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24906 - State v. Beckham

Davis Adv. Sh. No. 8
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court



The State, Respondent,

v.

Stephen Andrew Beckham, Appellant.



Appeal From Newberry County

Henry F. Floyd, Circuit Court Judge



Opinion No. 24906

Heard December 15, 1998 - Filed February 22, 1999



AFFIRMED



John Delgado, of Columbia, for appellant.

Attorney General Charles M. Condon, Chief Deputy

Attorney General John W. McIntosh, Assistant

Deputy Attorney General Donald J. Zelenka, and

Assistant Attorney General Robert E. Bogan, all of

Columbia; and Solicitor W. Townes Jones, IV, of

Greenwood, for respondent.

MOORE, A.J.: Appellant was convicted of murder, kidnapping,

and conspiracy to commit murder. He was sentenced to life for the murder,

30 years for the kidnapping, and 5 years for the conspiracy to commit

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STATE v. BECKHAM





murder, all to run concurrently.1 We affirm.





FACTS



On June 12, 1994, Victoria Lander Beckham (Vickie) was murdered.

In July 1995, Richard Anderson was arrested for her murder. He gave police

a statement implicating appellant Stephen Beckham, Vickie's husband.

Anderson, a bouncer from a Myrtle Beach strip bar (Smugglers), testified

that appellant hired him to dispose of Vickie's body.





On June 12th at 6:15 p.m., Vickie dropped off the children at

appellant's mobile home. Appellant and Vickie were separated and Vickie

was returning the children to appellant for a scheduled visitation. Appellant

got into the car to talk with Vickie as the children went into the home.





At the same time, Anderson waited beside a dirt road not far from

appellant's driveway for appellant. Anderson testified that as appellant

drove up in Vickie's car, he saw appellant beat Vickie with a gun. Vickie was

rendered unconscious. Anderson testified appellant told him to break

Vickie's neck by striking her with a pair of bolt cutters. He then told

Anderson to drive her car to Little Mountain Road, wait until it was dark,

and drive the car off of the mountain road in attempt to make it look as if

Vickie had died in a car accident. The car, however, rolled to the wrong side

of the road into a ditch and Vickie's body was discovered that same night at

approximately 9:15 p.m.





DISCUSSION



1) Reference to Sister Care



Bonnie Malasky testified about Vickie's whereabouts on June 8, 1994,

at 6:30 p.m. Malasky was with Vickie when Vickie delivered the children to

appellant that night. Anderson had testified he and appellant had

attempted to murder Vickie on that night but they did not go through with

the plan. Malasky testified that Vickie was at Sister Care between 6:30 and

9:30 p.m. on June 8th. Appellant objected and a sidebar was held. The trial

judge overruled the objection. Later, on the record, appellant noted his


1 The State sought the death penalty. Although the jury found several

aggravating circumstances, they recommended a sentence of life.

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STATE v. BECKHAM





235 (1996). Relevant evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice. Rule 403, SCRE.





Anderson testified that appellant ran from the murder scene through

the woods back to his home. Following an in camera hearing, the trial judge ruled

whether appellant received these scratches running through the woods

from the crime scene back to his home went to the weight of the evidence and

not its admissibility. Accordingly, the pictures were relevant and their

probative value was not outweighed by any unfair prejudice. State v.

Asbury, 328 S.C. 187, 493 S.E.2d 349 (1991)(because victim's hands and feet

were bound with cut electrical cord ' testimony concerning appliances and

severed electrical cords found at defendant's home was relevant and

probative value of testimony was not outweighed by danger of unfair

prejudice).





Furthermore, whether the scratches were "fresh" or not merely goes to

the weight of the evidence not its admissibility. State v. Sullivan, 277 S.C.

35, 282 S.E.2d 838 (1981)(arguments raised by appellant go toward weight of

evidence not its admissibility on whether or not evidence was left by

appellant at crime scene). Accordingly, we find no error.





