FACTUAL/PROCEDURAL BACKGROUND

On December 4,1995, Hughey forcibly entered Harris's house and had an altercation with his former girlfriend, Jackson. While Hughey and Jackson were arguing, Harris was on the phone with her son, Marcus Harris, from Oklahoma City. Harris told her son to call the police because Hughey had a gun, so he immediately called 911. Harris also called the Abbeville City Police Department to request help. While Harris was on the phone with the dispatcher, Hughey shot both Harris and Jackson with a shotgun. Harris died from a solitary gunshot wound to the head. Jackson had three major injuries: (1) a gunshot wound to the back of her head, from a maximum shooting distance of two feet; (2) a large bruise on her face, likely caused by the blunt end of the shotgun; and (3) a stab wound in her chest.

Within thirty minutes of the shooting, Hughey stole Jackson's car and used her ATM card in Anderson. Hughey was arrested in Georgia and told the authorities "I killed them, it was an accident, the gun went off." Prior to the incident, Hughey left a note on his door that stated: "As of this morning I will be dead. Love you all. Please take care of my kids. John K."

After his arrest, Hughey gave an oral statement to Agent Eddie Clark. Hughey claimed he and Jackson had an altercation at Harris's house. According to Hughey, Jackson threw a vase at him and went outside to get a shotgun from her car. Harris tried to get between Hughey and Jackson, grabbed the gun, and the gun accidentally fired. According to Hughey, Jackson chased him into the bedroom, they struggled for the gun, and he accidentally shot her.

Hughey gave an inconsistent statement during the guilt phase of the trial. He denied making the statement to the police after his arrest. At trial, Hughey claimed Harris invited him in for coffee and Jackson attacked him with a vase and a knife. According to Hughey, Jackson charged him with a knife and he pushed her resulting in a stab. Hughey then ran out of the house to get the shotgun from the car. He claims that Jackson stood on the steps and threatened to kill him. As he approached her, Jackson spit on him and attempted to slam the door. While they struggled at the door, the gun went off and Harris was shot. Hughey admitted that he was angry and attempted to shoot at Jackson. He chased Jackson into the bedroom where he shot her in the back of the head with a twenty gauge shotgun.

On March 11, 1996, Hughey was indicted in Abbeville County for: (1) the murder of Jackson; (2) the murder of Harris; (3) burglary in the first degree; and (4) grand larceny of a vehicle. On October 27,1997, the jury found Hughey guilty on all four counts. The jury found beyond a reasonable doubt the existence of all statutory aggravating circumstances and returned a recommendation of death for each count of murder. On October 30, 1997, the trial judge sentenced Hughey to: (1) death for each count of murder; (2) a life sentence for burglary in the first degree; and (3) ten years imprisonment for grand larceny.

Hughey appeals his death sentence for both murders, raising the following issues:

(7) Whether the trial judge erred in admitting State's Exhibit 95, a graphic color photograph of the victim's head wound?

LAW/ANALYSIS

I. JUROR DISQUALIFICATION

A. Exemption versus Disqualification

Hughey argues section 24-3-930 disqualifies a correctional officer from serving on a jury. We disagree.

South Carolina recognizes a difference between "exemptions" and "disqualifications" from jury duty. An exemption from jury duty is not a disqualification to act as a juror, but is a personal privilege that the juror may claim or waive. 50A C.J.S. Juries 304 (1955); see also 15A Words and Phrases Exempt; Exemption (1950) ("A person exempted from jury services is not thereby disqualified to serve on a jury."). This Court has held an exemption from jury duty is not a disqualification. See State v. Matthews, 291 S.C. 339, 343, 353 S.E.2d 444, 447 (1986) ("An exemption under [S.C. Code Ann. 14-7-850] is a privilege and not a disqualification."); State v. Toland, 36 S.C. 515, 521,15 S.E. 599, 600 (1892) ("exemption was a personal privilege which (jurors] might or might not claim, but it did not disqualify them as jurors.").

S.C. CodeAnn. 24-3-930 (1976) provides "that all guards orkeepers and other officers employed at the Penitentiary shall be exempted from serving on juries and from military or street duty." (emphasis added). In drafting this section, the South Carolina legislature chose the term "exempted." However, in other code sections relating to juror qualification, the legislature chose to use the term "disqualifications." See, e.g., S.C. Code Ann. 14-7-430 (1976) ("Persons drawn shall serve unless dead, disqualified, or removed from county"); S.C. Code Ann. 14-7-820 (1976) ("Disqualification of county officers and court employees"). The use of these separate terms in different sections of the Code demonstrates the legislature's intent to draw a distinction between an exemption and a disqualification. Therefore, the trial judge did not err in ruling that section 24-3-930 did not disqualify juror Daly.

