State v. Ard

• Decision Date: 14 September 1998
• Docket Number: No. 24840.,24840.
• Citation: 505 S.E.2d 328,332 S.C. 370
• Parties: The STATE, Respondent, v. Joseph Lee ARD, Appellant.
• Court: South Carolina Supreme Court

332 S.C. 370

505 S.E.2d 328

The STATE, Respondent, v. Joseph Lee ARD, Appellant.

No. 24840.

Supreme Court of South Carolina.

Heard May 27, 1998.

Decided September 14, 1998.

Rehearing Denied October 7, 1998.

Joseph L. Savitz, III, of South Carolina Office of Appellate Defense, Columbia, for appellant.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, Columbia; and Solicitor Donald V. Myers, Lexington, for respondent.

BURNETT, Justice:

Appellant was convicted of the murder of his girlfriend, Madalyn Coffey, and the murder of their unborn, but viable, son. He was sentenced to death.

BACKGROUND

Ms. Coffey died from a single gunshot wound to her forehead. Her unborn but viable child survived in utero for approximately six to eight minutes before dying from a lack of oxygen.

During the guilt phase of trial, witnesses testified they heard appellant threaten to kill Ms. Coffey prior to the shooting. A witness testified she saw appellant assault Ms. Coffey during her pregnancy and heard appellant state he wished Ms. Coffey and the unborn child were dead.

On the evening of the shooting, a witness testified she heard appellant and Ms. Coffey arguing in a motel bathroom. Appellant had a gun. Shortly thereafter, appellant shot Ms. Coffey. He told a friend, "tell them I did it and they will have to catch me." Appellant then left in his automobile. There were no eyewitnesses to the shooting.

Appellant testified Ms. Coffey's death was an accident. He claimed Ms. Coffey, who was 8½ months pregnant with his child, was upset and threatened to kill herself with the gun she was holding in her hand. During appellant's attempt to take the gun away from his girlfriend, the gun discharged. Appellant testified he thought his girlfriend was dead. He "freaked out" and fled to Atlanta. A friend informed appellant the police were looking for him. Three days later, appellant returned to Columbia and met with an attorney. Appellant testified he planned to surrender to the police but "blacked out" in the attorney's office. When he awoke, he was in the hospital. Ultimately, appellant was arrested for the two murders.

Appellant raises only sentencing issues on appeal.

ISSUES

I. Did the trial court err in holding the terms "person" and "child" in S.C.Code Ann. § 16-3-20(C)(a) (Supp.1997) include a viable fetus?

II. Did the trial court err in admitting into evidence two photographs of the unborn child?

III. Did the trial court err by excluding from evidence a prior consistent statement made by appellant to his lawyer?

IV. Did the trial court err by instructing the jury not to consider parole eligibility in reaching a decision as to the proper sentence?

DISCUSSION

I.

Appellant argues the trial court erred in holding the terms "person" and "child" as used in the statutory aggravating circumstances found in § 16-3-20(C)(a)(9) & (10) include a viable fetus. Appellant contends the murder of a viable fetus should not make a defendant eligible for the death penalty. We disagree.

In State v. Horne, 282 S.C. 444, 319 S.E.2d 703 (1984), the Court determined an unborn but viable fetus is a "person" within the statutory definition of murder.¹ The Court declared a murder conviction may be obtained when the state can prove beyond a reasonable doubt "the fetus involved was viable, i.e., able to live separate and apart from its mother without the aid of artificial support." Id. at 447, S.E.2d at 704.

In 1986, the General Assembly amended § 16-3-20(C)(a) to include subitems 9 and 10 as statutory aggravating circumstances. Act No. 462, 1986 S.C.Acts 2955. Subitem 9 provides: "Two or more persons were murdered by the defendant by one act or pursuant to one scheme or course of conduct." (emphasis added). Subitem 10 provides: "The murder of a child eleven years of age or under." (emphasis added). Neither "person" nor "child" are defined in the statute.

We conclude the legislature intended to include viable fetuses as "persons" within the statutory aggravating circumstance of § 16-3-20(C)(a)(9). At the time the General Assembly added subitem 9 to the list of statutory aggravating circumstances it was aware of our holding in State v. Horne, that a viable fetus was a person for purposes of murder.²Whitner v. State, 328 S.C. 1, 492 S.E.2d 777 (1997),cert. denied, — U.S. ___, 118 S.Ct. 1857, 140 L.Ed.2d 1104 (1998) (there is a basic presumption the legislature has knowledge of previous legislation as well as of judicial decisions construing that legislation when later statutes are enacted concerning related subjects); Berkebile v. Outen, 311 S.C. 50, 426 S.E.2d 760 (1993). We find it would be inconsistent to conclude a viable fetus is a person for purposes of murder, but not a person for purposes of a statutory aggravating circumstance to murder. Similarly, it would be absurd to hold a viable fetus is a "person" but not a "child." Consequently, we hold the legislature intended "child" within § 16-3-20(C)(a)(10) to encompass a viable fetus. The trial judge properly held the murder of a viable fetus could subject a defendant to the death penalty.

