THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
Appeal From Lexington County
Marc H. Westbrook, Circuit Court Judge
Opinion No. 24855
Heard September 24, 1998 - Filed November 23, 1998
Assistant Appellate Defender Robert M. Dudek, of
S.C. Office of Appellate Defense, of Columbia, for
Attorney General Charles M. Condon, Chief Deputy
Attorney General John W. McIntosh, Assistant
Deputy Attorney General Donald J. Zelenka, Senior
Assistant Attorney General William E. Salter, III,
all of Columbia, and Solicitor Donald V. Myers, of
Lexington, for respondent.
WALLER., A.J.: Charping was convicted of murder, conspiracy,
kidnapping, and first-degreesexual conduct, and was sentenced to death.
This Court reversed his murder conviction and remanded for a new trial.1
State v. Charping, 313 S.C. 147, 437 S.E.2d 88 (1993) (Charping I).
Charping was again convicted of murder and sentenced to death. We affirm.
Charping, along with cohorts Jeffrey Whitlock, and John Thoman,
abducted Joann Pruitt, the victim in this case, and drove her to an isolated
area near a pond in Lexington County, where she was raped, tortured, and
drowned. The facts are set forth more fully in Issue 1.
Upon his retrial, Charping was again convicted of murder. The jury
found the aggravating circumstances of kidnapping and torture and
recommended a sentence of death.
1. Did the Court err in ruling Charping could not comment on
the State's failure to call Jeffrey Whitlock as a witness?
2. Did the Court err in refusing to permit Charping to introduce
evidence of Whitlock's convictions and life sentence?
3. Did the Court err in requiring Charping to decide, prior to the
solicitor's sentencing phase closing argument, whether he would
personally address the jury?
1. COMMENT ON FAILURE TO CALL WITNESS
Charping's cohort, Jeffrey Whitlock pled guilty to murder, kidnapping,
criminal sexual conduct, and criminal conspiracy for which he was sentenced
to life imprisonment, thirty years, and five years. Whitlock was not called
as a witness at trial either by the state or by Charping. Charping contends
the trial court abused its discretion in refusing to allow him, at sentencing,
to comment on the state's failure to call Whitlock as a witness. We disagree.
Under the circumstances of this case, we find no abuse of discretion in the
review for the failure to obtain an on-the-record waiver of his right to make
the final argument to the jury. His remaining convictions were not subject
to an in favorem review and were therefore unaffected by our reversal.
trial court's ruling. State v. Patterson, 324 S.C. 5, 482 S.E.2d 760 (1997)
(trial judge vested with broad discretion in determining propriety of closing
argument; rulings on such matters will not be disturbed absent showing
improper closing deprived defendant a fair trial).
This Court has previously stated "it is always proper for an attorney
in argument to the jury to point out the failure of a party to call a witness."
State v. Hammond, 270 S.C. 347, 356, 242 S.E.2d 411, 415 (1978). See also
State v. Bamberg, 270 S.C. 77, 240 S.E.2d 639 (1977) (comment on failure to
produce witness permissible); State v. Cook, 283 S.C. 594, 325 S.E.2d 323
(1985) (no error in allowing solicitor to comment on defendant's failure to
produce his wife); State v. Shackleford, 228 S.C. 9, 88 S.E.2d 778 (1955) (not
improper for prosecutor to comment upon defendant's failure to produce
witnesses, accessible to the accused, or under his control, whose testimony
would substantiate his story).2
However, in Davis v. Sparks, 235 S.C. 326, 333, 111 S.E.2d 545, 549
(1959), we recognized the general rule that "a party is not to be prejudiced
by his failure to call a witness who is equally available to the other party."
Citing 20 Am.Jur. 193 Evidence, § 189. See also Baker v. Port City Steel
Erectors, 261 S.C. 469, 200 S.E.2d 681 (1973)(unfavorable inference arising
from failure of a party to call an available material witness may be drawn
only where under all circumstances of case the failure to produce such
witness creates suspicion of a wilful attempt to withhold competent evidence).
Here, Whitlock was clearly accessible to both the state and the defense, and
there is no reason Charping could not have called him as a witness.3
an alibi or insanity defense, then fails to call a witness who would either
have provided the alibi, State v. Bamberg, supra, or who had knowledge of
his mental condition. State v. Cook, supra. A similar result has occurred
when police fail to call an arresting officer. State v. Peden 157 S.C. 459, 154
S.E. 658 (1930). See also Canady v. Martschink Beer Distributors, 255 S.C.
119, 177 S.E.2d 475 (1970) (generally, the rule is applied when the uncalled
witness is a relative of the party failing to call such witness, or within some
degree of control of said party).
3 In fact, when the solicitor objected to Charping commenting on the
state's failure to call Whitlock as a witness, claiming Whitlock was "just as
available to them as he is to us," defense counsel replied, "Mr. Myers can
comment on my failure to call him. That's exactly right." There was no
suggestion at trial that Whitlock was unavailable to the defense.
Accordingly, under these circumstances, we find the trial court acted within
its discretion in limiting Charping's comment.
