S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
v.
Russell Nelson King, Appellant.
Appeal From Marion County
B. Hicks Harwell, Judge
Opinion No. 24916
Heard November 18, 1998 - March 8, 1999
REVERSED
John D. Delgado, of Columbia, for appellant.
Attorney General Charles M. Condon, Chief Deputy
Attorney General John W. McIntosh, Assistant Deputy
Attorney General Donald J. Zelenka, Assistant Attorneys
General Lauri J. Soles and S. Creighton Waters, all of
Columbia; and Solicitor Dudley Saleeby, Jr., of Florence, for
respondent.
BURNETT, A.J.: Appellant appeals his convictions for
murder, arson and armed robbery. We reverse.
FACTS
Appellant lived in Mullins, South Carolina with his wife and
three children. Appellant's father-in-law, Billy Turbeville, moved in with
p.31
STATE v. KING
appellant's family after Mr. Turbeville and his wife divorced in 1989. Mr.
Turbeville had suffered a stroke in 1987 and could no longer live alone.
Mr. Turbeville lived in an apartment which had been added to the King's
home, and he paid the second mortgage the Kings had obtained to build
the apartment.
At approximately 5:20 a.m. on the morning of March 1 1995,
appellant woke his wife when he discovered Mr. Turbeville's apartment
was on fire. Because the apartment's door was locked, appellant broke a
window in the door and reached through to open the door. Appellant and
his wife ran into the apartment several times searching for Mr. Turbeville.
The apartment was filled with smoke and they were unable to locate him.
Officer Jimmy Collins testified, when he arrived, appellant was up let and
said his father-in-law might be inside, but the smoke was too thick.
Once the fire department extinguished the fire and the smoke
was blown from the apartment, the body of Mr. Turbeville was found on
the floor beside his bed. Mr. Turbeville had been burned and beaton on
the head with a blunt object such as a hammer.1 He had nine lacerations
to the scalp. A pool of blood was discovered just inside the apartment
door, more than nine feet from the body. Another pool of blood was
discovered under Mr. Turbeville's head. The authorities seized the
trousers appellant was wearing when he entered Mr. Turbeville's
apartment. Examination of the trousers revealed spatters of blood on the
leg and crotch. DNA analysis revealed the blood to be Mr. Turbeville's.
Gasoline-soaked newspapers and paper towels were found in
the apartment. A gasoline-soaked newspaper was found in the recycling
bin inside the Florida room of the King home. The Florida room is located
at the back of the house facing Mr. Turbeville's apartment. Authorities,
seized a gas can found in the garage and another found in the back of
appellant's truck.
Appellant's ex-wife, Gina Turbeville-King,2 testified her father
usually went to the Huddle House restaurant at approximately 3:30 a.m.
A witness testified Mr. Turbeville was at the Huddle House on the
1 The weapon was never found.
2 Mrs. King divorced appellant in 1996.
p.32
STATE v. KING
morning of March 10, 1995, and left the restaurant at approximately 4:45
a.m.
Mr. Turbeville received two checks each month totaling
$2200.00. After paying his bills totaling $400.00, Mr. Turbeville kept the
remaining cash in his wallet. A witness from the Huddle House testified
Mr. Turbeville carried money in his front pants' pocket. No wallet or cash
was found on Mr. Turbeville's body. Mrs. King testified her father's VCR
was missing after the fire. Authorities never found the missing VCR or
money.
Mrs. King testified, on the evening before the murder, he
returned to her home at approximately 9:00 p.m. As she arrived home,
she was surprised to see appellant pulling into the driveway because he
was suppose to be home with the children. Later that evening, Mrs. King
discovered approximately $70.00 was missing from her purse. When she
confronted appellant, he first denied and then admitted taking the money.
Appellant left the house around 1:00 a.m. telling his ex-wife he was going
to get some money to repay her. Appellant returned home at
approximately 2:00 a.m. and got into bed with his ex-wife. He again got
out of bed a short while later and returned to bed around 3:00 a.m. Mrs.
