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24932 - State v. Council

Shearouse Adv. Sh. No. 13
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court



The State, Respondent,

v.

Donney S. Council, Appellant.



Appeal From Aiken County

Henry F. Floyd, Judge



Opinion No. 24932

Heard October 8, 1998 - Filed April 5, 1999



AFFIRMED



Assistant Appellate Defender Robert M. Dudek, of

the South Carolina Office of Appellate Defense, of

Columbia, for appellant.



Attorney General Charles M. Condon, Chief Deputy

Attorney General John W. McIntosh, Assistant

Deputy Attorney General Donald J. Zelenka,

Assistant Attorney General Lauri S. Soles, and

Assistant Attorney General Robert E. Bogan, all of

Columbia; and Solicitor Barbara R. Morgan, of

Aiken, for respondent.





BURNETT, A.J.: Appellant was indicted for murder,

kidnapping, administering poison, grand larceny of A vehicle, burglary,

larceny, and two counts of criminal sexual conduct in the first degree.

The jury found appellant guilty on all the charges. Appellant was

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sentenced to death for the murder;1 thirty years concurrent for

kidnapping;2 a consecutive life sentence for the burglary; twenty years

consecutive for administering a poison; thirty years consecutive for each

charge of criminal sexual conduct; five years concurrent for grand larceny

of a vehicle; and thirty days concurrent for petty larceny. We affirm.







FACTS



Late Thursday afternoon, October 8, 1992, Evelyn Helminiak

visited with her neighbor Elizabetth Gatti, a seventy-two year old widow.

Mrs. Gatti was preparing dinner when Mrs. Helminiak arrived. The next

day, another neighbor, Charles Fields, became concerned about Mrs. Gatti

because her morning newspaper was still in the driveway and her car was

gone. Mr. Fields testified Mrs. Gatti was a creature of habit who

retrieved her newspaper every morning at 4:30 a.m., read the paper, and

threw it over to Mr. Fields' driveway by 8:00 a.m. so he could read it.

When the newspaper was still in the driveway and the car was still gone

on Friday evening, Mr. Fields called emergency services.





When the authorities entered Mrs. Gatti's house, perishable

food items were found on the kitchen counter. Several of the rooms in

Mrs. Gatti's house had been ransacked. Mrs. Gatti's body was discovered

underneath a bedspread in her basement. She had been hogtied with a

white cord and layers of duct tape were wrapped around her entire head.

Her clothes had been ripped, and the crotch of her underwear had been

cut out. Surrounding her body were various bottles of cleaning fluids.

Mrs. Gatti had been sexually assaulted.


1 'The jury found the following statutory aggravating circumstances:

(1) murder was committed while in the commission of criminal sexual

conduct; (2) murder was committed while in the commission of kidnapping;

(3) murder was committed while in the commission of burglary; (4) murder

was committed while in the commission of a larceny with the use of a

deadly weapon; (5) murder was committed while in the commission of

killing by poison; and (6) murder was committed while in the commission

of physical torture. S.C. Code Ann. § 16-3-25 (1985).



2 This sentence is ineffective in light of appellant's sentence under

S.C. Code Ann. § 16-3-20 (1985). S.C. Code Ann. 16-3-910 (1985).

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Dr. Nichols, the pathologist who performed the autopsy on

Mrs. Gatti, testified her body was covered with numerous lacerations and

bruises, and someone had attempted to manually strangle her. Further, a

gaping laceration extending from her vagina into the rectal area indicated

penetration by a very stiff foreign object. Dr. Nichols testified the cause of

death was asphyxiation due to mechanical suffocation as a result of the

duct tape, and contributory to the cause of death was the ingestion and

aspiration of cleaning fluids and the binding ligatures on the wrists. Dr.

Nichols testified the aspiration indicated Mrs. Gatti was forced to drink

the cleaning fluids. According to Dr. Nichols, Mrs. Gatti lived 2-4 hours

after the vaginal/rectal injury occurred.





On October 11, 1992, the authorities found Mrs. Gatti's car

near an apartment complex where appellant sometimes stayed. Appellant

was arrested for the crimes on October 12, 1992. In two separate

statements, appellant admitted to being in Mrs. Gatti's house on the night

she was killed; however, he asserted he had gone to her house with a man

identified as "Frankie J."3 Appellant denied any wrongdoing; instead, he

blamed the crimes on his companion. Appellant admitted, however, to

SLED agent Wayne Mitchell that he had sexual intercourse with Mrs.

Gatti. Further, appellant told SLED agent Danny Choate and Captain

Wayne Huff, an investigator for the Aiken County Sheriffs Department,

that he had sex with Mrs. Gatti.





A shoeprint taken from a chair in Mrs. Gatti's house was

identified as matching shoes taken from appellant. Residue found on the

chair positively matched debris found on appellant's shoes. Fingerprints

taken from Mrs. Gatti's car and from items in her car were identified as

belonging to appellant. Hair samples taken from appellant were

consistent with hairs found in Mrs.Gatti's home. Semen taken from a

tissue in Mrs. Gatti's house was consistent with appellant's Semen.

