State v. Bennett

• Decision Date: 26 June 2006
• Docket Number: No. 26174.,26174.
• Citation: 632 S.E.2d 281
• Parties: The STATE, Respondent, v. Johnny O'Landis BENNETT, Jr., Appellant.
• Court: South Carolina Supreme Court

632 S.E.2d 281

The STATE, Respondent, v. Johnny O'Landis BENNETT, Jr., Appellant.

No. 26174.

Supreme Court of South Carolina.

Heard April 4, 2006.

Decided June 26, 2006.

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Assistant Appellate Defender Robert M. Dudek and Assistant Appellate Defender Aileen P. Clare, both of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, and Senior Assistant Attorney General William Edgar Salter, III, all of Columbia, and Donald V. Myers, of Lexington, for Respondent.

Chief Justice TOAL:

This is an appeal from a capital sentencing proceeding. Appellant contends the trial court committed three errors warranting reversal. First, the trial court refused to allow defense counsel to ask jurors whether they would "stick with their vote or go with the majority" during voir dire. Second, the trial court determined that certain testimony and evidence about a prior offense was not inadmissible "victim impact" evidence. Third, the trial court ruled that remarks made by the Solicitor did not unfairly inject racial issues into the trial. We affirm.

FACTUAL/PROCEDURAL BACKGROUND

Appellant received several criminal convictions in connection with the murder of Benton Smith (Victim). The evidence established that Victim was last seen leaving his residence accompanied by Appellant. After police and family members searched for Victim for several days, Appellant led police to Victim's body which was buried under wood brush behind Appellant's sister's home. Victim had been stabbed approximately seventy (70) times with a Phillips head screwdriver and died as a result of internal bleeding. Appellant gave conflicting statements to police; first denying any knowledge of Victim's murder, then confessing to the murder, and finally recanting and maintaining his innocence. After a sentencing proceeding, the jury sentenced Appellant to death.

This Court affirmed Appellant's convictions but reversed his death sentence. State v. Bennett, 328 S.C. 251, 493 S.E.2d 845 (1997). During Appellant's second sentencing proceeding, he objected to (1) the trial court's decision to exclude a question from voir dire, (2) the introduction of testimony and evidence regarding a prior conviction for assault and battery of a high and aggravated nature (ABHAN), and (3) comments made by the Solicitor during cross-examination of a witness and during closing arguments.

Specifically, Appellant alleged the trial court improperly excluded the "will you go with the majority or hold to your decision" question from voir dire. The trial court found that the question tended to suggest the possibility of a hung jury and "the fact that [the juror] can hold things up." The court held that the defense could ask a juror "if they understand that by their oath that [sic] they should make their own determinations of the facts . . . but certainly we cannot get into pitting them against the other jurors." Id.

Additionally, Appellant alleged that the trial court allowed the mothers of the two ABHAN victims to present impermissible "victim impact" testimony, that the trial court improperly admitted highly prejudicial hospital photographs of the two ABHAN victims, and that the trial court improperly allowed one of the ABHAN victims to testify about a dream he had in which "black Indians" were chasing him. The trial court determined that the testimony and photographs were relevant to Appellant's character and admissible as details of prior criminal convictions. Also, the trial court noted that the "black Indians" comment was mentioned only once, was not elicited by the State, and did not prejudice Appellant.

Furthermore, Appellant alleged that the Solicitor improperly injected racial issues into the sentencing proceeding by making inappropriate comments while questioning a witness. While cross-examining a witness about a former prison guard who had engaged in a sexual relationship with Appellant, the witness asked the Solicitor, "You mean the big girl?" The Solicitor responded, "You know, the blond lady?" The trial court found that this reference did not improperly inject race into the trial.

Finally, Appellant alleged that the Solicitor attempted to inject racial issues into the sentencing proceeding by making inappropriate remarks during the State's closing arguments. In his closing arguments, the Solicitor compared Appellant's size and violent acts to those of "King Kong" and a "Caveman." Appellant first objected to these comments in his motion for a new trial, and the trial court determined that these comments properly described the circumstances surrounding the murder, Appellant's character and violent background, his disregard for prison rules, his size, strength, and destructiveness, and were invited responses to Appellant's mitigating evidence and argument.

