State v. Cain

• Citation: 377 S.E.2d 556,297 S.C. 497
• Decision Date: 01 February 1988
• Docket Number: No. 22914,22914
• Court: United States State Supreme Court of South Carolina
• Parties: The STATE, Respondent, v. James Russell CAIN, Appellant. . Heard

Page 556

377 S.E.2d 556

297 S.C. 497

The STATE, Respondent, v. James Russell CAIN, Appellant.

No. 22914.

Supreme Court of South Carolina.

Heard Feb. 1, 1988.

Decided Oct. 24, 1988.

John H. Blume, David I. Bruck, of Bruck & Blume, S.C. Office of Appellate Defense, Columbia, Burnie W. Ballard, Pageland, and George W. Gregory, Chesterfield, for appellant.

Atty. Gen. T. Travis Medlock, Asst. Attys. Gen. Harold M. Coombs, Jr. and Amie L. Clifford, Columbia, and Sol. J. Dupre Miller, Bennettsville, for respondent.

HARWELL, Justice:

Appellant was convicted of two (2) counts of murder and sentenced to death on both counts. This appeal consolidates his direct appeal and this Court's mandatory review of the death sentences pursuant to S.C.Code Ann. § 16-3-25 (1985). We affirm both the convictions and sentences.

I FACTS

Appellant and Kenneth Dale Threatte (Threatte) were indicted for murdering Danny Adams (Adams) and Kerry Kemmerlin (Kemmerlin). Threatte, the state's primary witness at trial, testified as follows:

Appellant's mother, Patsy Cain Evans, told appellant and Threatte that she wanted Adams murdered because Adams had failed to pay her after a drug transaction. On January 25th, 1986, appellant and Threatte met with Adams and Kemmerlin for the ostensible purpose of stealing some marijuana from a Chesterfield county field. The four traveled in Adams's van, with Adams driving, Kemmerlin sitting in the passenger seat, and appellant and Threatte sitting on a sofa in the rear. Appellant was armed with a shotgun; Threatte carried a pistol. As Adams slowed at a rural crossroads, appellant jumped forward, pointed the shotgun toward Adams's chin, and shot off Adams's face. Threatte fired two (2) pistol shots toward the front of the van. Laughing, appellant turned and shot Kemmerlin. When the van stopped rolling, appellant fired two (2) more shotgun blasts into Adams and Kemmerlin. Threatte An expert forensic pathologist testified that both Adams and Kemmerlin died immediately from shotgun blasts to the head. The expert testified further that a pistol bullet entered Kemmerlin's back after Kemmerlin was already dead from the shotgun blast.

                helped appellant pull both bodies out of the van.   At appellant's instructions, Threatte removed between $700 and $800 from Adams's pockets.   Appellant then started the van and drove the front wheels on top of the bodies
                

II JUROR QUALIFICATION

First, appellant asserts the trial judge committed two errors during the juror qualification stage:

A. Juror Catoe

The trial judge excused prospective juror Luella Catoe based upon her views regarding capital punishment. Ms. Catoe flatly stated during voir dire examination that she could not vote for the death penalty if she "had not seen the act", regardless of the evidence. Because her opposition to the death penalty would have prevented or substantially impaired her ability to perform her duties as a juror during the sentencing phase, she was properly disqualified. See Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986); State v. Drayton, 293 S.C. 417, 361 S.E.2d 329 (1987).

B. Juror Rivers

The court qualified prospective juror Sheila Rivers, and appellant excluded her by use of a peremptory strike. Appellant claims Ms. Rivers should have been disqualified by the court because she stated that the mitigating factors of age and background would make no difference in her sentencing decision.

The responses of challenged prospective jurors must be examined in context of the entire voir dire. State v. Gaskins, 284 S.C. 105, 112, 326 S.E.2d 132, 137, cert. denied, 471 U.S. 1120, 105 S.Ct. 2368, 86 L.Ed.2d 266 (1985). Ms. Rivers stated that she could give the state and appellant a fair and impartial trial, would accept and follow the law as charged, could vote for either life imprisonment or the death penalty, and would consider mitigating circumstances as instructed by the trial court. Qualification of this juror was proper in light of her entire voir dire testimony. Additionally, because appellant failed to use all of his peremptory strikes, he is unable to show any prejudice. See State v. Singleton, 284 S.C. 388, 326 S.E.2d 153, cert. denied, 471 U.S. 1111, 105 S.Ct. 2346, 85 L.Ed.2d 863 (1985).