Moreover, an adverse inference from the unexplained failure of a party
to call an available witness is generally held not warranted where the
material facts assumed to be within the knowledge of the absent witness
have been testified to by other qualified witnesses. State v. Watts, 249 S.C.
80, 152 S.E.2d 684 (1967). Here, the material facts were testified to by John
and Vanessa Thoman.
John Thoman, who was with Charping and Whitlock the night of the
murder, gave detail, as follows. He testified that the victim, Joann Pruitt,
had gone with them to help them purchase a small quantity of marijuana.
After purchasing the marijuana, they stopped at a convenience store to
purchase cigarette rolling papers. While at the store, Charping told him he
had decided to kill the victim. Thoman testified Charping pulled the victim
from the car and started beating her "upside the head" two or three times
until she fell to the ground. Charping then told him and Whitlock
he intended to rape the victim and brought her into the woods.4 Charping
brought the victim out of the woods 15-20 minutes later and told her she was
going to have sex with all three men. Charping then brought her back into
the woods and called for Whitlock and Thoman approximately 10 minutes
later, at which time Whitlock went into the woods while he, Thoman, stayed
at the car. Thoman went into the woods approximately 30 minutes later
where he saw the victim on her hands and knees naked, with Charping
standing above her punching her in the head, upper body and back, while
Whitlock claimed he was going to have anal sex with her.
Thoman returned to the car briefly then went back to the woods a few
minutes later at which point Charping had a stick, similar to a log, 3-4 feet
long and 4-5 inches in diameter which he was holding like a baseball bat and
hitting the victim "everywhere he could." Whitlock then picked up a stick
and joined in on the beating for 4 or 5 minutes. Charping ordered the victim
to stand up and started pushing her in her back with his stick towards the
pond. Near the pond, Charping told her to stop and bent over and cleared
an area in the pine straw. Charping made the victim get down into the
cleared area and began hitting and kicking her again, using all his strength,
taking 2-3 steps back and coming up to kick her. Whitlock joined in and hit
her once or twice, and then took a stick and rammed it between the victim's
sentencing phase jury did not find the aggravating circumstance of CSC.
legs. Finally, Charping and Whitlock ceased beating the victim when she
was curled up like a ball with her hands over her head. Charping forced her
onto her stomach and grabbed her around the neck with both hands and
tried to break her neck. Charping then asked her how she wanted to die and
how she liked being raped. He commented to Whitlock and Thoman that the
victim wouldn't die and asked them for a knife, which neither had. Charping
then straddled the victim and placed a log across her neck and started
forcing down on it with "all his might," attempting to strangle her. When
this didn't kill her, he forced her to her feet and walked her out into the
pond. He placed his leg over her back and forced her head under the water,
then let her up for a second or two. He then pushed her back under the
water for 3-4 minutes until she was dead. He dragged the victim's body back
to shore by the hair and covered her with pine straw. The three gathered
the victim's clothes and went to the car. Charping told Whitlock and
Thoman that if they told anyone about the murder, he'd kill them too.
Thoman's sister, Vanessa Thoman, who was Charping's girlfriend at the
time of the murder, also testified at trial. Although she did not witness the
murder, she testified she went back to the murder scene with Charping to
bury the body because she didn't believe him when he told her he'd killed
someone. When they got to the victim's body and Vanessa attempted CPR,
Charping told her "If you bring her back, I will kill her again," and that if
she, Vanessa, screamed, he would kill her too.
As summarized, it is clear the material facts were testified to by John
and Vanessa Thoman such that no adverse inference was warranted by the
state's failure to call Whitlock as a witness. State v. Watts, supra.
Accordingly, the court committed no error in disallowing the comment.
Finally, given the testimony of the Thomans, indicating the incredible
brutality and torture inflicted upon Joann Pruitt by Charping, we find his
inability to comment on the state's failure to call Whitlock could not have
affected the result. Accordingly, any conceivable error was harmless beyond
a reasonable doubt. Accord Arnold v. State, 309 S.C. 157, 420 S.E.2d 834
(1992)(error is harmless where, beyond a reasonable doubt, it did not
contribute to verdict obtained).
2. CO-DEFENDANT'S SENTENCE
Charping next asserts he should have been permitted to introduce
evidence Whitlock received a life sentence, contending it was relevant to the
circumstances of the crime, and the aggravating circumstance of criminal
sexual conduct. We disagree.
The sentencing jury in a capital case may not be precluded from
considering as mitigating evidence any aspect of the defendant's character or
record and any circumstances of the crime that may serve as a basis for a
sentence less than death. State v. Bell, 305 S.C. 11, 406 S.E.2d 165 (1991),
cert. denied 502 U.S. 1038 (1992). A codefendant's "demeanor" does not fall
within this category of evidence. Id. We find evidence Whitlock was
sentenced to life is irrelevant to establish Charping's character, and does not
demonstrate the "circumstances of the crime."
