State v. Tucker

• Decision Date: 17 September 1996
• Docket Number: No. 24517,24517
• Citation: 478 S.E.2d 260,324 S.C. 155
• Parties: The STATE, Respondent, v. James Neil TUCKER, Appellant. . Heard
• Court: South Carolina Supreme Court

Page 260

478 S.E.2d 260

324 S.C. 155

The STATE, Respondent, v. James Neil TUCKER, Appellant.

No. 24517.

Supreme Court of South Carolina.

Heard Sept. 17, 1996.

Decided Nov. 4, 1996.

Rehearing Denied Dec. 5, 1996.

Wanda H. Haile, South Carolina Office of Appellate Defense, Columbia, for appellant.

Charles Molony Condon, Attorney General, Donald J. Zelenka, Assistant Deputy Attorney General, Columbia, and Wade S. Kolb, Jr., Solicitor, Third Judicial Circuit, Sumter, for respondent.

WALLER, Justice:

Appellant James Neil Tucker appeals his convictions of murder, kidnapping, armed robbery, possession of a weapon during a crime, first degree burglary (two counts), third degree burglary, and larceny. He was sentenced to death for the murder. This appeal consolidates his direct appeal with the mandatory review provisions of S.C.Code Ann. § 16-3-25(C) (1985). We affirm.

FACTS

On June 25, 1992, Rosa Lee Dolly Oakley ("Victim") was in her yard when Appellant pulled his car into her driveway. He talked to Victim long enough to make sure she was alone, then pulled out a gun and forced her into the house and her bedroom. He was preparing to tape Victim up when Joe Black rang the doorbell. Black and James Howard (outside in the car) were looking for Victim's husband. Both appellant and Victim went out into the driveway after Black. Victim began screaming, "Don't leave me, he's going to kill me," holding on to Black's arm as he sat in Howard's car. Howard panicked and left. Appellant pulled Victim away from the retreating car, dragged her back into the house, took fourteen dollars from her purse, and shot her twice in the head at close range. He testified he shot her the first time when she tried to grab the gun. As he was leaving, he shot her again to "put her out of her misery."

On the run from police, Appellant broke into the Christian Fellowship Church on June 26-27, 1992, and into Kenneth Parker's mobile home between June 27-29, 1992. Appellant then hitched rides under trucks until he got to Calhoun County, where he killed another person while attempting to get a car and money to escape police looking for him on the Oakley murder. Appellant was tried, convicted, and sentenced to death for this subsequent murder ("Mellon murder") before going on trial for the present offenses. Appellant was caught July 10, 1992 in Maggie Valley, North Carolina and gave a detailed confession to police.

At trial, Appellant was found guilty of murder, first degree burglary, armed robbery, and possession of a weapon during a violent crime for his actions at the Oakley residence. He was found guilty of third degree burglary for the break-in at Christian Fellowship Church. He was found guilty of first degree burglary and larceny for the break-in at Parker's mobile home. He was sentenced to death at a separate proceeding upon a jury's recommendation.

ISSUES

I. Did the trial court err in qualifying and excusing certain potential jurors?

II. Did the trial court err in refusing to sever the charges for subsequent break-ins from those arising out of the Oakley murder?

III. Did the trial court err in refusing a change of venue motion?

IV. Did the trial court err in admitting certain photographs?

V. Did the solicitor's closing argument deprive Appellant of a fair trial?

VI. Did the trial court err in refusing to instruct the jury on the law of manslaughter?

VII. Did the trial court err in refusing to instruct the jury on the law of accident?

VIII. Did the trial court err in refusing to grant a change of venue or mistrial due to the solicitor's comments to the press?

IX. Did the trial court err in admitting Appellant's prior criminal record?

X. Did the trial court err in refusing to grant a mistrial after testimony was given regarding Appellant's security during trial?

XI. Did the trial court err in submitting the aggravating circumstance of two or more persons being murdered by the defendant pursuant to one act, scheme or course of conduct?

DISCUSSION

I. Juror Qualification

A. Jurors Qualified

Appellant argues the trial judge erred in qualifying four jurors. We disagree.

Initially, Appellant is procedurally barred from making this argument because at trial he exercised only seven of his ten peremptory strikes. Failure to exhaust all of a defendant's peremptory strikes will preclude appellate review of juror qualification issues. State v. Hudgins, 319 S.C. 233, 460 S.E.2d 388 (1995), cert. denied, --- U.S. ----, 116 S.Ct. 821, 133 L.Ed.2d 764 (1996). Furthermore, three of the jurors were not seated. ¹ In Ross v. Oklahoma, the Supreme Court held that any claim that a jury was not impartial must focus on the jurors who ultimately sat at trial. 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988). See also State v. Green, 301 S.C. 347, 392 S.E.2d 157, cert. denied, 498 U.S. 881, 111 S.Ct. 229, 112 L.Ed.2d 183 (1990) (following Ross).

