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24993 - State v. Huggins

Shearouse Adv. Sh. No. 28
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State, Respondent,

v.

Titus L. Huggins, Appellant.

Appeal From Horry County

R. Markley Dennis, Jr., Circuit Court Judge

Opinion No. 24993

Heard November 4, 1998 - Filed August 23, 1999

AFFIRMED

Assistant Appellate Defender Robert M. Dudek, of

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, all of Columbia;

and Solicitor Ralph J. Wilson, of Conway, for

respondent.





PER CURIAM: Appellant was convicted of capital murder, armed

robbery, and conspiracy and received concurrent sentences of five years

(conspiracy), twenty-five years (armed robbery), and death (murder). The sole

aggravating circumstance was that the murder was committed while in the

commission of a robbery while armed with a deadly weapon. This opinion

consolidates appellant's direct appeal and our mandatory review pursuant to

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STATE v. HUGGINS





S.C. Code Ann. ยง 16-3-25 (1985). We affirm.





Appellant was convicted of murdering and robbing Mrs. Weaver,

the operator of the local grocery/liquor store, as she entered her home with the

day's receipts. The evidence showed Aaron Hill suggested Mrs. Weaver as the

robbery target, and that he was present at the scene. Hill maintained he hid

and watched as appellant committed the robbery they had planned, and then

as appellant unexpectedly shot the victim.1 Appellant gave a statement that

Hill was present and actually did the robbing and shooting. On appeal,

appellant raises only sentencing issues.





Appellant first argues he was entitled to have the judge direct a

life sentence because the State failed to produce any evidence of aggravation

in the sentencing phase of the trial. The State instead chose to introduce only

"Victim Impact" evidence, and did not formally reintroduce the guilt phase

evidence. We find no reversible error.





Appellant's directed verdict motion was denied because the trial

judge ruled that the guilt phase evidence "carried over" to the sentencing

phase. Appellant contends this ruling was incorrect.2 This issue has already

been decided adversely to appellant's position.





In State v. Shaw, 273 S.C. 194, 255 S.E.2d 799 (1979) subsequent


1Appellant and Hill were originally tried together: Appellant was

convicted of murder, armed robbery, and conspiracy while Hill was acquitted

of murder but convicted of armed robbery and conspiracy. Juror misconduct

led to a mistrial for appellant, but Hill did not seek one and his convictions

stood. At this second trial, Hill invoked his 5th Amendment right to refuse to

testify, and consequently his testimony from the first trial was read into the

record.





2To the extent appellant now argues in brief that his sentencing phase

was unconstitutional because the State focused solely on the character of the

victim and not on the individual characteristic of the crime and the appellant,

his argument is procedurally barred since it was not raised below. State v.

Gardner, 332 S.C. 389, 505 S.E.2d 338 (1998).

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STATE v. HUGGINS





history omitted, this Court held:

The purpose of the bifurcated trial proceeding is to

permit the introduction of evidence at the pre-sentence

hearing that normally would be inadmissible at the

guilt determination proceeding. The pre-sentence

hearing is for the introduction of additional evidence

in extenuation, mitigation or aggravation of

punishment. The statute does not exclude from the

consideration of the sentencing authority any evidence

received at the guilt determination stage. To the

contrary, the sentencing authority is required to

consider all the evidence received at the guilt

determination stage regarding the circumstances of

the crime and the characteristics of the individual

defendant together with additional evidence, if any, in

extenuation, mitigation or aggravation of punishment.

Although it is customary for the State to formally reintroduce the guilt phase

evidence at the beginning of the sentencing phase, this formality is not

required by statute or case law. We affirm the trial judge's refusal to direct a

life sentence.





Appellant next argues the court committed reversible error in

refusing to allow him to introduce certain evidence in the sentencing phase.

Specifically, appellant wanted to introduce the fact that he had briefly been

released on bond3 after being served with notice of intent to seek the death

penalty, and that he did not flee during that period. He offered this evidence

in mitigation, to show his good character.





