State v. Hartley, 1759

• Decision Date: 02 December 1991
• Docket Number: No. 1759,1759
• Citation: 307 S.C. 239,414 S.E.2d 182
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. Jamie HARTLEY, Appellant. . Heard

Page 182

414 S.E.2d 182

307 S.C. 239

The STATE, Respondent, v. Jamie HARTLEY, Appellant.

No. 1759.

Court of Appeals of South Carolina.

Heard Dec. 2, 1991.

Decided Jan. 13, 1992.

Certiorari Denied June 3, 1992.

Wayne Floyd, West Columbia, and Tommy Thomas, Columbia, for appellant.

Atty. Gen. T. Travis Medlock, Asst. Attys. Gen. Harold M. Coombs, Jr., and Norman Mark Rapoport, Columbia, and Sol. Donald V. Myers, Lexington, for respondent.

GOOLSBY, Judge.

Jamie Hartley appeals his conviction for murder. The questions on appeal relate to the trial judge's jury charges, the trial judge's handling of a question from the jury during jury deliberations, Hartley's cross-examination, and the trial judge's failure to grant a mistrial. We affirm.

Hartley and a co-defendant were convicted of murder and sentenced to life imprisonment. An autopsy showed the murder victim's head had been crushed by a heavy object. She had also been beaten with a wooden object. Police found a 93-pound piece of concrete with blood on it near where they believed the victim died. There is evidence in the record that Hartley dropped the 93-pound concrete slab on the victim's head.

I.

We reject Hartley's contention that the trial judge erred in denying Hartley's request that the jury be charged as follows:

The absence of a motive is a circumstance to be duly considered in weighing the question of guilt. [Citation omitted]. If you find that the [d]efendant, Jamie Hartley, had no motive to commit murder, then lack of motive is to be duly considered by you in weighing the question of guilt regarding him. [Citation omitted.]

We hold the requested charge constitutes an impermissible charge on the facts. See S.C. Const. art. V, § 21 ("Judges shall not charge juries in respect to matters of fact but shall declare the law."); State v. Bagwell, 201 S.C. 387, 23 S.E.2d 244 (1942) (A judge cannot express in his charge, or intimate any opinion as to the weight or the sufficiency of testimony without violating the prohibition of the Constitution as to charging upon the facts); 75A Am.Jur.2d Trial § 1203, at 693 (1991) ("[T]he trial court may not instruct the jury what weight should be given [to the evidence], or even that any particular evidence is or is not entitled to receive weight or consideration from them."); cf. State v. Edwards, 127 S.C. 116, 120 S.E. 490 (1923) (wherein our Supreme Court held the absence of motive is a mere circumstance to be considered by the jury and rejected an instruction that the absence of motive may raise a reasonable doubt as to the defendant's guilt because it was a charge on the facts).

The charge requested by Hartley directs the jury to "duly consider" the absence of motive in "weighing" the question of Hartley's guilt, if the jury determines Hartley had no motive to murder the victim. Thus, the trial judge was requested, in effect, to charge that particular evidence (i.e., evidence of lack of motive) is entitled to receive weight or consideration. The requested charge is clearly a charge on a fact that the jury was to determine.

II.

Hartley next contends the instruction to the jury on the use of a deadly weapon violated his due process rights. Hartley, however, did not object to this instruction at trial. He has therefore waived his right to complain about it on appeal. State v. Stone, 285 S.C. 368, 330 S.E.2d 286 (1985).

III.

Hartley complains of the trial judge's refusal to charge the jury on the crime of manslaughter as a lesser-included offense of the crime of murder. We find no error.

While there is evidence from Hartley that, to quote from his brief, "he never tried to hurt the victim in any way," "never had any evil or ill feelings toward her," and the victim never did "anything to make him angry or mad," there is no evidence either from him or from the state that shows Hartley killed the victim without malice. See State v. Funchess, 267 S.C. 427, 429, 229 S.E.2d 331, 332 (1976) ("[I]t is not error to refuse to submit a lesser included offense unless there is testimony tending to show that the defendant is only guilty of the lesser offense." [emphasis theirs]; S.C.Code Ann. § 16-3-50 (1976) (defining manslaughter as "the unlawful killing of another without malice, express or implied"). Indeed, Hartley, as we read his testimony, denied any responsibility for killing the victim and placed the blame for her killing entirely on his co-defendant. He pictured himself as a mere onlooker at the time the victim was killed.

