State v. Kelsey

Decision Date08 June 1998
Docket NumberNo. 24801.,24801.
Citation502 S.E.2d 63,331 S.C. 50
PartiesThe STATE, Respondent, v. Joseph KELSEY, Appellant.
CourtSouth Carolina Supreme Court

Senior Assistant Appellate Defender Wanda H. Haile, South Carolina 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, Senior Assistant Attorney General William Edgar Salter, III, Assistant Attorney General Robert F. Daley, Jr., Columbia; and Solicitor Donald V. Myers, Lexington, for respondent. TOAL, Acting Chief Justice:

This case involves the murder of fifteen-year-old Melanie Richey. Joseph Kelsey and Geoffrey Payne were tried together and convicted of Richey's murder. Kelsey appeals his conviction. We affirm.


In early July 1994, sixteen-year-old Kelsey was staying with his friend, seventeen-year-old Mike Kirchner in Martinez, Georgia. On Monday, July 11, 1994, Kirchner left to go to work, leaving Kelsey, seventeen-year-old Geoffrey Payne, and seventeen-year-old Jamie Lynn Lee ("Defendants") alone in the house. Defendants decided to manufacture homemade pipe bombs. They initially constructed a bomb using copper tubing and gun powder extracted from firecrackers. They detonated the bomb near a tree in Kirchner's backyard.

Defendants then decided to construct more sophisticated pipe bombs. To accomplish this, they shoplifted pipe material and shotgun shells from a nearby hardware store and Wal-Mart. Under the direction of Kelsey, they built three galvanized steel pipe bombs, one of which they detonated in Kirchner's backyard. The explosion produced a crater approximately four inches deep and one foot wide. It left bomb fragments in the side of Kirchner's house and in a nearby privacy fence. Kelsey placed the other two unexploded bombs in his travel bag inside Kirchner's house.

Later that evening, Defendants gathered at Kirchner's house for a party. In addition to Defendants, the following individuals showed up for the party: Tom Wurtzinger, April Reese, Tommy Speigel, and Joey Ingram. Everyone was drinking beer. At around midnight, Lee and Payne left the party to go to a nearby Texaco station, a popular "hang-out" area among local teens. When Lee and Payne arrived at the station, they spotted Melanie Richey standing near a telephone booth. They noticed something was wrong with her foot. In the process of sneaking out of her house to meet with a friend, Richey had severely cut her foot. Lee and Payne offered to take Richey to Kirchner's house in order to clean and bandage her injuries. Richey accepted. Lee, Payne, and Richey returned to Kirchner's house at around 1:30 a.m. Lee and Payne helped Richey bandage her foot and then all three rejoined the party. Soon thereafter, Payne and Richey went outside on Kirchner's back porch where Payne repeatedly tried to coax Richey into having sexual intercourse with him. Richey refused Payne's advances. At several points during the night, Payne expressed to Lee his frustration over Richey's intransigence. Kelsey testified that at one point he overheard Payne tell Lee that he was so mad he could kill Richey.

Payne instructed Lee to crush up a tablet of "Ecstacy," a mild hallucinogen. Payne poured the powder into a mixture of tea and water in order to hide the taste of the drug. Payne gave the drink to Richey and told her it would help calm a stomach-ache she had been complaining about earlier in the evening. Payne did not tell her that the drink was laced with Ecstacy. Kelsey testified that while this was going on, he was resting on the floor by the stereo and occasionally changing the music selection.

At around 3:30 a.m., Defendants decided to take Richey home. While Richey was waiting for Defendants outside of Kirchner's house, Payne asked Lee to get something to knock Richey out with. Lee retrieved a wrench from Kirchner's garage. Payne then suggested that Kelsey bring the unexploded pipe bombs. Kelsey complied by retrieving the bombs from his travel bag. Kelsey testified that he was unaware, at the time, of what Payne actually intended to do with the wrench and bombs.1

Defendants and Richey then got into Lee's car, ostensibly to take Richey home. Lee was driving, Kelsey was in the passenger seat, and Payne and Richey were in the backseat. Although Richey had given them directions to her house, Lee detoured in the opposite direction. Richey asked where they were going; Payne replied that they were going to drive around for a while. Lee eventually drove across the Georgia border and into South Carolina. Lee testified that the music was "obscenely" loud in the car, and he was going about 90 m.p.h.

