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24809 - State v. Theodore Kelly

Davis Adv. Sh. No. 24
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court





The State, Respondent,

v.

Theodore Kelly, Appellant.



Appeal From Spartanburg County

Gary E. Clary, Judge





Opinion No. 24809

Heard May 6, 1997 - Filed June 29, 1998





AFFIRMED





Assistant Appellate Defender Robert M. Pachak, of

S.C. 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, all of

Columbia; and Solicitor Holman C. Gossett, Jr., of

Spartanburg, for respondent.





BURNETT, A.J.: Appellant Theodore Kelly was convicted of

murdering his estranged wife, Imogene Kelly (Mrs. Kelly), and her

daughter's fiancee, Keith Epps. Appellant was also convicted of assault and

battery with intent to kill for his attack on Mrs. Kelly's daughter, Tracy

p.3


STATE v. KELLY





Smith. Appellant was sentenced to death for the murders1 and twenty

years for assault and battery with intent to kill.





FACTS

This incident arose out of a domestic dispute between appellant

and Mrs. Kelly. Mrs. Kelly's daughter, Tracy, testified her mother had

obtained a restraining order against appellant in March of 1994. She

further stated Mrs. Kelly contacted the police on June 7, 1994, at

approximately 5:30 p.m. because appellant had come to her residence.

However, when the police arrived, they refused to enforce the order

because they determined appellant had been living in the residence after

the March restraining order was issued. Therefore, the police informed

Mrs. Kelly her restraining order was invalid and she would have to obtain

a new order. The police did escort appellant off the premises. After

another discussion later that same evening between the police, Mrs. Kelly

and appellant, Mrs. Kelly agreed to place appellant's clothes in a plastic

garbage bag and leave it for him on the front porch.





Tracy testified she saw appellant outside the house around

10:00 p.m. that night; however, she did not call the police because she

thought he was there to get his clothes. Mrs. Kelly, Tracy's five-year-old

son, and Mrs. Kelly's three-year-old adopted daughter went to bed around

10:00 p.m. They all slept in the same bed. Tracy and Keith were in

Tracy's bedroom. Around 11:00 p.m., Keith went out to his car.

Immediately after Keith left the house, Tracy heard a gunshot and then

appellant ran into Tracy's bedroom. She attempted to hide in her closet;

however, appellant attacked her and shot her twice. Appellant then ran

out of Tracy's room and into her mother's room. Tracy heard her mother

say "no Theodore" and she heard two gunshots. During this time Tracy

attempted to leave the room; however, appellant returned to her room and

she, again, ran to the closet. As appellant attempted to pull Tracy out of

the closet, he shot at her again but missed. Appellant then returned to

Mrs. Kelly's room and Tracy heard the sound of a physical assault. Tracy

again attempted to leave the room; however, appellant returned and began

striking her on the head with the gun. Appellant then went into the

kitchen, returned with a knife, and stabbed Tracy several times.

Appellant went toward the front of the house and Tracy was able to


1The jury found the following statutory aggravating circumstance:

two or more persons were murdered by the defendant by one act or

pursuant to one scheme. S.C. Code Ann. § 16-3-20(C)(a)(9) (Supp. 1997).

p.4


STATE v. KELLY





escape and run to a neighbor's house for help.

Tracy's son, who was in the bedroom with Mrs. Kelly, testified

the sound of a gunshot woke him and he saw appellant shoot and beat

Mrs. Kelly. Tracy's son testified appellant told him to go back to sleep

and he did.



Keith's body was found outside the home with a .25 caliber

gunshot wound to the head. Mrs. Kelly's body, severely beaten and with

two .25 caliber gunshot wounds, was found in her bedroom. Tracy

suffered two gunshot and several stab wounds. Fortunately, she survived

the attack. Remarkably, the two children, who were sleeping in Mrs.

Kelly's bedroom, were unharmed. The gun was never found. The clothes

Mrs. Kelly had left on the porch for appellant were gone.





Appellant testified after his dispute with Mrs. Kelly he went to

play softball. Because he was upset, he decided not to play and rode with

some men to a liquor store where he purchased and consumed a pint of

liquor. Appellant then testified he went with the men to a crack house

near Mrs. Kelly's residence, where he ingested some cocaine. Appellant

purchased a .25 caliber automatic pistol from patrons of the crack house

and walked to Mrs. Kelly's residence to pick up his clothes. When he

arrived, Keith opened the front door and began threatening appellant.

Keith and appellant fought. During the fight, Tracy and Mrs. Kelly came

to the door and Mrs. Kelly threw Keith a gun and told Keith to shoot

appellant. When Keith reached for the gun, appellant shot him with the

.25 caliber pistol. Appellant testified he did not remember anything after

that point until he was back at the crack house. A pistol clip from a .380

caliber pistol or a nine millimeter pistol was found outside Mrs. Kelly's

residence. This clip could not be used in a .25 caliber pistol.





ISSUES



I. Did the trial judge abuse his discretion in refusing to grant

appellant's motion for a mistrial based on juror misconduct?



