THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State of South Carolina, Respondent,

v.

James Neil Tucker, Appellant.

Appeal From Calhoun County

Thomas W. Cooper, Jr., Judge

Opinion No. 24864

Heard October 6, 1998 - Filed December 14, 1998

AFFIRMED

Teresa L. Norris and Hillary Sheard, both of

Center for Capital Litigation, of Columbia, for

appellant.

Attorney General Charles M. Condon, Chief Deputy

Attorney General John W. McIntosh, and Assistant

Deputy Attorney General Donald J. Zelenka, all of

Columbia; and Solicitor Walter M. Bailey, Jr., of

Summerville, for respondent.

MOORE, A.J.: Appellant was convicted of murder, armed robbery,

grand larceny, and first degree burglary. On appeal, we affirmed his

convictions but reversed his death sentence. State v. Tucker, 320 S.C.

306, 464 S.E.2d 105 (1995). After a resentencing trial, he was again

sentenced to death. We affirm.

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FACTS

Appellant James Tucker broke into Shannon Mellon's house in the

early morning hours of July 2, 1992.¹ Armed with a gun, he taped her

wrists and ankles behind her back and left her on her bed while he

searched for things to steal. Appellant then reentered Shannon's bedroom

and shot her once in the head. While he was packing some of Shannon's

clean clothes to take with him, Shannon regained consciousness, sat up,

and said she could not see. Appellant shot her a second time in the head.

He continued to pack and when he heard Shannon's labored breathing, he

shot her a third time in the head. He then wrapped Shannon's body in a

sheet and dragged it into the woods behind the house. Her body was

discovered a week later. Appellant stole Shannon's car and drove to

Spartanburg where he stayed with a friend for several days. He was

apprehended in North Carolina on July 10, 1992.

DISCUSSION

Peremptory Challenges

Appellant contends the trial court erred in ruling on his Batson

motion.² We disagree.

All of the six peremptory strikes used by the State were used

against blacks.³Appellant contends that similarly situated white jurors

were not struck. Specifically, appellant questions the striking of Jurors

Bonaparte, Gillings, Stokes, Jackson, Williams, and Mitchell.

Pursuant to State v. Jones, 293 S.C. 541 358 S.E.2d 701 (1987), the

¹Appellant was running from police who were looking for him for the

murder of Rosalee Oakley in Sumter County. He was convicted and

sentenced to death for Rosalee's murder in December 1994. We affirmed

this conviction and sentence in State v. Tucker, 324 S.C. 155, 478 S.E.2d

260 (1996).

² Batson v. Kentucky, 476 U.S. 79 (1986).

³We note appellant is white and his victim was also white.

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trial judge must hold a Batson hearing when members of a cognizable

racial group or gender are struck and the opposing party requests a

hearing. The proponent of the strike is required to offer a race-neutral

explanation. Unless a discriminatory intent is inherent in the proponent's

explanation, the reason offered will be deemed race-neutral. Then, the

opponent of the strike must show that the race-neutral explanation given

was mere pretext. Pretext generally will be established by showing that

similarly situated members of another race were seated on the jury. State

v. Adams, 322 S.C. 114, 470 S.E.2d 366 (1996).

The solicitor stated he struck Juror Bonaparte because he was

argumentative and his answers were "dogmatic." Further, Juror

Bonaparte had referred to his brother's murder and the former solicitor's

refusal to prosecute. The solicitor stated he was afraid this juror harbored

some resentment against the solicitor's office which might affect his

deliberations. The trial court agreed that Juror Bonaparte was

argumentative. The trial judge even pointed out how the juror had been

argumentative with him. Appellant has failed to point out a white juror

similarly situated to Juror Bonaparte who was not struck. Furthermore,

counsel may strike venire persons based on their demeanor and

disposition. State v. Wilder, 306 S.C. 535, 413 S.E.2d 323 (1991).

The solicitor stated he struck Juror Gillings because she lived in a

high crime area, did not understand the court process, could not remember

the three categories regarding views of the death penalty, and stated she

could not sign a death verdict form. Additionally, Juror Gillings' husband

had been arrested for assault and battery of a high and aggravated

nature. The trial court ruled the reasons were race-neutral. He agreed

that Juror Gillings seemed to have trouble with abstract thinking and

lacked an understanding about the court process. Again, appellant has

failed to point to any similarly situated white jurors who were seated.

