Shearouse Adv. Sh. No.
S.E. 2d


In The Supreme Court

The State, Respondent,


Mar-Reece Aldean

Hughes, Appellant.

Appeal From York County

John C. Hayes, III, Judge

Opinion No. 25003

Heard May 26, 1998 - Filed October 4, 1999


Stephen D. Schusterman, of Rock Hill; and Christina

Chadwick Brice, of York, for appellant.

Attorney General Charles M. Condon, Chief Deputy

Attorney General John W. McIntosh, Assistant

Deputy Attorney General Donald J. Zelenka,

Assistant Attorney General Robert F. Daley, Jr., all

of Columbia; and Solicitor Thomas E. Pope, of York,

for respondent.

MOORE, A.J.: Appellant was sentenced to death for the murder

of Officer Brent McCants who was killed during a routine traffic stop. We



State v. Hughes


On September 25, 1992, appellant and Eric Forney, armed with a gun,

accosted two college students in the parking lot of a restaurant in Charlotte,

North Carolina, and stole their car. The two men then drove to Rock Hill

where Officer McCants stopped them for driving without headlights.

McCants was shot several times and his police-issue walkie-talkie was taken

from his belt as he lay on the side of the road. Appellant and Forney were

apprehended shortly thereafter.

The State sought the death penalty against both appellant and Forney.

They were tried separately. At his trial, Forney claimed appellant was the

triggerman. Forney was convicted of murder, criminal conspiracy, and

armed robbery and was acquitted of possession of a pistol during the

commission of a violent crime. After the jury failed to return a unanimous

verdict in the sentencing phase, he was sentenced to life imprisonment. This

sentence was affirmed on appeal. State v. Forney, 321 S.C. 353, 468 S.E.2d


At appellant's trial, appellant admitted he participated in the armed

robbery of the vehicle and that he was driving at the time McCants stopped

them, but claimed Forney shot McCantsfrom the passenger seat and stole

the officer's walkie-talkie. Appellant was convicted of murder, armed

robbery, criminal conspiracy, possession of a stolen vehicle., and possession of

a firearm during the commission of a crime. The jury found as an

aggravating circumstance that the victim was a local law enforcement officer

performing his official duties.


1) Sentencing phase admission of jailhouse crimes

During the sentencing phase, evidence was admitted that while in

prison awaiting trial for the murder of Officer McCants, appellant killed a

sleeping cellmate by stabbing him in the throat with a "shank." He was in

the process of stabbing another cellmate when he was stopped by prison

guards. These crimes occurred April 12, 1993.


State v. Hughes

In response to this evidence, appellant introduced expert testimony

that he was mentally ill (paranoid schizophrenic) at the time. Appellant's

expert testified appellant's actions on April 12th were not indicative of his

character since he was mentally ill at the: time. Further, there was evidence

appellant had no further disciplinary problems once he was medicated for his

mental illness. The trial judge charged the jury that the April 12th crimes

should be considered only "as evidence of [appellant's] character, his

characteristics, and/or his future dangerousness."

On appeal, appellant contends admission of the evidence regarding the

April 12th crimes was improper because he was mentally ill at the time and

therefore this evidence was not reliable character evidence.1 We disagree.

First, there was no contemporaneous objection to the introduction of

this evidence at the sentencing phase of trial. The trial judge ruled in limine

that the evidence was admissible. An in limine ruling, however, is not final

and does not preserve the issue for appeal. State v. Schumpert, 312 S.C.

502, 435 S.E.2d 859 (1993). Accordingly, this issue is not preserved.

In any event, it is well-settled evidence of the defendant's behavior in

prison is admissible in capital sentencing because it bears upon his

character. State v. Stewart, 283 S.C. 104, 320 S.E.2d 447 (1984). The State

may establish as an aggravating factor that the defendant would in the

future pose a danger to others if not executed. State v. Patterson, 290 S.C.

523, 351 S.E.2d 853 (1986), vacated on other grounds, 111 S.Ct. 2253 (1991)

(citing Jurek v. Texas, 428 U.S. 262 (1976) and Barefoot v. Estelle, 463 U.S.

880 (1983)). A defendant has the reciprocal right to present evidence he

would adapt well to prison life. Id.

