State v. Plath

Decision Date07 October 1981
Docket NumberNo. 21582,21582
Citation284 S.E.2d 221,277 S.C. 126
CourtSouth Carolina Supreme Court
PartiesThe STATE, Respondent, v. John H. PLATH and John David Arnold, Appellants.

C. Scott Graber, Ralph V. Baldwin, Jr., and Peter L. Fuge, Beaufort, and Ronald A. Hightower, Lexington, for appellants.

Atty. Gen. Daniel R. McLeod, Asst. Attys. Gen. Brian P. Gibbes and Kay G. Crowe, Columbia, and Sol. Randolph Murdaugh, Jr., Hampton, for respondent.

GREGORY, Justice:

This appeal is from sentences of death for murder and kidnapping entered against John H. Plath and John David Arnold. We affirm the convictions, set aside the sentences and remand for resentencing.


The appellants Plath and Arnold were arrested on July 7, 1978, on warrants charging them with the kidnapping and murder of Betty Gardner a/k/a Betty J. Adkins, who died on or about April 12, 1978.

During the first phase of the trial, at which Arnold and Plath were found guilty a sordid tale unfolded.

Pursuant to a grant of immunity, Cindy Sheets, Plath's girlfriend at the time of the murder, and a juvenile who was Arnold's girlfriend at the time of the murder testified against Arnold and Plath. Both Miss Sheets and the juvenile were present during the murder.

Their testimony was that Miss Sheets, the juvenile, Plath, and Arnold picked up the victim, who was hitch-hiking. At first, they left the victim at one location where she said she would attempt to catch a ride with someone else. However, testimony indicates Arnold suggested they go back and kill the victim.

Miss Gardner willingly got into the car. Arnold, Plath, Miss Sheets and the juvenile then drove her to a wooded area near a dump. When Miss Gardner told them she should be getting to work, she was told she wasn't going anywhere. Miss Gardner was forced to perform sexual acts with both Plath and Miss Sheets. She was alternately stomped, beaten with a belt, hit with a jagged bottle, stabbed with a knife and choked with a garden hose. All four persons at one time or another participated in the physical abuse of the victim. Finally, after they felt sure Miss Gardner was dead, the four left the body in a wooded area. With the help of Miss Sheets, law enforcement officials later found the body.

Plath testified, attempting to minimize his role in the crime and shift the blame to the other participants, particularly Miss Sheets. However, he never denied being at the scene of this gruesome crime.

Arnold elected not to testify.

During the second phase of the bifurcated trial, testimony was introduced in mitigation. Evidence of the deprived backgrounds of Arnold and Plath was introduced. Plath's illegitimate seven year old daughter and her grandmother testified, but the trial judge refused to charge that the daughter's existence should be considered a mitigating circumstance.

At the conclusion of the sentencing phase, the jury recommended imposition of the death penalty.

The trial judge accepted the recommendation.

After the appeal was filed, the case was remanded for a finding as to whether the indictment should be quashed because one of the grand jurors was a convicted felon. The trial judge found the presence of the convicted felon on the grand jury did not justify quashing the indictment.

1. Arnold and Plath contend the South Carolina Death Penalty Act violates Article I, Section 15 of the State Constitution prohibiting corporal punishment.

This issue was decided in State v. Allen, 266 S.C. 175, 222 S.E.2d 287 (1976). That case was vacated by the U.S. Supreme Court on other grounds. 432 U.S. 902, 97 S.Ct. 2944, 53 L.Ed.2d 1074 (1977). That case held capital punishment does not violate the constitutional prohibition against corporal punishment.

2. Arnold and Plath also challenge the composition of the grand and petit jury venires, contending over-representation of older persons and under-representation of persons 18-30 years old denied them a jury

composed of a representative cross-section of the community.

Among the circuits, there is disagreement over whether age should even be recognized as a factor in determining whether or not a jury represents a cross-section of the community.

The First Circuit has recognized age as a factor, United States v. Foxworth, 599 F.2d 1 (1st Cir. 1979); United States v. Butera, 420 F.2d 564 (1st Cir. 1970), while the Ninth and Tenth Circuits have refused to recognize age as a factor, United States v. Hamling, 481 F.2d 307 (9th Cir. 1973), aff'd., 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); United States v. Ross, 468 F.2d 1213 (9th Cir. 1972), cert. denied, 410 U.S. 989, 93 S.Ct. 1500, 36 L.Ed.2d 188 (1973); United States v. Test, 550 F.2d 577 (10th Cir. 1976), vacated and remanded, 420 U.S. 28, 95 S.Ct. 749, 42 L.Ed.2d 786 (1976).