King next remembered appellant yelling to her about the fire. Mrs. King
testified appellant had told her she was to agree that she heard someone
come into their yard that night and argue with her father.3 According to
Mrs. King, appellant had threatened to take the children if she did not
agree with his story. Mrs. King testified she had not heard anything.
Frank Robinson, an acquaintance of appellant, testified
appellant had come to his home at "around 11:00 p.m. or 12:00 a.m." the
night of the murder to ask Robinson if someone had paid in advance for
work appellant was to do for this person. Robinson told appellant he had
not yet received the advanced payment. A few hours later, around 3:00
a.m., appellant returned to Robinson's home asking to borrow $7.00 for
gasoline. Robinson told him to return later in the morning. When
appellant came back between 7:00 and 8:00 a.m., he told Robinson his
father-in-law "got burned last night."
3 Her father's stroke severely affected his ability to speak.
p.33
STATE v. KING
ISSUES
I. Did the trial judge err in refusing to grant a new trial after
a television news reporter entered the courtroom midway
through the jury charge and filmed the judge, parties, and
jury?
II Did the trial judge err in allowing appellant's ex-wife to
testify regarding appellant's need for money prior to the
murder because this testimony served no purpose other than to
impugn appellant's character and its prejudicial effect
outweighed any probative value?
DISCUSSION
I.
Immediately before beginning closing arguments, the trial
judge ordered the bailiff not to allow anyone "to leave or reenter [the
courtroom] once the arguments begin or [during] the charge of the law."
In the middle of the judge's charge to the jury, a television news reporter
entered the courtroom. With the use of a video camera, the reporter
filmed the proceedings until the end of the jury charge.
Appellant did not object to this situation prior to the jury's
verdict. Instead, appellant raised this issue three days later in his post
trial motion for a new trial. During the post trial motions' hearing,
defense counsel admitted he discussed the situation with appellant and
appellant's father prior to the verdict and "a conscious decision [was] made
not to make a motion for a mistrial." Only after the jury returned with
an unfavorable verdict did defense counsel attempt to raise this issue.
In denying the new trial motion, the trial judge found
appellant had waived this claim because his objection was not timely.
Further, the trial judge found the reporter's activities were in accordance
with Rule 605, SCACR, and did not distract or disrupt the proceedings.
We conclude appellant waived review of this issue by failing to
object prior to the jury's verdict. Rule 103(a)(1), SCRE; State v. Hicks,
330 S.C. 207) 499 S.E.2d 209 (1998) (to preserve an issue for appellate
review, the objection must be timely made, which usually requires it be
p.34
STATE v. KING
made at the earliest possible opportunity); see also State v. Kelly, 331 S.C.
132, 502 S.E.2d 99 (1998) (a new trial motion may not be used to raise an
evidentiary issue for the first time); McGee v. Bruce Hosp. Syst., 321 S.C.
340, 468 S.E.2d 633 (1996) (an issue may not be raised for the first time
in a motion for a new trial); State v. Penlan , 275 S.C. 537, 538, 273
S.E.2d 765, 767 (1981) (finding appellant waived the issue where he did
not make a motion for a mistrial until after the verdict).
Defense counsel, after consultation with appellant, made a
strategic trial decision not to object. Appellant and defense counsel
weighed their options and, rather than moving for a mistrial, decided to
take the chance appellant would be acquitted. Under these facts,
appellant has no basis on which to assert error.
Appellant's ex-wife, Gina Turbeville-King, testified for the
State. She testified she and appellant first separated in October 1994.
They reconciled in January 1995 and separated again shortly after the
murder. The State, in an attempt to elicit testimony of appellant's recent
drug use, asked Mrs. King if "[a]ny changes in [appellant had taken] place
then that lead [sic] to that separation?" Defense counsel objected on the
basis of relevance. After an in camera hearing, the trial judge sustained
the objection and ruled the State could not introduce evidence of
appellant's drug addiction.
