State v. Jones, 25242.

Citation541 S.E.2d 813,343 S.C. 562
Decision Date24 January 2001
Docket NumberNo. 25242.,25242.
PartiesThe STATE, Respondent, v. Jeffrey L. JONES, Appellant.
CourtUnited States State Supreme Court of South Carolina

Assistant Appellate Defender Robert M. Dudek, of the South Carolina Office of Appellate Defense of Columbia, for appellant.

Attorney General Charles M. Condon; Chief Deputy Attorney General John W. McIntosh; Assistant Deputy Attorney General Donald J. Zelenka; Assistant Attorney General Jeffrey A. Jacobs, all of Columbia; and Solicitor Donald V. Myers, of Lexington, for respondent.

PLEICONES, Justice:

Appellant was convicted of two counts of murder, first degree burglary, armed robbery, and criminal conspiracy. He received two death sentences for the murders,1 concurrent sentences of thirty years each on the burglary and armed robbery charges, and a concurrent five year sentence for conspiracy. Finding four errors in the guilt phase of the trial, we reverse appellant's convictions and sentences, and remand.

A. Facts

The victims were bludgeoned to death with a hammer and a piece of brick in the West Columbia home they shared. Victim John Pipkin was 63, physically handicapped, legally blind, and in poor health. The other victim, Susan Furman, was in her forties and in poor health. Money was taken from the home, most probably an amount between 700 and 1,000 dollars. No physical evidence other than a bloody boot print was found at the scene.

Appellant was employed by Pipkin as a line cook in the canteen at the Strom Thurmond Federal Building in Columbia. On Friday, February 2, 1996, appellant was angry at Pipkin because he believed that Pipkin had deducted an excessive amount from his paycheck for snacks and drinks consumed on the job. It was common knowledge among the employees that Pipkin ran a cash business, and usually took the profits home with him on Fridays.

Doris Moore called her friend Susan Furman at the home Furman shared with Pipkin at about 6:30 p.m. on Friday, February 2, 1996. While they were on the phone, the doorbell rang at the Pipkin home. Furman told Moore she was not expecting company, and that Pipkin had gone to answer the door. Moore heard a strange man's voice, followed by Furman's scream, and scuffling and knocking noises. After about twenty seconds the phone went dead. Moore called a neighbor of Furman's and Pipkin's, and asked her to check them. The neighbor called John Orr, Pipkin's stepson.

Orr went to the house to check on Pipkin and Furman. He noticed lights that were usually turned on were off, and rang the doorbell several times. When no one answered the door, Orr looked in the windows and saw Furman's body. He entered the house through the storm door, which he was surprised to find unlocked. He then saw Pipkin's body and the blood, and asked another neighbor to call 911. Orr testified that because of the condition of the house's contents, it was clear there had been a struggle.

The victims were killed by blunt trauma to the head, consistent with having been beaten with a hammer. Furman had defensive on wounds on her arms.

The State's case against appellant rested entirely on the testimony of appellant's friend, roommate, and self-confessed accomplice, James Brown. Brown testified that after he and appellant finished smoking crack late on the afternoon of February 2, appellant suggested going to Pipkin's home and robbing him. Brown was familiar with Pipkin and Furman because his girlfriend had worked at the canteen, and Brown had been a frequent visitor. Brown testified both he and appellant had been to the Pipkin home before February 2.

According to Brown, he and appellant planned the robbery in the room appellant rented in Brown's parents' house in Cayce. Brown took stockings from his mother's room for disguises, and he and appellant left on foot, headed for Pipkin's West Columbia home. Along the way, Brown and appellant ran into a friend of Brown's, Darryl Good. Good testified that he recalled meeting Brown late that afternoon, and identified appellant as the man with Brown. Good's testimony is the only evidence independent of Brown's testimony placing the two together in the vicinity of the Pipkin home on Friday, February 2.

Brown testified that as they approached the area where Pipkin lived, appellant gave him a hammer which Brown recognized as belonging to his parents. A few minutes later, appellant picked up a brick and broke it, telling Brown he was bringing it along because there were "some dogs down through there."

Brown testified he and appellant entered Pipkin's fenced yard and walked up on the front porch. Brown pointed out to appellant that Furman, visible through a window, was on the phone. Appellant knocked on the door, and Brown pulled down the stocking he had on his head. Appellant wore gray mittens. Appellant identified himself2 through the door, and when Pipkin opened it, appellant knocked him down and ran to Furman and began hitting her with the piece of brick. Brown shut the front door and sat down next to Pipkin.

