State v. Gilbert

Decision Date14 September 1981
Docket NumberNo. 21562,21562
Citation283 S.E.2d 179,277 S.C. 53
CourtSouth Carolina Supreme Court
PartiesThe STATE, Respondent, v. Larry GILBERT and J. D. Gleaton, Appellants.

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.

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. 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' 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, 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.

At the first trial, two aggravating circumstances were submitted to the sentencing jury but they only found "robbery while armed with a deadly weapon" as an aggravating circumstance. At the second sentencing trial, both "robbery while armed with a deadly weapon" and "larceny with the use of a deadly weapon" were found as aggravating circumstances, to exist beyond a reasonable doubt.

Appellants now assert the trial court erred in submitting the aggravating circumstance of "larceny with the use of a deadly weapon" at the second sentencing trial because the failure of the jury to find for or against him on that issue in the first trial amounted to a finding that this aggravating circumstance did not exist.

We hold there is no merit to appellants' assertion of double jeopardy as the failure of the jury to find for or against him on the aggravating circumstance of larceny with the use of a deadly weapon would not preclude the submission of the other valid aggravating circumstance which was in itself sufficient to call for the application of the death penalty. Gerberding v. Swenson, 435 F.2d 368, 371 (8th Cir. 1970), cert. denied, 403 U.S. 906, 91 S.Ct. 2211, 29 L.Ed.2d 682 (1971).

Under the particular facts of this case, appellants' argument that the jury's failure to find for or against him on the issue of larceny with the use of a deadly weapon, at the first sentencing trial, was tantamount to an acquittal on that issue is without merit. Larceny is an essential element of the offense of robbery, as "[t]he common-law offense of robbery is essentially the commission of larceny with force." State v. Brown, 274 S.C. 48, 49, 260 S.E.2d 719 (1979). Therefore, it was necessary for the jury to have found that appellant had committed a larceny as well as finding the additional element that he used force to accomplish the larceny.

Moreover, we must remember, as held in U. S. v. Tateo, 377 U.S. 463, 466, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448 (1964), "[c]orresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial."

Two sentencing juries have decided death is the appropriate punishment for appellants. The double jeopardy clause does not protect appellants here.

We are required under § 16-3-25 to determine "whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases considering both the crime and defendant." Considering the record in this case and comparing it with State v. Shaw and Roach, 273 S.C. 194, 255 S.E.2d 799 (1979), and State v. Hyman, S.C., 281 S.E.2d 209 (1981), we find the death penalty is proportionate to a crime of this nature and to the crime and defendants in this case. We affirm.

AFFIRMED.

LEWIS, C. J., GREGORY, J., and JOSEPH R. MOSS, Acting Associate Justice, concur.

HARWELL, J., dissents.

HARWELL, Justice (dissenting):

I respectfully dissent, concluding that the State violated the constitutional provision against double jeopardy 1 in the second sentencing trial by submitting for the jury's consideration an aggravating circumstance which the jury in the first sentencing proceeding had considered but had failed to find to exist beyond a reasonable doubt.

Section 16-3-20(C) of the Capital Punishment Statutory Complex provides in pertinent part: "The jury, if its verdict be a recommendation of death, shall designate in writing, and signed by all members of the jury, the aggravating circumstance or circumstances which it found beyond a reasonable doubt." (Emphasis added).

The language of Section 16-3-20(C) quoted above mandates that a jury shall designate in writing which of those statutory aggravating circumstances it has found...

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