State v. Spann, 24902.

• Decision Date: 16 February 1999
• Docket Number: No. 24902.,24902.
• Citation: 513 S.E.2d 98,334 S.C. 618
• Parties: The STATE, Respondent, v. Sterling Barnett SPANN, Appellant.
• Court: South Carolina Supreme Court

334 S.C. 618

513 S.E.2d 98

The STATE, Respondent, v. Sterling Barnett SPANN, Appellant.

No. 24902.

Supreme Court of South Carolina.

Heard September 23, 1998.

Decided February 16, 1999.

Rehearing Denied March 19, 1999.

John H. Blume, of Cornell Law School, of Ithaca, New York; Diana L. Holt, of Georgia Resource Center, of Atlanta, Georgia; and Pamela A. Wilkins, of Columbia, for appellant.

Attorney General Charles M. Condon, Assistant Deputy Attorney General Donald J. Zelenka, and Assistant Attorney General Lauri J. Soles, all of Columbia, for respondent.

FINNEY, Chief Justice:

This is an appeal from the denial of a new trial motion based upon after-discovered evidence. We find the trial judge erred in finding certain expert evidence could have been discovered by the exercise of due diligence, and reverse and remand for a new trial.

Appellant was convicted of the 1981 sexual assault, robbery, and murder of Melva Neill, as well as the burglary of her home, and received a death sentence. See State v. Spann, 279 S.C. 399, 308 S.E.2d 518 (1983)

. In order to prevail in this new trial motion, appellant must show the after-discovered evidence:

(1) is such that it would probably change the result if a new trial were granted;

(2) has been discovered since the trial;

(3) could not in the exercise of due diligence have been discovered prior to the trial (4) is material; and

(5) is not merely cumulative or impeaching. State v. Prince, 316 S.C. 57, 447 S.E.2d 177 (1993).

Appellant presented both expert and lay testimony in support of his motion. The circuit court judge held the expert evidence failed the due diligence prong of the test. He denied the new trial motion as to the lay evidence, holding that some of that evidence was merely impeaching, and some was simply not credible. We reverse the order as it relates to the expert testimony and the due diligence issue. Since reversal on this ground entitles appellant to a new trial, we need not address his remaining issues.

In order to understand the after-discovered evidence, it is necessary to review certain events which occurred within a twelve mile radius in York County between July and November 1981. On July 18, 1981, the body of Mary Ring was discovered in the bathtub of her home. Ms. Ring was a heavy-set white woman, fifty-seven years old, who had been beaten about the head, sexually assaulted, and strangled to death. Her nude body was found in her partially filled tub. Approximately two months later, the nude body of eighty-one year old Melva Neill was found in the bathtub of her home. Ms. Neill had been beaten around the face and chest, had been brutally sexually assaulted, and strangled, her body then placed in the partially filled tub. Ms. Neill was a heavy-set white woman.

On November 16, 1981, the mostly nude body of Bessie Alexander was found on her dining room floor. Ms. Alexander had been injured on her face and neck, and there were bruises on other parts of her body. She too had been sexually assaulted, and then strangled. Ms. Alexander was a heavy-set white woman who, like Ms. Ring and Ms. Neill, was living alone. Ms. Alexander's bathtub was inaccessible from her home's interior, but her body had been drenched in liquids, including fruit juice.

Ms. Ring's killer was never found. Appellant was arrested for the murder of Ms. Neill on September 18, 1981, and subsequently convicted. Johnny Hullett was convicted of the crimes against Ms. Alexander, committed approximately two months after appellant was jailed. At the time of the Alexander murder, investigating officers said in a published newspaper story that they perceived no connection between the three murders. The local pathologist who performed two of the three autopsies and was present at the third did not recognize any pattern in 1981. The pathologist testified at appellant's new trial hearing that...