THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
Theodore Kelly, Appellant.
Appeal From Spartanburg County
Gary E. Clary, Judge
Opinion No. 24809
Heard May 6, 1997 - Filed June 29, 1998
Assistant Appellate Defender Robert M. Pachak, of
S.C. Office of Appellate Defense, of Columbia, for
Attorney General Charles Molony Condon, Deputy
Attorney General John W. McIntosh, Assistant
Deputy Attorney General Donald J. Zelenka, all of
Columbia; and Solicitor Holman C. Gossett, Jr., of
Spartanburg, for respondent.
BURNETT, A.J.: Appellant Theodore Kelly was convicted of
murdering his estranged wife, Imogene Kelly (Mrs. Kelly), and her
daughter's fiancee, Keith Epps. Appellant was also convicted of assault and
battery with intent to kill for his attack on Mrs. Kelly's daughter, Tracy
STATE v. KELLY
Smith. Appellant was sentenced to death for the murders1 and twenty
years for assault and battery with intent to kill.
This incident arose out of a domestic dispute between appellant
and Mrs. Kelly. Mrs. Kelly's daughter, Tracy, testified her mother had
obtained a restraining order against appellant in March of 1994. She
further stated Mrs. Kelly contacted the police on June 7, 1994, at
approximately 5:30 p.m. because appellant had come to her residence.
However, when the police arrived, they refused to enforce the order
because they determined appellant had been living in the residence after
the March restraining order was issued. Therefore, the police informed
Mrs. Kelly her restraining order was invalid and she would have to obtain
a new order. The police did escort appellant off the premises. After
another discussion later that same evening between the police, Mrs. Kelly
and appellant, Mrs. Kelly agreed to place appellant's clothes in a plastic
garbage bag and leave it for him on the front porch.
Tracy testified she saw appellant outside the house around
10:00 p.m. that night; however, she did not call the police because she
thought he was there to get his clothes. Mrs. Kelly, Tracy's five-year-old
son, and Mrs. Kelly's three-year-old adopted daughter went to bed around
10:00 p.m. They all slept in the same bed. Tracy and Keith were in
Tracy's bedroom. Around 11:00 p.m., Keith went out to his car.
Immediately after Keith left the house, Tracy heard a gunshot and then
appellant ran into Tracy's bedroom. She attempted to hide in her closet;
however, appellant attacked her and shot her twice. Appellant then ran
out of Tracy's room and into her mother's room. Tracy heard her mother
say "no Theodore" and she heard two gunshots. During this time Tracy
attempted to leave the room; however, appellant returned to her room and
she, again, ran to the closet. As appellant attempted to pull Tracy out of
the closet, he shot at her again but missed. Appellant then returned to
Mrs. Kelly's room and Tracy heard the sound of a physical assault. Tracy
again attempted to leave the room; however, appellant returned and began
striking her on the head with the gun. Appellant then went into the
kitchen, returned with a knife, and stabbed Tracy several times.
Appellant went toward the front of the house and Tracy was able to
1The jury found the following statutory aggravating circumstance:
two or more persons were murdered by the defendant by one act or
pursuant to one scheme. S.C. Code Ann. § 16-3-20(C)(a)(9) (Supp. 1997).
STATE v. KELLY
escape and run to a neighbor's house for help.
Tracy's son, who was in the bedroom with Mrs. Kelly, testified
the sound of a gunshot woke him and he saw appellant shoot and beat
Mrs. Kelly. Tracy's son testified appellant told him to go back to sleep
and he did.
Keith's body was found outside the home with a .25 caliber
gunshot wound to the head. Mrs. Kelly's body, severely beaten and with
two .25 caliber gunshot wounds, was found in her bedroom. Tracy
suffered two gunshot and several stab wounds. Fortunately, she survived
the attack. Remarkably, the two children, who were sleeping in Mrs.
Kelly's bedroom, were unharmed. The gun was never found. The clothes
Mrs. Kelly had left on the porch for appellant were gone.
Appellant testified after his dispute with Mrs. Kelly he went to
play softball. Because he was upset, he decided not to play and rode with
some men to a liquor store where he purchased and consumed a pint of
liquor. Appellant then testified he went with the men to a crack house
near Mrs. Kelly's residence, where he ingested some cocaine. Appellant
purchased a .25 caliber automatic pistol from patrons of the crack house
and walked to Mrs. Kelly's residence to pick up his clothes. When he
arrived, Keith opened the front door and began threatening appellant.
Keith and appellant fought. During the fight, Tracy and Mrs. Kelly came
to the door and Mrs. Kelly threw Keith a gun and told Keith to shoot
appellant. When Keith reached for the gun, appellant shot him with the
.25 caliber pistol. Appellant testified he did not remember anything after
that point until he was back at the crack house. A pistol clip from a .380
caliber pistol or a nine millimeter pistol was found outside Mrs. Kelly's
residence. This clip could not be used in a .25 caliber pistol.
I. Did the trial judge abuse his discretion in refusing to grant
appellant's motion for a mistrial based on juror misconduct?
