THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
Appeal From York County
John C. Hayes, III, Judge
Opinion No. 25003
Heard May 26, 1998 - Filed October 4, 1999
Stephen D. Schusterman, of Rock Hill; and Christina
Chadwick Brice, of York, for appellant.
Attorney General Charles M. Condon, Chief Deputy
Attorney General John W. McIntosh, Assistant
Deputy Attorney General Donald J. Zelenka,
Assistant Attorney General Robert F. Daley, Jr., all
of Columbia; and Solicitor Thomas E. Pope, of York,
MOORE, A.J.: Appellant was sentenced to death for the murder
of Officer Brent McCants who was killed during a routine traffic stop. We
On September 25, 1992, appellant and Eric Forney, armed with a gun,
accosted two college students in the parking lot of a restaurant in Charlotte,
North Carolina, and stole their car. The two men then drove to Rock Hill
where Officer McCants stopped them for driving without headlights.
McCants was shot several times and his police-issue walkie-talkie was taken
from his belt as he lay on the side of the road. Appellant and Forney were
apprehended shortly thereafter.
The State sought the death penalty against both appellant and Forney.
They were tried separately. At his trial, Forney claimed appellant was the
triggerman. Forney was convicted of murder, criminal conspiracy, and
armed robbery and was acquitted of possession of a pistol during the
commission of a violent crime. After the jury failed to return a unanimous
verdict in the sentencing phase, he was sentenced to life imprisonment. This
sentence was affirmed on appeal. State v. Forney, 321 S.C. 353, 468 S.E.2d
At appellant's trial, appellant admitted he participated in the armed
robbery of the vehicle and that he was driving at the time McCants stopped
them, but claimed Forney shot McCantsfrom the passenger seat and stole
the officer's walkie-talkie. Appellant was convicted of murder, armed
robbery, criminal conspiracy, possession of a stolen vehicle., and possession of
a firearm during the commission of a crime. The jury found as an
aggravating circumstance that the victim was a local law enforcement officer
performing his official duties.
1) Sentencing phase admission of jailhouse crimes
During the sentencing phase, evidence was admitted that while in
prison awaiting trial for the murder of Officer McCants, appellant killed a
sleeping cellmate by stabbing him in the throat with a "shank." He was in
the process of stabbing another cellmate when he was stopped by prison
guards. These crimes occurred April 12, 1993.
In response to this evidence, appellant introduced expert testimony
that he was mentally ill (paranoid schizophrenic) at the time. Appellant's
expert testified appellant's actions on April 12th were not indicative of his
character since he was mentally ill at the: time. Further, there was evidence
appellant had no further disciplinary problems once he was medicated for his
mental illness. The trial judge charged the jury that the April 12th crimes
should be considered only "as evidence of [appellant's] character, his
characteristics, and/or his future dangerousness."
On appeal, appellant contends admission of the evidence regarding the
April 12th crimes was improper because he was mentally ill at the time and
therefore this evidence was not reliable character evidence.1 We disagree.
First, there was no contemporaneous objection to the introduction of
this evidence at the sentencing phase of trial. The trial judge ruled in limine
that the evidence was admissible. An in limine ruling, however, is not final
and does not preserve the issue for appeal. State v. Schumpert, 312 S.C.
502, 435 S.E.2d 859 (1993). Accordingly, this issue is not preserved.
In any event, it is well-settled evidence of the defendant's behavior in
prison is admissible in capital sentencing because it bears upon his
character. State v. Stewart, 283 S.C. 104, 320 S.E.2d 447 (1984). The State
may establish as an aggravating factor that the defendant would in the
future pose a danger to others if not executed. State v. Patterson, 290 S.C.
523, 351 S.E.2d 853 (1986), vacated on other grounds, 111 S.Ct. 2253 (1991)
(citing Jurek v. Texas, 428 U.S. 262 (1976) and Barefoot v. Estelle, 463 U.S.
880 (1983)). A defendant has the reciprocal right to present evidence he
would adapt well to prison life. Id.
Here, the evidence appellant brutally killed one person and attempted
to kill another while in prison was admissible as evidence of future
dangerousness. Expert testimony appel lant was mentally ill at the time and
therefore acting "uncharacteristically" does not render evidence of his actions
in prison inadmissible. The sentencing jury is charged with considering all
to inadmissibility set forth in State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923).
