THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
Donney S. Council, Appellant.
Appeal From Aiken County
Henry F. Floyd, Judge
Opinion No. 24932
Heard October 8, 1998 - Filed April 5, 1999
Assistant Appellate Defender Robert M. Dudek, of
the South Carolina Office of Appellate Defense, of
Columbia, for appellant.
Attorney General Charles M. Condon, Chief Deputy
Attorney General John W. McIntosh, Assistant
Deputy Attorney General Donald J. Zelenka,
Assistant Attorney General Lauri S. Soles, and
Assistant Attorney General Robert E. Bogan, all of
Columbia; and Solicitor Barbara R. Morgan, of
Aiken, for respondent.
BURNETT, A.J.: Appellant was indicted for murder,
kidnapping, administering poison, grand larceny of A vehicle, burglary,
larceny, and two counts of criminal sexual conduct in the first degree.
The jury found appellant guilty on all the charges. Appellant was
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sentenced to death for the murder;1 thirty years concurrent for
kidnapping;2 a consecutive life sentence for the burglary; twenty years
consecutive for administering a poison; thirty years consecutive for each
charge of criminal sexual conduct; five years concurrent for grand larceny
of a vehicle; and thirty days concurrent for petty larceny. We affirm.
Late Thursday afternoon, October 8, 1992, Evelyn Helminiak
visited with her neighbor Elizabetth Gatti, a seventy-two year old widow.
Mrs. Gatti was preparing dinner when Mrs. Helminiak arrived. The next
day, another neighbor, Charles Fields, became concerned about Mrs. Gatti
because her morning newspaper was still in the driveway and her car was
gone. Mr. Fields testified Mrs. Gatti was a creature of habit who
retrieved her newspaper every morning at 4:30 a.m., read the paper, and
threw it over to Mr. Fields' driveway by 8:00 a.m. so he could read it.
When the newspaper was still in the driveway and the car was still gone
on Friday evening, Mr. Fields called emergency services.
When the authorities entered Mrs. Gatti's house, perishable
food items were found on the kitchen counter. Several of the rooms in
Mrs. Gatti's house had been ransacked. Mrs. Gatti's body was discovered
underneath a bedspread in her basement. She had been hogtied with a
white cord and layers of duct tape were wrapped around her entire head.
Her clothes had been ripped, and the crotch of her underwear had been
cut out. Surrounding her body were various bottles of cleaning fluids.
Mrs. Gatti had been sexually assaulted.
1 'The jury found the following statutory aggravating circumstances:
(1) murder was committed while in the commission of criminal sexual
conduct; (2) murder was committed while in the commission of kidnapping;
(3) murder was committed while in the commission of burglary; (4) murder
was committed while in the commission of a larceny with the use of a
deadly weapon; (5) murder was committed while in the commission of
killing by poison; and (6) murder was committed while in the commission
of physical torture. S.C. Code Ann. � 16-3-25 (1985).
2 This sentence is ineffective in light of appellant's sentence under
S.C. Code Ann. � 16-3-20 (1985). S.C. Code Ann. 16-3-910 (1985).
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Dr. Nichols, the pathologist who performed the autopsy on
Mrs. Gatti, testified her body was covered with numerous lacerations and
bruises, and someone had attempted to manually strangle her. Further, a
gaping laceration extending from her vagina into the rectal area indicated
penetration by a very stiff foreign object. Dr. Nichols testified the cause of
death was asphyxiation due to mechanical suffocation as a result of the
duct tape, and contributory to the cause of death was the ingestion and
aspiration of cleaning fluids and the binding ligatures on the wrists. Dr.
Nichols testified the aspiration indicated Mrs. Gatti was forced to drink
the cleaning fluids. According to Dr. Nichols, Mrs. Gatti lived 2-4 hours
after the vaginal/rectal injury occurred.
On October 11, 1992, the authorities found Mrs. Gatti's car
near an apartment complex where appellant sometimes stayed. Appellant
was arrested for the crimes on October 12, 1992. In two separate
statements, appellant admitted to being in Mrs. Gatti's house on the night
she was killed; however, he asserted he had gone to her house with a man
identified as "Frankie J."3 Appellant denied any wrongdoing; instead, he
blamed the crimes on his companion. Appellant admitted, however, to
SLED agent Wayne Mitchell that he had sexual intercourse with Mrs.
Gatti. Further, appellant told SLED agent Danny Choate and Captain
Wayne Huff, an investigator for the Aiken County Sheriffs Department,
that he had sex with Mrs. Gatti.
A shoeprint taken from a chair in Mrs. Gatti's house was
identified as matching shoes taken from appellant. Residue found on the
chair positively matched debris found on appellant's shoes. Fingerprints
taken from Mrs. Gatti's car and from items in her car were identified as
belonging to appellant. Hair samples taken from appellant were
consistent with hairs found in Mrs.Gatti's home. Semen taken from a
tissue in Mrs. Gatti's house was consistent with appellant's Semen.