Several items identified as belonging to Mrs. Gatti were found in

appellant's girlfriend's apartment.







Appellant's girlfriend's cousin, Earthlene Danley, testified she

was in Mrs. Gatti's car with appellant the day after Mrs. Gatti's murder


3 "Frankie J" was later identified as Frank Douglas. None of the

physical evidence found in Mrs. Gatti's house or in her car matched

Douglas.

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and had been with appellant when he went to a bank drive-thru in North

Augusta and cashed a check he took from the glove compartment of Mrs.

Gatti's car. Further, the testimony of bank employees and handwriting

experts established appellant had forged three of Mrs. Gatti's checks and

cashed them at various banks.





Mrs. Gatti's newspaper carrier positively identified appellant as

the man she saw leaving Mrs. Gatti's house in the early morning hours of

Friday, October 9, 1992.







ISSUES



I. Did the trial judge err in qualifying Juror T?



II. Did the trial judge err in refusing to grant appellant's

motion for a mistrial where a State's witness referred to

appellant's prior criminal record during direct examination?



III. Did the trial judge err in admitting appellant's inculpatory

statements by finding appellant had waived his Sixth

Amendment right to counsel prior to making these statements?



IV. Did the trial judge err in admitting mitochondrial DNA

evidence?



V. Did the trial judge err in refusing to allow appellant to

introduce polygraph evidence during the penalty phase of the

trial?





DISCUSSION



I.



Appellant claims the judge erred in finding Juror T qualified

because during her voir dire she was unable to definitely state she could

presume appellant was innocent until the State proved his guilt beyond a

reasonable doubt. We disagree.





Initially, when the trial judge questioned her during voir dire,

Juror T expressed uncertainty as to whether she could presume appellant

was innocent. However, after the trial judge explained the law, Juror T

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stated several times she could presume appellant innocent until the State

proved his guilt beyond a reasonable doubt. Although Juror T continued

to equivocate on some questions as to whether she could presume

appellant innocent, each time the judge clearly explained the law to her,

she affirmed she could presume appellant innocent. During examination

by the solicitor, Juror T indicated she would follow the instructions and

determine the facts from the evidence introduced during the trial.

Further, on cross-examination by defense counsel, Juror T again stated she

could presume appellant innocent. However, Juror T responded with

uncertainty to defense counsel's final question.4





Defense counsel moved to disqualify Juror T for cause arguing

the juror was unable to disregard her preconceived beliefs and presume

appellant was innocent. Over appellant's objection, the judge qualified

Juror T. Juror T was placed on the jury after appellant had exhausted

his peremptory challenges.





The constitutional standard of fairness requires that a

defendant have a panel of impartial, indifferent jurors. U.S. Const.

Amend. 14; State v. Bell, 302 S.C. 18, 393 S.E.2d 364, cert. denied, 498

U.S. 881, 111 S.Ct. 227, 112 L.Ed.2d 182 (1990).





In reviewing an error as to the qualification of a juror, this

Court engages in a three step analysis. First, appellant must show that

he exhausted all of his peremptory challenges. Second, if all peremptory

challenges were used, this Court must determine if the juror was

erroneously qualified. Third, appellant must demonstrate this error

deprived him of a fair trial. State v. Green, 301 S.C. 347, 392 S.E.2d 157,

cert. denied, 498 U.S. 881, 111 S.Ct. 229, 112 L.Ed.2d 183 (1990).





In a capital case, the proper standard in determining the

qualification of a prospective juror is whether the juror's views would

prevent or substantially impair the performance of his duties as a juror in

accordance with his instructions and his oath. State v. Green, supra


4 Defense Counsel posed the following question to Juror T: BR>

Q. Okay. Can you tell me that you're coming in to this

thing with a completely blank page and no feelings one way or

another?

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(citing Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 853, 83

L.Ed.2d 841 (1985)); State v. George, 323 S.C. 496, 476 S.E.2d 903 (1996),

cert. denied, _ U.S. _, 117 S.Ct. 1261, 137 L.Ed.2d 340 (1997).

The determination of whether a juror is qualified to serve on a death

penalty case is within the sole discretion of the trial judge and is not

reviewable on appeal unless wholly unsupported by the evidence. State v.

Davis, 309 S.C. 326, 422 S.E.2d 133 (1992), cert. denied, 508 U.S. 915, 113

S.Ct. 2355, 124 L.Ed.2d 263 (1993). When reviewing the trial court's

qualification or disqualification of prospective jurors, the responses of the

challenged jurors must be examined in light of the entire voir dire. State

v. Green, supra. The ultimate consideration is that the juror be

unbiased, impartial and able to carry out the law as explained to him. Id.





After reviewing the entire voir dire of Juror T, we conclude the

trial judge did not err in qualifying this juror. After the trial judge

explained the law to Juror T, she stated repeatedly she could presume

appellant was innocent until and unless the State proved him guilty.

Further, Juror T stated she could follow the judge's instructions.

