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24801 - State v. Kelsey

Davis Adv. Sh. No. 21
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State, Respondent

V.

Joseph Kelsey, Appellant.

Appeal From McCormick County

Marc H. Westbrook, Judge

Opinion No. 24801 ,

Heard February 4, 1998 - Filed June 8, 1998

AFFIRMED

Senior Assistant Appellate Defender Wanda H.

Haile, of South Carolina Office of Appellate

Defense, of Columbia, for appellant.

Attorney General Charles Molony Condon, Deputy

Attorney General John W. McIntosh, Assistant

Deputy Attorney General Donald J. Zelenka, Senior

Assistant Attorney General William Edgar Salter,

111, Assistant Attorney General Robert F. Daley,,

Jr., all of Columbia; and Solicitor Donald V. Myers,

of Lexington, for respondent.

TOAL, A.C.J.: This case involves the murder of fifteen-year-old

Melanie Richey. Joseph Kelsey and Geoffrey Payne were tried together and

convicted of Richey's murder. Kelsey appeals his conviction. We affirm.

p.30


STATE v. KELSEY

FACTUAL/PROCEDURAL BACKGROUND

In early July 1994, sixteen-year-old Kelsey was staying with his friend,

seventeen-year-old Mike Kirchner in Martinez, Georgia. At the time,

Kirchner's father was away from home on business. On Monday, July 11,

1994, Kirchner left to go to work, leaving Kelsey, seventeen-year-old Geoffrey

Payne, and seventeen-year-old Jamie Lynn Lee ("Defendants") alone in the

house. Defendants decided to manufacture homemade pipe bombs. They

initially constructed a bomb using copper tubing and g-un powder extracted

from firecrackers. They detonated the bomb near a tree in Kirchner's

backyard.

Defendants then decided to construct more sophisticated pipe bombs.

To accomplish this, they shoplifted pipe material and shotgun shells from a

nearby hardware store and Wal-Mart. Under the direction of Kelsey, they

built three galvanized steel pipe bombs, one of which they detonated in

Kirchner's backyard. The explosion produced a crater approximately four

inches deep and one foot wide. It left bomb fragments in the side of

Kirchner's house and in a nearby privacy fence. Kelsey placed the other two

unexploded bombs in his travel bag inside Kirchner's house.

Later that evening, Defendants gathered at Kirchner's house for a

party. In addition to Defendants, the following individuals showed up for the

party: Tom Wurtzinger, April Reese, Tommy Speigel, and Joey Ingram.

Everyone was drinking beer. At around midnight, Lee and Payne left the

party to go to a nearby Texaco station, a popular "hang-out" area among local

teens. When Lee and Payne arrived at the station, they spotted Melanie

Richey standing near a telephone booth. They noticed something was wrong

with her foot. In the process of sneaking out of her house to meet with a

friend, Richey had severely cut her foot. Lee and Payne offered to take

Richey to Kirchner's house in order to clean and bandage her injuries.

Richey accepted.

Lee, Payne, and Richey returned to Kirchner's house at around 1:30

a.m. Lee and Payne helped Richey bandage her foot and then all three re-

joined the party. Soon thereafter, Payne and Richey went outside on

Kirchner's back porch where Payne repeatedly tried to coax Richey into

having sexual intercourse with him. Richey refused Payne's advances. At

several points during the night, Payne expressed to Lee his frustration over

Richey's intransigence. Kelsey testified that at one point he overheard Payne

tell Lee that he was so mad he could kill Richey.

p.31


STATE v. KELSEY

Payne instructed Lee to crush up a tablet of "Ecstacy," a mild

hallucinogen. Payne poured the powder into a mixture of tea and water in

order to hide the taste of the drug. Payne gave the drink to Richey and told

her it would help calm a stomach-ache she had been complaining about

earlier in the evening. Payne did not tell her that the drink was laced with

Ecstacy. Kelsey testified that while this was going on, he was resting on the

floor by the stereo and occasionally changing the music selection.

At around 3:30 a.m., Defendants decided to take Richey home. While

Richey was waiting for Defendants outside of Kirchner's house, Payne asked

Lee to get something to knock Richey out with. Lee retrieved a wrench from

Kirchner's garage. Payne then suggested that Kelsey bring the unexploded

pipe bombs. Kelsey complied by retrieving the bombs from his travel bag.

Kelsey testified that he was unaware, at the time, of what Payne actually

intended to do with the wrench and bombs.1

Defendants and Richey then got into Lee's car, ostensibly to take

Richey home. Lee was driving, Kelsey was in the passenger seat, and Payne

and Richey were in the backseat. Although Richey had given them directions

to her house, Lee detoured in the opposite direction. Richey asked where

they were going; Payne replied that they were going to drive around for a

while. Lee eventually drove across the Georgia border and into South

Carolina. Lee testified that the music was "obscenely" loud in the car, and

he was going about 90 m.p.h.

Soon after entering South Carolina, Lee noticed his tachometer go from

4200 to 6000 r.p.m. Lee looked down at the gear shift and discovered

Richey's foot had knocked the gear into neutral. Lee turned around and saw

that Payne had Richey in a "strangle hold type position." Lee continued to

drive. A few minutes later, Lee "heard two quick, empty thud type sounds."

He again turned around and saw that Payne still had Richey in a strangle

hold. Lee further testified that Payne had the wrench in his hand. Kelsey

testified that he had also turned around and saw that Richey's body was

limp, her face was pale, and her lips were blue.

