State v. Council

Decision Date05 April 1999
Docket NumberNo. 24932.,24932.
Citation515 S.E.2d 508,335 S.C. 1
PartiesThe STATE, Respondent, v. Donney S. COUNCIL, Appellant.
CourtSouth Carolina Supreme Court

Assistant Appellate Defender Robert M. Dudek, of the South Carolina 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, Assistant Attorney General Lauri S. Soles, and Assistant Attorney General Robert E. Bogan, all of Columbia; and Solicitor Barbara R. Morgan, of Aiken, for respondent.

BURNETT, Justice:

Appellant was indicted for murder, kidnapping, administering poison, grand larceny of a vehicle, burglary, larceny, and two counts of criminal sexual conduct in the first degree. The jury found appellant guilty on all the charges. Appellant was sentenced to death for the murder;1 thirty years concurrent for kidnapping;2 a consecutive life sentence for the burglary; twenty years consecutive for administering a poison; thirty years consecutive for each charge of criminal sexual conduct; five years concurrent for grand larceny of a vehicle; and thirty days concurrent for petty larceny. We affirm.


Late Thursday afternoon, October 8, 1992, Evelyn Helminiak visited with her neighbor Elizabeth Gatti, a seventy-two year old widow. Mrs. Gatti was preparing dinner when Mrs. Helminiak arrived. The next day, another neighbor, Charles Fields, became concerned about Mrs. Gatti because her morning newspaper was still in the driveway and her car was gone. Mr. Fields testified Mrs. Gatti was a creature of habit who retrieved her newspaper every morning at 4:30 a.m., read the paper, and threw it over to Mr. Fields' driveway by 8:00 a.m. so he could read it. When the newspaper was still in the driveway and the car was still gone on Friday evening, Mr. Fields called emergency services.

When the authorities entered Mrs. Gatti's house, perishable food items were found on the kitchen counter. Several of the rooms in Mrs. Gatti's house had been ransacked. Mrs. Gatti's body was discovered underneath a bedspread in her basement. She had been hogtied with a white cord and layers of duct tape were wrapped around her entire head. Her clothes had been ripped, and the crotch of her underwear had been cut out. Surrounding her body were various bottles of cleaning fluids. Mrs. Gatti had been sexually assaulted.

Dr. Nichols, the pathologist who performed the autopsy on Mrs. Gatti, testified her body was covered with numerous lacerations and bruises, and someone had attempted to manually strangle her. Further, a gaping laceration extending from her vagina into the rectal area indicated penetration by a very stiff foreign object. Dr. Nichols testified the cause of death was asphyxiation due to mechanical suffocation as a result of the duct tape, and contributory to the cause of death was the ingestion and aspiration of cleaning fluids and the binding ligatures on the wrists. Dr. Nichols testified the aspiration indicated Mrs. Gatti was forced to drink the cleaning fluids. According to Dr. Nichols, Mrs. Gatti lived 2-4 hours after the vaginal/rectal injury occurred.

On October 11, 1992, the authorities found Mrs. Gatti's car near an apartment complex where appellant sometimes stayed. Appellant was arrested for the crimes on October 12, 1992. In two separate statements, appellant admitted to being in Mrs. Gatti's house on the night she was killed; however, he asserted he had gone to her house with a man identified as "Frankie J."3 Appellant denied any wrongdoing; instead, he blamed the crimes on his companion. Appellant admitted, however, to SLED agent Wayne Mitchell that he had sexual intercourse with Mrs. Gatti. Further, appellant told SLED agent Danny Choate and Captain Wayne Huff, an investigator for the Aiken County Sheriff's Department, that he had sex with Mrs. Gatti.

A shoeprint taken from a chair in Mrs. Gatti's house was identified as matching shoes taken from appellant. Residue found on the chair positively matched debris found on appellant's shoes. Fingerprints taken from Mrs. Gatti's car and from items in her car were identified as belonging to appellant. Hair samples taken from appellant were consistent with hairs found in Mrs. Gatti's home. Semen taken from a tissue in Mrs. Gatti's house was consistent with appellant's semen. Several items identified as belonging to Mrs. Gatti were found in appellant's girlfriend's apartment.

Appellant's girlfriend's cousin, Earthlene Danley, testified she was in Mrs. Gatti's car with appellant the day after Mrs. Gatti's murder and had been with appellant when he went to a bank drive-thru in North Augusta and cashed a check he took from the glove compartment of Mrs. Gatti's car. Further, the testimony of bank employees and handwriting experts established appellant had forged three of Mrs. Gatti's checks and cashed them at various banks.

