THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State of South Carolina, Respondent,
James Neil Tucker, Appellant.
Appeal From Calhoun County
Thomas W. Cooper, Jr., Judge
Opinion No. 24864
Heard October 6, 1998 - Filed December 14, 1998
Teresa L. Norris and Hillary Sheard, both of
Center for Capital Litigation, of Columbia, for
Attorney General Charles M. Condon, Chief Deputy
Attorney General John W. McIntosh, and Assistant
Deputy Attorney General Donald J. Zelenka, all of
Columbia; and Solicitor Walter M. Bailey, Jr., of
Summerville, for respondent.
MOORE, A.J.: Appellant was convicted of murder, armed robbery,
grand larceny, and first degree burglary. On appeal, we affirmed his
convictions but reversed his death sentence. State v. Tucker, 320 S.C.
306, 464 S.E.2d 105 (1995). After a resentencing trial, he was again
sentenced to death. We affirm.
Appellant James Tucker broke into Shannon Mellon's house in the
early morning hours of July 2, 1992.1 Armed with a gun, he taped her
wrists and ankles behind her back and left her on her bed while he
searched for things to steal. Appellant then reentered Shannon's bedroom
and shot her once in the head. While he was packing some of Shannon's
clean clothes to take with him, Shannon regained consciousness, sat up,
and said she could not see. Appellant shot her a second time in the head.
He continued to pack and when he heard Shannon's labored breathing, he
shot her a third time in the head. He then wrapped Shannon's body in a
sheet and dragged it into the woods behind the house. Her body was
discovered a week later. Appellant stole Shannon's car and drove to
Spartanburg where he stayed with a friend for several days. He was
apprehended in North Carolina on July 10, 1992.
Appellant contends the trial court erred in ruling on his Batson
motion.2 We disagree.
All of the six peremptory strikes used by the State were used
against blacks.3Appellant contends that similarly situated white jurors
were not struck. Specifically, appellant questions the striking of Jurors
Bonaparte, Gillings, Stokes, Jackson, Williams, and Mitchell.
Pursuant to State v. Jones, 293 S.C. 541 358 S.E.2d 701 (1987), the
1Appellant was running from police who were looking for him for the
murder of Rosalee Oakley in Sumter County. He was convicted and
sentenced to death for Rosalee's murder in December 1994. We affirmed
this conviction and sentence in State v. Tucker, 324 S.C. 155, 478 S.E.2d
2 Batson v. Kentucky, 476 U.S. 79 (1986).
3We note appellant is white and his victim was also white.
trial judge must hold a Batson hearing when members of a cognizable
racial group or gender are struck and the opposing party requests a
hearing. The proponent of the strike is required to offer a race-neutral
explanation. Unless a discriminatory intent is inherent in the proponent's
explanation, the reason offered will be deemed race-neutral. Then, the
opponent of the strike must show that the race-neutral explanation given
was mere pretext. Pretext generally will be established by showing that
similarly situated members of another race were seated on the jury. State
v. Adams, 322 S.C. 114, 470 S.E.2d 366 (1996).
The solicitor stated he struck Juror Bonaparte because he was
argumentative and his answers were "dogmatic." Further, Juror
Bonaparte had referred to his brother's murder and the former solicitor's
refusal to prosecute. The solicitor stated he was afraid this juror harbored
some resentment against the solicitor's office which might affect his
deliberations. The trial court agreed that Juror Bonaparte was
argumentative. The trial judge even pointed out how the juror had been
argumentative with him. Appellant has failed to point out a white juror
similarly situated to Juror Bonaparte who was not struck. Furthermore,
counsel may strike venire persons based on their demeanor and
disposition. State v. Wilder, 306 S.C. 535, 413 S.E.2d 323 (1991).
The solicitor stated he struck Juror Gillings because she lived in a
high crime area, did not understand the court process, could not remember
the three categories regarding views of the death penalty, and stated she
could not sign a death verdict form. Additionally, Juror Gillings' husband
had been arrested for assault and battery of a high and aggravated
nature. The trial court ruled the reasons were race-neutral. He agreed
that Juror Gillings seemed to have trouble with abstract thinking and
lacked an understanding about the court process. Again, appellant has
failed to point to any similarly situated white jurors who were seated.
