S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
v.
Kelvin Cooper, Appellant.
Appeal From Newberry County
Costa M. Pleicones, Circuit Court Judge
Opinion No. 24918
Heard February 2, 1999 - Filed March 15, 1999
AFFIRMED
James C. Galmore, of Winnsboro, for appellant.
Attorney General Charles M. Condon; Deputy Attorney
General John W. McIntosh; Assistant Deputy Attorney
General Donald J. Zelenka, all of Columbia, Solicitor
W. Townes Jones., IV, of Greenwood, for respondent.
TOAL, A.J.: In this criminal case, Kelvin Cooper ("Defendant") was
convicted and sentenced for the murder of Charles H. Griffin ("Victim").
Defendant appeals his conviction.
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STATE V. COOPER
FACTUAL/PROCEDURAL BACKGROUND
On March 1, 1995, Victim's cousin, John Griffin, discovered Victim
stabbed to death in Victim's house in Newberry, South Carolina. John Griffin
testified that he found Victim lying nude on the floor in the bedroom. Victim's
throat had been cut and his face slashed. Victim had been cut, stabbed, and
slashed over 70 times. Griffin immediately called the police.
Shortly after arriving at the scene, Newberry police developed Defendant
as a suspect in the murder. Police visited Defendant at his mother's house and
then escorted him to the police station. Officer Max Pickelsimer testified that
Defendant's right hand was heavily bandaged. Defendant eventually removed
the bandage, and police photographed cuts on his hand.
After being advised of his Miranda rights, Officer Pickelsimer asked
Defendant if he wanted to make a statement. Defendant stated that he did. In
a signed, written statement, Defendant denied any involvement in Victim's
death. Defendant stated that on the night in question he was at his girlfriend's
house until about 10:00 p.m. He then went to the store and stopped at his
aunt's house to get out of the rain. He went back to his girlfriend's house at
about 1:30 a.m. Afterwards, he returned home and went to bed. Defendant
claimed he cut his hand while picking up a knife at his girlfriend's house. He
again cut his hand on a knife the next morning while reaching for a cigarette
lighter by the side of his bed.
After giving this initial statement, Defendant's mother told police that
Defendant wanted to give another statement. Officer Charles Counts testified
he tape-recorded Defendant's second statement. Defendant stated that after he
left his girlfriend's house, he went to Victim's house to get a beer. Defendant
claimed that while standing on Victim's porch, Victim came out and held a
sharp object to Defendant's throat, forcing Defendant inside the house. Once
inside, the two began to fight, resulting in Victim being cut. Defendant claimed
Victim was still alive when he left the house.
On March 3, 1995, police interviewed Defendant for a third time. This
interview was arranged to allow Newberry's Chief of Police, Louis J. Swindler,
to question Defendant because Chief Swindler had been out of town during the
initial part of the investigation. During the interview, Defendant gave another
version of events. Defendant stated he went to Victim's house to get out of the
rain and while standing on Victim's porch, Victim came out and held a knife to
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STATE V. COOPER
Defendant's throat, forcing Defendant inside the house. Defendant claimed that
once inside the house, Victim forced Defendant to have sex with him. After the
sexual act was over, the two began to fight, and Defendant grabbed the knife,
cutting himself on the hand in the process. Defendant then stabbed Victim two
or three times. Upon leaving the house, Defendant grabbed Victim's "Louis
Rich" I.D. card and some personal papers and then returned to his girlfriend's
house.
On December 7, 1995, a jury convicted Defendant of murder, possessing
a knife during the commission of a violent crime, and larceny. Defendant was
sentenced to life imprisonment for the murder charge, five years consecutive for
the weapons charge, and thirty days concurrent for larceny. Defendant appeals,
raising the following issues:
(1) Did the trial court err in failing to grant Defendant a new trial
based on prejudicial comments by the trial judge throughout the
trial?
(2) Did the trial court err in excluding exculpatory evidence pursuant
to State v. Doctor1?
(3) Did the trial court err in failing to grant a mistrial based on outside
influence on a juror?
(4) Did the trial court err in failing to grant a directed verdict on the
charge of murder?
(5) Were the solicitor's closing arguments sufficiently prejudicial to
warrant a new trial?
LAW/ANALYSIS
A. COMMENTS BY TRIAL COURT
Defendant argues that his conviction should be reversed because the trial
judge made prejudicial comments toward defense counsel which influenced the
verdict reached by the jury. Defendant further contends that prejudicial
comments made to defense counsel outside the presence of the jury had the
1 306 S.C. 527, 413 S.E.2d 36 (1992).