Lyle is inapplicable here. Evidence admitted under Lyle is substantive evidence
to establish guilt, not character evidence relevant to capital sentencing. State
v. Middleton, 295 S.C. 318, 368 S.E.2d 457, cert. denied, 488 U.S. 872 (1988).
possible relevant information about the individual defendant whose fate it
must determine. State v. Tucker (Tucker II), 324 S.C. 155, ___, 478 S.E.2d
260, 270 (1996), cert. denied, 117 S.Ct. 1561 (1997). It was for the jury to
weigh all the evidence regarding appellant's behavior to assess his character
and propensity or lack of propensity for violence. See State v. Nelson, 331
S.C. 1, 501 S.E.2d 716 (1998) (generally in evidentiary law character refers
to an individual's propensity).2
2) Nondisclosure of complete SLED summary
During the sentencing phase, appellant moved for a mistrial on the
ground the State had failed to disclose, in violation of Rule 5, SCrimP, part
of a report by the State Law Enforcement Division (SLED) concerning the
April 12th jailhouse crimes. Specifically, counsel complained she had not
received the first seventeen pages of a SLED investigative summary
indicating three inmates gave statements that around the time of the
stabbings appellant talked about seeing "a little green man." The State
contended it was not required to disclose the summary because it was work
product exempt under Rule 5. The trial judge denied a mistrial finding
appellant was not prejudiced by the failure to disclose.
Rule 5(a)(1)(C), SCrimp, exempts internal prosecution documents
made in connection with an investigation. We need not determine here
whether the report in question is exempt3 since we agree with the trial
judge's ruling that appellant has shown no prejudice from the failure to
disclose. See State v. Trotter, 317 S.C.411, 2453 S.E.2d 905 (Ct. App. 1995)
aff'd in result 322 S.C. 5372 473 S.E.2d 452 (1996) (violation of Rule 5 not
reversible where no prejudice); State v. Thompson, 276 S.C. 616, 281 S.E.2d
216 (1981) (State's failure to disclose does not warrant reversal unless
responsible" for the April 12th crimes because of his mental illness. Evidence
of other crimes is admissible in sentencing to show the defendant's individual
characteristics and predisposition to commit similar crimes, irrespective of
conviction or a finding of criminal responsibility. State v. George, 323 S.C. 496,
476 S.E.2d 903 (1996), cert. denied, 117 S.Ct. 1261 (1997).
3 See State v. Gill, 319 S.C. 283, 460 S.E.2d 412 (Ct. App. 1995), vacated
on othergrounds,327 S.C.253,489 S.E.2d,478 (1997) (summary report prepared
by police for use in prosecuting case not subject to disclosure under Rule 5).
defendant deprived of a fair trial).4
The information regarding the inmates' statements was available to
the defense before trial from the report of Dr. Morgan which refers to
inmates Jennings's, Walker's, and Gaithers's statements regarding the "little
green man." The trial judge had these three inmates transported to court
during trial to be interviewed by defense counsel. Further, appellant's
experts, Drs. Kohanski and Dupree, both testified they had information
appellant told fellow inmates of "a little green man" talking to him. In
conclusion, appellant was not prejudiced by the partial disclosure of the
SLED investigative summary since the information was available from other
3) Involuntary statements
In the guilt phase of trial, State witness Jennings, an inmate, testified
he heard appellant tell a group of inmates: "The best feeling I ever had is
when I killed that cop." State witness Strain, a prison guard, testified he
overheard appellant say to another inmate that "he was going to kill him
another white boy." Appellant claims the trial judge erred in refusing to
exclude these statements as involuntary because appellant was mentally ill
at the time.
Absent coercive police conduct causally related to a confession, there is
no basis for finding a confession constitutionally involuntary. A defendant's
mental condition in and of itself does not render a statement involuntary in
violation of due process. Colorado v. Connell, 479 U.S. 157, 107 S.Ct. 515,
93 L.Ed.2d 473 (1986). Further, under State law, a confession is not
inadmissible because of mental deficiency alone. State v. Doby, 273 S.C. 704,
258 S.E.2d 896 (1979), cert. denied, 444 U.S. 1048 (1980). Here, the only
factor appellant relies on as evidence of involuntariness is his mental
below and is not preserved on appeal. State v. Tucker (Tucker I), 319 S.C.
