State v. King

Decision Date08 March 1999
Docket NumberNo. 24916.,24916.
Citation334 S.C. 504,514 S.E.2d 578
PartiesThe STATE, Respondent, v. Russell Nelson KING, Appellant.
CourtSouth Carolina Supreme Court

John D. Delgado, of Columbia, for appellant.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, Assistant Attorneys General Lauri J. Soles and S. Creighton Waters, all of Columbia; and Solicitor Dudley Saleeby, Jr., of Florence, for respondent.

BURNETT, Justice:

Appellant appeals his convictions for murder, arson and armed robbery. We reverse.

FACTS

Appellant lived in Mullins, South Carolina with his wife and three children. Appellant's father-in-law, Billy Turbeville, moved in with appellant's family after Mr. Turbeville and his wife divorced in 1989. Mr. Turbeville had suffered a stroke in 1987 and could no longer live alone. Mr. Turbeville lived in an apartment which had been added to the King's home, and he paid the second mortgage the Kings had obtained to build the apartment.

At approximately 5:20 a.m. on the morning of March 10, 1995, appellant woke his wife when he discovered Mr. Turbeville's apartment was on fire. Because the apartment's door was locked, appellant broke a window in the door and reached through to open the door. Appellant and his wife ran into the apartment several times searching for Mr. Turbeville. The apartment was filled with smoke and they were unable to locate him. Officer Jimmy Collins testified, when he arrived, appellant was upset and said his father-in-law might be inside, but the smoke was too thick.

Once the fire department extinguished the fire and the smoke was blown from the apartment, the body of Mr. Turbeville was found on the floor beside his bed. Mr. Turbeville had been burned and beaten on the head with a blunt object such as a hammer.1 He had nine lacerations to the scalp. A pool of blood was discovered just inside the apartment door, more than nine feet from the body. Another pool of blood was discovered under Mr. Turbeville's head. The authorities seized the trousers appellant was wearing when he entered Mr. Turbeville's apartment. Examination of the trousers revealed spatters of blood on the leg and crotch. DNA analysis revealed the blood to be Mr. Turbeville's.

Gasoline-soaked newspapers and paper towels were found in the apartment. A gasoline-soaked newspaper was found in the recycling bin inside the Florida room of the King home. The Florida room is located at the back of the house facing Mr. Turbeville's apartment. Authorities seized a gas can found in the garage and another found in the back of appellant's truck.

Appellant's ex-wife, Gina Turbeville-King,2 testified her father usually went to the Huddle House restaurant at approximately 3:30 a.m. A witness testified Mr. Turbeville was at the Huddle House on the morning of March 10, 1995, and left the restaurant at approximately 4:45 a.m.

Mr. Turbeville received two checks each month totaling $2200.00. After paying his bills totaling $400.00, Mr. Turbeville kept the remaining cash in his wallet. A witness from the Huddle House testified Mr. Turbeville carried money in his front pants' pocket. No wallet or cash was found on Mr. Turbeville's body. Mrs. King testified her father's VCR was missing after the fire. Authorities never found the missing VCR or money.

Mrs. King testified, on the evening before the murder, she returned to her home at approximately 9:00 p.m. As she arrived home, she was surprised to see appellant pulling into the driveway because he was suppose to be home with the children. Later that evening, Mrs. King discovered approximately $70.00 was missing from her purse. When she confronted appellant, he first denied and then admitted taking the money. Appellant left the house around 1:00 a.m. telling his ex-wife he was going to get some money to repay her. Appellant returned home at approximately 2:00 a.m. and got into bed with his ex-wife. He again got out of bed a short while later and returned to bed around 3:00 a.m. Mrs. King next remembered appellant yelling to her about the fire. Mrs. King testified appellant had told her she was to agree that she heard someone come into their yard that night and argue with her father.3 According to Mrs. King, appellant had threatened to take the children if she did not agree with his story. Mrs. King testified she had not heard anything.

Frank Robinson, an acquaintance of appellant, testified appellant had come to his home at "around 11:00 p.m. or 12:00 a.m." the night of the murder to ask Robinson if someone had paid in advance for work appellant was to do for this person. Robinson told appellant he had not yet received the advanced payment. A few hours later, around 3:00 a.m., appellant returned to Robinson's home asking to borrow $7.00 for gasoline. Robinson told him to return later in the morning. When appellant came back between 7:00 and 8:00 a.m., he told Robinson his father-in-law "got burned last night."