A few moments later, Payne leaned forward to tell Lee to turn the

music down. According to Lee's testimony, Payne stated, "I'm pretty sure


1Kelsey testified that he assumed Payne wanted to blow up mail boxes

with the pipe bombs. As for the wrench, he thought Payne wanted to steal

a car bumper to give to Kirchner's girlfriend because her bumper had been

damaged earlier in a wreck with Lee's car.

p.32


STATE v. KELSEY

she's knocked out, guys." Payne then instructed Lee to go to "Scary Bridge"

which crossed over Stevens Creek, the boundary line between Edgefield and

McCormick counties. Lee drove to the bridge where he parked the car.

Defendants got out of the car, leaving Richey in the backseat. Payne

informed Lee and Kelsey that he was going to have sex with Richey. Payne

took off his clothes and Richey's shorts. A few moments later, Lee warned

Payne that a car was corning. Defendants quickly got back into Lee's car and

began driving. After the approaching vehicle passed, Lee turned the car

around and went back to the bridge. Lee testified that Richey was

unconscious the entire time, and "she was definitely alive." Kelsey, on the

other hand, testified that he had checked Richey's pulse, and he believed she

was dead.

Lee once again drove away from the bridge. He got approximately 100

feet down the road when Payne told him to stop the car. Defendants pulled

Richey out of the car and carried her into the woods and up an embankment

where they placed her on the ground. Lee returned to the car. Payne and

Kelsey remained by Richey's body.

Kelsey testified that while he was standing over Richey's body, Payne

instructed him to place a pipe bomb into Richey's mouth. Kelsey complied.

Payne then lit the fuse, and the two ran. A few seconds later, the bomb

exploded. Defendants returned to Kirchner's house where they fell asleep.

Defendants were eventually arrested and charged with Richey's murder.

Kelsey was arrested in Maryland and brought back to South Carolina to

stand trial. Kelsey's case was transferred from family court to the Court of

General Sessions where Kelsey and Payne were tried together as adults.

Payne was found guilty of murder and criminal conspiracy. Kelsey was found

guilty of murder, possession of a pipe bomb, and criminal conspiracy. Kelsey

was sentenced to life imprisonment for murder and consecutive sentences of

five years for possession of a pipe bomb and criminal conspiracy.

Kelsey appeals his conviction, raising the following issues:

(1) Did the trial court err in denying Kelsey's directed verdict motions

because there was insufficient proof that Kelsey was guilty of murder

and criminal conspiracy?

(2) Did the family court err in transferring jurisdiction over Kelsey's

case to the Court of General Sessions?

p.33


STATE v. KELSEY

(3) Did the trial court err in denying Kelsey's motion for a change of

venue?

(4) Did the trial court err in failing to declare a mistrial when

Payne's attorney pitted Kelsey's testimony against a police officer's

testimony?

(5) Did the trial court err in not allowing testimony and introduction

of evidence to rebut the State's innuendos that Kelsey's statement was

not given in earnest?

(6) Did the trial court err in precluding Kelsey from introducing

Payne's statement into evidence?

(7) Did the trial court err in not allowing Kelsey to admit evidence

regarding codefendant Payne?

(8) Did the trial court err in denying Kelsey's motion for severance?

(9) Did the trial court err in denying Kelsey's motion for a mistrial

when Payne's attorney cross-examined Kelsey about prior bad acts

that allegedly occurred in Georgia?

(10) Did the trial court err in admitting a diagram and photographs of

the crime scene into evidence?

(11) Did the trial court err in failing to give proper conspiracy and mere

presence instructions?

(12) Did the trial court err in refusing to charge the jury on the law of

mistake of fact?

LAW/ANALYSIS

I. DIRECTED VERDICT MOTIONS

Kelsey argues that the trial court erred in denying his directed verdict

motions because there was insufficient proof that he was guilty of murder

and criminal conspiracy. We disagree.

At the close of the State's case in chief, the defense moved for directed

p.34


STATE v. KELSEY

verdicts on the murder and conspiracy charges, arguing the evidence was

insufficient to support these charges. The court denied the motions. The

defense again moved for directed verdicts on murder and conspiracy at the

end of its case. The court again denied the motions.

In reviewing the denial of a motion for a directed verdict, the evidence

must be viewed in the light most favorable to the State, and if there is any

direct evidence or any substantial circumstantial evidence reasonably tending

to prove the guilt of the accused, an appellate court must find that the case

was properly submitted to the jury. State v. Rowell, 326 S.C. 313, 487

S.E.2d 185 (1997); State v. Venters, 300 S.C. 260, 387 S.E.2d 270 (1990);

State v. Edwards, 298 S.C. 272, 379 S.E.2d 888 (1989). In ruling on a

motion for a directed verdict, the trial court is concerned with the existence

of evidence, not its weight. State v. Williams, 303 S.C. 274, 400 S.E.2d 131

(1991).

A . MURDER

Murder is "the killing of any person with malice aforethought, either

express or implied." S.C. Code Ann. § 16-3-10 (1985). "Malice" is the

wrongful intent to injure another and indicates a wicked or depraved spirit

intent on doing wrong. State v. Johnson, 291 S.C. 127, 352 S.E.2d 480

(1987). Malice may be implied from the defendant's use of a deadly weapon.

