State v. Neeley

• Decision Date: 18 May 1978
• Docket Number: No. 20694,20694
• Citation: 271 S.C. 33,244 S.E.2d 522
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Walter Leroy NEELEY, Appellant.

Page 522

244 S.E.2d 522

271 S.C. 33

The STATE, Respondent, v. Walter Leroy NEELEY, Appellant.

No. 20694.

Supreme Court of South Carolina.

May 18, 1978.

W. Paul Cantrell, Jr., and Chris B. Staubes, Jr., Charleston, for appellant.

Atty. Gen. Daniel R. McLeod and Asst. Atty. Gen. Brian P. Gibbes, Columbia, for respondent.

LITTLEJOHN, Justice:

The appellant, Walter Leroy Neeley, was charged with premeditated murder and accessory before and after the fact of murder in connection with the October 10, 1975 shooting death of Dennis Bellamy. Appellant was tried by a jury in May, 1976, was found guilty and was sentenced to death by electrocution, pursuant to § 16-52, Code of Laws of South Carolina, as amended (Supp.1975). He appeals his conviction and sentence, assigning error by way of twenty-six exceptions. We have restated the seven questions raised by appellant's exceptions, as follows:

1. Did the trial judge err in denying appellant's motion for a change of venue?

2. Did the trial judge commit error in the manner in which he conducted the voir dire examination?

3. Did the trial judge err in failing to instruct the jury that they were not to deliberate on the evidence until all the evidence had been received?

4. Did the trial judge err in ruling that the statements made by appellant to law enforcement officers were given freely and voluntarily in accordance with constitutional standards, and were therefore admissible into evidence?

5. Did the trial judge err in allowing evidence of other crimes committed by appellant to be introduced?

6. Did the trial judge err in admitting into evidence shoes seized from Gaskins' trailer and a gun and other items in Gaskins' possession at the time of his arrest?

7. Is Code § 16-52, as amended (Supp.1975), unconstitutional in that no discretion was given judge or jury to impose a lesser sentence than death?

The body of Dennis Bellamy was discovered in a shallow grave in a wooded area, alongside the body of Johnnie Knight, near Ropers Crossroads in the Prospect Community of Florence County. It was the State's theory that appellant and Donald Henry Gaskins lured Bellamy and Knight from North Charleston to Florence County for the purpose of killing them. The theory of the defense was that appellant brought Bellamy and Knight to Florence County because Gaskins told him to, but that he had no prior knowledge of Gaskins' plans to kill Bellamy and Knight, and did not participate in their murder. Appellant did not testify in his own defense.

Donald Gaskins was convicted of murdering Dennis Bellamy and is presently serving a sentence of life imprisonment. See State v. Gaskins, S.C., 242 S.E.2d 220 (1978).

CHANGE OF VENUE

In support of the motion for a change of venue, appellant submitted affidavits from lay citizens and local attorneys who stated that they did not believe he could receive a fair trial in Florence County, and local news items concerning the case. The trial judge denied the motion, but stated that he would reentertain the motion if he was satisfied that an impartial panel could not be obtained. After conducting extensive voir dire examination, the trial judge concluded that an impartial jury had been seated.

A change of venue is addressed to the judicial discretion of the trial judge, and his decision will not be disturbed absent a showing of an abuse of that discretion. State v. Valenti, 265 S.C. 380, 218 S.E.2d 726 (1975). Where the trial judge bases his ruling on adequate voir dire examination of the jurors, his conclusion that the objectivity of the jury panel has not been polluted with outside influence will not be disturbed absent extraordinary circumstances. State v. Fowler, 266 S.C. 203, 222 S.E.2d 497 (1976); State v. Crowe, 258 S.C. 258, 188 S.E.2d 379, cert. den., 409 U.S. 1077, 93 S.Ct. 691, 34 L.Ed.2d 666 (1972). A review of the

record fails to reveal that the trial judge abused his discretion.

CONDUCT OF VOIR DIRE EXAMINATION

Appellant assigns error in the manner in which the trial judge conducted the voir dire examination. He contends that the failure of the trial judge to ask the standard statutory questions of the entire jury venire, instead of merely directing the questions to the jurors after they had been seated, negated the use of his peremptory challenges. We see no merit to this exception. Although counsel for Neeley made a motion that the court ask certain questions of the prospective jurors during voir dire examination, the questions submitted to the judge were not made a part of the record. Additionally, no objection was raised by Neeley to the form of the voir dire examinations. We are satisfied that the trial judge asked the questions required by § 14-7-1020, 1976 Code. Having asked the statutory questions, any further examination was in the trial judge's discretion.

