State v. Johnson

• Decision Date: 16 May 1989
• Docket Number: No. 23489,23489
• Citation: 306 S.C. 119,410 S.E.2d 547
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Richard Charles JOHNSON, Appellant. . Heard

Page 547

410 S.E.2d 547

306 S.C. 119

The STATE, Respondent, v. Richard Charles JOHNSON, Appellant.

No. 23489.

Supreme Court of South Carolina.

Heard May 16, 1989.

Decided Oct. 7, 1991.

Rehearing Denied Nov. 14, 1991.

Stephen P. Williams and Daniel T. Stacey both of South Carolina Office of Appellate Defense, Columbia, for appellant.

Attorney Gen. T. Travis Medlock, Asst. Atty. Gen. Harold M. Coombs, Jr., Columbia, and Sol. Randolph Murdaugh, III, Hampton, for respondent.

TOAL, Justice:

Richard Charles Johnson was charged with the murder of a state highway trooper. Johnson was convicted and sentenced to death in February 1986. His conviction was reversed on appeal. State v. Johnson, 293 S.C. 321, 360 S.E.2d 317 (1987). Johnson was retried in March 1988. The jury found him guilty of murder and sentenced him to death. This appeal followed. We affirm his conviction and sentence.

FACTS

In September 1985, Dan Swanson (Swanson) was driving through North Carolina in his recreational vehicle (RV) on his way to Florida when he picked up Johnson, who was hitchhiking. The following day, Swanson and Johnson picked up hitchhikers Curtis Harbert (Harbert) and Connie Hess (Hess), alias Julie Smith, on Interstate 95. Johnson fatally shot Swanson, wrapped his body in a sheet, tied it with a stereo wire and concealed it under a mattress.

Johnson, Harbert and Hess continued their journey in Swanson's RV with Johnson driving. Johnson had been drinking liquor and began driving erratically. Several motorists noticed his reckless operation of the RV, including a truck driver who notified Trooper Smalls. The officer stopped the RV and during questioning, Johnson shot Smalls six times, killing him. This case involves the murder of Trooper Smalls only.

A. JURY SELECTION

1. Peremptory Challenges

Johnson contends that the trial court erred when it allowed the Solicitor to use his peremptory strikes to remove jurors who expressed reservations about the death penalty. We disagree.

In State v. Plath, 277 S.C. 126, 284 S.E.2d 221 (1981), this Court specifically held that peremptory challenges may be exercised for any reason and, therefore, it is not possible for the defense to know if a juror is removed because of his opposition to the death penalty. We affirm Plath and, in doing so, note that this conclusion is supported by the reasoning set forth in Justice O'Connor's concurring opinion in denying certiorari in Brown v. North Carolina, 479 U.S. 940, 107 S.Ct. 423, 93 L.Ed.2d 373 (1986).

Peremptory challenges are limited in number. Each party, the prosecutor, and the defense counsel, must balance a host of considerations in deciding which jurors should be peremptorily excused. Permitting prosecutors to take into account the concerns expressed about capital punishment by prospective jurors ... in exercising peremptory challenges simply does not implicate the concerns expressed in Witherspoon [v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) ].

Brown, 107 S.Ct. at 423-424.

B. GUILT PHASE

1. Disclosure of Immunity Agreement

The State's nondisclosure of a promise of immunity to a material witness, when reliability is outcome determinative, may be a violation of due process. State v. Hinson, 293 S.C. 406, 361 S.E.2d 120 (1987), citing Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Johnson contends that reversible error occurred when it was not disclosed that Harbert had been promised that he would not be prosecuted if he testified. Finding that there was no immunity agreement, we disagree.

Harbert was a material witness for the State. On cross-examination, he denied that any arrangement had been made concerning his agreement to testify in return for the dropping of murder charges against him. In addition, the former solicitor testified that Harbert was not prosecuted because the investigation had indicated that he was not guilty of any crime.

The court found that the former solicitor's testimony was consistent with Harbert's testimony that he had not been promised anything and that further testimony before the jury was not necessary.

We conclude that the court's ruling is fully supported by the record. The evidence indicates that no agreement was made concerning Harbert's immunity from prosecution.

2. Evidence of Other Crimes

Johnson argues that the trial court erred in allowing the State to introduce extensive evidence about Swanson's murder and robbery of his possessions on the grounds that the evidence was irrelevant and the prejudicial effect outweighed its probative value.

