State v. McHoney

• Decision Date: 19 March 2001
• Docket Number: No. 25264.,25264.
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Spencer Leonard McHONEY, Appellant.

344 S.C. 85

544 S.E.2d 30

The STATE, Respondent, v. Spencer Leonard McHONEY, Appellant.

No. 25264.

Supreme Court of South Carolina.

Heard January 11, 2001.

Decided March 19, 2001.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, Assistant Attorney General Derrick K. McFarland, all of Columbia, and Solicitor David P. Schwacke, of North Charleston, for respondent.

Deputy Chief Attorney Joseph L. Savitz, III, of South Carolina Office of Appellate Defense, of Columbia, for appellant.

TOAL, Chief Justice:

Spencer Leonard McHoney ("McHoney") appeals his murder conviction and his life imprisonment sentence. We affirm.

FACTS/PROCEDURAL BACKGROUND

On November 15, 1995, Violet White's ("Victim") parents went to her home and found her with her throat slashed and with numerous stab wounds in her abdomen. Her parents rushed her to the hospital where Helen Nelson ("Nelson"), a nurse on duty, attended to her. Nelson testified that when the victim was removed from her parent's vehicle, the victim's head fell back "like a PEZ toy," and the width of the cut on her neck was wide enough to "lay her arm in it."

Nelson talked to the victim while the physicians were trying to stabilize her for transfer to another trauma center. Although the victim was unable to speak, she was able to nod in response to questions by Nelson. Nelson asked the victim if she knew who stabbed her, and the victim nodded yes. Nelson asked her if her family knew the attacker, and the victim again nodded her head yes. When asked if her attacker lived in her neighborhood, the victim nodded yes. However, the victim shook her head no when Nelson asked if her boyfriend was the attacker.

At the suggestion of the physician, Nelson recited the alphabet and asked the victim to nod her head when she reached the attacker's initials. When Nelson got to the letter "S", the victim nodded. Nelson began the alphabet again and when she got to the letter "P", victim nodded. Nelson asked the victim if "SP" were the initials of her attacker and she shook her head no. The victim nodded her head when Nelson asked her if she was attempting to spell her attacker's name. Nelson questioned the victim in this manner for approximately thirty to forty minutes.

When the intensive care helicopter arrived, Nelson told the victim she was going to a hospital where she would get the "best care from the best doctors." Nelson then assured the victim she would be fine. In response to Nelson's statement, the victim looked at her, shook her head no, and closed her eyes. The victim lost consciousness before the flight, and she died two weeks later without regaining consciousness.

The doctor who performed the autopsy testified the victim was stabbed seven times in her abdomen and had a four inch long incised wound across her neck. The victim died from aspirating blood as a result of her injuries.

McHoney was quickly associated with the murder. McHoney, whose first name begins with "SP", was a known crack addict the police had previously used as an informer. Another crack addict testified he saw McHoney driving the victim's car around the time of her murder. On November 17, 1995, McHoney fully confessed to police that he robbed and violently murdered the victim to get money for crack.

In January 1996, McHoney was indicted for the victim's murder. The State provided McHoney its notice of intention to seek the death penalty relying on the aggravating circumstances of criminal sexual conduct, physical torture, armed robbery, and larceny with a deadly weapon. The case proceeded to trial on April 28, 1997. In May 1997, the jury found McHoney guilty of murder accompanied by all aggravating circumstances except criminal sexual conduct. McHoney was sentenced to life imprisonment.

On July 21, 1998, McHoney's counsel filed an Anders brief that raised the following two issues:

I. Did the trial judge err by allowing into evidence, as a dying declaration, the victim's identification of "SP" as her killer?

II. Did the trial judge err by excluding evidence McHoney passed a polygraph test when questioned about the victim's death?

McHoney sent the Court a pro se brief raising the following four additional issues:

III. Did the trial judge err by denying McHoney's directed verdict motion, where the State failed to introduce any substantial evidence he was guilty of the victim's murder?

IV. Did the trial judge err by instructing the jury they could not acquit McHoney unless "[t]here is a real possibility that he is not guilty," because this instruction diluted the State's burden of proving guilt beyond a reasonable doubt?

V. Did the trial judge err by allowing the solicitor to ask a leading question of a key State's witness, which improperly bolstered the credibility of that witness?

