State v. Gilbert, No. 21562

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtNESS; LEWIS, C. J., GREGORY, J., and JOSEPH R. MOSS; HARWELL; HARWELL
Citation283 S.E.2d 179,277 S.C. 53
PartiesThe STATE, Respondent, v. Larry GILBERT and J. D. Gleaton, Appellants.
Decision Date14 September 1981
Docket NumberNo. 21562

Page 179

283 S.E.2d 179
277 S.C. 53
The STATE, Respondent,
v.
Larry GILBERT and J. D. Gleaton, Appellants.
No. 21562.
Supreme Court of South Carolina.
Sept. 14, 1981.

Page 180

[277 S.C. 55] Robert W. Mance, III, Washington, D. C., for appellants.

Atty. Gen. Daniel R. McLeod, Senior Asst. Atty. Gen. Brian P. Gibbes, and Asst. Atty. Gen. Kay G. Crowe, Columbia, and Sol. Donald V. Myers, Lexington, for respondent.

[277 S.C. 56] David I. Bruck, Columbia, for amicus curiae S. C. Commission of Appellate Defense.

NESS, Justice:

This appeal is from a sentencing retrial where the appellants were given death sentences for the armed robbery and murder of Ralph Stoudemire. We affirm.

On previous appeal, appellants' convictions were upheld but their death sentences were vacated and remanded on the basis of improper prosecutorial argument during the sentencing phase of the bifurcated trial. State v. Gilbert, 273 S.C. 690, 258 S.E.2d 890 (1979). We review pursuant to § 16-3-25, mandatory review of sentencing proceedings.

The original opinion in this appeal was written by Justice Harwell and the Court unanimously concurred except for the portion addressing the double jeopardy issue.

Appellants first challenge various rulings by the trial judge concerning the qualifications of certain jurors. The relative competency of a prospective juror to be empanelled for a specific trial is a matter addressed to the sound discretion of the trial judge whose decision will not be disturbed unless wholly unsupported by the evidence. State v. Watkins, 259 S.C. 185, 191 S.E.2d 135 (1972); State v. Franklin, 267 S.C. 240, 226 S.E.2d 896 (1976). No abuse of discretion appears.

The appellants claim that the trial judge erred by qualifying a juror even though she allegedly stated during voir dire that she would be unable to consider the lack of a prior criminal record as a factor mitigating against imposition of the death penalty.

This Court will not consider only isolated statements made during voir dire but will examine the entire colloquy with the venireman in order to review his qualifications.

Page 181

Having done this, it is clear that the challenged juror was properly qualified. When questioned by the trial judge subsequent to confusing inquiries made by appellants' [277 S.C. 57] trial counsel, the juror stated that she would give due consideration to any mitigating factor that the court instructed her to consider.

The appellants also claim that the trial judge erred by excusing another of the prospective jurors, who, despite the trial judge's instruction to the contrary, revealed to her priest that she might be serving in a capital case and solicited of him his opinion of the Catholic Church's stance on the issue of capital punishment. There was no abuse of discretion. The possible seating of this person would have introduced an outside influence into the deliberations of this jury.

An assertion is also made that the trial judge erred by failing to disqualify a prospective alternate venireman who read an account of the trial matter in his newspaper during the voir dire process. According to the venireman, the article only stated that the appellants were on trial for determination of the sentence to be imposed on them for the murder of Stoudemire. He testified that nothing in the article had influenced him and that he would have to hear the testimony before he could offer an opinion on the proper sentence. There was no abuse of discretion in qualifying this alternate juror.

Appellants next contend that certain photographs of the crime scene were improperly admitted since they were allegedly irrelevant as to the question of proper sentence and were allegedly designed to inflame the passions of the jury. We disagree. The photographs were properly admitted as evidence of the circumstances of the crimes. State v. Shaw, 273 S.C. 194, 255 S.E.2d 799, cert. denied, 444 U.S. 957, 100 S.Ct. 437, 62 L.Ed.2d 329 (1979), petition for rehearing denied, 444 U.S. 1027, 100 S.Ct. 694, 62 L.Ed.2d 662 (1980), and cert. denied, 444 U.S. 1026, 100 S.Ct. 690, 62 L.Ed.2d 660, petition for rehearing denied, 444 U.S. 1104, 100 S.Ct. 1073, 62 L.Ed.2d 791 (1980).

One photograph of the scene was apparently inadvertently admitted after the trial judge ruled it inadmissible because allegedly irrelevant. We find the error harmless,[277 S.C. 58] however, since the photograph is simply one more view of the crimes scene, and since it was neither irrelevant nor inflammatory. Like the other photographs it was demonstrative of the circumstances of the crimes. See State v. Campbell, 259 S.C. 339, 191 S.E.2d 770 (1972).