II. Did the trial judge err in denying appellant's motion for a
new trial based on information obtained about one of the jurors
after the conclusion of the trial?
III. Did the trial judge err in finding appellant competent to
stand trial prior to the presentation of the defense case in the
STATE v. KEL.LY
penalty phase of the trial?
Appellant argues the trial judge erred in refusing to grant his
motion for a mistrial based on juror misconduct. We disagree.
After all the testimony had been presented, but prior to closing
arguments in the penalty phase of the trial, the trial judge received a note
from Juror S.2 The note indicated a religious pamphlet concerning God's
view on capital punishment was being circulated in the jury room. Upon
receiving the note, the trial judge questioned the jurors individually to
determine who, if anyone, had read the pamphlet and what information
was contained in the pamphlet.
First, the trial judge questioned Juror S, who claimed she had
only seen the outside cover of the pamphlet. According to Juror S, Juror
O had brought the pamphlet into the jury room and Juror O had shared
the pamphlet with Juror H and Juror A. Juror S also stated other
members of the jury were reading their Bibles on an individual basis. The
trial judge voir dired the jurors named by Juror S as to whether they had
received or been exposed to a pamphlet. None of the jurors admitted to
being exposed to any material outside of the courtroom. All the jurors
confirmed they could render a fair and impartial verdict based solely on
the evidence presented in the courtroom.
Because the trial judge was concerned the jurors did not
understand his questions, he inquired again and specifically asked the
jurors if they had read a pamphlet expressing God's view on capital
punishment. Four jurors admitted to either seeing and/or reading the
pamphlet. However, three of these jurors claimed they could not recall
any of the contents of the pamphlet or whether it expressed a view on
capital punishment. Further, these jurors stated the pamphlet had not
been offered to them until that morning. These three jurors indicated
their exposure to this pamphlet would not interfere with their ability to
render a fair and impartial verdict. The fourth juror, Juror O, admitted
the pamphlet belonged to her and that her prayer partner at church had
given her this pamphlet prior to sequestration. Juror O showed the
2 The names of the jurors are not relevant to this discussion.
STATE v. KELLY
pamphlet to the trial judge and stated the pamphlet contained Biblical
references on capital punishment.3 Juror O further admitted she offered
this pamphlet to other jurors; however, she was unsure if any of the other
jurors had actually read the pamphlet. Two other members of the jury
indicated they were reading their Bibles on their own.
Appellant's counsel made a motion for a mistrial based on this
pamphlet arguing the jurors had been less than truthful when initially
questioned under oath, at least four jurors had been tainted by the
pamphlet and, because Juror O possessed this pamphlet prior to the
commencement of the trial, both phases of the trial were affected.4
The trial judge denied appellant's mistrial motion; however, he
did dismiss Juror O. The trial judge specifically found the pamphlet did
not influence the verdict rendered in the guilt phase because the pamphlet
concerned capital punishment. The trial judge further concluded no other
juror had been exposed to the contents of this pamphlet and the remaining
jurors indicated they could render a fair and impartial verdict based on
his instructions. Therefore, the trial judge found the remaining jury
members were not biased by the pamphlet.
The Sixth and Fourteenth Amendments of the United States
3The pamphlet, "God, Law, and Capital Punishment," expresses a
pro-death penalty view and references Bible passages to support its view.
4Appellant did not argue to the trial judge that the jurors were
engaging in premature deliberations. Therefore, this issue is not
preserved for appellate review. State v. Byram, 326 S.C. 107, 485 S.E.2d
360 (1997) (an issue must be raised to and ruled upon by the trial judge
in order to be preserved for appellate review). Further, in his brief,
appellant relies on the Bible reading by certain jurors as a ground for a
mistrial. Although this issue was raised in the new trial motion, it was
not raised as a ground for a mistrial. Thus, appellant cannot properly
raise this type of trial error for the first time in his new trial motion.
State v. Holmes, 320 S.C. 259, 464 S.E.2d 334 (1995). cert. denied, ____
U.S. ____, 116 S.Ct. 2507, 135 L.Ed.2d 197 (1996) (evidentiary error cannot
be raised for first time in a new trial motion). Further, possession by
jurors of personal Bibles consulted for personal guidance in the jury room
prior to deliberations is not per se jury misconduct. See Jones v. Kemp,
706 F. Supp. 1534 (N.D. Ga. 1989) (misconduct occurs when the Bible was
allowed in the jury room for use by a deliberating jury).
STATE v. KELLY
Constitution guarantee a defendant a fair trial by a panel of impartial and
indifferent jurors. Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48
L.Ed.2d 126 (1976); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d
751 (1961); see also S.C. Const. art 1, §§ 3 & 14. To safeguard these
rights, "it is required that the jury render its verdict free from outside
influences of whatever kind and nature." State v. Cameron, 311 S.C. 204,
207, 428 S.E.2d 10, 12 (Ct. App. 1993).
In a criminal prosecution, the conduct of the jurors should be
free from all extraneous or improper influences. Unless the misconduct
affects the jury's impartiality, it is not such misconduct as will affect the
verdict. The trial court has broad discretion in assessing allegations of
juror misconduct. Relevant factors to be considered in determining
whether outside influences have affected the jury are the number of jurors
exposed, the weight of the evidence properly before the jury, and the
likelihood that curative measures were effective in reducing the prejudice.