Furthermore, both the prosecutor and defense counsel must be
allowed to make credibility determinations when exercising peremptory
challenges. In State v. Bell, 305 S.C. 11, 406 S.E.2d 165 (1991), we
declined to substitute our judgment for that of the solicitor regarding
subjective responses, to death penalty voir dire questions in the face of
claims comparable white jurors were seated. See also State v. Woodruff,
300 S.C. 265, 387 S.E.2d 453 (1989).
The solicitor stated he struck Jurors Stokes, Jackson, Williams, and
Mitchell because they appeared to be equivocal on the death penalty.
Vacillating responses to voir dire questions regarding the death penalty
will support the use of a peremptory strike against a Batson challenge.
State v. Elmore, 300 S.C. 130, 386 S.E.2d 769 (1989). Where the solicitor
perceives a person will have difficulty imposing the death penalty, he may
exercise a peremptory challenge against the juror upon this ground as a
racially neutral reason. State v. Green, 301 S.C. 347, 392 S.E.2d 157
Because the trial judge's findings regarding purposeful discrimination.
rest largely upon his evaluation of the solicitor's credibility, we will give
those findings great deference. See Hernandez v. New York, 500 U.S. 352,
111 S.Ct. 1859, 114 L.Ed.2d 395 (1991); State v. Davis, 306 S.C. 246, 411
S.E.2d 220 (1991). When the record does not support the solicitor's stated
reason upon which the trial judge has based his findings, however, those
findings will be overturned. Davis, supra. Here, the record supports the
solicitor's reasons for striking these jurors. Riddle v. State, 314 S.C. 1,
443 S.E.2d 557 (1994). Mindful of the deference that we must give to the
trial court, we hold the trial court correctly held that the solicitor's
reasons for striking these jurors were not pretextual.
Limiting of Voir Dire
During voir dire, appellant sought to question the jury venire about
their knowledge of the Sumter County trial, the imposition of the death
penalty in that case, and the prior Calhoun County trial. The trial court
denied appellant's motion because he did not want to unnecessarily plant
any prejudicial information in the minds of the jurors. Appellant contends
this was error. We disagree.
Appellant contends the trial judge erred in limiting his questions on
voir dire. South Carolina Code Ann. § 16-3-20(D)(Supp. 1995) grants a
capital defendant the right to examine jurors through counsel. The
manner in which these questions are pursued and the scope of any
additional voir dire are matters of trial court discretion. State v. Smart,
278 S.C. 515, 299 S.E.2d 686 (1982). We hold the trial judge did not
abuse his discretion.
Additionally, in Mu'Min v. Virginia, 500 U.S. 415, 11 S.Ct. 1899,
1905, 114 L.Ed.2d 493 (1991), the United States Supreme Court held a
defendant is entitled to specific questions only if the failure to ask them
would render his trial "fundamentally unfair." We hold the denial of
appellant's motion did not render his trial "fundamentally unfair."
Excusal of Juror Williams
Appellant contends the trial court erred in excusing Juror Williams
for cause. We disagree.
Juror Williams is a Jehovah's Witness minister. A general tenet of
Jehovah's Witnesses is that they can not sit in judgment of another
person. During the general qualifying of the jury pool, a bench conference
was held after which, Juror Williams was excused by the trial court. The
trial court then relayed what had occurred during the bench conference for
the record. The trial court stated defense counsel had asked Juror
Williams if he could sit in judgment following special counseling. Juror
Williams said he thought that there was some counseling which might
enable him to serve as a juror but the counseling might take four days.
Appellant agreed with the trial court's recollection but he objected to the
court's excusal of Juror Williams.
Appellant stated that the trial court's excusal prevented him from
rehabilitating the juror during individual voir dire as to his view on the
death penalty and the special circumstances which might allow him to sit
as a juror. The trial court stated that he excused Juror Williams without
regard to his view on the death penalty; it was based solely upon the fact
that his religious beliefs would not allow him to sit as a juror and that the
special circumstances which might allow him to serve would require four
days of counseling.
On review, the trial court's disqualification of a prospective juror will
not be disturbed where there is a reasonable basis from which the trial
court could have concluded that the juror would not have been able to
faithfully discharge his responsibilities as a juror under the law. State v.
Green, 301 S.C. 347, 392 S.E.2d 157 (1990); State v. Gaskins, 284 S.C.