Several items identified as belonging to Mrs. Gatti were found in
appellant's girlfriend's apartment.
Appellant's girlfriend's cousin, Earthlene Danley, testified she
was in Mrs. Gatti's car with appellant the day after Mrs. Gatti's murder
3 "Frankie J" was later identified as Frank Douglas. None of the
physical evidence found in Mrs. Gatti's house or in her car matched
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and had been with appellant when he went to a bank drive-thru in North
Augusta and cashed a check he took from the glove compartment of Mrs.
Gatti's car. Further, the testimony of bank employees and handwriting
experts established appellant had forged three of Mrs. Gatti's checks and
cashed them at various banks.
Mrs. Gatti's newspaper carrier positively identified appellant as
the man she saw leaving Mrs. Gatti's house in the early morning hours of
Friday, October 9, 1992.
I. Did the trial judge err in qualifying Juror T?
II. Did the trial judge err in refusing to grant appellant's
motion for a mistrial where a State's witness referred to
appellant's prior criminal record during direct examination?
III. Did the trial judge err in admitting appellant's inculpatory
statements by finding appellant had waived his Sixth
Amendment right to counsel prior to making these statements?
IV. Did the trial judge err in admitting mitochondrial DNA
V. Did the trial judge err in refusing to allow appellant to
introduce polygraph evidence during the penalty phase of the
Appellant claims the judge erred in finding Juror T qualified
because during her voir dire she was unable to definitely state she could
presume appellant was innocent until the State proved his guilt beyond a
reasonable doubt. We disagree.
Initially, when the trial judge questioned her during voir dire,
Juror T expressed uncertainty as to whether she could presume appellant
was innocent. However, after the trial judge explained the law, Juror T
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stated several times she could presume appellant innocent until the State
proved his guilt beyond a reasonable doubt. Although Juror T continued
to equivocate on some questions as to whether she could presume
appellant innocent, each time the judge clearly explained the law to her,
she affirmed she could presume appellant innocent. During examination
by the solicitor, Juror T indicated she would follow the instructions and
determine the facts from the evidence introduced during the trial.
Further, on cross-examination by defense counsel, Juror T again stated she
could presume appellant innocent. However, Juror T responded with
uncertainty to defense counsel's final question.4
Defense counsel moved to disqualify Juror T for cause arguing
the juror was unable to disregard her preconceived beliefs and presume
appellant was innocent. Over appellant's objection, the judge qualified
Juror T. Juror T was placed on the jury after appellant had exhausted
his peremptory challenges.
The constitutional standard of fairness requires that a
defendant have a panel of impartial, indifferent jurors. U.S. Const.
Amend. 14; State v. Bell, 302 S.C. 18, 393 S.E.2d 364, cert. denied, 498
U.S. 881, 111 S.Ct. 227, 112 L.Ed.2d 182 (1990).
In reviewing an error as to the qualification of a juror, this
Court engages in a three step analysis. First, appellant must show that
he exhausted all of his peremptory challenges. Second, if all peremptory
challenges were used, this Court must determine if the juror was
erroneously qualified. Third, appellant must demonstrate this error
deprived him of a fair trial. State v. Green, 301 S.C. 347, 392 S.E.2d 157,
cert. denied, 498 U.S. 881, 111 S.Ct. 229, 112 L.Ed.2d 183 (1990).
In a capital case, the proper standard in determining the
qualification of a prospective juror is whether the juror's views would
prevent or substantially impair the performance of his duties as a juror in
accordance with his instructions and his oath. State v. Green, supra
4 Defense Counsel posed the following question to Juror T: BR>
Q. Okay. Can you tell me that you're coming in to this
thing with a completely blank page and no feelings one way or
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(citing Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 853, 83
L.Ed.2d 841 (1985)); State v. George, 323 S.C. 496, 476 S.E.2d 903 (1996),
cert. denied, _ U.S. _, 117 S.Ct. 1261, 137 L.Ed.2d 340 (1997).
The determination of whether a juror is qualified to serve on a death
penalty case is within the sole discretion of the trial judge and is not
reviewable on appeal unless wholly unsupported by the evidence. State v.
Davis, 309 S.C. 326, 422 S.E.2d 133 (1992), cert. denied, 508 U.S. 915, 113
S.Ct. 2355, 124 L.Ed.2d 263 (1993). When reviewing the trial court's
qualification or disqualification of prospective jurors, the responses of the
challenged jurors must be examined in light of the entire voir dire. State
v. Green, supra. The ultimate consideration is that the juror be
unbiased, impartial and able to carry out the law as explained to him. Id.
After reviewing the entire voir dire of Juror T, we conclude the
trial judge did not err in qualifying this juror. After the trial judge
explained the law to Juror T, she stated repeatedly she could presume
appellant was innocent until and unless the State proved him guilty.
Further, Juror T stated she could follow the judge's instructions.