State v. Campbell, 287 S.C. 377, 339 S.E.2d 109 (1985).

In the instant case, we find there was sufficient evidence to submit the

murder charge to the jury. The following evidence supports our conclusion:

(1) Lee's testimony that Kelsey essentially masterminded the

construction of the pipe bombs at Kirchner's house on July 11; that Kelsey

and Payne were alone together in the woods with Richey's body; that Lee

believed Richey was definitely alive, but unconscious, while in the car; and

that Kelsey and Payne were running out of the woods away from Richey's

body when the pipe bomb exploded;

(2) SLED agent Joseph Powell's testimony that metal fragments found

at the crime scene matched fragments found at Kirchner's house;

(3) the forensic pathologist's testimony that the explosion was the more

probable cause of death;

(4) April Reese's and Tom Wurtzinger's testimony corroborating Lee's

p.35


STATE v. KELSEY

statements concerning the events that took place at Kirchner's house on July

11 & 12; and

(5) Kelsey's admission that he was the one who placed the pipe bomb

into Richey's mouth.

Therefore, when the evidence is viewed in the light most favorable to

the State, the trial court correctly denied Kelsey's motion for a directed

verdict on the murder charge.2

B . CONSPIRACY

Conspiracy is defined as the "combination between two or more persons

for the purpose of accomplishing a criminal or unlawful object or an object

neither criminal nor unlawful by criminal or unlawful means." S.C. Code

Ann. § 16-17-410 (1985). To establish the existence of a conspiracy, proof of

an express agreement is not necessary, and direct evidence is not essential,

but the conspiracy may be sufficiently shown by circumstantial evidence and

the conduct of the parties. State v. Fleming, 243 S.C. 265, 133 S.E.2d 800

(1963). In State v. Childs, 299 S.C. 471, 385 S.E.2d 839 (1989), the

defendant argued that the trial court erred in denying his motion for a

directed verdict on a conspiracy charge. We disagreed, finding that the

following facts tended to prove the defendant's guilt: evidence that defendant

knew codefendant; defendant was seen running from the area where the

victim's body was found; bloodhounds had tracked the victim's scent to the

codefendant's house; arid defendant had given a written statement stating

that he agreed to be a lookout for codefendant.

In this case, evidence indicated that Kelsey was instrumental in

constructing the pipe bombs at Kirchner's house; that Kelsey was with Lee

and Payne on the night of the murder; that Kelsey helped Payne carry

Richey into the woods; that Kelsey and Payne were alone together in the

woods with Richey's body; and that Kelsey placed the pipe bomb into Richey's

mouth. We therefore find the evidence was sufficient to subrnit the

conspiracy charge to the jury.


2Kelsey also argues that he should be exonerated because there was

evidence supporting the defense of duress. However, in South Carolina,

duress is not a defense to murder. State v. Rocheville, 310 S.C. 20, 425

S.E.2d 32 (1993).

p.36


STATE v. KELSEY

II. TRANSFER OF JURISDICTION

Kelsey argues that the family court erred in transferring jurisdiction

over his case to the Court of General Sessions. We disagree.

In making its motion to transfer jurisdiction, the State relied on S.C.

Code Ann. § 20-7-430(4) & (6) (1985). Section 20-7-430(4) provides that the

family court may transfer jurisdiction if that court finds "it contrary to the

best interest of such child or of the public to retain jurisdiction,3 After

conducting a hearing on the State's transfer motion, the family court ordered

jurisdiction over Kelsey's case be transferred to the Court of General

Sessions. The family court found it was in the best interest of Kelsey and

the community to have Kelsey tried as an adult. The family court's findings

were based primarily upon criteria established in the appendix to the United

States Supreme Court case of Kent v. United States, 383 U.S. 541, 86 S. Ct.

1045, 15 L. Ed. 2d 84 (1966).4


3Section 20-7-430(4) provides, in full:

If a child sixteen years of age or older is charged with an offense

which would be a misdemeanor or felony if committed by an

adult and if the court, after full investigation, deems it contrary

to the best interest of such child or of the public to retain

jurisdiction, the court may, in its discretion, acting as committing

magistrate, bind over such child for proper criminal proceedings

to any court which would have trial jurisdiction of such offense

if committed by an adult.

4In Kent, the Court established the following criteria for determining

whether jurisdiction should be waived under the District of Columbia

Juvenile Court Act:

(1) The seriousness of the alleged offense to the community and

whether the protection of the community requires waiver.

(2) Whether the alleged offense was committed in an aggressive,

violent, premeditated, or willful manner.

(3) Whether the alleged offense was against persons or against

property, greater weight being given to offenses against persons

especially if personal injury resulted.

(4) The prosecutive merit of the complaint, i.e., whether there is

evidence upon which a Grand Jury may be expected to return an

indictment (to be determined by consultation with the United

p.37


STATE v. KELSEY

It is the responsibility of the family court to include in its waiver of

jurisdiction order a sufficient statement of reasons for, and considerations

leading to, that decision. Conclusory statements, or a mere recitation of

statutory requirements, without further explanation will not suffice. In re

Sullivan, 274 S.C. 544, 265 S.E.2d 527 (1980). The serious nature of the

offense is a major factor in the transfer decision. See Sanders v. State, 281

S.C. 53, 314 S.E.2d 319 (1984)(transfer upheld where defendant was charged

with two counts of murder and two counts of assault and battery with intent

to kill); State v. Wright, 269 S.C. 414, 237 S.E.2d 764 (1977)(transfer upheld

where defendants were charged with armed robbery and assault and battery

with intent to kill).