425462 S.E.2d 263 (1995), cert. denied, 516 U.S. 1080 (1996) (defendant cannot
argue one ground below and another on appeal). In any event, failure to
disclose Brady material is reversible error only when its omission deprives the
defendant of a fair trial. State v. Gunn, 313 S.C. 124,437 S.E.2d, 75 (1993), cert.
denied, 510 U.S. 1115 (1994). As discussed below, appellant can show no
prejudice and therefore was not deprived of a fair trial.
condition. The statements in question were spontaneously made and there is
no evidence of police coercion. Since mental condition alone does not support
a finding of involuntariness, this issue is without merit.
Appellant further contends these statements were untrustworthy
because there was no corroborating evidence. He refers to our decision in co-
defendant Forney's case where Forney sought admission of appellant's
statements to show appellant was the triggerman. We held the exclusion of
those statements proper because there was no corroborating evidence
indicating their trustworthiness. State v. Forngy, supra.
In Forney's case, however, these statements were hearsay statements
against the penal interest of an unavailable declarant (appellant) which
required corroboration to be admissible to exculpate the accused (Forney).
State v. Doctor, 306 S.C. 527, 413 S.E.2d. 36 (1992); see also Rule 804(b)(3),
SCRE. In appellant's case, these statements were ad missible as statements
against his own interest and required no corroborating evidence. Rule
4) Co-defendant's life sentence as mitigating factor
Appellant, contends the trial judge erred in refusing his request to
admit as mitigating evidence in the sentencing phase co-defendant Forney's
life sentence. Forney received a life sentence after the jury in his own capital
case found an aggravating circumstancebut failed to return a unanimous
verdict of death. See S.C. Code Ann. § 16-3-20(C) (Supp. 1997) (defendant
sentenced to life if no unanimous recommendation by jury). The trial judge
found this evidence irrelevant. We agree.
In a capital case, the sentencer may not be precluded from considering
as mitigating evidence (1) any aspect of the defendant's character or record
and (2) any circumstances of the crime that may serve as a basis for a
sentence less than death. State v. Bell, 305 S.C. 11, 406 S.E.2d 165 (1991),
cert. denied, 502 U.S. 1038 (1992) (citing Hitchcock v. Dugger, 481 U.S. 393
(1987)). In Bell, we found evidence of a co-defendant's demeanor and record
was properly excluded because it fit neither of these categories of mitigating
evidence. Similarly, co-defendant Forney's life sentence does not qualify as
mitigating evidence here. Forney's sentence does not demonstrate
appellant's character or record, nor does it reveal anything about the
circumstances of McCants's murder. Accordingly, this evidence was properly
excluded. State v. Charpin , 333 S.C. 124, 508 S.E.2d 851 (1998).
After the jury returned its recommendation of death, appellant moved
for imposition of a life sentence on the ground a sentence of death would be
disproportionate to Forney's life sentence:. On appeal, he argues the trial
judge's refusal to impose a life sentence violated his constitutional and
statutory rights to a proportionate sentence.
Under State law, S.C. Code Ann. § 16-3-25(C)(3) (1985) requires this
Court to determine in a death case "[w]hether the sentence of death is
excessive or disproportionate to the penalty imposed in similar cases,
considering both the crime and the defendant." (emphasis added). There is
no requirement the sentence be proportional to any particular case. Death
sentences have been imposed in other cases where, as here, the single
aggravating circumstance was death of a police officer. See State v. Johnson,
306 S.C. 1191 410 S.E.2d 547 (1991), cert. denied, 503 U.S. 993 (1992); State
v. South, 285 S.C. 529, 331 S.E.2d 775 cert. denied 474 U.S. 888 (1985).
Accordingly, appellant's sentence is not disproportionate under State law.
Further, the Eighth Amendment requires no comparative proportionality
review, Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d (1984), and
hence there can be no constitutional violation from the refusal to determine
proportionality to a specific case.