Generally, the determination of whether extraneous material received by a
juror during the course of the trial is prejudicial is a matter for
determination by the trial court. 23A C.J.S. Criminal Law § 1365 (1989).
The granting or refusing of a motion for a mistrial lies within
the sound discretion of the trial court and its ruling will not be disturbed
on appeal unless an abuse of discretion amounting to an error of law
occurs. State v. Wasson, 299 S.C. 508, 386 S.E.2d 255 (1989). A mistrial
should not be granted unless absolutely necessary. Instead, the trial judge
should exhaust other methods to cure possible prejudice before aborting a
trial. Id. In order to receive a mistrial, the defendant must show error
and resulting prejudice. Id. The trial judge is in the best position to
determine the credibility of the jurors; therefore, this Court should grant
him broad deference on this issue. State v. Johnson, 248 S.C. 153, 149
S.E.2d 348 (1966) (the question of the impartiality of the juror is
addressed to the discretion of the trial judge); State v. Loftis, 232 S.C. 35,
100 S.E.2d 671 (1957) (refusing to interfere with the discretion of a trial
judge in matters involving the jury because the trial judge has the
opportunity to consider the credibility of the jurors).
While it was improper for Juror O to possess this pamphlet, in
our opinion, appellant failed to show prejudice. Initially, we find it
illogical to assume Juror O was influenced in the guilt phase of the trial
because of this pamphlet. At most, this pamphlet may influence a juror to
sentence a convicted defendant to death for his crime. Therefore, the trial
judge correctly concluded this pamphlet did not affect the verdict rendered
STATE v. KELLY
by the jury in the guilt phase of this trial.
Moreover, the trial judge is in the best position to determine
the credibility of the jurors and he found them credibly and capable of
rendering an impartial verdict based solely on the evidence. See State v.
Johnson, supra. The trial judge conducted extensive voir dire of the jurors
both prior to empaneling the jury and during questioning concerning this
incident. The trial judge questioned jurors extensively about potential
biases and prejudices and, thus, placed himself in the best position to
assess the truthfulness of the jurors. Further, the trial judge consistently
admonished the jury not to discuss the case and not to consider
extraneous material. The trial judge did not find members of the jury
were being untruthful. We respect this finding.
Further, the misconduct occurred prior to deliberations and the
trial judge immediately removed the tainted juror. See United States v.
Hill, 688 F.2d 18 (6th Cir.), cert. denied, 459 U.S. 1074, 103 S.Ct. 498, 74
L.Ed.2d 638 (1982) (both jurors exposed to extraneous materials were
dismissed from the jury prior to deliberations and the materials were
immediately removed from the jury room; therefore, defendant suffered no
prejudice); State v. Rodgers, 435 P.2d 864 (Ariz. Ct. App. 1967), vacated on
other grounds, 442 P.2d 840 (Ariz. 1968) (affirming trial court where
although the juror committed misconduct by reading a book on criminal
instructions during a recess, the trial court carefully went into the effect of
the extracurricular reading and concluded there was no prejudice); Jordan
v. State, 429 S.E.2d 97 (Ga. Ct. App. 1993) (affirming trial court where
trial court questioned juror who had brought material into the jury room
and found no harm); Earley v. State, 595 So.2d 430 (Miss. 1992) (finding
no abuse of discretion where the only juror who read the entire newspaper
article was promptly dismissed and the other jurors who had only read
portions of the article which were not prejudicial were retained); Lane v.
State, 881 P.2d 1358 (Nev. 1994), cert. dismissed, 514 U.S. 1058, 115 S.Ct.
1444, 131 L.Ed.2d 323 (1995) (no abuse of discretion in denying
defendant's motion for a mistrial where the juror who brought the book
into the jury room was removed and all other jurors indicated upon
questioning that they had not been influenced by the dismissed juror and
would follow the law as instructed); State v. Bonney, 405 S.E.2d 145 (N.C.
1991) (upholding the trial court's denial of defendant's mistrial motion
where trial court conducted a thorough inquiry and court removed juror
who had brought a book entitled "The Complete Jack the Ripper" into the
jury room during the trial and had watched the news coverage of this trial
on television); State v. Searles, 621 A.2d 1281 (Vt. 1993) (trial court has
STATE v. KELLY
discretion in evaluating the impact of a news account upon the jury and,
where some jurors had knowledge of the news account but no juror
responded that the knowledge would influence the juror's judgment, there
was no showing of an abuse of discretion).
There is no evidence suggesting any juror except Juror O had
access to the pamphlet prior to the morning of closing arguments in the
sentencing phase of the trial. Therefore, the deliberations of the
remaining jurors were not tainted by the pamphlet and, in our opinion,
the trial judge did not abuse his discretion in denying appellant's motion
for a mistrial. Instead, the trial judge took appropriate action by
removing the tainted juror from the jury and replacing her with an
alternate juror to ensure appellant received a fair and impartial verdict.