Although Juror T expressed uncertainty in her response to the final

question posed by defense counsel, as pointed out by the trial judge, this

question was ambiguous and prospective jurors never responded correctly.5

Juror T's equivocation when asked this ambiguous question does not

negate her previous definite answers. See State v. Holmes, 320 S.C. 259,

464 S.E.2d 334 (1995), cert. denied, 517 U.S. 1248, 116 S.Ct. 2507, 135

L.Ed.2d 197 (1996) (after reviewing Juror Hutto's entire voir dire, this

Court concluded there was no abuse of discretion in qualifying her to serve

even though at the outset of voir dire, Juror Hutto stated she thought a

defendant had to prove his or her innocence; however, when told the law

presumed a defendant was innocent, and asked if she could follow this

presumption, she answered yes).







Appellant argues the trial judge erred in refusing to grant a

mistrial when SLED agent Charles Counts testified he retrieved

appellant's fingerprint card from SLED records for comparison. Appellant

claims this testimony was highly prejudicial because it was a clear

reference to appellant's prior criminal activity.


5 The correct response would be, "No, I am for the defendant."

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Charles Counts, a crime scene processor for SLED, testified he

met appellant on October 11, 1992, while he was processing Mrs. Gatti's

car for evidence. At this initial meeting, appellant, who identified himself

as "James Counts," provided authorities with his fingerprints. Counts

testified appellant's fingerprints were found on Mrs. Gatti's car and on

items found in her car. The solicitor asked Counts to "tell the members of

the jury how many different sets of fingerprints you had looked at to

compare, and the names of the individuals submitted to you to compare."

Counts responded:



At the time of the initial comparison, I was supplied or had in

my possession, fingerprints, one fingerprint, an inked palm

impression bearing the name of James Counts which I had

taken on October the 11th at the apartment complex. A few

days later or a day later, I was contacted by the sheriffs

department and said, "that subject is actually Mr. Council." I

went over to the SLED records, two buildings over, retrieved a

card with the name Council on it and compared those

impressions and in fact, they were produced by the same

individual.

(emphasis added).





Defense counsel moved for a mistrial arguing Counts'

testimony implied to the jury appellant "had a prior criminal record, that

he had been printed before." Defense counsel stated in deciding whether

appellant would testify much thought was given to whether appellant

would, be harmed by having his prior criminal record admitted into

evidence. Further, defense counsel pointed out to the court that great

efforts had been made to exclude references to any prior record from the

statements made by appellant. Defense counsel argued because a state's

witness had informed the jury that appellant had a fingerprint card at

SLED, the jury now "knows that Mr. Council has a prior criminal record,

and based upon that, I don't think there's any way to give a curative

instruction to get the jury to forget that."







The trial judge agreed that a curative instruction would only

make the situation worse. However, the trial judge refused to grant a

mistrial because he found Counts' statement could be construed several

ways, including Counts re-inked appellant. The trial judge found the jury

probably missed the implication, and further, because appellant had

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already put his own credibility at issue by lying to the authorities about

his identity when he provided them with his fingerprints, testimony

attacking appellant's credibility, including his prior criminal record, was

admissible.6





The decision to grant or deny a motion for a mistrial is a

matter within a trial court's sound discretion, and such a decision will not

be disturbed on appeal absent an abuse of discretion amounting to an

error of law. State v. Simpson, 325 S.C. 37, 479 S.E.2d 57, cert. denied,

U.S. _, 117 S.Ct. 2460, 138 L.Ed.2d 217 (1997); State v. Wasson, 299 S.C.

508, 386 S.E.2d 255 (1989). A mistrial should not be granted unless

absolutely necessary. State v. Wasson, 299 S.C. 508, 386 S.E.2d 255

(1989). Instead, the trial judge should exhaust other methods to cure

possible prejudice before aborting a trial. Id. In order to receive a

mistrial, the defendant must show error and resulting prejudice. Id.





In this case, it is questionable whether the jury even

understood the implication of Count's statement. This Court has held that

similar references to a defendant's past conduct were too vague to be

prejudicial. See State v. Singleton, 284 S.C. 388, 326 S.E.2d 153 cert.

denied , 471 U.S. 1111, 105 S.Ct. 2346, 85 L.Ed.2d 863 (1985) (references

to appellant's prior crimes were vague); State v. George, supra (appellant's

possible drug dealing was merely suggested and no testimony was

presented concerning such behavior). Further, the State never attempted

to introduce appellant's prior criminal record during the guilt phase of the

trial. Instead, only an inadvertent vague reference was made to

appellant's prior record. See State v. Robinson, supra (this Court pointed

out that even if the testimony created the inference in the jury's mind

that the accused had committed another crime the State never attempted

to prove the accused had been convicted of some other crime). Thus, we

conclude this reference was not prejudicial.7


6 The trial judge was incorrect infinding appellant had put his

character in issue by lying to the authorities. An accused must introduce

evidence of his character at trial before the prosecution can attack it. See

Rule 404(a), SCRE. Here, because appellant never testified or offered

other evidence of his good character, his character was never an issue.





7 This case can be distinguished from State v. Tate, 288 S.C. 104, 341

S.E.2d 380 (1986), where the Court found the error was prejudicial. In

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III.