Furthermore, both the prosecutor and defense counsel must be

allowed to make credibility determinations when exercising peremptory

challenges. In State v. Bell, 305 S.C. 11, 406 S.E.2d 165 (1991), we

declined to substitute our judgment for that of the solicitor regarding

subjective responses, to death penalty voir dire questions in the face of

claims comparable white jurors were seated. See also State v. Woodruff,

300 S.C. 265, 387 S.E.2d 453 (1989).

The solicitor stated he struck Jurors Stokes, Jackson, Williams, and

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Mitchell because they appeared to be equivocal on the death penalty.

Vacillating responses to voir dire questions regarding the death penalty

will support the use of a peremptory strike against a Batson challenge.

State v. Elmore, 300 S.C. 130, 386 S.E.2d 769 (1989). Where the solicitor

perceives a person will have difficulty imposing the death penalty, he may

exercise a peremptory challenge against the juror upon this ground as a

racially neutral reason. State v. Green, 301 S.C. 347, 392 S.E.2d 157

(1990).

Because the trial judge's findings regarding purposeful discrimination.

rest largely upon his evaluation of the solicitor's credibility, we will give

those findings great deference. See Hernandez v. New York, 500 U.S. 352,

111 S.Ct. 1859, 114 L.Ed.2d 395 (1991); State v. Davis, 306 S.C. 246, 411

S.E.2d 220 (1991). When the record does not support the solicitor's stated

reason upon which the trial judge has based his findings, however, those

findings will be overturned. Davis, supra. Here, the record supports the

solicitor's reasons for striking these jurors. Riddle v. State, 314 S.C. 1,

443 S.E.2d 557 (1994). Mindful of the deference that we must give to the

trial court, we hold the trial court correctly held that the solicitor's

reasons for striking these jurors were not pretextual.

Limiting of Voir Dire

During voir dire, appellant sought to question the jury venire about

their knowledge of the Sumter County trial, the imposition of the death

penalty in that case, and the prior Calhoun County trial. The trial court

denied appellant's motion because he did not want to unnecessarily plant

any prejudicial information in the minds of the jurors. Appellant contends

this was error. We disagree.

Appellant contends the trial judge erred in limiting his questions on

voir dire. South Carolina Code Ann. § 16-3-20(D)(Supp. 1995) grants a

capital defendant the right to examine jurors through counsel. The

manner in which these questions are pursued and the scope of any

additional voir dire are matters of trial court discretion. State v. Smart,

278 S.C. 515, 299 S.E.2d 686 (1982). We hold the trial judge did not

abuse his discretion.

Additionally, in Mu'Min v. Virginia, 500 U.S. 415, 11 S.Ct. 1899,

1905, 114 L.Ed.2d 493 (1991), the United States Supreme Court held a

defendant is entitled to specific questions only if the failure to ask them

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would render his trial "fundamentally unfair." We hold the denial of

appellant's motion did not render his trial "fundamentally unfair."

Excusal of Juror Williams

Appellant contends the trial court erred in excusing Juror Williams

for cause. We disagree.

Juror Williams is a Jehovah's Witness minister. A general tenet of

Jehovah's Witnesses is that they can not sit in judgment of another

person. During the general qualifying of the jury pool, a bench conference

was held after which, Juror Williams was excused by the trial court. The

trial court then relayed what had occurred during the bench conference for

the record. The trial court stated defense counsel had asked Juror

Williams if he could sit in judgment following special counseling. Juror

Williams said he thought that there was some counseling which might

enable him to serve as a juror but the counseling might take four days.

Appellant agreed with the trial court's recollection but he objected to the

court's excusal of Juror Williams.

Appellant stated that the trial court's excusal prevented him from

rehabilitating the juror during individual voir dire as to his view on the

death penalty and the special circumstances which might allow him to sit

as a juror. The trial court stated that he excused Juror Williams without

regard to his view on the death penalty; it was based solely upon the fact

that his religious beliefs would not allow him to sit as a juror and that the

special circumstances which might allow him to serve would require four

days of counseling.

On review, the trial court's disqualification of a prospective juror will

not be disturbed where there is a reasonable basis from which the trial

court could have concluded that the juror would not have been able to

faithfully discharge his responsibilities as a juror under the law. State v.

Green, 301 S.C. 347, 392 S.E.2d 157 (1990); State v. Gaskins, 284 S.C.