105, 326 S.E.2d 132 (1985); State v. Linder, 276 S.C. 304, 278 S.E.2d 335
(1981). The trial court properly excluded Juror Williams because his
religious beliefs which prohibit judging another person would have
prevented or substantially impaired the performance of his duties as a
Appellant also contends the trial court violated S.C. Code Ann. § 16-
3-20 (Supp. 1997), when he did not allow appellant to question Juror
Williams. Section 16-3-20(D) provides, in pertinent part:
(D) Notwithstanding the provisions of Section
14-7-1020, in cases involving capital punishment
a person called as a juror must be examined by
the attorney for the defense.
We note appellant did ask Juror Williams two questions and we have held
section 16-3-20(D) does not require the trial judge to allow counsel to
engage in lengthy interviews of prospective jurors. Smart, 274 S.C. 303,
305, 262 S.E.2d 911, 912 (1982); see also Atkins, supra.
In any event, we hold the trial court did not violate this section.
Here, the trial judge excused Juror Williams prior to any individual voir
dire being conducted. "The evident purpose of Section 16-3-20(D) is to
secure to counsel for the defense in death cases the right to also question
jurors during their voir dire examination. This is the sole limitation upon
the discretion of the court in voir dire examinations authorized under Code
Section 14-7-1020.4 That section is not repealed and the reference to it in
Section 16-3-20(D) impliedly recognizes that, in all other respects, the
discretion of the court in the conduct of voir dire examinations continues
to exist." State v. Smart, 274 S.C. at 305, 262 S.E.2d at 912 (footnote
added). See also State v. Atkins, 293 S.C. 294, 360 S.E.2d 302 (1987);
State v. Owens, 277 S.C. 189, 284 S.E.2d 584, 586 (1981).
4Section 14-7-1020 provides:
The court shall, on motion of either party in the suit,
examine on oath any person who is called as a juror
to know whether he is related to either party, has any
interest in the cause, has expressed or formed any
opinion, or is sensible of any bias or prejudice therein,
and the party objecting to the juror may introduce any
other competent evidence in support of the objection.
If it appears to the court that the juror is not indifferent
in the cause, he must be placed aside as to the trial of
that cause and another must be called.
Section 14-7-1010 provides, in part: "The presiding judge shall at
each term of court ascertain the qualifications of the jurors. The presiding
judge shall determine whether any juror is disqualified or exempted by
law and only he shall disqualify or excuse any juror as may be provided
by law." There are no limitations or additional requirement under this
section in capital cases. Thus, the trial judge alone is to determine
whether a juror is qualified prior to the individual voir dire allowed
pursuant to sections 14-7-1020 and 16-3-20. See State v. South, 285 S.C.
529, 331 S.E.2d 775 (1985)(in a capital case, trial judge did not abuse
discretion by excluding two prospective jurors because of health and
educational conflicts). The trial court's decision to excuse Juror Williams
hinged on the required counseling which would take several days in order
to allow Juror Williams to serve. We find no error.
Admission of Appellant's Testimony from Prior Trial
Appellant contends the trial court erred in admitting appellant's
testimony from his prior Calhoun County trial. We disagree.
Appellant objected on the ground that the testimony was
inadmissible hearsay. We disagree. Under Rule 801(d)(2), SCRE, an
admission by a party-opponent is not hearsay "if the statement is offered
against a party and is (A) the party's own statement in either an
individual or a representative capacity . . . " Accordingly, appellant's
testimony was not hearsay pursuant to Rule 801 (d)(2) and the trial court
did not err in admitting it.
Submission of kidnapping as aggravating circumstance
Appellant contends the trial court erred in submitting kidnapping as
an aggravating circumstance. Appellant contends since the State did not
raise kidnapping as an aggravating circumstance in the previous trial, it
can not raise it in this re-sentencing. We disagree. This issue was
decided in State v. Plath, 281 S.C. 1, 313 S.E.2d 619 (1984), wherein we
held there was no prejudice to appellant from the submission of an
additional aggravating circumstance during a resentencing trial.
Further, appellant contends the State failed to prove the mens rea
necessary for kidnaping. We disagree. In State v. Jefferies, 446 S.E.2d
427, 316 S.C. 13 (1994), we held the mens rea required for the crime of
kidnaping as set forth in S.C. Code Ann. § 16-3-910 (1985) is
"knowledge." Kidnaping is a continuing offense. The offense commences
when one is wrongfully deprived of freedom and continues until freedom is
restored. State v. Hall, 280 S.C. 74, 310 S.E.2d 429 (1983)(citing State v.
