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24804 - State v. Powers

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

THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State, Respondent,

V.

Ted Benjamin Powers, Appellant.

Appeal From Lexington County

Ralph King Anderson, Jr., Judge

Opinion No. 24804

Heard March 17, 1998 - Filed June 8, 1998

AFFIRMED

Assistant Appellate Defender Robert M. Dudek, and

Deputy Chief Attorney Joseph L. Savitz, both of the

South Carolina Office of Appellate Defense, all of

Columbia, for appellant.

Attorney General Charles M. Condon, Deputy

Attorney General John W. McIntosh, Assistant

Deputy Attorney General Donald J. Zelenka, Senior

Assistant Attorney General William Edgar Salter,

III, all of Columbia, and Solicitor Donald V. Myers,

of Lexington, for respondent.

WALLER, A.J.: Powers was convicted of murder, first degree burglary,

and assault and battery with intent to kill (ABIK). He was respectively

sentenced to death, life imprisonment and twenty years. We consolidate

Powers' direct appeal with our mandatory review of his death sentence. We

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STATE v. POWERS

affirm.

FACTS

In the early morning hours of September 8, 1960, Powers, then 16

years old, broke into the home of 68 year old Yeoman Senn (Victim) and his

wife Linnie. He went to their bedroom where he stabbed Victim 10 times in

the chest, shoulder and arm; one of the wounds slashed Victim's aorta; he

bled to death. Linnie Senn was beaten in the face and chest and suffered a

broken collar bone and 6 fractured ribs. Powers stole several dollars in small

change from the Senn's home.

While in custody on larceny charges in January, 1991, Powers confessed

to Yeoman Senn's murder. The matter was transferred from juvenile court

to general sessions court where, after a trial in February, 1996, Powers was

sentenced to death.

ISSUES

1. Did the State's strike of Juror #28 violate Batson v.

Kentucky?1

2. Did the court err in requiring Powers, for purposes of jury

selection, to reveal his witness list?

3. Does the State's delay in filing a notice of intent estop it from

seeking a death sentence?

4. Should the trial court have held an in camera hearing to

determine the admissibility of victim impact testimony?

5. Did the court err, at sentencing, in admitting color

photographs of the victim?

6. Did the court err, at sentencing, in admitting a videotape of

the crime scene?

7. Did the court err in refusing to permit defense counsel to

specifically voir dire the jury as to whether it would consider

Powers' age as a mitigating circumstance?


1476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

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STATE v. POWERS

1. JUROR # 28

Powers contends the state's strike of Juror # 28 violated Batson v.

Kentucky, and Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120

L.Ed.2d 33 (1992). This issue is patently unpreserved for review.

After both sides had exercised peremptory challenges and a jury had

been chosen, the trial court asked, "[w]hat is the position of the defense in

regard to a Batson hearing? Do you request one or not?" Counsel for Powers

specifically responded, "[w]e do not make a Batson challenge." The trial court

nonetheless required the solicitor to articulate the reasons for his peremptory

challenges. After the solicitor had stated the basis for his strikes, the trial

court asked if the defense "wanted to put anything on the record in regard

to solicitor's presentation." Defense counsel declined.

Powers' failure to raise any objection to the strike precludes review of

this issue on appeal. State v. Williams, 321 S.C. 455, 469 S.E.2d 49 (1996);

State v. Johnston, 489 S.E.2d 228 (Ct.App. 1997) (failure to object to

dismissal of juror in violation of Batson and Georgia v. McCollum constitutes

waiver of those issues on appeal). See also People v. Baker, 621 N.Y.S.2d

615 (1995)(argument that prosecutor improperly exercised peremptory

challenges to exclude homosexual prospective jurors unpreserved). Contrary

to Powers' contention, the mere fact that jurors have an equal protection

right to serve does not relieve him of the burden of preserving the issue for

appeal. See State v. McWee, 322 S.C. 387, 472 S.E.2d 235 (1996); State v.

