State v. Hoffman

• Decision Date: 01 November 1993
• Docket Number: No. 24000,24000
• Citation: 312 S.C. 386,440 S.E.2d 869
• Parties: The STATE, Respondent, v. Brian Allen HOFFMAN, Appellant. . Heard
• Court: South Carolina Supreme Court

Page 869

440 S.E.2d 869

312 S.C. 386

The STATE, Respondent, v. Brian Allen HOFFMAN, Appellant.

No. 24000.

Supreme Court of South Carolina.

Heard Nov. 1, 1993.

Decided Jan. 24, 1994.

Chief Atty. Daniel T. Stacey, of SC Office of Appellate Defense, of Columbia, for appellant.

T. Travis Medlock, Atty. Gen., Donald J. Zelenka, Chief Deputy Atty. Gen., James G. Bogle, Jr., Asst. Atty. Gen., Columbia, and Ralph Wilson, Sol., Conway, for respondent.

TOAL, Justice.

This case arises from Appellant's convictions for two counts of murder, burglary in the first degree, criminal sexual conduct in the first degree, armed robbery, and grand larceny. We affirm the jury's verdict.

Facts

Appellant, Brian Hoffman, was tried and convicted for the murder of an elderly couple in Horry County. Sometime in the early morning hours of November 8, 1990, Hoffman was driving from Murrells Inlet to his girlfriend's house in Greenville when the vehicle he borrowed from a friend spun into a ditch. Hoffman determined that he could not extricate the vehicle, and he approached the home of Mr. and Mrs. Thompkins which was adjacent to the ditch. ¹

Initially Hoffman approached the home but did not enter the residence; instead, Hoffman returned to the vehicle and removed a filet knife. After securing the knife, Hoffman returned to the house where he gained entry by breaking the glass out of the back door. Once inside the home, Hoffman encountered Mrs. Thompkins in the living area of the house.

After physically striking Mrs. Thompkins, Hoffman stabbed her three times and then looked through the house for money or valuables. During the stabbing of Mrs. Thompkins, Hoffman heard Mr. Thompkins, who was bedridden, yelling from another room. While searching for the keys to the Thompkins' car, Hoffman found Mr. Thompkins in his bedroom. Mr. Thompkins asked Hoffman to kill him instead of his wife, and Hoffman responded by asking if Mr. Thompkins had any money. Hoffman then went to Mr. Thompkins' bedside where he stabbed Mr. Thompkins. Mr. and Mrs. Thompkins both died as a result of their stab wounds.

After taking the Thompkins' money and car, Hoffman drove to Greenville. Once in Greenville, at the home of his girlfriend's aunt, Hoffman disposed of several papers and a handicap placard registered to the Thompkins. These items were later retrieved from the aunt's trash and turned over to the police.

At 4:10 p.m. on November 8, 1990, Mr. Madert, a contract physical therapist for the Department of Health and Environmental Control, made a house visit to the Thompkins' residence. Becoming suspicious when no one answered the door, Madert walked around the house where he found the broken glass and the door open. Entering the home, Mr. Madert found Mrs. Thompkins lying dead on the floor with her nightgown pulled up to just below her breast line and no underwear. Upon finding Mrs. Thompkins, Madert left the home and called 911.

As the police investigation was beginning in Horry County, Hoffman was picking up his girlfriend and her two children in Greenville. They began the drive back to Horry County stopping on several occasions for rest and food, and each time, Hoffman was careful to back the stolen car into parking spaces to obscure the license plate number.

Police officers discovered that the Thompkins' car was missing and issued a bulletin to police officials throughout the state. Meanwhile, Hoffman reentered Horry County where he stopped at a Scotchman store, this time forgetting to back the car into the parking space. A passing police officer discovered the car and followed Hoffman after he pulled out of the parking lot. Once Hoffman spotted the police car, he increased his speed until he pulled over and fled into the woods.

Hoffman's girlfriend and her children were taken into custody as the search began for Hoffman. Several days later, Hoffman was apprehended inside an old camping trailer. Once in custody, Hoffman confessed to both killings, breaking into the house, arming himself with a knife, and grand larceny of the vehicle. Hoffman, however, vehemently denied ever having sexual relations with Mrs. Thompkins.

At trial, the State sought the death penalty. The jury found Hoffman guilty of all the crimes charged. As a result of his convictions, Hoffman was sentenced to life on both murder counts, life on the burglary count, thirty years for criminal sexual conduct, twenty-five years for armed robbery, and ten years for grand larceny. All sentences were to be served consecutively, and Hoffman now appeals.

