Riddle v. State

• Citation: 443 S.E.2d 557,314 S.C. 1
• Decision Date: 21 September 1993
• Docket Number: No. 24065,24065
• Parties: Ernest M. RIDDLE, Petitioner, v. STATE of South Carolina, Respondent. . Heard
• Court: United States State Supreme Court of South Carolina

Page 557

443 S.E.2d 557

314 S.C. 1

Ernest M. RIDDLE, Petitioner, v. STATE of South Carolina, Respondent.

No. 24065.

Supreme Court of South Carolina.

Heard Sept. 21, 1993.

Decided May 9, 1994.

Rehearing Denied June 7, 1994.

[314 S.C. 2] Daniel T. Stacey, Chief Atty., S.C. Appellate Defense, Columbia, for petitioner.

T. Travis Medlock, Atty. Gen., Donald J. Zelenka, Chief Deputy Atty. Gen., Harold M. Coombs, Jr., Sr. Asst. Atty. Gen., William Edgar Salter, III, Asst. Atty. Gen., Columbia, and Holman C. Gossett, Sol., Spartanburg, for respondent.

TOAL, Justice:

Petitioner appeals a third jury's recommendation that a sentence of death be imposed for Petitioner's previous convictions of murder, armed robbery, and burglary. We consolidate the mandatory sentencing review with this appeal and affirm.

FACTS

Petitioner was indicted at the November 1985 term of the Cherokee County Court of Petitioner was tried, convicted, and sentenced to death. The original sentencing jury found that the murder was committed while in the commission of burglary and while in the commission of robbery while armed with a deadly weapon. On appeal, we affirmed Petitioner's convictions but remanded for a new sentencing hearing. State v. Riddle, 291 S.C. 232, 353 S.E.2d 138 (1987) (remanded where trial court improperly excluded evidence of adaptability to prison life, and for admission of defendant's juvenile record at trial without notice to the defendant), (hereinafter Riddle I ).

                General Sessions for the crimes of murder, burglary in the first degree, and armed robbery.   All of these charges stemmed from the brutal murder of Ms. Abbie Sue Mullinax, a 76 year old widow who lived with her stepdaughter in Gaffney, South Carolina
                

The case was called for resentencing on September 28, 1987, in the Cherokee County Court of General Sessions before a different judge and jury. On October 1, 1987, the second resentencing jury also recommended that Petitioner receive the death penalty. On appeal, we reversed and remanded for resentencing because the trial court erred in admitting the Petitioner's previous convictions at the first trial as proof of the aggravating circumstances at the subsequent resentencing proceeding. State v. Riddle, 301 S.C. 68, 389 S.E.2d 665 (1990), (hereinafter Riddle II ).

Following pretrial motions hearings on August 28 and November 13, 1992, the trial judge, who presided at the first trial, agreed to impanel a jury from Newberry County pursuant to S.C.CODE ANN. § 17-21-85 (Supp.1991). Thereafter, a resentencing hearing was held and a third jury found that the murder was committed while in the commission of a robbery while armed with a deadly weapon, and while in the commission of burglary. As a result, this third jury recommended that Petitioner be sentenced to death. The trial judge, finding that the recommendation was not the result of passion, prejudice, or other arbitrary factors, imposed the death sentence.

This appeal consolidates Petitioner's appeal and the mandatory review of the death sentence as required by S.C.CODE ANN. § 16-3-25 (1987).

ISSUES

The Petitioner raises the following six issues on appeal:

1. Is the Petitioner's death sentence barred by the double jeopardy prohibitions of the United States and South Carolina Constitutions?

2. Did the trial court err when it first declared the co-defendant brother of the Petitioner to be a court's witness and then declared him to be unavailable upon his refusal to testify, thereby allowing his previous sworn testimony in the guilt phase of Riddle I to be read to the jury?

3. Was the victim impact evidence admitted at trial more prejudicial than probative?

4. Did the trial judge err in disqualifying a venireman for cause when the potential juror's beliefs on capital punishment would have prevented her from giving the death sentence?

5. Did the trial judge err in accepting the State's explanations for peremptory strikes of two potential black jurors?

6. Did the trial judge err in admitting a photograph of the victim taken at the crime scene?

LAW/ANALYSIS

1. DOUBLE JEOPARDY

Petitioner asserts that our decision in Riddle II, was in effect an "acquittal" from consideration of the death penalty. Petitioner bases his argument on the language of the concurring opinion, which contended that no evidence was submitted to the jury to support the aggravating circumstances . Id. The Petitioner posits that since the concurrence found "no evidence" and because the majority did not refute this statement, then as a matter of law, it acts to prevent reconsideration of the death penalty.

In Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), the Supreme Court held that double jeopardy precludes a second trial where a reviewing court has found the evidence legally insufficient in the first trial. Id. In Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988), the Supreme Court held that, "where the evidence offered by the State and admitted by the trial court--whether erroneously or not--would have been sufficient to sustain a guilty verdict, the Double Jeopardy Clause does not preclude retrial." Id. at 34, 109 S.Ct. at 287, 102 L.Ed.2d at 269-70. The Supreme Court noted the fundamental difference between a reversal based on the insufficiency of evidence and a reversal predicated on trial error in the admission of evidence. Id. Where the evidence was erroneously admitted, the Double Jeopardy Clause does not act to bar a retrial for sentencing. Id.

The relevant question here is whether the holding in Riddle II was predicated on the insufficiency of the evidence or a trial error in the admission of evidence.

In Riddle II, petitioner assigned trial court error in the admission of the jury's verdict in Riddle I of guilty of armed robbery and of burglary. He characterized this error as one of admission of evidence coupled with the trial court's failure to charge the elements of the crimes of armed robbery and burglary. It was petitioner's contention in Riddle II that these errors prevented the jury from exercising independent judgment regarding the aggravating circumstances. In effect, petitioner argued that these errors of admission of improper evidence and failure to charge resulted in an automatic verdict of guilty of the aggravating circumstances. Petitioner did not argue failure of proof in Riddle II.

In Riddle II, we found error in the admission into evidence of the indictments and verdict forms for armed robbery and burglary from the first trial, Riddle I, as proof of the aggravating circumstances in the subsequent resentencing trial. Id. The concurring opinion noted the question should focus on the inquiry of whether the murder was committed "while in the commission of" the aggravating crimes. The concurrence contended, "this case must be reversed because of the lack of evidence to support the jury's finding that the murder was committed 'while in the commission of' the robbery and/or burglary." Id. 301 S.C. at 74, 389 S.E.2d at 668.

The concurring opinion points to an insufficiency of the evidence; however, the majority keys on the introduction of evidence by finding the indictments and verdict forms were not the type of evidence allowed for establishing aggravating circumstances. The previous indictments and verdict forms were evidence, albeit inadmissible evidence, that the aggravating circumstances were committed. The concurring opinion in Riddle II must be read in perspective. The majority opinion, which is the law of the case, focused on the admission of the convictions as proof of the aggravating circumstances, while the lone concurring Justice posited that this evidence was insufficient to satisfy the necessary "while in the commission of" test. Simply stated, the four-Justice majority in Riddle II dealt with a trial error in the admission of evidence and not the sufficiency of evidence as a matter of law.

In Poland v. Arizona, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986), the Supreme Court recognized the dangers inherent to an appellate court's "acquittal" when the majority wrote:

the Double Jeopardy Clause does not require the reviewing court, if it sustains [a claim that the evidence presented is insufficient as a matter of law], to ignore evidence in the record supporting another aggravating circumstance which the sentencer has erroneously rejected. Such a rule would have the odd and unacceptable result of requiring a reviewing court to enter a death penalty "acquittal" even though that court is of the view that the State has "proved its case." Our decisions in Burks and Bullington do not support such a rule, which would certainly give the prosecution cause to "complain of prejudice."

Id. at 157, 106 S.Ct. at 1756, 90 L.Ed.2d at 133.

The majority opinion in Riddle II and Poland, supra, when read in conjunction with the record before us, provide ample support for the finding of a trial error in the admission of evidence rather than the insufficiency of evidence as a matter of law. Thus, the trial judge in Riddle III properly denied petitioner's motion to quash notice of death penalty finding that this retrial does not violate double jeopardy. Accordingly, we affirm on this issue.

2. COURT'S WITNESS, UNAVAILABILITY, AND ADMISSION OF PRIOR TESTIMONY

a. Court's Witness

Petitioner asks us to assign error where the trial court declared the co-defendant brother of the Petitioner to be a court's witness, then declared him to be unavailable upon his refusal to testify, thereby allowing his previous sworn testimony in the guilt phase of Riddle I to be read to the jury. ¹

The seminal case in South Carolina outlining the test to be used in deciding when it is appropriate for a trial court to declare a witness as a court's witness is State v. Anderson, 304 S.C. 551, 406 S.E.2d 152 (1991). In Anderson, we established as prerequisites for a court's witness the following: (1) the prosecution is unwilling to...