105, 326 S.E.2d 132 (1985); State v. Linder, 276 S.C. 304, 278 S.E.2d 335

(1981). The trial court properly excluded Juror Williams because his

religious beliefs which prohibit judging another person would have

prevented or substantially impaired the performance of his duties as a

juror.

Appellant also contends the trial court violated S.C. Code Ann. § 16-

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3-20 (Supp. 1997), when he did not allow appellant to question Juror

Williams. Section 16-3-20(D) provides, in pertinent part:

(D) Notwithstanding the provisions of Section

14-7-1020, in cases involving capital punishment

a person called as a juror must be examined by

the attorney for the defense.

We note appellant did ask Juror Williams two questions and we have held

section 16-3-20(D) does not require the trial judge to allow counsel to

engage in lengthy interviews of prospective jurors. Smart, 274 S.C. 303,

305, 262 S.E.2d 911, 912 (1982); see also Atkins, supra.

In any event, we hold the trial court did not violate this section.

Here, the trial judge excused Juror Williams prior to any individual voir

dire being conducted. "The evident purpose of Section 16-3-20(D) is to

secure to counsel for the defense in death cases the right to also question

jurors during their voir dire examination. This is the sole limitation upon

the discretion of the court in voir dire examinations authorized under Code

Section 14-7-1020.⁴ That section is not repealed and the reference to it in

Section 16-3-20(D) impliedly recognizes that, in all other respects, the

discretion of the court in the conduct of voir dire examinations continues

to exist." State v. Smart, 274 S.C. at 305, 262 S.E.2d at 912 (footnote

added). See also State v. Atkins, 293 S.C. 294, 360 S.E.2d 302 (1987);

State v. Owens, 277 S.C. 189, 284 S.E.2d 584, 586 (1981).

⁴Section 14-7-1020 provides:

The court shall, on motion of either party in the suit,

examine on oath any person who is called as a juror

to know whether he is related to either party, has any

interest in the cause, has expressed or formed any

opinion, or is sensible of any bias or prejudice therein,

and the party objecting to the juror may introduce any

other competent evidence in support of the objection.

If it appears to the court that the juror is not indifferent

in the cause, he must be placed aside as to the trial of

that cause and another must be called.

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Section 14-7-1010 provides, in part: "The presiding judge shall at

each term of court ascertain the qualifications of the jurors. The presiding

judge shall determine whether any juror is disqualified or exempted by

law and only he shall disqualify or excuse any juror as may be provided

by law." There are no limitations or additional requirement under this

section in capital cases. Thus, the trial judge alone is to determine

whether a juror is qualified prior to the individual voir dire allowed

pursuant to sections 14-7-1020 and 16-3-20. See State v. South, 285 S.C.

529, 331 S.E.2d 775 (1985)(in a capital case, trial judge did not abuse

discretion by excluding two prospective jurors because of health and

educational conflicts). The trial court's decision to excuse Juror Williams

hinged on the required counseling which would take several days in order

to allow Juror Williams to serve. We find no error.

Admission of Appellant's Testimony from Prior Trial

Appellant contends the trial court erred in admitting appellant's

testimony from his prior Calhoun County trial. We disagree.

Appellant objected on the ground that the testimony was

inadmissible hearsay. We disagree. Under Rule 801(d)(2), SCRE, an

admission by a party-opponent is not hearsay "if the statement is offered

against a party and is (A) the party's own statement in either an

individual or a representative capacity . . . " Accordingly, appellant's

testimony was not hearsay pursuant to Rule 801 (d)(2) and the trial court

did not err in admitting it.

Submission of kidnapping as aggravating circumstance

Appellant contends the trial court erred in submitting kidnapping as

an aggravating circumstance. Appellant contends since the State did not

raise kidnapping as an aggravating circumstance in the previous trial, it

can not raise it in this re-sentencing. We disagree. This issue was

decided in State v. Plath, 281 S.C. 1, 313 S.E.2d 619 (1984), wherein we

held there was no prejudice to appellant from the submission of an

additional aggravating circumstance during a resentencing trial.

Further, appellant contends the State failed to prove the mens rea

necessary for kidnaping. We disagree. In State v. Jefferies, 446 S.E.2d

427, 316 S.C. 13 (1994), we held the mens rea required for the crime of

kidnaping as set forth in S.C. Code Ann. § 16-3-910 (1985) is

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"knowledge." Kidnaping is a continuing offense. The offense commences

when one is wrongfully deprived of freedom and continues until freedom is

restored. State v. Hall, 280 S.C. 74, 310 S.E.2d 429 (1983)(citing State v.

