State v. Holmes

• Decision Date: 05 April 1995
• Docket Number: No. 24351,24351
• Citation: 464 S.E.2d 334,320 S.C. 259
• Parties: The STATE, Respondent, v. Bobby Lee HOLMES, Appellant. . Heard
• Court: South Carolina Supreme Court

Page 334

464 S.E.2d 334

320 S.C. 259

The STATE, Respondent, v. Bobby Lee HOLMES, Appellant.

No. 24351.

Supreme Court of South Carolina.

Heard April 5, 1995.

Decided Nov. 27, 1995.

Chief Attorney Daniel T. Stacey and Senior Assistant Appellate Defender Wanda H. Haile, both of S.C. Office of Appellate Defense, Columbia, for appellant.

Attorney General Charles M. Condon, Chief Deputy Attorney General Donald J. Zelenka, both of Columbia; and Solicitor Thomas E. Pope, York, for respondent.

CHANDLER, Acting Associate Justice:

Appellant was convicted of murder and sentenced to death. Review of appellant's direct appeal has been consolidated with the sentence review mandated by S.C.Code Ann. § 16-3-25 (1985). We affirm.

FACTS

The victim in this case, Mary Stewart, was eighty-six years old when she was brutally beaten, sodomized, and robbed on the morning of December 31, 1989. She suffered severe trauma to her head and massive damage to her brain. Within several hours after the assault, she became comatose. Despite efforts to save her, Stewart lapsed into a vegetative state and eventually died on March 10, 1990.

After a four day trial in 1993, appellant was convicted of Stewart's murder and received the death penalty. He was also convicted of first degree burglary, first degree criminal sexual conduct, and robbery. On appeal, he alleges the trial court erred during voir dire and during both the guilt and sentencing phases of trial.

I. VOIR DIRE ISSUES

A. Venireperson D. Brown

In response to questioning by the State during voir dire, venireperson D. Brown stated she did not believe in the death penalty and therefore could only vote for life imprisonment. The trial court then excused Brown without giving appellant an opportunity to question her. Appellant argues this was error. We agree. See State v. Atkins, 293 S.C. 294, 360 S.E.2d 302 (1987), cert. denied, 501 U.S. 1259, 111 S.Ct. 2913, 115 L.Ed.2d 1076 (1991), overruled on other grounds, State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991); S.C.Code Ann. § 16-3-20(D) (Supp.1994). However, for the following reason, we hold that the error was harmless.

Under the jury selection procedure used in this case with appellant's consent, the names of the first twenty-seven venirepersons qualified by the trial court were placed on a list from which twelve were selected to serve. The names of the next four qualified venirepersons were placed on a list from which one alternate was chosen.

Prior to the voir dire of Brown, twenty-eight venirepersons had been qualified and the first list filled. Consequently, assuming Brown would have been qualified had appellant been given an opportunity to question her concerning her beliefs, Brown's name would have merely been placed on the alternate juror list. Because the alternate juror chosen in appellant's case was never called, the error in failing to give appellant his opportunity to question Brown was, therefore, harmless. Cf. State v. Green, 301 S.C. 347, 392 S.E.2d 157, cert. denied, 498 U.S. 881, 111 S.Ct. 229, 112 L.Ed.2d 183 (1990) (any error in the qualification of an alternate capital juror is harmless beyond a reasonable doubt when no alternates were used in the case).

B. Venireperson L. Smith

In response to questioning by defense counsel during voir dire, venireperson L. Smith stated she could give either a life or death sentence, depending on the evidence presented. However, upon questioning by the State, Smith stated she would not sign a death penalty verdict. After the trial court questioned Smith further, the court accepted the State's challenge for cause and excused Smith. Appellant argues this was error. We disagree.

The decision to qualify or not qualify a prospective juror to serve in a death penalty case is a matter of discretion which is not reversible on appeal unless wholly unsupported by the evidence. State v. Green, supra. In determining whether a trial court abused its discretion in qualifying or disqualifying a challenged juror, individual responses of the juror must be examined in light of the entire voir dire. Id.; State v. Caldwell, 300 S.C. 494, 388 S.E.2d 816 (1990). In this case, we have reviewed the entire voir dire of venireperson Smith and conclude the trial court did not abuse its discretion in accepting the State's challenge for cause.