Issues

On appeal, Hoffman raises the following issues:

1. Whether the trial court erred in denying Hoffman's mistrial motion after the jury foreman sent a note to the judge asking if the jury could ask questions of witnesses to clarify testimony;

2. Whether the trial court erred in admitting evidence that Hoffman had abused his girlfriend on a prior occasion;

3. Whether the trial court erred in refusing to suppress the DNA evidence where the expert's report was provided to defense counsel on the day of the expert's testimony;

4. Whether the trial court's jury instruction on reasonable doubt was violative of Hoffman's due process rights; and

5. Whether the trial court erred in charging that Hoffman's prior crimes could be held against him on the issue of credibility when Hoffman did not testify.

Law/Analysis

Mistrial Motion

Hoffman asserts that the trial court erred in denying his mistrial motion after the jury foreman sent a note to the judge asking if the jury could ask questions of witnesses to clarify testimony. On the fourth day of Hoffman's trial, the jury foreman sent a note to the trial judge asking three questions and making one comment. The handwritten note read:

9-12-91

1) Yesterday the fingerprint expert appeared to me to 1st say that there were prints on the Bronco steering wheel then he said 2 questions later there were no prints. [Do we have] Can this be clarified?

2) If other testimony is not clear or is conflicting do we have a right to clarify and how do we do so?

3) If a juror has a question of a witness that has been called, is there a procedure to ask that question?

4) All Jurors are willing to work Saturday and Sunday if needed.

Thanks

Jim Moore

App. p. 667 [language which was originally crossed out is contained in brackets].

Hoffman argues that this note is clear evidence that the jury began deliberations during the course of the trial. We recently reiterated the rule that a jury should not begin discussing cases or deciding issues until the evidence is introduced, the arguments of counsel are complete, and the applicable law is charged. Gallman v. State, 307 S.C. 273, 414 S.E.2d 780 (1992); State v. Pierce, 289 S.C. 430, 346 S.E.2d 707 (1986). Jurors should be instructed not to discuss the case, even with each other, until the case is submitted to them. Id.; State v. Parker, 255 S.C. 359, 179 S.E.2d 31 (1971).

Both Gallman and Pierce are distinguishable on their facts. In both cases, the judge condoned premature discussion among the respective jurors. Here, no such judicial encouragement or condonation occurred. The trial judge gave a standard instruction forbidding premature juror discussion sua sponte, and after the jury's note, the trial judge gave a curative instruction. Further, the motion for mistrial was not made until much later in the trial.

The trial judge considered the note in its entirety, and in exercising his discretion, found that the note showed that the jury was merely attempting to define their role in the trial process rather than deliberating on the merits. The wording of the note in the record amply supports the judge's findings, especially since any potential harm was cured with the instruction issued by the court.

In light of the judge's curative instruction, we find that the trial court was correct in refusing to grant Hoffman's mistrial motion.

Choking Evidence

Hoffman asserts that the trial court erred in admitting evidence that he had abused his girlfriend on a prior occasion. During the State's case in chief, the State offered the testimony of John Hill. The father of Hoffman's girlfriend, Mr. Hill testified without objection that the weekend prior to the murders, he had gone to Horry County to pick up his daughter because, "Brian Hoffman had gotten drunk, and he had tried to choke her, and he had locked them out of the apartment." ROA p. 190. On re-cross examination, defense counsel asked, "[t]he weekend before he choked her, were you present?" ROA p. 190. Hoffman's own confession referred to a "big fight" with his girlfriend. The initial evidence of choking came into the trial completely without objection.

Hoffman only objected to one question asked of his girlfriend. The solicitor on cross examination asked the following:

[a]lright, and tell us about his temper during the time that he would drink alcohol, how he would react to you, and not only to you but to your children?

ROA p. 608. Defense counsel objected, and the trial judge overruled the objection. The girlfriend's response to subsequent questions told of the choking incident and an incident where the child may have been abused. The testimony was inferential at best, and defense counsel did not object to either the question or her answer.

The issue which is not properly preserved cannot be raised for the first time on appeal. State v. Vanderbilt, 287 S.C. 597, 340 S.E.2d 543 (1986). A contemporaneous objection is required to properly preserve an error for appellate review. State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991). Here, the record shows that no such preservation occurred. Defense counsel's lone objection was well after the initial admission of the choking incident.

The defense objection was very broadly made, and not contemporaneous to the answers which Hoffman submits as error. Moreover, in challenging the credibility of the admitted confession, the defense strategy was to impute...