Charping cites State v. Brewington, 267 S.C. 97, 103, 226 S.E.2d 249,
251 (1976) for the proposition that "the sentence imposed upon a codefendant
for the same offense and upon others for similar offenses are among a wide
variety of factors which may be properly considered in determining a proper
punishment." Brewington is inapposite. Brewington merely held the trial
court did not commit reversible error in considering, among other factors, the
sentence of an accomplice; Brewington does not stand for the proposition that
trial courts are required to consider the sentences of codefendants.
Further, Brewington is not a death penalty case. In South Carolina,
the function of conducting a proportionality review in death penalty cases is
for this Court. S.C. Code Ann.§ 16-3-25. Accordingly, it is not for the jury
in a capital case to weigh the sentence of similarly situated defendants.
Accord Brogdon v. Blackburn, 790 F.2d 1164 (5th Cir. 1986) (codefendant's
life sentence not relevant to defendant's character or offense; fact is relevant
only to the task of comparing the proportionality of Brogdon's sentence to the
sentences of others similarly situated, a function assigned by statute to State
Finally, a number of courts hold a co-defendant's acquittal or life
sentence is not a relevant mitigating circumstance. See e.g., State v. Bond,
478 S.E.2d 163 (N.C. 1996) (accomplices' punishment is not an aspect of the
defendant's character or record nor a mitigating circumstance of the
particular offense); Roche v. State, 596 N.E.2d 896 (Ind. 1992); State v. Berry,
650 N.E.2d 433 (Ohio 1995); People v. Carrera, 777 P.2d 121 (Cal. 1989);
Johnson v. State, 477 So. 2d 196 (Miss. 1985); Commonwealth v. Frey, 554
A.2d 27 (Pa. 1989)(codefendant's life sentence not a mitigating circumstance
as to defendant's role in crime). We agree with the reasoning of these courts.
The trial court properly excluded evidence of Whitlock's convictions and
3. FINAL JURY ARGUMENT
Finally, Charping claims his waiver of the right to address the jury
was rendered involuntary by the trial court's requirement that he decide,
prior to the solicitor's closing argument, whether he wished to exercise the
right. We disagree.
S.C. Code Ann.§ 16-3-28 requires "in any criminal trial where the
maximum penalty is death or in a separate sentencing proceeding following
such trial, the defendant and his counsel shall have the right to make the
last argument." We have repeatedly held there must be a knowing and
voluntary waiver of the right to final argument on-the-record.6 See State v.
Orr, 304 S.C. 185, 403 S.E.2d 623 (1991); State v. Reed, 293 S.C. 515, 362
S.E.2d 13 (1987). However, we have never held, nor does the statute require,
the decision whether to personally address the jury must be made after the
solicitor's closing.7 We find it is within the trial court's discretion to require
a decision after the presentation of evidence, but prior to the state's closing
Moreover, the record is abundantly clear Charping was well aware of
not be mitigating. However, although a codefendant's participation might
be relevant to the circumstances of the offense and therefore mitigating, the
fact that codefendants received lesser sentences could no more be considered
mitigating than could the fact that a codefendant received the death penalty
be aggravating. Accord State v. Gerald, 549 A.2d 792 (N.J. 1988).
6 Charping's original murder conviction was reversed for this reason.
See Charping I.
7 The cases cited by Charping are inapplicable. He cites Brooks v.
Tennessee, 406 U.S. 605 (1972) and Ferguson v. Georgia, 365 U.S. 570 (1961),
both of which involved the decision on whether to exercise the right to
testify. In Brooks, the Court invalidated a Tennessee statute which required
the defendant, if he planned to, to testify prior to any other testimony for the
defense. The Court held this required a premature decision precluding an
informed tactical decision based on all the evidence offered at trial. A
solicitor's closing argument is not evidence. Sossebee v. Leeke 293 S.C. 531,
362 S.E.2d 322 (1987).
his right to personally address the jury and that his waiver of that right was
knowing and voluntary. Although he would have preferred to make a
decision following closing arguments, there is absolutely no evidence he did
not understand his right, or that the decision was not knowing and
Charping's conviction for murder is affirmed.8 Pursuant to S.C. Code
Ann.§ 16-3-25(c)(1985), we find the death sentence in this case is
proportionate to that in similar cases and is neither excessive nor
disproportionate to the crime. 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
L.Ed.2d 1083 (1996).
TOAL, A.C.J., BURNETT, A.J., and Acting Associate Justices
George T. Gregory, Jr. and L. Henry McKellar, concur.
SCACR and the following authorities: Issue 4- State v, Powers, 331 S.C. 37,
501 S.E.2d 116 (1998); State v. Hill, 331 S.C. 94, 501 S.E.2d 122
(1998)(defendant not entitled to open-ended inquiry regarding prospective
jurors' sentiments on each and every possible aggravating and mitigating
circumstance; general questions as to whether jurors would consider
mitigating circumstances were sufficient). Issue 5- State v. Kornahrens, 290
S.C. 281, 350 S.E.2d 180 (1986); 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)(relevance, materiality and admissibility of photographs are matters
within the sound discretion of the trial court.).