THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State, Respondent,

v.

Scott A. Needs, Appellant.

Appeal From Cherokee County

Henry F. Floyd, Circuit Court Judge

Opinion No. 24856

Heard September 22, 1998 - Filed November 23, 1998

AFFIRMED

Assistant Appellate Defender Robert M. Dudek of

the South Carolina Office of Appellate Defense,

Columbia, and Joseph C. Smithdeal of Greenwood,

for appellant.

Attorney General Charles M. Condon, Deputy

Attorney General Donald J. Zelenka, Assistant

Attorney General Lauri J. Soles, Assistant Attorney

General S. Creighton Waters, all of Columbia, and

Solicitor Holman C. Gossett of Spartanburg, for

respondent.

WALLER, A.J.: A jury convicted appellant of murder and first

degree burglary. He was sentenced to life in prison on each conviction, to be

served consecutively. We affirm the convictions.

p.9

FACTS

Lawrence Warmoth died April 25, 1993, when he was shot three

times in the head while lying alone in his own bed. Investigators discovered

no murder weapon, no eyewitnesses, and no physical evidence linking

appellant to the crime. The key evidence against appellant was the

testimony of Nancy P. Smith, appellant's girlfriend at the time and the

mother of appellant's young son.

Ms. Smith offered the following testimony: Appellant frequently

said he hated Mr. Warmoth, his stepfather, and talked about killing him or

having him killed. Appellant borrowed her car and left her apartment at

10:30 p.m. to go to work April 24, 1993. Upon his return a few hours later

at 3:30 a.m., appellant told her that he "was taking care of some business,

he was finally taking care of his family." Appellant later told her that he

expected his mother, Sandra Needs Warmoth, to give him $100,000 in

proceeds from his stepfather's life insurance policies to start a business.

Nearly two weeks after the murder, appellant confessed to Ms.

Smith that he had killed his stepfather. Appellant described the shooting to

her in detail, saying he walked in the house, down the hall, and asked his

stepfather for money to go to the store. Appellant told her that his

stepfather began to sit up in bed and said "Scott what?" just before appellant

shot him three times in the head. Appellant told her that he used "exploding

bullets," which police could not trace to him.

An investigator testified he interviewed appellant at his

stepfather's house shortly after police were called to the scene. Appellant

stated he was with Ms. Smith the night of the murder, except from 11 p.m.

to 12:30 a.m. when he went to a fast food restaurant. He did not admit any

involvement in the murder.

The State's theory of the case was that appellant killed his

stepfather because he hated him and wanted a share of the life insurance

proceeds. The defense's theory was that police did a sloppy investigation, and

Ms. Smith implicated appellant because she was angry he planned to marry

another woman.

p.10

ISSUES

1Did the trial judge err in ruling Ms. Smith was competent

to testify against appellant?

2. Did the trial judge err in denying appellant's

motions to dismiss the charges based on

prosecutorial misconduct or, in the alternative,

to suppress Ms. Smith's testimony?

3. Did the trial judge err in allowing the State to

impeach Ms. Smith under the new South Carolina

Rules of Evidence after another judge had refused to

qualify her as a court witness under prior case law?

4. Did the trial judge err in admitting evidence of

insurance policies on the victim's life?

5. Did the trial judge's circumstantial evidence

and reasonable doubt charges shift the burden

of proof to defendant in violation of the

constitution?

6. Did the trial judge err in denying appellant's motion for a

new trial based on after discovered evidence?

1. COMPETENCY OF MS. SMITH

Ms. Smith initially provided an alibi for appellant, at his urging,

by telling police he was with her the night of the murder, except from 11:30

p m. to 12:30 a.m. Ms. Smith told police about appellant's confession to her

in August 1993, four months after the murder. She admitted lying in her

initial statement. Ms. Smith changed her statement again in May 1994,

giving police a similar statement which implicated appellant, but insisting

appellant had couched his entire story in "hypothetical" terms. The State

called the case for trial in June 1994.¹ At a pretrial hearing, Ms. Smith

(continued...

p11

recanted her statements about appellant's confession to her and testified

appellant was with her when his stepfather was murdered. She also

produced a diary describing that evening with appellant.

Ms. Smith testified against appellant as described above at the

September 1995 trial. On cross examination, she admitted her testimony

directly conflicted with the testimony she gave at the June 1994 pretrial

hearing. The diary she testified about at the pretrial hearing was a fake,

createdat appellant's suggestion, Ms. Smith testified. She no longer was

scared to testify against appellant because she had remarried, Ms. Smith told

jurors. In short, Ms. Smith was first a potential witness for appellant, then

a potential witness for the State, then a potential witness for appellant, and

-- finally -- an actual witness for the State at trial.

Appellant contends the trial judge erred in denying his motion to

prevent Ms. Smith from testifying because she was not competent under Rule

601(b)(2), SCRE. Her conflicting statements to police and admissions of

perjury made her incompetent because she did not understand the duty of a

witness to tell the truth. The Court should not uphold a conviction based

solely on the testimony of a "pathological liar," appellant asserts. We

disagree.

