State v. Jones, No. 22978

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: CHANDLER; GREGORY; FINNEY; FINNEY
• Citation: 378 S.E.2d 594,298 S.C. 118
• Parties: The STATE, Respondent, v. Donald Allen JONES, Appellant. . Heard
• Decision Date: 04 April 1988
• Docket Number: No. 22978

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378 S.E.2d 594 298 S.C. 118 The STATE, Respondent,
v.
Donald Allen JONES, Appellant. No. 22978. Supreme Court of South Carolina. Heard April 4, 1988.
Decided March 6, 1989.

Page 595

[298 S.C. 119] Asst. Appellate Defender Tara Shurling Frick, of S.C. Office of Appellate Defense, Columbia, for appellant.

Atty. Gen. T. Travis Medlock, Asst. Atty. Gen. Harold M. Coombs, Jr., Columbia, and Sol. John R. Justice, Chester, for respondent.

[298 S.C. 120] CHANDLER, Justice:

Appellant Donald Allen Jones (Jones) was sentenced to death for the 1983 murder of Ned Plyler, Sr. (victim). This case consolidates his direct appeal with the sentence review mandated by S.C.Code Ann. § 16-3-25 (1985). We affirm.

FACTS

The facts and circumstances of the crime are fully set out in our prior opinion affirming Jones' convictions and death sentence. See State v. Jones, 288 S.C. 1, 340 S.E.2d 782 (1985).

After our affirmance, the United States Supreme Court vacated the judgment on authority of Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986). Jones v. South Carolina, 476 U.S. 1102, 106 S.Ct. 1943, 90 L.Ed.2d 353 (1986). Thereafter, we remanded for a new sentencing proceeding at which evidence of future adaptability to life in prison would be admitted.

From his resentencing to death Jones appeals, citing numerous trial court errors.

ISSUES

1. Did the trial judge err in failing or refusing to disqualify two prospective jurors?

2. Did the trial judge erroneously exclude a photograph of the defendant's sister?

3. Did the solicitor's argument constitute reversible error?

4. Did the trial judge err in refusing to allow retroactive sentencing under the 30 year parole eligibility provision of the 1986 Omnibus Crime Bill?

5. Did the trial judge err in his charge to the jury?

6. Is the imposition of a death sentence on a mentally retarded defendant unconstitutional?

I. JUROR QUALIFICATION

Jones alleges that two prospective jurors were improperly qualified. We disagree.

[298 S.C. 121] At voir dire juror Norman Funderburk disclosed that he knew the victim personally. Although no objection was made at trial, Jones now contends that this

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fact alone should have disqualified Funderburk.

The determination of a juror's competence is within the trial judge's sole discretion, and is not reviewable on appeal absent an abuse constituting an error of law. State v. Gaskins, 284 S.C. 105, 326 S.E.2d 132 (1985); State v. Spann, 279 S.C. 399, 308 S.E.2d 518 (1983). The mere fact that a person is a friend or acquaintance of the deceased does not render him incompetent as a juror. 50 C.J.S. Juries § 228, pp. 975-76 (1947).

It is clear from a review of the entire voir dire examination that, at most, Funderburk's friendship with the deceased was casual. It is also clear that this friendship would not prevent him from giving the defendant a fair trial. See State v. Hardee, 279 S.C. 409, 308 S.E.2d 521 (1983). Under the circumstances, the trial judge's failure to sua sponte disqualify him did not constitute an abuse of discretion.

Next, Jones objected to the qualification of Algie Barrineau on the grounds that (1) he was familiar with and agreed with the original death sentence in the case and (2) he indicated he would always impose the death sentence upon the State's proof of an aggravating circumstance.

Although Mr. Barrineau stated that he had heard about the previous trial and had agreed with the death sentence imposed, he further stated that he could put aside any opinions and would make his decision based strictly upon the evidence at trial. The record supports the conclusion that the juror could "render a just verdict based on the evidence adduced at trial, without regard to any preconceived ideas." State v. Thomas, 268 S.C. 343, 234 S.E.2d 16 (1977).

Moreover, it is clear from the entire colloquy with Mr. Barrineau that he would not automatically impose the death penalty. Where aggravating circumstances were proved, he would still consider all the evidence in reaching a decision. He was qualified to serve.

[298 S.C. 122] II. PHOTOGRAPH

Jones alleges error in the exclusion of a photograph of his sister, who died in 1979.

The admission of photographs is in the sound discretion of the trial judge. State v. Todd, 290 S.C. 212, 349 S.E.2d 339 (1986). The photograph excluded here was cumulative to other photographs showing the sister. We find no abuse of discretion.

III. SOLICITOR'S ARGUMENT

Although no objection was made, Jones contends that the solicitor's argument contained misstatements of the law relating to aggravating and mitigating circumstances. Even if the statements were incorrect, any error was rendered harmless when the trial judge correctly charged the law to the jury. State v. Patrick, 289 S.C. 301, 345 S.E.2d 481 (1986).

Jones also contends the solicitor improperly argued the deterrent effect of capital punishment. We have held such argument to be proper. State v. Yates, 280 S.C. 29, 310 S.E.2d 805 (1982). The cases relied upon by the dissent are distinguishable in that they merely prohibit the introduction of evidence on the propriety of the death penalty.

IV. RETROACTIVE APPLICATION OF 30 YEAR PAROLE ELIGIBILITY

Jones moved to be allowed to proceed under the 30 year parole eligibility provision of the Omnibus Criminal Justice Improvements Act of 1986, enacted after the crime was committed. His request that this be submitted as mitigating evidence to the jury was denied.

In State v. Matthews, 296 S.C. 379, 373 S.E.2d 587 (1988), we recently rejected the retroactive application of the stricter parole eligibility provision as mitigating evidence. Accordingly, no error was committed.

V. JURY CHARGE

Jones contends the trial judge erred in refusing to submit as a statutory mitigating circumstance that the murder was

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committed under the influence of [298 S.C. 123] mental or emotional disturbance. S.C.Code Ann. § 16-3-20(C)(b)(2) (Supp.1987). There was no evidence at trial that, at the time of the murder, Jones was under the influence of a mental or...