THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
Scott A. Needs, Appellant.
Appeal From Cherokee County
Henry F. Floyd, Circuit Court Judge
Opinion No. 24856
Heard September 22, 1998 - Filed November 23, 1998
Assistant Appellate Defender Robert M. Dudek of
the South Carolina Office of Appellate Defense,
Columbia, and Joseph C. Smithdeal of Greenwood,
Attorney General Charles M. Condon, Deputy
Attorney General Donald J. Zelenka, Assistant
Attorney General Lauri J. Soles, Assistant Attorney
General S. Creighton Waters, all of Columbia, and
Solicitor Holman C. Gossett of Spartanburg, for
WALLER, A.J.: A jury convicted appellant of murder and first
degree burglary. He was sentenced to life in prison on each conviction, to be
served consecutively. We affirm the convictions.
Lawrence Warmoth died April 25, 1993, when he was shot three
times in the head while lying alone in his own bed. Investigators discovered
no murder weapon, no eyewitnesses, and no physical evidence linking
appellant to the crime. The key evidence against appellant was the
testimony of Nancy P. Smith, appellant's girlfriend at the time and the
mother of appellant's young son.
Ms. Smith offered the following testimony: Appellant frequently
said he hated Mr. Warmoth, his stepfather, and talked about killing him or
having him killed. Appellant borrowed her car and left her apartment at
10:30 p.m. to go to work April 24, 1993. Upon his return a few hours later
at 3:30 a.m., appellant told her that he "was taking care of some business,
he was finally taking care of his family." Appellant later told her that he
expected his mother, Sandra Needs Warmoth, to give him $100,000 in
proceeds from his stepfather's life insurance policies to start a business.
Nearly two weeks after the murder, appellant confessed to Ms.
Smith that he had killed his stepfather. Appellant described the shooting to
her in detail, saying he walked in the house, down the hall, and asked his
stepfather for money to go to the store. Appellant told her that his
stepfather began to sit up in bed and said "Scott what?" just before appellant
shot him three times in the head. Appellant told her that he used "exploding
bullets," which police could not trace to him.
An investigator testified he interviewed appellant at his
stepfather's house shortly after police were called to the scene. Appellant
stated he was with Ms. Smith the night of the murder, except from 11 p.m.
to 12:30 a.m. when he went to a fast food restaurant. He did not admit any
involvement in the murder.
The State's theory of the case was that appellant killed his
stepfather because he hated him and wanted a share of the life insurance
proceeds. The defense's theory was that police did a sloppy investigation, and
Ms. Smith implicated appellant because she was angry he planned to marry
1Did the trial judge err in ruling Ms. Smith was competent
to testify against appellant?
2. Did the trial judge err in denying appellant's
motions to dismiss the charges based on
prosecutorial misconduct or, in the alternative,
to suppress Ms. Smith's testimony?
3. Did the trial judge err in allowing the State to
impeach Ms. Smith under the new South Carolina
Rules of Evidence after another judge had refused to
qualify her as a court witness under prior case law?
4. Did the trial judge err in admitting evidence of
insurance policies on the victim's life?
5. Did the trial judge's circumstantial evidence
and reasonable doubt charges shift the burden
of proof to defendant in violation of the
6. Did the trial judge err in denying appellant's motion for a
new trial based on after discovered evidence?
1. COMPETENCY OF MS. SMITH
Ms. Smith initially provided an alibi for appellant, at his urging,
by telling police he was with her the night of the murder, except from 11:30
p m. to 12:30 a.m. Ms. Smith told police about appellant's confession to her
in August 1993, four months after the murder. She admitted lying in her
initial statement. Ms. Smith changed her statement again in May 1994,
giving police a similar statement which implicated appellant, but insisting
appellant had couched his entire story in "hypothetical" terms. The State
called the case for trial in June 1994.1 At a pretrial hearing, Ms. Smith
recanted her statements about appellant's confession to her and testified
appellant was with her when his stepfather was murdered. She also
produced a diary describing that evening with appellant.
Ms. Smith testified against appellant as described above at the
September 1995 trial. On cross examination, she admitted her testimony
directly conflicted with the testimony she gave at the June 1994 pretrial
hearing. The diary she testified about at the pretrial hearing was a fake,
createdat appellant's suggestion, Ms. Smith testified. She no longer was
scared to testify against appellant because she had remarried, Ms. Smith told
jurors. In short, Ms. Smith was first a potential witness for appellant, then
a potential witness for the State, then a potential witness for appellant, and
-- finally -- an actual witness for the State at trial.
Appellant contends the trial judge erred in denying his motion to
prevent Ms. Smith from testifying because she was not competent under Rule
601(b)(2), SCRE. Her conflicting statements to police and admissions of
perjury made her incompetent because she did not understand the duty of a
witness to tell the truth. The Court should not uphold a conviction based
solely on the testimony of a "pathological liar," appellant asserts. We
"Every person is competent to be a witness except as otherwise
provided by statute or these rules." Rule 601(a), SCRE. Courts presume a
witness to be competent because bias or other defects in a witness's testimony
-- revealed primarily through cross examination -- affect a witness's credibility
and may be weighed by the factfinder. See State v. Smith, 199 S.C. 279,
282, 19 S.E.2d 224, 225 (1942) ("the established practice [is] to allow a rather
full and thorough cross-examination of the witnesses for both the State and
the defendant in the criminal Courts by way of questions tending to test
memory, veracity or credibility"); accord Mueller and Kirkpatrick, Modern
Evidence, § 6.1 (1995); 98 C.J.S. Witnesses § 458 (1957).