Ziegler, 274 S.C. 6, 10, 260 S.E.2d 182, 184 (1979)). Here, Shannon was

unquestionably deprived of her freedom once appellant bound her with the

duct tape. Further, we have held restraint constitutes kidnaping within

the meaning of section 16-3-910,⁵ regardless of the fact that the purpose of

this seizure was to facilitate the commission of a sexual battery. Hall, 280

S.C. 74, 78, 310 S.E.2d 429 (1983).. Here, the purpose of the restraint

of Shannon was to facilitate in the commission of burglary and robbery.

In determining whether to submit an aggravating circumstance to

the jury, the trial court is concerned only with the existence of evidence,

not its weight. The aggravating circumstance is properly submitted if

supported by any direct or circumstantial evidence. State v. Bennett, 328

S.C. 251, 493 S.E.2d 845 (1997). There was evidence to support the

submission of kidnaping as an aggravating circumstance.

Appellant's remaining arguments are affirmed pursuant to Rule 220

(b)(1), SCAM, and the following authorities: Appellant's Issue 1 (change

of venue): State v. Caldwell, 300 S.C. 494, 388 S.E.2d 816 (1990)("When

jurors have been exposed to such publicity, a denial of a change of venue

is not error where jurors are found to have the ability to lay aside any

impressions or opinions and render a verdict based on the evidence

presented at trial."); Appellant's Issues 5-8 (juror qualification): State v.

Green, 301 S.C. 347, 392 S.E.2d 157 (1990); State v. Holmes, 464 S.E.2d

334, 320 S.C. 259 (1995)(any error in qualifying juror was harmless where

juror was alternate and never used in trial); Appellant's Issue 6: State v.

Plemmons, 286 S.C. 78, 332 S.E.2d 765 (1985)(qualification of juror is

addressed to trial judge's discretion and will not be disturbed unless

wholly unsupported); Appellant's Issue 11: State v. Tucker, 324 S.C. 155,

478 S.E.2d 260, 270 (1996)(appellant's prior record showed extremely

violent nature and future dangerousness and inability to be rehabilitated);

Appellant's Issue 12: State v. Von Dohlen, 322 S.C. 234, 471 S.E.2d 689

⁵In State v. Ray, 310 S.C. 431, 437, 427 S.E.2d 171 (1993), we held

"[t]he South Carolina aggravating circumstance of kidnapping is defined by

S.C. Code Ann. § 16-3-910 as the unlawful seizure, confinement, inveigling,

decoying, kidnapping, abducting or carrying away of any other person by

any means whatsoever without authority of law."

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(1996)(forensic pathologist could testify as to pain victim endured and

although physical torture was not submitted to jury as aggravating

circumstance, evidence regarding torture was still admissible as going to

circumstances of crime); Appellant's Issue 13: State v. Gaskins, 284 S. C.

105, 326 S.E.2d 132 (1985)(details of defendant's prior murder convictions,

including photographs of prior murder victims, were properly allowed into

evidence in sentencing phase); Ray v. State, 330 S.C. 184, 498 S.E.2d 640

(1998)(evidence of other crimes, including "gory photos" of victim, is

admissible at sentencing phase of capital trial); Appellant's Issue 14: State v.

Williams, 321 S.C. 327, 468 S.E.2d 626 (1996)(photographs of victim's

body are admissible in sentencing phase of capital trial to show

circumstances of crime and character of defendant); State v. Kornahrens,

290 S.C. 281, 350 S.E.2d 180 (1986)(relevancy, materiality, and

admissibility of photographs are left to sound discretion of trial court).

Proportionality Review

We have conducted the proportionality review pursuant to S.C. Code

Ann.§ 16-3-25 (1985). We find the sentence was not the result of passion,

prejudice, or other arbitrary factor and the evidence supports the jury's

finding of the aggravating circumstances. Further, we find the sentence is

not excessive or disproportionate to the penalty imposed in similar cases.

State v. Chaffee, 285 S.C. 21, 328 S.E.2d 464 (1984), cert. denied, 471 U.S.

1009, 105 S.Ct. 1878, 85 L.Ed.2d 170 (1985). Accordingly, appellant's

sentence is

AFFIRMED.

TOAL, A.C.J., WALLER, BURNETT, JJ., and Acting Associate Justice Diane Schafer

Goodstein, concur.

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