Here, the evidence appellant brutally killed one person and attempted

to kill another while in prison was admissible as evidence of future

dangerousness. Expert testimony appel lant was mentally ill at the time and

therefore acting "uncharacteristically" does not render evidence of his actions

in prison inadmissible. The sentencing jury is charged with considering all

1 Appellant also argues this evidence does not fit within the five exceptions

to inadmissibility set forth in State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923).

Lyle is inapplicable here. Evidence admitted under Lyle is substantive evidence

to establish guilt, not character evidence relevant to capital sentencing. State

v. Middleton, 295 S.C. 318, 368 S.E.2d 457, cert. denied, 488 U.S. 872 (1988).


State v. Hughes

possible relevant information about the individual defendant whose fate it

must determine. State v. Tucker (Tucker II), 324 S.C. 155, ___, 478 S.E.2d

260, 270 (1996), cert. denied, 117 S.Ct. 1561 (1997). It was for the jury to

weigh all the evidence regarding appellant's behavior to assess his character

and propensity or lack of propensity for violence. See State v. Nelson, 331

S.C. 1, 501 S.E.2d 716 (1998) (generally in evidentiary law character refers

to an individual's propensity).2

2) Nondisclosure of complete SLED summary

During the sentencing phase, appellant moved for a mistrial on the

ground the State had failed to disclose, in violation of Rule 5, SCrimP, part

of a report by the State Law Enforcement Division (SLED) concerning the

April 12th jailhouse crimes. Specifically, counsel complained she had not

received the first seventeen pages of a SLED investigative summary

indicating three inmates gave statements that around the time of the

stabbings appellant talked about seeing "a little green man." The State

contended it was not required to disclose the summary because it was work

product exempt under Rule 5. The trial judge denied a mistrial finding

appellant was not prejudiced by the failure to disclose.

Rule 5(a)(1)(C), SCrimp, exempts internal prosecution documents

made in connection with an investigation. We need not determine here

whether the report in question is exempt3 since we agree with the trial

judge's ruling that appellant has shown no prejudice from the failure to

disclose. See State v. Trotter, 317 S.C.411, 2453 S.E.2d 905 (Ct. App. 1995)

aff'd in result 322 S.C. 5372 473 S.E.2d 452 (1996) (violation of Rule 5 not

reversible where no prejudice); State v. Thompson, 276 S.C. 616, 281 S.E.2d

216 (1981) (State's failure to disclose does not warrant reversal unless

2Appellant also relies on expert testimony he could not be held "criminally

responsible" for the April 12th crimes because of his mental illness. Evidence

of other crimes is admissible in sentencing to show the defendant's individual

characteristics and predisposition to commit similar crimes, irrespective of

conviction or a finding of criminal responsibility. State v. George, 323 S.C. 496,

476 S.E.2d 903 (1996), cert. denied, 117 S.Ct. 1261 (1997).

3 See State v. Gill, 319 S.C. 283, 460 S.E.2d 412 (Ct. App. 1995), vacated

on othergrounds,327 S.C.253,489 S.E.2d,478 (1997) (summary report prepared

by police for use in prosecuting case not subject to disclosure under Rule 5).


State v. Hughes

defendant deprived of a fair trial).4

The information regarding the inmates' statements was available to

the defense before trial from the report of Dr. Morgan which refers to

inmates Jennings's, Walker's, and Gaithers's statements regarding the "little

green man." The trial judge had these three inmates transported to court

during trial to be interviewed by defense counsel. Further, appellant's

experts, Drs. Kohanski and Dupree, both testified they had information

appellant told fellow inmates of "a little green man" talking to him. In

conclusion, appellant was not prejudiced by the partial disclosure of the

SLED investigative summary since the information was available from other


3) Involuntary statements

In the guilt phase of trial, State witness Jennings, an inmate, testified

he heard appellant tell a group of inmates: "The best feeling I ever had is

when I killed that cop." State witness Strain, a prison guard, testified he

overheard appellant say to another inmate that "he was going to kill him

another white boy." Appellant claims the trial judge erred in refusing to

exclude these statements as involuntary because appellant was mentally ill

at the time.

