State v. Caldwell

• Decision Date: 19 October 1989
• Docket Number: No. 23155,23155
• Citation: 388 S.E.2d 816,300 S.C. 494
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Rickie Tim CALDWELL, Appellant. . Heard

Page 816

388 S.E.2d 816

300 S.C. 494

The STATE, Respondent, v. Rickie Tim CALDWELL, Appellant.

No. 23155.

Supreme Court of South Carolina.

Heard Oct. 19, 1989.

Decided Feb. 5, 1990.

Chief Atty. David I. Bruck and Asst. Appellate Defenders Wanda Hagler Haile and Joseph L. Savitz, III, S.C. Office of Appellate Defense, Columbia, for appellant.

Atty. Gen. T. Travis Medlock, Chief Deputy Atty. Gen. Donald J. Zelenka, Columbia, and Sol. William L. Ferguson, York, for respondent.

HARWELL, Justice:

In the first phase of a bifurcated capital trial, appellant, Rickie Tim Caldwell (Caldwell), was found guilty of armed robbery and of kidnapping and murdering Melvin Kelly, Jr. He was sentenced to death upon recommendation of the trial jury at the end of the second phase. He also received a twenty-five year concurrent sentence for armed robbery. This case consolidates Caldwell's direct appeal and our mandatory review of the death sentence. We affirm the convictions, reverse the death sentence, and remand for a new sentencing proceeding.

FACTS

On January 22, 1988, the victim's body was discovered in a ravine in his cow pasture in York County. His truck was parked nearby. The State established his truck and body were found in an area of his farm where the victim ordinarily did not go, thus giving rise to the inference that he would not have freely and voluntarily visited this area. The victim died from gunshot wounds to the head. The State's theory was that Caldwell drove his motorcycle to York, killed Kelly, and then drove to his sister's home in Charlotte where he attempted to destroy evidence of his crimes.

At the murder scene, the police retrieved a wire that had been cut and tied to a gate post near the farm. A pair of pants with an identification number was found by the barn. Remnants of shells that had been used to kill the victim were also found. Detectives testified that the wire had been cut by a pair of wire cutters found under the seat of Caldwell's motorcycle and that the pants had the same identification numbers as another pair found at Caldwell's home in Gastonia. Testimony established that pellets found at the murder scene were similar to the ones found in the road near Caldwell's home and in a trash can at his sister's home in Charlotte. The pellets were all manufactured by the same company for use in a twelve-gauge shotgun.

Evidence was also presented that a man wearing a black helmet on a motorcycle had been in the area of the murder at the time it was committed. The State introduced a helmet and motorcycle into evidence, which witnesses positively identified as the ones they had seen the day of the murder. Caldwell was also seen entering a nearby bar and grill at this time.

The Crumps (Caldwell's sister, brother-in-law, and nephews) testified that Caldwell arrived by motorcycle at their home in Charlotte on January 22, 1988, at 5:30 p.m. and left a twelve gauge sawed-off shotgun. On January 27, 1988, Caldwell returned to the Crumps' home to retrieve the shotgun as well as some shotgun pellets. At this time, Caldwell confessed to Ronald Crump, Sr., his brother-in-law, that he had killed the victim.

Personal items had been stolen from the victim, including keys, a billfold, and a watch. Caldwell's nephews, Scotty Shane Crump (Scotty) and Ronald Crump, Jr. (Ronald, Jr.) testified that on the evening of January 27, 1988, Caldwell burned items in a garbage can at their home. Scotty testified that Caldwell told him that he had beaten up a man, taken his wallet, and was burning the contents. Ronald, Jr. remembered seeing a watchband near the trashcan. Several weeks later, the watch was Caldwell denied being present in York on January 22, 1988. He also denied knowing the victim or where his farm was. He stated that he did not own a sawed-off shotgun and that he did not murder the victim. Caldwell testified that he had been in the area of the murder the day before it occurred. He said that he stopped by a local bar and grill on the way to his uncle's home in Hickory Grove. His motorcycle kept cutting off so he pushed it through the gate at a farm and planned to leave it by the barn. He got the motorcycle started, however, and continued to his uncle's house. That afternoon, he stopped by the same bar and grill on the way home to Gastonia.

                found in the pool at the Crumps' home.   The victim's wife testified that the watch had belonged to her husband
                

Caldwell testified that on the date of the murder, he was home during the morning except for a trip to the grocery with another sister, Johnnie Mae Lee (Johnnie Mae). They both testified that they returned from the grocery at approximately 10:30 a.m. Caldwell testified that he left his home about 12:30 p.m. to meet a friend at the park and returned home near 1:30 or 2:00 p.m. Caldwell stated that at approximately 4:30 p.m., he (by motorcycle) and Johnnie Mae (by car) left his home in Gastonia to visit their mother who was staying at the Crumps' home in Charlotte. Johnnie Mae and other witnesses testified in support of Caldwell's version of events.