3) Life insurance



Appellant contends the trial judge erred in admitting evidence that

appellant was the beneficiary of a $100,000 life insurance policy on Vickie.

Appellant contends the probative value of this evidence was outweighed by

unfair prejudice. Rule 403, SCRE. We disagree.





Evidence of insurance is properly admitted when it tends to establish

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

State v. Vermillion, 271 S.C. 99, 245 S.E.2d 128 (1978)(even if defendant is

not beneficiary, evidence of life insurance policy admissible if defendant

derives a benefit). Evidence of a life insurance policy is properly admitted

when there is evidence of the defendant's knowledge of the policy's existence,

its validity, or believed validity, and that the defendant will benefit from it.

State v. Cole, 54 Wash. App. 93, 772 P.2d 531 (1989).





Appellant contends he was unaware that the policy on Vickie listing

him as beneficiary was in effect when Vickie died. Appellant contends that

there were policies taken out on both he and Vickie in 1990 but he believed

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STATE v. BECKHAM





her policy had lapsed. Clearly, appellant knew of the existence of the policy

at one time. Appellant's argument that he thought Vickie's policy had lapsed

does not prevent evidence of the policy from being admitted. It was a jury

question as to whether at the time of the murder appellant had knowledge of

the existence of a valid policy with him - as the beneficiary. State v. Leuch,

198 Wash. 331, 88 P.2d 440 (1930). Accordingly, we find no error.







4) Tax Liens



Appellant contends the trial court erred in allowing the State to

introduce evidence that two tax liens in the amounts of $27,539 and $37,864

had been filed against appellant and Vickie. Appellant objected on the

grounds of relevance and that the probative value was outweighed by

prejudice, pursuant to Rules 402 and 403, SCRE. We disagree.





The State introduced the tax liens to show appellant had a financial

motive for Vickie's murder. Appellant contends the tax liens were too remote

in time as one of them was filed in 1989, five years prior to Vickie's death.

The other lien was filed in 1992. Appellant also contends once Vickie died,

he became liable for the entire amount, rather than just 50%. At the time of

the murder, there were two tax liens filed jointly against appellant and

Vickie. The State introduced evidence that appellant knew he was the

beneficiary of a life insurance policy on Vickie which would have enabled him

to pay off the liens and leave him approximately $35,000. Accordingly, we

hold appellant's poor financial condition was relevant to motive. State v.

Sack, 210 Or. 552, 300 P.2d 427 (1956)(evidence as to financial condition of

defendant as well as evidence tending to show that defendant would profit

financially from death of his wife is relevant on issue of motive). The trial

judge did not err in admitting this evidence.







5) Failure of State to give notice of witness



Appellant contends the trial erred in ruling there was no prejudice by

the State's failure to give notice of a witness, Elsie Fields. We disagree.





Rule 5(e), SCRimP, provides the defendant is to provide notice of his

intention to offer an alibi defense and "the prosecution shall serve upon the

defendant or his attorney the names and addresses of witnesses upon whom

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STATE v. BECKHAM





the State intends to rely to establish defendant's presence at the scene of the

alleged crime." (emphasis added).





There is no dispute that Fields was not listed as a witness who might

testify to refute appellant's alibi defense. Fields was visiting Bishop

Beckham and his wife on June 12th. Fields testified that she saw appellant

coming from the pond on the Beckham property around 7:00 p.m. on June

12th. Fields' testimony did not place appellant at the crime scene.

Accordingly, the trial judge did not err in not excluding her testimony.





6) Chastising witness



Appellant contends the trial judge'erred when he chastised a defense

witness, appellant's father, in the presence of the jury. We disagree.





Appellant's father, Bishop Beckham, testified for appellant. During

cross-examination, he was openly hostile to the Solicitor on several occasions.

At one point, the trial judge held a bench conference and admonished the

Bishop to respond to the questions and cautioned him about editorializing.