We agree with the Ninth and Tenth Circuits that age is not a factor for the following reasons:

"The mere fact of similarity in age cannot by itself be sufficient to define a cognizable group. If it were, any jury selection system could be successfully attacked by a strategic drawing of age group lines.

"Among any age group there will be vast variations in attitudes, viewpoints and experiences. The fact that two persons are the same age does not necessarily give them a community of interest." United States v. Guzman, 337 F.Supp. 140, at 146 (S.D.N.Y.1972), aff'd 468 F.2d 1245 (2nd Cir. 1972), cert. denied, 410 U.S. 937, 93 S.Ct. 1397, 35 L.Ed.2d 602 (1973), quoted in United States v. Test, supra, at 593.

3. Arnold and Plath also argue the presence of a convicted felon on the grand jury justifies quashing of the indictment and granting of a new trial.

For the judgment of the lower court to be reversed, the error must be prejudicial. State v. Hoffman, 257 S.C. 461, 186 S.E.2d 421 (1972). While the convicted felon should not have been allowed to sit on the grand jury, his presence created no prejudice to Arnold and Plath. Thus, the trial court was within its discretion in refusing to quash the indictment and grant a new trial.

4. Arnold and Plath contend the South Carolina kidnapping statute, Section 16-3-910, Code of Laws of South Carolina (Cum.Supp.1980), is unconstitutionally vague and overbroad.

This issue is disposed of by our decision in State v. Smith, 275 S.C. 165, 268 S.E.2d 276 (1980), where the statute was held to be constitutional.

5. Arnold and Plath also contend their indictment improperly set forth the charge of statutory kidnapping and thus should be rendered void.

The indictment charged kidnapping "against the peace and dignity of the State." That was the common law designation for kidnapping. The kidnapping statute, cited supra, supersedes common law kidnapping.

However, where an offense is designated by a common-law name, whereas there is a statute specifically covering such an offense, the mere fact the common-law name was given instead of the statutory name will not invalidate the indictment. 41 Am.Jur.2d, Indictments and Information, § 105 at p. 946 (1968). As one court has noted, "we are not inclined to be controlled by fallacious precedents, technical and unwarranted distinctions enunciated in ancient decisions, and thus countenance the commission of one of the most heinous and unspeakable forms of crime." State v. Altwatter, 29 Idaho 107, 157 P. 256, at 257 (1916). See also State v. Bendickson, 62 N.D. 201, 242 N.W. 693 (1939); 121 A.L.R. 1090 (1939).

6. Arnold argues his indictment should have been quashed on the ground the State's grant of immunity to him was improperly withdrawn. The State agreed to grant Arnold immunity in return for his confession and waiver of rights provided he was not a principal.

When Miss Sheets implicated Arnold as a principal, the grant of immunity was withdrawn. Arnold argues had it not been for his confession, Miss Sheets would have never been apprehended. If she had not been apprehended, he would never have been established as a principal. Therefore, he argues, the fruit of the poisonous tree doctrine applied by analogy.

The fruit of the poisonous tree doctrine holds that where evidence would not have come to light but for the illegal actions of the police, and the evidence has been obtained by the exploitation of that illegality, the evidence must be excluded. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Even if the arrest was illegal, the fruit of the poisonous tree doctrine will not apply to a confession if it is freely and voluntarily given. State v. Funchess, 255 S.C. 385, 179 S.E.2d 25 (1971); cert. denied, 404 U.S. 915, 92 S.Ct. 236, 30 L.Ed.2d 189 (1971).

While the arrest has been the tree and the confession the fruit in prior cases, Arnold argues the confession is the tree and the incriminating testimony of Miss Sheets is the fruit.

We can find no poisonous tree.

As in State v. Goolsby, 275 S.C. 110, 268 S.E.2d 31 (1980), the State overwhelmingly met its burden of proving the waiver of rights and the confession to be voluntary.

Arnold's statement is in his own handwriting. This handwritten statement plainly grants immunity only if Arnold is not a principal. Arnold never contends in his brief the waiver and the confession were involuntary.

Finding no police misconduct, we hold the fruit of the poisonous tree doctrine to be inapplicable and the withdrawal of immunity to be proper.

7. Arnold and Plath also contend the solicitor did not comply with Section 16-3-20(B), Code of Laws of South Carolina (Cum.Supp.1980) when he provided them with his entire file on their case. Section 16-3-20(B) states, "Only such evidence in aggravation as the State has made known to the defendant in writing prior to trial shall be admissible."

In essence, Arnold and Plath say the solicitor should have sifted through the file and listed the evidence in aggravation.

There is no right of discovery in criminal cases in South Carolina, and the solicitor is not required to turn over his entire file. State...

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