A witness must have personal knowledge of the matter and must
swear or affirm to tell the truth. Rules 602 and 603, SCRE. "A person is
State appealed the circuit court's refusal to designate Ms. Smith as a court
witness, as discussed in Issue 3.
disqualified to be a witness if the court determines that . . . the proposed
witness is incapable of understanding the duty of a witness to tell the truth."
Rule 601(b)(2), SCRE.2 The purpose of Rule 601(b) is to provide a minimum
standard for the competency of a witness. Notes to Rule 601, SCRE. Even
a convicted perjurer may testify as long as he or she meets the minimum
standard. See State v. Merriman, 287 S.C. 74, 337 S.E.2d 218 (Ct. App.
1985) (explaining the abolition of the prohibition against testimony by a
A proposed witness understands the duty to tell the truth when
he states that he knows that it is right to tell the truth and wrong to lie,
that he will tell the truth if permitted to testify, and that he fears
punishment if he does lie, even if that fear is motivated solely by the perjury
statute. State v. Green, 267 S.C. 599, 606, 230 S.E.2d 618, 621 (1976). As
succinctly explained by the Pennsylvania Supreme Court, in order to be
competent to testify, a witness must have the ability (1) to perceive the event
with a substantial degree of accuracy, (2) remember it, (3) communicate
about it intelligibly, and (4) be mindful of the duty to tell the truth under oath.
Pennsylvania v. Goldblum, 447 A.2d 234) 239 (Pa. 1982).
The party opposing the witness has the burden of proving a
witness is incompetent. Pennsylvania v. Goldblum, supra. The
determination of a witness's competency to testify is a question for the trial
court, and the trial court's decision will not be overturned absent an abuse
of discretion. State v. Camele, 293 S.C. 302, 360 S.E.2d 307 (1987); State v.
In this case, Ms. Smith swore to tell the truth and had personal
knowledge of the matter. The trial judge stated he believed, based upon Ms.
Smith's in camera testimony, that she understood her duty to tell the truth.
When questioned by the judge, Ms. Smith stated outside the jury's presence
that she understood her duty to tell the truth, and that she would face
perjury charges if she lied in court. The trial judge did not abuse his
expressing himself to the judge and jury, as was required prior to the
adoption of the Rules of Evidence. See Abbott v. Columbia Mills Co., 110
S.C. 298, 96 S.E. 556 (1918); 97 C.J.S. Witnesses §49 (1957). That
provision is not at issue in this case.
discretion in ruling that Ms. Smith was competent to testify under Rule
After the trial court properly has determined a witness is
competent., the resolution of the credibility of the witness is within the
province of the jury. See State v. Patterson, 324 S.C. 5, 16, 482 S.E.2d 760,
765 ("inquiry as to the weight a juror would give one kind of witness over
another invades the jury's province to determine credibility"), cert. denied,
118 S.Ct. 146, 139 L.Ed.2d 92 (1997); State v. Ingra, 266 S.C. 462, 468, 224
S.E.2d 711, 713 (1976) ("resolution of the credibility of witnesses is within the
province of the jury"), overruled on other grounds, State v. Torrence, 305 S.C.
45, 406 S.E.2d 315 (1991). "[T]his Court has more than once held that the
jury is the judge of which contradictory statement of the witness is the
truth." Soulios v. Mills Novelty Co., 19S S.C. 355, 364, 17 S.E.2d 869, 874
The prosecutor and appellant questioned Ms. Smith extensively
about her conflicting statements. Ms. Smith testified she lied in her initial
statement to police; she lied when she modified her August 1993 statement
to say appellant had been speaking "hypothetically"; and her testimony at
trial directly conflicted with her testimony at the June 1994 pretrial hearing.
She told jurors she was testifying truthfully at the trial. While Ms. Smith's
credibility conceivably was in shreds, it was for the jury to decide whether
to believe her testimony after the trial judge properly ruled she was
competent to testify.
2. PROSECUTORIAL MISCONDUCT
After changing her statement several times, Ms. Smith testified
as an alibi witness for appellant at a pretrial hearing in June 1994. A grand
jury later indicted Ms. Smith on charges of obstruction of justice, accessory
after the fact of a felony, and misprision of a felony. Ms. Smith agreed to
plead guilty to misprision of a felony, and the State planned to dismiss the
on the charge of misprision of a felony at the end of appellant's trial.
Three months later, before Ms. Smith had reported to prison, the judge
(continued . . .)
Appellant argues the trial judge erred in denying his motion to
dismiss the indictments against him due to prosecutorial misconduct. The
prosecutor committed misconduct by charging Ms. Smith with crimes after
she testified in appellant's favor at the pretrial hearing. Those charges were
improper attempts to intimidate Ms. Smith into testifying as a State's
witness, appellant contends. We disagree.