With the jury out of the courtroom, appellant's counsel talked privately with

the Bishop about his "style" or demeanor on the stand. Cross-examination

continued and the solicitor asked the Bishop whether appellant was with the

Bishop during a conversation with the coroner. The Bishop answered:

"You're saying, I really don't recall Stephen being with me. You're saying

that." Another bench conference was held after which the trial court again

admonished the Bishop:



I've warned you the last time. Now next time you

make an editorial comment to the attorney examining

you, I'm going to hold you in contempt. . . . Now just

answer the question without any editorial comment.

Whether people believe it or not, when they're on the

witness stand, lawyers have some latitude about asking

questions and you've got to respond to it. A

cross-examination is always a more intense period for

everybody. But nevertheless, you editorialize again,

I'm going to hold you in contempt.



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STATE v. BECKHAM





Appellant did not make a contemporaneous objection. State v. Johnson, 324

S.C. 38, 476 S.E.2d 681 (1996)(a contemporaneous objection is required at

trial to preserve an issue for appellate review). After the Bishop completed

his testimony, appellant objected to this admonition on the ground that a

negative feeling towards the Bishop was conveyed to the jury. The trial

court offered to give a curative instruction. However, nothing further was

requested. Accordingly, there is no issue preserved for review. See Johnson,

supra; State v. George, 323 S.C. 496) 476 S.E.2d 903 (1996)(no issue is

preserved for appellate review if objecting party accepts judge's ruling and

does not contemporaneously make additional objection to sufficiency of

curative charge or move for a mistrial). Further, appellant did not later

object to the trial court's failure to give a curative instruction.





In any event, a trial judge has the inherent power to maintain order

and decorum in his courtroom. See, e.g., State v. Shelton, 270 S.C. 577, 243

S.E.2d 455 (1978)(trial judge has inherent power to maintain order in his

court). "'Generally, the act of a judge in a criminal case in admonishing,

rebuking, or warning a witness because of the latter's language or conduct is

not such misconduct as to require a new trial. The court may reprove or

rebuke a witness for levity or profanity, and it is proper for him to correct the

volubility of a witness and admonish those who show hesitation, reluctance,

or evasion."' State v. Tuckness, 257 S.C. 295, 185 S.E.2d 607 (1971)(quoting

58 Am.Jur.2d New Trial ยง 54). Accordingly, we find no error.





7) Evidence of Fire



Appellant contends the trial judge erred in allowing the State to

present evidence that an extinguished fire was found behind appellant's

mobile home the day after the murder. Appellant contends there was no

evidence retrieved from the fire and therefore any testimony about it was

speculative and irrelevant. We disagree.





Under Rule 401, SCRE, relevant evidence is defined as "evidence

having any tendency to make the existence of any fact that is of consequence

to the determination of the action more probable or less probable than it

would be without the evidence." Rule 402, SCRE, provides that all relevant

evidence is admissible. Here, the State's theory was that appellant had

destroyed some evidence by burning it.

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STATE v. BECKHAM





The attempted destruction of evidence is regarded as a relevant

incriminating circumstance. See State v. Epes, 209 S.C. 246, 39 S.E.2d 769

(1946). Appellant's argument that there was nothing retrieved from the fire

would go its weight rather than admissibility. State v. Sullivan, 277 S.C. 35,

282 S.E.2d 838 (1981)(arguments raised by appellant go toward weight of

evidence not its admissibility on whether or not evidence was left by

appellant at crime scene). Accordingly, we find no error.





8) Evidence of Flight



Appellant contends the trial judge erred in allowing evidence of flight.

We disagree.







An arrest warrant was issued for appellant on July 11, 1995.

Appellant and his family had left early that morning for a vacation to

Florida. Appellant and his children checked into a Daytona Beach hotel room

for one hour. Appellant then checked out and drove all night to Kentucky.