"Every person is competent to be a witness except as otherwise

provided by statute or these rules." Rule 601(a), SCRE. Courts presume a

witness to be competent because bias or other defects in a witness's testimony

-- revealed primarily through cross examination -- affect a witness's credibility

and may be weighed by the factfinder. See State v. Smith, 199 S.C. 279,

282, 19 S.E.2d 224, 225 (1942) ("the established practice [is] to allow a rather

full and thorough cross-examination of the witnesses for both the State and

the defendant in the criminal Courts by way of questions tending to test

memory, veracity or credibility"); accord Mueller and Kirkpatrick, Modern

Evidence, § 6.1 (1995); 98 C.J.S. Witnesses § 458 (1957).

A witness must have personal knowledge of the matter and must

swear or affirm to tell the truth. Rules 602 and 603, SCRE. "A person is

State appealed the circuit court's refusal to designate Ms. Smith as a court

witness, as discussed in Issue 3.

p.12

disqualified to be a witness if the court determines that . . . the proposed

witness is incapable of understanding the duty of a witness to tell the truth."

Rule 601(b)(2), SCRE.² The purpose of Rule 601(b) is to provide a minimum

standard for the competency of a witness. Notes to Rule 601, SCRE. Even

a convicted perjurer may testify as long as he or she meets the minimum

standard. See State v. Merriman, 287 S.C. 74, 337 S.E.2d 218 (Ct. App.

1985) (explaining the abolition of the prohibition against testimony by a

convicted perjurer).

A proposed witness understands the duty to tell the truth when

he states that he knows that it is right to tell the truth and wrong to lie,

that he will tell the truth if permitted to testify, and that he fears

punishment if he does lie, even if that fear is motivated solely by the perjury

statute. State v. Green, 267 S.C. 599, 606, 230 S.E.2d 618, 621 (1976). As

succinctly explained by the Pennsylvania Supreme Court, in order to be

competent to testify, a witness must have the ability (1) to perceive the event

with a substantial degree of accuracy, (2) remember it, (3) communicate

about it intelligibly, and (4) be mindful of the duty to tell the truth under oath.

Pennsylvania v. Goldblum, 447 A.2d 234) 239 (Pa. 1982).

The party opposing the witness has the burden of proving a

witness is incompetent. Pennsylvania v. Goldblum, supra. The

determination of a witness's competency to testify is a question for the trial

court, and the trial court's decision will not be overturned absent an abuse

of discretion. State v. Camele, 293 S.C. 302, 360 S.E.2d 307 (1987); State v.

Green, supra.

In this case, Ms. Smith swore to tell the truth and had personal

knowledge of the matter. The trial judge stated he believed, based upon Ms.

Smith's in camera testimony, that she understood her duty to tell the truth.

When questioned by the judge, Ms. Smith stated outside the jury's presence

that she understood her duty to tell the truth, and that she would face

perjury charges if she lied in court. The trial judge did not abuse his

expressing himself to the judge and jury, as was required prior to the

adoption of the Rules of Evidence. See Abbott v. Columbia Mills Co., 110

S.C. 298, 96 S.E. 556 (1918); 97 C.J.S. Witnesses §49 (1957). That

provision is not at issue in this case.

p.13

discretion in ruling that Ms. Smith was competent to testify under Rule

601(b)(2), SCRE.

After the trial court properly has determined a witness is

competent., the resolution of the credibility of the witness is within the

province of the jury. See State v. Patterson, 324 S.C. 5, 16, 482 S.E.2d 760,

765 ("inquiry as to the weight a juror would give one kind of witness over

another invades the jury's province to determine credibility"), cert. denied,

118 S.Ct. 146, 139 L.Ed.2d 92 (1997); State v. Ingra, 266 S.C. 462, 468, 224

S.E.2d 711, 713 (1976) ("resolution of the credibility of witnesses is within the

province of the jury"), overruled on other grounds, State v. Torrence, 305 S.C.

45, 406 S.E.2d 315 (1991). "[T]his Court has more than once held that the

jury is the judge of which contradictory statement of the witness is the

truth." Soulios v. Mills Novelty Co., 19S S.C. 355, 364, 17 S.E.2d 869, 874

(1941).

The prosecutor and appellant questioned Ms. Smith extensively

about her conflicting statements. Ms. Smith testified she lied in her initial

statement to police; she lied when she modified her August 1993 statement

to say appellant had been speaking "hypothetically"; and her testimony at

trial directly conflicted with her testimony at the June 1994 pretrial hearing.

She told jurors she was testifying truthfully at the trial. While Ms. Smith's

credibility conceivably was in shreds, it was for the jury to decide whether

to believe her testimony after the trial judge properly ruled she was

competent to testify.

2. PROSECUTORIAL MISCONDUCT

After changing her statement several times, Ms. Smith testified

as an alibi witness for appellant at a pretrial hearing in June 1994. A grand

jury later indicted Ms. Smith on charges of obstruction of justice, accessory

after the fact of a felony, and misprision of a felony. Ms. Smith agreed to

plead guilty to misprision of a felony, and the State planned to dismiss the

other indictments.³

on the charge of misprision of a felony at the end of appellant's trial.

Three months later, before Ms. Smith had reported to prison, the judge

(continued . . .)

p.14

Appellant argues the trial judge erred in denying his motion to

dismiss the indictments against him due to prosecutorial misconduct. The

prosecutor committed misconduct by charging Ms. Smith with crimes after

she testified in appellant's favor at the pretrial hearing. Those charges were

improper attempts to intimidate Ms. Smith into testifying as a State's

witness, appellant contends. We disagree.

