State v. Byram

• Citation: 485 S.E.2d 360,326 S.C. 107
• Decision Date: 16 October 1996
• Docket Number: No. 24608,24608
• Court: United States State Supreme Court of South Carolina
• Parties: The STATE, Respondent, v. Jason Scott BYRAM, Appellant. . Heard

Page 360

485 S.E.2d 360

326 S.C. 107

The STATE, Respondent, v. Jason Scott BYRAM, Appellant.

No. 24608.

Supreme Court of South Carolina.

Heard Oct. 16, 1996.

Decided April 28, 1997.

Rehearing Denied May 21, 1997.

Assistant Appellate Defender Lesley M. Coggiola of South Carolina Office of Appellate Defense, Columbia, for appellant.

Attorney General Charles Molony Condon, Assistant Deputy Attorney General Donald J. Zelenka, Senior Assistant Attorney General William Edgar Salter, III, and Solicitor W. Barney Giese, Columbia, for respondent.

BURNETT, Justice.

Appellant was convicted of murder, first degree burglary, attempted armed robbery, and grand larceny of a motor vehicle. He was sentenced, respectively, to death, life imprisonment, twenty years' imprisonment,

                and ten years' imprisonment. 1  This appeal consolidates his direct appeal with the mandatory review provisions of S.C.Code Ann. § 16-3-25 (1985).  We affirm
                

ISSUES

I. Did the trial court err by excluding evidence that Jim Doe was the accomplice referred to in appellant's statement?

II. Did the trial judge err by refusing to instruct the jury on parole eligibility?

III. Did the trial judge err by allowing excessive victim impact evidence?

IV. Did the trial judge err by allowing television cameras in the courtroom during the sentencing phase of trial?

DISCUSSION

I.

Appellant argues the trial judge erred by prohibiting him from introducing evidence that "Jim Doe" was the accomplice referred to in his statement. ² He claims this evidence was not introduced to prove his innocence, but rather in mitigation of punishment. Appellant contends the trial judge's exclusion of this evidence violated the Eighth and Fourteenth Amendments to the United States Constitution. ³ We disagree.

During the guilt phase of trial, the evidence revealed that on Sunday, May 23, 1993, at approximately 3:00 a.m. the victim's home was broken into, her handbag and white van were stolen, and she was stabbed to death with her own butcher knife. Appellant was arrested later that afternoon. He gave a statement to the police in which he admitted entering the victim's home and stabbing her to keep her quiet. Appellant stated he had an accomplice named "Jim" whom he described as 5'7" tall, 180 pounds, bald-headed, and in his thirties. He stated he met Jim on May 22, 1993, outside of a particular gay bar. In his statement, appellant suggested Jim was the principal of the crimes and stated Jim repeatedly stabbed the victim.

According to testimony, the police attempted to locate "Jim," but found no one who matched the description and had been at the named gay bar or in the area on the evening of May 22, 1993. The manager of the bar testified the club is private and a person must either be a member or be with a member and fill out documentation to enter. He testified appellant was not a member of the club and did not enter the club on May 22, 1993. The manager further testified he patrols the parking lot of the club for vandals and saw no vans in the parking lot on the evening of May 22 or early on May 23. The manager stated he knew of no club member named "Jim" who was in his thirties, 5'7" tall, 180 pounds, and bald-headed.

The victim's husband and a police officer testified the victim's statements before she died indicated only one person was involved in the assault.

An individual who rented a room in the same boarding house as appellant, and who was mentioned in appellant's statement, testified he saw appellant around 12:00 a.m. on May 23, 1993, in a white van. He stated appellant had blood on his shirt. The witness asked appellant who owned the van, and was told it belonged to a friend and not to tell anyone about it. The witness testified he did not see anyone else in the van.

At the close of the State's case, appellant stated he was prepared to introduce testimony regarding the identity of "Jim." The solicitor objected and the trial judge allowed appellant to proffer evidence regarding the identity of "Jim." Appellant explained the purpose of the proffered evidence was to bolster the statement he had given to the police. Noting the proffered evidence only speculated the "Jim" in appellant's statement was Jim Doe and the evidence was not inconsistent with appellant's guilt, the trial judge As noted above, appellant now argues the proffered evidence was offered in mitigation of punishment, not to prove his innocence. The trial judge did not rule on this issue. Accordingly, the issue is not preserved for appeal. State v. McWee, 322 S.C. 387, 472 S.E.2d 235 (1996) (a constitutional argument is not preserved for appeal where appellant failed to argue the constitutional basis for his request at trial); State v. Tucker, 319 S.C. 425, 462 S.E.2d 263 (1995) (a party cannot argue one ground below and then argue another ground on appeal).