Byram, __ S.C.__, 485 S.E.2d 360, (1997) (failure to raise constitutional

issues at trial results in waiver on appeal). Accordingly, we decline to

address this issue.

2. WITNESS LIST

The trial court ordered "that the State and the defendant present to the

Court and identify to the Court all witnesses to be called at trial so that I

can qualify this jury with some decree of accuracy and pursuant to the law."

Powers contends this ruling conflicts with our holdings in State v. Miller, 289

S.C. 316, 345 S.E.2d 489 (1986) and State v. Hall, 268 S.C. 530, 235 S.E.2d

112, 114 (1977). We disagree.

In Miller, we held it is error to require, prior to trial, that the

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STATE v. POWERS

defendant supply the state with a list of his witnesses.2In Hall, 268 S.C.

530, 235 S.E.2d 112, 114 (1977), we held a defendant is not required to

announce in advance the nature of his defense. Miller and Hall are

inapposite. Here, Powers was not required to reveal, as a matter of pretrial

discovery, his witness list to the state, nor was he required to announce the

nature of his defense. He was merely required at the outset of trial to

disclose his witnesses to the court for purposes of jury selection.

It is the duty of the trial judge to see that a jury of unbiased, fair and

impartial persons is impaneled. State v. Matthews, 291 S.C. 339, 353 S.E.2d

444 (1986); State v. Caldwell, 300 S.C. 494, 388 S.E.2d 816 (1990). The

determination of whether a juror is qualified to serve on a death penalty case

is within the sole discretion of the trial judge and is not reversible on appeal

unless wholly unsupported by the evidence. State v. Plemmons, 286 S.C. 78,

332 S.E.2d 765 (1985), vacated on other grounds, 476 U.S. 1102, 106 S.Ct.

1943, 90 L.Ed.2d 353 (1986); State v. Spann, 279 S.C. 399, 308 S.E.2d 518

(1983).

Although we have not previously addressed this issue, other courts have

mandated a defendant divulge his witness list prior to voir dire of the jury.

See State ex rel Hill v. Reed, 483 S.E.2d 89 (W.Va. 1996) (lower court acted

within its discretion in ordering state and petitioner to provide the court with

a list of witnesses on the first day of trial prior to voir dire of jury); People

v. Cangiano, 502 N.Y.S.2d 349 (1986) (disclosure of prospective witnesses is

required to determine whether any prospective juror is related to or knows

any one of them and may be challenged for cause3, and disclosure

immediately prior to jury selection cannot prejudice defense absent

extraordinary circumstances); State v. Ussery, 416 S.E.2d 610 (N.C. 1992)(no

abuse of discretion in requirement that defendant divulge potential witnesses

for voir dire purposes); People v. Perry, 569 N.E.2d 287 (111. App. 1991); Com.

v. Larsen, 682 A.2d 783 (Pa. 1996). See also Mau v. North American

Asbestos Corporation, 509 N.E.2d 112 (Ill. App. 1987) (list of witnesses is not

"work product" and statute limiting disclosure of witnesses applied only to

pretrial discovery). We find the trial court acted within its discretion in


2Miller dealt with former Circuit Court rule 103, now Rule 5,

SCRCrimP. Rule 5 is inapplicable here; it deals with pre-trial discovery of

documents in a criminal case; it does not address disclosure of witness lists

during voir dire for purposes of jury selection.

3Notably, in the present case, the trial court struck one juror for cause

after the defense disclosed its witnesses.

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STATE v. POWERS

requiring disclosure of Powers' witness list during jury selection.

3. ESTOPPEL TO SEEK DEATH PENALTY

Powers next asserts the trial court erred in denyin4 his motion to estop

the state from seeking the death penalty where it failed to serve him with

a "Notice of Intent To Seek The Death Penalty" for more than three years

after his indictment. We find no estoppel.

Powers' failure to raise a speedy trial motion precludes review of this

issue. State v. Burroughs, Op. No. 2726, S.C. Ct. App. filed Sept. 27, 1997

(Davis Adv. Sh. No. 28).