In any event, after reviewing the record we find the jurors were properly qualified. See State v. Davis, 309 S.C. 326, 422 S.E.2d 133 (1992), cert. denied, 508 U.S. 915, 113 S.Ct. 2355, 124 L.Ed.2d 263 (1993) (determination of whether a juror is properly qualified to serve on a death penalty case is a matter within the sound discretion of the trial judge and will not be disturbed on appeal unless wholly unsupported by the record); State v. Gilbert, 277 S.C. 53, 283 S.E.2d 179 (1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2258, 72 L.Ed.2d 863 (1982) (court should not examine isolated statements but entire colloquy with juror to determine qualification).

B. Jurors Excused

Appellant argues the trial judge erred in excusing two jurors for cause. We disagree. Prospective jurors may be excused for cause if their views on capital punishment would prevent or substantially impair the performance of their duties as jurors. Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985); State v. Elmore, 300 S.C. 130, 386 S.E.2d 769 (1989), cert. denied, 496 U.S. 931, 110 S.Ct. 2633, 110 L.Ed.2d 652 (1990). Because both jurors definitively and repeatedly stated they could not write a death sentence under any circumstances, we find there was evidence to support the excusal of both jurors. See Davis, 309 S.C. at 326, 422 S.E.2d at 133 (determination of whether a juror is properly qualified to serve on a death penalty case is a matter within the sound discretion of the trial judge and will not be disturbed on appeal unless wholly unsupported by the record).

GUILT PHASE

II. Consolidation of Charges

Appellant argues the trial judge erred in denying his motion to sever the charges arising out of his breaking into Christian A motion for severance is addressed to the trial court and should not be disturbed unless an abuse of discretion is shown. State v. Anderson, 318 S.C. 395, 458 S.E.2d 56 (Ct.App.1995). Charges can be joined in the same indictment and tried together where they (1) arise out of a single chain of circumstances, (2) are proved by the same evidence, (3) are of the same general nature, and (4) no real right of the defendant has been prejudiced. State v. Tate, 286 S.C. 462, 334 S.E.2d 289 (Ct.App.1985). See also State v. Middleton, 288 S.C. 21, 339 S.E.2d 692 (1986).

Fellowship Church and Kenneth Parker's mobile home from the charges arising out of the Oakley murder. We disagree.

Here, Appellant told police that after killing Victim on June 25, 1992, he went into hiding. A day or two afterward, he broke into the Christian Fellowship Church. "The reason I broke into the church is I was trying to find some food. Something to drink, and get cleaned up a little bit." Two women who came to clean the church surprised him there and he ran away. A little bit later, he broke into Kenneth Parker's mobile home. Parker was Appellant's friend. Appellant told police he went to the mobile home to ask Parker for help. When no one was there, however, he broke in to clean up. Appellant took a shower, put on some of Parker's clothes, and hid out there for a while, knowing that police were searching for him. He then left his old clothes there and continued on his way. When apprehended, Appellant was still wearing the clothes stolen from Parker's mobile home. The women in the church identified the clothes left at Parker's as those Appellant was wearing in the church.

We find the requirements for consolidation were met in this case. The crimes arose out of a single chain of circumstances because Appellant committed the subsequent burglaries solely to avoid capture by police for the Oakley crimes. See Tate, 286 S.C. at 464, 334 S.E.2d at 290 (single chain of circumstances means a single course of conduct or connected transactions). They would be proved by the same evidence because the evidence of the subsequent break-ins would have been admissible to prove the Oakley crimes as evidence of flight and identity. See State v. Thompson, 278 S.C. 1, 292 S.E.2d 581, cert. denied, 456 U.S. 938, 102 S.Ct. 1996, 72 L.Ed.2d 458 (1982), overruled on other grounds, State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991) (evidence of flight admissible to show guilty knowledge, intent, and that defendant sought to avoid apprehension); State v. Byers, 277 S.C. 176, 284 S.E.2d 360 (1981) (evidence that defendant stole truck to flee scene of prior robbery admissible in robbery trial because it shows his flight to avoid capture). The crimes were of the same general nature as the Oakley crimes, and no right of the defendant was prejudiced. Thus, there was no abuse of discretion in the trial judge's denying the severance motion.

III. Change of Venue

Appellant argues the trial judge erred in denying his motion to change venue because of the publicity the case received. He complains of a series of articles in the Sumter newspaper published from December 5, 1994 to December 10, 1994. ²

A motion to change venue is addressed to the sound discretion of the trial judge and will not be disturbed absent an abuse of discretion. State v. Caldwell, 300 S.C....