State v. Kornahrens, 22618

• Decision Date: 16 September 1986
• Docket Number: No. 22618,22618
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Fred H. KORNAHRENS, III, Appellant. . Heard

Page 180

350 S.E.2d 180

290 S.C. 281

The STATE, Respondent, v. Fred H. KORNAHRENS, III, Appellant.

No. 22618.

Supreme Court of South Carolina.

Heard Sept. 16, 1986.

Decided Oct. 13, 1986.

William L. Runyon, Jr., Charleston, and S.C. Office of Appellate Defense, Columbia, for appellant.

Atty. Gen. T. Travis Medlock, Asst. Attys. Gen. Harold M. Coombs, Jr., and G. Wells Dickson, Jr., and Sp. Prosecutor, Sol. James C. Anders, Columbia, for respondent.

NESS, Chief Justice:

Appellant was convicted of three counts of murder and was sentenced to death for each of the murders. This case consolidates his direct appeal and our mandatory review of the death sentences pursuant to S.C.Code Ann. § 16-3-25 (1985). We affirm the convictions and the death sentences.

Appellant left the home of his girlfriend, Jan Tweed, sometime during the late night hours of February 8, 1985 and drove to the home of his former wife Patti. Armed with a gun and a bayonet, he waited for Patti to arrive home. Shortly after 1:00 a.m., Patti arrived in a car driven by her common-law husband, John Avant. John's 10-year old son Jason was asleep in the back seat of the car.

John parked the car in the carport adjacent to a double-wide mobile home in which Patti's father, Harry Wilkerson, lived. Patti exited the passenger door and appellant confronted her. She called to John and appellant shot her in the chest. Patti ran inside the trailer, calling to Wilkerson for help. Appellant followed Patti into the trailer, where he stabbed Wilkerson several times. Patti ran back to the carport pursued by appellant. Appellant caught up with Patti near the car and stabbed her to death.

While Patti and appellant were inside the trailer, John Avant ran across the yard into the two-story house in which he and Patti lived. He ran upstairs, retrieved a gun, and heard appellant downstairs yelling for him. Avant jumped from a second-story window and ran around the side of the house. He saw appellant drag Jason across the yard, lay the child down and crouch over him. Avant ran to a neighbor's house and called police.

Appellant spent the remainder of the night in the woods and was arrested the next morning. Two days later, the bodies of Patti Kornahrens, Harry Wilkerson and Jason Avant were discovered in a common grave approximately four miles from the scene. All three died from multiple stab wounds. Jason's hands and feet were bound with packing tape.

Guilt Phase

Appellant asserts error in the trial judge's exclusion from the jury panel of persons who express an inability to impose the death penalty. A prospective juror may be excluded for cause if his views on capital punishment would prevent or substantially impair the performance of his duties as a juror in accordance with his oath and his duty under the law. Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 341 (1985); State v. Spann, 279 S.C. 399, 308 S.E.2d 518 (1983). A defendant's right to a jury selected from a representative cross-section of the community is not compromised by the exclusion from the jury panel of persons opposed to the death penalty. Lockhart v. McCree, --- U.S. ----, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986).

Appellant argues the trial judge erred in refusing to grant a mistrial because of allegedly improper comments by the solicitor during opening statement. In addressing the jury, the solicitor stated the evidence would show the grave was "pre-dug." Appellant asserts the testimony failed to show any evidence the grave was dug prior to the murders, and the solicitor's comment was therefore misconduct warranting a mistrial.

The opening statement serves to inform the jury of the general nature of the action and the issues involved so they can better understand the evidence presented. State v. Brown, 277 S.C. 203, 284 S.E.2d 777 (1981). The solicitor is permitted in opening statement to outline the facts the state intends to prove. Highfield v. State, 246 Ga. 478, 272 S.E.2d 62 (1980). As long as the State introduces evidence to reasonably support the stated facts, there is no error. Poss v. State, 167 Ga.App. 86, 305 S.E.2d 884 (1983).

Approximately 90 minutes elapsed between Avant's telephone call to the police and the discovery of the pickup truck in which appellant transported the bodies to the gravesite. During this time, appellant removed Wilkerson's body from the trailer and loaded it onto the bed of the pickup truck. The bodies of Patti and Jason were also loaded onto the truck bed. Appellant drove four miles to the gravesite, buried the bodies, and camouflaged the grave. He hid his weapons and other items under a log nearby. He drove the pickup truck back to the scene. Police had already arrived, so he drove past the scene a short distance and abandoned the truck.

