State v. Davis, 23727

Citation422 S.E.2d 133,309 S.C. 326
Decision Date18 May 1992
Docket NumberNo. 23727,23727
PartiesThe STATE, Respondent, v. Thomas Lee DAVIS, Appellant. . Heard
CourtUnited States State Supreme Court of South Carolina

John H. Blume and Frank W. Draper both of South Carolina Death Penalty Resource Center and South Carolina Office of Appellate Defense, Columbia, for appellant.

Attorney Gen. T. Travis Medlock and Chief Deputy Atty. Gen. Donald J. Zelenka, Columbia; and Sol. William Townes Jones, IV, Greenwood, for respondent.

HARWELL, Chief Justice:

This is an appeal of a capital trial wherein appellant Thomas Lee Davis (Davis) was found guilty of murder and sentenced to death. We affirm.


Around eight o'clock the evening before Thanksgiving 1988, Lisa Marie Schmidt was preparing to leave the campus of Lander College to spend the holidays with friends. She was accosted on the front steps of her dormitory, struck about the eyes and mouth, and forced along the front of the dormitory to a point behind a growth of bushes about 40 feet away. Her forehead was battered against the rough surface of the dormitory, and she was strangled and raped. Her partially nude body was dragged approximately 175 feet to a goldfish pond and placed face down into the water. She was found there Thanksgiving morning.

Minutes before the crime was committed, another student confronted a stranger in the hallway of the dormitory where she and the victim resided. She spoke to the man for several minutes. The next day, after the victim was discovered, the student gave investigators a statement of the incident and helped prepare a composite drawing describing the intruder.

Davis, who is mildly retarded, 1 confessed to the crime in February 1989. Shortly after the confession, the student who had confronted the intruder was requested to view a photographic lineup. The student identified Davis from the lineup. Davis subsequently was indicted in March 1990 for kidnapping, criminal sexual conduct, and murder. 2 At this time, the State entered notice that it would seek the death penalty.

Davis moved for a change in venue because of the extensive publicity surrounding his arrest and indictment. Rather than moving the location of the trial, however, the trial judge ordered that a jury be selected from another county and brought to Greenwood. In May 1990, jurors were picked in Florence County and transported to Greenwood County, where, at a bifurcated trial, they found Davis guilty of murder, kidnapping, and criminal sexual conduct in the first degree. The jury subsequently sentenced Davis to death, finding the aggravating circumstances of kidnapping, criminal sexual conduct, and physical torture.

A. Selection of Jury

Davis first contends that the trial judge possessed no authority to order the selection of jurors in Florence County because the statute granting this authority, S.C.Code Ann. § 17-21-85 (Supp.1991), did not become effective until after the crime was committed. We disagree.

Section 17-21-85 provides:

A circuit judge may, in a criminal case in which he determines that an unbiased jury cannot be selected in the county in which the defendant was indicted, order Davis argues that section 17-21-85 applies only to crimes committed after the effective date of the statute, which was January 31, 1990. According to Davis, the trial judge's decision to employ section 17-21-85 resulted in the retroactive application of the statute.

                that jury selection go forward in some other county and the jury, when selected, be transported to the county in which the indictment was returned for the duration of the trial.   In making a determination whether to proceed as allowed by this section or to order a change of venue for a trial, the court shall consider all the logistical and expense elements and, consistent with the demands of justice, choose the method that results in the least expense and greatest convenience for all parties involved in the case.   All expenses of jury selection in another county must be paid by the county in which the trial occurs

Generally, statutes are presumed to be prospective rather than retroactive, unless they are remedial or procedural in nature. Jenkins v. Meares, 302 S.C. 142, 394 S.E.2d 317 (1990). We find that section 17-21-85 is a procedural tool intended to give a trial judge an alternative to a change of venue in appropriate circumstances. When a statute is procedural, it ordinarily will be accorded a retroactive application in the sense that it will be applied to pending actions and proceedings. Id. We conclude that the trial judge did not err in utilizing section 17-21-85.

B. Voir Dire Issues

Davis next asserts that the trial judge improperly precluded him from examining prospective jurors regarding their bias in favor of testimony presented by police officers over lay persons. We disagree.