Appellant claims the trial judge erred in admitting into

evidence appellant's inculpatory statements made to SLED agents Wayne

Mitchell and Danny Choate and to Captain Wayne Huff on October 19,

1992, because they were obtained in violation of his Sixth Amendment8

right to counsel. We disagree.





The trial judge held a Jackson v. Denno9 hearing to determine

the admissibility of four statements made by appellant to various

authorities about his involvement in Mrs. Gatti's murder. The first

statement was made on October 12, 1992, the day of appellant's arrest. In

this statement, appellant. admitted he was present at Mrs. Gatti's house,

but blamed Frank Douglas for the crimes.







Appellant was arraigned on October 14, 1992. In response to

appellant's request at the arraignment, an attorney was appointed to

represent him on October 16, 1992. At the Jackson v. Denno hearing,

appellant testified he was not aware an attorney had been appointed to

represent him. Appellant had not spoken with an attorney prior to

October 19, 1992. According to appellant, he only agreed to take a

polygraph exam on October 19, 1992. He did not agree to the questioning.





Investigator Norwood Bodie testified appellant "got word to us

that he wanted to talk to us" on October 19, 1992. Bodie obtained a

written request from appellant, which stated: "I, Donney S. Council, do

wish to speak with investigators of the Aiken County Sheriffs Office and

SLED.19 It was signed by appellant and witnessed by Bodie and Officer


Tate, appellant's mug shot was introduced into evidence. The date on the

mug shot was almost one year prior to the trial thus inferring to the jury

that appellant had a prior criminal record. In this case, the fingerprint

card was never introduced into evidence, and there-fore the jury was not

aware of when SLED obtained the card. Therefore, there was no evidence

before the jury of when or for what purpose the fingerprint card was

made.





8 U.S. Const. 6th Amend.



9 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).

p.32


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Stuart. Appellant was then taken to the Sheriffs Office where Captain

Huff informed appellant of his Miranda10 rights and appellant waived his

rights. Appellant was then interviewed by Huff, Bodie, and SLED agent

Choate. In the October 19th statement, appellant again stated he had

accompanied Frank Douglas to Mrs. Gatti's house, but claimed he had not

participated in the crimes.





Appellant then wrote and signed a statement requesting that

he be given a polygraph exam. Huff and Choate transported appellant to

Columbia to be examined at SLED. After explaining to appellant his

rights and having appellant waive them, SLED agent Mitchell

administered the exam. After the exam, Mitchell told appellant his

answers showed deception. Appellant then admitted to Mitchell he had

sexual intercourse with Mrs. Gatti. Mitchell related appellant's admission

to Huff and Choate.





On the return trip to Aiken, appellant told Huff and Choate

several times: "Y'all ain't got shit on me." Huff told appellant: "Donney,

you don't know what we have on you. . . . Well we've got more than you

think and the best thing to do is let's not talk about it." Appellant

responded: "Well, you don't have any fingerprints. . . . Had I done

something like that I would have been wearing gloves or socks." Huff and

Choate began to talk to each other and ignore appellant. Appellant again

began to talk and Choate told appellant to be quiet. Appellant then

blurted out: "Well, I did fuck her. The bitch didn't have good pussy, so I

made her give me a blow job." Huff testified appellant laughed when he

made these statements. Choate pulled the car over and Huff made some

notes about appellant's statement. Appellant denied making the

inculpatory statements to Mitchell, Huff and Choate.





Defense counsel argued appellant was denied his Sixth

Amendment right to counsel when he made these inculpatory statements

on October 19, 1992. Defense counsel claimed appellant did not fully

understand his right to talk with an attorney; therefore, the waiver of his

Miranda rights was not voluntary. The trial judge admitted all four

statements.


10 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694

(1966).

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The Sixth Amendment right to counsel attaches when

adversarial judicial proceedings have been initiated and at all critical

stages. Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d

631 (1986); State v. Register, 323 S.C. 471, 476 S.E.2d 153 (1996), cert.

denied, _ U.S. _, 117 S.Ct. 988, 136 L.Ed.2d 870 (1997); State v.

Kennedy, 325 S.C. 295, 479 S.E.2d 838 (Ct. App. 1996). The Sixth

Amendment right attaches only "post-indictment," at least in the

questioning statement setting. Michigan v. Harvey, 494 U.S. 344, 110

S.Ct. 1176, 108 L.Ed.2d 293 (1990: State v. Register, supra. When the

Sixth Amendment right to counsel has attached, if police initiate

interrogation after a defendant's assertion, at an arraignment or other

similar proceedings, of his right to counsel, any waiver of the defendant's

right to counsel for that police initiated interrogation is invalid unless the

defendant initiates the contact himself. Michigan v. Jackson, supra; State

v. Howard, 296 S.C. 481, 374 S.E.2d 284 (1988).





Appellant's Sixth Amendment right to counsel attached on

October 14, 1992, when he was arraigned. Further, appellant asserted his

right to counsel on October 14, 1992, when he requested appointment of

counsel. Counsel was appointed to represent appellant on October 16,

1992.





