State v. Powers, No. 24804.

• Court: South Carolina Supreme Court
• Writing for the Court: WALLER, Justice
• Citation: 331 S.C. 37,501 S.E.2d 116
• Docket Number: No. 24804.
• Decision Date: 08 June 1998
• Parties: The STATE, Respondent, v. Ted Benjamin POWERS, Appellant.

331 S.C. 37
501 S.E.2d 116

The STATE, Respondent,
v.
Ted Benjamin POWERS, Appellant

No. 24804.

Supreme Court of South Carolina.

Heard March 17, 1998.

Decided June 8, 1998.

Rehearing Denied July 6, 1998.

331 S.C. 41

Assistant Appellate Defender Robert M. Dudek, and Deputy Chief Attorney Joseph L. Savitz, both of the South Carolina Office of Appellate Defense, Columbia, for appellant

Attorney General Charles M. Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, Senior Assistant Attorney General William Edgar Salter, III, Columbia, and Solicitor Donald V. Myers, Lexington, for respondent.

WALLER, Justice:

Powers was convicted of murder, first degree burglary, and assault and battery with intent to kill (ABIK). He was respectively sentenced to death, life imprisonment and twenty years. We consolidate Powers' direct appeal with our mandatory review of his death sentence. We affirm.

FACTS

In the early morning hours of September 8, 1990, Powers, then 16 years old, broke into the home of 68 year old Yeoman Senn (Victim) and his wife Linnie. He went to their bedroom where he stabbed Victim 10 times in the chest, shoulder and arm; one of the wounds slashed Victim's aorta; he bled to death. Linnie Senn was beaten in the face and chest and suffered a broken collar bone and 6 fractured ribs. Powers stole several dollars in small change from the Senn's home.

While in custody on larceny charges in January, 1991, Powers confessed to Yeoman Senn's murder. The matter was transferred from juvenile court to general sessions court where, after a trial in February, 1996, Powers was sentenced to death.

ISSUES

1. Did the State's strike of Juror # 28 violate Batson v. Kentucky?¹

2. Did the court err in requiring Powers, for purposes of jury selection, to reveal his witness list?

331 S.C. 42

3. Does the State's delay in filing a notice of intent estop it from seeking a death sentence?

4. Should the trial court have held an in camera hearing to determine the admissibility of victim impact testimony?

5. Did the court err, at sentencing, in admitting color photographs of the victim?

6. Did the court err, at sentencing, in admitting a videotape of the crime scene?

7. Did the court err in refusing to permit defense counsel to specifically voir dire the jury as to whether it would consider Powers' age as a mitigating circumstance?

1. JUROR # 28

Powers contends the state's strike of Juror # 28 violated Batson v. Kentucky, and Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992). This issue is patently unpreserved for review.

After both sides had exercised peremptory challenges and a jury had been chosen, the trial court asked, "[w]hat is the position of the defense in regard to a Batson hearing? Do you request one or not?" Counsel for Powers specifically responded, "[w]e do not make a Batson challenge." The trial court nonetheless required the solicitor to articulate the reasons for his peremptory challenges. After the solicitor had stated the basis for his strikes, the trial court asked if the defense "wanted to put anything on the record in regard to solicitor's presentation." Defense counsel declined.

Powers' failure to raise any objection to the strike precludes review of this issue on appeal. State v. Williams, 321 S.C. 455, 469 S.E.2d 49 (1996); State v. Johnston, 327 S.C. 435, 489 S.E.2d 228 (Ct.App.1997) (failure to object to dismissal of juror in violation of Batson and Georgia v. McCollum constitutes waiver of those issues on appeal). See also People v. Baker, 211 A.D.2d 602, 621 N.Y.S.2d 615 (1995) (argument that prosecutor improperly exercised peremptory challenges to exclude homosexual prospective jurors unpreserved). Contrary to Powers' contention, the mere fact that jurors have an equal protection right to serve does not relieve him of the burden of preserving the issue for appeal. See State v.