Davis's trial counsel asked a potential juror whether he would "give more weight to the testimony of a uniform officer than [he] would give to a lay person." The trial judge disallowed further queries of this nature. Davis contends that the trial judge's ruling deprived him of the opportunity to select a fair and impartial jury.

We previously addressed this question in State v. Adams, 279 S.C. 228, 306 S.E.2d 208, cert. denied, 464 U.S. 1023, 104 S.Ct. 558, 78 L.Ed.2d 730 (1983), overruled on other grounds, State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991). In Adams, we held that a juror should not, prior to trial, be required to identify which witnesses he will believe or what type of witnesses he will believe; rather, he must determine the credibility of witnesses after he has heard all of the testimony. Therefore, inquiry as to the weight a juror would give one kind of witness over another invades the province of the jury to determine individual credibility in the context of the entire case. Id. Based on our holding in Adams, we find that the trial judge did not err in preventing Davis from questioning jurors in an effort to ascertain whether they might give more weight to testimony presented by police officers than lay persons.

Davis next urges that the trial judge improperly disqualified a prospective juror who stated that she could not impose the death penalty upon a mentally retarded person. We disagree.

One of the potential jurors stated unequivocally during voir dire that she would never impose the death penalty on a mentally retarded defendant, no matter how egregious the crime and how slight the mental retardation. The trial judge disqualified the potential juror on the grounds that she would be unable to fulfill her duty to consider the statutory aggravating and mitigating circumstances which may be supported by the evidence as mandated by S.C.Code Ann. § 16-3-20(C) (Supp.1991). According to Davis, he was denied an impartial jury because the trial judge disqualified a potential juror who would have given utmost consideration to the mitigating circumstance of mental retardation.

A juror must be unbiased, impartial, and able to carry out the law as it is explained to him. State v. Green, 301 S.C. 347, 392 S.E.2d 157, cert. denied, --- U.S.

                ----, 111 S.Ct. 229, 112 L.Ed.2d 183 (1990).   A potential juror must be excused if his opinions would prevent or substantially impair the performance of his duties as a juror in accordance with his [309 S.C. 336] oath and instructions.  Id.  Here, the record overwhelmingly supports the conclusion that the potential juror was so irrevocably committed to her position regarding mentally retarded persons that she would have refused to consider any statutory aggravating circumstances supported by the evidence

The determination whether a juror is qualified to serve on a death penalty case is within the sound discretion of the trial judge and is not reversible on appeal unless wholly unsupported by the record. Id. We affirm the trial judge's disqualification of this potential juror.

C. Competency to Waive Rights and to Stand Trial

Davis contends that his mental retardation precluded him from waiving his Miranda 3 rights.

Prior to Davis's first making a statement, Michael Butler of the Greenwood County Police Department read Davis the standard Miranda warnings from a card provided for that purpose. Butler read slowly, paused after each sentence, looked at Davis, and asked him to verbally indicate whether he understood what had been read to him. On each occasion, Davis responded, "Yeah." Butler asked Davis whether he desired to have a lawyer present. Davis stated, "I don't need a lawyer." Butler explained to Davis that he could end the interrogation at any time. Davis indicated that he understood this, and proceeded to give his confession. The confession was recorded on cassette tape.

The next morning Butler discovered that the dictaphone which was to have been utilized by a secretary to transcribe the tape was broken. Butler decided to have a secretary take down another statement in shorthand. After Davis agreed to give another statement, he was read his Miranda rights again by Eddie Clark of the South Carolina Law Enforcement Division (SLED). Both Butler and Clark testified that Davis was questioned as to whether he understood each Miranda warning. Davis made the same affirmative responses that he had made the previous night, and indicated that he did not desire to have an attorney present.

Davis was tested and observed at the Hall Institute in Columbia by Dr. Larry Montgomery, a forensic psychiatrist. Dr. Montgomery interviewed Davis in detail regarding his understanding of each of the rights accorded him by Miranda:

The examination began on my asking Mr. Davis, or explaining to him that we were going to examine him to determine his competency and I asked him--first, I read his right, you have the right to remain silent. Then, I asked Mr. Davis to tell me what that meant. The response to me was I don't have to answer any...

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