State v. Conyers

• Decision Date: 01 March 1977
• Docket Number: No. 20369,20369
• Citation: 233 S.E.2d 95,268 S.C. 276
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Elmer Hughes Stone CONYERS, Appellant.

Page 95

233 S.E.2d 95

268 S.C. 276

The STATE, Respondent, v. Elmer Hughes Stone CONYERS, Appellant.

No. 20369.

Supreme Court of South Carolina.

March 1, 1977.

Richard G. Dusenbury, William B. Tyson, Jr., and Eugene A. Fallon, Jr., Florence, for appellant.

Atty. Gen. Daniel R. McLeod and Asst. Atty. Gen. Joseph R. Barker, Columbia, and Solicitor T. Kenneth Summerford, Florence, for respondent.

LEWIS, Chief Justice.

Appellant was convicted on October 3, 1975 and sentenced to life imprisonment for the murder by poisoning of her husband, Milton Reese Conyers, who died on April 17, 1973 from arsenic poisoning. She appeals, charging error (1) in the admission of testimony which attempted to show that she had previously administered arsenic poison to four other persons; (2) in the refusal to quash the indictment because of the subsequent amendment of the statute under which she was prosecuted; (3) in permitting testimony concerning alleged privileged communications between an attorney and his client; (4) in refusing to permit the contradiction of a witness for the State by prior inconsistent statements; (5) in that she had been deprived of a lawful preliminary hearing by the failure of the State to present certain witnesses to testify; and (6) in failing to instruct the jury that they might consider whether the deceased came to his death by suicide.

The State was permitted to introduce, over objection, evidence of the poisoning of John Van Bazen, appellant's son-in-law; Louise Opal Conyers, appellant's mother-in-law; Willie Graham Stone, appellant's first husband; and Iris Stevens, a potential business partner of appellant. In each of these other instances, the State sought to show that arsenic was administered to the victim by appellant.

Appellant argues that the evidence of other poisonings was inadmissible because it related to crimes other than the one for which she was being tried; and that the other crimes, if otherwise admissible, were not established by the requisite degree of proof. The State offered the evidence of the other crimes to show motive, knowledge, intent, and a plan or scheme on the part of appellant.

Our decisions adopt the general rule that evidence of the commission by the accused of another crime independent of, and unconnected with, the one on trial is inadmissible. At the same time, these cases recognize exceptions to the general rule and permit such testimony where it directly supports some substantial element of the State's case, as where the purpose is to prove motive, intent, absence of mistake or accident, a common scheme or plan embracing several crimes so related to each other that proof of one tends to establish the other, and the identity of the wrongdoer. State v. Thompson, 230 S.C. 473, 96 S.E.2d 471; State v. Gregory, 191 S.C. 212, 4 S.E.2d 1; State v. Lyle, 125 S.C. 406, 118 S.E. 803.

Because of the potential for prejudice from the admission of testimony of other crimes, it is generally held that proof of the other crime must be clear and convincing See: 1 Wharton's Criminal Evidence, (13th ed.) Section 263; 22A C.J.S. Criminal Law § 690; State v. Lyle, 125 S.C. 406, 118 S.E. 803.

While, after a careful review of the testimony, we are convinced that the trial judge properly admitted evidence of the poisoning of Bazen, Louise Conyers, and Iris Stevens, it was clearly error to admit the testimony attempting to show that appellant poisoned Willie Graham Stone, her first husband. Her first husband died in 1967 and the victim in this case died in 1973, about six (6) years later. When the body of the first husband was exhumed it contained the highest level of arsenic of any of the victims of the "other crimes" considered.

There was very little evidence, however, to establish that appellant poisoned her first husband other than the fact that she was his wife and he had some life insurance. This evidence alone was insufficient to establish the identity of appellant as the actor in poisoning her first husband. The admission of this testimony was clearly prejudicial and requires that a new trial be granted.

Appellant moved to quash the indictment upon the ground that her indictment in September 1975 for a murder committed on April 17, 1973, was barred because of an amendment in 1974 to the statutory penalty provisions for murder.

The indictment charged that appellant murdered her husband by poisoning on April 17, 1973. At the time the offense was allegedly committed, April 1973, the punishment for murder was, pursuant to Code Section 16-52, death, or life imprisonment if the jury recommended mercy.

In July 1974, the General Assembly amended Section 16-52 by making the death penalty for murder mandatory under certain circumstances. The amendatory act contained the following clause: (Section 6, Act No. 1109, 1974 Acts)

"Law not to be retroactive Any person arrested, charged or indicted under Section 16-52 prior to the enactment of this Act shall be tried and sentenced as provided by the law in force at the time of the commission of the crime."

Although Section 16-52 provided for the death penalty prior to its amendment in 1974, the death penalty provisions had been rendered unenforceable by Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346; and the State correctly conceded that the punishment for murder at the time of the commission of the alleged crime by appellant, was...