Although Juror T expressed uncertainty in her response to the final
question posed by defense counsel, as pointed out by the trial judge, this
question was ambiguous and prospective jurors never responded correctly.5
Juror T's equivocation when asked this ambiguous question does not
negate her previous definite answers. See State v. Holmes, 320 S.C. 259,
464 S.E.2d 334 (1995), cert. denied, 517 U.S. 1248, 116 S.Ct. 2507, 135
L.Ed.2d 197 (1996) (after reviewing Juror Hutto's entire voir dire, this
Court concluded there was no abuse of discretion in qualifying her to serve
even though at the outset of voir dire, Juror Hutto stated she thought a
defendant had to prove his or her innocence; however, when told the law
presumed a defendant was innocent, and asked if she could follow this
presumption, she answered yes).
Appellant argues the trial judge erred in refusing to grant a
mistrial when SLED agent Charles Counts testified he retrieved
appellant's fingerprint card from SLED records for comparison. Appellant
claims this testimony was highly prejudicial because it was a clear
reference to appellant's prior criminal activity.
5 The correct response would be, "No, I am for the defendant."
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Charles Counts, a crime scene processor for SLED, testified he
met appellant on October 11, 1992, while he was processing Mrs. Gatti's
car for evidence. At this initial meeting, appellant, who identified himself
as "James Counts," provided authorities with his fingerprints. Counts
testified appellant's fingerprints were found on Mrs. Gatti's car and on
items found in her car. The solicitor asked Counts to "tell the members of
the jury how many different sets of fingerprints you had looked at to
compare, and the names of the individuals submitted to you to compare."
At the time of the initial comparison, I was supplied or had in
my possession, fingerprints, one fingerprint, an inked palm
impression bearing the name of James Counts which I had
taken on October the 11th at the apartment complex. A few
days later or a day later, I was contacted by the sheriffs
department and said, "that subject is actually Mr. Council." I
went over to the SLED records, two buildings over, retrieved a
card with the name Council on it and compared those
impressions and in fact, they were produced by the same
Defense counsel moved for a mistrial arguing Counts'
testimony implied to the jury appellant "had a prior criminal record, that
he had been printed before." Defense counsel stated in deciding whether
appellant would testify much thought was given to whether appellant
would, be harmed by having his prior criminal record admitted into
evidence. Further, defense counsel pointed out to the court that great
efforts had been made to exclude references to any prior record from the
statements made by appellant. Defense counsel argued because a state's
witness had informed the jury that appellant had a fingerprint card at
SLED, the jury now "knows that Mr. Council has a prior criminal record,
and based upon that, I don't think there's any way to give a curative
instruction to get the jury to forget that."
The trial judge agreed that a curative instruction would only
make the situation worse. However, the trial judge refused to grant a
mistrial because he found Counts' statement could be construed several
ways, including Counts re-inked appellant. The trial judge found the jury
probably missed the implication, and further, because appellant had
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already put his own credibility at issue by lying to the authorities about
his identity when he provided them with his fingerprints, testimony
attacking appellant's credibility, including his prior criminal record, was
The decision to grant or deny a motion for a mistrial is a
matter within a trial court's sound discretion, and such a decision will not
be disturbed on appeal absent an abuse of discretion amounting to an
error of law. State v. Simpson, 325 S.C. 37, 479 S.E.2d 57, cert. denied,
U.S. _, 117 S.Ct. 2460, 138 L.Ed.2d 217 (1997); State v. Wasson, 299 S.C.
508, 386 S.E.2d 255 (1989). A mistrial should not be granted unless
absolutely necessary. State v. Wasson, 299 S.C. 508, 386 S.E.2d 255
(1989). 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.
In this case, it is questionable whether the jury even
understood the implication of Count's statement. This Court has held that
similar references to a defendant's past conduct were too vague to be
prejudicial. See State v. Singleton, 284 S.C. 388, 326 S.E.2d 153 cert.
denied , 471 U.S. 1111, 105 S.Ct. 2346, 85 L.Ed.2d 863 (1985) (references
to appellant's prior crimes were vague); State v. George, supra (appellant's
possible drug dealing was merely suggested and no testimony was
presented concerning such behavior). Further, the State never attempted
to introduce appellant's prior criminal record during the guilt phase of the
trial. Instead, only an inadvertent vague reference was made to
appellant's prior record. See State v. Robinson, supra (this Court pointed
out that even if the testimony created the inference in the jury's mind
that the accused had committed another crime the State never attempted
to prove the accused had been convicted of some other crime). Thus, we
conclude this reference was not prejudicial.7
6 The trial judge was incorrect infinding appellant had put his
character in issue by lying to the authorities. An accused must introduce
evidence of his character at trial before the prosecution can attack it. See
Rule 404(a), SCRE. Here, because appellant never testified or offered
other evidence of his good character, his character was never an issue.
7 This case can be distinguished from State v. Tate, 288 S.C. 104, 341
S.E.2d 380 (1986), where the Court found the error was prejudicial. In
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Appellant claims the trial judge erred in admitting into
evidence appellant's inculpatory statements made to SLED agents Wayne
Mitchell and Danny Choate and to Captain Wayne Huff on October 19,
1992, because they were obtained in violation of his Sixth Amendment8
right to counsel. We disagree.