II. Did the trial judge err in denying appellant's motion for a

new trial based on information obtained about one of the jurors

after the conclusion of the trial?



III. Did the trial judge err in finding appellant competent to

stand trial prior to the presentation of the defense case in the



p.5


STATE v. KEL.LY





penalty phase of the trial?



DISCUSSION





I.

Appellant argues the trial judge erred in refusing to grant his

motion for a mistrial based on juror misconduct. We disagree.





After all the testimony had been presented, but prior to closing

arguments in the penalty phase of the trial, the trial judge received a note

from Juror S.2 The note indicated a religious pamphlet concerning God's

view on capital punishment was being circulated in the jury room. Upon

receiving the note, the trial judge questioned the jurors individually to

determine who, if anyone, had read the pamphlet and what information

was contained in the pamphlet.





First, the trial judge questioned Juror S, who claimed she had

only seen the outside cover of the pamphlet. According to Juror S, Juror

O had brought the pamphlet into the jury room and Juror O had shared

the pamphlet with Juror H and Juror A. Juror S also stated other

members of the jury were reading their Bibles on an individual basis. The

trial judge voir dired the jurors named by Juror S as to whether they had

received or been exposed to a pamphlet. None of the jurors admitted to

being exposed to any material outside of the courtroom. All the jurors

confirmed they could render a fair and impartial verdict based solely on

the evidence presented in the courtroom.





Because the trial judge was concerned the jurors did not

understand his questions, he inquired again and specifically asked the

jurors if they had read a pamphlet expressing God's view on capital

punishment. Four jurors admitted to either seeing and/or reading the

pamphlet. However, three of these jurors claimed they could not recall

any of the contents of the pamphlet or whether it expressed a view on

capital punishment. Further, these jurors stated the pamphlet had not

been offered to them until that morning. These three jurors indicated

their exposure to this pamphlet would not interfere with their ability to

render a fair and impartial verdict. The fourth juror, Juror O, admitted

the pamphlet belonged to her and that her prayer partner at church had

given her this pamphlet prior to sequestration. Juror O showed the




2 The names of the jurors are not relevant to this discussion.

p.6


STATE v. KELLY





pamphlet to the trial judge and stated the pamphlet contained Biblical

references on capital punishment.3 Juror O further admitted she offered

this pamphlet to other jurors; however, she was unsure if any of the other

jurors had actually read the pamphlet. Two other members of the jury

indicated they were reading their Bibles on their own.





Appellant's counsel made a motion for a mistrial based on this

pamphlet arguing the jurors had been less than truthful when initially

questioned under oath, at least four jurors had been tainted by the

pamphlet and, because Juror O possessed this pamphlet prior to the

commencement of the trial, both phases of the trial were affected.4





The trial judge denied appellant's mistrial motion; however, he

did dismiss Juror O. The trial judge specifically found the pamphlet did

not influence the verdict rendered in the guilt phase because the pamphlet

concerned capital punishment. The trial judge further concluded no other

juror had been exposed to the contents of this pamphlet and the remaining

jurors indicated they could render a fair and impartial verdict based on

his instructions. Therefore, the trial judge found the remaining jury

members were not biased by the pamphlet.





The Sixth and Fourteenth Amendments of the United States


3The pamphlet, "God, Law, and Capital Punishment," expresses a

pro-death penalty view and references Bible passages to support its view.

4Appellant did not argue to the trial judge that the jurors were

engaging in premature deliberations. Therefore, this issue is not

preserved for appellate review. State v. Byram, 326 S.C. 107, 485 S.E.2d

360 (1997) (an issue must be raised to and ruled upon by the trial judge

in order to be preserved for appellate review). Further, in his brief,

appellant relies on the Bible reading by certain jurors as a ground for a

mistrial. Although this issue was raised in the new trial motion, it was

not raised as a ground for a mistrial. Thus, appellant cannot properly

raise this type of trial error for the first time in his new trial motion.

State v. Holmes, 320 S.C. 259, 464 S.E.2d 334 (1995). cert. denied, ____

U.S. ____, 116 S.Ct. 2507, 135 L.Ed.2d 197 (1996) (evidentiary error cannot

be raised for first time in a new trial motion). Further, possession by

jurors of personal Bibles consulted for personal guidance in the jury room

prior to deliberations is not per se jury misconduct. See Jones v. Kemp,

706 F. Supp. 1534 (N.D. Ga. 1989) (misconduct occurs when the Bible was

allowed in the jury room for use by a deliberating jury).

p.7


STATE v. KELLY



Constitution guarantee a defendant a fair trial by a panel of impartial and

indifferent jurors. Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48

L.Ed.2d 126 (1976); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d

751 (1961); see also S.C. Const. art 1, §§ 3 & 14. To safeguard these

rights, "it is required that the jury render its verdict free from outside

influences of whatever kind and nature." State v. Cameron, 311 S.C. 204,

207, 428 S.E.2d 10, 12 (Ct. App. 1993).





