State v. Wise

• Decision Date: 11 May 2004
• Docket Number: No. 25819.,25819.
• Citation: 359 S.C. 14,596 S.E.2d 475
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Hastings Arthur WISE, Appellant.

359 S.C. 14

596 S.E.2d 475

The STATE, Respondent, v. Hastings Arthur WISE, Appellant.

No. 25819.

Supreme Court of South Carolina.

Heard February 3, 2004.

Decided May 11, 2004.

Rehearing Denied June 9, 2004.

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

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, Assistant Attorney General S. Creighton Waters, all of Columbia, and Solicitor Barbara R. Morgan of Aiken, for Respondent.

Justice BURNETT:

Hastings Arthur Wise (Appellant) was convicted of four counts of murder, three counts of assault and battery with intent to kill, one count of second-degree burglary, and four counts of possession of a weapon during the commission of a violent crime. The jury found two aggravating circumstances: a murder was committed during the commission of a burglary; and two or more persons were murdered by one act or pursuant to one scheme or course of conduct. See S.C.Code Ann. § 16-3-20(C) (2003 and Supp.2003).

Appellant was sentenced to death on the jury's recommendation for each count of murder, twenty years consecutive on each count of assault and battery with intent to kill, fifteen years concurrent for burglary, and five years concurrent on each weapon possession conviction. This appeal follows.

FACTS

Appellant drove into the employees' parking lot at the R.E. Phelon manufacturing plant in Aiken County at about 3 p.m. on September 15, 1997, as the work shifts were changing. He had been fired from his job as a machine operator at the plant several weeks earlier.¹

Stanley Vance, the security officer on duty, testified he believed Appellant had come to pick up his personal belongings which were stored in the guard station. Appellant exited his vehicle, walked to the guard station, and shot Vance once in the upper abdomen with a semi-automatic pistol.

During the guilt phase of the trial, in addition to two security officers, the State presented fifteen employees as witnesses to the shootings at the plant. All identified Appellant as the perpetrator. Their testimony, along with the testimony of law enforcement investigators and the medical examiner, established the following events:

After tearing out telephone lines in the guard station, Appellant entered the plant's human resources office. He shot personnel manager Charles Griffeth, age 56, twice in the back, killing him as he sat at his desk. Appellant held his pistol to the head of a secretary as he exited Griffeth's office, tore out the secretary's telephone line, and continued into the plant.

Appellant walked to the tool and dye area where several employees were working. He fired his pistol repeatedly at the employees, killing David W. Moore, age 30, and Earnest L. Filyaw, age 31. Lucius Corley and John Mitchell were wounded. Mitchell was shot in the chest, and suffered extensive and severe internal injuries which required multiple surgical procedures.

Appellant walked toward another area of the plant as employees, who gradually had become aware of the shootings in the plant, fled the building. He shot Cheryl Wood, age 27, in the back and leg as she stood near a doorway. She was fatally shot after she fell to the floor, described by the prosecutor as an execution-style slaying.

Appellant continued firing his pistol at other employees in other areas of the plant. Witnesses observed Appellant reload his pistol several times as he progressed through the plant. Investigators recovered four empty, eight-round magazines at the scene, plus four full magazines and 123 additional rounds in Appellant's possession. Some witnesses related Appellant was "screaming something" unintelligible during the shootings.

Appellant walked to an upstairs office, shooting through glass windows and doors. He entered an office, lay down on the floor, and swallowed or attempted to swallow an insecticide. Police found Appellant lying there semi-conscious, arrested him, and transported him to a hospital.

The trial judge ruled Appellant competent to stand trial. Appellant did not present witnesses or evidence during the guilt or sentencing phases of the trial. He refused before trial to identify for his attorneys family or friends as favorable witnesses. During the sentencing phase, Appellant refused to allow his attorneys to call thirteen mitigation witnesses to present evidence that life imprisonment without parole was the appropriate sentence.

Appellant's refusal prompted the trial judge to again have Appellant examined during the trial by a psychiatrist, who again testified Appellant was competent. Although his attorneys had evidence of the presence of the hallucinogenic drug LSD in his body when the shootings occurred, Appellant told the judge "I was in total control of my faculties at the time."

ISSUES

I. Did the trial judge err in excusing a potential juror for cause during individual voir dire without allowing defense counsel to examine her about personal religious beliefs that would preclude her from finding Appellant guilty of the crimes charged?