The trial judge held a Jackson v. Denno9 hearing to determine
the admissibility of four statements made by appellant to various
authorities about his involvement in Mrs. Gatti's murder. The first
statement was made on October 12, 1992, the day of appellant's arrest. In
this statement, appellant. admitted he was present at Mrs. Gatti's house,
but blamed Frank Douglas for the crimes.
Appellant was arraigned on October 14, 1992. In response to
appellant's request at the arraignment, an attorney was appointed to
represent him on October 16, 1992. At the Jackson v. Denno hearing,
appellant testified he was not aware an attorney had been appointed to
represent him. Appellant had not spoken with an attorney prior to
October 19, 1992. According to appellant, he only agreed to take a
polygraph exam on October 19, 1992. He did not agree to the questioning.
Investigator Norwood Bodie testified appellant "got word to us
that he wanted to talk to us" on October 19, 1992. Bodie obtained a
written request from appellant, which stated: "I, Donney S. Council, do
wish to speak with investigators of the Aiken County Sheriffs Office and
SLED.19 It was signed by appellant and witnessed by Bodie and Officer
Tate, appellant's mug shot was introduced into evidence. The date on the
mug shot was almost one year prior to the trial thus inferring to the jury
that appellant had a prior criminal record. In this case, the fingerprint
card was never introduced into evidence, and there-fore the jury was not
aware of when SLED obtained the card. Therefore, there was no evidence
before the jury of when or for what purpose the fingerprint card was
8 U.S. Const. 6th Amend.
9 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).
STATE v. COUNCIL
Stuart. Appellant was then taken to the Sheriffs Office where Captain
Huff informed appellant of his Miranda10 rights and appellant waived his
rights. Appellant was then interviewed by Huff, Bodie, and SLED agent
Choate. In the October 19th statement, appellant again stated he had
accompanied Frank Douglas to Mrs. Gatti's house, but claimed he had not
participated in the crimes.
Appellant then wrote and signed a statement requesting that
he be given a polygraph exam. Huff and Choate transported appellant to
Columbia to be examined at SLED. After explaining to appellant his
rights and having appellant waive them, SLED agent Mitchell
administered the exam. After the exam, Mitchell told appellant his
answers showed deception. Appellant then admitted to Mitchell he had
sexual intercourse with Mrs. Gatti. Mitchell related appellant's admission
to Huff and Choate.
On the return trip to Aiken, appellant told Huff and Choate
several times: "Y'all ain't got shit on me." Huff told appellant: "Donney,
you don't know what we have on you. . . . Well we've got more than you
think and the best thing to do is let's not talk about it." Appellant
responded: "Well, you don't have any fingerprints. . . . Had I done
something like that I would have been wearing gloves or socks." Huff and
Choate began to talk to each other and ignore appellant. Appellant again
began to talk and Choate told appellant to be quiet. Appellant then
blurted out: "Well, I did fuck her. The bitch didn't have good pussy, so I
made her give me a blow job." Huff testified appellant laughed when he
made these statements. Choate pulled the car over and Huff made some
notes about appellant's statement. Appellant denied making the
inculpatory statements to Mitchell, Huff and Choate.
Defense counsel argued appellant was denied his Sixth
Amendment right to counsel when he made these inculpatory statements
on October 19, 1992. Defense counsel claimed appellant did not fully
understand his right to talk with an attorney; therefore, the waiver of his
Miranda rights was not voluntary. The trial judge admitted all four
10 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694
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The Sixth Amendment right to counsel attaches when
adversarial judicial proceedings have been initiated and at all critical
stages. Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d
631 (1986); State v. Register, 323 S.C. 471, 476 S.E.2d 153 (1996), cert.
denied, _ U.S. _, 117 S.Ct. 988, 136 L.Ed.2d 870 (1997); State v.
Kennedy, 325 S.C. 295, 479 S.E.2d 838 (Ct. App. 1996). The Sixth
Amendment right attaches only "post-indictment," at least in the
questioning statement setting. Michigan v. Harvey, 494 U.S. 344, 110
S.Ct. 1176, 108 L.Ed.2d 293 (1990: State v. Register, supra. When the
Sixth Amendment right to counsel has attached, if police initiate
interrogation after a defendant's assertion, at an arraignment or other
similar proceedings, of his right to counsel, any waiver of the defendant's
right to counsel for that police initiated interrogation is invalid unless the
defendant initiates the contact himself. Michigan v. Jackson, supra; State
v. Howard, 296 S.C. 481, 374 S.E.2d 284 (1988).