However, appellant initiated the contact with the authorities

on October 19, 1992; therefore, appellant's subsequent waiver of his right

to counsel was knowingly and intelligently made, and all his statements

made on this day were admissible.11 See State v. Howard, supra

(assuming defendant's right to counsel had attached, defendant had waived

that right because he initiated the contact with the police); Compare with

Michigan v. Jackson, supra (defendant's waiver of his Sixth Amendment

right to counsel was invalid where police initiated the contact). Under the

Sixth Amendment, a defendant who has asserted his right to counsel is


11 Appellant argues he could not have knowingly waived his right to

counsel since he was unaware counsel had been appointed. Further,

appellant claims knowledge that counsel had been appointed for him

should have been imputed from the court to the sheriffs department.

Because we find appellant initiated the contact with the authorities, it

does not matter whether appellant was unaware counsel had been

appointed nor does it matter whether knowledge of that appointment is

imputed from one state actor to another.

p.34


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always free to initiate contact with the authorities and waive this right. A

defendant is not required to consult with an attorney prior to initiating

contact in order for the waiver to be valid.





Appellant argues he only contacted the authorities in order to

let them know he was ready to take a polygraph exam that he previously

agreed to take at some time during the October 12, 1992 questioning.

However, his note does not indicate such a limited purpose.





Further, although appellant was clearly in custody when he

admitted to Huff and Choate he had sex with Mrs. Gatti, appellant's

statement was not the result of interrogation. Instead, his statement was

volunteered. See Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 16825, 64

L.Ed.2d 297 (1980); State v. Koon, 278 S.C. 528, 298 S.E.2d 769 (1982).





IV.





During the guilt phase of appellant's trial, John Ortuno, a

trace evidence examiner at SLED, testified the characteristics of pubic

hairs found at the crime scene were consistent with appellant's pubic hair.

Ortuno further determined Frank Douglas could not have been the donor

of the hair.





To confirm Ortuno's findings, the State sought to introduce

testimony from Joseph Dizinno of the F.B.I. laboratory regarding the

results of mitochondrial DNA (mtDNA) analysis performed on the hairs.12


12 Mitochondrial DNA is found in mitochondria, which are organelles

contained within the cytoplasm of a cell and which serve as the cell's

energy factories. Unlike nucleus DNA that contains genetic material

inherited from both the mother and the father, mtDNA only contains

genetic material inherited from the mother. Two advantages of mtDNA

are that there are many more copies of mtDNA in the cell than there are

copies of nuclear DNA since each cell contains many mitochondria but only

one nucleus and mtDNA is much more stable than nuclear DNA;

therefore, the chances of extracting mtDNA from a degraded sample is

increased. Further, unlike nuclear DNA which is only present in the,

living cells at the roots of a pulled hair, mtDNA is present in the shafts of

hair. Brian Museman, Taylor v. State, Rule 706, and the DNA Database:

Future Directions in DNA Evidence, 22 Oklahoma City University L. Rev.

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STATE v. COUNCIL





The trial judge held an in camera hearing to determine the admissibility

of this evidence.





Dizinno testified he had extensive training in both hair and

fiber analysis and mtDNA analysis. Dizinno testified his mtDNA analysis

research began in 1992. Dizinno chose to sequence two regions of the

mtDNA because research conducted in Europe in 1983 found these two

areas to be very variable between individuals. Dizinno testified mtDNA

analysis has been used for research purposes since 1981 and over 600

papers have been written about mtDNA research. He testified mtDNA

analysis is a recognized methodology that has been used for many

purposes, including to identify bodies from the Vietnam War and the Gulf

War. Dizinno stated the mtDNA analysis has been reaffirmed in the

scientific community as reliable science. Dizinno testified his laboratory

started to use this technology to analyze forensic evidence in the summer

of 1996. Further, this was the second occasion someone from his lab had

testified regarding the results obtained from a mtDNA analysis.13 Dizinno

stated that mtDNA analysis confirms, based on a scientific objective

standard, the subjective microscopical comparison performed on the hairs.







Dizinno explained that mtDNA analysis is performed by

extracting the DNA from mitochondria. This DNA is then amplified and

examined to determine its sequences of As, Gs, Ts, and Cs. This sequence

is then compared to a sequence donated by a known person. If the

sequence is different, the person donating the known sample can be

eliminated as the donor of the unknown sample. If the sequence is the

same, the examiner compares the sequence to the database of mtDNA

sequences available to him to determine if he has ever seen that same

sequence. Validation studies showed that about 62% of the hairs analyzed

were sequenced on the first try. The other 38% could not be sequenced

because the DNA could not be extracted. Of the 62% that could be


397 (1997).



13 The first occasion was at a trial in a Tennessee state court, six

weeks prior to appellant's trial. Tennessee has a statute which allows

DNA tests to be used as evidence in criminal cases under certain

circumstances. Mark Curriden, A New Evidence Tool: First Use o

Mitochondrial DNA Test in a U.S. Criminal Trial, 82-Nov. A.B.A. J. 18

(1996).

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STATE v. COUNCIL







sequenced, the reliability of getting a correct sequence was 100%.





