State v. Gay, 25243.

• Decision Date: 24 January 2001
• Docket Number: No. 25243.,25243.
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Donald W. GAY, Appellant.

343 S.C. 543

541 S.E.2d 541

The STATE, Respondent, v. Donald W. GAY, Appellant.

No. 25243.

Supreme Court of South Carolina.

Heard January 9, 2001.

Decided January 24, 2001.

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, Senior Assistant Attorney General William Edgar Salter, III, and Solicitor W. Barney Giese, all of Columbia, for respondent.

WALLER, Justice:

A jury convicted appellant of murder, and the trial court sentenced him to life imprisonment. He directly appeals the conviction and sentence. We affirm.

FACTS

On December 31, 1995, the partially-clothed body of fiftyyear-old Patricia Huffstetler ("victim") was discovered in the tunnel below Interstate 26, near Elmwood Avenue in Columbia ("the tunnel"). She had been stabbed four times in the chest. Approximately 20 feet from the body, there were signs of a struggle, a pair of broken eyeglasses, and drag marks which led to the body.

As part of the investigation, Detective Robert Benson was questioning people at the Salvation Army on January 3, 1996. Appellant approached Detective Benson saying that the detective would want to talk with him. Because of the late hour, Detective Benson asked appellant to come to the police station the next day. Appellant arrived at the station the following morning, and Detective Steve Rice interviewed appellant. Appellant gave Detective Rice a statement in which appellant said that he knew the victim and had last seen her a few days before Christmas. Appellant denied that he had ever been physically involved with the victim.

After hearing about the victim in the news on New Year's Day, the victim's former boyfriend, Greg Hiers, contacted police. Hiers told Detective Benson that, based on information from his Caller ID, he believed the victim had called him from a pay phone at 10:59 a.m. on December 31.¹

The pay phone was located outside an Exxon station on Elmwood Avenue. On January 4, 1996, Detective Rice obtained the surveillance tape from the convenience store at the Exxon station for the day of December 31, 1995. That evening, Detective Rice viewed the videotape which showed the victim, together with appellant, in the convenience store from 10:48 to 10:52 a.m. Detective Rice testified that he recognized appellant because he had just interviewed him that morning.

Realizing that appellant had lied about when he last saw the victim, the police located appellant and again questioned him at the station. After being confronted with the videotape, appellant initially denied, but then admitted the tape reflected that he and the victim were together the morning of December 31.

Police searched appellant's room at the Salvation Army. In the room, police seized three trash bags and a duffel bag.² A damp, black sweatshirt was retrieved from one of the bags.³ In addition, police discovered a knife under the pillow of the unoccupied bunk. The State presented evidence that robbery was appellant's motive for the crime. In the videotape, the victim paid for her purchase at the Exxon convenience store from a white purse, and the cashier testified that the victim paid with a $50 or $100 bill. The police discovered the white purse, without any money in it, in a cemetery located between the Exxon and the tunnel. Police searched appellant's car and found a bill of sale for the car dated January 3, 1996. The seller of the car testified that appellant had purchased the car for $270, using mostly large bills.

In addition, the State presented evidence which linked appellant to the knife discovered on the bunk at the Salvation Army. Walter Armstrong testified that approximately four years before trial he gave appellant a knife similar to the one discovered and that he saw appellant with the knife as recently as November 1995. The pathologist testified that the knife was consistent with the weapon which caused the victim's stab wounds.

Finally, the State presented significant forensic evidence linking appellant to the crime. An expert in shoe print identification stated that appellant's Nike sneakers were consistent with a shoe print found near the body in the tunnel. An expert in trace evidence testified that a hair from inside the victim's coat was consistent with appellant's hair. An expert in forensic serology testified that blood stains found on appellant's jacket and his black sweatshirt were consistent with the victim's blood type and also stated that human blood was found on the knife.

Furthermore, an expert in DNA analysis testified that the blood found on the black sweatshirt matched the victim's DNA blood profile. The DNA expert also testified that semen found inside the victim's body matched appellant's DNA profile.⁴ In the DNA expert's opinion, the blood on appellant's sweatshirt was the victim's blood and the semen was from appellant.

