State v. Gaskins, 22217

• Decision Date: 12 September 1984
• Docket Number: No. 22217,22217
• Citation: 326 S.E.2d 132,284 S.C. 105
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Donald Henry GASKINS, Appellant. . Heard

Page 132

326 S.E.2d 132

284 S.C. 105

The STATE, Respondent, v. Donald Henry GASKINS, Appellant.

No. 22217.

Supreme Court of South Carolina.

Heard Sept. 12, 1984.

Decided Jan. 22, 1985.

W. Gaston Fairey and Jack B. Swerling, Columbia, for appellant.

Atty. Gen. T. Travis Medlock, Asst. Attys. Gen. Harold M. Coombs, Jr., and Carolyn M. Adams, and Sol. James C. Anders, Columbia, for respondent.

PER CURIAM:

This is an appeal from the conviction and death sentence of Donald Henry "Pee Wee" Gaskins for the murder of Rudolph Tyner. Many errors of law are alleged to have been made by the trial judge. This appeal arises because of exceptions taken and because of our statutory mandatory review in all death penalty cases. We affirm both the conviction and the death sentence.

In 1979, Rudolph Tyner was tried and convicted of the murders of Mr. and Mrs. William B. Moon. He was sentenced to death by electrocution and was, at the time of his death, housed in a cell on death row at Central Correctional Institution at Columbia. The Appellant Gaskins had plead guilty to eight counts of murder and was serving life sentences on September 12, 1982, when Tyner was murdered. Gaskins was also incarcerated at the Central Correctional Institute in Cell Block 2 (CB-2) and was acting as building or maintenance man for the death row area. This gave him considerable freedom to move about attending to chores in this cell block area. Gerald McCormick was also a prisoner and was a friend of Gaskins.

Tony Cimo was the son of Mr. and Mrs. Moon and was unhappy with the fact that Tyner continued to live. He inaugurated a plan to have Tyner killed on death row. Cimo procured the assistance of Jack Martin who lived in his same general area in Horry County. Gaskins, Cimo and Martin planned their strategy over the telephone for bringing about Tyner's death. Gaskins had limited use of the telephone and recorded on tape cassettes several conversations which took place on February 23, 1982, July 9, 1982, July 14, 1982, and on one other unspecified date. In these conversations he discussed his unsuccessful efforts to poison Tyner and the possibility of killing Tyner with explosives concealed in a radio. In each of these telephone calls, Gaskins wrongfully identified himself to the operator as Gerald McCormick. Both Cimo and Martin referred to him in the conversation not as Gerald McCormick, but as "Pee Wee" which is the nickname of Gaskins. The voice on the cassettes was identified as that of Gaskins.

The evidence revealed that Tony Cimo first contacted Jack Martin in an effort to hire an assassin of Tyner. Initially Martin contacted Gerald McCormick in August 1981. Thereafter, McCormick and Martin contacted Gaskins and developed a plan to poison Tyner. The poison did not accomplish its purpose and they thereafter resorted to smuggling explosives into the prison.

The State's chief witness was prisoner James Brown, a convicted murderer residing in the death row cell block. He was a "work out," i.e. he had limited liberties for chores such as taking meals to prisoners in death row cells. He worked somewhat under Gaskins who designated him chores. He testified that on several occasions Gaskins directed him to deliver items to Tyner such as marijuana cigarettes. On September 12th Gaskins had prepared what appeared to be a radio-type speaker built into a plastic cup. In the bottom of the cup there was a female electrical socket adapted to be plugged in with an extension cord.

On this date, a few minutes before the explosion which caused Tyner's death, Gaskins instructed Brown to deliver the cup to Tyner and to give Tyner a message that "the wire was in the bottom vent in his cell." Brown further testified that Gaskins said Tyner would know what to do with the wire. Gaskins' and Tyner's cells adjoined such that one air circulation vent served both cells. One inmate could yell through the vent from his cell to the other. This is the vent referred to in the message sent by Gaskins to Tyner. It is the theory of the State that Tyner had been led to believe that connecting this cup-speaker to the wire would enable Gaskins to talk to Tyner without yelling through the vent. When Tyner plugged the wire into the bottom of the cup, an explosion occurred which blew off a portion of Tyner's head and severed a hand from which he died soon after being transferred to the institution hospital.

Brown testified that right after the explosion, he went to Gaskins' cell and saw Gaskins pulling a wire from the bottom vent in his own cell. A few moments later he heard Gaskins' toilet flush. Gaskins came out of his cell and went downstairs.

Dr. Edward W. Catalano, a pathologist, testified that Tyner died as a result of the impact of explosives held near his left shoulder and head.

