State v. Bell

Decision Date09 June 1987
Docket NumberNo. 22773,22773
Citation360 S.E.2d 706,293 S.C. 391
PartiesThe STATE, Respondent, v. Larry Gene BELL, Appellant. . Heard
CourtSouth Carolina Supreme Court

Jack B. Swerling and Elizabeth O. Levy of Swerling and Harpootlian, South Carolina Office of Appellate Defense, Columbia, for appellant.

Atty. Gen. T. Travis Medlock, Chief Deputy Atty. Gen. Donald J. Zelenka, Asst. Attys. Gen. Harold M. Coombs, Jr., and Norman Mark Rapoport, Columbia, Solicitor Donald V. Myers, Lexington, for respondent.

NESS, Chief Justice:

Appellant was convicted of murder and kidnapping arising out of the death of Sharon Faye "Shari" Smith. He was sentenced to death upon recommendation of a jury. This appeal combines his direct appeal and our mandatory review of his death sentence pursuant to S.C.Code Ann. § 16-3-25 (1985). We affirm the conviction and sentence. 1

On May 31, 1985, 17-year-old Shari Smith was abducted from the driveway of her Lexington County home. On June 3rd, while Shari was still missing, her family received the first of a series of anonymous telephone calls from the abductor. In the first call, the caller told the family they would be receiving a letter from Shari in the next day's mail. In subsequent calls, extending over a period of nearly three weeks, the caller advised the family of the location of Shari's body, described having sex with Shari, and recounted her acceptance that he was going to kill her. He said he had given Shari three options for her death: gunshot, drug overdose, or suffocation. When Shari chose suffocation, he tied her to a bed with electrical cord, and wrapped her head with duct tape so she could not breathe.

Appellant was indicted in Saluda County, where Shari's body was found, for murder and kidnapping. Upon appellant's motion, venue was transferred to Berkeley County because of pretrial publicity.

GUILT PHASE

Appellant first asserts error in the trial judge's determination at several points during the trial that he was mentally competent to continue with the trial. A determination of competency was made prior to jury selection in Saluda County. During the guilt phase and again during the sentencing phase in Berkeley County, defense counsel expressed concerns about appellant's deteriorating mental condition. Each time, the trial judge permitted psychiatric and psychological experts for the State and the defense to examine appellant and to give their opinions of his mental condition at that time. The opinions of the experts are in dispute at each of the competency hearings. Defense counsel testified each time that communications between him and his client had ceased, and that appellant was not assisting in his defense in any manner.

At each of the competency hearings, the trial judge considered the expert testimony and the testimony of defense counsel. He also made independent conclusions based on his own observations of appellant's conduct. He specifically noted that appellant's outbursts and erratic behavior occurred only when the jury was present in the courtroom. Based on all the evidence before him, on each occasion, the trial judge determined appellant was competent to continue trial.

The test for competency to stand or continue trial is whether the defendant has the sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational, as well as a factual, understanding of the proceedings against him. Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960); Carnes v. State, 275 S.C. 353, 271 S.E.2d 121 (1980). A person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel and to assist in preparing his defense may not be subjected to trial. Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); State v. Blair, 275 S.C. 529, 273 S.E.2d 536 (1981).

The thrust of appellant's argument is that none of the State's experts ever interviewed defense counsel to determine whether appellant was assisting in his defense. However, the test of mental competence does not focus on whether a defendant in fact cooperates with his counsel; the question is whether he has sufficient mental capacity to do so if he so chooses.

A defendant's claim that a psychologist's testimony was incomplete or wrong does not preclude a finding that the defendant is competent to stand trial where the psychologist was subject to cross-examination by defense counsel. United States v. Birdsell, 775 F.2d 645 (5th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1979, 90 L.Ed.2d 662 (1986). Here, defense counsel fully cross-examined each of the State's experts regarding their failure to determine whether appellant was communicating with his counsel. In addition, defense counsel testified to his client's failure to cooperate.