Absent coercive police conduct causally related to a confession, there is

no basis for finding a confession constitutionally involuntary. A defendant's

mental condition in and of itself does not render a statement involuntary in

violation of due process. Colorado v. Connell, 479 U.S. 157, 107 S.Ct. 515,

93 L.Ed.2d 473 (1986). Further, under State law, a confession is not

inadmissible because of mental deficiency alone. State v. Doby, 273 S.C. 704,

258 S.E.2d 896 (1979), cert. denied, 444 U.S. 1048 (1980). Here, the only

factor appellant relies on as evidence of involuntariness is his mental

4 Appellant also claims a Brady violation but this issue was not raised

below and is not preserved on appeal. State v. Tucker (Tucker I), 319 S.C.

425462 S.E.2d 263 (1995), cert. denied, 516 U.S. 1080 (1996) (defendant cannot

argue one ground below and another on appeal). In any event, failure to

disclose Brady material is reversible error only when its omission deprives the

defendant of a fair trial. State v. Gunn, 313 S.C. 124,437 S.E.2d, 75 (1993), cert.

denied, 510 U.S. 1115 (1994). As discussed below, appellant can show no

prejudice and therefore was not deprived of a fair trial.


State v. Hughes

condition. The statements in question were spontaneously made and there is

no evidence of police coercion. Since mental condition alone does not support

a finding of involuntariness, this issue is without merit.

Appellant further contends these statements were untrustworthy

because there was no corroborating evidence. He refers to our decision in co-

defendant Forney's case where Forney sought admission of appellant's

statements to show appellant was the triggerman. We held the exclusion of

those statements proper because there was no corroborating evidence

indicating their trustworthiness. State v. Forngy, supra.

In Forney's case, however, these statements were hearsay statements

against the penal interest of an unavailable declarant (appellant) which

required corroboration to be admissible to exculpate the accused (Forney).

State v. Doctor, 306 S.C. 527, 413 S.E.2d. 36 (1992); see also Rule 804(b)(3),

SCRE. In appellant's case, these statements were ad missible as statements

against his own interest and required no corroborating evidence. Rule

801(d)(2), SCRE.

4) Co-defendant's life sentence as mitigating factor

Appellant, contends the trial judge erred in refusing his request to

admit as mitigating evidence in the sentencing phase co-defendant Forney's

life sentence. Forney received a life sentence after the jury in his own capital

case found an aggravating circumstancebut failed to return a unanimous

verdict of death. See S.C. Code Ann. 16-3-20(C) (Supp. 1997) (defendant

sentenced to life if no unanimous recommendation by jury). The trial judge

found this evidence irrelevant. We agree.

In a capital case, the sentencer may not be precluded from considering

as mitigating evidence (1) any aspect of the defendant's character or record

and (2) any circumstances of the crime that may serve as a basis for a

sentence less than death. State v. Bell, 305 S.C. 11, 406 S.E.2d 165 (1991),

cert. denied, 502 U.S. 1038 (1992) (citing Hitchcock v. Dugger, 481 U.S. 393

(1987)). In Bell, we found evidence of a co-defendant's demeanor and record

was properly excluded because it fit neither of these categories of mitigating

evidence. Similarly, co-defendant Forney's life sentence does not qualify as

mitigating evidence here. Forney's sentence does not demonstrate

appellant's character or record, nor does it reveal anything about the

circumstances of McCants's murder. Accordingly, this evidence was properly


State v. Hughes

excluded. State v. Charpin , 333 S.C. 124, 508 S.E.2d 851 (1998).

5) Proportionality

After the jury returned its recommendation of death, appellant moved

for imposition of a life sentence on the ground a sentence of death would be

disproportionate to Forney's life sentence:. On appeal, he argues the trial

judge's refusal to impose a life sentence violated his constitutional and

statutory rights to a proportionate sentence.

Under State law, S.C. Code Ann. 16-3-25(C)(3) (1985) requires this

Court to determine in a death case "[w]hether the sentence of death is

excessive or disproportionate to the penalty imposed in similar cases,

considering both the crime and the defendant." (emphasis added). There is

no requirement the sentence be proportional to any particular case. Death

sentences have been imposed in other cases where, as here, the single

aggravating circumstance was death of a police officer. See State v. Johnson,

306 S.C. 1191 410 S.E.2d 547 (1991), cert. denied, 503 U.S. 993 (1992); State

v. South, 285 S.C. 529, 331 S.E.2d 775 cert. denied 474 U.S. 888 (1985).

Accordingly, appellant's sentence is not disproportionate under State law.

Further, the Eighth Amendment requires no comparative proportionality

review, Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d (1984), and

hence there can be no constitutional violation from the refusal to determine

proportionality to a specific case.

