State v. Rogers, 25032.

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: TOAL, Justice
• Citation: 338 S.C. 435,527 S.E.2d 101
• Parties: The STATE, Respondent, v. Timothy D. ROGERS, Appellant.
• Docket Number: No. 25032.,25032.
• Decision Date: 24 January 2000

338 S.C. 435
527 S.E.2d 101

The STATE, Respondent,
v.
Timothy D. ROGERS, Appellant

No. 25032.

Supreme Court of South Carolina.

Heard October 21, 1998.

Decided January 24, 2000.

338 S.C. 436

Deputy Chief Attorney Joseph L. Savitz, III, of South Carolina Office of Appellate Defense, of Columbia, for appellant

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, Senior Assistant Attorney General William Edgar Salter, III, all of Columbia; and Solicitor Walter M. Bailey, Jr., of Summerville, for respondent.

ORDER

We grant the Petition for Rehearing to review our decision in State v. Rogers, Op. No. 25032 (S.C.Sup.Ct. filed Dec. 6, 1999) (Shearouse Adv. Sh. No. 37 at 63). That opinion is withdrawn and the attached opinion is substituted in its place.

/s/ Ernest A. Finney, Jr., C.J /s/ Jean H. Toal, J /s/ James E. Moore, J. /s/ John H. Waller, Jr., J. /s/ E.C. Burnett, III, J.

TOAL, Justice:

Timothy Rogers has appealed his death sentence for murder. He argues that the resentencing judge improperly denied his request for a mitigating jury charge. We disagree and affirm.

FACTUAL/PROCEDURAL BACKGROUND

There are different versions of the factual events leading up to Timothy Rogers's shooting of Stephanie Burditt. These

338 S.C. 437

accounts, and the history of this case, can be found in our decision State v. Rogers, 320 S.C. 520, 466 S.E.2d 360 (1996).

On November 25, 1992, Rogers shot and killed nine-year-old Stephanie Burditt. A jury found Rogers guilty of murder. On appeal, this Court affirmed Rogers's murder conviction, but reversed his death sentence and remanded for resentencing due to jury instruction errors made during the sentencing phase.¹ At Rogers's resentencing, the State again sought the death penalty based on the following aggravating circumstances: (1) Rogers, by his act of murder, knowingly created a great risk of death to more than one person in a public place by means of a weapon or device which normally would be hazardous to the lives of more than one person; and (2) Rogers killed a child under the age of eleven-years-old. See S.C.Code Ann. § 16-3-20(C)(a) (Supp.1998). The jury returned a unanimous finding that Rogers had killed a child under the age of eleven and recommended death. The judge imposed the sentence of death.

Prior to his murder conviction, Rogers's criminal record included:

(1) November 1985: Trespassing After Notice;

(2) July 1986: Carrying a Pistol;

(3) April 1987: Possession of Marijuana;

(4) July 1987: Shoplifting;

(5) March 1988: Resisting Arrest;

(6) December 1988: Grand Larceny of a Vehicle;

(7) September 1990: Possession of Cocaine;

(8) August 1992: Criminal Sexual Conduct with a Minor;

(9) September 1992: Criminal Sexual Conduct with a Minor.

Tonya Bickham, a witness to the killing of Stephanie Burditt, had been Rogers's girlfriend before his arrest and conviction

338 S.C. 438

for murder. At the time, Ms. Bickham was only fifteen-yearsold and Rogers's two CSC convictions are a result of their relationship. Ms. Bickham is also the mother to one of Rogers's five children and was pregnant with this child at the time of the murder. The only evidence produced at trial shows that their sexual relationship was mutually desired.

During Rogers's resentencing, defense counsel requested the judge to give the statutory mitigating charge as set out in S.C.Code Ann. § 16-3-20(C)(b)(1) (Supp.1998). The judge refused because he believed Rogers's previous convictions of CSC second prevented giving the charge. The issue before this Court is whether the judge erred by refusing to instruct the jury, under S.C.Code Ann. § 16-3-20(C)(b)(1), to consider that Rogers had "no significant history of prior criminal conviction involving the use of violence against another person."

LAW/ANALYSIS

Pursuant to S.C.Code Ann. § 16-3-20(C) (Supp. 1998), the trial judge must submit for the jury's consideration any statutory mitigating circumstances supported by the evidence. State v. Victor, 300 S.C. 220, 224, 387 S.E.2d 248, 250 (1989). Once the trial judge has made an initial determination of which statutory mitigating circumstances are supported by the evidence, the defendant shall be given an opportunity on...