C. Venireperson M. Hutto

At the outset of voir dire, venireperson M. Hutto stated she thought a defendant had to prove his or her innocence. However, when told the law presumed a defendant was innocent, and asked if she could follow this presumption, she answered yes. Thereafter, Hutto was qualified by the trial court. On appeal, appellant argues this was error because Hutto's responses indicated she could not accept the presumption of innocence. We disagree. After reviewing Hutto's entire voir dire, we conclude there was no abuse of discretion in qualifying her to serve. State v. Green, supra; State v. Caldwell, supra.

II. TRIAL ISSUES

A. Impeachment of Witness Paul Burton

At trial, the State called Paul Burton to testify that while incarcerated in the York County Jail with appellant, appellant made an incriminatory statement. Specifically, Burton testified that, while watching a pornographic movie in which two men were sodomizing a woman, appellant stated: "That's the way I done the old bitch ... and she liked it, too." ¹

Prior to Burton's testimony, appellant moved for permission to impeach Burton with his 1984 conviction for violating the "Peeping Tom" statute. ² The trial court denied appellant's motion, holding that a violation of the "Peeping Tom" statute was not a crime of moral turpitude. Appellant argues this was error. We agree. See State v. Harris, 293 S.C. 75, 358 S.E.2d 713 (1987) (a violation of the "Peeping Tom" statute is a crime of moral turpitude, and a conviction for such an offense can be used for impeachment purposes). However, this Court must consider whether the trial court's error was harmless.

In Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986), the Supreme Court set forth certain factors an appellate court should consider in determining whether the erroneous exclusion of evidence of a witness' bias constitutes harmless error. These include: the importance of the witness' testimony to the prosecution's case, whether the testimony was cumulative, whether other evidence corroborates or contradicts the witness' testimony, the extent of cross-examination otherwise permitted, and the overall strength of the State's case.

While the harmless error ruling in Van Arsdall dealt specifically with witness bias, we hold that the Van Arsdall factors apply with equal force in determining a harmless error violation relating to any issue of witness credibility. See State v. Gadsden, 314 S.C. 229, 442 S.E.2d 594 (1994). The following is a review of these factors in the context of appellant's case.

The victim, Mary Stewart, was attacked in her home at approximately 6:00-6:30 a.m. on a Sunday morning. Prior to her becoming comatose, she gave a description of her assailant to the police. Shortly before the attack, at approximately 5:30 a.m., appellant was seen in Stewart's neighborhood wearing clothing similar to that described by the victim.

Appellant was arrested at his residence several hours after the crime. At the time of the arrest, the police recovered clothing from appellant similar to that described by Stewart. Fibers consistent with those comprising appellant's sweatshirt, jeans, and underwear were found in Stewart's home on her sheets and nightgown. ³ In addition, human blood was found on appellant's jeans, underwear, and tank top. An examination of the victim and her clothing revealed that she had bled during the attack. Further, at the time of his arrest, appellant had $44 in his wallet. Stewart's assailant stole $40 from her pocketbook, and a friend of appellant testified he gave appellant $3 shortly before the crime.

In addition to Burton's testimony concerning appellant's incriminatory statement, another witness for the State, Jackie Childers, testified that while incarcerated with appellant, appellant bragged several times about breaking into Stewart's home and raping Stewart. Further, Childers testified that appellant gave various details of the crime, including the fact a phone had been removed from the wall of Stewart's home, and the fact appellant's shirt had blood on it.

While Burton's 1984 conviction for violating the "Peeping Tom" statute was not made known to the jury, the fact Burton had been convicted for unlawful use of a telephone was disclosed to the jury by both the State and the defense. Additionally, during cross-examination, Burton's probation violation and his service of eleven months in prison were made known to the jury. Further, during cross-examination, defense counsel threw a document on the floor in front of Burton and the jury and asked Burton if that was his "rap sheet," and if he had a record. Burton responded, "Yes, sir, I do."

After considering the Van Arsdall factors in light of the evidence against appellant, the testimony of witnesses other than Burton, and what occurred during cross-examination of Burton, we hold that the trial court's error regarding Burton's 1984 conviction for violating the "Peeping Tom" statute was harmless beyond a reasonable doubt.

B. Introduction of Appellant's Wallet into Evidence

Appellant's wallet was introduced during the guilt phase over his general objection that it had no relevance. After the verdict in the sentencing phase, appellant moved for a new trial based on prejudice arising from various items contained in the wallet, including a bond form for a driving under suspension charge in municipal court, and cigarette rolling papers. The trial court denied the motion. Appellant argues this was error.

Because a new trial motion may not be used to raise an evidentiary issue for the first time, appellant's argument is not...