Challenges alleging prosecutorial misconduct typically involve a

prosecutor's improper efforts to collect evidence or unfair trial tactics. E.g.

State v. Huggins, 325 S.C. 103, 481 S.E.2d 114 (1997) (prosecutor in closing

argument discussed statements that were not in evidence); State v. Chisolm,

312 S.C. 235, 439 S.E.2d 850 (1994) (prosecutor improperly and secretly taped

telephone conversation with defendant, who had called prosecutor but had an

attorney); State v. Robinson, 305 S.C. 469, 409 S.E.2d 404 (1991) (prosecutor

allegedly used previously suppressed evidence at trial); State v. Atkins, 303

S.C. 214, 399 S.E.2d 760 (1990) (prosecutor allegedly obtained confidential

medical records in violation of attorney-client privilege); State v. Pee Dee

News Co., 286 S.C. 562, 336 S.E.2d 8 (1985) (prosecutor asked improper

hypothetical questions at trial); State v. Craig, 267 S.C. 262, 227 S.E.2d 306

(1976) (prosecutor's conduct at trial allegedly was calculated to arouse unfair

prejudice against defendant). This case is somewhat unusual because

appellant challenges the use of one of the most fundamental powers of a

prosecutor -- the power to bring charges against a person the prosecutor

believes has committed a crime.

"In the ordinary case, so long as the prosecutor has probable

cause to believe that the accused committed an offense defined by statute, the

decision whether or not to prosecute, and what charge to file or bring before

a grand jury, generally rests entirely in his discretion." United States

v. Armstrong, 517 U.S. 456, 116 S.Ct. 1480, 1486, 134 L.Ed.2d 687, 698 (1996)

(quoting Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 668, 54

L.Ed.2d 604, 611 (1978)). A prosecutor's discretion is subject to constitutional

constraints. A prosecutor may not, for instance, base the decision to

prosecute on unjustifiable standards such as race, religion, or other arbitrary

classifications. Id.; accord United States v. Olvis, 97 F.3d 739 (4th Cir. 1996);

changed the sentence to ten years in prison, suspended upon the service of

ninety days, with five years probation.

p.15

27 C.J.S. District & Prosecuting Attorneys § 14(l) (1959); 63C Am.Jur.2d

Prosecuting Attorneys §§ 20-25 (1997). Nor may a prosecutor lob baseless

threats or charges at a potential defense witness in an effort to prevent the

witness from testifying. See State v. Williams, 326 S.C. 130, 485 S.E.2d 99

(1997) (improper intimidation of witness may violate defendant's due process

right to present defense witnesses freely if the intimidation amounts to

substantial government interference with witness's free and unhampered

choice to testify); Annot., 88 A.L.R.4th 3S8 (1991) (collecting cases on

improper intimidation).

"[T]he South Carolina Constitution⁴ and South Carolina case law⁵

place the unfettered discretion to prosecute solely in the prosecutor's hands.

. . . Prosecutors may pursue a case to trial, or they may plea bargain it down

to a lesser offense, or they may simply decide not to prosecute the offense in

its entirety. The Judicial Branch is, not empowered to infringe on the

exercise of this prosecutorial discretion; however, on occasion, it is necessary

to review and interpret the results of the prosecutor's actions." State v.

Thrift, 312 S.C. 282, 291-92, 440 S.E.2d 341, 346 (1994). Furthermore, a

trial court generally has no power to dismiss a properly drawn indictment

issued by a properly constituted grand jury before trial unless a statute

grants that power to the court. The prosecutor may, of course, request the

dismissal of an indictment or charge. State v. Ridge, 269 S.C. 61, 236 S.E.2d

401 (1977); Ex Parte State, 263 S.C. 363, 210 S.E.2d 600 (1974).

In this case, the evidence showed that Ms. Smith had concealed

information and lied to investigators to protect appellant, facts she ultimately

admitted at trial. The prosecutor had probable cause to believe Ms. Smith

had committed one or more of the indicted crimes, and he did not commit

misconduct by pursuing the charges. The trial judge properly rejected

appellant's dismissal motion.

In the alternative, appellant argues the trial judge should have

suppressed Ms. Smith's testimony because it obviously was not reliable. This

argument is another way of asserting Ms. Smith was not competent to testify.

⁵ State v. Johnson, 287 S.C. 171, 337 S.E.2d 204 (1985); McLeod v.

Snipes, 266 S.C. 415, 223 S.E.2d 853 (1976).

p.16

As explained in Issue 1, the trial judge properly determined Ms. Smith was

competent to testify and her credibility was a question for the jury.

3. NEW RULES OF EVIDENCE

The State called appellant's case for trial in June 1994. The

State asked the Honorable John C. Hayes, III, in a pretrial motion to qualify

Ms. Smith as a court's witness so that the State could cross examine and

impeach her.⁶ Judge Hayes denied the State's motion after a hearing because

Ms. Smith was not an eyewitness to the crime. The State appealed Judge

Hayes' decision because, without Ms. Smith's testimony, the State likely

would not survive a directed verdict motion at trial.⁷

The State asked this Court to dismiss the appeal August 9, 1995,

saying the recent adoption of the South Carolina Rules of Evidence rendered

party's own witness unless the court declared the witness to be hostile. A

party had to show actual surprise and harm, however, in order to have a

witness declared hostile. See State v. Anderson, 304 S.C. 551, 406 S.E.2d

152 (1991), superseded in part by Rules of Evidence as noted in State v.