The State then requested permission to elicit testimony to
show appellant had a pattern of taking money from his ex-wife and
staying out late to prove motive and/or to establish the context of the
crimes under the res gestae theory. The prosecution indicated it would
not discuss appellant's drug use. Defense counsel objected claiming these
were inadmissible prior bad acts. The court overruled the objection
explaining the evidence was relevant to establish appellant's need for
money and the prejudicial effect of this evidence did not outweigh its
probative value.4
4 The trial judge assured defense counsel that his objection would run
throughout Mrs. King's testimony and it would be unnecessary to continue
to object.
p.35
STATE v. KING
Before the jury, the State asked Mrs. King whether an
changes in appellant's conduct led to the separation. Mrs. King responded
appellant had been staying out late and he would leave several times
during the night.
The State then asked Mrs. King about appellant's need for
money. She testified appellant had admitted taking items from their
home, pawning them, then redeeming them and returning them to the
home. Mrs. King also testified appellant stole cash from her purse, forged
checks on her bank account, stole cash from her bank account by using
her ATM card, and stopped paying his share of the bills. These incidents
occurred prior to their separation in October 1994 and began to occur
again after they reconciled in January 1995. Mrs. King testified their
financial situation had not changed during this time.
Mrs. King then testified appellant stole $70 from her purse on
the evening before the murder. According to Mrs. King, when she
confronted appellant he first denied, then admitted, taking the money.
Mrs. King testified appellant promised to repay her. After this
confrontation, appellant left the house at approximately 1:00 a.m. He
returned around 2:00 a.m. Later, he got up from bed and returned around
3:00 a.m. Mrs. King testified she was not aware of appellant leaving the
bed again until he woke her yelling there was a fire.
Appellant argues the trial judge erred in admitting Mr . King's
testimony regarding his prior bad acts of stealing because this testimony
only served to establish his criminal propensity to commit the charged
crimes and he is a bad person. The State argues this testimony as
admissible to establish motive and/or to provide the context of the':crimes.
In a criminal case, the State cannot attack the character of the
defendant unless the defendant himself first places his character in issue.
Rule 404(a), SCRE; Mitchell v. State, 298 S.C. 186, 379 S.E.2d 12 (1989).
Further, evidence of prior bad acts is inadmissible to show criminal
propensity or to demonstrate the accused is a bad person. Mitchell v.
State, supra.
South Carolina law precludes evidence of a defendant' prior
crimes or other bad acts to prove the defendant's guilt for the crime
charged except to establish (1) motive, (2) intent, (3) the absence of
mistake or accident, (4) a common scheme or plan, or (5) the identity of
p.36
STATE v. KING
the perpetrator. Rule 404(b), SCRE; State v. Adams, 322 S.C. 114,;! 470
S.E.2d 366 (1996); State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923). The
evidence of the prior bad acts must be clear and convincing to be
admissible. State v. Adams, supra. The record must support a logical
relevance between the prior bad act and the crime for which the defendant
is accused. State v. Adams, supra; State v. Smith, 309 S.C. 442, 424
S.E.2d 496 (1992); State v. Gilchrist, 329 S.C. 621, 496 S.E.2d 424 (Ct.
App. 1998). Further, even though the evidence is clear and convincing
and falls within a Lyle exception, it must be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice to the
defendant. Rule 403, SCRE; State v. Adams, supra.
The res gestae theory recognizes evidence of other bad acts
may be an integral part of the crime with which the defendant is charged,
or may be needed to aid the fact finder in understanding the context in
which the crime occurred. State v. Adams, supra. This evidence f other
crimes is admissible:
when such evidence "furnishes part of the context of the
crime" or is necessary to a "full presentation" of the case,
or is so intimately connected with and explanatory of the
crime charged against the defendant and is so much a
part of the setting of the case and its "environment" that
its proof is appropriate in order "to complete the story of
the crime on trial by proving its immediate context or
the 'res gestae"' or the "uncharged offense is 'so linked
together in point of time and circumstances with the
crime charged that one cannot be fully shown without
proving the other . [and is thus] part of the res gestae
of the crime charged." And where evidence is admissible
to provide this "full presentation" of the offense, "[t]here
is no reason to fragmentize the event under inquiry" by
suppressing parts of the "res gestae."