In this case, the family court's transfer hearing was extensive. It not

only included the testimony of relevant witnesses, including Kelsey, but also

the submission of a lengthy preadjudicatory transfer evaluation. Additionally,

the family court's transfer order was detailed. and raised the following points:

(1) Kelsey was charged with the serious and violent offense of murder, and

the victim was a young girl; (2) it was likely that the Grand Jury would

return an indictment against Kelsey; (3) Kelsey's two codefendant's were

going to be tried in the Court of General Sessions; (4) if tried as a minor,

Kelsey would only get 24 to 54 months if convicted of the murder charge --

this was not in the community's best interest due to the seriousness of the


States Attorney).

(5) The desirability of trial and disposition of the entire offense

in one court when the juvenile's associates in the alleged offense

are adults who will be charged with a crime in the U.S. District

Court for the District of Columbia.

(6) The sophistication and maturity of the juvenile as determined

by consideration of his home, environmental situation, emotional

attitude and pattern of living.

(7) The record and previous history of the juvenile, including

previous contacts with the Youth Aid Division, other law

enforcement agencies, juvenile courts and other jurisdictions,

prior periods of probation to this Court, or prior commitments to

juvenile institutions.

(8) The prospects for adequate protection of the public and the

likelihood of reasonable rehabilitation of the juvenile (if he is

found to have committed the alleged offense by the use of

procedures, services and facilities currently available to the

Juvenile Court.

p.38


STATE v. KELSEY

crime; and (5) Kelsey would have less of a chance of rehabilitation in the

juvenile justice system because his sentence under that system would be

brief.

We therefore find the family court properly transferred jurisdiction to

the Court of General Sessions pursuant to section 20-7-430.5

III. CHANGE OF VENUE

Kelsey argues that the trial court erred in denying his motion for

change of venue due to the enormous amount of pretrial publicity

surrounding his case. We disagree.

During voir dire, the trial judge asked all of the prospective jurors

whether they had heard anything about the case through the news media.

Of the ninety prospective jurors, seventy-nine indicated that they had heard

something about the case. The trial judge then asked these prospective

jurors whether they could put aside what they had heard and base their

verdict on the evidence presented at trial. Thirty-five indicated that they

could not and were consequently excused by the trial judge. The trial judge

further questioned three of the remaining jurors after defense counsel

expressed concern about their initial responses. After voir dire was

completed, the defense renewed its motion for a change of venue. The trial

judge denied the motion, stating:

My sound instinct though tells me that just because these people

have heard about the case doesn't have to necessarily mean that

they have formed some opinion about the case. To do that I

think would have to, in essence, assume that they believed

everything they had seen or read and that, in essence, they were

some sort of automatons that were dictated to by the news

media. I don't think I can go that far.

Of the twelve jurors finally seated, three had not heard anything about the

case.

Kelsey argues that the media attention surrounding his case was so

great that it precluded any possibility of him obtaining a fair trial by an

impartial jury as guaranteed by the Sixth Amendment to the United States


5Section 20-7-430 was repealed by 1996 Act No. 383, § 2, effective July

1, 1996.

p.39


STATE v. KELSEY

Constitution. Kelsey further argues that this prejudice is demonstrated by

the fact that such a high number of prospective jurors indicated, during voir

dire, that they had heard something about the case. Kelsey suggests that all

of the prospective jurors not excused during voir dire were in some way

subconsciously affected by the high volume of media coverage surrounding the

case.

A motion for a change of venue is addressed to the sound discretion of

the trial judge and will not be disturbed absent an abuse of discretion. State

v. Caldwell, 300 S.C. 494, 388 S.E.2d 816 (1990). When the trial judge bases

his ruling upon an adequate voir dire examination of the jurors, his

conclusion that the objectivity of the jury panel has not been polluted by

outside influence will not be disturbed absent extraordinary circumstances.

State v. Patterson, 324 S.C. 5, 482 S.E.2d 760 (1997); State v. Caldwell, 300

S.C. 494, 388 S.E.2d 816; State v. Thompson, 278 S.C. 1, 292 S.E.2d 581

(1982), overruled on other grounds by State v. Torrence, 305 S.C. 45, 406

S.E.2d 315 (1991). Mere exposure to pretrial publicity does not automatically

disqualify a prospective juror. State v. Caldwell, 300 S.C. 494, 388 S.E.2d

816. When jurors have been exposed to such publicity, a denial of a change

of venue is not error where jurors are found to have the ability to lay aside

any impressions or opinions and render a verdict based on the evidence

presented at trial. Id. Moreover, it is the defendant's burden to demonstrate

actual juror prejudice as a result of news accounts of the defendant's case.

State v. Owens, 293 S.C. 161, 359 S.E.2d 275 (1987).