It is well settled that evidence of other crimes is generally inadmissible to prove the bad character of the accused to show that he acted in conformity therewith. Such evidence is admissible, however, when it tends to establish (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme or plan or (5) identity. State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923). Even if the evidence is deemed admissible, however, "evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." State v. Alexander, 303 S.C. 377, 401 S.E.2d 146, 149 (quoting Fed.R.EVID. 403). The determination of prejudicial effect of the evidence must be based on the entire record and the result will generally turn on the facts of each case. State v. Bell, 302 S.C. 18, 393 S.E.2d 364 (1990), cert. denied, --- U.S. ----, 111 S.Ct. 227, 112 L.Ed.2d 182 (1990).

During the trial, the State introduced evidence concerning Swanson's murder in an effort to establish Johnson's motive and intent to kill Trooper Smalls. The evidence included the testimony of several witnesses. Harbert testified that (1) Johnson killed Swanson, (2) they stole Swanson's jewelry, (3) they wrapped Swanson's body in a sheet and concealed it under the mattress in the RV and (4) Johnson had stated that if they were stopped, he would kill a police officer so he wouldn't find the body.

The Chief of Police of Hardeeville testified that he found Swanson's body in the RV. Mrs. Swanson also testified as to the value of her husband's possessions, including the guns, jewelry and RV.

Connie Hess was not available for this trial. Therefore, portions from her testimony during Johnson's first trial were admitted into evidence. In this testimony, Hess stated that Johnson killed Swanson, took his possessions and stated that he would kill a police officer if they were stopped.

The testimony concerning Swanson's murder and Johnson's statements about killing an officer tends to establish Johnson's motive and intent for murdering Trooper Smalls. The testimony indicated that Swanson's body was concealed in the RV. One way to prevent an officer from conducting a search and finding the body would be to kill him. Therefore, this testimony was relevant to proving the crime charged.

Upon review of the record, we find that the prejudicial effect of the evidence did not outweigh its probative value. The evidence concerning Swanson's murder was the only evidence which established Johnson's motive and intent in murdering Trooper Smalls.

We also find, however, that Mrs. Swanson's testimony concerning the value of her husband's possessions was not relevant to proving the murder of Trooper Smalls and, therefore, is not admissible. Considering the minimal amount of testimony concerning the possessions and the lack of testimony by Mrs. Swanson concerning Swanson's murder, we conclude that the admission of this testimony constituted harmless error. Cf. State v. Howard, 295 S.C. 462, 369 S.E.2d 132 (1988).

3. Instruction on Limited Use of Evidence

Johnson argues that the trial court erred when it failed to instruct the jury as to the limited use of the evidence of the Swanson murder. Johnson contends that the court should have instructed the jury that the Swanson murder could only be considered to show Johnson's motive for killing the trooper.

The general rule is that when evidence of other crimes is admitted for a specific purpose, the judge is required to instruct the jury to limit their consideration of this evidence for the particular purpose for which it is offered. See State v. Steadman, 216 S.C. 579, 59 S.E.2d 168 (1950); State v. Smalls, 260 S.C. 44, 194 S.E.2d 188 (1973); 23 C.J.S. Criminal Law, § 1032(3). The reasoning behind this rule is to protect against a jury convicting a defendant just because he has committed other crimes and not because it has been proven that he is guilty of the crime for which he is accused.

An exception to this general rule was recognized in State v. Nix, 288 S.C. 492, 343 S.E.2d 627 (Ct.App.1986). There, the Court of Appeals held that a limiting instruction is unnecessary where "evidence of the other crime is admissible on the main issue or where the evidence admitted to show motive or intent is of acts which may well be supposed to have been done in furtherance or [sic] such motive or intent." In Corpus Juris Secundum under the section discussing evidence of other wrongs it states that "[e]vidence which has a direct bearing on, or relation to the commission of, the crime itself, so as to form part of the res gestae, is admissible without limiting instructions." 23A C.J.S. Criminal Law § 1208 (1989).

In the case at bar, the evidence of Swanson's murder forms part of the res gestae. The fact that a dead body was concealed in the back of the vehicle explains why Johnson would shoot the trooper when he opened the door. Furthermore, the other crime in this case was directly related to the murder of the trooper. The crimes were not totally unrelated as in most other cases wherein such evidence is introduced. For example, in State v. Brown, 296 S.C. 191, 371 S.E.2d 523 (1988), the Court held that failure to give a limiting instruction was reversible error where the evidence presented were prior criminal convictions offered for impeachment purposes. The distinction is that Brown's prior...