The State introduced evidence that two officers, alternating, dug a hole similar in size to the grave in approximately 45 minutes. A State witness placed appellant near the gravesite a few weeks prior to the murders. These facts, if believed by the jury, are capable of the inference that appellant would not have had time to dig the grave on the night of the murders. The solicitor's comments were within the permissible scope of opening statement, and we find no error. ¹

Appellant asserts the trial judge erred in failing to direct a verdict on the murder charges because the State failed to prove he had the mental capacity to form the intent to commit murder. He relies upon State v. Milian-Hernandez, 287 S.C. 183, 336 S.E.2d 476 (1985), in which this Court held it incumbent upon the State to introduce some evidence of a defendant's sanity when the defendant relies upon the defense of insanity and produces evidence of insanity.

Murder is the killing of any person with malice aforethought, either express or implied. S.C.Code Ann. § 16-3-10 (1985). The majority opinion in Milian-Hernandez cannot be read to expand the elements of the crime of murder. Its narrow holding applies only when the defendant relies upon the defense of insanity. In the present case, appellant stipulated throughout the trial that insanity was not an issue. We find no error.

Appellant asserts error in the trial judge's refusal to charge the jury on the lesser-included offense of voluntary manslaughter. Voluntary manslaughter is the unlawful killing of a human being in sudden heat of passion upon sufficient legal provocation. Heat of passion alone will not suffice to reduce murder to voluntary manslaughter. State v. Plemmons, 286 S.C. 78, 332 S.E.2d 765 (1985); State v. Damon, 285 S.C. 125, 328 S.E.2d 628 (1985). A charge on a lesser-included offense is proper only when the evidence is susceptible of the inference the defendant committed the lesser offense. State v. Mathis, 287 S.C. 589, 340 S.E.2d 538 (1986).

Here, appellant went to the scene in the middle of the night armed with a gun and a bayonet. He lay in wait for the victims, then surprised all three and killed them. Although there was a history of domestic strain between appellant and Patti, there was absolutely no evidence these murders were provoked. The trial judge correctly refused the charge.

Appellant also requested a charge of killing by stabbing or thrusting, S.C.Code Ann. § 16-3-40 (1985). The same set of facts may support an indictment for one of several distinct offenses. State v. King, 289 S.C. 371, 346 S.E.2d 323 (1986); State v. Bodiford, 282 S.C. 378, 318 S.E.2d 567 (1984). Appellant was indicted for capital murder, S.C.Code Ann. § 16-3-20 (1985). While the grand jury could have indicted appellant for killing by stabbing or thrusting, it did not.

The trial judge may submit to the jury only those offenses for which the defendant has properly been indicted or which are supported by the indictment. See, e.g., State v. Beachum, 288 S.C. 325, 342 S.E.2d 597 (1986). An offense is supported by an indictment only when it requires no proof beyond that which is required for conviction of the indicted offense. State v. Norton, 286 S.C. 95. 332 S.E.2d 531 (1985). The offense of killing by stabbing or thrusting requires proof of an element not required to prove the crime of murder, i.e., use of a knife or similar weapon to cause death. Since the offense of killing by stabbing or thrusting is not supported by the indictment for murder, the trial judge properly refused to submit the offense to the jury. ²

Appellant claims his counsel was ineffective in his representation at the trial level. This issue is not appropriate for review on direct appeal, and may be asserted only in proceedings under the Post-Conviction Procedure Act, S.C.Code Ann. §§ 17-27-10 through 120 (1985). State v. Carpenter, 277 S.C. 309, 286 S.E.2d 384 (1982).

Sentencing Phase

Appellant asserts error in the trial judge's failure to quash the aggravating circumstances of kidnapping and burglary because the State failed to introduce sufficient evidence of these crimes. The trial judge must submit to the jury those aggravating circumstances with which the State has noticed the defendant, if the aggravating circumstances are "supported by the evidence." S.C.Code Ann. § 16-3-20(C) (1985). See also, State v. Plath, 281 S.C. 1, 313 S.E.2d 619 (1984). We hold there was sufficient evidence to submit kidnapping and burglary to the jury.

Kidnapping occurs when one unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts or carries away any other person by any means whatsoever without authority of law. S.C.Code Ann. § 16-3-910 (1985). A kidnapping commences when one is wrongfully deprived of his freedom and continues until freedom is restored. State v. Hall, 280 S.C. 74, 310 S.E.2d 429 (1983).

While hiding behind the house, John Avant heard voices and witnessed appellant dragging Jason across the yard. Jason's body was found with his feet bound at the ankles and his hands bound behind his back with tape. A pathologist testified Jason had suffered a stab wound to his thigh, which was consistent with...