According to Brown's testimony, he hit Pipkin in the head with the hammer once, then gave it to appellant. Brown held Furman's arms while appellant repeatedly hit her in the head. Brown took Furman's wallet and ransacked a back bedroom while appellant remained in the living room area, apparently hitting Pipkin with the hammer. Appellant came back to the bedroom, told Brown to take the now bloody hammer, and "mess with the lock on the back door" to give the appearance of a burglary. Meanwhile, appellant, still wearing mittens, went through Pipkin's briefcase and took the money bag.

According to Brown, he and appellant left through the back door, scaled the fence, and began walking on this rainy night, going from West Columbia across the Jarvis Klapman Boulevard bridge into Columbia. Brown testified he dropped the hammer near Pipkin's home, and that appellant put his mittens in a storm water drain. Following his arrest, Brown led police to the hammer; the mittens were never recovered.

After returning to Brown's parents' home where they changed clothes and divided the money, Brown testified he and appellant partied through the night. The next day they were smoking crack at a friend's house when someone called to say the police were surrounding Brown's parents' home. Appellant went to check on the situation, then returned to the friend's house. Appellant and Brown later went to the parents' house, and were told to leave. They walked most of the way from Columbia to Sumter that night in a snowstorm. Video tapes from two convenience stores along the Sumter Highway show appellant and Brown together in the stores on Saturday, February 3.

The police were looking for appellant based on information given them by Pipkin's stepson, John Orr. They learned appellant and Brown were often together. They located Brown in Sumter on Tuesday, February 6, and he returned with officers to Lexington. In his first statement, he denied any involvement in the crimes. He was then arrested, and gave a second statement which was largely consistent with his trial testimony. Appellant was later arrested.

Appellant raises six issues on appeal, four alleging error in the guilt phase, and two in the penalty phase.

B. Guilt Phase Issues

Appellant claims he is entitled to a new trial based on three evidentiary errors and one jury charge error. We agree. These four issues are:

(1) Whether the trial judge erred in limiting appellant's cross-examination of Brown?;
(2) Whether the trial judge erred in admitting expert testimony of the "barefoot insole impression" found inside the boot which left the bloody print at the crime scene?;
(3) Whether the trial judge erred in allowing witness Orr to testify he had given police officers appellant's name when they asked if Orr knew anyone who might harbor a grudge against victim Pipkin?; and,
(4) Whether the trial judge erred in altering the reasonable doubt charge given the jury after appellant had given his closing argument in reliance upon the original charge?
1. Impeachment

Brown had an extensive criminal record dating back to 1976, and a history of plea bargaining. His criminal record is reflected below:

INDICTMENT COUNTY CHARGE DISPOSITION 75-GS-32-613 Lexington Housebreaking YOA not to exceed 15 months and 18 months probation INDICTMENT COUNTY CHARGE DISPOSITION 76-GS-32-988 Lexington Housebreaking Nolle Prossed Larceny by because of plea on Privaly other charges Stealing 76-GS-32-989 Lexington Grand Larceny Nolle Prossed of a Vehicle because of plea on other charges 76-GS-32-990 Lexington Housebreaking Nole Prossed Larceny because of plea on other charges 76-GS-32-991 Lexington Housebreaking Nolle Prossed Larceny because of plea on other charges 76-GS-32-992 Lexington Grand Larceny 10Y of Vehicle 76-GS-32-993 Lexington Housebreaking 15Y susp to 10Y and 5Y probation 76-GS-32-994 Lexington Housebreaking Nolle Prossed Larceny by because of plea Privaly Stealing on other charges 76-GS-32-995 Lexington Housebreaking 15Y susp to 10Y Attempted and 5Y probation Larceny 76-GS-32-1009 Lexington Housebreaking 5Y Larceny by Privily Stealing 83-GS-32-335 Lexington Housebreaking 15Y susp to 5Y Larceny Consecutive to 83-335 83-GS-32-336 Lexington Housebreaking 15Y susp to 5Y Larceny Consecutive to 83-335 89-GS-40-1671 Richland Burglary 1st 15Y degree 89-GS-40-1691 Richland Carrying a Pistol Nolle Prossed because Unlawfully of plea to other charges 89-GS-40-1692 Richland Resisting Arrest Nolle Prossed because of plea to other charges

On direct examination, the State elicited Brown's prior convictions. Brown testified he faced the death penalty for his role in these crimes and that he had not been promised anything in exchange for his testimony. He acknowledged that the solicitor's office would decide after this trial whether to pursue the death penalty against him. He was asked why, with...

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