State v. Sapp, 26051.

Citation621 S.E.2d 883
Decision Date24 October 2005
Docket NumberNo. 26051.,26051.
CourtUnited States State Supreme Court of South Carolina
PartiesThe STATE, Respondent, v. Jesse Waylon SAPP, Appellant.

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

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, all of Columbia, and Solicitor Ralph E. Hoisington, of Charleston, for Respondent.

Justice WALLER:

Appellant, Jessie Waylon Sapp, was convicted of the murder of a South Carolina Highway Patrolman in Berkeley County and was sentenced to death.1 We affirm.


At approximately 2:30 a.m., on July 7, 2002, four state highway patrolmen were conducting a driver's license checkpoint in Berkeley County. A pick-up truck with a female driver and male passenger approached the checkpoint and were stopped by Patrolman Patrick Sigwald. When Sigwald noticed alcohol containers in the back of the truck, he instructed the driver, Kathryn Boles, to pull over to the right shoulder of the road. Sigwald then approached the passenger side of the truck and asked the passenger, Sapp, for the registration and insurance certificate. Sapp opened the glove box and began looking for papers. Sigwald noticed an empty beer bottle on the front floor board and asked Sapp to hand it to him. The driver of the truck (Boles) spoke up and indicated the beer had been her first one that night. Sigwald asked Boles to step to the rear of the vehicle and she complied. At that point, Corporal Jeff Johnson, the supervisor, came up and spoke to Sigwald, asking if Boles was under age twenty-one. Patrolman Sigwald handed Corporal Johnson Sapp's driver's license. Johnson took the driver's license and approached the right-hand side of the truck, toward Sapp. Sigwald heard a loud bang, and heard Johnson say, "you sorry bastard." Sigwald heard another gunshot, then several more, and saw Johnson firing shots at Sapp, who was running away. Sigwald opened fire and Sapp eventually fell to the ground, wounded.

Sigwald saw Johnson lying face down on the pavement. He turned Johnson over and opened his bullet-proof vest, and saw one bullet hole right below the vest. Johnson bled to death at the scene. Sapp was charged with murder, and the state sought the death penalty based upon the aggravating circumstances that Sapp had created a great risk of death to more than one person, and that he had murdered a state law enforcement officer. S.C.Code Ann. § 16-3-20(C)(a)(3) and (7)(2003). He was found guilty of murder, and sentenced to death. This appeal follows.


1. Did the trial court err in excusing a potential juror for cause due to her religious beliefs concerning the death penalty?

2. Did the trial court err in sustaining the state's objection to testimony of Sapp's girlfriend as to whether she would like to see Sapp put to death?


During voir dire of potential juror Kathleen McNair, the trial court explained the three types of death penalty jurors: i.e., Type 1 would always vote for death if the offense of murder were established; Type 2 would never vote for the death penalty; and Type 3 would consider the facts of the case to decide if death were appropriate. When asked which of these three types she was, McNair responded "well, as a matter of fact, I don't believe in the death penalty because of my religion." The court engaged in the following colloquy with McNair:

Q. Okay. Well, let me ask you, when you say you don't believe in it, I appreciate that and I understand that. You further stated that it's a part of your religion?

A. Yeah, that's the only thing.

Q. Okay. That's no problem. But the law of South Carolina would be and I would instruct you that the death penalty may be warranted in some cases.

A. I understand.

Q. You understand?

A. I understand that.

Q. But you're saying, as a juror you couldn't consider that law?

A. No, I couldn't just because of my belief. That's all.

Q. Your belief would prevent you?

A. It is my religion, that's it. But otherwise, you know, it should be — you know, it should be that way. But to me, I can't.

Q. You could never do that?

A. I can't decide on that because of my religion. I'm sorry but —

Q. I understand. As I said, there are no correct answers to any of these. It's merely how you feel.

(emphasis supplied). The solicitor then queried McNair as follows:

Q. Would it then be impossible if you sat on a jury for you to consider the death penalty based on your beliefs? And let me take it one step further. If you're sitting on a jury with the other 11 jurors and they all said the death penalty and you sort of believe, well, maybe the death penalty if it ever is appropriate might be appropriate here, could you sign your name on the death penalty verdict saying I'm calling for the death of the defendant?

