State v. Patterson

• Citation: 351 S.E.2d 853,290 S.C. 523
• Decision Date: 15 September 1986
• Docket Number: No. 22644,22644
• Court: United States State Supreme Court of South Carolina
• Parties: The STATE, Respondent, v. Raymond PATTERSON, Jr., Appellant. . Heard

Page 853

351 S.E.2d 853

290 S.C. 523

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

No. 22644.

Supreme Court of South Carolina.

Heard Sept. 15, 1986.

Decided Dec. 29, 1986.

John D. Delgado, of Furr & Delgado, and the South Carolina Office of Appellate Defense, Columbia, for appellant.

Attorney Gen. T. Travis Medlock, Asst. Attys. Gen. Harold M. Coombs, Jr., and Carolyn M. Adams, Columbia, and Sol. Donald V. Myers, Lexington, for respondent.

CHANDLER, Justice:

Appellant, Raymond Patterson (Patterson), was convicted of murder, armed robbery and assault and battery of a high and aggravated nature. He was sentenced to death for the murder, and to 25 and 10 years' imprisonment for the other crimes.

We affirm the convictions, reverse the sentence of death and remand for resentencing.

FACTS

Mr. and Mrs. Matthew Brooks came from West Virginia to Lexington County on November 19, 1984, to attend the funeral of Mr. Brooks' sister-in-law. After checking into the Thunderbird Motel on St. Andrews Road near Irmo, they walked to a nearby restaurant for dinner. Before returning to the motel, they walked to a grocery store to buy fruit.

While putting the fruit in the trunk of their car, Patterson approached Mrs. Brooks and demanded her purse. A struggle followed during which Mrs. Brooks' head was gashed and she was knocked to the ground. Mr. Brooks intervened and was shot at close range with a .45-caliber pistol which Patterson had stolen some two weeks previously.

There were at least three eye-witnesses to these events. Mr. Brooks died the next day at Richland Memorial Hospital.

ISSUES

1. Did the trial judge err in restricting Patterson's counsel in his voir dire of the jury?

2. Did the State exercise its peremptory strikes in a racially discriminatory manner?

3. Did the trial judge err in excusing two jurors based upon their philosophical opposition to the death penalty?

4. Did the trial judge err in refusing to admit the victim's medical report into evidence?

5. Did the trial judge err in refusing Patterson's motion for a mistrial upon the ground the State had failed to comply with a discovery request?

6. Did the trial judge err in refusing to admit into evidence at the sentencing phase a psychologist's report which expressed an opinion that Patterson could adapt to life in prison?

I. VOIR DIRE

Patterson's counsel sought to ask hypothetical questions of potential jurors on voir dire in an attempt to discover hidden biases or prejudices concerning the death penalty. The trial judge ruled the questions were improper. We agree.

S.C.Code Ann. § 16-3-20(D) (1985) grants a capital defendant the right to examine jurors through counsel. State v. Smart, 274 S.C. 303, 262 S.E.2d 911 (1980) (Smart I ). This section, however, has been held not to enlarge the scope of voir dire delineated in S.C.Code Ann. § 14-7-1020 (1976), which permits inquiry into bias or prejudice. See State v. Smart, 278 S.C. 515, 299 S.E.2d 686 (1982), cert. denied, 460 U.S. 1088, 103 S.Ct. 1784, 76 L.Ed.2d 353 (1983) (Smart II ).

In Smart II, this court held "[t]he manner in which these questions are pursued and the scope of any voir dire beyond their bounds are matters of trial court discretion." 278 S.C. at 522, 299 S.E.2d at 690.

In State v. South, 285 S.C. 529, 331 S.E.2d 775, cert. denied, --- U.S. ----, 106 S.Ct. 209, 88 L.Ed.2d 178 (1985), we expressly disapproved the use of hypothetical questions during voir dire:

South also contends the trial judge erred in refusing to permit defense counsel to ask the jurors hypothetical questions concerning the death penalty. Clearly, the questions would have been improper since the purpose of voir dire is to insure each juror can make a decision based on 285 S.C. at 533-534, 331 S.E.2d at 778.

the evidence presented, rather than hypothetical evidence.

Thus, the trial judge had the authority, as well as the duty, to disallow the hypothetical questions. Patterson's exception is without merit.

II. PEREMPTORY STRIKES

Patterson contends the State exercised a peremptory challenge in a racially discriminatory manner, thereby denying his right to a representative jury and a fair trial guaranteed by the Sixth Amendment. He essentially argues there exists a pattern of discriminatory jury selection in Lexington County.