Appellant's Sixth Amendment right to counsel attached on
October 14, 1992, when he was arraigned. Further, appellant asserted his
right to counsel on October 14, 1992, when he requested appointment of
counsel. Counsel was appointed to represent appellant on October 16,
However, appellant initiated the contact with the authorities
on October 19, 1992; therefore, appellant's subsequent waiver of his right
to counsel was knowingly and intelligently made, and all his statements
made on this day were admissible.11 See State v. Howard, supra
(assuming defendant's right to counsel had attached, defendant had waived
that right because he initiated the contact with the police); Compare with
Michigan v. Jackson, supra (defendant's waiver of his Sixth Amendment
right to counsel was invalid where police initiated the contact). Under the
Sixth Amendment, a defendant who has asserted his right to counsel is
11 Appellant argues he could not have knowingly waived his right to
counsel since he was unaware counsel had been appointed. Further,
appellant claims knowledge that counsel had been appointed for him
should have been imputed from the court to the sheriffs department.
Because we find appellant initiated the contact with the authorities, it
does not matter whether appellant was unaware counsel had been
appointed nor does it matter whether knowledge of that appointment is
imputed from one state actor to another.
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always free to initiate contact with the authorities and waive this right. A
defendant is not required to consult with an attorney prior to initiating
contact in order for the waiver to be valid.
Appellant argues he only contacted the authorities in order to
let them know he was ready to take a polygraph exam that he previously
agreed to take at some time during the October 12, 1992 questioning.
However, his note does not indicate such a limited purpose.
Further, although appellant was clearly in custody when he
admitted to Huff and Choate he had sex with Mrs. Gatti, appellant's
statement was not the result of interrogation. Instead, his statement was
volunteered. See Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 16825, 64
L.Ed.2d 297 (1980); State v. Koon, 278 S.C. 528, 298 S.E.2d 769 (1982).
During the guilt phase of appellant's trial, John Ortuno, a
trace evidence examiner at SLED, testified the characteristics of pubic
hairs found at the crime scene were consistent with appellant's pubic hair.
Ortuno further determined Frank Douglas could not have been the donor
of the hair.
To confirm Ortuno's findings, the State sought to introduce
testimony from Joseph Dizinno of the F.B.I. laboratory regarding the
results of mitochondrial DNA (mtDNA) analysis performed on the hairs.12
12 Mitochondrial DNA is found in mitochondria, which are organelles
contained within the cytoplasm of a cell and which serve as the cell's
energy factories. Unlike nucleus DNA that contains genetic material
inherited from both the mother and the father, mtDNA only contains
genetic material inherited from the mother. Two advantages of mtDNA
are that there are many more copies of mtDNA in the cell than there are
copies of nuclear DNA since each cell contains many mitochondria but only
one nucleus and mtDNA is much more stable than nuclear DNA;
therefore, the chances of extracting mtDNA from a degraded sample is
increased. Further, unlike nuclear DNA which is only present in the,
living cells at the roots of a pulled hair, mtDNA is present in the shafts of
hair. Brian Museman, Taylor v. State, Rule 706, and the DNA Database:
Future Directions in DNA Evidence, 22 Oklahoma City University L. Rev.
STATE v. COUNCIL
The trial judge held an in camera hearing to determine the admissibility
of this evidence.
Dizinno testified he had extensive training in both hair and
fiber analysis and mtDNA analysis. Dizinno testified his mtDNA analysis
research began in 1992. Dizinno chose to sequence two regions of the
mtDNA because research conducted in Europe in 1983 found these two
areas to be very variable between individuals. Dizinno testified mtDNA
analysis has been used for research purposes since 1981 and over 600
papers have been written about mtDNA research. He testified mtDNA
analysis is a recognized methodology that has been used for many
purposes, including to identify bodies from the Vietnam War and the Gulf
War. Dizinno stated the mtDNA analysis has been reaffirmed in the
scientific community as reliable science. Dizinno testified his laboratory
started to use this technology to analyze forensic evidence in the summer
of 1996. Further, this was the second occasion someone from his lab had
testified regarding the results obtained from a mtDNA analysis.13 Dizinno
stated that mtDNA analysis confirms, based on a scientific objective
standard, the subjective microscopical comparison performed on the hairs.
Dizinno explained that mtDNA analysis is performed by
extracting the DNA from mitochondria. This DNA is then amplified and
examined to determine its sequences of As, Gs, Ts, and Cs. This sequence
is then compared to a sequence donated by a known person. If the
sequence is different, the person donating the known sample can be
eliminated as the donor of the unknown sample. If the sequence is the
same, the examiner compares the sequence to the database of mtDNA
sequences available to him to determine if he has ever seen that same
sequence. Validation studies showed that about 62% of the hairs analyzed
were sequenced on the first try. The other 38% could not be sequenced
because the DNA could not be extracted. Of the 62% that could be
13 The first occasion was at a trial in a Tennessee state court, six
weeks prior to appellant's trial. Tennessee has a statute which allows
DNA tests to be used as evidence in criminal cases under certain
circumstances. Mark Curriden, A New Evidence Tool: First Use o
Mitochondrial DNA Test in a U.S. Criminal Trial, 82-Nov. A.B.A. J. 18
STATE v. COUNCIL
sequenced, the reliability of getting a correct sequence was 100%.