Kelsey cites Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6 L. Ed. 2d

751 (1961) and Patton v. Yount, 467 U.S. 1025, 104 S. Ct. 2885, 81 L. Ed. 2d

847 (1984), for the proposition that pretrial publicity may be so severe as to

create a presumption of prejudice in the community, and therefore, make it

impossible for the defendant to receive a fair trial. However, in Dowd, the

Court stated there was no requirement that jurors -be totally ignorant of the

facts and issues involved in the case. "It is sufficient if the juror can lay

aside his impression or opinion and render a verdict based on the evidence

presented in court." Dowd, 366 U.S. at 723, 81 S. Ct. at 1643, 6 L. Ed. 2d

at 756. The Court in Dowd ultimately concluded that the pretrial publicity

was unduly prejudicial to the defendant because eight of the twelve jurors

finally placed in the jury box expressed, during voir dire, their belief that the

defendant was in fact guilty.6


6In Dowd, the pretrial news coverage was extremely intense and

negative toward the defendant. The coverage included details of the

defendant's background, including references to crimes he committed when

p.40


STATE V. KELSEY

In the instant case, there was no indication that any of the jurors

finally seated had formed a pretrial opinion that Kelsey was guilty. Nine of

the twelve jurors admitted they had been exposed to some pretrial media

coverage, but they told the trial judge they could put aside what they had

heard and render a verdict based on the evidence presented at trial.

"[A defendant's] mere assertion that the jurors could have been

subconsciously affected by. . .media exposure is insufficient to show

prejudice." State v. Owens, 293 S.C. at 167, 359 S.E.2d at 278. Kelsey has

not gone beyond this mere assertion to show actual prejudice in his case.

Although media coverage was widespread and intense before Kelsey's trial,

there was no indication that the trial court's voir dire failed to produce an

impartial jury.

IV. PITTING OF WITNESS

Kelsey argues that the trial court erred in failing to declare a mistrial

when Payne's attorney attempted to pit Kelsey's testimony against a police

officer's testimony. We disagree.

Kelsey was arrested by officer Slavin in Maryland. At trial, Slavin

testified that when Kelsey was detained in his police car, Kelsey asked if he

was going to be treated as an adult or juvenile. Slavin told him he would be

treated as an adult. Slavin then testified, "[Kelsey] wanted to know why

because he said he was a juvenile when he did it." The State also introduced

into evidence a copy of Slavin's incident report to corroborate his testimony.

During Payne's cross-examination of Kelsey, the following exchange

occurred:

Q. Have you read that document [Slavin's incident report] you

just denied ever seeing?

A. I have never read through this document.

Q. You have never seen anything like that?


he was a juvenile, convictions for arson almost 20 years previously, and

burglary and AWOL court-martial charges. The news media further accused

him of being a parole violator, announced his police line-up identification, his

confession to the six murders, and his offer to plead g-uilty. Dowd, 366 U.S.

at 725, 81 S.. Ct. at 1644.

p.41


STATE V. KELSEY

A. No, sir.

Q. Anyone who says you have would, of course, be mistaken

or lying; is that correct?

Kelsey's attorney immediately objected, arguing the question improperly

pitted Kelsey's testimony against Slavin's testimony. Kelsey moved for a

mistrial. The trial judge sustained Kelsey's objection, but denied his motion

for a mistrial. Payne's counsel continued with the cross-examination of

Kelsey:

Q. So when [Slavin] said that you said, "I was juvenile when

I did it," Mr. Slavin was incorrect?

A. Yes, sir, he was.

Kelsey again objected on the same grounds as before. The trial judge

sustained the objection but denied Kelsey's motion for a mistrial.

The decision to grant or deny a mistrial is within the sound discretion

of the trial judge and will not be overturned on appeal absent an abuse of

discretion. State v. Crim, 327 S.C. 254, 489 S.E.2d 478 (1997); State v.

Dawkins, 297 S.C. 386, 377 S.E.2d 298 (1989). The power of the court to

declare a mistrial ought to be used with the greatest caution and for plain

and obvious causes stated into the record by the trial judge. State v.

Dawkins, 297 S.C. 386, 377 S.E.2d 298. The granting of a motion for a

mistrial is an extreme measure which should be taken only where an incident

is so grievous that prejudicial effect can be removed in no other way. 75B

Am. Jur. 2d Trial § 1706 at 491 (1992).

We first note that any prejudice to Kelsey could have been removed by

the trial court striking the testimony and giving a curative instruction to the

jury. See State v. Simpson, 325 S.C. 37, 479 S.E.2d 57 (1996)(an instruction

to disregard incompetent evidence usually is deemed to have cured the error

in its admission unless on the facts of the particular case it is probable that

notwithstanding such instruction or withdrawal the accused was prejudiced).

However, Kelsey's attorney failed to make such a motion before the trial

court. See 75 Am. Jur. 2d Trial § 467 at 642 (a motion for mistrial does not

automatically include a motion to strike as a lessor prayer for relief).

Nonetheless, we find that Kelsey was not unfairly prejudiced by the

p.42


STATE v. KELSEY

testimony. Although it is improper for an attorney to cross-examine a

witness in such a manner as to force him to attack the veracity of another

witness, improper "pitting" constitutes reversible error only if the accused was

unfairly prejudiced. State v. Sapps, 295 S.C. 484, 369 S.E.2d 145 (1988).

VVhlle Kelsey's credibility was at issue in the case, Kelsey admitted on direct

examination that he had, in fact, placed the pipe bomb into Richey's mouth.

The critical issue for the jury to decide was whether Richey was alive or dead

when Kelsey committed this act. The above colloquy between Kelsey and

Payne's attorney did not directly relate to this issue. Kelsey merely disputed

telling Officer Slavin that he was a juvenile when he "did it." Any prejudice

to Kelsey was minimal and does not warrant reversal.