B. Disqualification under S.C. Code 14-7-820 (1976)

Hughey argues section 14-7-820 disqualifies a juror who considers himself to be a member of law enforcement. We disagree.

Section 14-7-820 provides "No clerk or deputy clerk of the court, constable, sheriff, probate judge, county commissioner, magistrate or other county officer or any person employed within the walls of any courthouse shall be eligible as a juryman in any civil or criminal case." "This court has adopted a functional rather than a rigid formalistic approach in interpreting and applying the provisions of this statute." State v. Cooper, 291 S.C. 332, 334, 353 S.E.2d 441, 442 (1986). A juror's belief that he is the member of law enforcement is not enough to disqualify him under this statute.

This Court held in State v. Johnson, 123 S.C. 50,115 S.E. 748 (1923) that a juror would be disqualified under section 14-7-820 when he or she was vested with like powers and duties of a law enforcement officer. In Bryant v. State, 264 S.C. 157, 214 S.E.2d 451 (1975),we held that a special deputy sheriff who did not perform the duties of a law enforcement officer was not disqualified under the statute. Daly is a corrections officer whose duties do not involve enforcing the criminal laws of this State. Hughey offers no evidence that Daly "was vested with like powers and duties of a . . . sheriff," Cooper, 291 S.C. at 334-335, 353 S.E.2d at 442. Hughey only argues that Daly's questionnaire indicates he considered himself a member of law enforcement. In light of the fact that the voir dire of Daly reveals no bias, Mr. Daly's subjective view of his employment does not disqualify him under section 14-7-820. Furthermore, section 24-3-930, discussed supra, speaks to the eligibility of an officer or guard employed by the penitentiary for jury duty. Therefore, section 24-3-930, not section 14-7-820, governs the eligibility of a corrections officer for jury duty.

II. LEGAL PROVOCATION

Hughey argues the trial judge erred by refusing to provide specific factual examples of legal provocation in the voluntary manslaughter charge. We disagree.

The trial judge is required to charge only the current and correct law of South Carolina. Cohens v. Atkins, 333 S.C. 345, 509 S.E.2d 286 (Ct. App. 1998). The substance of the law must be charged to the jury, not particular verbiage. Keaton v. Greenville Hosp. Sys., 334 S.C. 488, 514 S.E.2d 570 (1999). A jury charge is correct if when the charge is read as a whole, it contains the correct definition and adequately covers the law. Id. at 495-96, 514 S.E.2d at 574. To warrant reversal, a trial judge's refusal to give a requested jury charge must be both erroneous and prejudicial. Ellison v. Parts Distributors, Inc., 302 S.C. 299, 395 S.E.2d 740 (Ct. App. 1990).

The trial judge's jury charge in the instant case is not reversible error because it adequately expressed the current South Carolina law of voluntary manslaughter: "Voluntary manslaughter is the unlawful killing of a human being in sudden heat of passion upon sufficient legal provocation." State v. Johnson, 333 S.C. 62, 508 S.E.2d 29 (1998). Both heat of passion and sufficient legal provocation must be present at the time of the killing to constitute voluntary manslaughter. State v. Walker, 324 S.C. 257, 478 S.E.2d 280 (1996) (citations omitted). The jury charge used in this case adequately expressed the current law of voluntary manslaughter by incorporating the exact language used by this Court in State v. Walker to define "sudden heat of passion." See Walker, 324 S. C. at 257, 478 S.E.2d at 281. The trial judge gave the instruction as follows:

The trial judge's refusal to include the specific instructions requested by Hughey does not constitute reversible error. A trial judge's refusal to provide specific jury instructions is not reversible error if the general instructions are sufficiently broad to enable the jury to understand the law and the issues involved. Cohens, 333 S.C. at 345, 509 S.E.2d at 289. The failure to provide specific jury instructions is not error when the given instructions use the proper test for determining the issues before the jury. Miller v. City of West Columbia, 322 S.C. 224, 471 S.E.2d 683 (1996).

Hughey requested that specific examples of legal provocation be provided to the jury. Specifically, Hughey requested the following examples of legal provocation: pulling a knife on a defendant, pointing a gun at a defendant, spitting in a defendant's face, assault of a family member, sudden mutual combat where one of the participants is killed by the other without a previously informed intention to do so, finding one's spouse in the act of adultery, or the deceased having molested a defendant's minor child. The requested examples constitute a direct charge on the facts because Hughey alleges that a knife was pulled on him, Jackson spit in his face, and there was sudden mutual combat. The requested jury charge elevates the specific facts of the case, such as spitting in a person's face, to an acceptable act of legal provocation. Because the requested charge is an instruction on the facts, and the requested charge is fully and fairly covered by the trial judge's general charge, refusal of the requested instruction is not reversible error. See State v. Barwick, 280 S.C. 45, 310 S.E.2d 428 (1983).