The database used by Dizinno contained 742 known sequences

of which 319 were sequences obtained from African-Americans.14 Dizinno

testified that while he had found a match between unrelated Caucasians,

he had never found a match between unrelated African-Americans.

According to Dizinno, the two regions analyzed are most variable in

African-Americans.





The results of this analysis excluded Frank Douglas as the one

who deposited the hair found at the crime scene. Further, Dizinno could

not exclude appellant as the one who deposited the hair found at the

crime scene. Based on the available database, Dizinno testified that most

probably the hair that was recovered from the crime scene belonged to

appellant. However, Dizinno admitted it was possible that the hair

belonged to another individual.





The trial judge found the evidence admissible under Rules 702

and 703, SCRE. In an abundance of caution, the trial judge further found

the evidence admissible under State v. Jones, 273 S.C. 723, 259 S.E.2d

129 (1979), and under Daubert v. Merrill Dow Pharmaceuticals, Inc., 509

U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The trial judge noted

the process had been subjected to peer review and publication; a known

potential rate of error existed; standards controlled the techniques and

operations; the F.B.I. laboratory validated the process; this technology and

underlying science has been accepted in the scientific community; and

while forensic application of this technology was a recent development, the

technology had been used for other purposes.





Appellant argues the trial judge erred in admitting the mtDNA

test results in this case because the forensic application of this process

was novel and had not yet gained general acceptance in the scientific

community. We disagree.





Appellant is attempting to apply the standard set out in Frye

v. United States, 293 F. 1013 (D.C. Cir. 1923). In Frye, the court held

scientific evidence only became reliable, and therefore admissible, when it

had attained the general acceptance of the scientific community as a


14 Appellant is an African-American.

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STATE v. COUNCIL





whole. However, this Court has never adopted that standard. Instead,

prior to 1990, the standard for admitting scientific evidence in South

Carolina was "the degree to which the trier of fact must accept, on faith,

scientific hypotheses not capable of proof or disproof in court and not even

generally accepted outside the courtroom." State v. Jones, 273 S.C. 723,

731, 259 S.E.2d 120, 124 (1979). This standard is more liberal than the

Frye standard.





In considering the admissibility of scientific evidence under the

Jones standard, the Court looks at several factors, including: (1) the

publications and peer review of the technique; (2) prior application of the

method to the type of evidence involved in the case; (3) the quality control

procedures used to ensure reliability; and (4) the consistency of the method

with recognized scientific laws and procedures. State v. Ford, 301 S.C.

485, 392 S.E.2d 781 (1990). This type of evidence is also subject to attack

for relevancy and prejudice. Ford, supra.





In 1990, South Carolina adopted Rule 24, SCRCrimP, which is

identical to Rule 702 of the Federal Rules of Evidence (FRE). In 1995,

South Carolina replaced Rule 24 with Rule 702, SCRE.15 This rule is

identical to its predecessor, Rule 24, SCRCrimP, and Rule 702, FRE.





In 1993, the United States Supreme Court found the Frye test

had been superseded by the FRE and adopted new parameters for

admissibility under Rules 702 and 703. Daubert v. Merrill Dow

Pharmaceutical, Inc.J, supra. Before scientific evidence is admitted, the

trial judge must determine the evidence is relevant, reliable and helpful to

the jury. The Court suggested four factors to consider in deciding

reliability in scientific evidence cases: (1) scientific methodology; (2) peer

review; (3) consideration of general acceptance; and (4) the rate of error of

a particular technique. Id. The Court stated if the evidence is reliable


15 Rule 702, SCRE, states:

If the scientific, technical, or other specialized

knowledge will assist the trier of fact to understand

the evidence or to determine a fact in issue, a

witness qualified-an expert by knowledge, skill,

experience, training, or education, may testify

thereto in the form of an opinion or otherwise.

p.38


STATE v. COUNCIL







and relevant, the judge should determine if the probative value of the

evidence is outweighed by its prejudicial effect. Id. The Court recently

held the standard of review of a. lower court's decision to admit or exclude

evidence under Daubert is an abuse of discretion. General Elec. Co. v.

Joiner, __U.S.__,118 S.Ct. 5121 139 L.Ed.2d 508 (1997).





While this Court does not adopt Daubert, we find the proper

analysis for determining admissibility of scientific evidence is now under

the SCRE. When admitting scientific evidence under Rule 702, SCRE, the

trial judge must find the evidence will assist the trier of fact, the expert

witness is qualified, and the underlying science is reliable. The trial judge

should apply the Jones factors to determine reliability. Further, if the

evidence is admissible under Rule 702, SCRE, the trial judge should

determine if its probative value is outweighed by its prejudicial effect.

Rule 403, SCRE. Once the evidence is admitted under these standards

the jury may give it such weight as it deems appropriate.