In a criminal prosecution, the conduct of the jurors should be

free from all extraneous or improper influences. Unless the misconduct

affects the jury's impartiality, it is not such misconduct as will affect the

verdict. The trial court has broad discretion in assessing allegations of

juror misconduct. Relevant factors to be considered in determining

whether outside influences have affected the jury are the number of jurors

exposed, the weight of the evidence properly before the jury, and the

likelihood that curative measures were effective in reducing the prejudice.

Generally, the determination of whether extraneous material received by a

juror during the course of the trial is prejudicial is a matter for

determination by the trial court. 23A C.J.S. Criminal Law § 1365 (1989).





The granting or refusing of a motion for a mistrial lies within

the sound discretion of the trial court and its ruling will not be disturbed

on appeal unless an abuse of discretion amounting to an error of law

occurs. State v. Wasson, 299 S.C. 508, 386 S.E.2d 255 (1989). A mistrial

should not be granted unless absolutely necessary. Instead, the trial judge

should exhaust other methods to cure possible prejudice before aborting a

trial. Id. In order to receive a mistrial, the defendant must show error

and resulting prejudice. Id. The trial judge is in the best position to

determine the credibility of the jurors; therefore, this Court should grant

him broad deference on this issue. State v. Johnson, 248 S.C. 153, 149

S.E.2d 348 (1966) (the question of the impartiality of the juror is

addressed to the discretion of the trial judge); State v. Loftis, 232 S.C. 35,

100 S.E.2d 671 (1957) (refusing to interfere with the discretion of a trial

judge in matters involving the jury because the trial judge has the

opportunity to consider the credibility of the jurors).





While it was improper for Juror O to possess this pamphlet, in

our opinion, appellant failed to show prejudice. Initially, we find it

illogical to assume Juror O was influenced in the guilt phase of the trial

because of this pamphlet. At most, this pamphlet may influence a juror to

sentence a convicted defendant to death for his crime. Therefore, the trial

judge correctly concluded this pamphlet did not affect the verdict rendered

p.8


STATE v. KELLY



by the jury in the guilt phase of this trial.



Moreover, the trial judge is in the best position to determine

the credibility of the jurors and he found them credibly and capable of

rendering an impartial verdict based solely on the evidence. See State v.

Johnson, supra. The trial judge conducted extensive voir dire of the jurors

both prior to empaneling the jury and during questioning concerning this

incident. The trial judge questioned jurors extensively about potential

biases and prejudices and, thus, placed himself in the best position to

assess the truthfulness of the jurors. Further, the trial judge consistently

admonished the jury not to discuss the case and not to consider

extraneous material. The trial judge did not find members of the jury

were being untruthful. We respect this finding.





Further, the misconduct occurred prior to deliberations and the

trial judge immediately removed the tainted juror. See United States v.

Hill, 688 F.2d 18 (6th Cir.), cert. denied, 459 U.S. 1074, 103 S.Ct. 498, 74

L.Ed.2d 638 (1982) (both jurors exposed to extraneous materials were

dismissed from the jury prior to deliberations and the materials were

immediately removed from the jury room; therefore, defendant suffered no

prejudice); State v. Rodgers, 435 P.2d 864 (Ariz. Ct. App. 1967), vacated on

other grounds, 442 P.2d 840 (Ariz. 1968) (affirming trial court where

although the juror committed misconduct by reading a book on criminal

instructions during a recess, the trial court carefully went into the effect of

the extracurricular reading and concluded there was no prejudice); Jordan

v. State, 429 S.E.2d 97 (Ga. Ct. App. 1993) (affirming trial court where

trial court questioned juror who had brought material into the jury room

and found no harm); Earley v. State, 595 So.2d 430 (Miss. 1992) (finding

no abuse of discretion where the only juror who read the entire newspaper

article was promptly dismissed and the other jurors who had only read

portions of the article which were not prejudicial were retained); Lane v.

State, 881 P.2d 1358 (Nev. 1994), cert. dismissed, 514 U.S. 1058, 115 S.Ct.

1444, 131 L.Ed.2d 323 (1995) (no abuse of discretion in denying

defendant's motion for a mistrial where the juror who brought the book

into the jury room was removed and all other jurors indicated upon

questioning that they had not been influenced by the dismissed juror and

would follow the law as instructed); State v. Bonney, 405 S.E.2d 145 (N.C.

1991) (upholding the trial court's denial of defendant's mistrial motion

where trial court conducted a thorough inquiry and court removed juror

who had brought a book entitled "The Complete Jack the Ripper" into the

jury room during the trial and had watched the news coverage of this trial

on television); State v. Searles, 621 A.2d 1281 (Vt. 1993) (trial court has

p.9


STATE v. KELLY





discretion in evaluating the impact of a news account upon the jury and,

where some jurors had knowledge of the news account but no juror

responded that the knowledge would influence the juror's judgment, there

was no showing of an abuse of discretion).