III. PREJUDICIAL TESTIMONY

Hughey argues the trial judge erred in overruling their objection to a portion of George Harris's testimony. We disagree.

At trial, defense counsel objected to the following testimony by George Mack Harris, husband of one of the victims:

Defense counsel objected to Mr. Harris's testimony on the grounds of relevance. The trial judge has considerable discretion in ruling on the admissibility of testimonial and non-testimonial evidence. See State v. Davis, 309 S.C. 326, 422 S.E.2d 133 (1992), overruled on othergrounds, Brightman v. State, Op. No. 24990 (S.C. Sup. Ct. filed Aug. 23,1999) (Shearouse Adv. Sh. No. 28 at 1); State v. Sims, 304 S.C.409, 405 S.E.2d 377 (1991). The trial judge's determination of admissibility will not be disturbed absent abuse of discretion resulting in prejudice to the complaining party. See, e.g., State v. Babb, 299 S.C. 451, 385 S.E.2d 827 (1989).

"Evidence is relevant if it tends to establish or makes more or less probable some matter in issue upon which it directly or indirectly bears." State v. Alexander, 303 S.C. 377, 401 S.E.2d 146, 148 (1991). The State argues the testimony is relevant to the timing of the murder because it establishes that the murder occurred during the period of time Mr. Harris was absent from his home. Even if we find the testimony was irrelevant, and the trial judge abused his discretion by admitting the testimony, the statements by Mr. Harris did not result in unfair prejudice, and therefore, any error by the trial judge was harmless. State v. Johnson, 293 S.C. 321, 410 S.E.2d 547 (1991) (wife's testimony was not relevant, but admission was a harmless error).

Although Mr. Harris's testimony may have been of little probative value, in light of the evidence already presented by the State, its admission did not result in prejudice to the Appellant. In State v. Davis, supra, this Court upheld the admission of testimony by the victim's mother where the testimony was of little probative value but concerned facts already known to the jury. The testimony by Mr. Harris in the instant case did not contain any evidence that was not described, rather graphically, by the police, the pathologist, and a SLED agent. This Court concluded in Davis that although the testimony by the victim's mother was of little probative value, the testimony did not prejudice the defendant to the extent of affecting the outcome of the trial. Davis, 309 S.C. at 340, 422 S.E.2d at 142.

Therefore, even if the testimony of Mr. Harris was irrelevant and inadmissible, because the questionable testimony was brief and no new evidence was presented, the admission constituted a harmless error.

IV. STATUTORY MITIGATING CIRCUMSTANCES

Hughey argues the trial judge erred by refusing to instruct the jury on the statutory mitigating circumstance contained in S.C. Code Ann. 16-3-20 (C)(b)(6) (Supp.1998), which would allow the jury to consider Hughey's capacity to appreciate the criminality of his conduct, or his ability to conform his conduct to the requirements of the law. We disagree.

Section 16-3-20 (C)(b)(6) authorizes the trial judge to instruct the jury on certain statutory mitigating circumstances that may be supported by evidence. Specifically, section 16-30-20 (C)(b)(6) states that the jury may consider "[t]he capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired." The trial judge has a duty to review all statutory mitigating circumstances and instruct the jury as to any circumstances which may be supported by the evidence and not merely those requested by the defendant. State v. Caldwell, 300 S.C. 494, 388 S.E.2d 816 (1990) (citing State v. Bellamy, 293 S.C. 103, 359 S.E.2d 63 (1987)). In deciding which statutory mitigating circumstances may be supported, the trial judge is concerned only with the existence of the evidence, not its weight. Id.

Hughey argues the trial judge should have instructed the jury to consider the statutory mitigating circumstances contained in section 16-3-20(C)(b)(6) based on the following testimony provided by Dr. James Evans, a specialist in neuropsychology:

Dr. Evan's testimony implies that Hughey could not deal with stress, not that Hughey would be unable to appreciate the criminality of his conduct or to conform his conduct to the law. In fact, no witness testified that Hughey could not appreciate the criminality of his conduct.