The trial judge's findings of competence were based on the expert testimony, defense counsel's testimony, and the trial judge's own observations of appellant's behavior. The very nature of the inquiry as to a defendant's competency to stand trial demands that a court not be bound strictly by the views of experts. United States v. Baraban, 599 F.Supp. 1171 (S.D.Fla.1984). The trial judge's determinations of competency have evidentiary support and are not against the preponderance of the evidence.

Appellant next asserts he was denied his Sixth Amendment right to a public trial by the trial judge's order that the courtroom be sealed during the testimony of all witnesses. At the commencement of trial, the judge addressed himself to the spectators in the courtroom, and advised that ingress and egress to the courtroom would be prohibited while witnesses were testifying. Spectators were permitted to come and go between witnesses, and when the jury was out of the courtroom.

Appellant asserts this absolute prohibition and sealing of the courtroom denied him his constitutional right to a public trial. The Sixth Amendment to the United States Constitution and Article I, Section 14 of the South Carolina Constitution guarantee a criminal defendant a public trial. This protection is for the benefit of the accused, so the public may see that he is dealt with fairly, and the public's presence may keep his triers aware of the importance of their functions. Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). The requirement of openness of criminal proceedings can be overcome only by a finding that closure is necessary to preserve higher values. Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984). Any order restricting the right to a public trial must be closely scrutinized to assure there is no impermissible infringement of the right. State v. Sinclair, 275 S.C. 608, 274 S.E.2d 411 (1981).

Appellant asserts the trial judge's order cannot survive this scrutiny, since he articulated no reasons for his closure of the courtroom. The cases upon which appellant relies involve orders in which certain persons were excluded from the courtroom, or all persons were excluded for particular testimony. Here, the trial judge's order was not directed at any person or persons, nor was it directed at any particular testimony. Anyone who wanted to be in the courtroom was welcome to be there. The trial judge merely placed a limitation on when the spectators could enter or leave the courtroom. Limitation on public access to a criminal trial is not subject to the same scrutiny given denial of access. United States v. Kerley, 753 F.2d 617 (7th Cir.1985). "[A] limitation can withstand constitutional scrutiny so long as it is reasonable and neutral, as with time, place and manner restrictions generally." Id. at 621.

We cannot conclude the trial judge's limitation infringed upon appellant's constitutional rights in any manner. Cf., People v. Venters, 124 A.D.2d 57, 511 N.Y.S.2d 283 (1987) (closure of criminal trial during jury charge violated constitution where purported justification--preventing possible distraction for the jurors--applied equally to other parts to trial which were not closed).

Appellant next argues the evidence fails to support the jury's verdict that appellant was guilty, rather than guilty but mentally ill. Essentially, he argues the trial judge should have directed a verdict in his favor on the issue of guilt, and should have submitted to the jury possible verdicts of guilty but mentally ill, or not guilty. In reviewing the denial of the motion for directed verdict, this Court must view the evidence in a light most favorable to the State. Any evidence, direct or circumstantial, reasonably tending to prove the guilt of the accused creates a jury issue. State v. Dobson, 281 S.C. 36, 314 S.E.2d 310 (1984). Thus, if there was evidence of appellant's guilt, as well as evidence that he was guilty but mentally ill, the trial judge properly submitted both possible verdicts to the jury.

"A defendant is guilty but mentally ill if, at the time of the commission of the act constituting the offense, he had the capacity to distinguish right from wrong and to recognize his act as being wrong ..., but because of mental disease or defect he lacked sufficient capacity to conform his conduct to the requirements of the law." S.C.Code Ann. § 17-24-20(A) (1985). The burden of proof is on the State to show the defendant committed the crime, and the burden is on the defendant to show he was mentally ill at the time the crime was committed. S.C.Code Ann. § 17-24-20(B) (1985).

The State's case-in-chief contained evidence from which a jury could conclude appellant was guilty of the charges against him. Appellant introduced lay and expert evidence during his case that he was mentally ill, as defined by § 17-24-20(A), at the time the crime was committed. In reply, the State presented expert testimony that appellant was not mentally ill at the time the crime...

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