There is no evidence suggesting any juror except Juror O had

access to the pamphlet prior to the morning of closing arguments in the

sentencing phase of the trial. Therefore, the deliberations of the

remaining jurors were not tainted by the pamphlet and, in our opinion,

the trial judge did not abuse his discretion in denying appellant's motion

for a mistrial. Instead, the trial judge took appropriate action by

removing the tainted juror from the jury and replacing her with an

alternate juror to ensure appellant received a fair and impartial verdict.





II.

Appellant contends the trial court erred in denying his new

trial motion based on information obtained about Juror P after the trial

concluded. Specifically, appellant claims Juror P's failure to disclose his

participation in a death penalty rally in 1986 during voir dire prevented

appellant from making an intelligent decision in exercising his peremptory

strikes. We disagree.





Juror P was never specifically asked during voir dire about his

participation in a death penalty rally. The defense did question Juror P

about his "position" on the death penalty. Juror P's response to this

question was it would depend on the situation. Juror P admitted he had

thought about the death penalty in the past. During voir dire, Juror P

indicated he could be fair and impartial and depending on the

circumstances he could return either a life sentence or death sentence.

Juror P indicated once again he could be impartial when questioned about

the pamphlet incident.





After the jury returned its sentence in this case, a local

newspaper article quoted Juror P as saying "l think the only thing I regret

is that [appellant] has only one life to give for the two he took." In the

article, Juror P revealed in 1986 while a student at Winthrop College, he

led a group of 40 students on a trip to Columbia to attend the execution of

Terry Roach. An article in the Winthrop paper indicated Juror P was

supporting the execution of Roach; however, he was not advocating

execution in all cases. Further, the rally was organized as an educational

program in an effort to raise social awareness.





p.10


STATE v. KELLY





Appellant's new trial motion was premised on Juror P's

misleading and incomplete answers on voir dire. Appellant maintained

that had he been aware of Juror P's activities, he would have exercised a

preemptory strike to exclude Juror P from the jury. After careful review

of Juror P's voir dire and the newspaper articles, the trial judge denied

the new trial motion finding nothing Juror P did in 1986 had any bearing

on his voir dire in this case. The trial judge found Juror P qualified as a

potential juror and his activities in 1986 did not disqualify him. He

refused to allow appellant to question Juror P.





Appellant does not claim Juror P was disqualified as a

potential juror as a matter of law. Instead, the question is whether Juror

P intentionally concealed information during voir dire, thus denying

appellant the opportunity to make an informed decision concerning the

seating of this prospective juror.



A trial court's denial of a new trial motion will not be

disturbed on review absent a showing of an abuse of discretion which

results in prejudice to the defendant. State v. Dawkins, 297 S.C. 386, 377

S.E.2d 298 (1989); State v. Savage, 306 S.C. 5, 409 S.E.2d 809 (Ct. App.

1991).



The United States and South Carolina Constitutions guarantee

a criminal defendant the right to an impartial jury. U.S. Const. amend.

VI; S.C. Const., art. 1, § 14. To protect both parties' right to an impartial

jury, the trial judge must ask potential jurors, inter alia, whether they

have formed an opinion about a case or are aware of any bias or prejudice

against a party. State v. Cason, 317 S.C. 430, 454 S.E.2d 888 (1995); S.C.

Code Ann. § 14-7-1020 (Supp. 1997). This Court has recognized trial

judges and attorneys cannot fulfill their duty to screen out biased jurors

without accurate information.





Necessarily it is expected and required that jurors in

their answers shall be completely truthful and that they

shall disclose, upon a general question, any matters

which might tend to disqualify them from sitting on the

case for any reason. It therefore becomes imperative

that the answers be truthful and complete. False or

misleading answers may result in the seating of a juror

who might have been discharged by the Court, challenged

for cause by counsel or stricken through the exercise of

peremptory challenge.





p.11


STATE v. KELLY





State v. Gulledge, 277 S.C. 368, 371, 287 S.E.2d 488, 490 (1982) (quoting

Photostat Corp. v. Ball, 338 F.2d 783 (10th Cir. 1964)); see also 47

Am.Jur.2d Jury §§ 195, 208-09 (1995).





"[A new trial] is required only when the court finds the

[intentionally] concealed information would have supported a challenge for

cause or would have been a material factor in the use of the party's

peremptory challenges. The inquiry must focus on the character of the

concealed information, not on the mere fact that a concealment occurred."

Thompson v. O'Rourke, 288 S.C. 13, 15, 339 S.E.2d 505, 508 (1986).

Using the juror disqualification analysis developed by this Court, our first

question is whether Juror P intentionally concealed information in not

revealing his past activities during voir dire. Gray v. Bryant, 298 S.C.

2851, 379 S.E.2d 894 (1989).





Here, we find no abuse of discretion because Juror P did not

intentionally conceal information during voir dire. Gray v. Bryant, supra

(finding intentional concealment where juror failed to disclose relationship

when asked specifically about existence of relationship); State v. Savage,

supra (finding failure to disclose relationship was not intentional).

