State v. Von Dohlen

Decision Date19 September 1995
Docket NumberNo. 24437,24437
Citation322 S.C. 234,471 S.E.2d 689
CourtSouth Carolina Supreme Court
PartiesThe STATE, Respondent, v. Herman Henry "Bud" VON DOHLEN, Appellant. . Heard

Joseph L. Savitz, III, Deputy Chief Attorney and Robert M. Dudek, Assistant Appellate Defender, of the South Carolina Office of Appellate Defense, Columbia, for appellant.

Attorney General Charles Molony Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Harold M. Coombs, Jr., Columbia; and Solicitor David P. Schwacke, N. Charleston, for respondent.

WALLER, Justice:

Appellant Herman Henry "Bud" Von Dohlen was convicted of murder and armed robbery and was sentenced to death. This appeal consolidates his direct appeal with the mandatory review provisions of S.C.Code Ann. § 16-3-25(C) (1985). We affirm.

FACTS

Von Dohlen was employed at the Quicksilver Pawn Shop in Goose Creek. On May 28, 1990, at approximately 7:45 a.m., he walked next door to the Creek Bank Dry Cleaners for change. The clerk on duty at the cleaners was 21 year old Margaret McLean (Victim) who, according to Von Dohlen, "smarted The murder weapon was subsequently found at the pawn shop, and after taking a polygraph exam, Von Dohlen signed a written confession. A jury convicted Von Dohlen of murder and armed robbery and recommended a sentence of death.

off" at him and acted like a "bitch," refusing to give him change. Von Dohlen left the dry cleaners thinking about his brother who had been murdered two weeks earlier. He went back to the pawn shop and retrieved a 30/30 rifle and two .38 caliber shells. He returned to the cleaners, intending to scare the Victim. Von Dohlen told the Victim she had been acting like a bitch to him and that his brother had just died and that she didn't need to live either. In an attempt to make it look like rape, he told the Victim to remove her clothes. She complied and attempted to escape out the back door when the bar bolting the door allegedly fell and hit her in the head. According to Von Dohlen, the gun went off and hit the Victim in the head. 1 When she fell to the floor, he shot her again in the back of the head. Von Dohlen then stole the money from the cash register and returned to the pawn shop.

PRELIMINARY ISSUE

As an initial matter, we must decide whether the abolition of in favorem vitae review in State v. Torrence, 305 S.C. 45, 69, 406 S.E.2d 315, 328 (1991), applies to this case. In Torrence, we held a "contemporaneous objection is necessary in all trials beginning after the date of this opinion to properly preserve errors for our direct appellate review." (Emphasis supplied). Torrence was filed on May 20, 1991, the day Von Dohlen's trial began. Accordingly, he contends Torrence is inapplicable and we should therefore conduct an in favorem vitae review. We disagree.

Von Dohlen's trial began at 10:00 a.m. on May 20, 1991. A jury venire was called and a number of jurors were excused or disqualified. The solicitor then advised the court of the Torrence opinion abolishing in favorem vitae review. Thereafter, voir dire was conducted and a jury impaneled.

On the present record, it is patent that Von Dohlen and his attorneys were notified of Torrence prior to a jury being selected. The purpose of our holding Torrence applicable to trials beginning after its publication date was to ensure proper notice of the abolition of in favorem vitae review. As the record reflects Von Dohlen was put on notice of Torrence, we decline to extend in favorem vitae review in this case.

Moreover, it is clear from Justice Toal's concurring opinion in Torrence that in favorem vitae review is not statutorily mandated. 305 S.C. at 67-68, 406 S.E.2d at 327-328. It is likewise not constitutionally mandated. See Griffin v. State, 315 S.C. 285, 433 S.E.2d 862 (1993) cert. denied, 510 U.S. 1093, 114 S.Ct. 924, 127 L.Ed.2d 217 (1994) (no ex post facto violation in mere procedural change in law); Hyder v. Jones, 271 S.C. 85, 245 S.E.2d 123 (1978) (changes affecting remedy or procedure are outside the presumption of prospective application); State v. Rogers, 263 S.C. 373, 210 S.E.2d 604 (1974) (double jeopardy does not attach until jury is sworn). Accordingly, as Von Dohlen was made aware of our Torrence opinion prior to the jury being impaneled, we decline to extend in favorem vitae review in this case.