In any event, the only notice requirement for the state to seek the

death penalty is that the defendant be given 30 days notice prior to trial.

S.C. Code Ann. § 16-3-26(A) (Cum.Supp. 1996); State v. Young, 319 S.C. 33,

459 S.E.2d 84 (1995). Powers claims, citing Riggins v. Nevada, 504 U.S. 127,

112 S.Ct. 1810, 118 L.Ed.2d 479 (1992), that the jury "was entitled to see the

true demeanor of the defendant at the time that the crime was committed."

Riggins merely held that forced medication, during trial, denies a defendant

due process unless it is essential to medicate the defendant to enable him to

be tried. Riggins is inapplicable.

As Powers was given the notice required by section 16-3-26, the trial

court properly ruled the state was not estopped to seek the death penalty.

4. VICTIM IMPACT EVIDENCE

Powers next contends the trial court erred in failing to hold an in

camera hearing on the admissibility of the state's victim impact evidence.

We disagree.

This Court has never required an in camera hearing prior to admitting

victim impact evidence, and the cases implicitly recognize that such a hearing

is not necessary. See State v. Byram, _ S.C. _, 485 S.E.2d 360, 365

(1997). On the contrary, we have held it is within the trial judge's discretion

whether to rule on the admissibility of evidence prior to its being offered in

the regular course of the trial. State v. Bridges, 278 S.C. 447, 298 S.E.2d

212 (1982). We have also recognized that in all situations other than an

assault on the voluntariness of a confession, the granting of a motion for a

suppression hearing is a matter committed to the discretion of the trial judge.

State v. Patton, 322 S.C. 408, 472 S.E.2d 245 (S.C. 1996), citing United

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STATE v. POWERS

States v. Odom, 736 F.2d 104, 110 (4th Cir.1984). See also State v. Silver,

307 S.C. 326, 414 S.E.2d 813 (Ct.App.1992), aff'd as modified, 314 S.C. 483,

431 S.E.2d 250 (1993) (criminal defendant does not have an absolute right to

a pretrial, in camera hearing and ruling on an in limine motion to exclude

breathalyzer results in a DUI trial). We hold it is within the trial court's

discretion whether to hold an in camera prior to admitting victim impact

evidence.

Moreover, the victim impact evidence in this case was properly

admitted. The entirety of the evidence presented was the brief testimony of

Senn's daughter, Deborah, and his wife, Linnie. This testimony was well

within the parameters of previous cases of this state, and was permissible to

demonstrate Mr. Senn's uniqueness as a human being and the impact his

death had on his family. See State v. Rocheville, 310 S.C. 20, 425 S.E.2d 32,

cert. denied, 508 U.S. 978, 113 S.Ct. 2978, 125 L.Ed.2d 675 (1993) (victim

impact evidence served purpose of showing the specific harm committed by

the defendant and merely portrayed victims as unique individuals); Riddle v.

State, 314 S.C. 1, 443 S.E.2d 557, cert. denied, 513 U.S. 1003, 115 S.Ct. 518,

130 L.Ed.2d 424 (1994) (testimony of victim's stepdaughter regarding victim's

standing in the community, victim's grandchildren, and the impact the crime

personally had on stepdaughter was relevant to establish the victim as a

unique human being and to show specific harm committed by defendant);

State v. Ivey , _ S.C. _, 481 S.E.2d 125 (1997) (testimony of victim's

mother that victim pled for his life and that his death was useless held

permissible). We find no error.

5. COLOR PHOTOGRAPHS

Powers next asserts 6 color photographs admitted at the sentencing

phase of his trial were so gruesome and prejudicial as to require reversal.

We disagree.

The relevance, materiality and admissibility of photographs are matters

within the sound discretion of the trial court. If the photographs serve to

corroborate testimony, it is not an abuse of discretion to admit them. State

v, Tucker, supra; State v. Nance, 320 S.C. 501, 466 S.E.2d 349, cert. denied,

__U.S. __ , 116 S.Ct. 2566, 135 L.Ed.2d 1083 (1996). A photograph should

be excluded only if it is calculated to arouse the jury's sympathy or prejudice

or is irrelevant or unnecessary to substantiate facts. State v. Todd ' 290 S.C.

