State v. Bennett

• Decision Date: 07 October 1997
• Docket Number: No. 24718,24718
• Citation: 493 S.E.2d 845,328 S.C. 251
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Johnny O'Landis BENNETT, Jr., Appellant. . Heard

Page 845

493 S.E.2d 845

328 S.C. 251

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

No. 24718.

Supreme Court of South Carolina.

Heard Oct. 7, 1997.

Decided Dec. 1, 1997.

Daniel T. Stacey, Chief Attorney, South Carolina Office of Appellate Defense, Columbia, for appellant.

Attorney General Charles M. Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, Senior Assistant Attorney General William Edgar Salter, III, Columbia, and Solicitor Donald V. Myers, Lexington, for respondent.

WALLER, Justice:

Appellant, Johnny O'Landis Bennett (Bennett), was convicted of murder, kidnaping, armed robbery and grand larceny. He was sentenced to death for the murder, and consecutively sentenced to 25 years, and 5 years for armed robbery and larceny. We affirm the convictions but reverse and remand for a new sentencing proceeding.

FACTS

The victim in this case, 24 year old Benton Smith (Victim), disappeared on Tuesday, November 27, 1990. He was last seen leaving his residence in the Happy Town area of Gaston, South Carolina with Bennett. The two left in Victim's 1980 Toyota, en route to cash Victim's $147.00 unemployment check. Victim cashed his check at 11:56 AM; this was the last time he was seen alive. Bennett was seen driving Victim's automobile later that day; he gave a number of items from Victim's car to friends.

Victim's car was subsequently found outside the school where Bennett's mother worked. After giving a number of conflicting statements to police, Bennett confessed to the murder, ¹ and led police to Victim's body near his sister's home.

An autopsy revealed 70-75 stab wounds, primarily to Victim's head, neck and upper back, inflicted with a Phillips head screwdriver. The cause of death was internal bleeding or asphyxiation secondary to the stab wounds.

ISSUES ²

1. Was Juror Number 137 improperly qualified?

2. Was Bennett denied of the opportunity to speak with the Victim's father?

3. Was Bennett's character improperly placed into evidence by the State?

4. Did the court erroneously charge the jury with respect to the elements of armed robbery?

5. Did the state sufficiently prove the corpus delicti of the crime of kidnaping independent of Bennett's statements to police?

6. Was the aggravating circumstance of torture properly submitted to the jury?

7. Was Bennett deprived of the ability to make a religious argument to the sentencing phase jury?

8. Did the court err in refusing to order the personnel records of certain prison guards be disclosed to Bennett?

1. JUROR ROPER

At the end of the voir dire of Juror Number 137, the following occurred:

Mr. Floyd: ... [D]o you understand that if--if the jury were to consider giving the defendant the death penalty, that all twelve jurors would have to sign on that portion of the verdict concerning the death penalty. Do you understand me on that?

A: I understand you.

Q: Now, if you had some reservations or doubt after hearing everything as to whether or not the defendant should get the death penalty and all eleven other jurors put their name on the list, could you stand up to that and not put your name on the list?

A: I believe I would have to go with the majority of the jury.

(Emphasis supplied). The state made no attempt at rehabilitation.

Defense counsel objected to the juror's qualification on the ground Bennett would be denied an independent decision as to his punishment by having a juror who would "go along with the majority." The trial court ruled the juror qualified. Juror Number 137 was thereafter seated on the jury after the defense had exercised all of its peremptory challenges. Bennett contends the juror was erroneously qualified. We agree.

In a capital case, the proper standard in determining the qualification of a prospective juror is whether the juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. State v. Green, 301 S.C. 347, 392 S.E.2d 157, cert. denied, 498 U.S. 881, 111 S.Ct. 229, 112 L.Ed.2d 183 (1990) (citing Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 853, 83 L.Ed.2d 841 (1985)); State v. George, 323 S.C. 496, 476 S.E.2d 903 (1996),cert. denied --- U.S. ----, 117 S.Ct. 1261, 137 L.Ed.2d 340 (1997). The determination of whether a juror is qualified to serve on a death penalty case is within the sole discretion of the trial judge and is not reviewable on appeal unless wholly unsupported by the evidence. State v. Davis, 309 S.C. 326, 422 S.E.2d 133 (1992), cert. denied, 508 U.S. 915, 113 S.Ct. 2355, 124 L.Ed.2d 263 (1993). When reviewing the trial court's qualification or disqualification of prospective jurors, the responses of the challenged jurors must be examined in light of the entire voir dire. State v. Green, supra. The ultimate consideration is that the juror be unbiased, impartial and able to carry out the law as explained to him. Id.

