State v. Rocheville

• Decision Date: 12 October 1992
• Docket Number: No. 23773,23773
• Citation: 425 S.E.2d 32,310 S.C. 20
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. David C. ROCHEVILLE, Appellant. . Heard

Page 32

425 S.E.2d 32

310 S.C. 20

The STATE, Respondent, v. David C. ROCHEVILLE, Appellant.

No. 23773.

Supreme Court of South Carolina.

Heard Oct. 12, 1992.

Decided Jan. 4, 1993.

Rehearing Denied Feb. 2, 1993.

Richard W. Vieth, Spartanburg, Sally G. Calhoun, Greenville, and South Carolina Office of Appellate Defense, Columbia, for appellant.

Attorney Gen. T. Travis Medlock, Chief Deputy Atty. Gen. Donald J. Zelenka, Asst. Attys. Gen. Harold M. Coombs, Jr. and Norman Mark Rapoport, Columbia, and Sol. Holman C. Gossett, Jr., Spartanburg, for respondent.

TOAL, Justice:

This is an appeal of a capital trial. The defendant, David Rocheville, was found guilty of armed robbery, kidnapping, and the murder of Alex Hopps and James Todd Green, two employees of Westgate Mall Cinemas. Rocheville was sentenced to life in prison for the murder of Hopps, although the jury found the aggravating circumstances that two persons were murdered pursuant to one scheme or course of conduct and that Hopps was murdered during the course of an armed robbery. Rocheville was sentenced to death for the murder of Green, the jury having found that the murder was committed during an armed robbery and a kidnapping. Rocheville appeals his convictions and sentence of death. ¹ We affirm.

FACTS

The victims were the only employees of the theater on duty the night they were murdered. Green was the assistant manager and Hopps was an usher. As the assistant manager, the only employee with the combination to the safe, Green was expected to make a nightly deposit. Hopps was expected to follow Green as a security precaution. ² Although several movies were still in progress, the box office and concession stand had closed around 10:30 p.m. Before the cashier left for the night at 10:40 p.m., she saw Rocheville in the theater lobby. Around this time, the son of the theater's manager, who was also an employee of the theater, and his girlfriend were sitting in the theater's parking lot. They saw a van pull up next to victim Green's car. As they watched, Rocheville got out of the van and appeared to be looking around inside Green's car. Rocheville returned to the van at one point and appeared to be talking to someone in the back of the van which remained parked nearby. Rocheville then rode off in the van with an unidentified driver. The manager's son went into the theater and discovered no employees present. A search revealed the body of Hopps outside the back door of the theater. He had been shot in his left temple with a medium to large caliber weapon. Additionally, approximately three thousand dollars was missing from the theater safe.

Rocheville was taken into custody early the following morning. After being advised of his rights, Rocheville led the police to the body of Green, the whereabouts of which had been unknown until that time. Green's body was found in a ditch alongside the road several miles from the theater. Green had been shot in the back of the head as he knelt in the ditch with his hands clasped.

Prior to the murders, Rocheville had sold a .44 Magnum revolver to another former employee of the theater, Richard Longworth. ³ Green's wound was consistent with that of a .44 Magnum revolver. Upon questioning, Rocheville admitted he was at the theater that night with Longworth. However, he maintained that Longworth shot Hopps while Rocheville watched the movie. He also claimed Longworth robbed the safe. Rocheville admitted searching Green's car for money but alleged it was at Longworth's direction. Rocheville also admitted he left the mall with Longworth and Green. When they stopped along the side of the road, Rocheville maintained that Longworth turned to Rocheville, handed him the gun and said "its either you or him." Rocheville then took Green out of the van and shot him in the back of the head.

ISSUES PRESENTED

Does State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991) (Toal, A.J., concurring), which abolished the doctrine of in favorem vitae review in capital cases, apply in a criminal proceeding in which the defendant was indicted before but tried after the filing of Torrence?

Did the trial judge err by refusing to charge voluntary manslaughter based on Rocheville's alleged duress?

Was the testimony of the victims' parents admitted in error as impermissible evidence of victim impact?

LAW/ANALYSIS

Application of Torrence

Rocheville raises several issues on appeal which were not raised below. In prior capital cases, we, adhering to the doctrine of in favorem vitae, reviewed the entire record for legal error. In Torrence, we abolished the doctrine and held that "a contemporaneous objection is necessary in all trials beginning after the date of this opinion to properly preserve errors for our direct appellate review." Id. at 69, 406 S.E.2d at 328. Rocheville argues that although Torrence abolished in favorem vitae prior to Rocheville's trial, the doctrine should still be applied to this case because Rocheville was indicted prior to the filing of the Torrence opinion. We adhere to Torrence and hold that the doctrine remains available only to defendants whose trials commenced before Torrence was filed.