Appellant contends the trial court erred in denying his new
trial motion based on information obtained about Juror P after the trial
concluded. Specifically, appellant claims Juror P's failure to disclose his
participation in a death penalty rally in 1986 during voir dire prevented
appellant from making an intelligent decision in exercising his peremptory
strikes. We disagree.
Juror P was never specifically asked during voir dire about his
participation in a death penalty rally. The defense did question Juror P
about his "position" on the death penalty. Juror P's response to this
question was it would depend on the situation. Juror P admitted he had
thought about the death penalty in the past. During voir dire, Juror P
indicated he could be fair and impartial and depending on the
circumstances he could return either a life sentence or death sentence.
Juror P indicated once again he could be impartial when questioned about
the pamphlet incident.
After the jury returned its sentence in this case, a local
newspaper article quoted Juror P as saying "l think the only thing I regret
is that [appellant] has only one life to give for the two he took." In the
article, Juror P revealed in 1986 while a student at Winthrop College, he
led a group of 40 students on a trip to Columbia to attend the execution of
Terry Roach. An article in the Winthrop paper indicated Juror P was
supporting the execution of Roach; however, he was not advocating
execution in all cases. Further, the rally was organized as an educational
program in an effort to raise social awareness.
STATE v. KELLY
Appellant's new trial motion was premised on Juror P's
misleading and incomplete answers on voir dire. Appellant maintained
that had he been aware of Juror P's activities, he would have exercised a
preemptory strike to exclude Juror P from the jury. After careful review
of Juror P's voir dire and the newspaper articles, the trial judge denied
the new trial motion finding nothing Juror P did in 1986 had any bearing
on his voir dire in this case. The trial judge found Juror P qualified as a
potential juror and his activities in 1986 did not disqualify him. He
refused to allow appellant to question Juror P.
Appellant does not claim Juror P was disqualified as a
potential juror as a matter of law. Instead, the question is whether Juror
P intentionally concealed information during voir dire, thus denying
appellant the opportunity to make an informed decision concerning the
seating of this prospective juror.
A trial court's denial of a new trial motion will not be
disturbed on review absent a showing of an abuse of discretion which
results in prejudice to the defendant. State v. Dawkins, 297 S.C. 386, 377
S.E.2d 298 (1989); State v. Savage, 306 S.C. 5, 409 S.E.2d 809 (Ct. App.
The United States and South Carolina Constitutions guarantee
a criminal defendant the right to an impartial jury. U.S. Const. amend.
VI; S.C. Const., art. 1, § 14. To protect both parties' right to an impartial
jury, the trial judge must ask potential jurors, inter alia, whether they
have formed an opinion about a case or are aware of any bias or prejudice
against a party. State v. Cason, 317 S.C. 430, 454 S.E.2d 888 (1995); S.C.
Code Ann. § 14-7-1020 (Supp. 1997). This Court has recognized trial
judges and attorneys cannot fulfill their duty to screen out biased jurors
without accurate information.
Necessarily it is expected and required that jurors in
their answers shall be completely truthful and that they
shall disclose, upon a general question, any matters
which might tend to disqualify them from sitting on the
case for any reason. It therefore becomes imperative
that the answers be truthful and complete. False or
misleading answers may result in the seating of a juror
who might have been discharged by the Court, challenged
for cause by counsel or stricken through the exercise of
STATE v. KELLY
State v. Gulledge, 277 S.C. 368, 371, 287 S.E.2d 488, 490 (1982) (quoting
Photostat Corp. v. Ball, 338 F.2d 783 (10th Cir. 1964)); see also 47
Am.Jur.2d Jury §§ 195, 208-09 (1995).
"[A new trial] is required only when the court finds the
[intentionally] concealed information would have supported a challenge for
cause or would have been a material factor in the use of the party's
peremptory challenges. The inquiry must focus on the character of the
concealed information, not on the mere fact that a concealment occurred."
Thompson v. O'Rourke, 288 S.C. 13, 15, 339 S.E.2d 505, 508 (1986).
Using the juror disqualification analysis developed by this Court, our first
question is whether Juror P intentionally concealed information in not
revealing his past activities during voir dire. Gray v. Bryant, 298 S.C.
2851, 379 S.E.2d 894 (1989).
Here, we find no abuse of discretion because Juror P did not
intentionally conceal information during voir dire. Gray v. Bryant, supra
(finding intentional concealment where juror failed to disclose relationship
when asked specifically about existence of relationship); State v. Savage,
supra (finding failure to disclose relationship was not intentional).
Appellant failed to show Juror P's responses during voir dire were
untruthful or deceitful. When questioned about his "position" on the death
penalty, Juror P admitted he had "thought about it in the past." However,
he indicated his "position" would depend on the circumstances of each
case. Juror P was not specifically asked if he had participated in death
penalty activities in the past. In our opinion, a question concerning Juror
P's "position" on the death penalty would not elicit the information
appellant claims was intentionally concealed. Further, Juror P's activities
in 1986 only indicate he supported the execution of Roach, not that he
supported execution in all cases. This is consistent with his testimony
given during voir dire indicating that, depending on the circumstances, he
could impose a life sentence or a death sentence.