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STATE V. COOPER
effect of prohibiting defense counsel from presenting an adequate defense. We
disagree.
Defendant cites to approximately twenty instances in the record where
he contends the trial judge made prejudicial comments toward defense counsel.
Defendant does not contend that any of the rulings constituted legal error by
the trial judge. Rather, he argues the cumulative effect of the comments
prejudiced the verdict because they tended to impugn the credibility of defense
counsel by insinuating lack of legal skill. We have examined each of the
instances about which appellant complains. Each involves a situation in which
the trial judge and defense counsel are interacting with regard to evidentiary
or testimonial rulings. On each complained of instance, the trial judge has
either ruled against counsel, asked counsel to avoid repetitive questions, asked
counsel for clarification, or declined a request by defense counsel.
It is well settled that a trial judge must act with absolute impartiality in
the performance of judicial duties. State v. Pace, 316 S.C. 71, 447 S.E.2d 186
(1994); Canon 3 of Rule 501, SCACR. In Pace, this Court granted a new trial
where the trial court commented on defense counsel's age and gender. The
Court found that the remarks of the trial court tended to impugn the credibility
of trial counsel and to diminish her in the eyes of the jury. Further, in State v.
Simmons, 267 S.C. 479, 229 S.E.2d 597 (1976), this Court found reversible error
where the trial judge threatened defense counsel with a jail sentence,
immediately after which counsel proceeded no further with the arguments. The
Court concluded that the remarks tended to impugn the credibility of defense
counsel.
In other instances, this Court has found the trial court's comments to
defense counsel to be harmless. See, e.g., State v. DeBerry, 250 S.C. 314, 157
S.E.2d 637 (1967)(holding that trial judge's admonition to defense counsel to be
brief and stop wasting court's time was not abuse of discretion nor prejudicial
to the rights of defendant). Moreover, there is generally no prejudice when the
trial court's hostile comments are made outside the jury's presence. See Graves
v. State, 309 S.C. 307, 422 S.E.2d 125 (1992).
In the instant case, the trial judge's comments and rulings were routine.
None of the exchanges involved any improper, personal comment about defense
counsel, nor did the comments tend to impugn counsel's credibility or diminish
him in the eyes of the jury. Many of the comments were innocuous or merely
explanatory of the trial court's ruling and were therefore permissible. See State
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STATE V. COOPER
v. Mishoe, 198 S.C. 215,17 S.E.2d 142(1941)(holding that remarks made by the
judge in the course of a trial need not be confined in such narrow limits as to
prevent him from stating his reasons for his rulings). Some of the comments
were made outside the presence of the jury, and therefore, could not affect the
verdict. See Graves, supra. Further, the contention that these comments
nonetheless inhibited defense counsel is not supported by the record. In sum,
these were instances in which the trial judge made routine rulings against
defense counsel over the course of a four-day murder trial. There was no
resulting prejudice to Defendant.
We therefore affirm the trial court on this issue. See State v. Bridges, 278
S.C. 447, 298 S.E.2d 212 (1982)(holding that, in general, the conduct of a
criminal trial is left largely to the sound discretion of the presiding judge, and
the appellate court will not interfere unless it clearly appears that rights of the
complaining party were abused or prejudiced in some way).
B. EXCLUSION OF EVIDENCE
Defendant argues that the trial court erred in characterizing evidence as
exculpatory and excluding it pursuant to State v. Doctor, 306 S.C. 527, 413
S.E.2d 36 (1992). At trial, Defendant proffered the testimony of Solomon
Nelson who testified that while in a restaurant, he overheard Shirley Gilmore
tell Peter Wayne Marshall that Gilmore, Dottie Suber, and Defendant's
girlfriend had murdered Victim. Marshall admitted having a conversation with
Gilmore about the murder but denied that Gilmore told him she killed Victim.
Marshall testified that Gilmore simply told him that Defendant was not alone
in killing Victim. Finally, Gilmore proffered testimony, denying she told
Marshall that she killed Victim. Gilmore claimed she only told Marshall that
she believed Defendant had not committed the crime.
After the testimony was proffered, defense counsel stated that he
intended to first call Gilmore and then impeach her with Nelson's testimony.
