THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
Sterling Barnett Spann, Appellant.
Appeal From York County
John C. Hayes, III, Circuit Court Judge
Opinion No. 24902
Heard September 23, 1998 - Filed February 16, 1999
John H. Blume, of Cornell Law School, of Ithaca,
New York; Diana L. Holt, of Georgia Resource Center, of
Atlanta, Georgia; and Pamela A. Wilkins, of
Columbia, for appellant.
Attorney General Charles M. Condon, Assistant
Deputy Attorney General Donald J. Zelenka, and
Assistant Attorney General Lauri J. Soles, all of
Columbia, for respondent.
Finney, C.J.: This is an appeal from the denial of a new trial
motion based upon after-discovered evidence. We find the trial judge erred in
finding certain expert evidence could have been discovered by the exercise of
due diligence, and reverse and remand for a new trial.
STATE v. SPANN
Appellant was convicted of the 1981 sexual assault, robbery, and
murder of Melva Neill, as well as the burglary of her home, and received a
death sentence. See State v. Spann, 279 S.C. 399, 308 S.E.2d 518 (1983). In
order to prevail in this new trial motion, appellant must show the after-
(1) is such that it would probably change the result
if a new trial were granted;
(2) has been discovered since the trial;
(3) could not in the exercise of due diligence have been
discovered prior to the trial;
(4) is material; and
(5) is not merely cumulative or impeaching.
State v. Prince, 316 S.C. 57) 447 S.E.2d 177 (1993).
Appellant presented both expert and lay testimony in support of
his motion. The circuit court judge held the expert evidence failed the due
diligence prong of the test. He denied the new trial motion as to the lay
evidence, holding that some of that evidence was merely impeaching, and
some was simply not credible. We reverse the order as it relates to the expert
testimony and the due diligence issue. Since reversal on this ground entitles
appellant to a new trial, we need not address his remaining issues.
In order to understand the after-discovered evidence, it is
necessary to review certain events which occurred within a twelve mile radius
in York County between July and November 1981. On July 18, 1981, the
body of Mary Ring was discovered in the bathtub of her home. Ms. Ring was
a heavy-set white woman, fifty-seven years old, who had been beaten about
the head, sexually assaulted, and strangled to death. Her nude body was
found in her partially filled tub. Approximately two months later, the nude
body of eighty-one year old Melva Neill was found in the bathtub of her home.
Ms. Neill had been beaten around the face and chest, had been brutally
sexually assaulted, and strangled, her body then placed in the partially filled
tub. Ms. Neill was a heavy-set white woman.
On November 16, 198 1 , the mostly nude body of Bessie Alexander
was found on her dining room floor. Ms. Alexander had been injured on her
face and neck, and there were bruises on other parts of her body. She too had
been sexually assaulted, and then strangled. Ms. Alexander was a heavy-set
white woman who, like Ms. Ring and Ms. Neill, was living alone. Ms.
Alexander's bathtub was inaccessible from her home's interior, but her body
STATE v SPANN
had been drenched in liquids, including fruit juice.
Ms. Ring's killer was never. found. Appellant was arrested for the
murder of Ms. Neill on September 18, 1981, and subsequently convicted.
Johnny Hullett was convicted of the crimes against Ms. Alexander, committed
approximately two months after appellant was jailed. At the time of the
Alexander murder, investigating officers said in a published newspaper story
that they perceived no connection between the three murders. The local
pathologist who performed two of the three autopsies and was-present at the
third did not recognize any pattern in 1981. The pathologist testified at
appellant's new trial hearing that although he still felt there were significant
differences between the deaths, he acknowledged that, upon reflection, the
similarities were "scary."
At the new trial hearing appellant presented the testimony of
three expert witnesses: a forensic pathologist (Dr. Spitz); a forensic
psychiatrist (Dr. Tanay); and an expert in crime scene analysis and criminal
personality profiling (Mr. Ressler). Dr. Spitz testified that all three women
were strangled in a unique way, a method he had never before observed in
forty-three years of practice. He testified to other factual similarities between
the crimes, and opined that one perpetrator was responsible for all three
murders. Dr. Tanay testified the three murders were committed by a single
individual, a sexual sadistic murderer. He testified to the psychiatric
characteristics of these types of killers, and opined based upon his
examination of appellant that it was "impossible" that appellant had
committed these offenses. Dr. Tanay also testifed that sexual sadistic killers
are almost always psychiatrically disturbed white males. Appellant is a black
man with no history of psychiatric problems; Johnny Hullett is a white male
with a long psychiatric history. Finally, Mr. Ressler profiled the killer of
these three women as a white male in his mid-20's to mid-30's with a history
of mental illness, who was either single or had a dysfunctional marriage, a
person with bizarre fantasies, a history of childhood abuse, and knowledge of
the area. Appellant does not fit this profile.
The circuit court judge found the expert testimony "thought-
provoking" and "intriguing", and specifically found that Mr. Ressler's
testimony "raise[d] a reasonable inference as to [appellant's] innocence." The
judge rejected the testimony of all three experts as grounds for the granting of
a new trial, however, finding the evidence and science upon which their
opinions were based was all in existence at the time of appellant's trial, and
thus could have been discovered by his attorneys with the exercise of due
STATE v. SPANN
diligence. We disagree. In order for the attorneys to have pursued these
types of experts, they would first have needed to recognize the similarities
between the crimes, similarities not apparent at the time even to the experts
(i.e. law enforcement investigators and the pathologist) involved in all three
cases. We hold that the due diligence standard imposed upon trial attorneys
cannot fairly be said to be this high.
We find the circuit court judge committed an error of law, under
the unusual facts of this case, in holding the newly discovered expert evidence
could have been discovered by the exercise of due diligence. State v. Prince,
supra ; State v. Parker, 249 S.C. 139, 153 S.E.2d 183 (1967). Accordingly, we
reverse and remand for a new trial.
REVERSED AND REMANDED.
TOAL, MOORE, WALLER, and BURNETT, JJ., concur.