In Wainwright, supra, the United States Supreme Court rejected the notion that a prospective juror in a capital case could only be challenged for cause if it were demonstrated the juror "unequivocally stated she would automatically be unable to give a death sentence," 469 U.S. at 419, 105 S.Ct. at 849. More recently, the Court recognized that a capital defendant may challenge for cause any prospective juror who indicates he or she will automatically vote for death in every case. Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992). "If even one such juror is impaneled and the death sentence is imposed, the State is disentitled to execute sentence." Id. at 729, 112 S.Ct. at 2230. The Morgan court rejected the state's claim that general questions of fairness and impartiality were in all cases sufficient to detect unqualified jurors, stating:

... such jurors could in all truth and candor respond affirmatively, personally confident that such dogmatic views are fair and impartial, while leaving the specific concern unprobed.

504 U.S. at 735, 112 S.Ct. at 2233.

Here, we find the juror's earlier generalized statements that he could be fair and impartial and follow the law insufficient to cure his later, unequivocal response that if the other eleven jurors voted for death, he would "have to go with the majority of the jury." The juror's responses to the general voir dire inquiry left uncovered the critical fact that he would not have been "able to carry out the law as ... explained to him," State v. Green, supra, but would, instead, have followed the majority. Accordingly, the trial court's ruling that the juror qualified to serve is "wholly unsupported by the evidence," and the case must be remanded for resentencing. ³

2. VICTIM'S FATHER

Prior to trial, Victim's father, Paul Smith, advised defense counsel he had been told by the solicitor not to talk to the defense. Bennett claims this resulted in a due process violation. We disagree.

According to co-counsel for Bennett, they went to Smith's house on August 10, 1995, ⁴ and asked to speak to him about the case; Smith replied that the last time this case had come up for trial, sometime in 1993, he had been instructed by several attorneys at the solicitor's office to say he had no comment about the case. At a hearing before the trial court on Aug. 17, 1995, the solicitor advised that nobody in his office had authorization to advise Smith not to talk to the defense. The solicitor then suggested that he could get the Smith family in his office, advise them in defense counsel's presence that they could talk to the defense, and that if anyone from the solicitor's office had ever advised them differently to disregard it. After hearing testimony from defense counsel, the court issued an order on August 17, 1995 which was disseminated to the clerk of court and defense counsel. The order provides that any witness has the absolute right to talk or not talk to a person and that the decision is to be made by the witness. The order provides that it is to be disseminated to any witness.

The trial in this case did not begin until nearly two months later, on October 9, 1995. There is absolutely no indication in the record that defense counsel sought to speak with Mr. Smith during this two month period. Accordingly, it is possible that, had counsel attempted to do so, Smith may have consented to talk to the defense. Having made no such showing, Bennett has failed to demonstrate substantial interference with his right to speak with Smith. See State v. Williams, 326 S.C. 130, 485 S.E.2d 99 (1997) (where government improperly interferes with witnesses right to talk with defense, defendant must demonstrate both substantial interference and prejudice in order to obtain relief).

Moreover, the present record demonstrates no prejudice. Contrary to Bennett's contention, Smith's testimony was not "critical" but was, rather, cumulative to other testimony in the record. State v. McLeod, 303 S.C. 420, 401 S.E.2d 175 (1991) overruled in pt. on other grnds, State v. Evans, 307 S.C. 477, 415 S.E.2d 816 (1992); State v. Galloway, 305 S.C. 258, 407 S.E.2d 662 (Ct.App.1991) (no prejudice to defendant where testimony is cumulative to other evidence in the record). We find no error.

3. EVIDENCE OF BENNETT'S CHARACTER

Bennett next contends the State improperly introduced testimony which reflected upon his character. We disagree.

At trial, Bennett denied killing Victim and claimed the last time he had seen him, Victim was with their mutual friends, Tommy Furtick, Andre Haskins and Isadore Mack. He claimed he had seen Victim alive on Thursday morning. In reply, the state presented the testimony of Isadore Mack who denied having seen Victim on Tuesday, Wednesday or Thursday. During his questioning, Mack testified he, Furtick and Haskins had run into Bennett on Wednesday, Nov. 28, 1990 (the day after Victim disappeared) and they all went to an Orangeburg motel. Mack testified that the next morning, the...