Evidence of flight has been held to constitute evidence of guilty

knowledge and intent. State v. Thompson, 278 S.C. 1, 292 S.E.2d 581

(1982)(evidence of flight admissible to show guilty knowledge, intent, and

that defendant sought to avoid apprehension). The critical factor to the

admissibility of evidence of flight is whether the totality of the evidence

creates an inference that the defendant had knowledge that he was being

sought by the authorities. State v. Brown, 528 A.2d 1098 (R.I. 1987). See

also Commonwealth v. Jones, 457 Pa. 563, 576, 319 A.2d 142, 150 (1974)(it is

sufficient that circumstances justify inference that accused's actions were

motivated as result of his belief that officers were aware of his wrongdoing

and were seeking him for that purpose). Flight or evasion of arrest is a

circumstance to go to the jury. State v. Turnage, 107 S.C. 478, 93 S.E. 182

(1917).





Appellant attempted at trial to explain that his trip to Florida was a

planned family vacation. However, all of the testimony then establishes that

once in Florida appellant became aware that he was wanted and instead of

returning to South Carolina, he went to Kentucky. Appellant attempted to

counter with testimony that he planned to turn himself in after spending

some time with his children. However, whether he was going to eventually

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STATE v. BECKHAM





return does not make the evidence of flight inadmissible. It merely goes to

its weight. State v. Sullivan, supra. Accordingly, we find no error.





9) Search Warrant



Appellant contends the search warrant issued on July 11, 1995, should

have been quashed and the latex gloves seized from his mobile home during

the execution of this warrant should not have been admitted into evidence.

We disagree.





First, appellant contends the search warrant was obtained based upon

stale information. The police submitted an affidavit to establish probable

cause to search appellant's mobile home for a gun after Anderson, in early

July 1995, told police that he saw appellant hit Vickie with a gun on the day

she was murdered. A probable cause affidavit must state facts so closely

related to the time of the issuance of the warrant as to justify a finding of

probable cause at that time. State v. Winborne, 273 S.C. 62) 254 S.E.2d 297

(1979). In State v. Corns, 310 S.C. 5462 426 S.E.2d 324 (Ct. App. 1992), the

Court of Appeals quoted the following language from United States v.

Steeves, 525 F.2d 33 (8th Cir.1975):



While the lapse of time involved is an important

consideration and may in some cases be controlling,

it is not necessarily so. There are other factors to

be considered, including the nature of the criminal

activity involved, and the kind of property for which

authority to search is sought. Obviously, a highly

incriminating or consumable item of personal property

is less likely to remain in one place as long as an item

of property which is not consumable or which is

innocuous in itself or not particularly incriminating.



In Steeves, the court went on to note that the ski mask and clothing

sought in the warrant were not incriminating in themselves and that people

who own guns generally keep them at home or on their persons.

Considering the totality of the circumstances, the court in Corns concluded it

could not say the time lapse invalidated the warrant as a matter of law.

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STATE v. BECKHAM







Whether "averments in an affidavit are sufficiently timely to establish

probable cause depends on the particular circumstances of the case." United

States v. Hershenow, 680 F.2d 847, 853 (1st Cir.1982). Here, Anderson's

statement was not obtained until his arrest one year after the murder. He

told the police that appellant had used a gun in the commission of the

murder. We hold that based upon the totality of the circumstances in this

case, the averments in the affidavit were not stale and the search warrant

was valid.





Second, appellant contends the evidence seized pursuant to the search

warrant was beyond the scope of the warrant. We disagree. The search

warrant stated the police were looking for a gun. The police not only seized a

gun, but also a pair of latex gloves found in a night side table in appellant's

bedroom. Appellant contends the police should not have seized the gloves

because their incriminating nature was not immediately apparent. We

disagree.