Challenges alleging prosecutorial misconduct typically involve a
prosecutor's improper efforts to collect evidence or unfair trial tactics. E.g.
State v. Huggins, 325 S.C. 103, 481 S.E.2d 114 (1997) (prosecutor in closing
argument discussed statements that were not in evidence); State v. Chisolm,
312 S.C. 235, 439 S.E.2d 850 (1994) (prosecutor improperly and secretly taped
telephone conversation with defendant, who had called prosecutor but had an
attorney); State v. Robinson, 305 S.C. 469, 409 S.E.2d 404 (1991) (prosecutor
allegedly used previously suppressed evidence at trial); State v. Atkins, 303
S.C. 214, 399 S.E.2d 760 (1990) (prosecutor allegedly obtained confidential
medical records in violation of attorney-client privilege); State v. Pee Dee
News Co., 286 S.C. 562, 336 S.E.2d 8 (1985) (prosecutor asked improper
hypothetical questions at trial); State v. Craig, 267 S.C. 262, 227 S.E.2d 306
(1976) (prosecutor's conduct at trial allegedly was calculated to arouse unfair
prejudice against defendant). This case is somewhat unusual because
appellant challenges the use of one of the most fundamental powers of a
prosecutor -- the power to bring charges against a person the prosecutor
believes has committed a crime.
"In the ordinary case, so long as the prosecutor has probable
cause to believe that the accused committed an offense defined by statute, the
decision whether or not to prosecute, and what charge to file or bring before
a grand jury, generally rests entirely in his discretion." United States
v. Armstrong, 517 U.S. 456, 116 S.Ct. 1480, 1486, 134 L.Ed.2d 687, 698 (1996)
(quoting Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 668, 54
L.Ed.2d 604, 611 (1978)). A prosecutor's discretion is subject to constitutional
constraints. A prosecutor may not, for instance, base the decision to
prosecute on unjustifiable standards such as race, religion, or other arbitrary
classifications. Id.; accord United States v. Olvis, 97 F.3d 739 (4th Cir. 1996);
changed the sentence to ten years in prison, suspended upon the service of
ninety days, with five years probation.
27 C.J.S. District & Prosecuting Attorneys § 14(l) (1959); 63C Am.Jur.2d
Prosecuting Attorneys §§ 20-25 (1997). Nor may a prosecutor lob baseless
threats or charges at a potential defense witness in an effort to prevent the
witness from testifying. See State v. Williams, 326 S.C. 130, 485 S.E.2d 99
(1997) (improper intimidation of witness may violate defendant's due process
right to present defense witnesses freely if the intimidation amounts to
substantial government interference with witness's free and unhampered
choice to testify); Annot., 88 A.L.R.4th 3S8 (1991) (collecting cases on
place the unfettered discretion to prosecute solely in the prosecutor's hands.
. . . Prosecutors may pursue a case to trial, or they may plea bargain it down
to a lesser offense, or they may simply decide not to prosecute the offense in
its entirety. The Judicial Branch is, not empowered to infringe on the
exercise of this prosecutorial discretion; however, on occasion, it is necessary
to review and interpret the results of the prosecutor's actions." State v.
Thrift, 312 S.C. 282, 291-92, 440 S.E.2d 341, 346 (1994). Furthermore, a
trial court generally has no power to dismiss a properly drawn indictment
issued by a properly constituted grand jury before trial unless a statute
grants that power to the court. The prosecutor may, of course, request the
dismissal of an indictment or charge. State v. Ridge, 269 S.C. 61, 236 S.E.2d
401 (1977); Ex Parte State, 263 S.C. 363, 210 S.E.2d 600 (1974).
In this case, the evidence showed that Ms. Smith had concealed
information and lied to investigators to protect appellant, facts she ultimately
admitted at trial. The prosecutor had probable cause to believe Ms. Smith
had committed one or more of the indicted crimes, and he did not commit
misconduct by pursuing the charges. The trial judge properly rejected
appellant's dismissal motion.
In the alternative, appellant argues the trial judge should have
suppressed Ms. Smith's testimony because it obviously was not reliable. This
argument is another way of asserting Ms. Smith was not competent to testify.
5 State v. Johnson, 287 S.C. 171, 337 S.E.2d 204 (1985); McLeod v.
Snipes, 266 S.C. 415, 223 S.E.2d 853 (1976).
As explained in Issue 1, the trial judge properly determined Ms. Smith was
competent to testify and her credibility was a question for the jury.
3. NEW RULES OF EVIDENCE
The State called appellant's case for trial in June 1994. The
State asked the Honorable John C. Hayes, III, in a pretrial motion to qualify
Ms. Smith as a court's witness so that the State could cross examine and
impeach her.6 Judge Hayes denied the State's motion after a hearing because
Ms. Smith was not an eyewitness to the crime. The State appealed Judge
Hayes' decision because, without Ms. Smith's testimony, the State likely
would not survive a directed verdict motion at trial.7
The State asked this Court to dismiss the appeal August 9, 1995,
saying the recent adoption of the South Carolina Rules of Evidence rendered
party's own witness unless the court declared the witness to be hostile. A
party had to show actual surprise and harm, however, in order to have a
witness declared hostile. See State v. Anderson, 304 S.C. 551, 406 S.E.2d
152 (1991), superseded in part by Rules of Evidence as noted in State v.
