State v. Patterson

• Citation: 324 S.C. 5,482 S.E.2d 760
• Decision Date: 15 October 1996
• Docket Number: No. 24549,24549
• Parties: The STATE, Respondent, v. Raymond PATTERSON, Jr., Appellant. . Heard on
• Court: United States State Supreme Court of South Carolina

Page 760

482 S.E.2d 760

324 S.C. 5

The STATE, Respondent, v. Raymond PATTERSON, Jr., Appellant.

No. 24549.

Supreme Court of South Carolina.

Heard on Oct. 15, 1996.

Filed on Jan. 20, 1997.

Refiled Feb. 28, 1997.

Deputy Chief Attorney Joseph L. Savitz, III, of S.C. Office of Appellate Defense; John H. Blume, Teresa L. Norris, and David P. Voisin, all of Post-Conviction Defender Organization of S.C.; and John D. Delgado, Columbia, for appellant.

Attorney General Charles Molony Condon, Assistant Deputy Attorney General Donald J. Zelenka, Senior Assistant Attorney General William Edgar Salter, III, and Assistant Attorney General Robert F. Daley, Jr., Columbia; and Solicitor Donald V. Myers, Lexington, for respondent.

MOORE, Justice:

This is a death penalty case. Appellant was convicted of murder, armed robbery, assault and battery of a high and aggravated nature, and carrying a concealed weapon. The jury found armed robbery as the aggravating factor and recommended the death penalty. ¹ We affirm.

FACTS

On November 19, 1984, appellant, a nineteen-year-old black male, was riding with Dwayne Keels. They stopped for gas and while Keels pumped gas, appellant went next door to the Mid-Carolina Motor Inn. ² The murder victim was Matthew Brooks, a sixty-five-year-old white male. He and his wife were in South Carolina to attend a relative's funeral. They had checked into the motel and were getting their belongings out of their car when appellant grabbed Mrs. Brooks' purse. Mr. Brooks struggled with appellant and was shot. Appellant then hit Mrs. Brooks in the face and ran. Keels by this time had finished pumping gas and was looking for appellant. He saw appellant flagging him down and he stopped to pick him up. Appellant told Keels he had tried to steal a purse and gotten into a struggle and he thought he had shot a man.

DISCUSSION

Change of Venue/Continuance

Appellant contends the trial court erred in denying his motion for a change of venue or, in the alternative, a continuance. We disagree. A motion to change venue is addressed to the sound discretion of the trial judge and will not be disturbed on appeal absent an abuse of discretion. State v. Caldwell, 300 S.C. 494, 388 S.E.2d 816 (1990). The trial judge's refusal of a motion for continuance will also not be disturbed absent a clear abuse of discretion. State v. Tanner, 299 S.C. 459, 385 S.E.2d 832 (1989).

Appellant contends venue should have been changed because there is widespread racial prejudice in Lexington County shown by the fact that the solicitor has not sought the death penalty against any defendant accused of murdering a black person. Appellant also contends jurors in Lexington County are death prone because when the death penalty was sought, only one defendant did not receive the death penalty. These arguments are similar to the one raised in State v. Green, 301 S.C. 347, 392 S.E.2d 157 (1990). In Green, we affirmed the trial judge's denial of a motion for a change of venue made on the ground that jurors in Charleston are more likely to impose the death penalty on black defendants. We noted the statistical evidence presented did not contain details of the nature of the crimes involved or the composition of the juries. Likewise, here, appellant has not presented any evidence about the details of the crimes in these cases, the juries, or the aggravating and mitigating circumstances involved. ³

Appellant also contends prejudicial pretrial publicity required a change of venue or a continuance. We disagree. At trial, appellant specifically complained about an article which appeared in The State newspaper on the morning jury selection began. The article discussed appellant's two prior trials and their costs.

When jurors have been exposed to pretrial publicity, a denial of a change of venue is not error when the jurors are found to have the ability to set aside any impressions or opinions and render a verdict based on the evidence presented at trial. Caldwell, supra. The defendant bears the burden of showing actual prejudice. Id. When the trial judge bases his ruling upon an adequate voir dire examination of the jurors, his conclusion that the objectivity of the jury panel has not been polluted by outside influence will not be disturbed absent extraordinary circumstances. State v. Copeland, 278 S.C. 572, 300 S.E.2d 63 (1982).