Appellant contends the trial judge should have granted a
continuance in the penalty phase of the trial when Dr. Lillian Tidler, a
court qualified forensic psychiatrist, concluded appellant could not
competently make a rational decision to take the stand and testify.
Appellant was diagnosed as suffering from Bipolar Type-II
Disorder (depression with hypermanic features); a history of alcohol abuse;
STATE v. KELLY
borderline intellectual functioning; and a partial complex seizure disorder.
He also has paranoid tendencies and periodically experiences
hallucinations. During the competency hearing on August 7, 1995, Dr.
Tidler testified appellant was competent to stand trial; however, she
informed the trial court that the stress of this trial could cause appellant
to hallucinate resulting in impairment of his rational understanding of
these proceedings. While the trial judge found appellant competent to
stand trial, he ordered Dr. Tidler to be available to perform competency
exams during the trial in case appellant's condition deteriorated.
Prior to presentation of the defense case in the penalty phase,
Dr. Tidler testified that upon her most recent examination, she found
appellant competent even though he was experiencing some auditory
hallucinations. Dr. Tidler opined:
It is my opinion with a reasonable degree of medical certainty,
that overall [appellant] possesses a rational and factual
understanding of the courtroom trial process and overall
possesses the ability to assist [lead counsel] and his other
attorney in his defense; however, in terms of taking the stand
and making a rational decision, in that area I find he is not,
but overall I find he meets the statutory requirements overall.
. . . He's competent in assisting [trial counsel], however, he
disregards their legal advice based on his irrational thinking.
Dr. Tidler testified, guided in part by auditory hallucinations from his
dead sister, appellant hoped that by asking the jury for death he would
receive a life sentence. Dr. Tidler stated the decision to testify and ask for
the death penalty was not a rational decision or consistent with
appellant's wish to live. On cross-examination, Dr. Tidler testified
appellant possessed a rational and factual understanding of the courtroom
proceedings. Further, upon inquiry by the trial judge, Dr. Tidler stated
appellant understood the roles of the judge, solicitor, defense counsel and
The trial judge then questioned appellant. Appellant indicated
he no longer wished to testify; however, he did want to address the jury
during closing arguments. The trial judge then found appellant was still
competent to stand trial. Appellant's counsel did not object to this ruling,
nor did they seek other relief. During closing arguments, appellant did
address the jury and ask for death in a fairly incoherent statement;
STATE v. KELLY
however, he did not testify.5
On appeal, appellant contends the trial judge should have
continued the penalty phase until appellant was competent to consult
rationally with his attorneys regarding whether to make a statement to
the jury. This claim is unpreserved for review having neither been raised
to nor ruled upon below. State v. Patterson, 324 S.C. 5, 482 S.E.2d 760,
cert. denied, ___ U.S. ___, 118 S.Ct. 146 (1997).
The test for competency to stand trial or continue trial is
whether the defendant has the sufficient present ability to consult with his
lawyer with a reasonable degree of rational understanding and whether he
has a rational, as well as a factual, understanding of the proceedings
against him. Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d
103 (1975); Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d
824 (1960); State v. Nance, 320 S.C. 501, 466 S.E.2d 349, cert. denied,
___ U.S.___, 116 S.Ct. 2566, 135 L.Ed.2d 1083 (1996); State v. Bell, 293 S.C.
391, 360 S.E.2d 706 (1987), cert. denied, 484 U.S. 1020, 108 S.Ct. 734, 98
L.Ed.2d 682 (1988). The purpose of requiring a defendant to be competent
is "to ensure that he has the capacity to understand the proceedings and
to assist counsel." Godinez v. Moran, 509 U.S. 389, 402, 113 S.Ct. 2680,
2688, 125 L.Ed.2d 321, 329 (1993); see also Bell v. Evatt, 72 F.3d 421 (4th
Cir. 1995), cert. denied, ___ U.S. ___, 116 S.Ct. 2533, 135 L.Ed.2d 1056
(1996) (finding the trial judge only had to ensure the defendant had the
capacity to understand, the capacity to assist, and the capacity to
communicate with his counsel, not that the defendant was acting in
accordance with his capacity). A defendant must be competent throughout
the trial, not just at its commencement. Drope v. Missouri, supra. The
defendant bears the burden of proving his incompetence by a
preponderance of the evidence. State v. Nance, supra. The trial court's
determination of competency will be upheld if it has evidentiary support
and is not against the preponderance of the evidence. Id.
5Defense counsel informed the trial court prior to closing arguments
in the penalty phase that they had advised appellant not to address the
jury. However, the mere fact that appellant chose to disregard his
lawyer's advice does not make him incompetent to stand trial. See State
v. Bell, 293 S.C. 391, 360 S.E.2d 706 (1987), cert. denied, 484 U.S. 1020,
108 S.Ct. 734, 98 L.Ed.2d 682 (1988); Adams v. Aiken, 965 F.2d 1306 (4th.
Cir. 1992), judgment vacated on other grounds by, 511 U.S. 1001, 114
S.Ct. 1365, 128 L.Ed.2d 42 (1994).