Byram, 326 S.C. 107, 114 n.7, 485 S.E.2d 360, 363 n.7 (1997).

The State knew Ms. Smith intended to recant her statement, which

meant the State would be unable to show surprise at trial. The State

wanted to qualify Ms. Smith as a court's witness in order to impeach her.

To do so, the State had to show (1) the prosecution is unwilling to vouch

for the veracity or integrity of the witness, (2) there is a close relationship

between the accused and the prospective court's witness, (3) there is

evidence that the proposed witness was an eyewitness to the act giving

rise to the prosecution, (4) the witness gave a sworn statement concerning

the relevant facts which have been, or will probably be contradicted, and

(5) the absence of the witness' testimony would likely result in a

miscarriage of justice. Riddle v. State, 314 S.C. 1, 7, 443 S.E.2d 557, 561

(1994).

⁷ See State v. McKnight, 287 S.C. 167, 337 S.E.2d 208 (1985) (the

State may immediately appeal a pretrial order granting the suppression of

evidence which significantly impairs the prosecution of a criminal case).

p.17

the appeal moot.⁸ The Court dismissed the appeal August 15, 1995. The

new Rules of Evidence took effect September 3, 1995. The State again called

appellant's case for trial September 26, 1995.

Appellant asked the trial judge to prohibit Ms. Smith from

testifying. He asserted that Judge Hayes had refused to qualify Ms. Smith

as a court's witness and,prohibited the State from impeaching her testimony.

Those rulings were the law of the case because the State had abandoned the

appeal, appellant argued. The trial judge denied appellant's motion,

concluding the new Rules of Evidence applied to appellant's trial. Under

Rule 607, SCRE, "[t]he credibility of a witness may be attacked by any party,

including the party calling the witness."

Appellant now argues the trial judge erred in denying his motion.

If the State pursued a frivolous appeal of Judge Hayes' order simply to delay

matters until the new Rules of Evidence took effect, the Court should not

sanction such conduct by awarding the State a "windfall" by its decision.

We find appellant's arguments unconvincing for three reasons.

First, courts generally agree that trials occurring before the effective date of

new evidence rules are controlled by the rules or case law in effect at the

time of trial. New evidence rules usually apply to trials that occur after

those rules take effect. See State v. Byram, 326 S.C. 107, 114 n.7, 485

S.E.2d 360, 363 n.7 (1997) (applying case law in effect at time of defendant's

trial, not new Rule 607 on impeachment that took effect later); North

Carolina v. McDonald, 321 S.E.2d 849, 852 n. 1 (N.C. 1984) (same); Tuer v.

McDonald, 684 A.2d 478, 482 n.2 (Md. Ct. Spec. App. 1996) (applying new

evidence rules to case tried after new rules took effect), aff'd, 701 A.2d 1101

(Md. 1997).⁹ Nothing in the Rules of Evidence indicates the Court intended

to delay application of the rules under these circumstances. The rules took

effect about three weeks before appellant stood trial, more than enough time

in the Court's files.

⁹ Accord North Carolina v. Riddick, 340 S.E.2d 422, 424 n.1 (N.C.

1986); Utah v. Smith, 726 P.2d 1232, 1236 n.4 (Utah 1986); New Jersey v.

Kately, 637 A.2d 214, 216 n.1 (N.J. Super. Ct. App. Div. 1994); In Re

Welfare of Bennett, 600 P.2d 1308, 1311 (Wash. Ct. App. 1979).

p.18

for appellant to receive notice of them. Cf. State v. Von Dohlen., 322 S.C.

234, 471 S.E.2d 689 (refusing to conduct in favorem vitae review in death

penalty case where defendant, whose trial began day the Court issued an

opinion abolishing such reviews, had notice of that abolition), cert. denied

117 S.Ct. 402, 136 L.Ed.2d 316 (1996).

Second, Judge Hayes did not rule that the State could not

impeach Ms. Smith. He only denied the State's motion to qualify Ms. Smith

as a court's witness. Although the effect of that ruling prevented the State

from impeaching Ms. Smith under existing case law, that was not the judge's

actual ruling. Consequently, there was no impeachment ruling that could

become the law of the case. In any event, the State did not impeach Ms.

Smith at trial because she freely admitted on direct examination that she

initially lied to police and offered directly conflicting testimony at the pretrial

hearing.

Third, appellant offers no evidence showing the State pursued a

frivolous appeal of Judge Hayes' order to delay the trial until the new rules

took effect. Both parties filed their final briefs in November 1994, and the

appeal was proceeding in the usual manner when the State asked the Court

to dismiss it. In sum, the trial judge properly applied the new Rules of

Evidence at appellant's trial.