denied appellant's motion to admit evidence that "Jim" was Jim Doe. ⁴

In any event, even if appellant had offered the testimony for the purpose of mitigating his sentence, the proffered evidence would still not have been admissible. While the Eighth Amendment prohibits the sentencer in capital cases from being precluded from considering as a mitigating factor any circumstance of the offense, such as the defendant's minor participation, for the purpose of imposing a sentence less than death, ⁵ the evidence offered must still be properly admissible.

Here, appellant proffered the testimony of four witnesses. One witness ("the bartender") testified his memory of May 22, 1993, was very weak, but he thought he was probably working as a bartender at a gay club on that evening. (The bartender did not work in the same club mentioned in appellant's statement). The bartender stated he thought on that evening a patron came into the club and later spoke with Jim Doe. The bartender described Jim Doe as 5'6" to 5'8" tall, possibly taller, 185 pounds, with medium brown hair, thinning on top. The bartender testified he could not recall whether he had ever seen appellant at the club or whether Jim Doe and appellant ever met at the club.

The patron testified he went with appellant to the club mentioned by the bartender between April and May 23, 1993, where he "set up" appellant with a very tall man (taller than 6'0") who weighed between 190 and 200 pounds and had a receding hairline. The patron testified he was sure the "set up" was not on May 22, 1993, and stated he did not know the man's name. The patron testified he knew one man named "Jim" who was very short, thin, and had a harelip.

The former manager of this same club testified two days before appellant's trial an investigator from the Public Defender's Office asked him if he knew Jim Doe. The manager stated he knew Jim Doe and described him as 5'10" tall, 210 pounds, with a receding hairline. The manager offered no testimony indicating he had ever seen Jim Doe with appellant.

Over the solicitor's objection and contrary to the bartender's testimony, an investigator with the Public Defender's Office testified the bartender had told him he believed "Jim" was Jim Doe and he had seen appellant leave the club on May 22, 1993, with Doe. The investigator stated Doe contacted him. The investigator met with Doe and described him as a white male, approximately 40 years old, about 5'8" tall, 175-180 pounds, with brown hair, balding in the front. The investigator testified Doe denied knowing appellant. Appellant did not call Doe as a witness. Appellant did not testify.

The only proffered evidence which places appellant with Jim Doe at any time was the testimony from the investigator. ⁶

                However, this testimony impeached that of appellant's other witness, the bartender, and was, therefore, inadmissible.  State v. Anderson, 304 S.C. 551, 406 S.E.2d 152 (1991) (a party must vouch for its own witness and may not impeach its witness unless the witness is declared hostile upon a showing of actual surprise and harm). 7  Accordingly, while appellant was entitled to offer in mitigation evidence that he was only a minor participant in the murder, he produced no relevant, admissible evidence which indicated Jim Doe was with him on [326 S.C. 115] the morning of the murder and was the accomplice referred to in his statement. 8
                

II.

Appellant argues the trial judge erred by refusing to instruct the jury on parole eligibility after the solicitor argued his future dangerousness to the jury. We disagree.

At the close of the sentencing phase, appellant requested the trial Judge instruct the jury if it did not recommend a sentence of death but found a statutory aggravating circumstance, appellant would be ineligible for parole for thirty years, and if the jury did not find a statutory aggravating circumstance, appellant would be ineligible for parole for twenty years. The trial judge denied appellant's request and stated he would give the "plain meaning charge" on the terms "life imprisonment" and "death penalty."

The State concedes the prosecution focused upon appellant's future dangerousness during portions of its closing argument.

Since appellant was eligible for parole if a life sentence was imposed, he was not entitled to a charge on parole eligibility.⁹ Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994); State v. Williams, supra; State v. McWee, supra (where the defendant's future dangerousness is at issue and state law prohibits the defendant's release on parole, due process requires the sentencing jury be informed the defendant is ineligible for parole); State v. Tucker, supra.

Appellant further argues the solicitor misled the jury about the conditions of incarceration and the likelihood of his parole and, therefore, the trial judge should have charged the jury on parole eligibility. We disagree.

Initially, we note appellant never stated this argument in support of his requested charge on parole eligibility. Consequently, this issue is not preserved for appeal. State v. McWee, supra...