State v. Plath, No. 22027

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: LEWIS
• Citation: 281 S.C. 1,313 S.E.2d 619
• Parties: The STATE, Respondent, v. John H. PLATH and John D. Arnold, Appellants. . Heard
• Docket Number: No. 22027
• Decision Date: 12 September 1983

Page 619

313 S.E.2d 619 281 S.C. 1 The STATE, Respondent,
v.
John H. PLATH and John D. Arnold, Appellants. No. 22027. Supreme Court of South Carolina. Heard Sept. 12, 1983.
Decided Jan. 17, 1984.

Page 621

[281 S.C. 4] David I. Bruck, Columbia; Joseph R. Barker, Hilton Head, and Peter L. Fuge, Beaufort; and Asst. Appellate Defender William Isaac Diggs, of S.C. Commission of Appellate Defense, Columbia; and Ralph V. Baldwin, Jr., and C. Scott Graber, Beaufort, for appellants.

Atty. Gen. T. Travis Medlock, Asst. Atty. Gen. Harold M. Coombs, Jr., and Sr. Asst. Atty. Gen. Brian P. Gibbes, Columbia, for respondent.

LEWIS, Chief Justice:

Upon a previous trial, appellants were convicted of murder and were sentenced to death, the jury having found that the [281 S.C. 5] murder was perpetrated while in the commission of kidnapping. See Section 16-3-20(C)(a)(1)(c), Code of Laws of South Carolina, 1976. This Court affirmed the convictions but remanded the case for retrial as to sentence. State v. Plath, 277 S.C. 126, 284 S.E.2d 221. Appellants have again been sentenced to death: Arnold, upon a jury finding of kidnapping; Plath, upon jury findings of kidnapping and assault with intent to ravish. Section 16-3-20(C)(a)(1)(b) and (c), Code. We affirm the sentences.

Appellants claim that errors arose at four points in the trial: (1) in the disqualification of certain jurors; (2) in certain evidentiary rulings by the trial court; (3) in certain conduct of the Solicitor; and (4) in the submission of aggravating circumstances to the jury. Under each of these headings multiple exceptions are presented.

(1) Disqualification of Jurors.

It is contended that three specific jurors were excused in violation of the requirements established by Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776. The first of these jurors was questioned by defense counsel concerning his ability to "consider" the death penalty. This Court has repeatedly said that the test

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of a juror's qualification under 16-3-20(E), Code, is the ability to both reach a verdict of either guilt or innocence and to, if necessary, vote for a sentence of death. The ability to merely "consider" these possibilities is not sufficient to qualify a prospective juror. State v. Tyner, 273 S.C. 646, 651, 258 S.E.2d 559, 562; State v. Goolsby, 275 S.C. 110, 116, 268 S.E.2d 31, 35; State v. Linder, 276 S.C. 304, 313, 278 S.E.2d 335, 340; State v. Hyman, 276 S.C. 559, 563, 281 S.E.2d 209, 211-212; State v. Owens, 277 S.C. 189, 192, 284 S.E.2d 584, 586; State v. Koon, 278 S.C. 528, 532, 298 S.E.2d 769, 771; State v. Copeland, 278 S.C. 572, 579, 300 S.E.2d 63, 67, cert. denied, --- U.S. ----, 103 S.Ct. 1802, 76 L.Ed.2d 367.

This same juror was in due course asked the appropriate questions by the trial court--

Question: ... Would you vote for the death penalty--

Answer: No, sir.

Question: --and write your name?

Answer: No sir, no sir.

[281 S.C. 6] We find these responses fully warranted disqualification of the juror.

The next juror was a retired official of the United States government who appeared experienced, well informed and quite capable of articulating his beliefs. He stated flatly, "Your Honor, I feel as though I could not recommend death, whatever the circumstances." He was then asked, "it's your feeling that you could never bring in the death penalty?" To this he responded, "That is correct, sir." It is significant that no objection was made to dismissal of this juror and that, in fact, counsel for defendant Plath declined to question him, stating, "we are not going to waste his time." In like manner, the third juror was excused without objection after she repeatedly and emphatically stated she could not put a defendant to death.

We take note of the acquiescence by defense counsel because the context of these disqualifications is important. In this trial over one hundred prospective jurors were interviewed, each being questioned at great length and in depth on a wide range of topics. Subsequent to this trial, our Court announced two opinions emphasizing the authority and duty of trial judges to focus the scope of voir dire upon matters enumerated in Section 14-7-1020, Code, and to eliminate excessive intrusions upon the privacy of prospective jurors. State v. Koon, 278 S.C. 528, 532, 298 S.E.2d 769, 771; State v. Smart, 278 S.C. 515, 522-523, 299 S.E.2d 686, 690-691, cert. denied --- U.S. ----, 103 S.Ct. 1784, 76 L.Ed.2d 353.