V. PRIOR STATEMENTS

Kelsey argues that the trial court erred in denying his right to

introduce a prior statement in order to defend against the State's allegation

that he testified untruthfully during his testimony before the jury. We

disagree.

During the State's cross-examination of Kelsey, the solicitor emphasized

that Kelsey's trial testimony was inconsistent with testimony he had given

at the December 5, 1994 family cour-t waiver hearing and with statements he

had given to SLED agent Dan Choate on September 29, 1994. In response,

Kelsey called Choate to the stand and attempted to elicit testimony from him

concerning Kelsey's prior September statement. The State objected, arguing

the defense was trying to introduce a prior consistent statement which was

impermissible under Rule 801(d)(1), SCRE. Kelsey's attorney responded,

arguing that he was entitled to have the entire inconsistent statement

introduced so that it could be viewed in context. The trial judge sustained

the State's objection. Kelsey did not proffer any of the excluded testimony.

Generally, where a portion of a witness's prior inconsistent statement

has been introduced to impeach that witness, the entire statement is

admissible in rebuttal to explain the inconsistency. See 98 C.J.S. Witnesses

§ 622 at 636 (1957); Wigmore On Evidence § 1045 (Chadbourn rev. 1970).

However, the mere mention of a conversation or statement does not

automatically entitle the opponent to bring out the other parts. Remaining

portions which are not relevant or material in the explanation of the

inconsistency are not admissible. See People v. Cowper, 496 N.E.2d 729 (111.

App. Ct. 1986); State v. Eugenio, 565 N.W.2d 798 (Wis. Ct. App. 1997); 98

C.J.S. Witnesses § 622 at 637. The trial court has broad discretion in

determining whether to admit such evidence. See State v. Daly, 798 S.W.2d

p.43


STATE v. KELSEY

725 (Mo. Ct. App. 1990).

At trial, the solicitor asked Kelsey if Richey's mouth was bleeding

inside the car. Kelsey responded that there was a small trace of blood on

Richey's mouth. The following colloquy then took place between Kelsey and

the solicitor:

Q. Mr. Choate over here. You had a conversation with Mr. Choate

and your lawyer was there?

A. Yes, sir.

Q. Do you remember Mr. Choate said, "Mr. Kelsey, was there any

blood on Melanie or anywhere in that car?" You said, "No, sir, it

wasn't." Didn't you?

A. I don't remember that brief conversation. I mean. I tried to write

down exactly what we talked about right afterwards. I said we

had a brief conversation before and that then they gave me the

forms and I wrote it down.

At trial, Kelsey's attorney argued that Kelsey had a right to have the

entire statement introduced so that it could be viewed in context. However,

there was no attempt to explain why the other portions of the September

statement were relevant or material in explaining the inconsistency.

Additionally, Kelsey failed to proffer any of the excluded testimony. See

State v. Anderson, 304 S.C. 551, 406 S.E.2d 152 (1991)(where no proffer of

excluded testimony is made, the Court is unable to determine whether the

appellant was prejudiced by the trial judge's refusal to admit the testimony

into evidence). We therefore find that the trial court did not abuse its

discretion in sustaining the State's objection.

VI. CODEFENDANT'S STATEMENTS

At trial, Kelsey's attorney called F.B.I. agent Harold Harrison to the

stand to testify. Kelsey sought to elicit testimony from Harrison concerning

statements Payne made to the F.B.I. during its investigation of Richey's

death. Payne's attorney objected, arguing Payne's credibility could not be

impeached unless Payne took the stand. Kelsey's attorney responded, stating

that the purpose of the testimony was to rebut Payne's theory that Kelsey

had co-opted Payne's statement and made it his own. Kelsey made an in

carnera proffer of the testimony. The proffer revealed that the interview did

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STATE v. KELSEY

not contain any admission of guilt by Payne, but did discuss the sequence of

events surrounding the crime. The trial judge sustained the objection, stating

that Payne might still present a defense.

Even if Payne's statements were relevant as rebuttal evidence, Kelsey

was not prejudiced by the trial judge's ruling. Lee had already testified that

Payne fabricated his story and had instructed Lee to "Rip everything around"

and tell the authorities that Kelsey killed Richey if questioned. Moreover,

Lee's story at trial was more consistent with Kelsey's version of events than

with Payne's. Thus, even if Payne's statements were relevant, they were, at

best, needless presentation of cumulative evidence. See Rule 403, SCRE.

VII. CODEFENDANT'S PHYSICAL APPEARANCE

Kelsey argues that the trial court erred in not allowing him to present

evidence concerning Payne's altered appearance at trial. We disagree.

At trial, Kelsey called Mae Guin, a guidance counselor from Payne's

former high school. Kelsey's attorney attempted to question Guin about

Payne's changed appearance since high school. Payne's attorney objected,

arguing Payne's altered appearance was irrelevant. Kelsey argued that

Payne's appearance at trial was an attempt to give the impression that he

was something he was not. The trial judge sustained Payne's objection and

gave a curative instruction to the jury.

Evidence regarding the physical condition of a party is admissible if

relevant to an issue in the case. 29 Am. Jur. 2d Evidence § 560 at 627. The

only ground offered by Kelsey to support the introduction of Guin's testimony

was that Payne was trying be something he was not. Payne's appearance

was in no other way relevant to the case. We hold that the prejudicial effect

of such evidence substantially outweighed any probative value it may have

had. See Rule 403, SCRE. Thus, it was properly excluded.

