State v. Kelly, No. 24809.

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtBURNETT, Justice
Citation502 S.E.2d 99,331 S.C. 132
PartiesThe STATE, Respondent, v. Theodore KELLY, Appellant.
Decision Date29 June 1998
Docket NumberNo. 24809.

331 S.C. 132
502 S.E.2d 99

The STATE, Respondent,
Theodore KELLY, Appellant

No. 24809.

Supreme Court of South Carolina.

Heard May 6, 1997.

Decided June 29, 1998.

Rehearing Denied July 30, 1998.

331 S.C. 137
Assistant Appellate Defender Robert M. Pachak, of S.C. Office of Appellate Defense, Columbia, for appellant

Attorney General Charles Molony Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, Columbia; and Solicitor Holman C. Gossett, Jr., Spartanburg, for respondent.

BURNETT, Justice:

Appellant Theodore Kelly was convicted of murdering his estranged wife, Imogene Kelly (Mrs. Kelly), and her daughter's fiance, Keith Epps. Appellant was also convicted of assault and battery with intent to kill for his attack on Mrs. Kelly's daughter, Tracy Smith. Appellant was sentenced to death for the murders1 and twenty years for assault and battery with intent to kill.


This incident arose out of a domestic dispute between appellant and Mrs. Kelly. Mrs. Kelly's daughter, Tracy, testified her mother had obtained a restraining order against appellant in March of 1994. She further stated Mrs. Kelly contacted the police on June 7, 1994, at approximately 5:30 p.m. because appellant had come to her residence. However, when the police arrived, they refused to enforce the order because they determined appellant had been living in the residence after the March restraining order was issued. Therefore, the police informed Mrs. Kelly her restraining order was invalid and she would have to obtain a new order. The police did escort appellant off the premises. After another discussion later that same evening between the police, Mrs. Kelly and appellant, Mrs. Kelly agreed to place appellant's clothes in a plastic garbage bag and leave it for him on the front porch.

Tracy testified she saw appellant outside the house around 10:00 p.m. that night; however, she did not call the police

331 S.C. 138
because she thought he was there to get his clothes. Mrs. Kelly, Tracy's five-year-old son, and Mrs. Kelly's three-year-old adopted daughter went to bed around 10:00 p.m. They all slept in the same bed. Tracy and Keith were in Tracy's bedroom. Around 11:00 p.m., Keith went out to his car. Immediately after Keith left the house, Tracy heard a gunshot and then appellant ran into Tracy's bedroom. She attempted to hide in her closet; however, appellant attacked her and shot her twice. Appellant then ran out of Tracy's room and into her mother's room. Tracy heard her mother say "no Theodore" and she heard two gunshots. During this time Tracy attempted to leave the room; however, appellant returned to her room and she, again, ran to the closet. As appellant attempted to pull Tracy out of the closet, he shot at her again but missed. Appellant then returned to Mrs. Kelly's room and Tracy heard the sound of a physical assault. Tracy again attempted to leave the room; however, appellant returned and began striking her on the head with the gun. Appellant then went into the kitchen, returned with a knife, and stabbed Tracy several times. Appellant went toward the front of the house and Tracy was able to escape and run to a neighbor's house for help

Tracy's son, who was in the bedroom with Mrs. Kelly, testified the sound of a gunshot woke him and he saw appellant shoot and beat Mrs. Kelly. Tracy's son testified appellant told him to go back to sleep and he did.

Keith's body was found outside the home with a .25 caliber gunshot wound to the head. Mrs. Kelly's body, severely beaten and with two .25 caliber gunshot wounds, was found in her bedroom. Tracy suffered two gunshot and several stab wounds. Fortunately, she survived the attack. Remarkably, the two children, who were sleeping in Mrs. Kelly's bedroom, were unharmed. The gun was never found. The clothes Mrs. Kelly had left on the porch for appellant were gone.