STATE v. KELLY
We uphold the trial court's determination that appellant was
competent. In reaching his conclusion, the trial judge considered Dr.
Tidler's testimony, his own observations and appellant's testimony. See
22A C.J.S. Criminal Law § 554 (1989) (trial judge is sole judge of the
credibility of witnesses and the weight to be given their testimony, and he
also is entitled to evaluate the conflicting testimony). Dr. Tidler found
appellant possessed a rational and factual understanding of the
proceedings. Further, contrary to Dr. Tidler's assertion that appellant was
irrationally disregarding his counsels' advice not to testify, appellant
indicated he was following his counsels' advice and did not want to testify.
Thus, appellant was capable of consulting with and assisting his defense
lawyers. Because there is evidentiary support for the conclusion reached
by the trial court, and a finding of competency based on the record is not
against the preponderance of the evidence, we affirm on this issue.
After reviewing the entire record, we conclude the death
sentence was not the result of passion, prejudice, or any other arbitrary
factor, and the jury's finding of the statutory aggravating circumstance of
two or more persons were murdered by the defendant by one act or
pursuant to one scheme is supported by the evidence. See S.C. Code Ann.
§ 16-3-25 (1985). Further, we hold the death penalty is neither excessive
nor disproportionate to that imposed in similar cases. See State v.
Williams, 321 S.C. 327, 468 S.E.2d 626, cert. denied, ___ U.S. ___, 117
S.Ct. 230, 136 L.Ed.2d 161 (1996); State v. Wilson, 306 S.C. 498, 413
S.E.2d 19, cert. denied, 506 U.S. 846, 113 S.Ct. 137, 121 L.Ed.2d 90
(1992); State v. Atkins, 303 S.C. 214, 399 S.E.2d 760 (1990), cert. denied,
501 U.S. 1259, 111 S.Ct. 2913, 115 L.Ed.2d 1076 (1991); State v.
Kornahrens, 290 S.C. 281, 350 S.E.2d 180 (1986), cert.. denied, 480 U.S.
940, 107 S.Ct. 1592, 94 L.Ed.2d 781 (1987); State v. Lucas, 285 S.C. 37,
328 S.E.2d 63, cert. denied, 472 U.S. 1012, 105 S.Ct. 2714, 86 L.Ed.2d 729
MOORE and WALLER, JJ., concur. FINNEY, C.J., dissenting in separate opinion
and TOAL, A.J., concurring.
STATE v. KELLY
FINNEY, C.J. (Dissenting): I respectfully dissent. I would
reverse and remand. In my view, the inappropriate possession and
use of the extraneous pamphlet by jury members so tainted the jury
that its contents affected the ability of the jury to be fair and
impartial at both the guilt and penalty phases of appellant's
After a recess at the close of the presentation of penalty
phase evidence, the trial judge held a conference in chambers with
counsel and the appellant. The judge advised that he had received
from a juror a note which stated that a pamphlet was being passed
around in the jury room concerning God's word on the death penalty.
Juror S was brought into chambers and the following is a portion of
her examination by the judge.
THE COURT: Can you tell me a little bit about what that
THE JUROR: I haven't had it in my hands, so I don't know,
but I saw the outside cover of it. It says -- it's like
God's word on criminal punishment; and I know they have
that; and one of the girls brought her Bible this
morning. She has been like quoting passages and having
everybody read out of the Bible. Well, not everybody,
but like two people and having them read some stuff. I
mean, I'm one of the most Christian people you can ever
meet, but I don't think this is the time or the place.
THE COURT: All right. Have you seen this pamphlet?
THE JUROR: I've seen the outside of it. I have not looked
inside of it.
THE COURT: Do you know if any other jurors have seen it?
THE JUROR: Yes, they have.
THE COURT: Can you tell me how many?
THE JUROR: I can't think how many, but I can say probably at
least four -- at least.
BY THE COURT: Do you know which ones?
THE JUROR: [Juror O] has it. I saw her put it in her purse.
. . .
BY THE COURT: Is she the one that brought it?
THE JUROR: Yes, I'm almost positive she is the one that
brought it. I mean, it is in her purse right now. I saw
her put it in there. There's her; there's I think four
of them have seen it. I'm pretty sure [Juror H] has.
I'm not positive on [Juror H], but I'm pretty sure she
THE COURT: That's [Juror H].
STATE v. KEL.LY
THE JUROR: Yes. And also I think [Juror A] has seen it --
[Juror A]. I didn't realize until, you know, the last
person was looking at and they had been talking about it,
but I did not know what it was until I saw the outside
cover of it.
. . .
THE COURT: All right. And in so far as the reading of
the scriptures, is that something that they have done
THE JUROR: Yes. I mean, I just heard yell out, you know,
read Deuteronomy, like 4:16, or something like that, and
that's a good one to read, this one, and that one will
make you think, or something like that.
