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24975 - State v. Rosemond

Shearouse Adv. Sh. No.25
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State, Respondent,

v.

Andre Kevin Rosemond, Appellant.

Appeal From Spartanburg County

J. Derham Cole, Judge

Opinion No. 24975

Heard January 8, 1998 - Filed July 26, 1999

AFFIRMED

Robert M. Pachak, Assistant Appellate Defender, South

Carolina Office of Appellant Defense, of Columbia, for

appellant.

Charles M. Condon, Attorney General, John W. McIntosh,

.Deputy Attorney General, and Donald J. Zelenka,

Assistant Deputy Attorney General, all of Columbia; and

Holman C. Gossett, Solicitor, Seventh Judicial Circuit, of

Spartanburg, for respondent.







WALLER, A.J.: A jury convicted Appellant Andre Kevin

Rosemond of the murders of his girlfriend, Christine Norton,1 and Norton's

ten-year old daughter, Corrie Autumn Norton.2 Thereafter, upon the jury's

recommendation, the trial judge sentenced Appellant to death for both


1Hereinafter "Mother."



2 Hereinafter "Daughter."

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State v. Rosemond





convictions.3 This appeal consolidates Appellant's direct appeal with the

mandatory review provisions of S.C. Code Ann. § 16-3-25(C) (1985). We

affirm.





FACTS



On the afternoon of June 21, 1993, at Appellant's request, a

Spartanburg County Sheriffs Deputy met Appellant at Brown's Funeral

Home. Appellant told the deputy he and Mother had received a telephone

call (or calls) the previous evening threatening their lives. Because of this,

they had decided to move. Appellant requested that the deputy accompany

him back to the mobile home where he and Mother lived so he could retrieve

some clothing. The deputy complied. When they entered the mobile home,

Mother and Daughter were found dead in the living area. Daughter was

sitting slumped on the sofa and Mother was lying on the floor beside the

sofa. Both had been shot twice in the head.





While initially Appellant told police he thought whomever had been

threatening them had killed the victims, he eventually confessed to the

shootings. He told police he had thrown the murder weapon in a lake, and

led them to the exact spot where he threw it in. The gun was subsequently

found in close proximity to this spot.





ISSUE



The sole issue on appeal is whether the trial judge erred in admitting

color photographs of the victims during the sentencing phase.





DISCUSSION



During the sentencing phase, the State was allowed to introduce six

enlarged color photographs of the victims over Appellant's objection. Three

were pictures of the victims at the crime scene, and three were taken at

autopsy. Appellant argues these pictures were unduly prejudicial and


3 The jury found as statutory aggravating circumstances that two or

more persons were murdered by the defendant by one act or pursuant to one

scheme or course of conduct; and the murder of a child eleven years of age

or under. S.C. Code Ann. §16-3-20(9), -20(10) (Supp. 1996).

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State v. Rosemond





deprived him of a fair trial. See U.S. Const. amend. VII; U.S. Const. amend.

XIV; S.C. Code Ann.§16-3-25(C)(1) (1985). We disagree.





The relevance, materiality and admissibility of photographs are matters

within the sound discretion of the trial court and a ruling will be disturbed

only upon a showing of an abuse of discretion. State v. Tucker, 324 S.C. 155,

478 S.E.2d 260 (1996), cert. denied, 117 S. Ct. 1561 (1997).



The purpose of the bifurcated proceeding in a capital case is to

permit the introduction of evidence in the sentencing proceeding

which ordinarily would be inadmissible in the guilt phase. In the

sentencing proceeding, the trial court may permit the introduction

of additional evidence in extenuation, mitigation or aggravation.

In determining whether to recommend a sentence of death, the

jury may be permitted to see photographs which depict the bodies

of the murder victims in substantially the same condition in

which the defendant left them. . . . The trial judge is still

required to balance the prejudicial effect of the photographs

against their probative value. However, in the sentencing phase,

the scope of the probative value is much broader.

State v. Kornahrens, 290 S.C. 281, 289, 350 S.E.2d 180, 185-86 (1986), cert.

denied, 480 U.S. 940 (1987) (internal citations omitted). To constitute unfair

prejudice, the photographs must create a "tendency to suggest a decision on

an improper basis, commonly, though not necessarily, an emotional one."

State v. Franklin, 318 S.C. 47, 55, 456 S.E.2d 357, 361, cert. denied, 116 S.

Ct. 160 (1995) (quoting State v. Alexander, 303 S.C. 377, 382, 401 S.E.2d 146,

149 (1991)).





We have reviewed the photographs and find the trial judge did not

abuse his discretion in admitting them. The photographs taken at the crime

scene showed the victims in substantially the same condition as Appellant

left them. All of the photographs served to corroborate the pathologist's

testimony describing the position of the victims as they were dying and the

wounds each received. He also used them to explain his belief that Mother

continued living for about ten minutes after she was shot, and that

Daughter's wounds were inflicted at close range. These photographs were

probative of both the circumstances of the crime and Appellant's character.

The autopsy photographs were not unnecessarily gruesome, as the bodies had

been cleaned of blood. See Franklin, 318 S.C. at 56-57, 456 S.E.2d 361-62

(affirming admission of autopsy slides, noting they showed victim's wounds

and*body had been cleaned of blood). Photographs of a victim's body are

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State v. Rosemond





admissible in the sentencing phase of a death penalty trial to show the

circumstances of the crime and the character of the defendant. Tucker, 324

S.C. 155, 478 S.E.2d 260. If the photograph serves to corroborate testimony,

it is not an abuse of discretion to admit it. State v. Nance, 320 S.C. 501,

508, 466 S.E.2d 349, 353, cert. denied, 116 S. Ct. 2566 (1996). We find the

probative value of these photographs outweighed any potential prejudicial

effect.





Review under S.C. Code Ann. §16-3-25(C) (1985)



We find the sentence imposed proportionate to that in similar cases, is

not arbitrary, excessive or disproportionate to the crime in this case, and is

not the result of passion or prejudice. We also find the evidence supports the

finding of aggravating circumstances. See, e.g., State v. Tucker, 324 S.C.

155, 478 S.E.2d 260 (1996); State v. Williams, 321 S.C. 327, 468 S.E.2d 626

(1995).





AFFIRMED.

TOAL, MOORE, and BURNET, JJ. , concur. FINNEY, C. J. , dissenting in a

separate opinion.

p.10


STATE v. ROSEMOND





FINNEY, C.J.: I respectfully dissent. The State elected to offer

enlarged photographs of both the mother and child victims taken at the

crime scene and at the autopsy. In my opinion, the prejudicial effect of the

oversized photos, which were not enlarged for any legitimate evidentiary

purpose, outweighed their probative value. State v. Livingston, 327 S.C. 17,

488 S.E.2d 313 (1997). 1 would reverse and remand for a new sentencing

proceeding.





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