331 S.C. 43

McWee, 322 S.C. 387, 472 S.E.2d 235 (1996); State v. Byram, 326 S.C. 107, 485 S.E.2d 360 (1997) (failure to raise constitutional issues at trial results in waiver on appeal). Accordingly, we decline to address this issue

2. WITNESS LIST

The trial court ordered "that the State and the defendant present to the Court and identify to the Court all witnesses to be called at trial so that I can qualify this jury with some degree of accuracy and pursuant to the law." Powers contends this ruling conflicts with our holdings in State v. Miller, 289 S.C. 316, 345 S.E.2d 489 (1986) and State v. Hall, 268 S.C. 524, 530, 235 S.E.2d 112, 114 (1977). We disagree.

In Miller, we held it is error to require, prior to trial, that the defendant supply the state with a list of his witnesses.² In Hall, 268 S.C. 524, 530, 235 S.E.2d 112, 114 (1977), we held a defendant is not required to announce in advance the nature of his defense. Miller and Hall are inapposite. Here, Powers was not required to reveal, as a matter of pretrial discovery, his witness list to the state, nor was he required to announce the nature of his defense. He was merely required at the outset of trial to disclose his witnesses to the court for purposes of jury selection.

It is the duty of the trial judge to see that a jury of unbiased, fair and impartial persons is impaneled. State v. Matthews, 291 S.C. 339, 353 S.E.2d 444 (1986); State v. Caldwell, 300 S.C. 494, 388 S.E.2d 816 (1990). The determination of whether a juror is qualified to serve on a death penalty case is within the sole discretion of the trial judge and is not reversible on appeal unless wholly unsupported by the evidence. State v. Plemmons, 286 S.C. 78, 332 S.E.2d 765 (1985), vacated on other grounds, 476 U.S. 1102, 106 S.Ct. 1943, 90 L.Ed.2d 353 (1986); State v. Spann, 279 S.C. 399, 308 S.E.2d 518 (1983).

331 S.C. 44

Although we have not previously addressed this issue, other courts have mandated a defendant divulge his witness list prior to voir dire of the jury. See State ex rel Hill v. Reed, 199 W.Va. 89, 483 S.E.2d 89 (1996) (lower court acted within its discretion in ordering state and petitioner to provide the court with a list of witnesses on the first day of trial prior to voir dire of jury); People v. Cangiano, 131 Misc.2d 930, 502 N.Y.S.2d 349 (1986) (disclosure of prospective witnesses is required to determine whether any prospective juror is related to or knows any one of them and may be challenged for cause,³ and disclosure immediately prior to jury selection cannot prejudice defense absent extraordinary circumstances); State v. Ussery, 106 N.C.App. 371, 416 S.E.2d 610 (1992) (no abuse of discretion in requirement that defendant divulge potential witnesses for voir dire purposes); People v. Perry, 210 Ill.App.3d 773, 155 Ill.Dec. 287, 569 N.E.2d 287 (1991); Com. v. Larsen, 452 Pa.Super. 508, 682 A.2d 783 (1996). See also Mau v. North American Asbestos Corporation, 156 Ill. App.3d 926, 109 Ill.Dec. 273, 509 N.E.2d 1112 (1987) (list of witnesses is not "work product" and statute limiting disclosure of witnesses applied only to pretrial discovery). We find the trial court acted within its discretion in requiring disclosure of Powers' witness list during jury selection

3. ESTOPPEL TO SEEK DEATH PENALTY

Powers next asserts the trial court erred in denying his motion to estop the state from seeking the death penalty where it failed to serve him with a "Notice of Intent To Seek The Death Penalty" for more than three years after his indictment. We find no estoppel.

Powers' failure to raise a speedy trial motion precludes review of this issue. State v. Burroughs, 328 S.C. 489, 492 S.E.2d 408 (1997).

In any event, the only notice requirement for the state to seek the death penalty is that the defendant be given 30 days notice prior to trial. S.C.Code Ann. § 16-3-26(A) (Cum.Supp. 1996); State v. Young, 319 S.C. 33, 459 S.E.2d 84 (1995).

331 S.C. 45

Powers claims, citing Riggins v. Nevada, 504 U.S. 127, 112 S.Ct. 1810, 118 L.Ed.2d 479 (1992), that the jury "was entitled to see the true demeanor of the defendant at the time that the crime was committed." Riggins merely held that forced medication, during trial, denies a defendant due process unless it is essential to medicate the defendant to enable him to be tried. Riggins is inapplicable.

As Powers was given the notice required by section 16-3-26, the trial court properly ruled the state was not estopped to seek the death penalty.

4. VICTIM IMPACT EVIDENCE

Powers...