The database used by Dizinno contained 742 known sequences
of which 319 were sequences obtained from African-Americans.14 Dizinno
testified that while he had found a match between unrelated Caucasians,
he had never found a match between unrelated African-Americans.
According to Dizinno, the two regions analyzed are most variable in
The results of this analysis excluded Frank Douglas as the one
who deposited the hair found at the crime scene. Further, Dizinno could
not exclude appellant as the one who deposited the hair found at the
crime scene. Based on the available database, Dizinno testified that most
probably the hair that was recovered from the crime scene belonged to
appellant. However, Dizinno admitted it was possible that the hair
belonged to another individual.
The trial judge found the evidence admissible under Rules 702
and 703, SCRE. In an abundance of caution, the trial judge further found
the evidence admissible under State v. Jones, 273 S.C. 723, 259 S.E.2d
129 (1979), and under Daubert v. Merrill Dow Pharmaceuticals, Inc., 509
U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The trial judge noted
the process had been subjected to peer review and publication; a known
potential rate of error existed; standards controlled the techniques and
operations; the F.B.I. laboratory validated the process; this technology and
underlying science has been accepted in the scientific community; and
while forensic application of this technology was a recent development, the
technology had been used for other purposes.
Appellant argues the trial judge erred in admitting the mtDNA
test results in this case because the forensic application of this process
was novel and had not yet gained general acceptance in the scientific
community. We disagree.
Appellant is attempting to apply the standard set out in Frye
v. United States, 293 F. 1013 (D.C. Cir. 1923). In Frye, the court held
scientific evidence only became reliable, and therefore admissible, when it
had attained the general acceptance of the scientific community as a
14 Appellant is an African-American.
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whole. However, this Court has never adopted that standard. Instead,
prior to 1990, the standard for admitting scientific evidence in South
Carolina was "the degree to which the trier of fact must accept, on faith,
scientific hypotheses not capable of proof or disproof in court and not even
generally accepted outside the courtroom." State v. Jones, 273 S.C. 723,
731, 259 S.E.2d 120, 124 (1979). This standard is more liberal than the
In considering the admissibility of scientific evidence under the
Jones standard, the Court looks at several factors, including: (1) the
publications and peer review of the technique; (2) prior application of the
method to the type of evidence involved in the case; (3) the quality control
procedures used to ensure reliability; and (4) the consistency of the method
with recognized scientific laws and procedures. State v. Ford, 301 S.C.
485, 392 S.E.2d 781 (1990). This type of evidence is also subject to attack
for relevancy and prejudice. Ford, supra.
In 1990, South Carolina adopted Rule 24, SCRCrimP, which is
identical to Rule 702 of the Federal Rules of Evidence (FRE). In 1995,
South Carolina replaced Rule 24 with Rule 702, SCRE.15 This rule is
identical to its predecessor, Rule 24, SCRCrimP, and Rule 702, FRE.
In 1993, the United States Supreme Court found the Frye test
had been superseded by the FRE and adopted new parameters for
admissibility under Rules 702 and 703. Daubert v. Merrill Dow
Pharmaceutical, Inc.J, supra. Before scientific evidence is admitted, the
trial judge must determine the evidence is relevant, reliable and helpful to
the jury. The Court suggested four factors to consider in deciding
reliability in scientific evidence cases: (1) scientific methodology; (2) peer
review; (3) consideration of general acceptance; and (4) the rate of error of
a particular technique. Id. The Court stated if the evidence is reliable
15 Rule 702, SCRE, states:
If the scientific, technical, or other specialized
knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a
witness qualified-an expert by knowledge, skill,
experience, training, or education, may testify
thereto in the form of an opinion or otherwise.
STATE v. COUNCIL
and relevant, the judge should determine if the probative value of the
evidence is outweighed by its prejudicial effect. Id. The Court recently
held the standard of review of a. lower court's decision to admit or exclude
evidence under Daubert is an abuse of discretion. General Elec. Co. v.
Joiner, __U.S.__,118 S.Ct. 5121 139 L.Ed.2d 508 (1997).
While this Court does not adopt Daubert, we find the proper
analysis for determining admissibility of scientific evidence is now under
the SCRE. When admitting scientific evidence under Rule 702, SCRE, the
trial judge must find the evidence will assist the trier of fact, the expert
witness is qualified, and the underlying science is reliable. The trial judge
should apply the Jones factors to determine reliability. Further, if the
evidence is admissible under Rule 702, SCRE, the trial judge should
determine if its probative value is outweighed by its prejudicial effect.
Rule 403, SCRE. Once the evidence is admitted under these standards
the jury may give it such weight as it deems appropriate.