We conclude the trial judge was well within his discretion in

finding the results of the mtDNA analysis admissible under the Jones

factors and Rule 702, SCRE. State v. Von Dohlen, 322 S.C 234.1 471

S.E.2d 689, cert. denied, _ U.S. _, 117 S.Ct. 402, 136 L.Ed.2d 316

(1996) (the admission of expert testimony is within the discretion of the

trial court); State v. Bailey, 276 S.C. 32, 274 S.E.2d 913 (1981) (the

admissibility of evidence is within the trial court's discretion). This

evidence assists the jury in determining whether appellant committed the

crimes because it provides an objective confirmation of the subjective

microscopical comparison performed on the hairs. Mitochondrial DNA

analysis has been subjected to peer review and many articles have been

published about this technology. The F.B.I. laboratory validated the

process and determined its rate of error. Its underlying science has been

generally accepted in the scientific community. Further, while forensic

application of mtDNA analysis is fairly new, the technology has been used

in other contexts for several years.





Appellant further argues the trial judge erred in admitting this

evidence because he was not given a sufficient opportunity to rebut the

evidence.16 We disagree.


16 Appellant did not expressly ask for a continuance; instead, he

argued the trial judge could not make a determination of the admissibility

p.39


STATE v. COUNCIL







When defense counsel requested that the State have the hair

analyzed using a mtDNA test, counsel was assured the results would be

available several months before trial. However, the analysis was delayed,

and defense counsel was advised of the results of the mtDNA analysis the

night before appellant's trial. Therefore, defense counsel did not have

time to locate an expert witness to contradict the admitted testimony.

However, defense counsel was able to talk to Dizinno prior to an in

camera hearing and was able to vigorously cross-examine Dizinno during

the in camera hearing and when Dizinno testified before the jury.





This Court has noted that "vigorous cross examination,

presentation of contrary evidence and careful instructions on the burden of

proof are the traditional appropriate means of attacking shaky but

admissible evidence." State v. Dinkins, 319 S.C. 415, 418, 462 S.E.2d 59,

60 (quoting Daubert, 509 U.S. at 596, 113 S.Ct. at 2798).





In our opinion, appellant sufficiently rebutted this evidence.

Dizinno admitted on cross-examination that it was possible the hair

belonged to someone other than appellant. Further, the size of the

mtDNA database and the fact that Dizinno had previously found matches

between unrelated Caucasians were exposed during his testimony.

Because defense counsel effectively demonstrated the flaws in mtDNA

analysis, further preparation was not necessary. Moreover, although

defense counsel indicated he would like to retain his own expert witness to

counter this evidence, in our opinion, defense counsel's cross-examination

of Dizinno effectively encompassed the points his own expert would

probably discuss. We note that appellant does not suggest in his brief any

other facts that should have been but were not brought out by Dizinno in

his testimony concerning mtDNA analysis. Thus, the trial judge had

sufficient information on which to evaluate his decision on the

admissibility of this evidence and the jury had sufficient testimony on

which to decide whether to rely on this evidence.





V.



Appellant argues the trial judge erred in excluding testimony

during the penalty phase about the results of a polygraph examination

administered to Frank Douglas. Specifically, appellant claims the trial


of the mtDNA analysis without sufficient rebuttal evidence.

p.40


STATE v. COUNCIL





judge erred in finding the results of a polygraph test are per se

inadmissible.





During the investigation of Mrs. Gatti's murder, SLED

conducted a polygraph exam on Frank Douglas to determine whether he

had any knowledge of or involvement in Mrs. Gatti's death. The test

indicated deception.17





Prior to appellant's trial, defense counsel made a motion to

admit the polygraph results of the test administered to Douglas. He

moved to admit the results in the guilt phase for impeachment purposes if

Douglas testified18 and in the penalty phase as evidence in mitigation

because the polygraph results were probative of whether appellant was

acting under the influence of a more culpable participant in the crimes.19

Pursuant to the motion, the trial judge appointed an expert, Richard

Rackliff, to review the polygraph test and results and to prepare a report.

During a lengthy in camera hearing, the polygraph examiner, SLED agent

Mitchell, and Rackliff testified. Mitchell testified John Hopkins University

had developed a computer program for scoring the exam. This program

made the results of the exam more objective because it eliminated the

subjectiveness of a single examiner in scoring an exam. However, the

results from the exam still only indicate if a person showed deception on

certain questions. Thus, according to both Mitchell and Rackliff, while the

scoring had improved, a polygraph exam still is unable to tell if a person

is actually lying.





Relying on this Court's precedents, the trial court found the

results of the polygraph exam were inadmissible. The trial judge found

the underlying science of polygraph had not improved and had been found

unreliable by this Court.





This Court has consistently held the results of polygraph


17 SLED also administered a polygraph exam on appellant.

Appellant's exam also indicated deception.



18 Douglas did not testify. Therefore, whether this evidence could be

admitted for impeachment purposes is moot.



19 S.C. Code Ann. § 16-3-20(b)(4) & (5) (1985).

p.41


STATE v. COUNCIL





examinations are generally not admissible because the reliability of the

tests is questionable.20 State v. Wright, 322 S.C. 253, 471 S.E.2d 700

(1996); State v. Copeland, 278 S.C. 572, 300 S.E.2d 63 (1983). Further,

this Court has declined to admit in mitigation the results of a polygraph

exam offered during the penalty phase of a trial. Copeland, supra.21





The United States Supreme Court has recently found that a

per se rule against the admission of polygraph evidence does not violate a

defendant's right to present relevant evidence in his defense as guaranteed

by the U.S. Constitution. United States v. Scheffer, __U.S.__, 118

S.Ct. 1261P 140 L.Ed.2d 413 (1998). In Scheffer, the Court recognized,

"there is simply no consensus that polygraph evidence is reliable. To this

day, the scientific community remains extremely polarized about the

reliability of polygraph techniques." Scheffer, 118 S.Ct. at 1265.