Byram, 326 S.C. 107, 114 n.7, 485 S.E.2d 360, 363 n.7 (1997).
The State knew Ms. Smith intended to recant her statement, which
meant the State would be unable to show surprise at trial. The State
wanted to qualify Ms. Smith as a court's witness in order to impeach her.
To do so, the State had to show (1) the prosecution is unwilling to vouch
for the veracity or integrity of the witness, (2) there is a close relationship
between the accused and the prospective court's witness, (3) there is
evidence that the proposed witness was an eyewitness to the act giving
rise to the prosecution, (4) the witness gave a sworn statement concerning
the relevant facts which have been, or will probably be contradicted, and
(5) the absence of the witness' testimony would likely result in a
miscarriage of justice. Riddle v. State, 314 S.C. 1, 7, 443 S.E.2d 557, 561
7 See State v. McKnight, 287 S.C. 167, 337 S.E.2d 208 (1985) (the
State may immediately appeal a pretrial order granting the suppression of
evidence which significantly impairs the prosecution of a criminal case).
the appeal moot.8 The Court dismissed the appeal August 15, 1995. The
new Rules of Evidence took effect September 3, 1995. The State again called
appellant's case for trial September 26, 1995.
Appellant asked the trial judge to prohibit Ms. Smith from
testifying. He asserted that Judge Hayes had refused to qualify Ms. Smith
as a court's witness and,prohibited the State from impeaching her testimony.
Those rulings were the law of the case because the State had abandoned the
appeal, appellant argued. The trial judge denied appellant's motion,
concluding the new Rules of Evidence applied to appellant's trial. Under
Rule 607, SCRE, "[t]he credibility of a witness may be attacked by any party,
including the party calling the witness."
Appellant now argues the trial judge erred in denying his motion.
If the State pursued a frivolous appeal of Judge Hayes' order simply to delay
matters until the new Rules of Evidence took effect, the Court should not
sanction such conduct by awarding the State a "windfall" by its decision.
We find appellant's arguments unconvincing for three reasons.
First, courts generally agree that trials occurring before the effective date of
new evidence rules are controlled by the rules or case law in effect at the
time of trial. New evidence rules usually apply to trials that occur after
those rules take effect. See State v. Byram, 326 S.C. 107, 114 n.7, 485
S.E.2d 360, 363 n.7 (1997) (applying case law in effect at time of defendant's
trial, not new Rule 607 on impeachment that took effect later); North
Carolina v. McDonald, 321 S.E.2d 849, 852 n. 1 (N.C. 1984) (same); Tuer v.
McDonald, 684 A.2d 478, 482 n.2 (Md. Ct. Spec. App. 1996) (applying new
evidence rules to case tried after new rules took effect), aff'd, 701 A.2d 1101
(Md. 1997).9 Nothing in the Rules of Evidence indicates the Court intended
to delay application of the rules under these circumstances. The rules took
effect about three weeks before appellant stood trial, more than enough time
in the Court's files.
9 Accord North Carolina v. Riddick, 340 S.E.2d 422, 424 n.1 (N.C.
1986); Utah v. Smith, 726 P.2d 1232, 1236 n.4 (Utah 1986); New Jersey v.
Kately, 637 A.2d 214, 216 n.1 (N.J. Super. Ct. App. Div. 1994); In Re
Welfare of Bennett, 600 P.2d 1308, 1311 (Wash. Ct. App. 1979).
for appellant to receive notice of them. Cf. State v. Von Dohlen., 322 S.C.
234, 471 S.E.2d 689 (refusing to conduct in favorem vitae review in death
penalty case where defendant, whose trial began day the Court issued an
opinion abolishing such reviews, had notice of that abolition), cert. denied
117 S.Ct. 402, 136 L.Ed.2d 316 (1996).
Second, Judge Hayes did not rule that the State could not
impeach Ms. Smith. He only denied the State's motion to qualify Ms. Smith
as a court's witness. Although the effect of that ruling prevented the State
from impeaching Ms. Smith under existing case law, that was not the judge's
actual ruling. Consequently, there was no impeachment ruling that could
become the law of the case. In any event, the State did not impeach Ms.
Smith at trial because she freely admitted on direct examination that she
initially lied to police and offered directly conflicting testimony at the pretrial
Third, appellant offers no evidence showing the State pursued a
frivolous appeal of Judge Hayes' order to delay the trial until the new rules
took effect. Both parties filed their final briefs in November 1994, and the
appeal was proceeding in the usual manner when the State asked the Court
to dismiss it. In sum, the trial judge properly applied the new Rules of
Evidence at appellant's trial.
4 LIFE INSURANCE POLICIES
Appellant asked the trial judge to exclude all testimony about
insurance policies on his stepfather's life because appellant did not know
about the policies and did not stand to derive any benefit from them. He
also argued that evidence of the policies would be highly prejudicial. The
trial judge initially excluded testimony about the insurance policies, but later
reversed his ruling and allowed the testimony under Rule 801(d)(2), SCRE.
