THE STATE OF SOUTH CAROLINA

In The Supreme Court

John Babe Ray, Jr., Petitioner,

v.

State of South Carolina, Respondent.

ON WRIT OF CERTIORARI

Appeal From Spartanburg County

Gary E. Clary, Judge

Opinion No. 24774

Heard October 4, 1995 - Filed March 23, 1998

AFFIRMED

Assistant Appellate Defender Robert M. Pachak, of S. C. Office

of Appellate Defense, of Columbia, for petitioner.

Attorney General Charles Molony Condon, Chief Deputy

Attorney General Donald J. Zelenka, Senior Assistant Attorney

General Harold M. Coombs, Jr., and Assistant Attorney

General William Edgar Salter, III, all of Columbia; and

Solicitor Holman C. Gossett, Jr., of Spartanburg, for

respondent.

PER CURIAM: This is a death penalty case. Petitioner¹ raises two

certiorari. Petitioner's trial attorneys neglected to file a timely appeal,

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issues on certiorari from his resentencing, one relating to the admission of

certain photos and the second to the sufficiency of the evidence of the

aggravating circumstance of kidnapping. We consider those issues,

conduct the review mandated by S.C. Code Ann. § 16-3-25 (C) (1985), and

affirm.

Petitioner Ray pled guilty² to murder and to unrelated charges

of armed robbery, assault and battery with intent to kill (ABIK), first

degree burglary, and grand larceny in 1991. The State sought the death

penalty on the murder charge. After a hearing, the judge imposed a death

sentence, finding kidnapping as the aggravating circumstance. Ray

received consecutive sentences on the unrelated crimes. Ray appealed only

his murder plea and sentence.

On appeal, this Court affirmed the murder conviction but

reversed and remanded for resentencing. State v. Ray , 310 S.C. 431, 427

S.E.2d 171 (1993). On remand, Ray was again sentenced to death by the

circuit judge sitting without a jury. This writ followed.

FACTS

Petitioner and several other individuals engaged in a course of

criminal conduct, among other things stealing guns which they secreted in

a barn. The victim, Josylin Ballenger, was a teenage girl who dated one

of the men involved in the crime spree. Petitioner and others in the group

suspected the victim was about to turn them in to the police. Late one

evening, petitioner, the victim, and several others were gathered at the

barn when petitioner shot the victim in her side.

The people at the barn agreed to take the victim, who

remained conscious, to the hospital emergency room. Petitioner got in the

back of the victim's pickup truck, and the victim got in the back and

leaned against him. Petitioner and the truck's driver had several

conversations through the truck cab's sliding window on the way to the

hospital, and at one point the truck stopped and someone (either petitioner

or the driver) made a quick phone call. A passenger in the bed of the

truck testified that shortly after the phone call, the truck drove past the

² Pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d

162 (1970).

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highway exit leading to the hospital, and proceeded towards a rural area.

As the truck turned onto a dirt road, petitioner began to choke the victim

with a length of cord taken by him from the barn.

When the truck stopped at an isolated junkyard, petitioner

began to beat and kick the victim. He then took a knife and stabbed her

at least four times, the last time so deeply that he had to use both hands

to pull it out. Petitioner licked the blood off the knife blade, made a

sexual reference, and said, "I want to do somebody else. You get as much

time for killing a hundred as you do for killing one." Petitioner and the

driver dumped the victim's body head first into an abandoned well, and

debris was thrown in on top of her. Petitioner then attempted to shoot

one of the eyewitnesses whom he believed had exhibited signs of faint-

heartedness during the murder, but the gun jammed.

ISSUES

Petitioner first contends he was deprived of a fair sentencing

proceeding because the State was permitted to introduce five color photos

of petitioner's ABIK victim and eleven color autopsy photos of the victim.

We find no reversible error under the circumstances of this resentencing

proceeding.

Petitioner's crime spree commenced when he and several other

young men assaulted and robbed Glen Sellars. Petitioner and the others

beat Mr. Sellars in the head with nightsticks and fists to the point that

witnesses at the scene saw Sellars' exposed brain. The evidence showed

that during the assault petitioner bit off Sellars' ear, and several of

Sellars' teeth were knocked out. It took over 100 stitches to close his head

wounds, his jaws were wired shut, and Mr. Sellars spent at least seven

days in the hospital. The photos admitted at the resentencing, taken at

the hospital the day after the beating, are shocking and illustrate a savage

beating. On the other hand, the autopsy photos at issue depict the

victim's body in a "cleaned-up state", and allowed the pathologist to

illustrate his testimony regarding the victim's pre- and peri-mortem

wounds.

The general rules governing the admission of photographs in a

criminal trial are clear. It is well established that photographs are

relevant to show both the circumstances of the crime and the defendant's

character, and are admissible in a sentencing proceeding unless unfairly

prejudicial. State v. Franklin, 318 S.C. 47, 456 S.E.2d 357 (1995); State

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v. Shaw, 273 S.C. 194, 255 S.E.2d 799 (1979). Unfair prejudice exists

where the photos tend to suggest the penalty decision should be based on

an improper basis such as emotion. State v. Franklin, supra.

We conclude the autopsy photos are not inflammatory, were

illustrative of the forensic testimony, and were properly admitted. State v.

Franklin, supra. We are somewhat troubled by the gory photos of Mr.

Sellars. Evidence of other crimes committed by the defendant is

admissible at the sentencing phase of a capital trial. There is neither an

assertion, nor any evidence, that this judge was improperly influenced by

the photographs. We find no reversible error under these circumstances.

Petitioner next argues there was insufficient evidence that the

murder was committed in the course of a kidnapping. Since kidnapping

was the sole aggravating circumstance upon which the State relied in

seeking the death penalty, petitioner contends the judge should have

directed a sentence of life imprisonment. We disagree.

The victim was inveigled into getting in the truck under the

pretense she was being taken to the hospital. Petitioner's intent not to

take her to the hospital is evidenced by his taking the rope from the barn

before they left. This conduct constituted kidnapping under S.C. Code Ann.

§16-3-910 (Supp.1994). At the latest, the kidnapping occurred when they

passed the last exit to the hospital. The "directed verdict" was properly

denied. State v. Plath, 281 S.C. 1, 313 S.E.2d 619 (1984).

PROPORTIONALITY REVIEW

We have reviewed petitioner's sentence pursuant to S.C. Code

Ann. §16-3-25 (C) (1985). We find the evidence supports the statutory

aggravating circumstance of kidnapping, and that the sentence is not the

result of passion, prejudice or any other arbitrary factor. Further, we find

the death sentence here is proportional to that imposed in State v. Owens,

293 S.C. 161, 359 S.E.2d 275 (1987); State v. Koon, 285 S.C. 1, 328 S.E.2d

625 (1984); and to that imposed on appellant Arnold in State v. Plath,

supra. Accordingly the sentence is

AFFIRMED.

___________________ C.J.

___________________ A.J.

___________________ A.J.

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___________________ A.J.

___________________ A.A.J.

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A.A.J,