II.

During the sentencing phase, the solicitor moved to introduce two photographs of the unborn child into evidence. These photographs show the unborn child dressed in clothes Ms. Coffey had intended for him to wear home from the hospital.³ Appellant objected, arguing the photographs "give the impression that it was a born existing person" and the prejudice from the photographs outweighed any potential probative value. The solicitor responded the photographs were relevant to the two aggravating circumstances and relevant to establish the character of the defendant. The trial judge overruled appellant's objection, noting the photographs served to corroborate the pathologist's testimony on the unborn child's physical development.

On appeal, appellant asserts the photographs were not relevant to any issue at trial because the viability of the unborn child was not in dispute. We agree the viability of the unborn child was not an issue during the sentencing phase of appellant's trial. During the guilt phase instructions, the trial judge specifically charged the jury it must find the unborn child was viable. Having found appellant guilty of the unborn child's murder, the jury had already concluded the unborn child was viable.

Nonetheless, we find the photographs were properly admitted. A trial judge has considerable latitude in ruling on the admissibility of evidence and his ruling will not be disturbed absent a showing of probable prejudice. The determination of the relevancy, materiality, and admissibility of a photograph is left to the sound discretion of the trial judge. State v. Kornahrens, 290 S.C. 281, 350 S.E.2d 180 (1986), cert. denied, 480 U.S. 940, 107 S.Ct. 1592, 94 L.Ed.2d 781 (1987). The trial judge must balance the prejudicial effect of a photograph against its probative value. State v. Williams, 321 S.C. 327, 468 S.E.2d 626, cert. denied, 519 U.S.___, 117 S.Ct. 230, 136 L.Ed.2d 161 (1996).

The purpose of the sentencing phase in a capital trial is to "direct the jury's attention to the specific circumstances of the crime and the characteristics of the offender." State v. Matthews, 296 S.C. 379, 390, 373 S.E.2d 587, 594 (1988), cert. denied, 489 U.S. 1091, 109 S.Ct. 1559, 103 L.Ed.2d 861 (1989). Photographs of the victim's body may be admitted to show the circumstances of the crime and the character of the defendant. State v. Tucker, 324 S.C. 155, 478 S.E.2d 260 (1996), cert. denied ___ U.S.___, 117 S.Ct. 1561, 137 L.Ed.2d 708 (1997). Photographs may be offered as evidence in extenuation, mitigation, or aggravation. State v. Kornahrens, supra; see also State v. Franklin, 318 S.C. 47, 456 S.E.2d 357, cert. denied, 516 U.S. 856, 116 S.Ct. 160, 133 L.Ed.2d 103 (1995).

In addition, evidence about the victim is relevant to the jury's consideration of the sentence which should be imposed. Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). Photographs may be offered as victim impact evidence "to show something of the victim's life." "Victim impact evidence is clearly admissible because it shows the victim's uniqueness as an individual so long as it does not render the trial fundamentally unfair." State v. Tucker, supra, S.C. at 168, 478 S.E.2d at 267.

The two photographs were properly admitted to portray the individuality of the unborn child. Since the child was murdered before he was born, there was no other way to vividly present his uniqueness to the jury. Additionally, the photographs aided the jury in determining the vulnerability of the infant victim and, therefore, were relevant in assessing the circumstances of the crime and the character of the defendant.

Moreover, the photographs of the infant, dressed in clothes his mother intended for him to wear home from the hospital, reveal Ms. Coffey's aspirations about the birth of her child and were relevant to the sentence for her murder. See State v. Rocheville, 310 S.C. 20, 425 S.E.2d 32, cert. denied, 508 U.S. 978, 113 S.Ct. 2978, 125 L.Ed.2d 675 (1993) (parents' testimony about their families' reliance on their murdered sons was proper). Finally, the photographs support the statutory aggravating circumstances that two persons were murdered by appellant during one course of conduct⁴ and one of the victims was a child under the age of eleven. See S.C.Code Ann. § 16-3-20(C)(a)(9) & (10). The trial judge did not abuse his discretion in admitting the two photographs during the sentencing phase of the trial.

III.

During the sentencing phase, Lance Black, an inmate at McCormick Correctional Institute, testified as a hostile witness for the State. Black testified while appellant was incarcerated at McCormick before trial, appellant told him he had "planned" the accident defense. According to Black, appellant told him he had killed Ms....