Ms. Smith testified appellant told her that his mother, Mrs.
Warmoth, "owed a lot of people money." Appellant said killing his stepfather
would allow his mother to collect $260,000 from his stepfather's life insurance
policies. He also said his mother intended to give him $100,00 of the
proceeds to start a business, Ms. Smith testified. Joyce Floyd, the personnel
manager at the stepfather's employer, testified the stepfather had a $20,000
policy naming Mrs. Warmoth as the beneficiary. Carolyn Cooley, personnel
manager at Mrs. Warmoth's employer, testified Mrs. Warmoth had an
additional $190,000 policy on her husband when he died. That policy also
named Mrs. Warmoth as the beneficiary.
Appellant argues the trial judge erred in admitting testimony
about the life insurance policies because there was no competent evidence
showing appellant stood to derive a benefit from the policies. The jury could
have disregarded Ms. Smith's unreliable testimony, but the objective
testimony of the personnel managers improperly bolstered Ms. Smith's
testimony and "created the illusion of a nexus between appellant and the
insurance policies." We disagree.
The State is not required to prove motive in a homicide prosecution.
State v. Damon, 285 S.C.125, 328 S.E.2d 628 (1985), overruled
on other grounds, State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991); State
v. Underwood, 127 S.C. 1, 120 S.E 719 (1923). Nevertheless, the State may
introduce evidence that a defendant carried an insurance policy on a victim's
life, where the policy named the defendant as the beneficiary, to establish
motive in a homicide. State v. Thomas, 159 S.C. 76, 156 S.E. 169 (1930).
The State also may introduce evidence that a defendant carried an insurance
policy on the victim's life when there is some showing that the defendant
would derive some benefit from the proceeds of the policy. State v. Hartfield,
272 S.C. 407, 252 S.E.2d 139 (1979) (evidence of policy on victim's life that
named defendant's brother as beneficiary would be admissible if defendant
would receive some benefit from the policy); State v. Vermillion, 271 S.C. 99,
245 S.E.2d 128 (1978) (upholding admission of evidence that defendant had
a policy on life of his father, the victim, which named defendant's wife as
We conclude the trial judge properly admitted Ms. Smith's
testimony that appellant told her about the insurance policies and the
potential loan from his mother as admissions by a party-opponent. Rule
801(d)(2), SCRE. Since Ms. Smith's testimony was admissible, the judge
properly admitted the personnel managers' testimony, which simply
established the existence of the policies.
The evidence showed that appellant would have directly benefitted
from the proceeds of his stepfather's life insurance through a $100,000 loan
from his mother.10 The trial judge did not abuse his discretion in admitting
evidence of the insurance policies. See State v. Tucker, 319 S.C. 425, 462
S.E.2d 263 (1995) (appellate court will not reverse the trial judge's decision
to admit or exclude evidence unless the trial judge abused his discretion and
petitioner demonstrates prejudice); State v. McElveen, 280 S.C. 325, 313
S.E.2d 298 (1984) (same).
5. JURY INSTRUCTIONS
In instructing the jury on circumstantial evidence,. the trial judge
The law also requires ... that to the extent that the
State relies on circumstantial evidence, the State
must prove all of the circumstances relied upon
beyond a reasonable doubt. Circumstances relied
upon by the State must be wholly and in every
particular consistent with each other. And the
circumstances must point conclusively, that is, beyond
a reasonable doubt, to the guilt of the accused, to the
exclusion of every other logical or rational conclusion.
That is, the circumstances must be absolutely
inconsistent with any other logical or rational
conclusion than the guilt of the accused.
Now, ladies and gentlemen, in the consideration of
circumstantial evidence, you, the jury, must seek
some other rational or logical explanation other than
the guilt of the accused. And if such logical or
rational explanation can be found upon consideration
of the circumstances, you, the jury, cannot convict
upon circumstantial evidence. . . .
the proceeds would have been available for his mother to pay her debts
and perhaps assist appellant and his siblings. We do not decide whether
such an indirect benefit is sufficient to admit evidence of insurance
proceeds as a motive under State v. Vermillion, supra.
I further instruct you, ladies and gentlemen, the
mere fact the circumstances are strongly suspicious
and the guilt of the defendant is probable, it is not
sufficient to sustain a conviction, because the proof
offered by the State must exclude every other
reasonable or rational or logical conclusion except the
guilt of the defendant, and such proof must satisfy
you, the jury, of the defendant's guilt beyond a
The judge further instructed the jury that
[a] reasonable doubt is a doubt which makes an
honest, sincere, conscientious juror in search of the
truth in the case hesitate to act. Proof beyond a
reasonable doubt must, therefore, be proof of such a
convincing character that a reasonable person would
not hesitate to rely and to act upon it in the most
important of his or her own affairs.
In addition, the judge instructed jurors twenty-six other times throughout his
charge that the State had the burden of proving a defendant guilty beyond
a reasonable doubt.