This appeal followed, and Appellant raises the following issues for review:

I. Did the trial court err in excluding the "will you go with the majority" question from voir dire?

II. Did the trial court err in admitting certain evidence regarding Appellant's prior ABHAN conviction?

III. Did the Solicitor's comments during cross-examination of a witness or during closing arguments improperly inject racial issues into the trial?

LAW/ANALYSIS

I. Voir Dire

Appellant argues that the trial court improperly excluded the "will you go with the majority" question from voir dire. We disagree.

In general, both the scope of voir dire and the manner in which it is conducted are within the sound discretion of the trial judge. State v. Hill, 361 S.C. 297, 308, 604 S.E.2d 696, 702 (2004). "To constitute reversible error, a limitation on questioning must render the trial `fundamentally unfair.'" Id.

Our opinion in State v. Hill controls on this issue. In Hill, the trial court refused to allow the defense to ask jurors whether they would "give up their vote in order to go with the majority." Id. at 308, 604 S.E.2d at 702. Hill argued that this was improper because our opinion reversing Appellant's death sentence condoned the use of the "go with the majority" question. Id. Disagreeing, this court clarified that we reversed Appellant's death sentence because the trial court improperly qualified and seated a juror who answered that he would indeed "go with the majority" over his own determination. Id. at 309, 604 S.E.2d at 702. Ultimately, this Court held that a review of entire voir dire indicated that Hill's jurors were unbiased, impartial, and capable of following the instructions on the law. Id. at 310, 604 S.E.2d at 702. Relying on the highly deferential standard of review in voir dire cases, we stated:

[W]hat is constitutionally mandated is the selection of a fair and impartial jury. No particular formula of questions is mandated to achieve this goal. In our justice system, the trial judge has the discretion and the duty to monitor the voir dire so as to ensure that the jury selected measures up to the constitutional standard. The judge's ruling in this case, disallowing defense counsel to question jurors about their propensity to go with the majority, did not render the trial "fundamentally unfair."

Id. at 310, 604 S.E.2d at 702-03.

Our review of the entire voir dire in this case reveals that Appellant had an impartial jury. As in Hill, the trial court extensively questioned each juror regarding the ability to be fair and impartial, and there is no evidence suggesting that any juror failed in these capacities. Because the evidence in the record supports only the conclusion that Appellant received a fair and impartial jury, and because there is no evidence suggesting that the trial court's voir dire limitation rendered Appellant's trial "fundamentally unfair," we affirm the trial court's decision.¹

II. Evidence of Prior Convictions

Appellant argues that the trial court erred in admitting the ABHAN victims' mothers' testimonies, the hospital photographs, and the testimony about the victim's "black Indians" dream because this evidence was impermissible "victim impact" evidence of prior crimes. We disagree.

In Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), the United States Supreme Court held that the Eighth Amendment did not prohibit a jury from considering "victim impact" evidence at the sentencing phase of a capital trial. In Payne, a brutal double murder, the defendant challenged the admission of testimony that the child of one of the victims "missed his mother" and the State's remarks in closing arguments suggesting that the continuing effects of the crimes on the victims' family favored imposing the death penalty. Id. at 816. Drawing on historical arguments and reasons of fairness, the Supreme Court held that a state was not constitutionally prohibited from allowing a capital sentencing jury to consider "the specific harm caused by the defendant," including the impact of the murder on the victim's family and "a quick glimpse of the life which the defendant chose to extinguish." Id. at 822-26, 111 S.Ct. 2597.

Contrary to Appellant's assertions, none of the testimony at issue in this case was "victim impact" evidence. First, the mothers' testimonies were limited to the circumstances surrounding the ABHAN and the extent of the injuries their sons suffered. This evidence was clearly not evidence of the character of the victims or the impact on their families, but rather, evidence of the physical injuries caused by Appellant. That the descriptions of the victims' injuries came from their mothers does not automatically convert factually descriptive testimony into impact testimony regarding the victims' character or the effect on the victims' families or community.

Similarly, there can be no question that the hospital photographs were introduced to describe the extent of the injuries the ABHAN victims suffered. These photographs are easily...