Appellant next assigns error in the failure of the trial judge to excuse a juror for cause based on the fact that her sister-in-law was the solicitor's secretary. There is no rule of law that a juror must be disqualified on account of his relationship to an attorney in the case. State v. Nicholson, 221 S.C. 399, 70 S.E.2d 632 (1952). This exception is without merit.

Finally, appellant contends that the trial judge erred in excusing a juror for cause based on his opposition to capital punishment. The record indicates that the juror was unequivocally opposed to capital punishment, and that he could not render a verdict of guilty, regardless of the evidence, if it would result in the imposition of the death penalty. The trial judge's decision to excuse this juror was consistent with Witherspoon v. Illinois,391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and was not erroneous. See State v. Atkinson, 253 S.C. 531, 172 S.E.2d 111 (1970); Thomas v. Leeke, 257 S.C. 491, 186 S.E.2d 516 (1970).

FAILURE TO ADMONISH JURY

Appellant argues that the trial judge erred in failing to admonish the jury that they were not to deliberate until all of the evidence had been introduced. He maintains that this omission enabled the two alternate jurors to participate in the jury deliberations, thereby denying him a fair trial. Counsel for appellant concedes that he did not object to the court's failure to give this admonition. Since this question was not presented to the lower court, it cannot now be raised for the first time on appeal. State v. White, 253 S.C. 475, 171 S.E.2d 712 (1969).

ADMISSIBILITY OF STATEMENTS

Appellant argues that the court erred by admitting into evidence three statements made by him to law enforcement officers. He contends that the statements were testimonial in nature, and were the result of custodial interrogations, so as to require the giving of the Miranda warnings, and a voluntary waiver of these rights, before they could be admissible in evidence.

The first statement was given to law enforcement officers on November 25, 1975. Detective Rufus Stoney testified that he was investigating the cases of some missing persons in North Charleston and was informed by the father of one such person that she frequently associated with persons who lived at 1807 Calvert Street. Stoney went to the house, not knowing who lived there, and appellant answered the door. After a brief conversation, Stoney asked appellant if he would mind going with him to the North Charleston Police Department. Stoney testified that he told appellant that he didn't have to go, but that they would like to ask him some questions about the missing girl. He also testified that he did not suspect appellant of having committed any crimes.

SLED agent Tom Henderson testified that when Stoney brought appellant to the police station, the three of them, along with Detective Roy Green, went into an office, and that he advised appellant of his constitutional Appellant also objected to testimony that he led officers to the Prospect grave site on the morning of December 4, 1975. Stoney testified that on the morning of December 4, 1975, he and Greene picked up appellant at his house and drove to the Williamsburg County Sheriff's Department, where they were joined by several other law enforcement officers. He testified that no promises were made to appellant in return for his cooperation. Deputy Glenn Ard testified that appellant led the officers to several areas, but nothing was discovered. He then asked appellant if he thought he could do better if just the two of them searched, and appellant said he would try it that way. Ard testified that appellant proceeded to lead him to a wooded area beside a field, where the graves were discovered. He stated that he made no promises to appellant, and that he did not pressure him or coerce him in any way. Although counsel for appellant introduced testimony of three local residents who stated that they saw Ard give appellant a drink of something out of what looked like a flask, Ard denied that anyone gave Neeley liquor or intoxicants. He further testified that appellant was not in custody at the time, and that he did not threaten, promise or influence appellant while they were in the car together.

rights. Henderson then asked appellant if he would talk to them concerning some missing persons who were possibly associated with Donald Gaskins, and appellant replied that he would be more than willing to talk with them. Henderson further testified that appellant was not in custody or under arrest at the time, and that he was at the station voluntarily and of his own free will. Appellant proceeded to give a statement which was reduced to writing, read to him, and signed. Henderson testified that it was standard procedure to advise persons they talked to of their Miranda rights, and that no force, coercion, rewards, or promises of immunity were made to him. He testified that appellant was at the station for no more than two hours, after which he was returned home.

The third statement, also admitted over appellant's objection, was given the evening of December 4,...