State v. Longworth

• Decision Date: 08 June 1993
• Docket Number: No. 23943,23943
• Citation: 438 S.E.2d 219,313 S.C. 360
• Parties: The STATE, Respondent, v. Richard LONGWORTH, Appellant. . Heard
• Court: South Carolina Supreme Court

Page 219

438 S.E.2d 219

313 S.C. 360

The STATE, Respondent, v. Richard LONGWORTH, Appellant.

No. 23943.

Supreme Court of South Carolina.

Heard June 8, 1993.

Decided Oct. 25, 1993.

Rehearing Denied Jan. 5, 1994.

South Carolina Office of Appellate Defense and John H. Blume, of South Carolina Death Penalty Resource Center, Columbia, for appellant.

Attorney Gen. T. Travis Medlock, Chief Deputy Atty. Gen. Donald J. Zelenka, Sr. Asst. Atty. Gen. Harold M. Coombs, Jr., and Asst. Atty. Gen. Norman Mark Rapoport, Columbia, and Sol. Holman C. Gossett, Spartanburg, for respondent.

MOORE, Justice:

Appellant was convicted of kidnapping, armed robbery, and two counts of murder in connection with the deaths of Alex Hopps and James Todd Greene, employees of the Westgate Mall Cinema in Spartanburg. Appellant was sentenced to death for the murders and kidnapping plus twenty-five years for armed robbery. ¹ We affirm.

JURY ISSUES

Appellant moved for a change of venue based on pre-trial publicity. The State agreed appellant should not be tried by a Spartanburg County jury and consented to selection of a jury in another county pursuant to S.C.Code Ann. § 17-21-85 (Supp.1992). This statute provides in part:

A circuit judge may, in a criminal case in which he determines that an unbiased jury cannot be selected in the county in which the defendant was indicted, order that jury selection go forward in some other county and the jury, when selected, be transported to the county in which the indictment was returned for the duration of the trial.

The trial judge ruled that jury selection would be held in York County and the jury transported to Spartanburg for trial. Appellant objected to this procedure "based upon the inherent psychological pressure which jurors would face if they are essentially taken from their homes and brought to this county where everyone around them knows something about the case ... and they are the only ones who don't."

A motion for change of venue is addressed to the sound discretion of the trial judge and his ruling will not be disturbed absent an abuse thereof. State v. Caldwell, 300 S.C. 494, 388 S.E.2d 816 (1990); State v. Copeland, 278 S.C. 572, 300 S.E.2d 63 (1982). Transfer of a jury pursuant to § 17-21-85 is similar in effect to a change of venue and is subject to the same scope of review. Further, it is the defendant's burden to demonstrate actual juror prejudice as a result of pre-trial publicity. State v. Caldwell, supra.

Here, we find no abuse of discretion in the trial judge's decision to transfer a jury to Spartanburg pursuant to § 17-21-85. Appellant has failed to show the jury was tainted by any actual juror prejudice from pre-trial publicity.

Appellant further contends the trial judge failed to consider the statutory factors necessary to transfer a jury pursuant to § 17-21-85. The statute requires the trial judge consider:

all the logistical and expense elements and, consistent with the demands of justice, choose the method that results in the least expense and greatest convenience for all parties involved in the case.

In this case, fifty-eight witnesses from the Spartanburg area were noticed to testify at trial. We hold the record supports the trial judge's finding that transferring a jury was the least expensive and most convenient alternative to afford appellant a fair and impartial jury.

Appellant complains the trial judge improperly limited his voir dire of venireman Billy Poore, a retired highway patrolman. Appellant attempted to ask him whether he would "tend to give more credibility to the testimony of a police officer than you would to the defendant or a civilian witness?" Appellant also claims he would have asked the same question of venireman Keith Pruett who was the son of a retired highway patrolman.

Neither Mr. Poore nor Mr. Pruett was seated on the jury since appellant exercised two of his peremptory strikes to remove them. ² In reviewing a challenge to juror qualification, we focus on those jurors who are seated to determine whether a defendant received a fair trial. State v. Green, 301 S.C. 347, 392 S.E.2d 157 (1990). Here, appellant has failed to demonstrate any prejudice since the two veniremen he would have questioned were not seated. Moreover, there is no error in disallowing questions regarding the weight a juror would give one witness over another. State v. Davis, --- S.C. ----, 422 S.E.2d 133 (1992).

Appellant contends potential juror Linda Hall was erroneously disqualified because of her reluctance to vote for a death sentence.

