State v. Whipple

• Decision Date: 10 January 1996
• Docket Number: No. 24458,24458
• Citation: State v. Whipple, 476 S.E.2d 683, 324 S.C. 43 (S.C. 1996)
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. James Bernard WHIPPLE, Appellant. . Heard

Page 683

476 S.E.2d 683

324 S.C. 43

The STATE, Respondent, v. James Bernard WHIPPLE, Appellant.

No. 24458.

Supreme Court of South Carolina.

Heard Jan. 10, 1996.

Decided July 1, 1996.

Rehearing Denied Aug. 2, 1996.

Daniel T. Stacey, Chief Attorney, South Carolina Office of Appellate Defense, and Jeffrey P. Bloom, Richland County Public Defender, Columbia, for appellant.

Charles Molony Condon, Attorney General, John W. McIntosh, Deputy Attorney General, Salley W. Elliott, Assistant Deputy Attorney General, Harold M. Coombs, Jr., Columbia, and Solicitor Ralph J. Wilson, Conway, for respondent.

WALLER, Justice:

Whipple was convicted of murder, criminal sexual conduct in the first degree, armed robbery, and grand larceny of a motor vehicle. He was respectively sentenced to death, thirty years, twenty-five years, and ten years. We affirm.

FACTS

Nineteen year old Heather Stigliano (Victim) moved from Pennsylvania to Myrtle Beach in September, 1991. She was last seen alive on November 4, 1991. Her body was found in her apartment on November 11, 1991. She had numerous stab wounds, had been repeatedly beaten in the head with a lamp and an iron, had been strangled with a lamp cord, and had a dish towel stuck in her mouth. She was partially nude and had apparently been sexually assaulted.

On November 4, 1991, Whipple was spotted in Pawley's Island driving Victim's automobile. On November 14, while still driving Victim's vehicle, Whipple was stopped by police in Florida for a traffic violation. Victim's purse was found in the vehicle, as were a steak knife, parts of an iron, and a wooden lamp base. Numerous other personal items belonging to Victim were found in Whipple's motel room. Whipple subsequently admitted to killing Victim.

ISSUES

1. Did the Solicitor enter a plea agreement under which Whipple was to receive a life sentence?

2. Did the court improperly comment on the weight of the testimony?

3. Was the court's reasonable doubt charge improper?

4. Was Whipple denied a reasonable opportunity to review discovery materials turned over by the prosecution the week prior to trial?

5. Were disciplinary records from Whipple's incarceration improperly admitted?

6. Did the court err in refusing to charge that Whipple would not be eligible for parole for thirty years if sentenced to life or, alternatively, in failing to give a plain meaning charge?

7. Was evidence of Victim's character improperly excluded?

1. PLEA AGREEMENT

Whipple asserts the State reneged on its agreement to allow Whipple to plead guilty in exchange for a life sentence. We disagree. The trial court correctly ruled there was no plea agreement.

Whipple was arrested on November 14, 1991. In January, 1992, defense counsel met with the solicitor seeking to negotiate an agreement under which Whipple would plead guilty in exchange for a life sentence. The solicitor testified he told Whipple's attorneys he would consider a life sentence if substantial mitigating evidence were demonstrated.

On August 25, 1993, defense counsel returned to the solicitor with evidence that Whipple had a history of physical and sexual abuse. Although aware the matter had been turned over to an assistant solicitor, counsel preferred to negotiate directly with the solicitor. According to defense counsel, they were told by the solicitor after presentation of the mitigating evidence that "if it were up to him, he would allow the case ... to plead to a life sentence, but ... the decision now rested with [the assistant solicitor]." However, Solicitor Wilson testified that, although he never specifically advised defense counsel he did not find the mitigating evidence sufficient, he made it clear he was not going to give Whipple a life sentence and he did not intend to intervene and take the case from the assistant solicitor. He testified, further, that he felt the mitigating evidence was lacking.

When the assistant solicitor was removed from the case in November, 1993, defense counsel again approached the solicitor concerning a life sentence. At this time, they were told that, although he may have accepted a plea earlier, too much time and money had now been spent on the case.

Whipple cites State v. Thrift, 312 S.C. 282, 440 S.E.2d 341 (1994), contending he is entitled to the benefit of the alleged plea agreement. In Thrift, we held that where a guilty plea rests on a promise which can be said to be a part of the inducement or consideration, the agreement must be fulfilled. We find Thrift inapplicable to the present case. Although the solicitor agreed to consider a plea agreement if Whipple provided substantial mitigating evidence, he never promised a life sentence nor was a plea agreement ever reached.