VIII. SEVERANCE

Kelsey argues that the trial court erred in denying his motion for

severance in the case. We disagree.

Before trial, Payne's attorney moved to have separate trials. Kelsey did

not join in the motion. The trial judge denied Payne's motion. After the

defense rested its case, Kelsey's attorney moved for a mistrial and argued

that Kelsey was entitled to a severance. The trial judge denied the motion.

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STATE v. KELSEY

In South Carolina, crirrlinal defendants who are jointly tried for murder

are not entitled to separate trials as a matter of right. State v. Holland, 261

S.C. 488, 201 S.E.2d 118 (1973); State v. Crowe, 258 S.C. 258, 188 S.E.2d 379

(1972). Motions for a severance and separate trial are addressed to the

discretion of the trial court. State v. Nichols, 325 S.C. 111, 481 S.E.2d 118

(1997); State v. Chaffee, 285 S.C. 21, 328 S.E.2d 464 (1984), overruled on

other grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991).

Absent a showing of an abuse of discretion, this Court will not disturb the

trial court's ruling on appeal. State v. Thompson, 279 S.C. 405, 308 S.E.2d

364 (1983).

Kelsey argues that severance should have been granted based on the

prejudice discussed in issues 5, 6, and 7 of this appeal. As discussed above,

Kelsey was not unfairly prejudiced by any of the trial court's rulings

discussed in issues 5, 6, and 7, nor was he unfairly prejudiced in any other

way. At most, any prejudice was incidental and therefore insufficient to

demonstrate an abuse of discretion on the part of the trial court in denying

severance. See United States v. Martinez, 922 F.2d 914 (Ist Cir. 1991).

IX. PRIOR BAD ACTS

Kelsey argues that the trial court erred in denying his motion for a

mistrial when Payne's attorney cross-examined him about prior bad acts that

allegedly occurred in Georgia. We disagree.

On cross-examination, Payne's attorney asked Kelsey if he had had any

legal problems or been arrested before July 12, 1994, in Georgia. Kelsey

responded that he had not. Payne's attorney then asked Kelsey if he had

had any legal problems after July 12, 1994. Before Kelsey could answer,

Kelsey's attorney objected. Payne's attorney made an in camera proffer of

the testimony. Kelsey was asked whether he had ever been charged with the

crime of forgery. Kelsey responded that he was not aware of any such

charges. Payne's attorney withdrew the question. Kelsey moved for a

mistrial which the trial judge denied. When the jury returned, the trial

judge gave the following curative instruction: "I have stricken the last

question. Let me be sure and remind you that an attorney's question is not

evidence and I have stricken all that. So you will disregard that."

Under Rule 608(b), SCRE, specific instances of the conduct of a witness

may be inquired into on cross-examination if probative of the witness's

character for truthfulness or untruthfulness. South Carolina's Rule is

identical to the Federal rule. The inquiry under Rule 608(b) is limited to

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STATE v. KELSEY

those specific instances of misconduct which are clearly probative of

truthfulness or untruthfulness such as forgery, bribery, false pretenses, and

embezzlement. See Weinstein's Federal Evidence, Character and Conduct of

Witness § 608.12(4)(a-b) (1998). However, the cross-examiner may not go on

a "fishing expedition" in the hopes of finding some misconduct. State v.

McGuire, 272 S.C. 547, 253 S.E.2d 103 (1979).

In this case, Payne's attorney inquired into a prior act of forgery.

When Kelsey stated he was not aware of any such charge, Payne's attorney

properly withdrew the question. See Rule 609(b), SCRE (specific instances

of conduct may not be -proved by extrinsic evidence). We hold that any

prejudice to Kelsey was cured by the trial judge's curative instruction to the

jury. See State v. Simpson, 325 S.C. 37, 479 S.E.2d 57 (an instruction to

disregard incompetent evidence usually is deemed to have cured the error in

its admission unless on the facts of the particular case it is probable that

notwithstanding such instruction or withdrawal the accused was prejudiced).

Thus, the trial judge did not abuse his discretion in denying the motion for

mistrial. See State v. Crim, 327 S.C. 254, 489 S.E.2d 478 (decision to deny

mistrial will not be overturned on appeal absent abuse of discretion).

X. DIAGRAM & PHOTOGRAPHS

Kelsey argues that the trial court erred in admitting State's exhibits 18

and 19 into evidence. We disagree.

Exhibits 18 and 19 consisted of a diagram of the crime scene and

photographs of various bone and bomb fragments and clothing found at the

scene. Kelsey notes that Richey's body was discovered some forty-six days

after the crime was conunitted. Kelsey suggests that weather or local fauna

could have altered the crime scene during this period. Thus, the State's

depictions were inaccurate representations of the scene and therefore

prejudicial to Kelsey. Kelsey also argues the evidence was cumulative.

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, 324 S.C. 155, 478 S.E.2d 260 (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. Id. In this case, the

photographs corroborated other testimony concerning the condition of Richey's

body as first discovered by police at the crime scene. Additionally, the

location of bone and bomb fragments clearly supported testimony that a bomb

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STATE v. KELSEY

detonated in Richey's mouth. Kelsey merely hypothesizes that the crime

scene could have been disturbed by natural forces. We hold that the trial

court did not abuse its discretion in admitting the exhibits into evidence.