We conclude the trial judge was well within his discretion in
finding the results of the mtDNA analysis admissible under the Jones
factors and Rule 702, SCRE. State v. Von Dohlen, 322 S.C 234.1 471
S.E.2d 689, cert. denied, _ U.S. _, 117 S.Ct. 402, 136 L.Ed.2d 316
(1996) (the admission of expert testimony is within the discretion of the
trial court); State v. Bailey, 276 S.C. 32, 274 S.E.2d 913 (1981) (the
admissibility of evidence is within the trial court's discretion). This
evidence assists the jury in determining whether appellant committed the
crimes because it provides an objective confirmation of the subjective
microscopical comparison performed on the hairs. Mitochondrial DNA
analysis has been subjected to peer review and many articles have been
published about this technology. The F.B.I. laboratory validated the
process and determined its rate of error. Its underlying science has been
generally accepted in the scientific community. Further, while forensic
application of mtDNA analysis is fairly new, the technology has been used
in other contexts for several years.
Appellant further argues the trial judge erred in admitting this
evidence because he was not given a sufficient opportunity to rebut the
evidence.16 We disagree.
16 Appellant did not expressly ask for a continuance; instead, he
argued the trial judge could not make a determination of the admissibility
STATE v. COUNCIL
When defense counsel requested that the State have the hair
analyzed using a mtDNA test, counsel was assured the results would be
available several months before trial. However, the analysis was delayed,
and defense counsel was advised of the results of the mtDNA analysis the
night before appellant's trial. Therefore, defense counsel did not have
time to locate an expert witness to contradict the admitted testimony.
However, defense counsel was able to talk to Dizinno prior to an in
camera hearing and was able to vigorously cross-examine Dizinno during
the in camera hearing and when Dizinno testified before the jury.
This Court has noted that "vigorous cross examination,
presentation of contrary evidence and careful instructions on the burden of
proof are the traditional appropriate means of attacking shaky but
admissible evidence." State v. Dinkins, 319 S.C. 415, 418, 462 S.E.2d 59,
60 (quoting Daubert, 509 U.S. at 596, 113 S.Ct. at 2798).
In our opinion, appellant sufficiently rebutted this evidence.
Dizinno admitted on cross-examination that it was possible the hair
belonged to someone other than appellant. Further, the size of the
mtDNA database and the fact that Dizinno had previously found matches
between unrelated Caucasians were exposed during his testimony.
Because defense counsel effectively demonstrated the flaws in mtDNA
analysis, further preparation was not necessary. Moreover, although
defense counsel indicated he would like to retain his own expert witness to
counter this evidence, in our opinion, defense counsel's cross-examination
of Dizinno effectively encompassed the points his own expert would
probably discuss. We note that appellant does not suggest in his brief any
other facts that should have been but were not brought out by Dizinno in
his testimony concerning mtDNA analysis. Thus, the trial judge had
sufficient information on which to evaluate his decision on the
admissibility of this evidence and the jury had sufficient testimony on
which to decide whether to rely on this evidence.
Appellant argues the trial judge erred in excluding testimony
during the penalty phase about the results of a polygraph examination
administered to Frank Douglas. Specifically, appellant claims the trial
of the mtDNA analysis without sufficient rebuttal evidence.
STATE v. COUNCIL
judge erred in finding the results of a polygraph test are per se
During the investigation of Mrs. Gatti's murder, SLED
conducted a polygraph exam on Frank Douglas to determine whether he
had any knowledge of or involvement in Mrs. Gatti's death. The test
Prior to appellant's trial, defense counsel made a motion to
admit the polygraph results of the test administered to Douglas. He
moved to admit the results in the guilt phase for impeachment purposes if
Douglas testified18 and in the penalty phase as evidence in mitigation
because the polygraph results were probative of whether appellant was
acting under the influence of a more culpable participant in the crimes.19
Pursuant to the motion, the trial judge appointed an expert, Richard
Rackliff, to review the polygraph test and results and to prepare a report.
During a lengthy in camera hearing, the polygraph examiner, SLED agent
Mitchell, and Rackliff testified. Mitchell testified John Hopkins University
had developed a computer program for scoring the exam. This program
made the results of the exam more objective because it eliminated the
subjectiveness of a single examiner in scoring an exam. However, the
results from the exam still only indicate if a person showed deception on
certain questions. Thus, according to both Mitchell and Rackliff, while the
scoring had improved, a polygraph exam still is unable to tell if a person
is actually lying.
Relying on this Court's precedents, the trial court found the
results of the polygraph exam were inadmissible. The trial judge found
the underlying science of polygraph had not improved and had been found
unreliable by this Court.
This Court has consistently held the results of polygraph
17 SLED also administered a polygraph exam on appellant.
Appellant's exam also indicated deception.
18 Douglas did not testify. Therefore, whether this evidence could be
admitted for impeachment purposes is moot.