Under the "plain view" exception to the warrant requirement, objects

falling within the plain view of a law enforcement officer who is rightfully in

a position to view the objects are subject to seizure and may be introduced as

evidence. State v. Brown, 289 S.C. 581, 347 S.E.2d 882 (1986). In order for

evidence to be seized under the plain view exception, three things must be

shown: (1) the initial intrusion which afforded the authorities the plain view

was lawful; (2) the discovery of the evidence was inadvertent; and (3) the

incriminating nature of the evidence was immediately apparent to the

seizing authorities. State v. Culbreath, 300 S.C. 232, 237, 387 S.E.2d 255,

257 (1990). Here, the officers were lawfully searching appellant's mobile

home for a gun when they seized the latex gloves. In his statement,

Anderson asserted appellant wore gloves during the commission of the

murder. Appellant's contention that the gloves belonged to his daughter was

an issue for the jury; it does not make the seizure of the gloves improper.

Accordingly, the trial judge did not err in admitting the gloves.





10) Denial of fair trial and due process



Appellant contends the trial judge denied him a fair trial and due

process by excluding various defense evidence. We disagree.

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STATE v. BECKHAM





Appellant contends the trial judge erred in not allowing him to admit

evidence of third party guilt. Evidence offered by a defendant as to the

commission of the crime by another person is limited to facts which are

inconsistent with the defendant's guilt. State v. Parker, 294 S.C. 465, 366

S.E.2d 10 (1988). Here, the evidence which appellant sought to introduce

regarding third party guilt would not exculpate him. See State v.

Southerland, 316 S.C. 377, 447 S.E.2d 862 (1994), overruled on other grounds

by State v. Chapman, 317 S.C. 302, 454 S.E.2d 317 (1995). Appellant

attempted to introduce evidence that there were two men on Little Mountain

Road on the night of the murder and that someone else had been with

Anderson. Accordingly, the exclusion of this evidence was not error.





Appellant then sought to introduce evidence that SLED agent "Spike"

McCraw during his investigation had been looking for two men who had

been seen on Little Mountain Road between 8:30 and 9:30 p.m. on the night

of the murder as impeachment evidence. During cross-examination, McCraw

denied this. To impeach McCraw, appellant sought to introduce an affidavit

which McCraw had made to a magistrate in which McCraw stated he was

looking for two men seen on Little Mountain Road on June 12th. The State

objected and the trial judge sustained the objection. The trial judge stated

that the evidence was nothing more than an attempt by appellant to inject

third party guilt into the trial. Appellant proffered McCraw's testimony

during which McCraw admitted he had originally been looking for two men

and that a man named Michael Beatty had been a suspect. Beatty was the

owner of the car which Anderson borrowed to drive to Columbia. Appellant

contends the trial judge erred in not allowing him to impeach McCraw with

the affidavit which appellant contends is a prior inconsistent statement

under Rule 613 (b), SCRE.







Recently, in State v. Fossick, Op. No. 24849 (S.C. Sup. Ct. filed

November 9, 1998)(Shearouse Adv. Sh. No. 35 at 3), we held the trial judge

erred in not admitting impeachment evidence under Rule 613(b), SCRE. In

Fossick, we concluded the error was harmless. We applied the factors set

forth in Delaware v. Van Arsdall, 475 U.S. at 684, 106 S.Ct. at 1438, 89

L.Ed.2d at 686 (1986) for determining whether an issue of witness credibility

is harmless error:



"Whether such an error is harmless in a particular case depends upon

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STATE v BECKHAM





a host of factors . . . . The factors include the importance of the witness's

testimony in the prosecution's case, whether the testimony was cumulative,

the presence or absence of evidence corroborating or contradicting the

testimony of the witness on material points, the extent of cross-examination

otherwise permitted, and of course, the overall strength of the prosecution's case."





Likewise, here, the trial judge erred in not admitting the impeachment

evidence but we find the error was harmless. McCraw's testimony was not

that important to the State's case. Much of McCraw's testimony was merely

cumulative to Anderson's testimony2 and corroborated by other evidence.

The majority of McCraw's testimony was about the phone records of

appellant, appellant's father, Vickie's father, Anderson, Anderson's employer

(Smuggler's), and several pay phones, and appellant's bank records.