XI. CONSPIRACY AND MERE PRESENCE

Kelsey argues that the trial court erred in failing to give proper

conspiracy and mere presence instructions. We disagree.

Kelsey contends that the trial court's mere presence charge was blended

in so closely with the accomplice liability charge that it was misleading.

Kelsey further argues that the trial court improperly failed to instruct the

jury that one's mere association with a person who conu-nits a crime does not

make a defendant an accomplice or a co-conspirator to the guilty perpetrator.

The trial court's instruction provided, in part:

Now of course, mere presence at the scene is insufficient to prove

someone guilty of a crime. The burden is upon the state to prove

every element of the crime charged. If you find after reviewing

all of the evidence that the state has proven that the defendant

was only present at the scene of the crime and they have not

proven beyond a reasonable doubt any other participation in the

crime, then you must find a defendant not guilty.

The law says that proof of mere presence at the scene of the

crime is not sufficient to find someone guilty. But, of course the

law also says that the hand of one is the hand of all.

The law says -- that if a person -- if a crime is committed by two

or more persons who are acting together in the commission of a

crime, then the act of one is the act of both.

We find the trial court's charge was not misleading. It clearly

explained that the prosecution had to prove every element of the crime and

that mere presence was not enough to sustain a conviction. Moreover, the

trial judge extensively instructed the jury on the requisite criminal intent for

each of the charged crimes. In charging the jury on conspiracy, the trial

judge explained, "Before a defendant may be convicted ... it must be proven

beyond a reasonable doubt that a conspiracy existed and that the defendant

was a knowing party to the conspiracy . . . ." (emphasis added). We hold

that the trial court's instructions, taken as a whole, were adequate. See

State v. Sims, 304 S.C. 409, 405 S.E.2d 377 (1991)(jury instructions must be

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STATE v. KELSEY

considered as a whole and if as a whole, they are free from error, any

isolated portions which might be misleading do not constitute reversible

error).

XII. MISTAKE OF FACT

Kelsey argues that the trial court erred in refusing to charge the jury

on the law of mistake of fact. Kelsey contends that he believed Richey was

dead when he placed the pipe bomb into her mouth. He asserts that even

if Richey were alive when he did this, his mistaken belief that she was dead

negates the criminal intent required to be convicted of murder. Thus, he was

entitled to a jury charge. We disagree.

At trial, Kelsey requested the following jury instruction:

In this case the state is required to prove beyond a reasonable

doubt that the defendant Joe Kelsey was not operating under a

mistake of fact. If the state can not prove beyond a reasonable

doubt that defendant Joe Kelsey knew that the victim was still

alive when the pipe bomb was placed in her mouth, then

defendant Joe Kelsey is entitled to a verdict of not guilty as to

the charge of murder.

A mistake of fact which negates the existence of the mental element of

the offense, will preclude conviction. 21 Am. Jur. 2d Criminal Law, § 141 at

276 (1981); William Shepard McAninch, Criminal Law of South Carolina, 542

(1996). If the particular offense is a general intent crime, the mistake of fact

must be reasonable. See State v. Dizon, 390 P.2d 759 (Haw. 1964)(the

mistake must not be due to the negligence or carelessness of the defendant).

Moreover, a trial court is not required to give an instruction on mistake of

fact unless and until the defendant introduces some evidence, direct or

circumstantial, of a reasonable basis for having made the mistake. United

States v. Norquay, 987 F.2d 475 (8th Cir. 1993).

It is dubious, at best, to suggest that Kelsey's belief in this regard was

objectively reasonable. Despite this, there are more fundamental reasons for

rejecting Kelsey's argument. First, the trial judge extensively charged. the

jury on the requisite criminal intent for murder. The trial judge's instruction

provided, in pertinent part:

Murder is the killing of any person with malice aforethought,

either express or implied. Again, murder is the killing of any

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STATE v. KELSEY

person with malice aforethought, either express or implied. Now,

in order to convict these defendants on murder . . . the state

must prove not only that the defendant killed Melanie Kaye

Richey; but they must also prove beyond a reasonable doubt that

they did so with malice aforethought. . . . There must be a

combination of the previous evil intent and the act producing the

fatal result. Proof of malice may be express or direct, such as,

where there is evidence of previous threats or evidence of lying

in wait. In other words, circumstances which show directly that

an intent to kill existed.

The trial court's instructions made clear that the State not only had to prove

that Kelsey killed Richey, but that he did so with the requisite intent, i.e.,

with malice aforethought. Therefore, Kelsey's belief that Richey was dead

would be part of the determination of whether Kelsey "intended" to kill

Richey.

We also note that Kelsey's requested jury instruction did not accurately

state the law in that it failed to provide that Kelsey's mistake of fact must

have been reasonable. The proposed charge orily stated that the State must

prove beyond a reasonable doubt that Kelsey was not operating under a

mistake of fact. Thus, it was not error for the trial court to refuse to give

the requested jury charge. See State v. Davis, 282 S.C. 45, 317 S.E.2d 452

(1984)(a trial court does not err in refusing to give a requested jury

instruction where it does not state the correct law).

CONCLUSION

Based on the foregoing, we AFFIRM the trial court on all issues.

MOORE, WALLER, BURNETT, JJ., and Associate Justice C. Thlbert

Goolsby, concur.

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