Appellant failed to show Juror P's responses during voir dire were

untruthful or deceitful. When questioned about his "position" on the death

penalty, Juror P admitted he had "thought about it in the past." However,

he indicated his "position" would depend on the circumstances of each

case. Juror P was not specifically asked if he had participated in death

penalty activities in the past. In our opinion, a question concerning Juror

P's "position" on the death penalty would not elicit the information

appellant claims was intentionally concealed. Further, Juror P's activities

in 1986 only indicate he supported the execution of Roach, not that he

supported execution in all cases. This is consistent with his testimony

given during voir dire indicating that, depending on the circumstances, he

could impose a life sentence or a death sentence.





III.





Appellant contends the trial judge should have granted a

continuance in the penalty phase of the trial when Dr. Lillian Tidler, a

court qualified forensic psychiatrist, concluded appellant could not

competently make a rational decision to take the stand and testify.





Appellant was diagnosed as suffering from Bipolar Type-II

Disorder (depression with hypermanic features); a history of alcohol abuse;





p.12


STATE v. KELLY





borderline intellectual functioning; and a partial complex seizure disorder.

He also has paranoid tendencies and periodically experiences

hallucinations. During the competency hearing on August 7, 1995, Dr.

Tidler testified appellant was competent to stand trial; however, she

informed the trial court that the stress of this trial could cause appellant

to hallucinate resulting in impairment of his rational understanding of

these proceedings. While the trial judge found appellant competent to

stand trial, he ordered Dr. Tidler to be available to perform competency

exams during the trial in case appellant's condition deteriorated.





Prior to presentation of the defense case in the penalty phase,

Dr. Tidler testified that upon her most recent examination, she found

appellant competent even though he was experiencing some auditory

hallucinations. Dr. Tidler opined:





It is my opinion with a reasonable degree of medical certainty,

that overall [appellant] possesses a rational and factual

understanding of the courtroom trial process and overall

possesses the ability to assist [lead counsel] and his other

attorney in his defense; however, in terms of taking the stand

and making a rational decision, in that area I find he is not,

but overall I find he meets the statutory requirements overall.

. . . He's competent in assisting [trial counsel], however, he

disregards their legal advice based on his irrational thinking.





Dr. Tidler testified, guided in part by auditory hallucinations from his

dead sister, appellant hoped that by asking the jury for death he would

receive a life sentence. Dr. Tidler stated the decision to testify and ask for

the death penalty was not a rational decision or consistent with

appellant's wish to live. On cross-examination, Dr. Tidler testified

appellant possessed a rational and factual understanding of the courtroom

proceedings. Further, upon inquiry by the trial judge, Dr. Tidler stated

appellant understood the roles of the judge, solicitor, defense counsel and

jury.





The trial judge then questioned appellant. Appellant indicated

he no longer wished to testify; however, he did want to address the jury

during closing arguments. The trial judge then found appellant was still

competent to stand trial. Appellant's counsel did not object to this ruling,

nor did they seek other relief. During closing arguments, appellant did

address the jury and ask for death in a fairly incoherent statement;

p.13


STATE v. KELLY



however, he did not testify.5



On appeal, appellant contends the trial judge should have

continued the penalty phase until appellant was competent to consult

rationally with his attorneys regarding whether to make a statement to

the jury. This claim is unpreserved for review having neither been raised

to nor ruled upon below. State v. Patterson, 324 S.C. 5, 482 S.E.2d 760,

cert. denied, ___ U.S. ___, 118 S.Ct. 146 (1997).





The test for competency to stand trial or continue trial is

whether the defendant has the sufficient present ability to consult with his

lawyer with a reasonable degree of rational understanding and whether he

has a rational, as well as a factual, understanding of the proceedings

against him. Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d

103 (1975); Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d

824 (1960); 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); 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). The purpose of requiring a defendant to be competent

is "to ensure that he has the capacity to understand the proceedings and

to assist counsel." Godinez v. Moran, 509 U.S. 389, 402, 113 S.Ct. 2680,

2688, 125 L.Ed.2d 321, 329 (1993); see also Bell v. Evatt, 72 F.3d 421 (4th

Cir. 1995), cert. denied, ___ U.S. ___, 116 S.Ct. 2533, 135 L.Ed.2d 1056

(1996) (finding the trial judge only had to ensure the defendant had the

capacity to understand, the capacity to assist, and the capacity to

communicate with his counsel, not that the defendant was acting in

accordance with his capacity). A defendant must be competent throughout

the trial, not just at its commencement. Drope v. Missouri, supra. The

defendant bears the burden of proving his incompetence by a

preponderance of the evidence. State v. Nance, supra. The trial court's

determination of competency will be upheld if it has evidentiary support

and is not against the preponderance of the evidence. Id.




5Defense counsel informed the trial court prior to closing arguments

in the penalty phase that they had advised appellant not to address the

jury. However, the mere fact that appellant chose to disregard his

lawyer's advice does not make him incompetent to stand trial. See 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); Adams v. Aiken, 965 F.2d 1306 (4th.

Cir. 1992), judgment vacated on other grounds by, 511 U.S. 1001, 114

S.Ct. 1365, 128 L.Ed.2d 42 (1994).





p.14


STATE v. KELLY





We uphold the trial court's determination that appellant was

competent. In reaching his conclusion, the trial judge considered Dr.