Appellant was permitted to introduce evidence that he was briefly

bonded out of jail. The jail record keeper testified to the dates of appellant's

release and his bail bondsman testified he had no trouble contacting appellant

while he was out on bond and no trouble picking him up when bond was


3 This Court found error in the order releasing appellant on bond and

therefore he was reincarcerated.

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STATE v. HUGGINS





revoked. Appellant then sought to introduce into evidence the "notice of

intent" which had been served prior to his release, and related documents in

order to establish an evidentiary basis for his mitigation argument. See, e.g.,

State v. Cannon, 229 S.C. 614, 93 S.E.2d 889 (1956)(counsel must confine

argument to evidence and fair inferences in the record). The trial judge held

that since appellant's release on bond had been predicated on an error of law,

and since the bond was quickly revoked when the error was discovered, the

whole issue of the bond and the notice were "too confusing", and refused to

admit the documents. He also held the "fact" the State had sought the death

penalty was already before the jury.





In her closing argument, appellant's attorney stated, without

objection:

One fact, one series of facts, I do think, speak to

[appellant] also. No question he was arrested for

murder, armed robbery and conspiracy. He was given

notice by the State of South Carolina "We intend to

seek the death penalty." , [sic] and he knows this. He

is released on bond on April 2nd. He is returned to the

jail on April 8th. He is out for that period of time

knowing the State wants to seek the death penalty.

The bondsman had daily contact with him and had no

problem picking him up and returning him to jail

when he was so directed.





Assuming the trial judge erred in refusing to admit the actual

notice of intent to seek the death penalty and the other documents into

evidence, appellant simply cannot show prejudice since he was permitted to

make the mitigation argument he sought. Error without prejudice does not

warrant reversal. State v. McWee, 322 S.C. 387, 472 S.E.2d 239 (1996).





As noted above, appellant and Hill admitted conspiring to rob Mrs.

Weaver, and each blamed the other for the actual robbery and murder. In the

penalty phase of this second trial, appellant proffered the testimony of

Leonard Hemingway and James Lawrimore in an attempt to shift blame onto

Hill. Hemingway testified that two days prior to Mrs. Weaver's murder, Hill

had fired a gun at him in a dispute over food stamps. Appellant argues this

evidence was relevant to the statutory mitigating circumstances that he was a

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STATE v. HUGGINS







relatively minor participant in a murder committed by Hill because it showed

Hill was quick to fire a gun. The trial judge refused to admit Hemingway's

testimony, finding it irrelevant.





Evidence is relevant if it tends to make more or less probable a

fact in issue. State v. McWee, supra. The relevancy of evidence is an issue

within the trial judge's discretion. Id. We find no abuse of discretion here.

Hemingway's testimony is simply not relevant to the circumstances of Mrs.

Weaver's death. Further, appellant's own statement negates any contention

that he was a "minor participant" in the crime, regardless which individual

was the actual shooter.





Appellant also proffered the testimony of Lawrimore that three or

four years before Mrs. Weaver's death, Hill shot Lawrimore over a trivial

incident. This evidence was excluded on grounds of remoteness. Again,

appellant cannot show an abuse of discretion nor any prejudice since there is

simply no evidence he was a minor participant in the crime, and Lawrimore's

testimony was simply not probative of any fact in issue. State v. McWee,

supra. We find no error in the trial judge's refusal to admit Lawrimore's

testimony.





Finally, the record in this case shows it was prosecuted not by the

elected solicitor, but by two individuals identified as "Special Prosecutor John

Hilliard" and "Special Prosecutor Thomas J. Rubillo." No objection was made

at trial to their role, although appellant raises numerous objections on appeal.

It is well-settled that issues may not be raised for the first time on appeal.

State v. Gardner, supra. There is nothing in this record regarding the

propriety of the participation of these attorneys for our review.





PROPORTIONALITY REVIEW



We find the sentence imposed here is proportional to the one

imposed State v. Patterson, 324 S.C. 5, 482 S.E.2d 760 (1997)(prior and

subsequent history omitted). Accordingly, the conviction and sentence are



AFFIRMED.



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STATE v. HUGGINS



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