4 LIFE INSURANCE POLICIES

Appellant asked the trial judge to exclude all testimony about

insurance policies on his stepfather's life because appellant did not know

about the policies and did not stand to derive any benefit from them. He

also argued that evidence of the policies would be highly prejudicial. The

trial judge initially excluded testimony about the insurance policies, but later

reversed his ruling and allowed the testimony under Rule 801(d)(2), SCRE.

Ms. Smith testified appellant told her that his mother, Mrs.

Warmoth, "owed a lot of people money." Appellant said killing his stepfather

would allow his mother to collect $260,000 from his stepfather's life insurance

policies. He also said his mother intended to give him $100,00 of the

proceeds to start a business, Ms. Smith testified. Joyce Floyd, the personnel

manager at the stepfather's employer, testified the stepfather had a $20,000

policy naming Mrs. Warmoth as the beneficiary. Carolyn Cooley, personnel

manager at Mrs. Warmoth's employer, testified Mrs. Warmoth had an

p.19

additional $190,000 policy on her husband when he died. That policy also

named Mrs. Warmoth as the beneficiary.

Appellant argues the trial judge erred in admitting testimony

about the life insurance policies because there was no competent evidence

showing appellant stood to derive a benefit from the policies. The jury could

have disregarded Ms. Smith's unreliable testimony, but the objective

testimony of the personnel managers improperly bolstered Ms. Smith's

testimony and "created the illusion of a nexus between appellant and the

insurance policies." We disagree.

The State is not required to prove motive in a homicide prosecution.

State v. Damon, 285 S.C.125, 328 S.E.2d 628 (1985), overruled

on other grounds, State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991); State

v. Underwood, 127 S.C. 1, 120 S.E 719 (1923). Nevertheless, the State may

introduce evidence that a defendant carried an insurance policy on a victim's

life, where the policy named the defendant as the beneficiary, to establish

motive in a homicide. State v. Thomas, 159 S.C. 76, 156 S.E. 169 (1930).

The State also may introduce evidence that a defendant carried an insurance

policy on the victim's life when there is some showing that the defendant

would derive some benefit from the proceeds of the policy. State v. Hartfield,

272 S.C. 407, 252 S.E.2d 139 (1979) (evidence of policy on victim's life that

named defendant's brother as beneficiary would be admissible if defendant

would receive some benefit from the policy); State v. Vermillion, 271 S.C. 99,

245 S.E.2d 128 (1978) (upholding admission of evidence that defendant had

a policy on life of his father, the victim, which named defendant's wife as

beneficiary).

We conclude the trial judge properly admitted Ms. Smith's

testimony that appellant told her about the insurance policies and the

potential loan from his mother as admissions by a party-opponent. Rule

801(d)(2), SCRE. Since Ms. Smith's testimony was admissible, the judge

properly admitted the personnel managers' testimony, which simply

established the existence of the policies.

The evidence showed that appellant would have directly benefitted

from the proceeds of his stepfather's life insurance through a $100,000 loan

p.20

from his mother.¹⁰ The trial judge did not abuse his discretion in admitting

evidence of the insurance policies. See State v. Tucker, 319 S.C. 425, 462

S.E.2d 263 (1995) (appellate court will not reverse the trial judge's decision

to admit or exclude evidence unless the trial judge abused his discretion and

petitioner demonstrates prejudice); State v. McElveen, 280 S.C. 325, 313

S.E.2d 298 (1984) (same).

5. JURY INSTRUCTIONS

In instructing the jury on circumstantial evidence,. the trial judge

stated:

The law also requires ... that to the extent that the

State relies on circumstantial evidence, the State

must prove all of the circumstances relied upon

beyond a reasonable doubt. Circumstances relied

upon by the State must be wholly and in every

particular consistent with each other. And the

circumstances must point conclusively, that is, beyond

a reasonable doubt, to the guilt of the accused, to the

exclusion of every other logical or rational conclusion.

That is, the circumstances must be absolutely

inconsistent with any other logical or rational

conclusion than the guilt of the accused.

Now, ladies and gentlemen, in the consideration of

circumstantial evidence, you, the jury, must seek

some other rational or logical explanation other than

the guilt of the accused. And if such logical or

rational explanation can be found upon consideration

of the circumstances, you, the jury, cannot convict

upon circumstantial evidence. . . .

the proceeds would have been available for his mother to pay her debts

and perhaps assist appellant and his siblings. We do not decide whether

such an indirect benefit is sufficient to admit evidence of insurance

proceeds as a motive under State v. Vermillion, supra.

p.21

I further instruct you, ladies and gentlemen, the

mere fact the circumstances are strongly suspicious

and the guilt of the defendant is probable, it is not

sufficient to sustain a conviction, because the proof

offered by the State must exclude every other

reasonable or rational or logical conclusion except the

guilt of the defendant, and such proof must satisfy

you, the jury, of the defendant's guilt beyond a

reasonable doubt.¹¹

The judge further instructed the jury that

[a] reasonable doubt is a doubt which makes an

honest, sincere, conscientious juror in search of the

truth in the case hesitate to act. Proof beyond a

reasonable doubt must, therefore, be proof of such a

convincing character that a reasonable person would

not hesitate to rely and to act upon it in the most

important of his or her own affairs.

In addition, the judge instructed jurors twenty-six other times throughout his

charge that the State had the burden of proving a defendant guilty beyond

a reasonable doubt.