State v. Adams, 322 S.C. at 122, 470 S.E.2d at 370-71 (quoting United
States v. Masters, 622 F.2d 83~ 86 (4th Cir. 1980) (citations omitted)). The
evidence of prior bad acts is inadmissible as part of the res gestae, "where
the record does not support any relationship between the crime and [prior
bad acts]." State v. Hough, 325 S.C. S8, 480 S.E.2d 77 (1997). Under this
theory, it is important that the temporal proximity of the prior bad act be
closely related to the charged crime. State v. Hough, supra. Even if the
p.37
STATE v. KING
evidence is relevant under this theory, prior to admission the trial judge
should determine whether its probative value clearly outweighs any unfair
prejudice. Rule 403, SCRE; State v. Bolden, 303 S.C. 41, 398 S.E.2d 494
For purposes of this discussion we have divided the evidence
presented by the State into two categories: (1) the evidence of his
numerous prior thefts from his ex-wife beginning in 1994 (remote thefts)
and (2) the evidence of the theft on the night before the murder
(immediate theft). The remote thefts were not admissible under any
theory. This evidence shows appellant's bad character and his propensity
to commit crimes. These are inadmissible purposes. The temporal
connection between t&se petty thefts and the charged crimes is too
attenuated for admissibility under the res gestae theory or under Lyle.5
Thus, the trial judge erred in admitting evidence of the remote thefts.
In our opinion, the admission of this evidence is not harmless
beyond a reasonable doubt.6 State v. Bolden, supra. Whether the
improper introduction of this evidence is harmless requires the Court to
determine whether appellant's "guilt is conclusively proven by competent
evidence, such that no other rational conclusion could be reached." State
v. Parker, 315 S.C. at 234, 433 S.E.2d at 833; see also State v. Reeves,
301 S.C. 191, 194, 391 S.E.2d 241, 243 (1990) (finding an error is harmless
if it could not reasonably have affected the result of the trial),; State v.
Davis, 309 S.C. 326, 422 S.E.2d 133 (1992) (even if evidence, was wrongly
5 While the remote thefts may have been minimally relevant to show
motive under Lyle, the prejudicial effect of this evidence far outweighed
this slight probative value.
6 The State suggests any error in the admission of this evidence is
harmless beyond a reasonable doubt because Mrs. King's testimony was
cumulative to Robinson's testimony about appellant's need for money. We
disagree. Robinson's testimony only established appellant had asked to
borrow money from Robinson in the past and on the night of the murder.
There was no suggestion that appellant had attempted to steal money.
Mrs. King's testimony established appellant stole money from her and
pawned household items for money. Her testimony was much more
damaging to appellant. Thus, her testimony was not cumulative to
Robinson's testimony.
p.38
STATE v. KING
admitted, its admission may constitute harmless error if the evidence did
not affect the outcome of the trial).
Here, all the evidence was circumstantial. While this
circumstantial evidence pointed to appellant's guilt, especially the blood
evidence, the evidence was not overwhelming. The admission of the
remote thefts was too prejudicial to be held harmless. The admission of
this testimony allowed the State to insinuate to the jury that appellant
had a drug problem. The Solicitor's questions eliminated many legitimate
reasons why appellant would need money. In the State's closing
argument, the Solicitor's use of words such as "craving" and "insatiable"
implied to the jury that appellant's reason for needing money was bad and
was probably related to an illegal activity -- drug use. Appellant's drug
use was properly found inadmissible by the trial judge because of its
prejudicial effect. However, by way of the back door, the State was able to
introduce appellant's drug problem to the jury.
This improper evidence suggested to the jury that appellant
was guilty of committing the charged crimes because of his criminal
propensity to commit crimes and his bad character. The State
continuously stressed this improper testimony in its closing argument.
Therefore, it is impossible under these circumstances to conclude the
improper evidence did not impact the jury's verdict. This improper
testimony permeated the trial and the jury likely used this evidence to
infer that since appellant had previously stolen from his ex-wife, he
probably committed these crimes against his father-in-law also. See State
v. Hough, supra.
Because analysis of the immediate theft is unnecessary for the
resolution of this case, we decline to address it.
REVERSED.
FINNEY, C.J., TOAL, MOORE, JJ., and Acting Associate
Justice George T. Gregory, Jr., concur.
p.39