Tidler's testimony, his own observations and appellant's testimony. See

22A C.J.S. Criminal Law § 554 (1989) (trial judge is sole judge of the

credibility of witnesses and the weight to be given their testimony, and he

also is entitled to evaluate the conflicting testimony). Dr. Tidler found

appellant possessed a rational and factual understanding of the

proceedings. Further, contrary to Dr. Tidler's assertion that appellant was

irrationally disregarding his counsels' advice not to testify, appellant

indicated he was following his counsels' advice and did not want to testify.

Thus, appellant was capable of consulting with and assisting his defense

lawyers. Because there is evidentiary support for the conclusion reached

by the trial court, and a finding of competency based on the record is not

against the preponderance of the evidence, we affirm on this issue.





PROPORTIONALITY REVIEW

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 the statutory aggravating circumstance of

two or more persons were murdered by the defendant by one act or

pursuant to one scheme is supported by the evidence. See S.C. Code Ann.

§ 16-3-25 (1985). Further, we hold the death penalty is neither excessive

nor disproportionate to that imposed in similar cases. See State v.

Williams, 321 S.C. 327, 468 S.E.2d 626, cert. denied, ___ U.S. ___, 117

S.Ct. 230, 136 L.Ed.2d 161 (1996); State v. Wilson, 306 S.C. 498, 413

S.E.2d 19, cert. denied, 506 U.S. 846, 113 S.Ct. 137, 121 L.Ed.2d 90

(1992); State v. Atkins, 303 S.C. 214, 399 S.E.2d 760 (1990), cert. denied,

501 U.S. 1259, 111 S.Ct. 2913, 115 L.Ed.2d 1076 (1991); State v.

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

940, 107 S.Ct. 1592, 94 L.Ed.2d 781 (1987); State v. Lucas, 285 S.C. 37,

328 S.E.2d 63, cert. denied, 472 U.S. 1012, 105 S.Ct. 2714, 86 L.Ed.2d 729

(1985).





AFFIRMED.





MOORE and WALLER, JJ., concur. FINNEY, C.J., dissenting in separate opinion

and TOAL, A.J., concurring.





p.15


STATE v. KELLY





FINNEY, C.J. (Dissenting): I respectfully dissent. I would

reverse and remand. In my view, the inappropriate possession and

use of the extraneous pamphlet by jury members so tainted the jury

that its contents affected the ability of the jury to be fair and

impartial at both the guilt and penalty phases of appellant's

bifurcated trial.





After a recess at the close of the presentation of penalty

phase evidence, the trial judge held a conference in chambers with

counsel and the appellant. The judge advised that he had received

from a juror a note which stated that a pamphlet was being passed

around in the jury room concerning God's word on the death penalty.

Juror S was brought into chambers and the following is a portion of

her examination by the judge.





THE COURT: Can you tell me a little bit about what that

pamphlet says?

THE JUROR: I haven't had it in my hands, so I don't know,

but I saw the outside cover of it. It says -- it's like

God's word on criminal punishment; and I know they have

that; and one of the girls brought her Bible this

morning. She has been like quoting passages and having

everybody read out of the Bible. Well, not everybody,

but like two people and having them read some stuff. I

mean, I'm one of the most Christian people you can ever

meet, but I don't think this is the time or the place.

THE COURT: All right. Have you seen this pamphlet?

THE JUROR: I've seen the outside of it. I have not looked

inside of it.

THE COURT: Do you know if any other jurors have seen it?

THE JUROR: Yes, they have.

THE COURT: Can you tell me how many?

THE JUROR: I can't think how many, but I can say probably at

least four -- at least.

BY THE COURT: Do you know which ones?

THE JUROR: [Juror O] has it. I saw her put it in her purse.

. . .

BY THE COURT: Is she the one that brought it?

THE JUROR: Yes, I'm almost positive she is the one that

brought it. I mean, it is in her purse right now. I saw

her put it in there. There's her; there's I think four

of them have seen it. I'm pretty sure [Juror H] has.

I'm not positive on [Juror H], but I'm pretty sure she

has.

THE COURT: That's [Juror H].





p.16


STATE v. KEL.LY





THE JUROR: Yes. And also I think [Juror A] has seen it --

[Juror A]. I didn't realize until, you know, the last

person was looking at and they had been talking about it,

but I did not know what it was until I saw the outside

cover of it.

. . .

THE COURT: All right. And in so far as the reading of

the scriptures, is that something that they have done

individually?

THE JUROR: Yes. I mean, I just heard yell out, you know,

read Deuteronomy, like 4:16, or something like that, and

that's a good one to read, this one, and that one will

make you think, or something like that.





At the conclusion of her examination, Juror S was sent to a

separate jury room, and each of the other jurors was examined out

of the presence of the other jurors. The trial judge asked whether

they had personally seen, read, been confronted by or exposed to

any materials or literature other than the testimony and evidence

presented in the courtroom or any discussions concerning the case

besides jury deliberations at the conclusion of the guilt phase.