Rocheville raises an issue for the first time on appeal that illustrates one of the reasons why this Court abolished the doctrine. Rocheville asserts that the record fails to disclose a knowing and intelligent waiver of his right to address the jury at the close of the guilt phase and to testify in the sentencing phase. Under in favorem vitae, the omission of knowing and intelligent waiver on the record mandated reversal. State v. Orr, 304 S.C. 185, 403 S.E.2d 623 (1991); State v. Reed, 293 S.C. 515, 362 S.E.2d 13 (1987). overruled on other grounds by Torrence, supra. Thus, a defendant would be encouraged to purposely refrain from raising the issue of obtaining a waiver in the record. This incentive to "sandbag" was cited by Torrence to be the primary danger associated with in favorem vitae. Torrence, 305 S.C. at 64, 406 S.E.2d at 326.

In favorem vitae review of the waiver issue would preclude this Court from analyzing whether the failure to obtain a knowing and intelligent waiver on the record was harmless error. The trial record is silent on the possibility that the defendant was, in fact, adequately informed of his rights, and did, for strategic reasons, desire to waive those rights. Review of this issue is better left to a post conviction relief proceeding where the facts surrounding the trial can be fully explored. State v. McKinney, 278 S.C. 107, 292 S.E.2d 598 (1982). ⁴ Accordingly, we do not address any issues raised on appeal which were not raised in the trial court.

Failure to Charge Voluntary Manslaughter

Rocheville maintains that the trial court erred in refusing to charge voluntary manslaughter. Although Rocheville admits duress or coercion is not a defense to murder, he maintains that duress may reduce the murder to voluntary manslaughter. Rocheville argues that "fear like passion may so cloud the mind as to eliminate malice."

First, the evidence presented in this case does not support duress. Duress requires evidence showing that "the degree of coercion [was] present, imminent, and of such a nature as to induce a well grounded apprehension of death or serious bodily harm if the act is not done." State v. Robinson, 294 S.C. 120, 363 S.E.2d 104 (1987). According to Rocheville's confession, Longworth gave the gun to Rocheville and told him it was either Rocheville or Green. When Rocheville held the loaded gun in his hand, the necessary imminent nature of the duress was removed. There was no evidence indicating Longworth had any other weapon readily available in the van although a four-inch kitchen knife and a tire knocker were found under the front seat of Longworth's Grenada car, along with a .44 Magnum revolver. Rocheville could have taken the gun given to him by Longworth and escaped safely with Green. Accordingly, no duress was present at the time of the murder of Green.

Second, duress, as Rocheville concedes, is not a defense to murder. The rationale of the defense of duress is that if the only means of avoiding greater harm is for the defendant to engage in illegal conduct resulting in a lesser harm, he should not be held criminally liable for the illegal conduct. W. McAninch & W. Fairey, The Criminal Law of South Carolina 552 (2d ed. 1989). The commission of the crime which results in a lesser harm is therefore justified. However, when the crime is the murder of an innocent person, the choice of two evils rationale is unavailing. The resulting harm, the murder of an innocent person, is at least as great as the threatened harm, the death of the defendant. Rocheville argues duress negates the element of malice and, therefore, should mitigate the punishment so that a charge of voluntary manslaughter would have been appropriate. We find for the same reason as duress is not a complete defense to murder, it cannot be used to mitigate the crime to voluntary manslaughter. Accord United States v. LaFleur, 971 F.2d 200 (9th Cir.1991); State v. Nargashian, 26 R.I. 299, 58 A. 953 (1904).

We note some states have by statute included intentional killing under duress under the definition of the crime of voluntary manslaughter. See e.g., Minn.Stat. § 609.20 (1987). Our statute defines manslaughter simply as the unlawful killing of another without malice. S.C.Code Ann. § 16-3-50 (1985). ⁵ With no further statutory definition, this Court has followed the common law definition which requires sudden heat of passion upon a sufficient legal provocation. State v. Gardner, 219 S.C. 97, 64 S.E.2d 130 (1951). Both legal provocation and heat of passion are required. State v. Tyson, 283 S.C. 375, 323 S.E.2d 770, cert. denied, 471 U.S. 1006, 105 S.Ct. 1873, 85 L.Ed.2d 165 (1985). Accordingly, duress does not mitigate murder to voluntary manslaughter under South Carolina law. Our legislature has provided, however, that duress is a...