19 S.C. Code Ann. � 16-3-20(b)(4) & (5) (1985).
STATE v. COUNCIL
examinations are generally not admissible because the reliability of the
tests is questionable.20 State v. Wright, 322 S.C. 253, 471 S.E.2d 700
(1996); State v. Copeland, 278 S.C. 572, 300 S.E.2d 63 (1983). Further,
this Court has declined to admit in mitigation the results of a polygraph
exam offered during the penalty phase of a trial. Copeland, supra.21
The United States Supreme Court has recently found that a
per se rule against the admission of polygraph evidence does not violate a
defendant's right to present relevant evidence in his defense as guaranteed
by the U.S. Constitution. United States v. Scheffer, __U.S.__, 118
S.Ct. 1261P 140 L.Ed.2d 413 (1998). In Scheffer, the Court recognized,
"there is simply no consensus that polygraph evidence is reliable. To this
day, the scientific community remains extremely polarized about the
reliability of polygraph techniques." Scheffer, 118 S.Ct. at 1265.
In our opinion, the trial judge did not abuse his discretion in
refusing to admit the polygraph evidence. State v. Von Dohlen, supra
(admission of expert testimony is within the discretion of the trial judge).
However, in light of the adoption of the SCRE, admissibility of this type of
scientific evidence should be analyzed under Rules 702 and 403, SCRE and
the Jones factors.
After an analysis under these standards, we find the polygraph
evidence inadmissible in this case.22 The evidence is not probative on the
20 Some jurisdictions have abandoned the per se rule excluding the
admission of polygraph evidence into evidence. United States v. Cordoba,
104 F.3d 225 (9th Cir. 1997); United States v. Posado, 57 F.3d 428 (5th
Cir. 1995); Meyers v. Arcudi, 947 F. Supp. 581 (D. Conn. 1996) (listing
factors to consider when determining admissibility of polygraph results);
State v. Baca, 902 P.2d 65 (N.M. 1995) (Rule 707 of the New Mexico's
Rules of Evidence provides guidelines for the admissibility of polygraph
21 Copeland was decided prior to the adoption of Rule 24, SCRCrimP,
or Rule 702, SCRE.
22 Other jurisdictions have continued to find polygraph evidence
inadmissible after Daubert. See State v. Porter, 668 A.2d 725 (Conn. Ct.
1995) (even in light of Daubert, polygraph evidence is inadmissible
STATE v. COUNCIL
issue of whether appellant was acting under the influence of Douglas.
Unless the jury is allowed to speculate, the fact that Douglas' exam
showed deception does not prove that Douglas was lying or that Douglas
committed the crimes against Mrs. Gatti. Douglas' deception on the
polygraph test fails to support appellant's assertion that Douglas
committed the crimes. Therefore, this evidence does not assist the jury.
See Rule 702, SCRE. Further, because it would only confuse and mislead
the jury, any probative value of this evidence would be outweighed by its
prejudicial effect. Rule 403, SCRE.
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 statutory aggravating circumstances is
supported by the evidence. See S.C. Code Ann. � 16-3-25 (1985). Further,
the death penalty is neither excessive nor disproportionate to that imposed
in similar cases. See State v. Whipple, 324 S.C. 43, 476 S.E.2d 683, cert.
denied, 519 U.S. , 117 S.Ct. 618, 136 L.Ed.2d 541 (1996); State v.
Holmes, 320 S.C. 259, 464 S.E.2d 334 (1995), cert. denied, 517 U.S.
116 S.Ct. 25075, 135 L.Ed.2d 197 (1996); State v. Tucker, 319 S.C. 425, 462
S.E.2d 263 (1995), cert. denied, 516 U.S. 1080, 116 S.Ct. 789, 133 L.Ed.2d
739 (1996); State v. Singleton, 284 S.C. 388, 326 S.E.2d 153, cert. denied,
471 U.S. 11112 105 S.Ct. 23462 85 L.Ed.2d 863 (1985).
TOAL, MOORE, and WALLER, JJ., concur. FINNEY, C.J.,
dissenting in separate opinion.
due to questionable accuracy); State v. Beard, 461 S.E.2d 486 (W. Va.
1995) (despite the fact that the court had previously adopted Daubert, the
court found polygraph evidence inadmissible).
STATE V. COUNCIL
FINNEY, C.J.: I respectfully dissent. The majority announces a new test to
be applied in determining the admissibility of scientific evidence. This is a two
part test, first requiring an inquiry under Rule 702, SCRE, followed by an
analysis under Rule 403, SCRE. The trial judge did not have the benefit of
this new rule, and therefore could not and did not apply it in determining the
admissibility of the mtDNA evidence. Justice requires that we reverse and
remand appellant's conviction and sentence for a new trial in which this novel
scientific evidence is subjected to the newly formulated test.
I am also deeply concerned, by the admission of appellant's
statements. His sixth amendment right to counsel attached at his
arraignment, Moorer v. State, 244 S.C. 102, 135 S.E.2d 713 (1964), and then
again at the time of his polygraph examination. State v. Grizzle, 293 S.C. 19,
358 S.E.2d 388 (1987). In my opinion, the record is less than clear that,
assuming that appellant waived his right following the arraignment, he was
ever reinformed and then knowingly, intelligently, and voluntarily waived this
right before the polygraph examination was administered.
For the reasons given above, I would reverse and remand for a new