Appellant contends the emphasized language in the circumstantial
evidence instruction shifted the burden of proof to him by telling jurors they
and rational conclusion" for "reasonable hypothesis," the phrase usually
used in this charge. Appellant may not on appeal object to the use of the
substituted phrase because he asked for that change and the judge agreed.
See State v. Stroman, 281 S.C. 508, 316 S.E.2d 395 (1984) (party may not
complain about an error induced by the party's own conduct); State v.
Epes, 209 S.C. 246, 39 S.E.2d 769 (1946) (same); Rule 20(b), SCRCrP
(stating "[a]ny objection [to jury instructions] shall state distinctly the
matter objected to and the grounds for objection. Failure to object in
accordance with this rule shall constitute a waiver of objection"). While
we do not address the validity of the "logical or rational conclusion"
language, we urge trial courts to use the approved charges described
must seek some explanation other than his guilt. He also asserts the "in
search of truth" language in the definition of reasonable doubt exacerbated
the problem and further shifted the burden of proof to him. Appellant argues
the charge is deficient under State v. Manning, 305 S.C. 413, 409 S.E.2d 372
(1991), and State v. Raffaldt, 318 S.C. 110, 456 S.E.2d 390 (1995).
In State v. Manning, the Court granted the defendant a new trial
based on a defective charge. The charge was defective because the trial judge
(1) defined "reasonable doubt" as synonymous with the term "moral
certainty," (2) defined a reasonable doubt as a "doubt which honest people,
such as you, when searching for the truth can give a real reason," and (3)
required the jury to "seek some reasonable explanation of the circumstances"
other than guilt when considering circumstantial evidence. The
circumstantial evidence instruction "turns the State's burden of proof
on its head by requiring the jury find a 'reasonable explanation' of the evidence
inconsistent with [a defendant's] guilt before it can find him not guilty." Id.,
305 S.C. at 416-17, 409 S.E.2d at 374 (citing Cage v. Louisiana, 498 U.S. 39,
111 S.Ct. 328, 112 L.Ed.2d 339 (1990)).
Taken as a whole and considering the three defects, the charge
in Manning violated the Due Process Clause of the Fourteenth Amendment
because a reasonable juror could have interpreted it to allow a finding of
guilt based on a degree of proof below the reasonable doubt standard. The
Court urged the trial bench to limit its definition of a reasonable doubt to
"the kind of doubt that would cause a reasonable person to hesitate to act."
Id., 305 S.C. at 417, 409 S.E.2d at 375.
In State v. Raffaldt, supra, the Court again found error in a
circumstantial evidence charge that required the jury to "seek some
reasonable explanation other than the guilt of the accused." However, the
defendant failed to demonstrate prejudicial error because the trial judge
extensively charged that the State had the burden of proving the defendant
guilty beyond a reasonable doubt. The judge also properly defined reasonable
doubt as "the kind of doubt which would cause a reasonable person to
hesitate to act." Id., 318 S.C. at 115-16, 456 S.E.2d at 393.
The Court since has explained that it was the combination of
defective instructions, especially the "moral certainty" and "real reason"
language, that prompted it to find a due process violation in Manning. See
State v. Whipple, 324 S.C. 43, 50, 476 S.E.2d 683, 687 (affirming convictions
where trial court defined a reasonable doubt as a doubt "for which you could
give a reason," and noting trial court never used "moral" or "grave certainty"
or "substantial doubt"), cert. denied, 117 S.Ct. 618, 136 L. Ed.2d 541 (1996);
State v. Hoffman, 312 S.C. 386, 395, 440 S.E.2d 869, 874 (1994) (affirming
convictions where trial court used "seek" language in circumstantial evidence
charge because reasonable doubt charge did not contain "moral or grave
certainty" or "real reason," and concluding the charge when read as a whole
did not shift the burden to defendant); State v. Johnson, 306 S.C. 119, 131,
410 S.E.2d 547, 553 (1991) (affirming convictions where trial court did not
use "moral certainty" language in conjunction with "substantial" or "grave"
doubt in defining reasonable doubt, although those terms also are disfavored);
accord State v. Clute, 324 S.C. 584, 595, 480 S.E.2d 85, 90 (Ct. App. 1996)
(affirming conviction where trial court defined a reasonable doubt as a doubt
that would cause a reasonable person to hesitate to act and as "a doubt for
which a reason can be given" because it did not refer to "moral or grave
certainty" or a "real reason"), cert. denied, 118 S.Ct. 442, 139 L.Ed.2d 379
(1997); State v. Kirkpatrick, 320 S.C. 38, 46, 462 S.E.2d 884, 889 (Ct. App.
1995) (affirming conviction where trial court defined a reasonable doubt as
"one for which you could give a reason," and noting trial court did not use
"moral or grave certainty" or "real reason" in conjunction with erroneous
circumstantial evidence charge).
Prior to Manning, the Court tacitly approved a reasonable doubt
charge containing the language about an honest juror "in search of the truth."
See Singletary v. State, 281 S.C. 444, 316 S.E.2d 369 (1984). In fact, trial
judges have talked about jurors searching for the truth for more than a
century. See State v. Cleland, 148 S.C. 86, 145 S.E. 628 (1928); State v.