The solicitor objected on the basis of hearsay. The trial court sustained the
objection pursuant to Rule 804(b)(3), SCRE, and State v. Doctor. The trial court
further stated: "You see why you can't do that? You can't call a witness to come
up and to deny that she ever made that statement she was involved in a murder
of somebody and then bring somebody else to say that -- it doesn't work that
way."
In Doctor, this Court held that out-of-court statements against penal
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STATE V. COOPER
interest made by an unavailable declarant are admissible at trial. However, if
offered to exculpate the accused in a criminal trial, they are admissible only if
corroborating evidence clearly indicates the trustworthiness of the statements.
Rule 804(b)(3), SCRE, codified this exception to the hearsay rule. Rule 804(b)(3)
provides:
(b) Hearsay Exceptions. The following are not excluded by the
hearsay rule if the declarant is unavailable as a witness: . . . (3)
Statement Against Interest. A statement which was at the time of
its making so far contrary to the declarant's pecuniary or
proprietary interest, or so far tended to subject the declarant to civil
or criminal liability, or to render invalid a claim by the declarant
against another, that a reasonable person in the declarant's
position would not have made the statement unless believing it to
be true. A statement tending to expose the declarant to criminal
liability and offered to exculpate the accused is not admissible
unless corroborating circumstances clearly indicate the
trustworthiness of the statement.
Rule 804(b)(3), SCRE.
Under Rule 804, Defendant could not have called Nelson to testify
concerning Gilmore's statements, since Gilmore was available to testify.
However, it is clear from the trial transcript that the Defendant intended to
first call Gilmore and then impeach her denial with Nelson's testimony. In
other words, Defendant argues that if Gilmore testified consistent with her
proffered testimony, Nelson's testimony would have been admissible as a prior
inconsistent statement.2
Defendant admits that the sole purpose for calling Gilmore was to
impeach her with Nelson's testimony, thereby supplying substantive evidence
of her guilt in committing the crime. However, this Court has imposed strict
2 Rule 801(d)(1)(A), SCRE, provides:
(d) Statements Which Are Not Hearsay. A statement is not
hearsay if - (1) Prior Statement by Witness. The declarant testifies
at the trial or hearing and is subject to cross-examination
concerning the statement, and the statement is (A) inconsistent
with the declarant's testimony . . . .
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STATE V. COOPER
limits on the admissibility of third-party guilt. In State v. Gregory, 198 S.C. 98,
16 S.E.2d 532 (1941), this Court held:
The evidence offered by accused as to the commission of the crime
by another person must be limited to such facts as are inconsistent
with his own guilt, and to such facts as raise a reasonable inference
or presumption as to his own innocence; evidence which can have
(no) other effect than to cast a bare suspicion upon another, or to
raise a conjectural inference as to the commission of the crime by
another, is not admissible. . . . But before such testimony can be
received, there must be such proof of connection with it, such a train
of facts or circumstances, as tends clearly to point out such other
person as the guilty party. Remote acts, disconnected and outside
the crime itself, cannot be separately proved for such a purpose. An
orderly and unbiased judicial inquiry as to the guilt or innocence of
a defendant on trial does not contemplate that such defendant be
permitted, by way of defense, to indulge in conjectural inferences
that some other person might have committed the offense for which
he is on trial, or by fanciful analogy to say to the jury that someone
other than he is more probably guilty.
Gregory, 98 S.C. at 104-05, 16 S.E.2d at 534-35 (citation omitted)(emphasis
added); accord State v. Parker, 294 S.C. 465, 366 S.E.2d 10 (1988); State v.
Caulder, 287 S.C. 507, 339 S.E.2d 876 (Ct. App. 1986).
In the instant case, Gilmore admitted having a conversation with
Marshall concerning Defendant's case, but denied admitting to the crime. Aside
from Nelson's assertions, there was no credible evidence linking Gilmore to
Victim's murder. Gilmore testified in camera that she had never been to
Victim's house. Thus, there was no evidence that tended clearly to point out
that Gilmore was guilty of the crime. Nelson's testimony would therefore be
prohibited under Gregory, supra.
Yet, even if testimony is inadmissible as substantive evidence of third
party guilt, it may still be admissible for impeachment purposes. See State v.
