State v. Copeland

• Decision Date: 10 November 1982
• Docket Number: No. 21808,21808
• Citation: 300 S.E.2d 63,278 S.C. 572
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. H. Wesley COPELAND and Sammy David Roberts, Appellants.

Page 63

300 S.E.2d 63

278 S.C. 572

The STATE, Respondent, v. H. Wesley COPELAND and Sammy David Roberts, Appellants.

No. 21808.

Supreme Court of South Carolina.

Nov. 10, 1982.

John L. Sweeny, David W. Carpenter, Tara D. Shurling, S.C. Com'n of Appellate Defense, David I. Bruck, Columbia, Peter F. Them, II, John G. Frampton, Summerville, for appellants.

Atty. Gen. Daniel R. McLeod, Sr. Asst. Atty. Gen. Brian P. Gibbes, Asst. Atty. Gen. Lindy P. Funkhouser, Columbia, Sol. Charles M. Condon, Charleston, for respondent.

GREGORY, Justice:

Appellants Wesley Copeland and Sammy Roberts were convicted of armed robbery, kidnapping, and murder. Both received sentences of twenty-five years, life, and death for the respective offenses. They appeal, asserting numerous exceptions. We consolidate their appeals with our mandatory review pursuant to S.C.Code Ann. § 16-3-25 (Cum.Supp.1981). We vacate their life sentences for kidnapping, and otherwise affirm.

Sometime around midnight, June 18, 1980, Bill Spain and Butch Krause were closing for the night the service station where they worked. They were robbed of One Thousand Ninety-Six and 03/100 ($1,096.03) Dollars, taken from the station in North Charleston to a secluded spot in Berkeley County, and shot to death. In the early morning hours of June 19, 1980, Louis Cakley, a service station attendant in Moncks Corner was robbed of Four Hundred Twenty-Six and 11/100 ($426.11) Dollars, taken to another secluded spot in Berkeley County, and shot to death.

The bodies of the three men were found several days after the murders. Investigations began immediately and continued for several months. On October 24, 1980, upon information given to the authorities by Danny Ray Coker, an accomplice in these crimes, appellants were arrested for the armed robbery, kidnapping, and murder of the three men. Coker was granted immunity from prosecution in exchange for his testimony.

First, appellants challenge the constitutionality of the South Carolina death penalty statutes. We held these statutes constitutional in State v. Linder, 276 S.C. 304, 278 S.E.2d 335 (1981) and State v. Goolsby, 275 S.C. 110, 268 S.E.2d 31 (1980), cert. denied, 449 U.S. 1037, 101 S.Ct. 616, 66 L.Ed.2d 500 (1981).

Next, appellants contend imposition of the death penalty for the crime of murder while in the commission of kidnapping violates the Eighth Amendment prohibition against arbitrary infliction of the death penalty because the statutory definition of kidnapping is overbroad and ambiguous. We held in State v. Plath, 277 S.C. 126, 284 S.E.2d 221 (1981) and State v. Smith, 275 S.C. 164, 165, 268 S.E.2d 276 (1980), the kidnapping statute is constitutional, not overbroad and ambiguous. This exception is without merit.

Appellant Roberts argues it is unconstitutional to sentence a person to death without finding that he caused or intended another's death. He contends this offends both the Eighth Amendment mandate that any decision to impose the death penalty be based on reason rather than caprice and the Cruel and Unusual Punishment Clause of the Eighth Amendment.

Recently, the U.S. Supreme Court reversed a Florida Supreme Court judgment upholding the death penalty because there was no proof the codefendant killed, attempted to kill, intended or contemplated that life would be taken. Enmund v. Florida, --- U.S. ----, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982).

We think imposition of the death penalty in this case does not offend the standards set out in Enmund, supra. The evidence is clearly sufficient to justify the death penalty. It shows Roberts did, in fact, cause Cakley's death, and, while not the triggerman in the two earlier murders, he was present the entire time the crimes were committed, and he held a gun on at least one of the two victims and forced him to lay on the ground whereupon both men were shot to death. Roberts cannot seriously contend that he did not intend or contemplate that life would be taken.

We do not find the jury's recommendation to be the result of passion, prejudice, or any other arbitrary factor, nor do we find imposition of the death penalty unconstitutional in Roberts' case.

Next, appellants argue the trial judge erred in refusing to change venue to another county.