Gaskins exercises his Fifth Amendment privilege of not testifying, but submitted several prisoner witnesses mostly relative to his whereabouts at the time of the explosion.

Counsel for Gaskins submits that the trial judge committed numerous errors of law in conducting the trial and that he is entitled to a new trial. The first of these deal with the jury selection process.

I.

Gaskins first contends that the trial judge erred in excusing prospective juror Robert G. Copeland for cause under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). We disagree. The juror indicated that he did not believe that he could really consider the death penalty and consistently maintained his opposition to the death penalty throughout the voir dire examination. He specifically stated, "So I don't think that the seriousness of the crime would affect my opinion." The trial judge found that Mr. Copeland was irrevocably opposed to the death penalty and accordingly disqualified him from service. Where a trial judge has a reasonable basis to conclude that a prospective juror would be unable to faithfully discharge his responsibilities as a juror under the law, that decision will not be disturbed. State v. Linder, 276 S.C. 304, 278 S.E.2d 335 (1981).

II.

Gaskins next argues that the trial judge erred in refusing to excuse for cause jurors James Q. Cecil and Robert T. Doster, foreman, because they indicated that Gaskins should have received the death penalty for his prior convictions. We disagree.

The voir dire must be examined in its entirety. State v. Spann, 279 S.C. 399, 308 S.E.2d 518 (1983); State v. Gilert, 277 S.C. 53, 283 S.E.2d 179 (1981); cert. denied, 456 U.S. 984, 102 S.Ct. 2258, 72 L.Ed.2d 863 (1982). Throughout the voir dire, Mr. Cecil and Mr. Doster maintained that they could give a fair trial to both the State and to Gaskins. Neither of them expressed any dogmatic opinion about the imposition of the death penalty. Although both jurors stated they believed Gaskins should have received the death penalty for the earlier murder convictions, they each stated that they had no opinion about his guilt or innocence in the present case, and that this case was separate from the earlier ones. When the voir dire of these jurors is examined in its entirety, we conclude that no bias or prejudice was shown against Gaskins in qualifying these two jurors.

III.

Counsel for Gaskins next submits that the trial judge erred in excusing Micheal E. Gaffney and Willie L. Robinson, ¹ because they were not mentally capable of performing their duties as jurors. The trial judge ruled both jurors were disqualified under § 14-7-810(3) of the South Carolina Code of Laws (1976).

Both of these jurors gave inconsistent answers about their views of the death penalty and displayed an incredible lack of understanding of the trial process. Both Robinson and Gaffney revealed an inability to follow directions and a similar inability to grasp the judge's discussion. Gaffney did not appear to understand the principle that a defendant is presumed to be innocent until proven guilty by the State. Likewise, Robinson stated that he would go along with the majority of jurors in both the guilt and the sentencing phases of the trial.

The manner and bearing of the prospective juror are elements which may be properly considered by a trial judge in deciding whether that juror is qualified to serve. State v. Middleton, 207 S.C. 478, 36 S.E.2d 742 (1946). A juror's competence is within the trial judge's discretion and not reviewable unless wholly unsupported by the evidence. State v. Spann, 279 S.C. 399, 308 S.E.2d 518 (1983). We find no error in the trial judge's ruling.

IV.

Gaskins argues that the trial judge erred in excusing James Josey and Bernice S. Folsom because of their bias against him even though Gaskins was willing to waive any objection to their bias.

Both jurors expressed the belief that Gaskins was guilty but indicated they would be opposed to the death penalty despite their opinion of his guilt. The trial judge excused both jurors believing that neither could give Gaskins a fair trial. A trial judge has a duty to assure that every juror is unbiased, fair, and impartial. State v. Holland, 261 S.C. 488, 201 S.E.2d 118 (1973). Additionally, Mr. Josey expressed an unfaltering opposition to the death penalty. In addition to his bias displayed against Gaskins, Josey would not have been capable of giving the State a fair trial. Likewise, Ms. Folsom indicated her opposition to the death penalty as well as her conviction of Gaskins' guilt. A defendant only has a right to a trial by a competent and impartial jury and no right to a trial by any particular jury or juror. State v. McDaniel, 275 S.C. 222, 268 S.E.2d 585 (1980); State v. Rogers, 263 S.C. 373, 210 S.E.2d 604 (1974).

Gaskins argues that he should be allowed to exercise the strategy of seating jurors who were convinced of his guilt but opposed to the death penalty. He asserts that he is entitled to waive any objection he might have about prejudice so long as the prejudice does not extend to the State's position. We disagree. A defendant cannot waive...