Way, 38 S.C. 333, 17 S.E. 39 (1893). In Manning, the Court pointed to the
"in search of the truth" language contained in the reasonable doubt charge
as contributing to its defective nature. Manning, 305 S.C. at 415, 409 S.E.2d
at 374. However, appellate courts since have seemed to allow the use of the
phrase -- at least when it is not combined with other offending terms outlined
in Manning. See State v. Hoffman, 312 S.C. at 395, 440 S.E.2d at 874; State
v. Kirkpatrick, 320 S.C. at 46, 462 S.E.2d at 889.
In this case, the trial judge's circumstantial evidence charge was
erroneous because it instructed jurors to seek a reasonable explanation other
than the guilt of the accused. However, we conclude it was harmless error
beyond a reasonable doubt because the trial judge instructed jurors twenty-
six other times throughout his charge that the State has the burden of
proving a defendant guilty beyond a reasonable doubt. See State v. Raffaldt,
supra; see also State v. Smith, 315 S.C. 547, 446 S.E.2d 411 (1994) (jury
instructions should be considered as a whole, and if as a whole they are free
from error, any isolated portions which may be misleading do not constitute
reversible error); State v. Rabon, 275 S.C. 459, 272 S.E.2d 634 (1980) (a jury
charge which is substantially correct and covers the law does not require
reversal). The charge also was harmless error because it did not contain the
other troubling language identified in Manning and subsequent cases, the
phrases "moral certainty," "grave certainty," or "a doubt for which you can
give a real reason." See State v. Whipple, supra; State v. Hoffman, supra;
State v. Johnson, supra.
We again take this opportunity to strongly urge the trial courts
to avoid using any "seek" language, or any of the other offending terms
described above, when charging jurors on either reasonable doubt or
circumstantial evidence. Such language is unnecessary and runs the risk of
unconstitutionally shifting the burden of proof to a defendant. We have
identified two appropriate ways to define reasonable doubt12 and two
reasonable person to hesitate to act." State v. Manning, supra.
The trial court also may use the following charge or combine it with
the Manning charge:
The State has the burden of proving the Defendant
guilty beyond a reasonable doubt. Some of you
may have served as jurors in civil cases where you
were told that [it] is only necessary to prove the
fact is more likely true than not, such as by the
greater weight or preponderance of the evidence.
In criminal cases, the State's proof must be more
powerful than that. It must be beyond a
Ladies and gentlemen, proof beyond a reasonable
doubt is proof that leaves you firmly convinced of
the Defendant's guilt. There are very few things
in this world that we know with absolute certainty.
And in criminal cases, the law does not require
proof that overcomes every possible doubt. The law
(continued ... )
appropriate ways to charge circumstantial evidence.13
doesn't require that.
If, based on your consideration of the evidence, you
are firmly convinced that the Defendant is guilty of
the crime charged, you must find him guilty. You
must find him guilty. If on the other hand you
think there is a real possibility that he is not
guilty, you must give him the benefit of the doubt
and find him not guilty.
State v. Darby, 324 S.C. 114, 477 S.E.2d 710 (1996) (endorsing definition
of reasonable doubt developed by the Federal Judicial Center and cited
with approval in Justice Ginsberg's concurring opinion in Victor v.
Nebraska, 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994)).
Neither charge is mandatory. State v. Johnson, 315 S.C. 485,
445 S.E.2d 637 (1994); State v. Longworth, 313 S.C. 360, 438 S.E.2d 219
(1993). In fact, it is within a trial judge's discretion to refuse to define
reasonable doubt at all. State v. Adams, 322 S.C. 114, 470 S.E.2d 366 (1996).
13 The well established charge is that when the State relies upon
circumstantial evidence, a jury may not convict a defendant
unless every circumstance relied upon by the State
be proven beyond a reasonable doubt; and all of the
circumstances so proven be consistent with each
other and taken together, point conclusively to the
guilt of the accused to the exclusion of every other
reasonable hypothesis. It is not sufficient that they
create a probability, though a strong one, and if,
assuming them to be true, they may be accounted
for upon any reasonable hypothesis which does not
include the guilt of the accused, the proof has failed.
Trial courts should rarely find it necessary to deviate from those approved
6. AFTER DISCOVERED EVIDENCE14
At trial, an investigator testified police received reports that a
young boy heard fussing and a gunshot while riding by the victim's house on
a bicycle at midday April 25, 1993. Police also received reports about a gray
Cadillac and a lowrider motorcycle, neither of which was known to neighbors,
State v. Edwards, 298 S.C. 272, 379 S.E.2d 888 (1989); State v. Littlejohn,
228 S.C. 324, 89 S.E.2d 924 (1955); State v. Harr, 321 S.C. 273, 468
S.E.2d 76 (Ct. App. 1996).
We recently approved another charge that makes no distinction
between direct and circumstantial evidence:
There are two types of evidence which are generally
presented during a trial -- direct evidence and
circumstantial evidence. Direct evidence is the
testimony of a person who asserts or claims to have
actual knowledge of a fact, such as an eyewitness.