A change of venue is addressed to the judicial discretion of the trial judge, and his decision will not be disturbed absent a showing of an abuse of that discretion. State v. Valenti, 265 S.C. 380, 218 S.E.2d 726 (1975). Where the trial judge bases his ruling on adequate voir dire examination of the jurors, his conclusion that the objectivity of the jury panel has not been polluted with outside influence will not be disturbed absent extraordinary circumstances. State v. Fowler, 266 S.C. 203, 222 S.E.2d 497 (1976); State v. Crowe, 258 S.C. 258, 188 S.E.2d 379, cert. den., 409 U.S. 1077, 93 S.Ct. 691, 34 L.Ed.2d 666 (1972).

State v. Neeley, 271 S.C. 33, 244 S.E.2d 522, 524 (1977). Appellants must prove actual juror prejudice. State v. Plath, supra; State v. Goolsby, supra; State v. Tyner, 273 S.C. 646, 258 S.E.2d 559 (1979). The record shows maximum precaution by the trial judge to ensure elimination of veniremen who may have been prejudiced by pretrial publicity and the absence of prejudice on the part of the jurors. Appellants' motions for change of venue were properly denied.

Next, appellants argue the trial court erred in denying their motions for continuance. A motion for continuance is addressed to the sound discretion of the trial judge and his ruling thereon will not be disturbed absent a showing of abuse of discretion. State v. Brooks, 271 S.C. 355, 247 S.E.2d 436 (1978). We find no abuse of discretion on the part of the trial judge.

Appellants further argue the trial court erred in disqualifying jurors who oppose the death penalty. This issue was resolved adversely to appellants in State v. Hyman, 276 S.C. 559, 281 S.E.2d 209 (1981); State v. Linder, supra; State v. Goolsby, supra; State v. Tyner, supra.

Next, appellants argue the trial court erred in disqualifying Anthony Gadsden, a member of the venire, because of his strong feelings against the death penalty where the record did not show he was irrevocably committed to vote against imposition of the death penalty. The questioning process of Mr. Gadsden, viewed in its entirety, clearly demonstrates his unwillingness to vote for the death penalty. The questioning process was consistent with the standards established in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Thus, the trial court did not err in disqualifying Mr. Gadsden for cause.

Appellants next argue the trial court erred in qualifying a venireman who indicated he would impose the death penalty in every case of aggravated murder. The questioning process of this venireman clearly demonstrates he would not impose the death penalty in every case of aggravated murder, but would follow the trial court's instructions and bring in a life sentence if he thought it was proper. This exception is meritless.

Appellants argue the solicitor's closing argument at the first phase of the trial was improper. In his closing argument, the solicitor stated, "[Danny Ray Coker] is going to prison for at least--I submit to you for somewhere around twenty years." Allegedly, this statement is not supported by evidence established at trial and attempts to bolster the credibility of the State's key witness by distracting the minds of the jurors from the fact that Coker received complete immunity from prosecution in exchange for his testimony.

Throughout the record is testimony that Coker will be sentenced to one--twenty (1-20) years for various crimes he committed in Sumter. We do not see how the fact that Coker will be sentenced for other crimes he committed could in any way bolster his credibility. In addition, the solicitor discusses the immunity agreement with Coker in the next paragraph of his argument. Thus, rather than distracting the minds of the jurors from the fact that Coker is receiving complete immunity from prosecution for his part in these murders, the solicitor calls this fact to their minds.

The trial judge has wide discretion in dealing with the range and propriety of the solicitor's argument to the jury, and ordinarily his rulings on such matters will not be disturbed. State v. Durden, 264 S.C. 86, 212 S.E.2d 587 (1975). We find no error.

Next, appellant Copeland argues the trial judge improperly commented on the facts during his instruction on the law concerning the presumption of innocence, and thereby injected his opinion thereof. The instruction complained of is as follows:

The presumption of innocence accompanies the defendant throughout the trial of this case and, when you go to the jury room to deliberate, it follows the defendant there with you and it entitles him to a verdict of not guilty at your hands until such time as you are convinced that the State of South Carolina has proven to your satisfaction that the defendant is guilty beyond a reasonable doubt. And if the state has satisfied you of the defendant's guilt beyond a reasonable doubt, then that presumption of innocence disappears; and you would write a verdict that speaks the truth of this controversy. (Emphasis added.)

No reasonable interpretation of this portion of the trial judge's charge can result in the conclusion that he commented on the facts and injected his opinion as to the guilt of appellant. This exception is frivolous and without merit.

Appellants next argue the trial judge erred in defining reasonable doubt as "a doubt that is well founded in reason" and "a substantial doubt." The trial judge's definition of reasonable doubt is well within the guidelines set by this Court. State v. Butler, S.C., 290 S.E.2d 1 (1982); State v. Griffin, S.C., 285 S.E.2d 631 (1981). There is no error.

Appellant Copeland argues the trial judge erred in refusing to instruct the jury that their...