The appellants contend that they should have been allowed to introduce witnesses to testify why the death penalty is allegedly not a proper form of punishment. This exception has no merit. Nothing in the record supports the contention that appellants even sought to introduce additional witnesses. At any rate, the propriety of the death sentence as a form of punishment is a matter addressed to the discretion of the legislature. The legislature has determined that capital punishment is an appropriate mode of punishment in this State. This Court will not sacrifice judicial resources in considering the philosophical correctness of capital punishment since it has been legislatively approved in a statutory complex we have previously examined and found to be constitutional. State v. Shaw, supra; State v. Linder, S.C., 278 S.E.2d 335.

Appellants' allegations that their confessions should have been suppressed have been considered by this Court and resolved adversely to the appellants. These matters are therefore res judicata. State v. Gilbert, 273 S.C. 690, 258 S.E.2d 890 (1979).

Finally, appellants allege the trial court violated the constitutional provision against double jeopardy by submitting for the jury's consideration an aggravating circumstance not found by the jury in the first sentencing trial. We disagree.

The double jeopardy clause of the Fifth Amendment basically prohibits reprosecution for the same offense. For the first time the Supreme Court in Bullington v. Missouri, --- U.S. ----, 101 S.Ct. 1852, 1863, 68 L.Ed.2d 270 (1981), held the double jeopardy clause applies equally to sentencing and guilt phases of a trial.

Page 182

At the first trial, two aggravating circumstances were submitted to the sentencing jury but they only found "robbery [277 S.C. 59] while armed with a deadly weapon" as an aggravating circumstance. At the second sentencing trial, both "robbery while armed...

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32 practice notes
  • State v. Copeland, No. 21808
    • United States
    • United States State Supreme Court of South Carolina
    • November 10, 1982
    ...of the entire record reveals no other error. AFFIRMED. LEWIS, C.J., and LITTLEJOHN, NESS and HARWELL, JJ., concur. --------------- * 277 S.C. 53, 283 S.E.2d 179...
  • Gilbert v. Moore, Nos. 96-12
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • January 22, 1998
    ...The South Carolina Supreme Court affirmed the sentences, and the United States Supreme Court denied certiorari. See State v. Gilbert, 277 S.C. 53, 283 S.E.2d 179, 182 (1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2258, 72 L.Ed.2d 863 (1982). Thereafter, Petitioners sought post-conviction re......
  • Gilliam v. Foster, No. 95-2434
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • January 29, 1996
    ...evidence. As pictures of the scene where the altercation occurred, the photographs in Set 1 were relevant evidence. See State v. Gilbert, 277 S.C. 53, 283 S.E.2d 179, 181 (1981) (holding crime scene photographs properly admissible to show circumstances of the crime), cert. denied, 456 U.S. ......
  • State v. Koedatich
    • United States
    • United States State Supreme Court (New Jersey)
    • April 19, 1990
    ...476 U.S. 1130, 106 S.Ct. 1998, 90 L.Ed.2d 678, reh'g denied, 478 U.S. 1014, 106 S.Ct. 3321, 92 L.Ed.2d 728 (1986); State v. Gilbert, 277 S.C. 53, 283 S.E.2d 179 (1981) (no double-jeopardy violation in submitting aggravating factor to jury not found at initial trial), cert. denied, 456 U.S. ......
  • Request a trial to view additional results
32 cases
  • State v. Copeland, No. 21808
    • United States
    • United States State Supreme Court of South Carolina
    • November 10, 1982
    ...of the entire record reveals no other error. AFFIRMED. LEWIS, C.J., and LITTLEJOHN, NESS and HARWELL, JJ., concur. --------------- * 277 S.C. 53, 283 S.E.2d 179...
  • Gilbert v. Moore, Nos. 96-12
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • January 22, 1998
    ...The South Carolina Supreme Court affirmed the sentences, and the United States Supreme Court denied certiorari. See State v. Gilbert, 277 S.C. 53, 283 S.E.2d 179, 182 (1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2258, 72 L.Ed.2d 863 (1982). Thereafter, Petitioners sought post-conviction re......
  • Gilliam v. Foster, No. 95-2434
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • January 29, 1996
    ...evidence. As pictures of the scene where the altercation occurred, the photographs in Set 1 were relevant evidence. See State v. Gilbert, 277 S.C. 53, 283 S.E.2d 179, 181 (1981) (holding crime scene photographs properly admissible to show circumstances of the crime), cert. denied, 456 U.S. ......
  • State v. Koedatich
    • United States
    • United States State Supreme Court (New Jersey)
    • April 19, 1990
    ...476 U.S. 1130, 106 S.Ct. 1998, 90 L.Ed.2d 678, reh'g denied, 478 U.S. 1014, 106 S.Ct. 3321, 92 L.Ed.2d 728 (1986); State v. Gilbert, 277 S.C. 53, 283 S.E.2d 179 (1981) (no double-jeopardy violation in submitting aggravating factor to jury not found at initial trial), cert. denied, 456 U.S. ......
  • Request a trial to view additional results

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