In Caldwell, we held there was no abuse of discretion where eleven of the seated jurors and two alternates acknowledged awareness of media coverage but stated they could be impartial and decide the case based on evidence presented. Here, only seven jurors who actually sat on the jury stated they knew something about the case. ⁴ Here, the trial judge questioned every juror about his/her knowledge of the case. He disqualified six jurors who stated they could not be impartial knowing facts about the case. The remaining jurors stated they could be objective and put aside any knowledge they had about the case. The trial judge concluded the jurors could be objective. We find no abuse of discretion.

Appellant then claims there was inherent prejudice. In Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), the United States Supreme Court found actual prejudice when two-thirds of the seated jurors stated they had formed an opinion that the defendant was guilty even though they also stated they could be fair and impartial. Here, however, none of the seated jurors stated that they had formed an opinion about appellant's guilt. Further, the voir dire testimony and record do not reveal the kind of 'wave of public passion' that would have made a fair trial unlikely by the jury that was empaneled. Patton v. Yount, 467 U.S. 1025, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984). The trial judge stated he did not believe public passion was so strong so as to not be able to believe the jurors' responses to voir dire. We agree. We hold the trial judge did not abuse his discretion in denying appellant's motions for a change of venue or continuance.

Qualification of jurors

Appellant contends the trial judge erroneously qualified seven jurors who knew something about the case or had read The State article: Jurors Shealy; Marshall; Brown; Marcolini; Hunter; Whigham; and Tanner. Appellant also contends the trial judge erred in qualifying three jurors who had been the victims of crime: Jurors DeLeon, Marcolini, and McElveen.

Any claim that a jury was not impartial must focus on the jurors who were ultimately seated. Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988). See also State v. Tucker, --- S.C. ----, 478 S.E.2d 260 (1996). Jurors Marshall, Brown, Marcolini, Whigham, DeLeon, and McElveen were struck during jury selection. Therefore, we need not address appellant's concerns about these jurors.

Whether to qualify a prospective juror to serve in a death penalty case is a matter of discretion which is not reversible on appeal unless wholly unsupported by the evidence. Green, supra. In determining whether a trial court abused its discretion in qualifying a challenged juror, individual responses of the juror must be examined in light of the entire voir dire. Id. We have found no error in qualifying jurors who knew of a defendant's previous conviction and death sentence which were reversed on appeal when they stated they could be fair and impartial. State v. Drayton, 287 S.C. 226, 337 S.E.2d 216 (1985); State v. Atkins, 303 S.C. 214, 399 S.E.2d 760 (1990).

Juror Shealy did not read the entire article and stated she had not formed an opinion on appellant's guilt. Juror Hunter testified she read The State article. She also stated she would not be influenced by the article and could be fair and impartial and listen to the evidence in reaching a decision. Juror Tanner testified he had watched a television news story on the case. He stated he knew appellant had been tried twice before. He answered negatively when the trial judge asked him if he had made up his mind based upon the report and further he stated he could put aside what he knew.

These jurors stated they could be fair and impartial and any knowledge they had regarding the case would not influence them. Taking these jurors' responses in light of their entire voir dire, the trial judge did not err in qualifying them. Thus, we hold the trial judge did not abuse his discretion in qualifying these jurors. Green, supra, Drayton, supra; Atkins, supra.

Voir Dire Questions

Appellant contends the trial judge erred in limiting his questions on voir dire. The authority and responsibility of the trial court is to focus the scope of the voir dire examination as set forth in S.C.Code Ann. § 14-7-1020 (Supp.1995). State v. Plath, 281 S.C. 1, 313 S.E.2d 619 (1984). S.C.Code Ann. § 16-3-20(D) (Supp.1995) grants a capital defendant the right to examine jurors through counsel but does not enlarge the scope of voir dire permitted under § 14-7-1020. State v. Owens, 293 S.C. 161, 359 S.E.2d 275 (1987). The manner in which these questions are pursued and the scope of any additional voir dire are matters of trial court discretion. State v. Smart, 278 S.C. 515, 299 S.E.2d 686 (1982).

Appellant contends the trial judge erred in limiting his questions regarding racial bias. At trial, appellant sought to ask open-ended questions to uncover racial bias. The trial judge stated he would allow appellant to ask some open-ended questions about racial bias, but he would not give appellant free-rein. Appellant agreed that was a fair decision and no objection was made. Thus, this issue is not preserved for review. State v. Southerland, 316 S.C. 377, 447 S.E.2d 862 (1994) (contemporaneous objection must be made to preserve issue for review).

Appellant contends the trial judge also erroneously limited his questioning on mitigating circumstances. Appellant attempted to question Juror Marshall about his feelings on expert testimony, particularly psychologists. The solicitor objected and during a...