Whipple claims it is inequitable for the State to induce him to reveal his mitigation strategy without being bound by a plea agreement. We disagree.

The mere fact that a defendant chooses to reveal otherwise undiscoverable facts in the hope of securing a favorable plea agreement does not bind the State to accept the defendant's terms. Whipple may not attempt to create a firm commitment out of plea negotiations. 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) (solicitor's plea negotiations to consider life sentence did not prevent State from seeking death penalty), overruled in part on other grounds, State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991) (Toal, J., concurring). To accept Whipple's contention would leave the determination of whether the evidence was in fact "substantial" to the defendant and effectually bind the solicitor without being able to judge the evidence for himself. Such a position is untenable.

The decision whether to offer a plea bargain is within the solicitor's discretion. See State v. Chisolm, 312 S.C. 235, 439 S.E.2d 850 (1994). This Court is not empowered to infringe upon the exercise of this prosecutorial discretion. State v. Thrift, supra. We will not disturb the fact findings of a trial court relative to a plea agreement when the findings are supported by the evidence and not clearly wrong or controlled by error of law. State v. Amerson, 311 S.C. 316, 428 S.E.2d 871 (1993).

Here, it was at all times within the solicitor's sole discretion whether to offer a plea agreement. We find ample evidence in the record supporting the trial court's conclusion that he never did so in this case.

2. "SO-CALLED EXPERTS"

The jury was instructed that credibility of witnesses was for its determination. In so charging the jury, the court stated, "That includes the so-called experts. That is still left to you, and only you, to determine their credibility, so this doesn't just mean law witnesses; this means any and all witness, included expert witnesses." Shortly after, the judge instructed the jury that if he should in any way intimate an opinion, the jury should disregard it. Whipple claims the reference to so-called experts was an improper comment on the weight of the evidence. We disagree.

The first definition of the term "so-called" in WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2161 (1976) is "commonly named: popularly so termed." It is only as a second definition that it is defined as "falsely or improperly so named or designated." Contrary to Whipple's contention, we find use of the term did not indicate the trial court's opinion on the weight to be accorded the experts.

In any event, the trial court's language concerning the "so-called experts" applied to all experts, not just defense experts. Clearly, the comment applied with equal force to all experts, both for the State and for Whipple. Accordingly, Whipple suffered no prejudice. See e.g. Graves v. State, 309 S.C. 307, 422 S.E.2d 125 (1992) (improper comment concerning a witnesses testimony not prejudicial to defendant).

Finally, the judge's subsequent instruction that the jury should disregard any intimation by him as to the weight of the evidence was sufficient to cure any error. See State v. Robinson, 276 S.C. 435, 279 S.E.2d 372 (1981).

3. REASONABLE DOUBT CHARGE

Whipple contends the trial court's reasonable doubt instruction violated State v. Manning, 305 S.C. 413, 409 S.E.2d 372 (1991), cert. denied, 503 U.S. 914, 112 S.Ct. 1282, 117 L.Ed.2d 507 (1992), ¹ and due process. We disagree.

During the course of his charge, the Court stated three times that a reasonable doubt was one "for which you could give a reason." However, he also advised, in accordance with Manning, that it was "the kind of doubt that would cause a reasonable person to hesitate to act." At no time did the trial court use the terms "moral" or "grave certainty," nor was the term reasonable doubt equated with a "substantial doubt."

The charge given in this case is similar to the one upheld by this Court in State v. Hoffman, 312 S.C. 386, 440 S.E.2d 869 (1994) (upholding charge notwithstanding judge's repeated statement it was one for which you could give a reason). See also State v. Johnson, 315 S.C. 485, 445 S.E.2d 637 (1994); State v. Kirkpatrick, 462 S.E.2d 884 (S.C.Ct.App.1995) (Davis Adv. Sh. No. at 7). We find no error.

4. REVIEW OF DISCOVERY MATERIALS

During jury selection, defense counsel requested to delay the start of trial for one day to review numerous discovery materials which had been turned over by the prosecution during the week. The solicitor maintained the materials were merely duplicative copies of earlier materials which had been turned over in piecemeal fashion. The trial court delayed ruling on the matter until completion of jury selection. Defense counsel had an opportunity to review the materials overnight and the next morning, at approximately 10:00 am, defense counsel renewed the motion, noting he had received some 479 pages of new materials. The court granted counsel until 4:00 pm that afternoon, less the time it took to conduct opening arguments, to review the materials. When they returned at 4:00 pm, counsel advised the "[d]...