Appellant contends the emphasized language in the circumstantial

evidence instruction shifted the burden of proof to him by telling jurors they

and rational conclusion" for "reasonable hypothesis," the phrase usually

used in this charge. Appellant may not on appeal object to the use of the

substituted phrase because he asked for that change and the judge agreed.

See State v. Stroman, 281 S.C. 508, 316 S.E.2d 395 (1984) (party may not

complain about an error induced by the party's own conduct); State v.

Epes, 209 S.C. 246, 39 S.E.2d 769 (1946) (same); Rule 20(b), SCRCrP

(stating "[a]ny objection [to jury instructions] shall state distinctly the

matter objected to and the grounds for objection. Failure to object in

accordance with this rule shall constitute a waiver of objection"). While

we do not address the validity of the "logical or rational conclusion"

language, we urge trial courts to use the approved charges described

below.

p.22

must seek some explanation other than his guilt. He also asserts the "in

search of truth" language in the definition of reasonable doubt exacerbated

the problem and further shifted the burden of proof to him. Appellant argues

the charge is deficient under State v. Manning, 305 S.C. 413, 409 S.E.2d 372

(1991), and State v. Raffaldt, 318 S.C. 110, 456 S.E.2d 390 (1995).

In State v. Manning, the Court granted the defendant a new trial

based on a defective charge. The charge was defective because the trial judge

(1) defined "reasonable doubt" as synonymous with the term "moral

certainty," (2) defined a reasonable doubt as a "doubt which honest people,

such as you, when searching for the truth can give a real reason," and (3)

required the jury to "seek some reasonable explanation of the circumstances"

other than guilt when considering circumstantial evidence. The

circumstantial evidence instruction "turns the State's burden of proof

on its head by requiring the jury find a 'reasonable explanation' of the evidence

inconsistent with [a defendant's] guilt before it can find him not guilty." Id.,

305 S.C. at 416-17, 409 S.E.2d at 374 (citing Cage v. Louisiana, 498 U.S. 39,

111 S.Ct. 328, 112 L.Ed.2d 339 (1990)).

Taken as a whole and considering the three defects, the charge

in Manning violated the Due Process Clause of the Fourteenth Amendment

because a reasonable juror could have interpreted it to allow a finding of

guilt based on a degree of proof below the reasonable doubt standard. The

Court urged the trial bench to limit its definition of a reasonable doubt to

"the kind of doubt that would cause a reasonable person to hesitate to act."

Id., 305 S.C. at 417, 409 S.E.2d at 375.

In State v. Raffaldt, supra, the Court again found error in a

circumstantial evidence charge that required the jury to "seek some

reasonable explanation other than the guilt of the accused." However, the

defendant failed to demonstrate prejudicial error because the trial judge

extensively charged that the State had the burden of proving the defendant

guilty beyond a reasonable doubt. The judge also properly defined reasonable

doubt as "the kind of doubt which would cause a reasonable person to

hesitate to act." Id., 318 S.C. at 115-16, 456 S.E.2d at 393.

The Court since has explained that it was the combination of

defective instructions, especially the "moral certainty" and "real reason"

language, that prompted it to find a due process violation in Manning. See

State v. Whipple, 324 S.C. 43, 50, 476 S.E.2d 683, 687 (affirming convictions

where trial court defined a reasonable doubt as a doubt "for which you could

p.23

give a reason," and noting trial court never used "moral" or "grave certainty"

or "substantial doubt"), cert. denied, 117 S.Ct. 618, 136 L. Ed.2d 541 (1996);

State v. Hoffman, 312 S.C. 386, 395, 440 S.E.2d 869, 874 (1994) (affirming

convictions where trial court used "seek" language in circumstantial evidence

charge because reasonable doubt charge did not contain "moral or grave

certainty" or "real reason," and concluding the charge when read as a whole

did not shift the burden to defendant); State v. Johnson, 306 S.C. 119, 131,

410 S.E.2d 547, 553 (1991) (affirming convictions where trial court did not

use "moral certainty" language in conjunction with "substantial" or "grave"

doubt in defining reasonable doubt, although those terms also are disfavored);

accord State v. Clute, 324 S.C. 584, 595, 480 S.E.2d 85, 90 (Ct. App. 1996)

(affirming conviction where trial court defined a reasonable doubt as a doubt

that would cause a reasonable person to hesitate to act and as "a doubt for

which a reason can be given" because it did not refer to "moral or grave

certainty" or a "real reason"), cert. denied, 118 S.Ct. 442, 139 L.Ed.2d 379

(1997); State v. Kirkpatrick, 320 S.C. 38, 46, 462 S.E.2d 884, 889 (Ct. App.

1995) (affirming conviction where trial court defined a reasonable doubt as

"one for which you could give a reason," and noting trial court did not use

"moral or grave certainty" or "real reason" in conjunction with erroneous

circumstantial evidence charge).

Prior to Manning, the Court tacitly approved a reasonable doubt

charge containing the language about an honest juror "in search of the truth."

See Singletary v. State, 281 S.C. 444, 316 S.E.2d 369 (1984). In fact, trial

judges have talked about jurors searching for the truth for more than a

century. See State v. Cleland, 148 S.C. 86, 145 S.E. 628 (1928); State v.