Ten of the jurors, including Jurors A, H, O, and the

alternate, responded in the negative. Juror P qualified his

response by saying that he had not seen anything "concerning this

case or trial." Juror S was recalled to give a more detailed

description of the pamphlet. The remaining eleven jurors and the

alternate were then brought in separately and questioned

specifically about the pamphlet. Eight, including Juror P, denied

that a pamphlet or any other literature was passed around or

discussed in the jury room. In the pertinent portions of their

examination, the remaining four responded as follows.





From the examination of Juror OR:





THE COURT: . . . Have you since this trial began read a

pamphlet entitled God's Word on Criminal Punishment?

THE JUROR: Yes, sir.

THE COURT: You have? Could you tell me what it says?

THE JUROR: I couldn't really remember what it said. I

just was reading through it while we was waiting.

THE COURT: When was that?

THE JUROR: This morning.





p.17


STATE v. KELLY





Juror W stated that she had seen a pamphlet, but had neither

seen the name on it nor held it. She recalled one juror saying to

another "here, read, you know, you might want to read this," or

something . . .



From the examination of Juror H:

THE COURT: Since the jury has been placed together and

sequestered, have you read a pamphlet entitled God's word

on Criminal Punishment?

THE JUROR: I've seen it floating around. I haven't actually

read it myself.

THE COURT: You haven't read it.

THE JUROR: I have looked at it.

THE COURT: I beg your pardon?

THE JUROR: I have looked at it, but I haven't actually

read it as far as reading it,





Juror O admitted obtaining the pamphlet prior to sequestration

from her "prayer partner," and stated that she had been reading it

for reassurance that she was making the proper decision.





Appellant moved for a mistrial, asserting that the jurors had

been less than truthful when first questioned, that at least four

jurors had been tainted by the pamphlet, and that because Juror O

had obtained the pamphlet prior to the commencement of trial, she

harbored a bias toward guilt and capital punishment.1a The trial

judge removed Juror O from the jury, but denied the motion for a

mistrial.





On appeal, appellant argues that the trial judge erred in

allowing the trial to proceed with a jury whose deliberations had

been tainted by the introduction of extraneous material. I agree.





I concur in so much of the majority's opinion as alludes to

the criteria for a fair and impartial jury as set out in the Sixth


1aWe note that in his argument to the trial judge, counsel

for appellant did not explicitly assert that the evidence showed

that at least some of the jurors were engaging in premature

deliberations. We view such misconduct as very serious;

especially where, as here, the jury has been warned against it.

See, e.g., Gallman v. State, 307 S.C. 273, 414 S.E.2d 780

(1992).

p.18


STATE v. KELLY





and Fourteenth Amendments of the United States Constitution;

Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126

1976; Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751

(1961); and S.C. Const. art I, §§ 3,14.





However, removing Juror O from the jury was inadequate to cure

the prejudicial effect of the pamphlet. The record reflects that

at least four jurors had involvement with the pamphlet. Excluding

Juror O, two of the four admitted either looking at or reading

through the pamphlet in the jury room. "It is fundamental that

every litigant who is entitled to trial by jury is entitled to an

impartial jury, free to the furtherest extent practicable from

extraneous influences that may subvert the fact-finding process."

Haley v. Blue Ridge Transfer Co., 802 F.2d 1532, 1534 (1986); State

v. Cameron, 311 S.C. 204, 207, 428 S.E.2d 10, 12 (Ct. App. 1993).





Where the misconduct involves the jurors' exposure to outside

influences, the "cases are strongest in which the juror has lent

himself to such influence as signified a willingness to receive

advice or favors." State v. Rowell, 75 S.C. 494, 511, 56 S.E.

23,29 (1906). Contrary to the majority's view, I find in this

record ample evidence that the jury had access and exposure to the

pamphlet throughout the morning. When the judge examined the

jurors the second time, at least one juror besides Juror O admitted

to "reading through the pamphlet while we were waiting," on the

morning in question. Another "saw it floating around," turned a

page or two and "saw" the captions; and a third juror "saw" the

pamphlet. Not until after mid-day did one of the other jurors

advise the judge of the pamphlet. Obviously, members of the jury

were willing to receive the information and advice contained in the

pamphlet.





Furthermore, the jurors were less than forthcoming when

questioned by the judge. Compare State v. Rowell, supra. Their

demeanor with regard to candor raises concern when viewed in

connection with daily admonitions by the trial judge that the only

thing they were "to consider is what they see and hear in that

courtroom, nothing more and nothing less."





I would hold that the extraneous material in the jury room and

the presence of Juror O throughout most of the proceedings so

prejudiced the outcome of both phases of appellant's trial that a

new trial is mandated. State v. Wasson, 299 S.C. 508, 386 S.E.2d

255 (1989). First, Juror O stated that she obtained the pamphlet

prior to sequestration, which raises the stark implication that

p.19


STATE v. KELLY





guilt was already presumed and that appellant's death sentence was

a foregone conclusion as a result of the jury being tainted by the

influence of Juror O and through its exposure to the pamphlet.