Fossick, - S.C. _, 508 S.E.2d 32 (1998). However, Gilmore was not relevant
to the instant case except to provide testimony of her own culpability.3
3 In State v. Fossick, a State's witness testified concerning the
circum stances surrounding the murder. On cross-examination, defense counsel
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STATE V. COOPER
Defendant, expecting Gilmore to deny making the statement if she testified,
then wanted to supply extrinsic evidence of a prior inconsistent statement. In
other words, Defendant wanted to call an otherwise irrelevant witness so that
testimony of that witness's guilt could come in under the guise of a prior
inconsistent statement. Such use of a prior inconsistent statement serves only
to prove third-party guilt, and therefore, cannot be justified on the ground of
impeachment alone. Since the testimony would be improper as substantive
evidence of third-party guilt, the trial court properly excluded the evidence.
C. OUTSIDE INFLUENCE ON JUROR
Defendant argues. that the trial court erred in failing to grant a mistrial
based on outside influence on a juror. We disagree.
At trial, the solicitor informed the trial court that a juror had been seen
waving to Corey Edwards, a spectator in the audience. Edwards was also
overheard stating that Defendant's girlfriend should be on trial. Further,
Edwards was seen talking to the juror during a break in the trial. Defense
counsel moved for a mistrial.
The trial judge called Edwards to the stand and questioned him about the
incident outside the presence of the jury. Edwards stated that the juror was
married to his cousin. He admitted having a conversation with the juror, but
denied talking to the juror about Defendant's case. He further stated that he
had told the assistant solicitor, not Defendant, that Defendant's girlfriend
should be on trial. The assistant solicitor confirmed Defendant's version on this
point. The trial court also permitted defense counsel to extensively question
Edwards about the incident. Additionally, the trial judge asked the jurors to
write him a note if anyone had attempted to discuss the case with them. There
was no response from the jury.
In a criminal prosecution, the conduct of the jurors should be free from all
asked the witness if he had previously told his girlfriend that he was the one
who killed the victim. The witness denied making the statement. Defense
counsel then sought to -admit extrinsic evidence of a prior inconsistent
statement made by the witness. This Court held that even if the evidence was
inadmissible as evidence of third-party guilt, it was admissible for impeachment
purposes. However, unlike the instant case, the witness in Fossick testified for
the State concerning circumstances surrounding the crime.
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STATE V. COOPER
extraneous or improper influences. State v. Kelly, 331 S.C. 132, 502 S.E.2d 99
(1998). Unless the misconduct affects the jury's impartiality, it is not such
misconduct as will affect the verdict. Id. The granting or refusing of a motion
for a mistrial lies within the sound discretion of the trial court and its ruling
will not be disturbed on appeal unless an abuse of discretion amounting to an
error of law occurs. Id.
On appeal, Defendant does not contend that the trial court should have
granted a mistrial. Rather, he argues the trial court should have done
something more to investigate the alleged misconduct. Initially, it is hard to
conceive of anything more the trial court could have done to investigate the
incident. Moreover, defense counsel never requested that the trial court do
anything else. Nevertheless, there simply was no showing of any outside
influence on the jury which resulted in prejudice. We therefore affirm the trial
court on this issue. See Kelly, supra (holding that a juror's possession of a
religious pamphlet on the death penalty did not warrant reversal).
D. DIRECTED VERDICT ON THE MURDER CHARGE
Defendant argues that the trial court erred in failing to grant a directed
verdict on the murder charge since the evidence raised only a mere suspicion
of guilt. We disagree.
In reviewing the denial of a motion for a directed verdict, the evidence
must be viewed in the light most favorable to the State, and 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 was
properly submitted to the jury. State v. Kelsey, 331 S.C. 50, 502 S.E.2d 63
(1998). In ruling on a motion for directed verdict, the trial court is concerned
with the existence of evidence, not its weight. Id.
In the instant case, there was substantial circumstantial evidence of
Defendant's guilt. There was testimony that Defendant told police that he had
a fight with Victim on the night of the murder and slashed Victim two or three
times with a knife. There was evidence that Defendant cut his hands on a knife
as a result of stabbing Victim. Further, there was expert testimony that
Defendant's blood matched blood found on Victim's body. We therefore find the
trial court correctly denied Defendant's motion for a directed verdict on the
murder charge.
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STATE V. COOPER
E. CLOSING ARGUMENTS
Defendant argues his conviction should be reversed based upon (1) the
solicitor's inflammatory comments during closing arguments, and (2) the
solicitor's comments on Defendant's silence. We disagree.
