State v. Bowman, 26071.

• Decision Date: 28 November 2005
• Docket Number: No. 26071.,26071.
• Citation: 623 S.E.2d 378
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Marion BOWMAN, Jr., Appellant.

623 S.E.2d 378

The STATE, Respondent, v. Marion BOWMAN, Jr., Appellant.

No. 26071.

Supreme Court of South Carolina.

Heard October 6, 2005.

Decided November 28, 2005.

Rehearing Denied January 6, 2006.

COPYRIGHT MATERIAL OMITTED

Assistant Appellate Defender Robert M. Dudek, of the South Carolina Office of Appellate Defense, of Columbia, for appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, Assistant Attorney General S. Creighton Waters, all of Columbia; and Solicitor David M. Pascoe, Jr., of Summerville, for respondent.

Justice MOORE:

Appellant was charged with murder and third-degree arson. The jury found appellant guilty as charged and he was sentenced to death for the murder charge and a ten-year imprisonment term for the arson charge. We affirm.

FACTS

On February 17, 2001, Kandee Martin's (victim's) body was found in the trunk of her burned car. She had been shot to death before being placed in the trunk.

The previous day, several people gathered at Hank Koger's house to socialize and drink alcohol. Appellant, who was wearing black pants, arrived at Koger's house around 11:00 a.m. that day. He subsequently left to purchase meat. When appellant returned, he became upset because his gun had been moved. He accused James Tywan Gadson (Gadson)¹ of taking the gun out of the trash barrel located on Koger's property. Hiram Johnson intervened and told appellant he had moved the gun. The gun was a .380 caliber pistol that appellant had purchased a few weeks before in the presence of Gadson and Travis Felder. After retrieving his gun, appellant left Koger's house.

Later that afternoon, appellant was riding in the car of his sister, Yolanda Bowman, with another woman, Katrina West. Appellant, who had a gun in his back pocket, was sitting in the back seat. He instructed Yolanda to park beside the victim's car. At the time, the victim was speaking to a man. Appellant tried to get the victim's attention, but she indicated to him that he should wait a moment. The man, Yolanda, and Katrina testified as to what appellant said next. The man stated that appellant said, "Fuck waiting a minute. I'm about to kill this bitch." Yolanda stated that appellant said, "Fuck it, that bitch. That bitch be dead by dark." Katrina stated that appellant said, "Fuck that ride. That bitch be dead by dark fall." After appellant's comments, Yolanda drove away and appellant informed her the victim owed him money.

Around 7:30 p.m. that evening, Tywan Gadson saw appellant riding with the victim in her car. They stopped and appellant told Gadson to get in. Gadson had been drinking alcohol since 1:00 and was "feeling in good shape." The victim stopped for gas and they drove off without paying. Appellant allegedly instructed the victim where to drive and instructed her to stop on Nursery Road. Gadson and appellant then exited the vehicle and walked down the road while the victim remained in the car. Appellant told Gadson he was going to kill the victim because she had on a wire. The victim then came down the road, grabbed appellant's arm and stated she was scared. At this point, a car drove by and they all jumped into the woods. Then, the victim started walking to the car with appellant following her. Appellant allegedly shot his gun three times. Gadson stated the victim ran toward him and then stopped and faced appellant and told him to please not shoot her anymore because she had a child to take care of. Gadson stated appellant shot two more times. The victim fell to the ground and appellant dragged her body into the woods. Gadson stated he jumped into the car.

Afterwards, appellant and Gadson parked the victim's car and later retrieved Yolanda's car. They then went to a store to purchase beer and went back to Koger's house around 8:00 p.m. Later, Gadson stayed at Koger's house and appellant left. Around 11:30 p.m., appellant and Hiram Johnson approached James Gadson, Gadson's father. Appellant gave him money to buy four pairs of gloves.

Appellant, Gadson, Hiram Johnson, and Darian Williams, then drove to Murray's Club in the victim's car. Appellant handed out the gloves for the occupants to wear and stated he had stolen the car. They reached the club around midnight. Once at the club, appellant tried to sell the victim's car. Appellant, according to Hiram Johnson, said, "I killed Kandee, heh, heh, heh." Appellant had a gun with him while at the club. They left the club an hour or two after arriving there.

