beyond a reasonable
doubt . . . .
• Also, you must find unanimously and beyond a
reasonable doubt that the sentence you have decided to
impose is the appropriate sentence in light of the record
of the case.
In addition, appellant argues the trial judge erred by not
instructing the jury it could "recommend life imprisonment if it found the
existence of one or more statutory aggravating circumstances beyond a
reasonable doubt" or "for any reason or no reason at all." Appellant
contends because of these errors, a reasonable juror would have
understood the given instructions as placing the burden of proof upon him
to establish he should not be sentenced to death once it found the State
had established a statutory aggravating circumstance beyond a reasonable
Appellant concedes "[d]efense counsel did not object to the
judge's oral and written instructions." He contends because the errors
were so egregious, however, the Court should address the issue on direct
This issue is not preserved for appellate review. State v.
Longworth, 313 S.C. 360, 438 S.E.2d 219 (1993), cert. denied, 513 U.S.
831, 115 S.Ct. 105, 130 L.Ed.2d 53 (1994)(failure to object to a given
instruction or to request a particular charge acts as a waiver of the right
to complain about the issue on appeal). A contemporaneous objection is
necessary to preserve errors for direct appellate review, even in cases
where a death sentence is imposed. State v. Torrence, 305 S.C. 45, 406
S.E.2d 315 (1991).
In any event, the instructions include the following statements:
• [W]ith regard to any set of instructions that are given to
you, that you take them in their whole context. Do not
put any more emphasis on one portion as opposed to the
other, and please make sure that you keep it in the total
context that it is given to you;
• [T]he burden of roof in this procceding is on the State
• If all twelve of you agree that you are satisfied beyond
reasonable doubt that one or more of the statuyory
aggravating circumstances existed at that time, existed at
the time the victim in this case was murdered, then you
would be authorized to impose either a sentence of life
imprisonment or death upon the defendant.
• While it is necessary that you find, beyond a reasonable
doubt, that one or more of the alleged statutory
aggravating circumstances existed at the time the victim
was murdered in order to impose the sentence of death
upon the defendant, it is not necessary that you find
beyond a reasonable doubt any mitigating circumstances
existed at the time the victim was murdered in order to
impose a sentence of life imprisonment rather than death
upon the defendant. You are authorized to impose a
sentence of life imprisonment regardless of whether you
find that any mitigating circumstances existed at the
time the victim was murdered.
A jury instruction must be viewed in the context of the over
charge. Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38
L.Ed.2d 368, 373 (1973); State v. Norris, 285 S.C. 86, 328 S.E.2d 339
(1985), overruled on other grounds, State v. Torrence, supra. The test for
sufficiency of a jury charge is what a reasonable juror would have
understood the charge to mean. State v. Patterson, 299 S.C. 280, 384
S.E.2d 699 (1989), vacated on other grounds 493 U.S. 1013, 110 S.Ct. 70
107 L.Ed.2d 730 (1990). There is no burden of proof on a capital
defendant with regard to evidence of mitigating circumstances. State v.
Bell, 293 S.C. 391, 360 S.E.2d 706 (1987), cert. denied 484 U.S. 1020, 108
S.Ct. 734, 98 L.Ed.2d 682 (1988).
Considering the instructions as a whole, a reasonable juror
would not have understood the burden of proof was upon appellant to
establish he should not be sentenced to death once the State established a
statutory aggravating circumstance or that a mitigating circumstance must
be established before a life sentence could be imposed. The instructions
specified the State had the overall burden of proof. Further, the charge
provided, even if it found a statutory aggravating circumstance, the jury
could impose a life sentence. Moreover, the jury was instructed it was
authorized to impose a life sentence even if it did not find any mitigating
circumstances. Similar instructions have been found adequate. 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).
Finally, the trial judge is not required to instruct the jury it
could impose a life sentence "for any reason or no reason at all" where the
jury is informed, as it was here, it could consider any mitigating
circumstance authorized by law and could impose a life sentence even if
aggravating circumstances were found. Id.; State v. Jones, 298 S.C. 118,
378 S.E.2d 594 (1989), cert. denied 494 U.S. 1060, 110 S.Ct. 1534, 108
L.Ed.2d 773 (1990). There was no error.10
After reviewing the entire record, we conclude the death
sentence was not the result of passion, prejudice, or any other arbitrary
factor, and the jury's finding of statutory aggravating circumstances is
supported by the evidence.11 See S.C. Code Ann. § 16-3-25 (1985).
not be construed as eliminating the contemporaneous objection
11 The jury found the statutory aggravating circumstances of murder
while in the commission of kidnaping and while in the commission of
robbery while armed with a deadly weapon. S.C. Code Ann. § 16-3-20
(C)(a)(1)(b) & (d)(Supp. 1997).
Further, we hold the death penalty is neither excessive nor
disproportionate to that imposed in similar cases. See State v. Byram,
supra; State v. Patterson, 324 S.C. 5, 4S2 S.E.2d 760, cert. denied ____ U.S.
____ 118 S.Ct. 1463 139 L.Ed.2d 92 (1997); State v. McWee, 322 S.C. 387,
472 S.E.2d 235 (1996), cert. denied, ____U.S. ____, 117 S.Ct. 695, 136
L.Ed.2d 618 (1997); State v. Elkins, 312 S.C. 541, 436 S.E.2d 178 (1993),
cert. denied, 511 U.S. 1063, 114 S.Ct. 1634, 128 L.Ed.2d 357 (1994); State
v Adams, 279 S.C. 228, 306 S.E.2d 208, cert. denied, 464 U.S. 1023, 104
TOAL, MOORE and WALLER, JJ., concur. FINNEY, C.J.,
dissenting in separate opinion.
The State v. Willie Hicks
FINNEY, C.J.: I respectfully dissent and would vacate appellant's death
sentence and remand for resentencing.
In my view the charge as a whole was confusing and could lead a
juror to conclude incorrectly that the state satisfies its burden by proving at
least one statutory aggravating circumstance beyond a reasonable doubt and
then the burden shifts to appellant to prove beyond a reasonable doubt that he
should not be sentenced to death. State v. Patrick, 289 S.C. 301, 345 S.E.2d
481(1986)(capital defendant has no burden of proof).
The trial judge stated in part:
[A]ny decision you make with regard to sentence for the
defendant must be based upon proof beyond a
reasonable doubt . . . .
Also, you must find unanimously and beyond a reasonable
doubt that the sentence you have decided to impose is the
appropriate sentence in light of the record of the case.
A capital jury needs to understand the following concepts: (1) it
could recommend life imprisonment even if it found the existence of one or more
statutory aggravating circumstances beyond a reasonable doubt; (2) it need not
find a mitigating circumstance in order to impose life imprisonment; and (3) it
could recommend a life sentence for any reason or no reason at all. State v.
Atkins, 303 S.C. 214, 399 S.E.2d 760 (1990); State v. Tyner, 273 S.C. 646, 258
S.E.2d 559 (1979). The judge did not instruct the jury on the first and third
concepts. Furthermore, the judge instructed the jury at least twice that any
sentencing decision must be based upon proof beyond a reasonable doubt.
Considering the jury instructions as a whole, I believe a reasonable
juror could have been confused and misled by the instruction and given the
impression that there was a burden upon appellant to prove beyond a
reasonable doubt that the jury should recommend mercy in the sentencing.
Under these instructions, a reasonable juror could conclude the burden was on
appellant to prove beyond a reasonable doubt that he should not be sentenced to
Accordingly, I would vacate appellant's death sentence and remand for