GUILT PHASE

III BRADY VIOLATION

Appellant next contends that the state failed to reveal "certain negotiations" held with Threatte before he testified, thereby violating appellant's right to due process. Some background information is essential in addressing appellant's claim.

Several months before trial, appellant filed a motion for disclosure of impeaching information pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). The trial judge granted the motion as follows:

I grant Paragraph (1) as it relates to any monetary compensation given to or promised to the witness, any plea bargain arrangement of any nature whatsoever, any immunity grant of any nature whatsoever, any plea bargain discussion of any nature, and any criminal proceeding by the state in reference to that particular witness.

Number (2) is granted as it relates to any pending charges against the witness ... The court specifically denies any kind of inquiry into probationary, parole, or prison status because I do not think that is in the prerogative of the state or the prosecuting attorney.

At trial, Threatte testified that "nothing" had been promised him in return for his testimony.

Threatte's plea hearing on the same counts of murder and armed robbery was held five (5) days after appellant's conviction. Pursuant to "certain discussions and certain negotiations" between Threatte's counsel and the solicitor, Threatte pled guilty to one count of murder. The state withdrew its Notice of Intention to seek the death penalty; the remaining indictments for murder and armed robbery were nol prossed, and Threatte was sentenced to life imprisonment.

At the plea hearing, Threatte's counsel referred to discussions he had with the solicitor a week before Threatte testified at appellant's trial. Threatte's counsel stated that the solicitor "assured" him during these discussions that the solicitor "would do everything that he could to see that" Threatte was not imprisoned in the same facility as appellant and another convict.

Appellant claims that the solicitor's failure to disclose this discussion violated the Brady order and necessitates reversal. We disagree.

First, this case is distinguishable from State v. Hinson, 293 S.C. 406, 361 S.E.2d 120 (1987). In Hinson, we granted the appellant leave to move for a new trial where the solicitor had announced "[m]oments after" the jury found the appellant guilty that the state's witness who testified against him would not be prosecuted. The Hinson record "strongly suggest[ed] an undisclosed promise" to grant the witness immunity. Id. at 408, 361 S.E.2d at 121. Such a suggestion is not present here. The record here contains only a passing reference to a pre-trial statement by the solicitor that he would assist, if possible, in keeping Threatte from being incarcerated in the same institution as appellant. There is no evidence giving rise to an inference that an undisclosed immunity grant or plea bargain existed, or that Threatte perjured himself in testifying he had been promised nothing. The five (5) day period between appellant's sentencing and Threatte's plea hearing afforded ample opportunity for the solicitor and Threatte's counsel to negotiate the plea agreement. The solicitor's decisions to accept Threatte's guilty plea to only one count of murder and to withdraw the death penalty notice were logical in light of the physical evidence and testimony presented in appellant's trial. Accordingly, we hold that the trial court's disclosure order was not violated.

Second, even assuming this pre-testimony "assurance" was given to Threatte and not disclosed to the defense, reversal is not constitutionally mandated.

In United States v. Bagley, 473 U.S. 667, 673-674, 105 S.Ct. 3375, 3379, 87 L.Ed.2d 481, 489, (1985), the United States Supreme Court stated that Brady v. Maryland "requires disclosure only of evidence that is both favorable to the accused and 'material either to guilt or punishment'." (emphasis added). Evidence is material, the majority agreed, "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to overcome confidence in the outcome." Id. at 682, 105 S.Ct. at 3384, 87 L.Ed.2d at 494.

Even assuming an agreement existed here, there is no reasonable probability that its disclosure would have changed the result of the guilty phase of appellant's trial. The physical evidence, the laboratory tests, the bodies, the crime scene, the pathologist's testimony--all these factors strongly supported the testimony of Threatte, the only eyewitness. We are confident that disclosure to the defense of a pre-trial assurance by the solicitor to assist Threatte in being incarcerated in an institution separate from appellant would have had no effect on the jury's verdict.

PENALTY PHASE

IV STATUTORY MITIGATING CIRCUMSTANCE

Appellant asserts that the trial judge erred in failing to charge the statutory mitigating circumstance found at S.C.Code Ann. Section 16-3-20(C)(b)(2) (1985) (murder committed while defendant under the influence of mental or emotional disturbance).

                Appellant claims evidence that he was subjected to both physical and psychological abuse by his mother throughout his life necessitated the "emotional disturbance" charge.   We disagree
                

The trial judge "has a duty to review all statutory mitigating circumstances and instruct the jury as to any which may be supported by the evidence and not merely those which are requested by the defendant." State...