At the conclusion of her examination, Juror S was sent to a
separate jury room, and each of the other jurors was examined out
of the presence of the other jurors. The trial judge asked whether
they had personally seen, read, been confronted by or exposed to
any materials or literature other than the testimony and evidence
presented in the courtroom or any discussions concerning the case
besides jury deliberations at the conclusion of the guilt phase.
Ten of the jurors, including Jurors A, H, O, and the
alternate, responded in the negative. Juror P qualified his
response by saying that he had not seen anything "concerning this
case or trial." Juror S was recalled to give a more detailed
description of the pamphlet. The remaining eleven jurors and the
alternate were then brought in separately and questioned
specifically about the pamphlet. Eight, including Juror P, denied
that a pamphlet or any other literature was passed around or
discussed in the jury room. In the pertinent portions of their
examination, the remaining four responded as follows.
From the examination of Juror OR:
THE COURT: . . . Have you since this trial began read a
pamphlet entitled God's Word on Criminal Punishment?
THE JUROR: Yes, sir.
THE COURT: You have? Could you tell me what it says?
THE JUROR: I couldn't really remember what it said. I
just was reading through it while we was waiting.
THE COURT: When was that?
THE JUROR: This morning.
STATE v. KELLY
Juror W stated that she had seen a pamphlet, but had neither
seen the name on it nor held it. She recalled one juror saying to
another "here, read, you know, you might want to read this," or
something . . .
From the examination of Juror H:
THE COURT: Since the jury has been placed together and
sequestered, have you read a pamphlet entitled God's word
on Criminal Punishment?
THE JUROR: I've seen it floating around. I haven't actually
read it myself.
THE COURT: You haven't read it.
THE JUROR: I have looked at it.
THE COURT: I beg your pardon?
THE JUROR: I have looked at it, but I haven't actually
read it as far as reading it,
Juror O admitted obtaining the pamphlet prior to sequestration
from her "prayer partner," and stated that she had been reading it
for reassurance that she was making the proper decision.
Appellant moved for a mistrial, asserting that the jurors had
been less than truthful when first questioned, that at least four
jurors had been tainted by the pamphlet, and that because Juror O
had obtained the pamphlet prior to the commencement of trial, she
harbored a bias toward guilt and capital punishment.1a The trial
judge removed Juror O from the jury, but denied the motion for a
On appeal, appellant argues that the trial judge erred in
allowing the trial to proceed with a jury whose deliberations had
been tainted by the introduction of extraneous material. I agree.
I concur in so much of the majority's opinion as alludes to
the criteria for a fair and impartial jury as set out in the Sixth
1aWe note that in his argument to the trial judge, counsel
for appellant did not explicitly assert that the evidence showed
that at least some of the jurors were engaging in premature
deliberations. We view such misconduct as very serious;
especially where, as here, the jury has been warned against it.
See, e.g., Gallman v. State, 307 S.C. 273, 414 S.E.2d 780
STATE v. KELLY
and Fourteenth Amendments of the United States Constitution;
Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126
1976; Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751
(1961); and S.C. Const. art I, §§ 3,14.
However, removing Juror O from the jury was inadequate to cure
the prejudicial effect of the pamphlet. The record reflects that
at least four jurors had involvement with the pamphlet. Excluding
Juror O, two of the four admitted either looking at or reading
through the pamphlet in the jury room. "It is fundamental that
every litigant who is entitled to trial by jury is entitled to an
impartial jury, free to the furtherest extent practicable from
extraneous influences that may subvert the fact-finding process."
Haley v. Blue Ridge Transfer Co., 802 F.2d 1532, 1534 (1986); State
v. Cameron, 311 S.C. 204, 207, 428 S.E.2d 10, 12 (Ct. App. 1993).
Where the misconduct involves the jurors' exposure to outside
influences, the "cases are strongest in which the juror has lent
himself to such influence as signified a willingness to receive
advice or favors." State v. Rowell, 75 S.C. 494, 511, 56 S.E.
23,29 (1906). Contrary to the majority's view, I find in this
record ample evidence that the jury had access and exposure to the
pamphlet throughout the morning. When the judge examined the
jurors the second time, at least one juror besides Juror O admitted
to "reading through the pamphlet while we were waiting," on the
morning in question. Another "saw it floating around," turned a
page or two and "saw" the captions; and a third juror "saw" the
pamphlet. Not until after mid-day did one of the other jurors
advise the judge of the pamphlet. Obviously, members of the jury
were willing to receive the information and advice contained in the
Furthermore, the jurors were less than forthcoming when
questioned by the judge. Compare State v. Rowell, supra. Their
demeanor with regard to candor raises concern when viewed in
connection with daily admonitions by the trial judge that the only
thing they were "to consider is what they see and hear in that
courtroom, nothing more and nothing less."
I would hold that the extraneous material in the jury room and
the presence of Juror O throughout most of the proceedings so
prejudiced the outcome of both phases of appellant's trial that a
new trial is mandated. State v. Wasson, 299 S.C. 508, 386 S.E.2d
255 (1989). First, Juror O stated that she obtained the pamphlet
prior to sequestration, which raises the stark implication that
STATE v. KELLY
guilt was already presumed and that appellant's death sentence was
a foregone conclusion as a result of the jury being tainted by the
influence of Juror O and through its exposure to the pamphlet.