Appellant further contends his death sentence is disproportionate to
the degree of his moral culpability under Enmund v. Florida, 458 U.S. 782,
102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), because he was convicted of murder
on a theory of accomplice liability and there is no evidence of his intent to
kill. We note the United States Supreme Court specifically modified
Enmund in Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127
(1987), wherein it held the Enmund culpability requirement is satisfied by
major participation in the underlying felony combined with reckless
indifference to human life.5 See also State v. Longworth, 313 S.C. 360, 438
S.E.2d 219 (1993).
In any event, the sentence in this case does not rest on moral
culpability established solely by accomplice liability. Statements by
appellant admitted in the guilt and sentencing phases of trial indicated he
was the triggerman. This evidence of direct moral culpability in the killing
of Officer McCants supports the imposition of death based on the
aggravating circumstance found by the jury.
6) Courtroom outburst
In the sentencing phase, during cross-examination of appellant's
medical expert, Officer McCants's mother loudly exited the courtroom
followed by her sister. Appellant moved for a mistrial which was denied.
The trial judge found that although Mrs. McCants's outburst could be
interpreted as "a negative comment" on the defense evidence, her conduct
was only momentarily disruptive and the jury already knew how she felt
since she had testified as a victim impact witness.
The decision whether to grant a mistrial because of a witness's
outburst rests within the sound discretion of the trial judge and will not be
reversed absent an abuse thereof or manifest prejudice to the complaining
party. State v. Anderson, 322 S.C. 89, 470 S.E.2d 103 (1996). In Anderson,
we found no abuse of discretion in the denial of a mistrial where the outburst
was limited and the jury likely understood it as an expression of grief over
the victim's death. This case is similar. As noted by the trial judge, the jury
was already aware of Mrs. McCants' feelings about the death of her son and
likely understood her outburst as an expression of this grief. We find the
trial judge did not abuse his discretion in denying a mistrial.
7) Allen charge
After deliberating at the close of the sentencing phase for four hours,
the jury sent the trial judge a note stating they could not come to a
unanimous decision. The trial judge gave a modified Allen charge6 as
Well, by law I cannot tell you where to go from here, but I can
ask and make a suggestion that you continue deliberations in an
attempt to reach a verdict. I can tell you all of you have a duty to
consult with one another and to deliberate with a view to
reaching an agreement, if this can be done without violence to
any one of your individual judgments. Each of you as jurors
must decide the case for yourself, but only after impartial
consideration of the evidence with your fellow jurors. During the
course of your continued deliberations each of you should not
hesitate to re-examine your own views and change your opinion
if convinced that your opinion is erroneous. Each juror who finds
himself or herself to be in the minority should reconsider their
views in light of the opinions of the jurors of the majority and,
conversely each juror finding themselves in the majority should
give equal consideration to the views of the minority. No juror,
however, should surrender their honest conviction as to the
weight or effect of the evidence solely because of the opinion of
your fellow jurors or for the mere purpose of returning a
On appeal, appellant complains the underscored statement was not even
handed because it directs the minority to "reconsider" and the majority
merely to "consider."
First, this ground for objection to the Allen charge was not raised
below and is not preserved. Tucker I, supra (objection to Allen charge not
preserved where different objection stated below). In any event, the charge
specifically instructs the majority to give "equal consideration to the views of
the minority." Taken as a whole, this charge is an even-handed admonition
to both the minority and majority jurors.
Appellant also complains the trial judge coerced the jury's decision by
sending a note asking whether they would like to continue deliberations that
evening or break until morning. There is no indication appellant objected
below and this issue is not preserved. Tucker I, supra. Further, this note
was simply an inquiry as to the jury's wishes and conveyed no admonition to
reach a verdict. This argument is without merit.
We have reviewed the record and conclude imposition of death in this
case was not the result of passion, prejudice, or any other arbitrary factor.
Further, the evidence supports the aggravating circumstance and the death
sentence is not excessive or disproportionate to the penalty imposed in
similar cases. S.C. Code Ann. § 16-3-25(C) (1985); see State v. Johnson,
supra; State v. South, supra. Accordingly, the judgment of the circuit court
FINNEY, C.J., TOAL, WALLER, and BURNETT, JJ., concur.