Way, 38 S.C. 333, 17 S.E. 39 (1893). In Manning, the Court pointed to the

"in search of the truth" language contained in the reasonable doubt charge

as contributing to its defective nature. Manning, 305 S.C. at 415, 409 S.E.2d

at 374. However, appellate courts since have seemed to allow the use of the

phrase -- at least when it is not combined with other offending terms outlined

in Manning. See State v. Hoffman, 312 S.C. at 395, 440 S.E.2d at 874; State

v. Kirkpatrick, 320 S.C. at 46, 462 S.E.2d at 889.

In this case, the trial judge's circumstantial evidence charge was

erroneous because it instructed jurors to seek a reasonable explanation other

than the guilt of the accused. However, we conclude it was harmless error

beyond a reasonable doubt because the trial judge instructed jurors twenty-

six other times throughout his charge that the State has the burden of

proving a defendant guilty beyond a reasonable doubt. See State v. Raffaldt,

supra; see also State v. Smith, 315 S.C. 547, 446 S.E.2d 411 (1994) (jury

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instructions should be considered as a whole, and if as a whole they are free

from error, any isolated portions which may be misleading do not constitute

reversible error); State v. Rabon, 275 S.C. 459, 272 S.E.2d 634 (1980) (a jury

charge which is substantially correct and covers the law does not require

reversal). The charge also was harmless error because it did not contain the

other troubling language identified in Manning and subsequent cases, the

phrases "moral certainty," "grave certainty," or "a doubt for which you can

give a real reason." See State v. Whipple, supra; State v. Hoffman, supra;

State v. Johnson, supra.

We again take this opportunity to strongly urge the trial courts

to avoid using any "seek" language, or any of the other offending terms

described above, when charging jurors on either reasonable doubt or

circumstantial evidence. Such language is unnecessary and runs the risk of

unconstitutionally shifting the burden of proof to a defendant. We have

identified two appropriate ways to define reasonable doubt¹² and two

reasonable person to hesitate to act." State v. Manning, supra.

The trial court also may use the following charge or combine it with

the Manning charge:

The State has the burden of proving the Defendant

guilty beyond a reasonable doubt. Some of you

may have served as jurors in civil cases where you

were told that [it] is only necessary to prove the

fact is more likely true than not, such as by the

greater weight or preponderance of the evidence.

In criminal cases, the State's proof must be more

powerful than that. It must be beyond a

reasonable doubt.

Ladies and gentlemen, proof beyond a reasonable

doubt is proof that leaves you firmly convinced of

the Defendant's guilt. There are very few things

in this world that we know with absolute certainty.

And in criminal cases, the law does not require

proof that overcomes every possible doubt. The law

(continued ... )

p.25

appropriate ways to charge circumstantial evidence.¹³

doesn't require that.

If, based on your consideration of the evidence, you

are firmly convinced that the Defendant is guilty of

the crime charged, you must find him guilty. You

must find him guilty. If on the other hand you

think there is a real possibility that he is not

guilty, you must give him the benefit of the doubt

and find him not guilty.

State v. Darby, 324 S.C. 114, 477 S.E.2d 710 (1996) (endorsing definition

of reasonable doubt developed by the Federal Judicial Center and cited

with approval in Justice Ginsberg's concurring opinion in Victor v.

Nebraska, 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994)).

Neither charge is mandatory. State v. Johnson, 315 S.C. 485,

445 S.E.2d 637 (1994); State v. Longworth, 313 S.C. 360, 438 S.E.2d 219

(1993). In fact, it is within a trial judge's discretion to refuse to define

reasonable doubt at all. State v. Adams, 322 S.C. 114, 470 S.E.2d 366 (1996).

¹³ The well established charge is that when the State relies upon

circumstantial evidence, a jury may not convict a defendant

unless every circumstance relied upon by the State

be proven beyond a reasonable doubt; and all of the

circumstances so proven be consistent with each

other and taken together, point conclusively to the

guilt of the accused to the exclusion of every other

reasonable hypothesis. It is not sufficient that they

create a probability, though a strong one, and if,

assuming them to be true, they may be accounted

for upon any reasonable hypothesis which does not

include the guilt of the accused, the proof has failed.

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(continued... )

Trial courts should rarely find it necessary to deviate from those approved

charges.

6. AFTER DISCOVERED EVIDENCE¹⁴

At trial, an investigator testified police received reports that a

young boy heard fussing and a gunshot while riding by the victim's house on

a bicycle at midday April 25, 1993. Police also received reports about a gray

Cadillac and a lowrider motorcycle, neither of which was known to neighbors,

State v. Edwards, 298 S.C. 272, 379 S.E.2d 888 (1989); State v. Littlejohn,

228 S.C. 324, 89 S.E.2d 924 (1955); State v. Harr, 321 S.C. 273, 468

S.E.2d 76 (Ct. App. 1996).

We recently approved another charge that makes no distinction

between direct and circumstantial evidence:

There are two types of evidence which are generally

presented during a trial -- direct evidence and

circumstantial evidence. Direct evidence is the

testimony of a person who asserts or claims to have

actual knowledge of a fact, such as an eyewitness.

Circumstantial evidence is proof of a chain of facts

and circumstances indicating the existence of a fact.