1. Inflammatory Comments
Defendant contends the cumulative effect of the following comments
prejudiced the defense: First, in commenting on Defendant's initial statement
given to police, the solicitor stated: "Does that look like you cut your right hand
reaching for a cigarette lighter? Does that look like you cut your hand slipping
down across a blade from stabbing someone?" The solicitor later stated: "And
then his mother comes to an officer to get Captain Counts to talk to her son
again. He told a little more." Defendant contends the implication was that he
conspired with his mother in giving a second voluntary statement to the police.
Second, the solicitor stated: "[Defendant] cut his hand, and he is standing over
that victim." Finally, the Solicitor argued:
And look at those wounds. Remember the testimony from Dr.
Sexton. Back and forth. From right to left. To left to right. They
went in both directions. What does that indicate to you, ladies and
gentlemen? It indicates a sawing motion, and the mutilation to the
face. What is more malicious, ladies and gentlemen, than to stab
a man and to saw a man's neck and to cut his face 71 times and
then stand over him and watch him die? That is murder. That is
murder in this state and any state.
A solicitor's closing argument must be carefully tailored so it does not
appeal to the personal biases of the jurors. State v. Linder, 276 S.C. 304, 278
S.E.2d 335 (1981). The argument may not be calculated to arouse the jurors'
passions or prejudices and its content should stay within the record and its
reasonable inferences. Id.; see State v. Huggins, 325 S.C. 103, 481 S.E.2d 114
(1997). However, a solicitor has a right to state his version of the testimony and
to comment on the weight to be given such testimony. State v. Caldwell, 300
S.C. 494, 388 S.E.2d 816 (1990).
In the instant case, the solicitor's comments were based upon evidence in
the record and reasonable inferences therefrom. The solicitor's statement that
Defendant stood over Victim after stabbing him is supported by evidence that
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STATE V. COOPER
some of the blood found on Victim's body matched Defendant's blood, and
Officer Counts testimony that he found "uniform drops of blood that were
consistent when falling at a 90 degree angle straight to the abdomen area of the
victim in three specific areas." Further, the evidence revealed Victim's face and
neck had been brutally slashed and cut over 70 times. We therefore affirm the
trial court on this issue.
2. Comments on Silence
Defendant contends the following comments by the solicitor improperly
referred to Defendant's silence: "There's no testimony in this record of any other
knife being used;" "We don't know what clothes he was wearing. There were
only two people in there, ladies and gentlemen, the defendant and Chuck
Griffin." After the first comment, defense counsel objected, and the trial judge
gave the following curative instruction: "To the extent that [the solicitor's]
comments may have implied to you that the defendant has any burden of
coming forward with any evidence, you must disregard those comments,
because he has no such burden." Defense counsel raised no contemporaneous
objection to the solicitor's second comment.4 See State v. Robinson, 238 S.C.
140, 119 S.E.2d 671 (1961)(issue is not preserved for review where there is no
contemporaneous objection to solicitor's comments).
It is impermissible for the prosecution to comment, directly or indirectly,
upon the defendant's failure to testify at trial. Johnson v. State, 325 S.C. 182,
480 S.E.2d 733 (1997)(citing Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229,
14 L. Ed.2d 106 (1965)); Robinson, supra. However, improper comments on a
defendant's failure to testify do not automatically require reversal if they are
not prejudicial to the defendant. Johnson, supra.
In the instant case, it is questionable whether the solicitor's comments
either directly or indirectly referred to Defendant's failure to testify or present
a defense at trial. However, even if a negative inference could have been made
by the jury, the trial judge immediately gave a curative instruction following
defense counsel's objection. Further, the trial court charged the jury, after
closing arguments, that Defendant did not have the burden of proving his
4 Defense counsel had a standing objection to references made by the
solicitor to things not in the record. Defense counsel renewed this objection at
the end of the solicitor's arguments. However, this objection did not relate to
comments on Defendant's silence.
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STATE V. COOPER
innocence, and the jury could not consider Defendant's failure to testify in its
deliberations. We find that any prejudice to Defendant was cured by the trial
court's instructions to the jury. See Johnson, supra (holding that even
assuming arguendo the comment was improper, the trial court's instruction to
the jury that it could not consider Johnson's failure to testify in any way and
could not use it against him was sufficient to cure any potential error); State v.
Plath, 281 S.C. 1, 313 S.E.2d 619 (1984)(holding that solicitor's comment that
defendants were not testifying was cured by solicitor's apology and judge's
charge).
CONCLUSION
Based upon the foregoing, we AFFIRM the trial court on all issues.
FINNEY, C.J., M00RE, WALLER, and BURNETT, concur.
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