In State v. Caldwell, this Court held the trial judge erred by failing to charge the statutory mitigating circumstances contained in section 16-3-20(C)(b)(6) where the defendant suffered from a psychopathic personality. Caldwell, 300 S.C. at 506, 388 S.E.2d at 823. This condition is "one in which the individual is not constrained by societal norms for behavior and therefore is unlikely to obey rules on his own." Id. The trial judge in Caldwell should have charged section 16-3-20(C)(b)(6) because the defendant's disorder caused him to be unable to appreciate the criminality of his behavior or abide by the law. Unlike Caldwell, there is no evidence in the instant case that Hughey's disorder caused him to be unable to understand the criminality of his conduct, only that he was more susceptible to stress.

Hughey argues that he was entitled to an instruction on the mitigating circumstances in section 16-3-20(C)(b)(6) because of his abuse as a child, several head traumas, a car accident, and the death of his mother. The trial judge adequately submitted the issue of Hughey's mental well-being to the jury by instructing the jury to consider as non-statutory mitigation, "his level of intellectual function whether as a natural consequence of his birth or as a result of physical and/or emotional trauma suffered as a child or as an adult." See State U. Plemmons, 296 S.C. 76, 370 S.E.2d, 871 (1988) (trial judge was not required to charge section 16-3-20 (C)(b)(6) because of the effects of alcohol on the defendant where the non-statutory mitigating circumstances charge specifically permitted the jury to consider the effects of intoxication).

The trial judge in the present case did not err by refusing to charge the statutory mitigating circumstances contained in section 16-3-20(C)(b)(6) because no evidence introduced supported it and the jury was advised to consider Hughey's mental state through the judge's non-statutory mitigating circumstances charge.

V. VICTIM IMPACT TESTIMONY

Hughey argues the trial judge improperly allowed the State's victim impact witnesses to testify in narrative form rather than question-answer format in violation of Payne v. Tennessee, 501 U.S. 808, 111 S. Ct. 257, 115 L. Ed.2d 720 (1991).¹ We disagree.

Victim impact evidence is admissible in the sentencing phase to demonstrate the "uniqueness" of the victim and the specific harm committed by the defendant. State v. Rocheville, 310 S.C. 20, 27, 425 S.E.2d. 32, 36 (1993). In Payne v. Tennessee, 501 U.S. 808,111 S. Ct. 257,115 L.Ed.2d 720 (1991), the United States Supreme Court held that victim impact evidence is relevant for a jury to meaningfully assess the defendant's moral culpability and blameworthiness and is only inadmissible where it is so unduly prejudicial that it renders the trial fundamentally unfair. See also State v. Johnson, 306 S.C. 119, 410 S.E.2d. 547 (1991). The State called four members of Harris's family to describe their personal relationship with Harris and the unique impact her death had on their lives. The solicitor asked each family member one open ended question that elicited a long, narrative response describing their relationship with the victim. Although given in narrative form, the testimony was routine victim impact testimony that did not evoke any prejudicial comments.² The witnesses' testimony was relevant and proper because it portrayed Harris as an unique individual and it demonstrated the specific harm caused by Hughey's actions.³

VI. NON-STATUTORY MITIGATING CIRCUMSTANCES

Hughey argues the trial judge's instruction on non-statutory mitigating circumstances constituted reversible error. We disagree.

A jury instruction must be viewed in the context of the overall charge. See State v. Hicks, 330 S.C. 207, 499 S.E.2d 209 (1998) (citing Cupp v. Naughter, 414 U.S. 141, 94 S. Ct. 396, 38 L. Ed.2d 368). The test for the sufficiency of a jury charge is what a reasonable juror would have understood the charge to mean. Id. at 218, 499 S.E.2d at 215. Hughey argues the jury charge was confusing to a reasonable juror because it implies that non-statutory mitigating circumstances are not circumstances the law requires a jury to consider. The trial judge gave the following instruction on non-statutory mitigating circumstances:

Considering the jury charge as whole, a reasonable juror would understand that either a statutory or a non-statutory jury circumstance could reduce the sentence to life imprisonment. Hughey contends the trial judge's instruction was erroneous because the charge defined non-statutory circumstances as those "the defendant contends" the jury should consider, not what the law authorizes the jury to consider. The jury charge adequately apprised the jury of the function of non-statutory mitigating circumstances because it repeatedly emphasized that both statutory and non-statutory circumstances should be considered when forming a recommendation. In fact, the judge instructed the jury that they could recommend life imprisonment for "any reason or no reason at all." See State v. Atkins, 303 S.C. 214, 399 S.E.2d 760 (1990) (upholding a jury charge where the judge stressed the jury could recommend a life sentence "for any reason or no reason").