II. Did the trial judge err in refusing to allow a surviving victim, called by the State to provide victim-impact evidence, to testify on cross-examination that he previously had stated Appellant should not receive the death penalty?

STANDARD OF REVIEW

In criminal cases, the appellate court sits only to review errors of law which have been properly preserved, i.e., the issue has been raised to and ruled on by the trial court. State v. Wilson, 345 S.C. 1, 5, 545 S.E.2d 827, 829 (2001); State v. Cutter, 261 S.C. 140, 147, 199 S.E.2d 61, 65 (1973); State v. Byram, 326 S.C. 107, 113, 485 S.E.2d 360, 363 (1997). The appellate court is bound by the trial court's factual findings made in response to preliminary motions when there is conflicting testimony, or when the findings are supported by any evidence and not clearly erroneous or controlled by an error of law. State v. Quattlebaum, 338 S.C. 441, 452, 527 S.E.2d 105, 111 (2000); State v. Asbury, 328 S.C. 187, 193, 493 S.E.2d 349, 352 (1997). The admission or exclusion of evidence is a matter addressed to the sound discretion of the trial court and its ruling will not be disturbed in the absence of a manifest abuse of discretion accompanied by probable prejudice. State v. Gaster, 349 S.C. 545, 557, 564 S.E.2d 87, 93 (2002); State v. Frank, 262 S.C. 526, 533, 205 S.E.2d 827, 830 (1974). An abuse of discretion occurs when the conclusions of the trial court either lack evidentiary support or are controlled by an error of law. State v. McDonald, 343 S.C. 319, 325, 540 S.E.2d 464, 467 (2000); State v. Manning, 329 S.C. 1, 7, 495 S.E.2d 191, 194 (1997).

DISCUSSION

I. Individual voir dire issue

Appellant argues the trial judge erred in excusing a potential juror (Juror) for cause during individual voir dire without first permitting his lawyers to personally examine her. Appellant contends the judge did not have the discretion to excuse Juror. We disagree.

Juror was the fourth venireman examined during individual voir dire. Responding to questions from the trial judge, Juror testified she would accept and apply the law as instructed by the court. She testified she could find a defendant not guilty in a criminal case; however, she could not find a defendant guilty. Juror testified she was a member of the "Holiness" religion, did not believe in judging anyone, and would be unable under any circumstances to find a defendant guilty. Juror testified, "I mean, they could be guilty but I'm not going to sit on the jury stand and say that they're guilty because it's not right to say whether they're guilty or not."

The judge and attorneys discussed Juror's responses outside her presence. The judge requested Appellant's attorneys suggest questions he might ask Juror. No questions were suggested, but Appellant's attorneys requested an opportunity to examine and possibly rehabilitate Juror by clarifying her responses. The judge denied the request, but examined her further about the source of her beliefs. Juror testified her beliefs were personal, and she was unaware of any pastoral counseling or similar program she could undergo in order to sit in judgment of another person. Juror testified she could not find someone guilty in "so serious as this case is" and she did not "want to have [any] part in saying what, you know, where he's going to be at, you know."

The judge excused Juror for cause over defense counsel's objection, relying primarily on State v. Tucker, 334 S.C. 1, 512 S.E.2d 99 (1999).

"The presiding judge shall determine whether any juror is disqualified or exempted by law and only he shall disqualify or excuse any juror as may be provided by law." S.C.Code Ann. § 14-7-1010 (Supp.2003). The authority and responsibility of the trial court is to focus the scope of the voir dire examination as set forth in S.C.Code Ann. 14-7-1020 (Supp.2003). State v. Hill, 331 S.C. 94, 103, 501 S.E.2d 122, 127 (1998) (citing State v. Plath, 281 S.C. 1, 313 S.E.2d 619 (1984)). A capital defendant has the right to examine jurors through counsel pursuant to S.C.Code Ann. 16-3-20(D) (Supp.2003), but that statute does not enlarge the scope of voir dire permitted under Section 14-7-1020.²Id. The scope of voir dire and the manner in which it is conducted generally are left to the sound discretion of the trial judge. Id. (citing State v. Smart, 278 S.C. 515, 299 S.E.2d 686 (1982),overruled on other grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991)

).

"Voir dire examination serves the dual purposes of enabling the court to select an impartial jury and assisting counsel in exercising peremptory challenges." Mu'Min v. Virginia, 500 U.S. 415, 431, 111 S.Ct. 1899, 1908, 114 L.Ed.2d 493, 509 (1991). A capital defendants right to voir dire, while grounded in statutory law, also is rooted in the...