Soon after entering South Carolina, Lee noticed his tachometer go from 4200 to 6000 r.p.m. Lee looked down at the gear shift and discovered Richey's foot had knocked the gear into neutral. Lee turned around and saw that Payne had Richey in a "strangle hold type position." Lee continued to drive. A few minutes later, Lee "heard two quick, empty thud type sounds." He again turned around and saw that Payne still had Richey in a strangle hold. Lee further testified that Payne had the wrench in his hand. Kelsey testified that he had also turned around and saw that Richey's body was limp, her face was pale, and her lips were blue.

A few moments later, Payne leaned forward to tell Lee to turn the music down. According to Lee's testimony, Payne stated, "I'm pretty sure she's knocked out, guys." Payne then instructed Lee to go to "Scary Bridge" which crossed over Stevens Creek, the boundary line between Edgefield and McCormick counties. Lee drove to the bridge where he parked the car.

Defendants got out of the car, leaving Richey in the backseat. Payne informed Lee and Kelsey that he was going to have sex with Richey. Payne took off his clothes and Richey's shorts. A few moments later, Lee warned Payne that a car was coming. Defendants quickly got back into Lee's car and began driving. After the approaching vehicle passed, Lee turned the car around and went back to the bridge. Lee testified that Richey was unconscious the entire time, and "she was definitely alive." Kelsey, on the other hand, testified that he had checked Richey's pulse, and he believed she was dead.

Lee once again drove away from the bridge. He got approximately 100 feet down the road when Payne told him to stop the car. Defendants pulled Richey out of the car and carried her into the woods and up an embankment where they placed her on the ground. Lee returned to the car. Payne and Kelsey remained by Richey's body.

Kelsey testified that while he was standing over Richey's body, Payne instructed him to place a pipe bomb into Richey's mouth. Kelsey complied. Payne then lit the fuse, and the two ran. A few seconds later, the bomb exploded. Defendants returned to Kirchner's house where they fell asleep.

Defendants were eventually arrested and charged with Richey's murder. Kelsey was arrested in Maryland and brought back to South Carolina to stand trial. Kelsey's case was transferred from family court to the Court of General Sessions where Kelsey and Payne were tried together as adults. Payne was found guilty of murder and criminal conspiracy. Kelsey was found guilty of murder, possession of a pipe bomb, and criminal conspiracy. Kelsey was sentenced to life imprisonment for murder and consecutive sentences of five years for possession of a pipe bomb and criminal conspiracy.

Kelsey appeals his conviction, raising the following issues:

(1) Did the trial court err in denying Kelsey's directed verdict motions because there was insufficient proof that Kelsey was guilty of murder and criminal conspiracy?
(2) Did the family court err in transferring jurisdiction over Kelsey's case to the Court of General Sessions?
(3) Did the trial court err in denying Kelsey's motion for a change of venue?
(4) Did the trial court err in failing to declare a mistrial when Payne's attorney pitted Kelsey's testimony against a police officer's testimony?
(5) Did the trial court err in not allowing testimony and introduction of evidence to rebut the State's innuendos that Kelsey's statement was not given in earnest?
(6) Did the trial court err in precluding Kelsey from introducing Payne's statement into evidence?
(7) Did the trial court err in not allowing Kelsey to admit evidence regarding codefendant Payne?
(8) Did the trial court err in denying Kelsey's motion for severance?
(9) Did the trial court err in denying Kelsey's motion for a mistrial when Payne's attorney cross-examined Kelsey about prior bad acts that allegedly occurred in Georgia?
(10) Did the trial court err in admitting a diagram and photographs of the crime scene into evidence?
(11) Did the trial court err in failing to give proper conspiracy and mere presence instructions?
(12) Did the trial court err in refusing to charge the jury on the law of mistake of fact?



Kelsey argues that the trial court erred in denying his directed verdict motions because there was insufficient proof that he was guilty of murder and criminal conspiracy. We disagree.

At the close of the State's case in chief, the defense moved for directed verdicts on the murder and conspiracy charges, arguing the evidence was insufficient to support these charges. The court denied the motions. The defense again moved for directed verdicts on murder and conspiracy at the end of its case. The court again denied the motions.

In reviewing the denial of a motion for a directed verdict, the evidence must be viewed in the light most favorable to the State, and if there is any direct evidence or any substantial circumstantial evidence reasonably tending to prove the guilt of the accused, an appellate court must find that the case was properly submitted to the jury. State v. Rowell, 326 S.C. 313, ...

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    ...finally placed in the jury box expressed, during voir dire, their belief that the defendant was in fact guilty. State v. Kelsey, 331 S.C. 50, 68, 502 S.E.2d 63, 72 (1998) (finding no error by denying change of venue when nine of twelve seated jurors had heard some coverage of case but told ......
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