ISSUES
I. Did the trial judge err in refusing to grant a new trial after a television news reporter entered the courtroom midway through the jury charge and filmed the judge, parties, and jury?
II. Did the trial judge err in allowing appellant's ex-wife to testify regarding appellant's need for money prior to the murder because this testimony served no purpose other than to impugn appellant's character and its prejudicial effect outweighed any probative value?
DISCUSSION
I.

Immediately before beginning closing arguments, the trial judge ordered the bailiff not to allow anyone "to leave or reenter [the courtroom] once the arguments begin or [during] the charge of the law." In the middle of the judge's charge to the jury, a television news reporter entered the courtroom. With the use of a video camera, the reporter filmed the proceedings until the end of the jury charge.

Appellant did not object to this situation prior to the jury's verdict. Instead, appellant raised this issue three days later in his post trial motion for a new trial. During the post trial motions' hearing, defense counsel admitted he discussed the situation with appellant and appellant's father prior to the verdict and "a conscious decision [was] made not to make a motion for a mistrial." Only after the jury returned with an unfavorable verdict did defense counsel attempt to raise this issue.

In denying the new trial motion, the trial judge found appellant had waived this claim because his objection was not timely. Further, the trial judge found the reporter's activities were in accordance with Rule 605, SCACR, and did not distract or disrupt the proceedings.

We conclude appellant waived review of this issue by failing to object prior to the jury's verdict. Rule 103(a)(1), SCRE; State v. Hicks, 330 S.C. 207, 499 S.E.2d 209 (1998) (to preserve an issue for appellate review, the objection must be timely made, which usually requires it be made at the earliest possible opportunity); see also State v. Kelly, 331 S.C. 132, 502 S.E.2d 99 (1998)

(a new trial motion may not be used to raise an evidentiary issue for the first time); McGee v. Bruce Hosp. Syst., 321 S.C. 340, 468 S.E.2d 633 (1996) (an issue may not be raised for the first time in a motion for a new trial); State v. Penland, 275 S.C. 537, 538, 273 S.E.2d 765, 767 (1981) (finding appellant waived the issue where he did not make a motion for a mistrial until after the verdict).

Defense counsel, after consultation with appellant, made a strategic trial decision not to object. Appellant and defense counsel weighed their options and, rather than moving for a mistrial, decided to take the chance appellant would be acquitted. Under these facts, appellant has no basis on which to assert error.

II.

Appellant's ex-wife, Gina Turbeville-King, testified for the State. She testified she and appellant first separated in October 1994. They reconciled in January 1995 and separated again shortly after the murder. The State, in an attempt to elicit testimony of appellant's recent drug use, asked Mrs. King if "[a]ny changes in [appellant had taken] place then that lead [sic] to that separation?" Defense counsel objected on the basis of relevance. After an in camera hearing, the trial judge sustained the objection and ruled the State could not introduce evidence of appellant's drug addiction.

The State then requested permission to elicit testimony to show appellant had a pattern of taking money from his ex-wife and staying out late to prove motive and/or to establish the context of the crimes under the res gestae theory. The prosecution indicated it would not discuss appellant's drug use. Defense counsel objected claiming these were inadmissible prior bad acts. The court overruled the objection explaining the evidence was relevant to establish appellant's need for money and the prejudicial effect of this evidence did not outweigh its probative value.4

Before the jury, the State asked Mrs. King whether any changes in appellant's conduct led to the separation. Mrs. King responded appellant had been staying out late and he would leave several times during the night.

The State then asked Mrs. King about appellant's need for money. She testified appellant had admitted taking items from their home, pawning them, then redeeming them and returning them to the home. Mrs. King also testified appellant stole cash from her purse, forged checks on her bank account, stole cash from her bank account by using her ATM card, and stopped paying his share of the bills. These incidents occurred prior to their separation in October 1994 and began to occur again after they reconciled in January 1995. Mrs. King testified their financial situation had not changed during this time.

Mrs. King then testified appellant stole $70 from her purse on the evening before the murder. According to Mrs. King, when she confronted appellant he first denied,...

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