212, 349 S.E.2d 339 (1986). Photographs of the victim's body are admissible

in the sentencing phase of a capital trial to show the circumstances of the

crime and the character of the defendant. State v. Kornahrens, 290 S.C. 281,

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STATE v. POWERS

350 S.E.2d 180 (1986). The trial judge must balance the prejudicial effect of

the photographs against their probative value. However, the scope of the

probative value is much broader during the sentencing phase of a capital

trial. State v. Williams, 321 S.C. 327, 468 S.E.2d 626 (1996).

We have viewed the photos and, although they are not pleasant, they

depict the victim's body in substantially the same condition as Powers left it,

and are relevant to demonstrate the circumstances of the crime. The autopsy

photographs corroborate the pathologist's testimony describing the wounds

Victim received. Accordingly, we find the photos were properly admitted.

Powers contends, citing State v. Franklin, 318 S.C. 47, 456 S.E.2d 357

(1995), that photographs are admissible only to demonstrate an aggravating

circumstance in the case. We disagree. Although Franklin held certain color

photographs admissible because they served to demonstrate the aggravating

circumstance of torture, Franklin does not stand for the proposition that such

photographs may be admitted only to demonstrate an aggravating

circumstance. Such a holding would be contrary to the majority of this

Court's opinions addressing the admissibility of color photos at the sentencing

phase of a capital trial and finding them relevant and admissible so long as

they demonstrate the circumstances of the crime and the character of the

defendant, or they depict the victim's body in substantially the same

condition in which the defendant left it. State v. Tucker, supra, State v.

Williams, supra; State v. Komahrens; Riddle v. State 314 S.C. 1, 443 S.E.2d

557 (1994); State v. Gilbert, 277 S.C. 53, 283 S.E.2d 179 (1981). See also

State v. Shaw, 273 S.C. 194, 255 S.E.2d 799 (1979) (photographs depicting

postmortem abuse to victim's body properly admitted, not as additional

evidence in aggravation of punishment, but as evidence of the

circumstances of the crime and the characteristics of the individual

defendant). Accordingly, we find the photos were properly admitted.

6. VIDEOTAPE

Powers next asserts error in the admission of a videotape, at

sentencing, of the crime scene as police found it in the early morning hours

of Sept. 8, 1990. The videotape depicts Victim's body exactly as police found

it, and is not unduly gruesome. We find the videotape permitted the jury to

gain a true perspective of the scene precisely as Powers left it. Accordingly,

it was properly admitted. Accord State v. Kelley, 319 S.C. 173, 460 S.E.2d

368 (1995).

Moreover, unlike still photographs, the videotape allowed the jury to

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STATE v. POWERS

gain a dimensional viewpoint, accord Camargo v. State, 941 S.W.2d 404 (Ark.

1997); Flores v. State, 915 S.W.2d 651 (Tex. App. 1996) (generally, videotapes

give a more panoramic representation of the evidence than a still photograph

and, thus, may be more helpful to the jury than a still photo), and sheds

light on the violence done to the victim. See Williams v. State, 874 S.W.2d

369 (Ark. 1994) (videotape and photographs showed the nature and extent of

wounds which were relevant to showing the defendant's intent as could be

inferred from the type of weapon used, the manner of use, and the nature,

extent and location of wounds); Wellons v. State, 463 S.E.2d 868 (Ga. 1995)

(videotape showing location of body and murder scene was probative of

defendant's intent and mental state). See generally Allen, Admissibility of

Visual Recording, 41 A.L.R.4th 877, § 11(a) (1985). Admission of the

videotape was proper.