DISCUSSION

I. PRETRIAL ISSUES

A pretrial motion hearing was held at which Solicitor William L. Ferguson, Appointed Counsel Keith A. Gatlin (Gatlin), and Public Defender S. Michael Camp (Camp) were present. Caldwell had been committed to the State Hospital for evaluation and was not present. The subject of the hearing was to determine whether Gatlin should be released as counsel because Leland Greely, a former solicitor, had since gone to work in Gatlin's office. Gatlin wished to avoid the appearance of any impropriety or conflict. The trial judge denied Gatlin's motion to be released. Caldwell contends that he had a right to be present under the Sixth Amendment, the Fourteenth Amendment, Criminal Procedure Rule 16 (1988) and the common-law right of presence.

The constitutional right to presence is rooted to a large extent in the confrontation clause of the Sixth Amendment. Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). The United States Supreme Court has recognized that this right is also protected by the due process clause in some situations where the defendant is not actually confronting witnesses or evidence against him. In Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934), the Court explained that a defendant has a due process right to be present at a proceeding "whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge ... [T]he presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only," Id., at 105-108, 54 S.Ct. at 332-333, 78 L.Ed. at 678-679. These same principles were reiterated recently in Kentucky v. Stincer, 482 U.S. 730, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987).

The court in Snyder also stated that the exclusion of a defendant from a trial proceeding should be considered in light of the whole record. Further, a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure. Kentucky v. Stincer at 745, 107 S.Ct. at 2667, 96 L.Ed.2d at 647.

We recognize that the better practice would have been to have the defendant present at the pre-trial motion hearing. In this case, however, Caldwell's absence during this pretrial motion hearing does not require automatic reversal of Caldwell's conviction. In light of the entire proceeding, this was not a stage in the criminal proceeding that was critical to its outcome such that a fair and just hearing was thwarted by Caldwell's absence. Caldwell has not demonstrated what, if any, benefit his presence would have contributed to the proceeding.

For these same reasons, Caldwell's reliance on the common-law right of presence also fails. See State v. Faries, 125 S.C. 281, 118 S.E. 620 (1923) (defendant's presence at the hearing of the motions for change of venue and for continuance was not essential where his absence did not deprive him of any right, technical or substantial). Similarly, Caldwell's reliance on Criminal Procedure Rule 16 is misplaced because at the time of the pretrial motion hearing, he had not been indicted, his "trial" had not begun, and this did not amount to a "stage of the trial" protected by the federal or state constitutions.

II. VOIR DIRE AND JURY SELECTION ISSUES

A. QUALIFICATION OF JURORS

Caldwell argues that the trial court abused its discretion in qualifying two members of the jury venire as prospective jurors because their responses indicated that they would not be fair and impartial. Caldwell submits that because he was required to utilize two peremptory challenges to exclude these two jurors who should have been removed for cause, he was denied his statutory right to ten peremptory challenges and due process.

A criminal defendant has no right to a trial by any particular jury, but only a right to a trial by a competent and impartial jury. State v. Gaskins, 284 S.C. 105, 326 S.E.2d 132 (1985), cert. denied, 471 U.S. 1120, 105 S.Ct. 2368, 86 L.Ed.2d 266 (1985). It is the duty of the trial judge to see that a jury of unbiased, fair and impartial persons is impaneled. State v. Matthews, 291 S.C. 339, 353 S.E.2d 444 (1986). A determination of whether a juror is qualified to serve on a death penalty case is within the sole discretion of the trial judge and not reversible on appeal unless wholly unsupported by the evidence. State v. Plemmons, 286 S.C. 78, 332 S.E.2d 765 (1985), vacated on other grounds, 476 U.S. 1102, 106 S.Ct. 1943, 90 L.Ed.2d 353 (1986). A voir dire examination must be viewed in its entirety to determine whether the trial judge erred in his qualification of prospective jurors. State v. Drayton, 293 S.C. 417, 361 S.E.2d 329 (1987), cert. denied, 484 U.S. 1079, 108 S.Ct. 1060, 98...