Circumstantial evidence is proof of a chain of facts
and circumstances indicating the existence of a fact.
The law makes absolutely no distinction between
the weight or value to be given to either direct or
circumstantial evidence. Nor is a greater degree of
certainty required of circumstantial evidence than
of direct evidence. You should weigh all the
evidence in the case. After weighing all the
evidence, if you are not convinced of the guilt of the
defendant beyond a reasonable doubt, you must
find [the defendant] not guilty.
State v. Grippon, 327 S.C. 79, 83-84, 489 S.E.2d 462, 464 (1997).
14 After appellant appealed, this Court remanded the case in June
1996 at appellant's request for a hearing to consider his motion for a new
trial based upon after discovered evidence.
passing through the neighborhood late the previous evening. Appellant
argued in closing that police failed to investigate thoroughly those leads and
The Jennings family lived about 100 yards from the victim's
house, which could be seen from the Jennings' residence. At the new trial
hearing, appellant's lawyer submitted an affidavit stating that Mrs. Jennings
told him before the trial that no one in her family knew anything about the
murder. A private investigator hired by appellant testified she and fellow
investigators diligently canvassed the victim's neighborhood in 1994,
searching for the boy mentioned in the police report as a potential witness
to the murder.
Mary Kay Needs, appellant's wife, testified she visited the
Jennings family in March 1996. She secretly taped a conversation in which
the young boys, nine-year-old Steven and ten-year-old Michael, purportedly
described hearing a gunshot and seeing a man run from the victim's house.
A friend who was with Mrs. Needs offered similar testimony about the
conversation with the Jennings boys.
Steven Jennings, who was six when the murder occurred, testified
at the hearing he told Mrs. Needs that he saw a tall, white male with black
hair and wearing black clothes outside the victim's house at about 6 p.m. on
April 25, 1993. He testified he did not know whether he heard a gunshot.
Michael Jennings, who was seven when the murder. occurred, offered a
similar description of the man. He testified he did not hear a gunshot.
James M. Jennings, the boys' father, testified he was not sure whether his
boys told Mrs. Needs they heard a gunshot and saw someone running from
the victim's house that day.
The trial judge denied the motion for a new trial based on after
discovered evidence. Appellant argues the judge erred because the boys'
testimony was clearly material to the issue of guilt. Appellant diligently
tried to locate the boys before trial, but could not. "With the State's entire
case revolving around an admitted perjurer who changed her story five times,
it is reasonable to think [the boys'] testimony would probably have changed
the result of the trial," appellant contends. We disagree.
To prevail on a motion for a new trial based on after discovered
evidence, a defendant must show (1) the evidence is such as will probably
change the result if a new trial is granted; (2) the evidence has been
discovered since the trial; (3) the evidence could not have been discovered
prior to trial by the exercise of due diligence; (4) the evidence is material;
and (5) the evidence is not merely cumulative or impeaching. State v. Prince,
316 S.C. 57, 447 S.E.2d 177 (1993); State v. Irvin, 270 S.C. 539, 243 S.E.2d
195 (1978). The granting of such a motion is not favored and, absent error
of law or abuse of discretion an appellate court will not disturb the trial
judge's denial of the motion. State v. Irvin, supra; State v. Freeman, 319
S.C. 110) 459 S.E.2d 867 (Ct. App. 1995).
We conclude appellant has not met his burden. It is true the
State's case against appellant was not overwhelming, especially since the
State's key witness had offered so many contradictory statements. But we
do not believe the evidence appellant would present at a new trial would
change the outcome of the trial.
Furthermore, appellant knew about reports the police had
received about a possible young witness, the Cadillac, and the lowrider
motorcycle before the trial. It is unclear why appellant's private
investigators, in the exercise of due diligence, did not insist on speaking
directly to the boys instead of just their mother before the trial. Finally,
given the boys' lack of testimony at the post-trial hearing about a gunshot or
a man running from the victim's house, the evidence appellant would offer
is merely cumulative. Appellant would have little or no more evidence to
argue to the jury than he did in the first trial.
We dispose of appellant's remaining issues pursuant to Rule
220(b)(1), SCACR, and the following authorities: Issue 4: State v. Conyers,
326 S.C. 263, 487 S.E.2d 181 (1997) (argument is not preserved for appeal
when appellant failed to assert it at trial); State v. Meyers, 262 S.C. 222, 203
S.E.2d 678 (1974) (same); Issue 2: State v. Robinson, 310 S.C. 535, 426
S.E.2d 317 (1992) (in considering motion for directed verdict, judge is
concerned with existence or non-existence of evidence, not with its weight;
judge should submit case to jury if there is any substantial evidence which
reasonably tends to prove the guilt of the accused, or from which his guilt
may be fairly or logically deduced); State v. Rowell, 326 S.C. 313, 487 S.E.2d
185 (in reviewing denial of directed verdict motion, appellate court must
review the evidence in the light most favorable to the State; 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), cert. denied, 118 S.Ct. 319, 139 L.Ed.2d
For the reasons outlined above, appellant's convictions are
FINNEY, C.J., TOAL, MOORE, and BURNETT, JJ., concur.