Second, the inordinate brevity of jury deliberations in this
capital case under the circumstances here raises serious questions
relating to the deliberative process. The jury required
approximately thirty minutes to render the guilty verdict and less
than two hours to return the death sentence. In my opinion, the
record clearly infers that the jury was improperly influenced
throughout its deliberations by Juror O and the author's views as
expressed in the pamphlet.
The 32 page pamphlet, entitled God, Law, and Capital
Punishment, by Richard W. De Haan, "teacher of the Radio Bible
Class, worldwide ministry through radio, television, literature"
bears a copyright date of 1974 and is a part of the record on
appeal. Author De Haan makes an impassioned plea in favor of
capital punishment and cites uncorroborated facts and
unsubstantiated statistics to support his argument.
In my judgment, exposing appellant's jury to the pamphlet is
tantamount to permitting an advocate of capital punishment to offer
unauthorized evidence in circumvention of the constitution,
statutory and common law, and the rules of court; to make
unregulated rebuttal of evidence properly admitted at trial; and to
present unrestrained argument in support of the death sentence.
In charging his interpretation of God's law on capital
punishment, the author assumes the role of pre-eminent trial judge
and implies that where there may be conflict between the law as
charged by the state judge and that charged by the author, the
author's instructions should be controlling. Mr. De Haan, through
his pamphlet, is present in the jury room as a thirteenth juror
deliberating upon evidence and the law received from two sources -
the trial court and his pamphlet.
The following are excerpts from the pamphlet. "Over the past
decade, nearly 300 policemen have been killed while performing
their duties." (pg. 1) Quoting the distraught father of a girl
who had been raped and murdered,"This sort of thing has happened
all too often, and must be stopped!" (pg. 2)
STATE v. KELLY
I find it difficult to minimize the prejudicial effect of the
following comments upon the emotions of a jury considering the
guilt and punishment of a defendant on trial for his life.
Whenever this principle of an "eye for ad eye . . . " is
followed by a society, mankind is bettered. God is
pleased when this expression of His will [capital
punishment] is carried out ... (pg. 13) We must not fail
to carry out the proper sentence [capital punishment] . . .
He has given specific demands for the punishment of those
who break these laws, including the death penalty for
deliberate murder. . . . The Lord in His perfect holiness
and justice therefore has ordained that the deliberate
killer must pay for his crime by forfeiting his own right
to life. (pp. 18-19) Government must see to it that
God's principles are in force, and this includes capital
punishment for willful murder. (p. 21)
. . . In 1966 and 1967, when the death penalty was still on
the books in our country, not one policeman was killed
from ambush. But during the 4 years from 1968 through
1971, after capital punishment was no longer a threat, 49
policemen died as a result of being shot down. . . .
The price of leniency toward murderers is heavy. . . .
Hundreds of people have been slain by men released after
serving time for a murder conviction. J. Edgar Hoover
told a congressional subcommittee that 19.men who killed
policemen from 1960 to 1970 had previously been convicted
of first-degree murder.
In conclusion, then, capital punishment is reasonable and
fair. It meets God's holy demands of justice . . . Most
important of all, it is commanded by God. Through
revelation He established it as the way to deal with
killers. He expects every society to carry it out, and
is displeased when a community disregards this important
Mr. De Haan concludes the chapter with a cautionary note to
the jury. "Let me ask you a personal question. Are you prepared
for the day you must stand before God's tribunal? His judgments
are always fair, and He never makes mistakes." (pp. 21-23)
STATE v. KELLY
The trial court is under an obligation to safeguard the right
to trial by an impartial jury throughout the proceedings. The
right to an impartial jury is not satisfied until the collective
judgment of the jury is the product of a trial by an impartial
trier of fact, capable and willing to follow the law and render an
impartial verdict on the evidence. 50A C.J.S. Juries § 225.
Although this dissent is specific as to Issue I of appellant's
appeal, insofar as it relates to the impartiality of appellant's
trial jury, reference is made to Issue II. The record reflects
that while he was a student in 1986, Juror P led a group of 40
students on a trip to Columbia to support the execution of Terry
Roach. Voir dire examination for appellant's jury did not
specifically address Juror P's participation in a death penalty
rally and the facts were not divulged prior to trial. When
questioned about his "position" on the death penalty, Juror P
admitted that he had thought about the death penalty, but indicated
that he could be fair and impartial.
After the jury returned appellant's sentence, a newspaper
quoted Juror P as saying, "I think the only thing I regret is that
[appellant] has only one life to give for the two he took." When
considered in its totality, the compelling conclusion is that the
outcome of both phases of appellant's trial was influenced by
cumulative bias on the part of his jury.
I find that the interjection of extraneous facts and editorial
comments into the jury's deliberations created bias and prejudice
against the appellant and affected the ability of the jury to
render fair and impartial verdicts at both phases of appellant's
bifurcated trial. I would reverse appellant's conviction and death
sentence and remand for a new trial.
TOAL, A. J. , concurs.