A. Oh, this is hard.

Q. You're not required to.

A. I probably will. But because of my beliefs — what I'm telling you, I probably would because of the type of crime.

Q. You're saying you probably would call for the death penalty if you thought it was appropriate?

A. Yes, because of the crime.

Q. Okay. So depending on the circumstances of the case, you would set aside your religion?

A. Oh —

Q. Again, we're not trying to put you in a position you can't be in.

A. I understand.

Q. We're just trying to find out — because if you're on the jury and you realize you couldn't, it would be too late for you to give both sides a fair trial.

Q. So that's why we ask you up front. So tell me about it again, just tell me what your feelings are about the death penalty.

A. If I put my religion aside, if it wasn't my religion, I believe in it, I will go for the death penalty.

Q. Yes, ma'am. But do you understand you don't have to put your religion aside?

A. I understand.

Q. When you go back there, you are who you are.

A. I am who I am, uh-huh.

Q. Now, knowing you do not have to put your religion aside, would that put you in a position that you couldn't deal with by being on the jury and having to determine the death penalty?

A. I could deal with it. I know I can deal with it because I believe in God. So I could deal with it.

Q. Could you do it if you thought it were appropriate? Could you return a death penalty verdict and sign your name on a death penalty warrant?

A. If it was appropriate, yes.

Q. Appropriate is a term that you would have to make a determination after you hear the facts. Are there — have you had an opportunity to think about the death penalty other than in your — in the sense of your religion?

A. I did thought about it .... (brief colloquy with court)

Q. What religion are you?

A. I'm a Methodist.

Q. And what is the teaching of that religion regarding the death penalty?

A. Thou shall not kill.

Q. Would that affect your ability to deliberate on a jury?

At this point, counsel for Sapp objected that she had already answered the question and the court overruled the objection, finding this a critical issue. The court then queried whether Ms. McNair needed a moment. (The court reporter's note indicates the juror was crying). The trial court indicated the record was to reflect that the juror was emotionally distraught.

After discussing the matter with counsel, the trial court ruled:

Considering the answers given by Ms. McNair, observing also her demeanor in the courtroom during the examination and the questions propounded by the solicitor, which she never answered, became so emotionally distraught by the question, "Would that affect your ability to deliberate on a jury," and she never answered the question. Given her answers and her inconsistency or the inconsistency of her answers, given the feelings that she articulated to my questions and to the solicitor's questions that her religious beliefs were very sincere and deep seeded with her in her life, I would conclude that her inability to answer the question affecting her ability to deliberate and constantly apologizing is a human reaction to suggest that she couldn't consider it. And therefore, she felt inadequate because she couldn't. And that would be the only justification for somebody becoming emotionally distraught and apologizing. So given that and given her demeanor and considering the totality and completeness of her answers, I would agree that she's not qualified. And the record is clear that Mr. Sapp finds and would argue that she is qualified and has stated — clearly I don't argue with the position that she indicated at one point that, yes, she could invoke — award the death penalty. But I believe it would substantially affect her ability to consider both sentences, that is her religious belief.

Sapp asserts the trial court erred in excusing McNair for cause. We disagree. We find the record fully supports the trial court's removal of the juror.

The exclusion of venire persons simply because they voice general objections to the death penalty or express conscientious or religious scruples against its infliction is unconstitutional. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). However, a prospective juror may be excluded for cause when his views on capital punishment are such as would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). See also State v. Wood, 362 S.C. 135, 607 S.E.2d 57 (2004), cert. denied ___ U.S. ___, 125 S.Ct. 2942, 162 L.Ed.2d 873 (2005); State v. Council, 335 S.C. 1, 515 S.E.2d 508, cert. denied, 528 U.S. 1050, 120 S.Ct. 588, 145 L.Ed.2d 489 (1999); S.C.Code Ann. § 16-3-20(E) (juror may not be excused in a death penalty case unless his beliefs or attitudes against capital punishment would render him unable to return a verdict...

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