ISSUES

1. Did the trial court err in excluding evidence of third party guilt?

2. Did the trial court err by admitting a photograph of the victim and her former boyfriend?

3. Did the trial court err in not considering a minimum thirty-year sentence pursuant to the version of S.C.Code Ann. § 16-3-20(A) which was in effect at the time of sentencing?

1. THIRD PARTY GUILT

Appellant argues that third party guilt evidence related to Louis Metz was improperly excluded by the trial court.

Appellant sought to introduce evidence related to Metz in two different ways. First, through various proffers, appellant sought to introduce the following evidence about Metz. Hiers, the victim's former boyfriend, testified in camera that the victim and Metz lived together and that Metz told Hiers many times that he was going to kill the victim. Hiers stated that Metz relayed this threat to him even on the date of the victim's death. However, Hiers recalled that Metz said he was going to kill the victim in phone conversations at 5:30 p.m. and 8:30 p.m. on December 31, and the victim's body had been discovered at approximately 4:00 p.m. that day.

Additionally, appellant proffered testimony that in police interviews: (1) Metz admitted that he argued with, hit, and had sex with the victim on December 31; (2) Betty Jackson stated that Metz told her he hit the victim during an argument on December 31 because the victim had taken $300 from him and that she saw Metz's knuckles were swollen on January 1, 1996.

Appellant also sought to admit evidence that blood and hair samples were taken from Metz. Significantly, however, the forensic experts concluded that none of the evidence matched Metz. After the various proffers, the trial court did not allow appellant to introduce the evidence about Metz.

Second, there was evidence about Metz in appellant's statement to police. Specifically, in his statement, appellant told police that (1) Metz was someone "special" in the victim's life; (2) the victim talked about how Metz would "beat on her;" (3) appellant saw the victim beaten up; (4) the victim told appellant approximately 20 times in six months that Metz had beaten her up and it was all she could talk about when she was drunk; and (5) the victim acted as if she was scared of Metz. Although the State introduced appellant's statement, it moved to redact the references to Metz. Reasoning that the evidence about Metz did not meet the standard for admissibility of third party guilt evidence, the trial court allowed the redactions.

It is well-settled that the admission and rejection of proffered testimony is within the sound discretion of the trial court and its exercise of such discretion will not be disturbed by this Court on appeal unless it can be shown that there has been an abuse of discretion, a commission of legal error in its exercise, and that the rights of the appellant have been thereby prejudiced. E.g., State v. Gregory, 198 S.C. 98, 16 S.E.2d 532 (1941).

Evidence offered by a defendant as to the commission of the crime by another person is limited to facts which are inconsistent with the defendant's guilt. State v. Beckham, 334 S.C. 302, 513 S.E.2d 606 (1999); State v. Parker, 294 S.C. 465, 366 S.E.2d 10 (1988); Gregory, supra. In Gregory, this Court explained that:

evidence offered by accused as to the commission of the crime by another person must be limited to such facts ... as raise a reasonable inference or presumption as to his own innocence; evidence which can have (no) other effect than to cast a bare suspicion upon another, or to raise a conjectural inference as to the commission of the crime by another, is not admissible.... [B]efore such testimony can be received, there must be such proof of connection with it, such a train of facts or circumstances, as tends clearly to point out such other person as the guilty party.

Gregory, 198 S.C. at 104-05, 16 S.E.2d at 534-35 (internal quotes and citations omitted). Furthermore, this Court has held that evidence of a third party's motive and opportunity to kill the victim is properly excluded where the appellant nonetheless fails to show that the proffered evidence is inconsistent with his guilt. State v. Williams, 321 S.C. 327, 335, 468 S.E.2d 626, 631, cert. denied, 519 U.S. 891, 117 S.Ct. 230, 136. L.Ed.2d 161 (1996).

The trial court found that given the totality of the evidence against appellant and the nature of the evidence proffered regarding Metz, the evidence was not inconsistent with appellant's guilt and thus would serve merely to cast suspicion upon Metz. In our opinion, the trial court properly exercised its discretion. See Gregory, supra.

In view of the strong evidence of appellant's guilt—especially the forensic evidence—and the fact that the forensic experts found that the samples from Metz did not match any evidence gathered in this case, the proffered evidence about Metz did not raise "a reasonable inference" as to ap...