Appellant further contends his death sentence is disproportionate to

the degree of his moral culpability under Enmund v. Florida, 458 U.S. 782,

102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), because he was convicted of murder

on a theory of accomplice liability and there is no evidence of his intent to

kill. We note the United States Supreme Court specifically modified

Enmund in Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127

(1987), wherein it held the Enmund culpability requirement is satisfied by

major participation in the underlying felony combined with reckless

indifference to human life.5 See also State v. Longworth, 313 S.C. 360, 438

S.E.2d 219 (1993).

In any event, the sentence in this case does not rest on moral

5 The trial judge charged this language from Tison at the close of the

sentencing phase.


State v. Hughes

culpability established solely by accomplice liability. Statements by

appellant admitted in the guilt and sentencing phases of trial indicated he

was the triggerman. This evidence of direct moral culpability in the killing

of Officer McCants supports the imposition of death based on the

aggravating circumstance found by the jury.

6) Courtroom outburst

In the sentencing phase, during cross-examination of appellant's

medical expert, Officer McCants's mother loudly exited the courtroom

followed by her sister. Appellant moved for a mistrial which was denied.

The trial judge found that although Mrs. McCants's outburst could be

interpreted as "a negative comment" on the defense evidence, her conduct

was only momentarily disruptive and the jury already knew how she felt

since she had testified as a victim impact witness.

The decision whether to grant a mistrial because of a witness's

outburst rests within the sound discretion of the trial judge and will not be

reversed absent an abuse thereof or manifest prejudice to the complaining

party. State v. Anderson, 322 S.C. 89, 470 S.E.2d 103 (1996). In Anderson,

we found no abuse of discretion in the denial of a mistrial where the outburst

was limited and the jury likely understood it as an expression of grief over

the victim's death. This case is similar. As noted by the trial judge, the jury

was already aware of Mrs. McCants' feelings about the death of her son and

likely understood her outburst as an expression of this grief. We find the

trial judge did not abuse his discretion in denying a mistrial.

7) Allen charge

After deliberating at the close of the sentencing phase for four hours,

the jury sent the trial judge a note stating they could not come to a

unanimous decision. The trial judge gave a modified Allen charge6 as


Well, by law I cannot tell you where to go from here, but I can

ask and make a suggestion that you continue deliberations in an

attempt to reach a verdict. I can tell you all of you have a duty to

consult with one another and to deliberate with a view to

6 Allen v. United States, 164 U.S. 492 (1896).


State v. Hughes

reaching an agreement, if this can be done without violence to

any one of your individual judgments. Each of you as jurors

must decide the case for yourself, but only after impartial

consideration of the evidence with your fellow jurors. During the

course of your continued deliberations each of you should not

hesitate to re-examine your own views and change your opinion

if convinced that your opinion is erroneous. Each juror who finds

himself or herself to be in the minority should reconsider their

views in light of the opinions of the jurors of the majority and,

conversely each juror finding themselves in the majority should

give equal consideration to the views of the minority. No juror,

however, should surrender their honest conviction as to the

weight or effect of the evidence solely because of the opinion of

your fellow jurors or for the mere purpose of returning a

unanimous verdict.

On appeal, appellant complains the underscored statement was not even

handed because it directs the minority to "reconsider" and the majority

merely to "consider."

First, this ground for objection to the Allen charge was not raised

below and is not preserved. Tucker I, supra (objection to Allen charge not

preserved where different objection stated below). In any event, the charge

specifically instructs the majority to give "equal consideration to the views of

the minority." Taken as a whole, this charge is an even-handed admonition

to both the minority and majority jurors.

Appellant also complains the trial judge coerced the jury's decision by

sending a note asking whether they would like to continue deliberations that

evening or break until morning. There is no indication appellant objected

below and this issue is not preserved. Tucker I, supra. Further, this note

was simply an inquiry as to the jury's wishes and conveyed no admonition to

reach a verdict. This argument is without merit.


We have reviewed the record and conclude imposition of death in this

case was not the result of passion, prejudice, or any other arbitrary factor.

Further, the evidence supports the aggravating circumstance and the death

sentence is not excessive or disproportionate to the penalty imposed in


State v. Hughes

similar cases. S.C. Code Ann. 16-3-25(C) (1985); see State v. Johnson,

supra; State v. South, supra. Accordingly, the judgment of the circuit court