Manslaughter, which may be voluntary or involuntary, is a proper charge when there is either evidence the killing was committed in the heat of passion incited by legally adequate provocation or the killing resulted from criminal negligence. See McAninch and Fairey, The Criminal Law of South Carolina at 149 and 162 (2d ed. 1989) (discussing the crimes of voluntary and involuntary manslaughter). There is no evidence of either provocation or criminal negligence here. Under the state's version of what happened, malice accompanied the victim's killing. Under Hartley's version, he did not participate in her killing and was but an innocent bystander. Under neither version was a charge of manslaughter warranted.

IV.

We need not address the issue regarding whether the trial judge erred in refusing to charge the jury on the crimes of accessory after the fact and misprision of a felony, offenses for which Hartley was not indicted.

An instruction on a lesser offense is proper, but only if the lesser offense is a lesser-included offense of an offense charged in the indictment. 23A C.J.S. Criminal Law § 1344, at 257 (1989).

Hartley makes no argument on appeal that these offenses are lesser-included offenses of the offense of murder.

V.

Hartley asserts the trial judge erred when he refused "to clarify the jury's confusion" about Hartley's testimony.

During the jury's deliberations, the jury sent the trial judge a note asking:

Did Jamie Hartley state this morning on the stand that he picked up the largest rock when a gurgling noise was coming from [the victim] and dropped it on her to put her out of her misery or did he indicate it was dropped by someone else?

The trial judge responded by stating he could not answer the question because it raised "a factual issue." He advised the jury, however, he would play back any particular testimony that the jury wished to hear. The jury later asked to hear replayed only the solicitor's cross-examination of Hartley. The trial judge granted the jury's request. See State v. Plyler, 275 S.C. 291, 298, 270 S.E.2d 126, 129 (1980) ("The trial judge, in his discretion, may permit the jury at their request to review ... testimony after beginning their deliberations [and] [t]he extent of such review is within the discretion of the trial judge to be exercised in the light of the jury's request.").

A.

Hartley first complains of the trial judge's refusal to grant his request that the jury be instructed "that the transcript taken as a whole ... indicate[d] that Mr. Hartley always said that someone else struck [the victim] with the rocks and he never touched her."

The trial judge refused to give the requested instruction, stating "[t]hat would be a charge on the facts." We agree with the trial judge. The requested instruction, if it had been given, would have constituted a charge on the facts in that it would have stated as a fact a matter to be determined by the jury. 75A Am.Jur.2d supra § 1202, at 692; see S.C. Const. art. V, § 21 ("Judges shall not charge juries in respect to matters of fact, but shall declare the law."); State v. Ates, 297 S.C. 316, 377 S.E.2d 98 (1989) (a judge must refrain from all comment that tends to indicate his opinion on the facts in controversy); cf. State v. Dawkins, 268 S.C. 110, 232 S.E.2d 228 (1977) (wherein the Supreme Court reversed a conviction because the trial judge in responding to a factual inquiry by the jury during their deliberations ran afoul of the constitutional provision that a trial judge may not, expressly or by implication, intimate any opinion as to the force and effect of testimony in the case). There was evidence that Hartley while in jail told one inmate he "[had] busted the girl in the head with the rock" and told another inmate he "had dropped a concrete-like slab you pour around a fence post" on the victim.

B.

We need not address Hartley's complaint concerning the failure of the trial judge to require the jury, as his brief phrases it, "to listen to other portions of [Hartley's] testimony on the rock."

Hartley never asked the trial judge to have the "other portions" of Hartley's testimony about the rock played back to the jury. Moreover, he never objected at trial to the playback of only Hartley's cross-examination by the solicitor. See State v. Bailey, 298 S.C. 1, 377 S.E.2d 581 (1989) (the failure to either raise an issue or preserve an objection at trial waives the right to argue it on appeal).

In any case, were we to reach this issue, we would hold the trial judge committed no abuse of discretion. See Plyler, 275 S.C. at 298, 270 S.E.2d at 129 (the trial judge, in his discretion, may permit the jury at their request to review testimony and the trial judge is not required to submit evidence to the jury for review beyond that specifically requested).

VI.

We turn now to Hartley's argument that the trial judge committed reversible error in refusing to grant a mistrial "when the state improperly questioned [Hartley] about his previous criminal record."

During his cross-examination, the solicitor twice asked Hartley, without first establishing Hartley had been convicted of a criminal offense, whether he had prior convictions for burglary and for grand larceny. Each time the question was asked, Hartley's attorney objected and moved for a mistrial on the ground that the solicitor's cross-examination of Hartley about prior convictions was improper. See 81 Am.Jur.2d Witnesses § 584, at 590 (1976) ("[I]t...