In our opinion, the trial judge did not abuse his discretion in

refusing to admit the polygraph evidence. State v. Von Dohlen, supra

(admission of expert testimony is within the discretion of the trial judge).

However, in light of the adoption of the SCRE, admissibility of this type of

scientific evidence should be analyzed under Rules 702 and 403, SCRE and

the Jones factors.





After an analysis under these standards, we find the polygraph

evidence inadmissible in this case.22 The evidence is not probative on the


20 Some jurisdictions have abandoned the per se rule excluding the

admission of polygraph evidence into evidence. United States v. Cordoba,

104 F.3d 225 (9th Cir. 1997); United States v. Posado, 57 F.3d 428 (5th

Cir. 1995); Meyers v. Arcudi, 947 F. Supp. 581 (D. Conn. 1996) (listing

factors to consider when determining admissibility of polygraph results);

State v. Baca, 902 P.2d 65 (N.M. 1995) (Rule 707 of the New Mexico's

Rules of Evidence provides guidelines for the admissibility of polygraph

results).





21 Copeland was decided prior to the adoption of Rule 24, SCRCrimP,

or Rule 702, SCRE.



22 Other jurisdictions have continued to find polygraph evidence

inadmissible after Daubert. See State v. Porter, 668 A.2d 725 (Conn. Ct.

1995) (even in light of Daubert, polygraph evidence is inadmissible

p.42


STATE v. COUNCIL





issue of whether appellant was acting under the influence of Douglas.

Unless the jury is allowed to speculate, the fact that Douglas' exam

showed deception does not prove that Douglas was lying or that Douglas

committed the crimes against Mrs. Gatti. Douglas' deception on the

polygraph test fails to support appellant's assertion that Douglas

committed the crimes. Therefore, this evidence does not assist the jury.

See Rule 702, SCRE. Further, because it would only confuse and mislead

the jury, any probative value of this evidence would be outweighed by its

prejudicial effect. Rule 403, SCRE.





PROPORTIONALITY REVIEW



After reviewing the entire record, we conclude the death

sentence was not the result of passion, prejudice, or any other arbitrary

factor, and the jury's finding of statutory aggravating circumstances is

supported by the evidence. See S.C. Code Ann. § 16-3-25 (1985). Further,

the death penalty is neither excessive nor disproportionate to that imposed

in similar cases. See State v. Whipple, 324 S.C. 43, 476 S.E.2d 683, cert.

denied, 519 U.S. , 117 S.Ct. 618, 136 L.Ed.2d 541 (1996); State v.

Holmes, 320 S.C. 259, 464 S.E.2d 334 (1995), cert. denied, 517 U.S.

116 S.Ct. 25075, 135 L.Ed.2d 197 (1996); State v. Tucker, 319 S.C. 425, 462

S.E.2d 263 (1995), cert. denied, 516 U.S. 1080, 116 S.Ct. 789, 133 L.Ed.2d

739 (1996); State v. Singleton, 284 S.C. 388, 326 S.E.2d 153, cert. denied,

471 U.S. 11112 105 S.Ct. 23462 85 L.Ed.2d 863 (1985).



AFFIRMED.



TOAL, MOORE, and WALLER, JJ., concur. FINNEY, C.J.,

dissenting in separate opinion.


due to questionable accuracy); State v. Beard, 461 S.E.2d 486 (W. Va.

1995) (despite the fact that the court had previously adopted Daubert, the

court found polygraph evidence inadmissible).

p.43


STATE V. COUNCIL





FINNEY, C.J.: I respectfully dissent. The majority announces a new test to

be applied in determining the admissibility of scientific evidence. This is a two

part test, first requiring an inquiry under Rule 702, SCRE, followed by an

analysis under Rule 403, SCRE. The trial judge did not have the benefit of

this new rule, and therefore could not and did not apply it in determining the

admissibility of the mtDNA evidence. Justice requires that we reverse and

remand appellant's conviction and sentence for a new trial in which this novel

scientific evidence is subjected to the newly formulated test.





I am also deeply concerned, by the admission of appellant's

statements. His sixth amendment right to counsel attached at his

arraignment, Moorer v. State, 244 S.C. 102, 135 S.E.2d 713 (1964), and then

again at the time of his polygraph examination. State v. Grizzle, 293 S.C. 19,

358 S.E.2d 388 (1987). In my opinion, the record is less than clear that,

assuming that appellant waived his right following the arraignment, he was

ever reinformed and then knowingly, intelligently, and voluntarily waived this

right before the polygraph examination was administered.





For the reasons given above, I would reverse and remand for a new

trial.

p.44