Three people, Carolyn Brown, Valorna Smith, and Travis Felder, left the club together. They stopped by a gas station about 3:00 a.m. before proceeding to Valorna's home. Not long after they were there, appellant knocked on the door and asked for Travis. Travis left and came back after a few minutes. He seemed normal upon his return.

Travis testified appellant, who was wearing black jeans at the time, stated he needed Travis' help to park a car which turned out to be the victim's car. Travis followed appellant to Nursery Road. Appellant parked the car, went into the woods and pulled the victim's body out by her feet. Appellant then put her body in the trunk. While putting her body in the trunk, Travis saw a gun tucked into appellant's waist. Appellant allegedly told Travis, "you didn't think I did it, did you?" Travis testified appellant also stated, "I killed Kandee Martin." Appellant lit the car on fire. Travis then took appellant to his home and went back to Valorna's house.²

A resident of Nursery Road who had previously heard gunshots was awakened late in the night by a loud noise. He investigated and discovered a car on fire. The fire was reported at 3:54 a.m. There were .380 Winchester cartridge casings found not far from the scene. The casings, a blood stain, and a shoe were located with the help of a man who had driven by and seen the victim's car stopped on the road around 8:00 p.m. the previous evening.

The next day, police arrested appellant at his wife's house and seized his black pants. His wife testified he had been wearing the pants when he arrived at the house. They found a wristwatch belonging to the victim in appellant's pants.

After the police left, appellant's wife, Dorothy Bowman, found appellant's gun in a chair in her home. She allegedly gave the gun to appellant's father. The next day, appellant's father, Yolanda, and appellant's other sister, Kendra, took the gun and dropped it off a bridge into the Edisto River. It was later retrieved from the Edisto River and determined to be the gun that was used in the murder.

The arson investigator testified there was the presence of a heavy petroleum product on appellant's jeans, but the product was not gasoline. The items found in the car had gasoline on them indicating that was the product used to start the fire.

While the following evidence did not come out during the guilt phase, during the sentencing phase, a video was introduced during Travis Felder's testimony. The video showed Travis purchasing gasoline in a gasoline can at about 3:14 a.m. Appellant was not with him on the video. Travis stated appellant gave him the can for the gas and told him he needed $2-3 worth. When appellant set fire to the victim's car, he retrieved the gas can from Travis' car.

At the conclusion of the guilt phase, the jury found appellant guilty of murder and third-degree arson.

ISSUES

I. Did the trial court err by failing to instruct the jury on the substantial impairment mitigating circumstance?

II. Did the trial court err by refusing to grant a mistrial when the solicitor cross-examined a witness about the possibility of escape and did the trial court abuse its discretion by allowing the solicitor on re-cross examination of the witness to ask him about prison conditions?

III. Was the trial court without subject matter jurisdiction to try appellant for capital murder?

IV. Did the trial court err by refusing to suppress the watch and liquid material found on appellant's pants because the pants were seized during an allegedly illegal arrest?

DISCUSSION

I

During the sentencing phase of appellant's trial, appellant offered mitigating evidence that there was a history of heavy alcohol use on his mother's side of the family. In the fourth grade, he began experimenting with alcohol by stealing sips from his uncle's drinks. By age 14, appellant was selling drugs and drinking on the weekends. Subsequently, he was drinking every day.

At the end of the sentencing phase, appellant requested the trial court charge the mitigating circumstance that his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired.³ The State objected that evidence of this mitigating circumstance was not before the jury because appellant did not want to bring up a diagnosis, if any, regarding a mental health condition that he might have. The trial court ruled the record was void of the requested mitigating factor.

The trial court charged the jury on the mitigating circumstances that appellant did not have a significant history of prior criminal convictions involving the use of violence against another person, that the jury should consider appellant's age or mentality at the time of the crime, and that the jury should consider any other non-statutory mitigating factors.

Appellant argues the trial court erred by failing to charge the jury on the statutory mitigating circumstance regarding substantial impairment based on the evidence of appellant's history of substance abuse, the evidence appellant had been drinking the day of the murder, and the evidence of the "party atmosphere" throughout the day.

The trial court must submit for the jury's consideration any statutory mitigating circumstances supported by the evidence. State v. Vazquez, 364 S.C. 293, 613 S.E.2d 359 (2005). The trial judge must make an initial determination...