Ziegler, 274 S.C. 6, 10, 260 S.E.2d 182, 184 (1979)). Here, Shannon was
unquestionably deprived of her freedom once appellant bound her with the
duct tape. Further, we have held restraint constitutes kidnaping within
the meaning of section 16-3-910,5 regardless of the fact that the purpose of
this seizure was to facilitate the commission of a sexual battery. Hall, 280
S.C. 74, 78, 310 S.E.2d 429 (1983).. Here, the purpose of the restraint
of Shannon was to facilitate in the commission of burglary and robbery.
In determining whether to submit an aggravating circumstance to
the jury, the trial court is concerned only with the existence of evidence,
not its weight. The aggravating circumstance is properly submitted if
supported by any direct or circumstantial evidence. State v. Bennett, 328
S.C. 251, 493 S.E.2d 845 (1997). There was evidence to support the
submission of kidnaping as an aggravating circumstance.
Appellant's remaining arguments are affirmed pursuant to Rule 220
(b)(1), SCAM, and the following authorities: Appellant's Issue 1 (change
of venue): State v. Caldwell, 300 S.C. 494, 388 S.E.2d 816 (1990)("When
jurors have been exposed to such publicity, a denial of a change of venue
is not error where jurors are found to have the ability to lay aside any
impressions or opinions and render a verdict based on the evidence
presented at trial."); Appellant's Issues 5-8 (juror qualification): State v.
Green, 301 S.C. 347, 392 S.E.2d 157 (1990); State v. Holmes, 464 S.E.2d
334, 320 S.C. 259 (1995)(any error in qualifying juror was harmless where
juror was alternate and never used in trial); Appellant's Issue 6: State v.
Plemmons, 286 S.C. 78, 332 S.E.2d 765 (1985)(qualification of juror is
addressed to trial judge's discretion and will not be disturbed unless
wholly unsupported); Appellant's Issue 11: State v. Tucker, 324 S.C. 155,
478 S.E.2d 260, 270 (1996)(appellant's prior record showed extremely
violent nature and future dangerousness and inability to be rehabilitated);
Appellant's Issue 12: State v. Von Dohlen, 322 S.C. 234, 471 S.E.2d 689
5In State v. Ray, 310 S.C. 431, 437, 427 S.E.2d 171 (1993), we held
"[t]he South Carolina aggravating circumstance of kidnapping is defined by
S.C. Code Ann. § 16-3-910 as the unlawful seizure, confinement, inveigling,
decoying, kidnapping, abducting or carrying away of any other person by
any means whatsoever without authority of law."
(1996)(forensic pathologist could testify as to pain victim endured and
although physical torture was not submitted to jury as aggravating
circumstance, evidence regarding torture was still admissible as going to
circumstances of crime); Appellant's Issue 13: State v. Gaskins, 284 S. C.
105, 326 S.E.2d 132 (1985)(details of defendant's prior murder convictions,
including photographs of prior murder victims, were properly allowed into
evidence in sentencing phase); Ray v. State, 330 S.C. 184, 498 S.E.2d 640
(1998)(evidence of other crimes, including "gory photos" of victim, is
admissible at sentencing phase of capital trial); Appellant's Issue 14: State v.
Williams, 321 S.C. 327, 468 S.E.2d 626 (1996)(photographs of victim's
body are admissible in sentencing phase of capital trial to show
circumstances of crime and character of defendant); State v. Kornahrens,
290 S.C. 281, 350 S.E.2d 180 (1986)(relevancy, materiality, and
admissibility of photographs are left to sound discretion of trial court).
We have conducted the proportionality review pursuant to S.C. Code
Ann.§ 16-3-25 (1985). We find the sentence was not the result of passion,
prejudice, or other arbitrary factor and the evidence supports the jury's
finding of the aggravating circumstances. Further, we find the sentence is
not excessive or disproportionate to the penalty imposed in similar cases.
State v. Chaffee, 285 S.C. 21, 328 S.E.2d 464 (1984), cert. denied, 471 U.S.
1009, 105 S.Ct. 1878, 85 L.Ed.2d 170 (1985). Accordingly, appellant's
TOAL, A.C.J., WALLER, BURNETT, JJ., and Acting Associate Justice Diane Schafer