7. VOIR DIRE RE MITIGATING CIRCUMSTANCES

Powers contends, citing Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222

(1992), that he should have been permitted to ask prospective jurors their

opinion of various mitigating circumstances. We recently rejected an

identical contention in State v. David Claylon Hill, S.C. Sup. Ct. Op. No. 24803

(filed June 8,, 1998) (Davis Adv. Sh. No. 21 at 60) See also State v.

Patterson, 324 S.C. 5, 482 S.E.2d 760 (1997) (upholding trial court's

limitation of voir dire regarding mitigating circumstances).

As noted by our opinion in Hill, Morgan v. Illinois does not require the

questioning concerning specific mitigating factors. Morgan merely recognized

that a capital defendant may challenge for cause any prospective juror who

indicates he or she will automatically vote for death in every case.4Morgan

does not, however, stand for the proposition that a defendant is entitled to

open-ended inquiry regarding a prospective juror's sentiments on each and

every possible aggravating and mitigating circumstance. Other courts have

specifically rejected an identical contention. See State of North Carolina v.

Skipper, 446 S.E.2d 252, cert. denied 115 S.Ct. 953, 130 L.Ed.2d 895 (N.C.

1994) (holding that Morgan does not require a defendant to be permitted to


4Recently, in State v. Bennett, we reversed a sentencing phase

proceeding where a juror's response to voir dire indicated that if eleven other

jurors so voted, he would always go along with the majority and vote for a

sentence of death. Under these circumstances, we found he would

"automatically" vote for death such that he was not qualified. State v.

Bennett, Op. No. 24718, S.C. Sup. Ct. filed Dec. 1, 1997 (Davis Adv. Sh. No.

33).

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STATE v. POWERS

voir dire jurors regarding how they would be affected by evidence of mental

impairment, age, and other mitigating circumstances, since such questions

would "stake out" juror and pledge him to a future course of action; general

questions as to whether juror would consider mitigating circumstances as

charged by the judge are sufficient); State v. Wilson, 659 N.E.2d 292 (Ohio

1996) (Morgan does not require individual voir dire on separate mitigating

factors); State v. Kreutzer, 928 S.W.2d 854 (Mo. 1996).

Here, Powers was permitted to question jurors if they would consider

aggravating and mitigating circumstances as charged by the trial court; and

was specifically permitted to ask if they would consider age as a mitigating

circumstance if so charged by the judge. The trial court acted within its

discretion in limiting the scope of voir dire in this case. State v. Patterson,

supra (manner and scope of additional voir dire are matters within trial

court's discretion).

Powers remaining issues are affirmed pursuant to Rule 220(b), SCACR,

and the following authorities: Powers' Issue 4 (Notice of Prior Bad Acts)--

State v. Gaskins, 284 S.C. 105, 326 S.E.2d 132 (1985); State v. Plath, 277

S.C. 126Y 284 S.E.2d 221 (1981); Powers' Issue 5 (Polygraph)-- State v.

Pressley, 290 S.C. 251, 349 S.E.2d 403 (1986); State v. Coipeland, 278 S.C.

572y 300 S.E.2d 63 (1982); Powers' Issue 9 (Solicitor's closing)-- State v.

Franklin, 318 S.C. 47, 456 S.E.2d 357 (1995); State v. Bell, 302 S.C. 18, 393

S.E.2d 364 (1989).

CONCLUSION

Powers' convictions and sentences are affirmed. We have conducted the

proportionality review required by S.C. Code Ann. § 16-3-25(c) (1985). The

death sentence in this case is proportionate to that in similar cases and is

neither excessive nor disproportionate to the crime. State v. Wright, 322

S.C. 253, 471 S.E.2d 700 (1996); State v. Conyers, __S.C.__ , 487 S.E.2d

181 (1997); State v. Byram, __ S.C.__, 485 S.E.2d 360 (1997); State v.

Nance, 320 S.C. 501, 466 S.E.2d 340, cert. denied, 518 U.S. _, 116 S.Ct.

2566, 135 f,.Ed.2d 1083 (1996).

AFFIRMED.

TOAL, MOORE, BURNETT , JJ., and Acting Associate Justice L. Henry

McKellar, concur.

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