Mrs. Gatti's newspaper carrier positively identified appellant as the man she saw leaving Mrs. Gatti's house in the early morning hours of Friday, October 9, 1992.

I. Did the trial judge err in qualifying Juror T?
II. Did the trial judge err in refusing to grant appellant's motion for a mistrial where a State's witness referred to appellant's prior criminal record during direct examination?
III. Did the trial judge err in admitting appellant's inculpatory statements by finding appellant had waived his Sixth Amendment right to counsel prior to making these statements?
IV. Did the trial judge err in admitting mitochondrial DNA evidence?
V. Did the trial judge err in refusing to allow appellant to introduce polygraph evidence during the penalty phase of the trial?

Appellant claims the judge erred in finding Juror T qualified because during her voir dire she was unable to definitely state she could presume appellant was innocent until the State proved his guilt beyond a reasonable doubt. We disagree.

Initially, when the trial judge questioned her during voir dire, Juror T expressed uncertainty as to whether she could presume appellant was innocent. However, after the trial judge explained the law, Juror T stated several times she could presume appellant innocent until the State proved his guilt beyond a reasonable doubt. Although Juror T continued to equivocate on some questions as to whether she could presume appellant innocent, each time the judge clearly explained the law to her, she affirmed she could presume appellant innocent. During examination by the solicitor, Juror T indicated she would follow the instructions and determine the facts from the evidence introduced during the trial. Further, on cross-examination by defense counsel, Juror T again stated she could presume appellant innocent. However, Juror T responded with uncertainty to defense counsel's final question.4

Defense counsel moved to disqualify Juror T for cause arguing the juror was unable to disregard her preconceived beliefs and presume appellant was innocent. Over appellant's objection, the judge qualified Juror T. Juror T was placed on the jury after appellant had exhausted his peremptory challenges.

The constitutional standard of fairness requires that a defendant have a panel of impartial, indifferent jurors. U.S. Const. Amend. 14; State v. Bell, 302 S.C. 18, 393 S.E.2d 364, cert. denied, 498 U.S. 881, 111 S.Ct. 227, 112 L.Ed.2d 182 (1990).

In reviewing an error as to the qualification of a juror, this Court engages in a three step analysis. First, appellant must show that he exhausted all of his peremptory challenges. Second, if all peremptory challenges were used, this Court must determine if the juror was erroneously qualified. Third, appellant must demonstrate this error deprived him of a fair trial. State v. Green, 301 S.C. 347, 392 S.E.2d 157, cert. denied, 498 U.S. 881, 111 S.Ct. 229, 112 L.Ed.2d 183 (1990).

In a capital case, the proper standard in determining the qualification of a prospective juror is whether the juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. State v. Green, supra (citing Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 853, 83 L.Ed.2d 841 (1985)); State v. George, 323 S.C. 496, 476 S.E.2d 903 (1996), cert. denied, 520 U.S. 1123, 117 S.Ct. 1261, 137 L.Ed.2d 340 (1997). The determination of whether a juror is qualified to serve on a death penalty case is within the sole discretion of the trial judge and is not reviewable on appeal unless wholly unsupported by the evidence. State v. Davis, 309 S.C. 326, 422 S.E.2d 133 (1992), cert. denied, 508 U.S. 915, 113 S.Ct. 2355, 124 L.Ed.2d 263 (1993). When reviewing the trial court's qualification or disqualification of prospective jurors, the responses of the challenged jurors must be examined in light of the entire voir dire. State v. Green, supra. The ultimate consideration is that the juror be unbiased, impartial and able to carry out the law as explained to him. Id.

After reviewing the entire voir dire of Juror T, we conclude the trial judge did not err in qualifying this juror. After the trial judge explained the law to Juror T, she stated repeatedly she could presume appellant was innocent until and unless the State proved him guilty. Further, Juror T stated she could follow the judge's instructions. Although Juror T expressed uncertainty in her response to the final question posed by defense counsel, as pointed out by the trial judge, this question was ambiguous and prospective jurors never responded correctly.5 Juror T's equivocation when asked this ambiguous question does not negate her previous definite answers. See State v. Holmes, 320 S.C. 259, 464 S.E.2d 334 (1995),

cert. denied, 517 U.S. 1248, 116 S.Ct. 2507, 135 L.Ed.2d 197 (1996) (after reviewing Juror Hutto's entire voir dire, this Court concluded there was no abuse of...

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