Second, the inordinate brevity of jury deliberations in this

capital case under the circumstances here raises serious questions

relating to the deliberative process. The jury required

approximately thirty minutes to render the guilty verdict and less

than two hours to return the death sentence. In my opinion, the

record clearly infers that the jury was improperly influenced

throughout its deliberations by Juror O and the author's views as

expressed in the pamphlet.





The 32 page pamphlet, entitled God, Law, and Capital

Punishment, by Richard W. De Haan, "teacher of the Radio Bible

Class, worldwide ministry through radio, television, literature"

bears a copyright date of 1974 and is a part of the record on

appeal. Author De Haan makes an impassioned plea in favor of

capital punishment and cites uncorroborated facts and

unsubstantiated statistics to support his argument.





In my judgment, exposing appellant's jury to the pamphlet is

tantamount to permitting an advocate of capital punishment to offer

unauthorized evidence in circumvention of the constitution,

statutory and common law, and the rules of court; to make

unregulated rebuttal of evidence properly admitted at trial; and to

present unrestrained argument in support of the death sentence.





In charging his interpretation of God's law on capital

punishment, the author assumes the role of pre-eminent trial judge

and implies that where there may be conflict between the law as

charged by the state judge and that charged by the author, the

author's instructions should be controlling. Mr. De Haan, through

his pamphlet, is present in the jury room as a thirteenth juror

deliberating upon evidence and the law received from two sources -

the trial court and his pamphlet.





The following are excerpts from the pamphlet. "Over the past

decade, nearly 300 policemen have been killed while performing

their duties." (pg. 1) Quoting the distraught father of a girl

who had been raped and murdered,"This sort of thing has happened

all too often, and must be stopped!" (pg. 2)

p.20


STATE v. KELLY





I find it difficult to minimize the prejudicial effect of the

following comments upon the emotions of a jury considering the

guilt and punishment of a defendant on trial for his life.





Whenever this principle of an "eye for ad eye . . . " is

followed by a society, mankind is bettered. God is

pleased when this expression of His will [capital

punishment] is carried out ... (pg. 13) We must not fail

to carry out the proper sentence [capital punishment] . . .

(pg. 14)





He has given specific demands for the punishment of those

who break these laws, including the death penalty for

deliberate murder. . . . The Lord in His perfect holiness

and justice therefore has ordained that the deliberate

killer must pay for his crime by forfeiting his own right

to life. (pp. 18-19) Government must see to it that

God's principles are in force, and this includes capital

punishment for willful murder. (p. 21)





. . . In 1966 and 1967, when the death penalty was still on

the books in our country, not one policeman was killed

from ambush. But during the 4 years from 1968 through

1971, after capital punishment was no longer a threat, 49

policemen died as a result of being shot down. . . .





The price of leniency toward murderers is heavy. . . .

Hundreds of people have been slain by men released after

serving time for a murder conviction. J. Edgar Hoover

told a congressional subcommittee that 19.men who killed

policemen from 1960 to 1970 had previously been convicted

of first-degree murder.





In conclusion, then, capital punishment is reasonable and

fair. It meets God's holy demands of justice . . . Most

important of all, it is commanded by God. Through

revelation He established it as the way to deal with

killers. He expects every society to carry it out, and

is displeased when a community disregards this important

obligation.





Mr. De Haan concludes the chapter with a cautionary note to

the jury. "Let me ask you a personal question. Are you prepared

for the day you must stand before God's tribunal? His judgments

are always fair, and He never makes mistakes." (pp. 21-23)



p.21


STATE v. KELLY



The trial court is under an obligation to safeguard the right

to trial by an impartial jury throughout the proceedings. The

right to an impartial jury is not satisfied until the collective

judgment of the jury is the product of a trial by an impartial

trier of fact, capable and willing to follow the law and render an

impartial verdict on the evidence. 50A C.J.S. Juries § 225.





Although this dissent is specific as to Issue I of appellant's

appeal, insofar as it relates to the impartiality of appellant's

trial jury, reference is made to Issue II. The record reflects

that while he was a student in 1986, Juror P led a group of 40

students on a trip to Columbia to support the execution of Terry

Roach. Voir dire examination for appellant's jury did not

specifically address Juror P's participation in a death penalty

rally and the facts were not divulged prior to trial. When

questioned about his "position" on the death penalty, Juror P

admitted that he had thought about the death penalty, but indicated

that he could be fair and impartial.





After the jury returned appellant's sentence, a newspaper

quoted Juror P as saying, "I think the only thing I regret is that

[appellant] has only one life to give for the two he took." When

considered in its totality, the compelling conclusion is that the

outcome of both phases of appellant's trial was influenced by

cumulative bias on the part of his jury.





I find that the interjection of extraneous facts and editorial

comments into the jury's deliberations created bias and prejudice

against the appellant and affected the ability of the jury to

render fair and impartial verdicts at both phases of appellant's

bifurcated trial. I would reverse appellant's conviction and death

sentence and remand for a new trial.





TOAL, A. J. , concurs.





p.22