VI. Did the trial judge err by rejecting the jury's request to visit the location where a key State's witness testified he saw McHoney driving the victim's car?

On July 17, 2000, we denied McHoney's attorney's petition to be relieved as counsel, and directed him to brief all six issues.

LAW/ANALYSIS

I. Dying Declaration

McHoney argues the trial judge erred by admitting the victim's identification of "SP" as her killer under the dying declaration exception to the hearsay rule, Rule 804(b)(2), SCRE, because there was no evidence the victim believed her death was imminent, and the victim did not die until two weeks after making the statements. We disagree.

Hearsay is not admissible unless it fits within an exception to the hearsay rule. Rule 802, SCRE. The State sought to introduce the victim's identification of "SP" as her killer under the dying declaration exception. Rule 804(b)(2), SCRE. A statement made under the belief of impending death is not excluded by the hearsay rule if the declarant is unavailable as a witness in a prosecution for homicide, the statement is made by a declarant while believing the declarant's death is imminent, and the statement concerned the causes or circumstances of what the declarant believed to be impending death. Rule 804(b)(2), SCRE; see also 29A AM.JUR.2D Evidence § 829 (Supp.2000) ("In a homicide prosecution, the dying declaration must bear on the fact of the homicide and the person by whom it was committed. Such statements must be made voluntarily and in good faith. In addition, such statement must be made under a sense of impending death.").

McHoney argues there was no evidence the victim believed her death was imminent at the time of her declaration. According to defense counsel:

If this nurse who has been taking care of me and talking to me says I am going to be fine and I am getting the best medical treatment possible, then exactly the opposite would have been understood by the declarant. So it would not qualify as a dying declaration.

The medical personnel who attended the victim assured her she would be "fine." However, the victim shook her head no in response to the assurances, indicating she was aware of her impending death.

A declarant does not have to express, in direct terms, his awareness of his condition for his statement to be admissible as a dying declaration. The necessary state of mind can be inferred from the facts and circumstances surrounding the declaration. See Louisiana v. Bell, 721 So.2d 38 (La.Ct.App. 5th Cir.1998)

; Louisiana v. Nicholson, 703 So.2d 173 (La.Ct.App. 4th Cir.1997); Louisiana v. Matthews, 679 So.2d 977 (La.Ct.App. 4th Cir.1996). Repeated questioning by the declarant concerning whether he is going to live, a less than reassuring answer, the nature of the wound, and the declarant's critical condition are circumstances that indicate the declarant's awareness of approaching death. Charles v. Texas, 955 S.W.2d 400 (Tex.Ct.App.1997).¹ In fact, a declarant can be aware of imminent death even when he is assured he will not die and will be fine. See id. at 404 (holding evidence was sufficient for trial court to infer victim believed her death was imminent where victim had severe burns all over her body, she asked if she was going to die, and the officer replied negatively to reassure her and to prevent shock).

Furthermore, the length of time the declarant lives after making the dying declaration is immaterial. The focus is on the declarant's state of mind when the statement is made, not on the eventual outcome of the declarant's injuries. See State v. Hall, 134 S.C. 361, 133 S.E. 24 (1926).² In State v. Hall, we held a dying declaration was properly admitted when the declaration was made shortly after the injury, and the declarant died 33 days later. We held it was the jury's duty to pass upon the credibility of the dying declaration, and the length of time between the declaration and death is just one factor to be considered. Id. at 361, 133 S.E. at 26.

In the instant matter, the fact the victim died two weeks after her injury does not indicate the victim did not believe her death was imminent, where she shook her head when told she would be fine, and where she never regained consciousness after she made the declaration. Therefore, we find the trial judge properly admitted the victim's identification of "SP" as her killer under Rule 804(b)(2), SCRE.

Although we find the victim's statement was a valid dying declarations, her statement also satisfies the excited utterance exception to the hearsay rule. Rule 803(2), SCRE. An excited utterance is a statement relating to a startling event or condition made while the declarant is under the stress of excitement caused by the event or condition. Rule 803(2), SCRE. "The basis for the excited utterance exception to the hearsay rule is that the perceived event produces nervous excitement, making fabrication of the statements about the event unlikely." 29A AM.JUR.2D § 865 (1994). An excited utterance expresses the real belief of the speaker because the utterance is made under the immediate and uncontrolled domination...