In a capital case, a juror may not be excluded for his or her attitude against capital punishment unless it would render Here, Ms. Hall stated because she had a son appellant's age (twenty-two), she would find it "very difficult" to impose the death penalty on a young person. She stated she could not vote for death in this case and responded to defense counsel's further questioning as follows:

                that juror unable to return a verdict according to law.   S.C.Code Ann. § 16-3-20(E) (Supp.1992).   The standard is whether the juror's views would prevent or substantially impair the performance of his or her duties as a juror.  State v. Green, supra.   The determination whether a juror is qualified or disqualified to serve in a capital case is within the discretion of the trial judge and will not be reversed on appeal unless wholly unsupported by the evidence.  Id.;  State v. Plemmons, 286 S.C. 78, 332 S.E.2d 765 (1985).   Further, in reviewing the trial judge's qualification or disqualification of prospective jurors, the responses of a challenged juror must be examined in light of the entire voir dire.  State v. Green, supra; State v. Spann, 279 S.C. 399, 308 S.E.2d 518 (1983)
                

A. No, I'm telling you that I would have a difficult time imposing the death penalty on young men, young woman in that age range.

Q. Uh-huh. (Affirmative) Could, could you--

A. Okay.

Q. --do it if you were convinced that as the judge gave you the law and as you heard the evidence, it was the appropriate thing to do, and you agreed with the other jurors on the case?

A. You've asked me that question about four times now--

Q. Yes, ma'am.

A. --in a different way. And the answer is still no.

Q. Okay. You can't do it? Is that what you're telling me?

A. No.

We find the record supports the disqualification of Ms. Hall on the ground her views would substantially impair her performance as a juror since, contrary to her views, age is not a bar to capital punishment in this case. Because Ms. Hall could not consider imposition of a penalty allowed by law, she was properly excused.

Appellant contends veniremen Steve Penland and Kay Johnson were improperly disqualified because of their reluctance to impose a death sentence on a non-triggerman.

Ms. Johnson stated she could not vote for death no matter what the degree of the defendant's involvement. Mr. Penland stated during the course of questioning that he "probably could" consider it but then finally responded:

THE COURT: If the facts were bad enough, could you give a non-triggerman the penalty of death?

MR. PENLAND: I don't, I don't know. It's hard to say. I mean it would have to be a, a lot of, a lot of evidence I guess to make me believe it.

THE COURT: Well, of course, it would. But if it were a lot of evidence, could you give a non-trigger man a sentence of death?

MR. PENLAND: Well, really, I don't really think I could and live with it you know.

THE COURT: Yeah, no matter how much involvement he had, you couldn't do it?

MR. PENLAND: I don't think so.

We find the record of the voir dire as a whole supports the trial judge's ruling these jurors were disqualified because their views would substantially impair their performance as jurors. Major participation in the crimes committed combined with reckless indifference to human life is sufficient culpability to impose the death penalty upon a defendant liable for murder under a theory of accomplice liability. Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987). Since neither juror could consider imposition of a death sentence allowed by law, they were properly excused.

GUILT PHASE ISSUES

The murders in this case occurred on the night of January 7, 1991. An off-duty employee, David Hopkins, returned to the Westgate Mall Cinema and found no employees When Hopkins arrived at the theatre he had seen and recognized appellant's co-defendant, David Rocheville, rummaging through James Greene's car in the parking lot. ³ Greene was the other employee on duty with Alex Hopps and he was missing from the theatre. Police arrested Rocheville at 5:00 a.m. the next morning. A few hours later, Rocheville led police to the body of James Greene which was found in a shallow ditch on the side of a rural road several miles from the cinema. Appellant was arrested later that day.

                present although films were still being shown.   The body of nineteen-year-old Alex Hopps was discovered behind the theatre outside an exit door.   He had been shot at close range in the left temple
                

Appellant consented to be interviewed by police officers after waiving his rights. At the end of the interview, Chief Murray prepared the following statement from his notes:

[Longworth] stated that on January 7, 1991, he left his home at approximately four o'clock p.m. in route to meet his friend, David Rocheville, at a television repair shop where Rocheville worked. After meeting him, they both traveled to Rocheville's home in Duncan, South Carolina where Rocheville cleaned up. They left there in Longworth's mini van that is actually owned by his father in route to the Continental Cafe located in the Hillcrest Mall in Spartanburg.

They arrived there at approximately 7:30 p.m. where he, Longworth, drank approximately six beers and three kamikazes. While there, they spoke to a bartender by the name of Larry, last name unknown, who works there and knows them. After leaving the cafe, he and...