These appellants were granted leave to examine jurors far above and beyond any constitutional and statutory entitlements. We note in passing that of the twelve members of the panel which actually served in this case, five members during voir dire expressed serious reservations about capital punishment and/or a preference for life imprisonment. Two others stressed the gravity of the decision they faced and expressed a very strong desire to base the decision upon complete and convincing evidence. We are impressed by the singular fairness and impartiality of this jury panel and are satisfied that the disqualifications of which the appellants complain were proper, in accordance with law, and in no way worked to their prejudice.

[281 S.C. 7] (2) Evidentiary Rulings.

Multiple errors are claimed under this heading: (a) introduction of each appellant's criminal record; (b) refusal to admit a tape cassette offered by appellant Plath; (c) reference on cross-examination to other death penalty trials; and (d) conduct of the jury visit to the scene of the crime.

(a) Appellant Arnold offered in mitigation the testimony of Dr. Peter Neidig, a clinical psychologist, who related his assessment of the defendant based upon personal interviews. On direct examination the witness disclosed what he had learned about Arnold's juvenile offenses. On cross-examination the State continued the inquiry and brought to light Arnold's adult offenses together with the fact that he was an escapee at the time he committed

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this murder. Defense objected to the inquiry, while admitting the "door" had been "opened" to it, and was properly overruled. The State is not required to accept, without cross-examination, a partial history such as was here presented by the defendant. State v. Allen, 266 S.C. 468, 484, 224 S.E.2d 881. Dr. Neidig himself stated that he had reviewed with Arnold the entire course of his criminal career. Thus the testimony of the witness was left incomplete and fragmentary by the defendant and was only made whole through subsequent inquiry by the State. We find no abuse of discretion in the trial court's ruling on this point.

The criminal record of appellant Plath came into evidence by a different route. At the original trial of this case, appellant Plath took the witness stand during the guilt phase and on direct examination revealed his own prior criminal record. He now complains that this same information, exactly as he volunteered it, was placed before the jury in the sentencing trial presently on appeal.

One of Plath's chief witnesses in mitigation was Officer Charles Robertson of the City Police Department in York, Pennsylvania. On direct examination, Officer Robertson testified in some detail concerning Plath's criminal record, all for the purpose of explaining how he came to know the defendant and in order to then discuss Plath's subsequent religious activities. Significantly, the State did not cross-examine this witness concerning appellant's record. We are at a loss to [281 S.C. 8] understand how Plath can complain about the admission of his criminal record when the same information would have inevitably been introduced in the course of his own showing in mitigation.

This Court has given serious consideration to the complaints of both appellants because they reflect a profound misconception of the capital sentencing trial as such. Section 16-3-20(B), Code, governs original trials as to sentence: "In the sentencing proceeding, the jury or judge shall hear additional evidence in extenuation, mitigation or aggravation of the punishment." Section 16-3-25(E), Code, provides for retrial as to sentence, such as here occurred:

In the resentencing proceeding, the new jury, if the defendant does not waive the right of a trial jury for the resentencing proceeding, shall hear evidence in extenuation, mitigation or aggravation of the punishment in addition to any evidence admitted in the defendant's first trial relating to guilt for the particular crime for which the defendant has been found guilty.

Information as to a defendant's record of previous criminal convictions has always been deemed relevant to the process of imposing sentence upon a plea or verdict of guilt. So fundamental is this proposition that it requires no citation of authority, but we note in passing that the current A.B.A. Standards for Criminal Justice assume the relevance of such information in guidelines on jury trials (Standard 15-3.4) and on presentence reports (Standard 18-5.1). Appellants place a wholly misconceived reliance upon Henry v. Wainwright, 661 F.2d 56, for no claim is made that a prior criminal record constitutes an "aggravating circumstance" in South Carolina.

The position taken by appellants would lead to an inconsistent result: the defendant convicted of an aggravated murder would enjoy greater protection in the determination of his sentence than a defendant found guilty of far lesser offenses. We decline to adopt such a view and instead hold that information concerning prior criminal convictions shall be admissible as additional evidence during the sentencing or resentencing phase of a capital trial under our statute.

[281 S.C. 9] We find, therefore, that Plath's criminal record was properly admitted in accordance with our statute and the course of the previous conviction trial.

(b) Appellant Plath offered testimony of several witnesses to his jailhouse religious conversion and to his subsequent good works of Christian...