McCraw also testified as to Anderson's statement and how he had

investigated the information contained in the statement. Appellant was

permitted to extensively cross-examine McCraw. Lastly, the State's case was

fairly strong. Anderson's testimony and the evidence of flight were very

damning. After considering the Van Arsdall factors in light of the evidence

against appellant, we hold the exclusion of this impeachment evidence was

harmless.





Appellant then contends the trial judge erred in excluding a composite

drawing of the second man. The composite drawing depicted an individual

other than Anderson or appellant and was drawn based upon the statement

of Sam Martin. Martin allegedly saw two men by a car on the side of Little

Mountain Road on the night of June 12th. Martin did not testify at trial.

Appellant attempted to introduce the composite drawing during the cross-

examination of Jerry Wright, a deputy with the Newberry County Sheriff's

Office. The State objected on the grounds that the composite was improper

third party guilt evidence and hearsay. The trial judge sustained the State's

objection. Appellant contends he was attempting to impeach Anderson's

testimony that there was not a third person involved in the murder.







We find the exclusion of this impeachment evidence was harmless as it


2 At one point, appellant objected to McCraw's testimony as merely

bolstering Anderson's testimony.

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STATE v. BECKHAM





was cumulative. Robert Bowers testified that he and Johnnie Hawkins

drove by Little Mountain Road on the night of June 12th. Bowers testified

that Hawkins had told him he saw two persons by the side of Little

Mountain Road on June 12th.3 Thus, there was some impeachment evidence

admitted at trial to support appellant's theory that there were two people on

the side of Little Mountain Road on June 12th. See State v. Merriman, 287

S.C. 74, 337 S.E.2d 218 (Ct.App.1985)(admission of the results of witness's

polygraph examination would have been merely cumulative to other

evidence impeaching his credibility; thus its exclusion was harmless). Thus

the admission of the composite as impeachment evidence would have been

cumulative and therefore any error in its exclusion was harmless.





Appellant contends the trial judge erred in excluding the proffered

testimony of Jamie Suber, appellant's nephew. During the early morning

hours of June 13th, appellant and Suber were questioned by the police.

Appellant sought to introduce Suber's testimony that the police had told him

that appellant had confessed and named Suber as an accomplice. The State

objected to this testimony on the ground of hearsay. Appellant wanted to

offer this testimony to illustrate the police tactics. Further, appellant argued

the statements were an exception to hearsay under Rule 803(3), SCRE, as

going to the police officer's state of mind or as a statement made by a party-

opponent under Rule 801(d)(2), SCRE. The trial judge ruled this evidence

was irrelevant.





We find no error in excluding this evidence. The police tactics and

police officers' state of mind were not relevant as this evidence did not make

anything of consequence to the action more or less probable. See Rule 401,

SCRE.





Appellant also contends the trial judge erred in excluding

impeachment evidence of phone calls from the residence of Rick Mitchell, a

bouncer at Smuggler's, to the Myrtle Beach area and one collect call from an

unidentified Anderson, South Carolina phone to Smuggler's. Mitchell lived

in Anderson at the time of the trial. Mitchell testified that appellant had

approached him about killing his wife. Mitchell also testified that he had not

been in contact with anyone from Smuggler's in Myrtle Beach for a year or


3 Hawkins did not testify.

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STATE v. BECKHAM





more prior to the trial. Appellant wanted to impeach Mitchell with these

phone records.





When a witness denies an act involving a matter collateral to the case

in chief, the inquiring party is not permitted to introduce contradictory

evidence to impeach the witness. State v. Dubose, 288 S.C. 226, 341 S.E.2d

785 (1986). Thus, we hold the trial judge did not err in excluding evidence

of these calls



AFFIRMED.



FINNEY, C.J., WALLER, BURNETT, JJ., and Acting Associate

Justice George T. Gregory, Jr., concur.

p.21