The law makes absolutely no distinction between

the weight or value to be given to either direct or

circumstantial evidence. Nor is a greater degree of

certainty required of circumstantial evidence than

of direct evidence. You should weigh all the

evidence in the case. After weighing all the

evidence, if you are not convinced of the guilt of the

defendant beyond a reasonable doubt, you must

find [the defendant] not guilty.

State v. Grippon, 327 S.C. 79, 83-84, 489 S.E.2d 462, 464 (1997).

¹⁴ After appellant appealed, this Court remanded the case in June

1996 at appellant's request for a hearing to consider his motion for a new

trial based upon after discovered evidence.

p.27

passing through the neighborhood late the previous evening. Appellant

argued in closing that police failed to investigate thoroughly those leads and

others.

The Jennings family lived about 100 yards from the victim's

house, which could be seen from the Jennings' residence. At the new trial

hearing, appellant's lawyer submitted an affidavit stating that Mrs. Jennings

told him before the trial that no one in her family knew anything about the

murder. A private investigator hired by appellant testified she and fellow

investigators diligently canvassed the victim's neighborhood in 1994,

searching for the boy mentioned in the police report as a potential witness

to the murder.

Mary Kay Needs, appellant's wife, testified she visited the

Jennings family in March 1996. She secretly taped a conversation in which

the young boys, nine-year-old Steven and ten-year-old Michael, purportedly

described hearing a gunshot and seeing a man run from the victim's house.

A friend who was with Mrs. Needs offered similar testimony about the

conversation with the Jennings boys.

Steven Jennings, who was six when the murder occurred, testified

at the hearing he told Mrs. Needs that he saw a tall, white male with black

hair and wearing black clothes outside the victim's house at about 6 p.m. on

April 25, 1993. He testified he did not know whether he heard a gunshot.

Michael Jennings, who was seven when the murder. occurred, offered a

similar description of the man. He testified he did not hear a gunshot.

James M. Jennings, the boys' father, testified he was not sure whether his

boys told Mrs. Needs they heard a gunshot and saw someone running from

the victim's house that day.

The trial judge denied the motion for a new trial based on after

discovered evidence. Appellant argues the judge erred because the boys'

testimony was clearly material to the issue of guilt. Appellant diligently

tried to locate the boys before trial, but could not. "With the State's entire

case revolving around an admitted perjurer who changed her story five times,

it is reasonable to think [the boys'] testimony would probably have changed

the result of the trial," appellant contends. We disagree.

To prevail on a motion for a new trial based on after discovered

evidence, a defendant must show (1) the evidence is such as will probably

change the result if a new trial is granted; (2) the evidence has been

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discovered since the trial; (3) the evidence could not have been discovered

prior to trial by the exercise of due diligence; (4) the evidence is material;

and (5) the evidence is not merely cumulative or impeaching. State v. Prince,

316 S.C. 57, 447 S.E.2d 177 (1993); State v. Irvin, 270 S.C. 539, 243 S.E.2d

195 (1978). The granting of such a motion is not favored and, absent error

of law or abuse of discretion an appellate court will not disturb the trial

judge's denial of the motion. State v. Irvin, supra; State v. Freeman, 319

S.C. 110) 459 S.E.2d 867 (Ct. App. 1995).

We conclude appellant has not met his burden. It is true the

State's case against appellant was not overwhelming, especially since the

State's key witness had offered so many contradictory statements. But we

do not believe the evidence appellant would present at a new trial would

change the outcome of the trial.

Furthermore, appellant knew about reports the police had

received about a possible young witness, the Cadillac, and the lowrider

motorcycle before the trial. It is unclear why appellant's private

investigators, in the exercise of due diligence, did not insist on speaking

directly to the boys instead of just their mother before the trial. Finally,

given the boys' lack of testimony at the post-trial hearing about a gunshot or

a man running from the victim's house, the evidence appellant would offer

is merely cumulative. Appellant would have little or no more evidence to

argue to the jury than he did in the first trial.

CONCLUSION

We dispose of appellant's remaining issues pursuant to Rule

220(b)(1), SCACR, and the following authorities: Issue 4: State v. Conyers,

326 S.C. 263, 487 S.E.2d 181 (1997) (argument is not preserved for appeal

when appellant failed to assert it at trial); State v. Meyers, 262 S.C. 222, 203

S.E.2d 678 (1974) (same); Issue 2: State v. Robinson, 310 S.C. 535, 426

S.E.2d 317 (1992) (in considering motion for directed verdict, judge is

concerned with existence or non-existence of evidence, not with its weight;

judge should submit case to jury if there is any substantial evidence which

reasonably tends to prove the guilt of the accused, or from which his guilt

may be fairly or logically deduced); State v. Rowell, 326 S.C. 313, 487 S.E.2d

185 (in reviewing denial of directed verdict motion, appellate court must

review the evidence in the light most favorable to the State; if there is any

direct evidence or any substantial circumstantial evidence reasonably tending

to prove the guilt of the accused, an appellate court must find that the case

p.29

was properly submitted to the jury), cert. denied, 118 S.Ct. 319, 139 L.Ed.2d

246(1997).

For the reasons outlined above, appellant's convictions are

AFFIRMED.

FINNEY, C.J., TOAL, MOORE, and BURNETT, JJ., concur.

p.30