ISSUES

1. Did the Solicitor's office withhold Brady 2 information?

2. Was voir dire of the jury panel proper?

3. Was Von Dohlen's statement to police involuntary?

4. Should Von Dohlen's statement to his employer, Magistrate Altman, have been suppressed?

5. Was testimony that the Victim's father wanted a death sentence improper?

6. Was the trial court's reasonable doubt charge erroneous?

7. Was the court's malice charge improper?

8. Was expert testimony the Victim's injuries were "extremely painful" improper?

9. Was a post-mortem photograph of the Victim improperly admitted?

10. Is the death sentence disproportionate to the crime in this case?

1. BRADY
VIOLATION

Subsequent to institution of this appeal, we remanded to determine whether the State had improperly withheld Brady material. The circuit court ruled there was no Brady violation. We agree.

Von Dohlen's claim of a Brady violation stems from his employment for Magistrate Ronald Altman at the Quick Silver Pawn Shop. 3 The Department of Consumer Affairs requires fingerprint verification forms on all pawn shop employees. 4 After the murder in this case, Consumer Affairs realized it had no employee verification on Von Dohlen. Altman's attorney submitted a faxed copy of a form purportedly submitted on Von Dohlen the prior year. The form submitted was dated 1989 but had an indication it was signed in 1990. Consumer Affairs concluded the form had been altered or falsified and was not in existence the prior year. It then filed a Petition to Revoke Quick Silver's Pawnbroker License for, inter alia, the failure to file the required employee fingerprint verification. To avoid a potential fine of $15,000, Quick Silver signed a "consent order of relinquishment" of its pawnbroker's license. The consent order makes no findings of forgery or alteration, nor does it mention Magistrate Altman.

Von Dohlen contends the State withheld its knowledge of Altman's alleged "forgery" of documents in violation of Brady. We disagree.

We find no basis upon which to impute Consumer Affairs' suspicion to the solicitor's office. Although information known to investigative or prosecutorial agencies may, under certain circumstances, be imputable to the State, see United States v. Auten, 632 F.2d 478 (5th Cir.1980) (holding criminal records and convictions of its witnesses are imputable to government), the government has no "affirmative duty to take action to discover information which it does not possess.... The prosecutor has no duty to undertake a fishing expedition ... in an effort to find impeaching evidence." United States v. Jones, 34 F.3d 596, 599 (8th Cir.1994). Those cases which find such knowledge imputable to the prosecutor involve prior convictions and/or pending charges against a witness. 5 In contrast, the allegedly impeaching evidence in this case is Consumer Affairs' suspicion of possible alteration of documents, by an unknown individual, on which charges were never filed. We hold this information was not imputable to the solicitor's office.

In any event, even assuming the matter were imputable to the State, we find no Brady violation. Brady requires the State to disclose evidence in its possession favorable to the accused and material to guilt or punishment. Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987); Clark v. State, 315 S.C. 385, 434 S.E.2d 266 (1993). This rule applies to impeachment evidence as well as exculpatory evidence. State v. Bryant, 307 S.C. 458, 415 S.E.2d 806 (1992). Impeachment or exculpatory evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).

Von Dohlen's purpose in seeking disclosure of the alleged forgery was to impeach Altman's credibility. Altman, a witness for the

                State, testified that, when asked "why he did something like that," Von Dohlen told him the victim wouldn't give him change and acted "like a bitch."   As noted in Issue 4, infra, this statement was cumulative to Von Dohlen's statement to police.  Additionally, the statement was cumulative to testimony elicited from Officer Preacher by Von Dohlen.  Accordingly, we find no reasonable probability that impeachment of Altman's credibility would have changed the result of trial
                
2. JURY VOIR DIRE

Von Dohlen contends the trial court's voir dire impermissibly led prospective jurors to believe he had the burden of proving mitigation, and that they must weigh aggravating and mitigating circumstances to determine punishment.

No objection to voir dire was raised below and accordingly, the issue is not preserved for review. State v. Torrence, supra.

3. VOLUNTARINESS OF STATEMENT

After the murder weapon was retrieved from the pawn shop, Von Dohlen was taken to SLED headquarters in Columbia for a polygraph exam. He was given Miranda 6 warnings and the polygraph administered. The polygraph indicated deception and, at approximately 7:00 p.m., after further Miranda warnings, Lieutenant Preacher, who knew Von Dohlen, 7 began interrogation. Von Dohlen maintained his innocence. At approximately 9:00 p.m., Agent Murray entered the room and showed Von Dohlen a composite sketch of himself in an attempt to lead him to believe police had a witness who had placed him at the scene. The composite was actually drawn by the police artist through the one-way window. Thereafter, Von Dohlen was...

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