The method used in selecting the jury required that a designated number of jurors first be chosen from the general venire. These jurors were deemed "qualified," but were subject to peremptory challenge. The State exercised a peremptory challenge against the only black juror presented for final selection from this number. Defense counsel rated this juror as highly favorable to the defense. The Solicitor stated he had placed her in the same category as a white female against whom he also exercised a peremptory strike.

This court held in State v. Hawkins, 289 S.C. 482, 347 S.E.2d 98 (1986) that the rule enunciated in Batson v. Kentucky, 476 U.S. ----, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) was not to be given retroactive effect in South Carolina. Accordingly, former law applies.

Patterson failed to make a showing under Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) that there exists in Lexington County a systematic use of peremptory challenges against blacks over a period of time. Absent such a showing, peremptory challenges may be exercised for any reason or for no reason at all. See State v. Plath, 277 S.C. 126, 284 S.E.2d 221 (1981), appeal after remand, 281 S.C. 1, 313 S.E.2d 619, cert. denied, Arnold v. South Carolina, 467 U.S. 1265, 104 S.Ct. 3560, 82 L.Ed.2d 862 (1984).

III. EXCUSING JURORS BASED UPON OPPOSITION TO DEATH PENALTY

Patterson contends the trial court erred in excusing two jurors for cause. One stated she had an absolute philosophical opposition to the death penalty. The other, while perhaps less firm in her convictions, stated she was against the death penalty and did not think she could ever recommend imposing it.

In Lockhart v. McCree, 476 U.S. ----, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986), it was held that the Federal Constitution does not prohibit the removal for cause of prospective jurors whose opposition to the death penalty is so strong that it would prevent or substantially impair the performance of their duties at the sentencing phase of trial.

Both the jurors excused for cause in this case fall within the rule in Lockhart and were properly excluded.

IV. MEDICAL RECORDS OF VICTIM

Patterson sought to admit into evidence the medical records of the victim, Mr. Brooks, compiled at Richland Memorial Hospital. He proffered them through the testimony of the hospital's custodian of records. The State objected on the ground it could not cross-examine the makers of the records.

Patterson contends the records were admissible as an exception to the hearsay rule pursuant to the Uniform Business Records as Evidence Act, S.C.Code Ann. § 19-5-510 (1976). The trial judge reviewed the records and determined they were not admissible because they contained the physician's subjective opinions, not merely factual observations.

This court has held that the admission of records under § 19-5-510 does not extend to subjective opinions or judgments included within the records. See Kershaw County Dept. of Social Services v. McCaskill, 276 S.C. 360, 278 S.E.2d 771 (1981); State v. Key, 277 S.C. 214, 284 S.E.2d 781 (1981).

Patterson's failure to include the medical records in the transcript precludes a review of the trial judge's ruling.

Patterson offered the medical records to establish that the only injury to Mr. Brooks' head was the gunshot wound. He sought to refute Mrs. Brooks' testimony that Patterson had beaten her husband about the head prior to shooting him. This evidence, however, would have been cumulative to the testimony of the pathologist who performed the autopsy. On cross-examination, he testified there was no evidence Mr. Brooks had been beaten. Accordingly, the exclusion of the records, if error, was harmless beyond a reasonable doubt.

V. DISCOVERY REQUEST

On the morning of jury selection, the State informed Patterson's counsel that it had a tape of an interview with Mrs. Brooks made within 48 hours of the shooting. Patterson moved for a dismissal, or in the alternative for a mistrial, based upon the State's failure to comply with South Carolina Criminal Practice Rule 8. Patterson contends the delayed production of this tape prevented him from effectively cross-examining Mrs. Brooks.

Rule 8(a)(2) provides:

Information Not Subject to Disclosure: Except as provided [above] this rule does not authorize the discovery or inspection of ... statements made by prosecution witnesses or prospective prosecution witnesses provided that [ (1) ] after a prosecution witness has testified on direct examination, the court shall, on motion of the defendant, order the prosecution to produce any statement of the witness in the possession of the prosecution which relates to the subject matter as to which the witness has testified; and provided further that [ (2) ] the court may upon a sufficient showing, require the production of any statement of any prospective witness prior to the time such witness testifies. (Emphasis added).

Counsel was permitted to listen to the tape before Mrs. Brooks took the stand for direct examination. By its clear terms Rule 8 was not violated. Moreover, the trial judge allowed counsel to delay cross-examination until the next day. Thereafter, Patterson introduced the tape into evidence and played it for the jury. Thus, any discrepancies between Mrs. Brooks' testimony and her tape were brought to the jury's attention and Patterson was not prejudiced by the delay.

VI. ADAPTABILITY TO PRISON LIFE

During sentencing phase the trial judge refused to permit a clinical psychologist to testify to her evaluation of Patterson relative to his future adaptability to prison life. By stipulation with the Solicitor, Patterson...