State v. Charping, 24855.

• Court: United States State Supreme Court of South Carolina
• Citation: 333 S.C. 124,508 S.E.2d 851
• Docket Number: No. 24855.,24855.
• Parties: The STATE, Respondent, v. James Michael CHARPING, Appellant.
• Decision Date: 23 November 1998

333 S.C. 124
508 S.E.2d 851

The STATE, Respondent,
v.
James Michael CHARPING, Appellant

No. 24855.

Supreme Court of South Carolina.

Heard September 24, 1998.

Decided November 23, 1998.

Rehearing Denied January 6, 1999.

333 S.C. 126

Assistant Appellate Defender Robert M. Dudek, of S.C. Office of Appellate Defense, of Columbia, for appellant

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

WALLER, Justice:

Charping was convicted of murder, conspiracy, kidnapping, and first-degree sexual conduct, and was sentenced to death. This Court reversed his murder conviction and remanded for a

333 S.C. 127

new trial.¹ State v. Charping, 313 S.C. 147, 437 S.E.2d 88 (1993) (Charping I ). Charping was again convicted of murder and sentenced to death. We affirm

FACTS

Charping, along with cohorts Jeffrey Whitlock, and John Thoman, abducted Joann Pruitt, the victim in this case, and drove her to an isolated area near a pond in Lexington County, where she was raped, tortured, and drowned. The facts are set forth more fully in Issue 1.

Upon his retrial, Charping was again convicted of murder. The jury found the aggravating circumstances of kidnapping and torture and recommended a sentence of death.

ISSUES

1. Did the Court err in ruling Charping could not comment on the State's failure to call Jeffrey Whitlock as a witness?

2. Did the Court err in refusing to permit Charping to introduce evidence of Whitlock's convictions and life sentence?

3. Did the Court err in requiring Charping to decide, prior to the solicitor's sentencing phase closing argument, whether he would personally address the jury?

1. COMMENT ON FAILURE TO CALL WITNESS

Charping's cohort, Jeffrey Whitlock pled guilty to murder, kidnapping, criminal sexual conduct, and criminal conspiracy for which he was sentenced to life imprisonment, thirty years, and five years. Whitlock was not called as a witness at trial either by the state or by Charping. Charping contends the trial court abused its discretion in refusing to allow him, at sentencing, to comment on the state's failure to call Whitlock as a witness. We disagree. Under the circumstances of this case, we find no abuse of discretion in the trial court's ruling.

333 S.C. 128

State v. Patterson, 324 S.C. 5, 482 S.E.2d 760 (1997) (trial judge vested with broad discretion in determining propriety of closing argument; rulings on such matters will not be disturbed absent showing improper closing deprived defendant a fair trial)

This Court has previously stated "it is always proper for an attorney in argument to the jury to point out the failure of a party to call a witness." State v. Hammond, 270 S.C. 347, 356, 242 S.E.2d 411, 415 (1978). See also State v. Bamberg, 270 S.C. 77, 240 S.E.2d 639 (1977) (comment on failure to produce witness permissible); State v. Cook, 283 S.C. 594, 325 S.E.2d 323 (1985) (no error in allowing solicitor to comment on defendant's failure to produce his wife); State v. Shackelford, 228 S.C. 9, 88 S.E.2d 778 (1955) (not improper for prosecutor to comment upon defendant's failure to produce witnesses, accessible to the accused, or under his control, whose testimony would substantiate his story).²

However, in Davis v. Sparks, 235 S.C. 326, 333, 111 S.E.2d 545, 549 (1959), we recognized the general rule that "a party is not to be prejudiced by his failure to call a witness who is equally available to the other party." Citing 20 Am.Jur. 193 Evidence, § 189. See also Baker v. Port City Steel Erectors, 261 S.C. 469, 200 S.E.2d 681 (1973) (unfavorable inference arising from failure of a party to call an available material witness may be drawn only where under all circumstances of case the failure to produce such witness creates suspicion of a wilful attempt to withhold competent evidence). Here, Whitlock was clearly accessible to both the state and the defense, and there is no reason Charping could not have called him as a witness.³ Accordingly, under these circumstances, we find the

333 S.C. 129

trial court acted within its discretion in limiting Charping's comment.

Moreover, an adverse inference from the unexplained failure of a party to call an available witness is generally held not warranted where the material facts assumed to be within the knowledge of the absent witness have been testified to by other qualified witnesses. State v. Watts, 249 S.C. 80, 152 S.E.2d 684 (1967). Here, the material facts were testified to by John and Vanessa Thoman.

John Thoman, who was with Charping and Whitlock the night of the murder, gave detail, as follows. He testified that the victim, Joann Pruitt, had gone with them to help them purchase a small quantity of marijuana. After purchasing the marijuana, they stopped at a convenience store to purchase cigarette rolling papers. While at the store, Charping told him he had decided to kill the victim. Thoman testified Charping pulled the victim from the car and started beating her "upside the head" two or three times until she fell to the ground. Charping then told him and Whitlock he intended to rape the victim and brought her into the woods.⁴ Charping brought the victim out of the woods 15-20 minutes later and told her she was going to have sex with all three men. Charping then brought her back into the woods and called for Whitlock and Thoman approximately 10 minutes later, at which time Whitlock went into the woods while he, Thoman, stayed at the car. Thoman went into the woods approximately 30 minutes later where he saw the victim on her hands and knees naked, with Charping standing above her punching her in the head, upper body and back, while Whitlock claimed he was going to have anal sex with her.

Thoman returned to the car briefly then went back to the woods a few minutes later at which point Charping had a stick, similar to a log, 3-4 feet long and 4-5 inches in diameter which he was holding like a baseball bat and hitting the victim

333 S.C. 130

"everywhere he could." Whitlock then picked up a stick and joined in on the beating for 4 or 5 minutes. Charping ordered the victim to stand up and started pushing her in her back with his stick towards the pond. Near the pond, Charping told her to stop and bent over and cleared an area in the pine straw. Charping made the victim get down into the cleared area and began hitting and kicking her again, using all his strength, taking 2-3 steps back and coming up to kick her. Whitlock joined in and hit her once or twice, and then took a stick and rammed it between the victim's legs. Finally, Charping and Whitlock ceased beating the victim when she was curled up like a ball with her hands over her head. Charping forced her onto her stomach and grabbed her around the neck with both hands and tried to break her neck....