State v. Charping
| Citation | 333 S.C. 124,508 S.E.2d 851 |
| Decision Date | 23 November 1998 |
| Docket Number | No. 24855.,24855. |
| Parties | The STATE, Respondent, v. James Michael CHARPING, Appellant. |
| Court | South Carolina Supreme Court |
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.
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 new trial.1State 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.
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.
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. State v. Patterson, 324 S.C. 5, 482 S.E.2d 760 (1997) ().
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)
(); State v. Cook, 283 S.C. 594, 325 S.E.2d 323 (1985) (); State v. Shackelford, 228 S.C. 9, 88 S.E.2d 778 (1955) ().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)
(). 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 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 "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. Charping then asked her how she wanted to die and how she liked being raped. He commented to Whitlock and Thoman that the victim wouldn't die and asked them for a knife, which neither had. Charping then straddled the victim and placed a log across her neck and started forcing down on it with "all his might," attempting to strangle her. When this didn't kill her, he forced her to her feet and walked her out into the pond. He placed his leg over her back and forced her head under the water, then let her up for a second or two. He then pushed her back under the water for 3-4 minutes until she was dead. He dragged the victim's body back to shore by the hair and covered her with pine straw. The three gathered the victim's clothes and went to the car. Charping told Whitlock and Thoman that if they told anyone about the murder, he'd kill them too.
Thoman's sister, Vanessa Thoman, who was Charping's girlfriend at the time of the murder, also testified at trial. Although she did not witness the murder, she testified she went back to the murder scene with Charping to bury the body because she didn't believe him when he told her he'd killed someone. When they got to the victim's body and Vanessa attempted CPR, Charping told her "If you bring her back, I will kill her again," and that if she, Vanessa, screamed, he would kill her too.
As summarized, it is clear the material facts were testified to by John and Vanessa Thoman such that no adverse inference was warranted by the state's failure to call Whitlock as a witness. State v. Watts, supra.
Accordingly, the court committed no error in disallowing the comment.
Finally, given the testimony of the Thomans, indicating the incredible brutality and torture inflicted upon Joann Pruitt by Charping, we find his inability to comment on the state's failure to call Whitlock could not have affected the result. Accordingly, any conceivable error was harmless beyond a reasonable doubt. Accord Arnold v. State, 309 S.C. 157, 420 S.E.2d 834 (1992)
().
Charping next asserts he should have been permitted to introduce evidence Whitlock received a life sentence, contending it was relevant to the circumstances of the crime, and the aggravating circumstance of criminal sexual conduct. We disagree.
The sentencing jury in a capital case may not be precluded from considering as mitigating evidence any aspect of the defendant's character or record and any circumstances of the crime that may serve as a basis for a sentence less than death. State v. Bell, 305 S.C. 11, 406 S.E.2d 165 (1991), cert. denied 502 U.S. 1038, 112 S.Ct. 888, 116 L.Ed.2d 791 (1992). A codefendant's "demeanor" does not fall within this category of evidence. Id. We find evidence Whitlock was sentenced to life is irrelevant to establish Charping's character, and does not demonstrate the "circumstances of the crime."
Charping cites State v. Brewington, 267 S.C. 97, 103, 226 S.E.2d 249, 251 (1976) for the proposition that ...
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