Appellant testified after his dispute with Mrs. Kelly he went to play softball. Because he was upset, he decided not to play and rode with some men to a liquor store where he purchased and consumed a pint of liquor. Appellant then testified he went with the men to a crack house near Mrs. Kelly's residence, where he ingested some cocaine. Appellant purchased

331 S.C. 139
a .25 caliber automatic pistol from patrons of the crack house and walked to Mrs. Kelly's residence to pick up his clothes. When he arrived, Keith opened the front door and began threatening appellant. Keith and appellant fought. During the fight, Tracy and Mrs. Kelly came to the door and Mrs. Kelly threw Keith a gun and told Keith to shoot appellant. When Keith reached for the gun, appellant shot him with the.25 caliber pistol. Appellant testified he did not remember anything after that point until he was back at the crack house. A pistol clip from a .380 caliber pistol or a nine millimeter pistol was found outside Mrs. Kelly's residence. This clip could not be used in a .25 caliber pistol


I. Did the trial judge abuse his discretion in refusing to grant appellant's motion for a mistrial based on juror misconduct?
II. Did the trial judge err in denying appellant's motion for a new trial based on information obtained about one of the jurors after the conclusion of the trial?
III. Did the trial judge err in finding appellant competent to stand trial prior to the presentation of the defense case in the penalty phase of the trial?



Appellant argues the trial judge erred in refusing to grant his motion for a mistrial based on juror misconduct. We disagree.

After all the testimony had been presented, but prior to closing arguments in the penalty phase of the trial, the trial judge received a note from Juror S.2 The note indicated a religious pamphlet concerning God's view on capital punishment was being circulated in the jury room. Upon receiving the note, the trial judge questioned the jurors individually to determine who, if anyone, had read the pamphlet and what information was contained in the pamphlet.

331 S.C. 140
First, the trial judge questioned Juror S, who claimed she had only seen the outside cover of the pamphlet. According to Juror S, Juror O had brought the pamphlet into the jury room and Juror O had shared the pamphlet with Juror H and Juror A. Juror S also stated other members of the jury were reading their Bibles on an individual basis. The trial judge voir dired the jurors named by Juror S as to whether they had received or been exposed to a pamphlet. None of the jurors admitted to being exposed to any material outside of the courtroom. All the jurors confirmed they could render a fair and impartial verdict based solely on the evidence presented in the courtroom.

Because the trial judge was concerned the jurors did not understand his questions, he inquired again and specifically asked the jurors if they had read a pamphlet expressing God's view on capital punishment. Four jurors admitted to either seeing and/or reading the pamphlet. However, three of these jurors claimed they could not recall any of the contents of the pamphlet or whether it expressed a view on capital punishment. Further, these jurors stated the pamphlet had not been offered to them until that morning. These three jurors indicated their exposure to this pamphlet would not interfere with their ability to render a fair and impartial verdict. The fourth juror, Juror O, admitted the pamphlet belonged to her and that her prayer partner at church had given her this pamphlet prior to sequestration. Juror O showed the pamphlet to the trial judge and stated the pamphlet contained Biblical references on capital punishment.3 Juror O further admitted she offered this pamphlet to other jurors; however, she was unsure if any of the other jurors had actually read the pamphlet. Two other members of the jury indicated they were reading their Bibles on their own.

Appellant's counsel made a motion for a mistrial based on this pamphlet arguing the jurors had been less than truthful when initially questioned under oath, at least four jurors had been tainted by the pamphlet and, because Juror O possessed

331 S.C. 141
this pamphlet prior to the commencement of the trial, both phases of the trial were affected.4

The trial judge denied appellant's mistrial motion; however, he did dismiss Juror 0. The trial judge specifically found the pamphlet did not influence the verdict rendered in the guilt phase because the pamphlet concerned capital punishment. The trial judge further concluded no other juror had been exposed to the contents of this pamphlet and the remaining jurors indicated they could render a fair and impartial verdict based on his instructions. Therefore, the trial judge found the remaining jury members were not biased by the pamphlet.

The Sixth and Fourteenth Amendments of the United States Constitution guarantee a defendant a fair trial by a panel of impartial and indifferent jurors. Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); see also S.C. Const. art I, §§ 3 & 14. To safeguard these rights, "it is required that the jury render its verdict free from outside influences of whatever kind and nature." State v. Cameron, 311 S.C. 204, 207, 428 S.E.2d 10, 12 (Ct.App.1993).

In a criminal prosecution, the conduct of the jurors should be free from all extraneous or improper influences. Unless the misconduct affects the jury's impartiality, it is not such misconduct as will affect the verdict. The trial court has broad discretion in assessing allegations of juror misconduct. Relevant factors to be considered in determining whether

331 S.C. 142
outside influences have affected the jury are the number of jurors exposed, the weight of the evidence properly before the jury, and the likelihood that curative measures were effective in reducing the prejudice. Generally, the determination of whether extraneous material received...

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