Moreover, the jury charge in the present case is similar to other charges of non-statutory mitigating circumstances upheld by this Court. The jury charge authorized the jury to recommend life imprisonment even if they did not find the existence of mitigating circumstances. Similar jury instructions have been found adequate by this Court. See State v. Hicks, 330 S.C. 207, 499 S.E.2d 209 (1998) (upholding a jury charge which permitted a jury to impose a life sentence even if they did not find mitigating circumstances); State v. Sims, 304 S.C. 409, 405 S.E.2d 377 (1991) (jury charge was found proper where it authorized jury to consider any mitigating evidence presented); State v. Singleton, 284 S.C. 388, 326 S.E.2d 284 (1985) (instruction proper where judge states the jury may consider "any mitigating circumstances. . . which are supported by evidence."). Furthermore, the trial judge went beyond the basic jury charge on non-statutory mitigating circumstances by providing specific factual examples of non-statutory mitigating circumstances, such as the defendant's prior good acts and level of intellectual functioning.

Hughey contends the jury instruction was confusing because it suggested that an act of mercy would have been an invalid reason for a life vote. The trial judge told the jurors "you may recommend a sentence of life imprisonment for any reason or no reason at all other than as an act of mercy." (emphasis added). This argument is without merit because a judge's charge that the jury should not be guided by sympathy, prejudice, passion, or public opinion is not reversible error. See Singleton, 284 S.C. at 393, 326 S.E.2d at 156; State v. Chaffee, 285 S.C. 21, 328 S.E.2d 464 (1984).

The jury charge, reviewed in its entirety, is not confusing because it advises the jurors to consider all mitigating circumstance in making their recommendation. The non-statutory circumstances are repeatedly emphasized by the trial judge and are adequately defined according to current South Carolina case law.

VII. PHOTOGRAPH

Hughey argues the trial judge erred in admitting State's Exhibit 95, a graphic color photograph of Jackson's head wound, because the photograph was so inflammatory that it denied his right to a fair sentencing hearing. We disagree.

The relevancy, materiality, and admissibility of photographs are matters left to the sound discretion of the trial judge and those rulings will not be disturbed absent a showing of an abuse of discretion. State v. Nance, 320 S.C. 501, 466 S.E.2d 349 (1996); State v. Kornahrens, 290 S.C. 281, 350 S.E.2d 180 (1986). The trial judge must balance the prejudicial effect of graphic photographs against their probative value. To constitute unfair prejudice, the photographs must create a "tendency to suggest a decision on an improper basis, commonly, though not necessarily, an emotional one." State v. Franklin, 318 S.C. 47, 55, 456 S.E.2d 357, 361(1995). Photographs which are calculated to arouse the sympathies or prejudices of the jury should be excluded from the guilt phase of a capital case if they are irrelevant or not substantially necessary to show material facts or conditions. Kornahrens, 290 S.C. at 288, 350 S.E.2d at 185.

In the sentencing phase, the scope of the probative value of evidence is much broader. State v. Rosemond, Op. No. 24975 (S.C. Sup. Ct. filed July 26, 1999) (Shearouse Adv. Sh. No. 25 at 7). "The purpose of the bifurcated proceeding in a capital case is to permit the introduction of evidence in the sentencing proceeding which ordinarily would be inadmissible in the guilt phase." Id. During the sentencing phase, the trial judge may permit the introduction of additional evidence of aggravation in order to aid the jury in determining whether to recommend a death sentence. Id. Photographs of a victim's body in the sentencing phase are admissible to demonstrate: (1) the circumstances of the crime; and (2) the character of the defendant. State v. Tucker, 324 S.C. 155, 168, 478 S.E.2d 260, 267 (1996).

During the sentencing phase the State introduced a graphic photograph of the victim's face after she was shot in the back of the head with a twenty gauge shotgun. Although the photograph is gruesome, it depicts the condition in which Hughey left the victim and the circumstances of the crime. The photograph is probative of the circumstances of the crime because it demonstrates the shot was intentional rather than accidental. The defense argued in the guilt phase that the gun accidently fired when Hughey and Jackson were struggling over the gun. The photograph demonstrates that Jackson was shot deliberately from behind, in a manner in which she was least able to defend herself, and not as a result of a struggle over the gun. The photograph also demonstrates that Hughey shot Jackson at a very close range. See Rosemond, Op. No. 24975 (S.C. Sup. Ct. filed July 26, 1999) (Shearouse Adv. Sh. No. 25 at 7) (admitting a photograph of a victim who was shot twice in the head in order to demonstrate the wounds were inflicted at close range); State v. Nichols, 325 S.C. 111, 481 S.E.2d 118 (1997) (admitting photograph of victim's face because it demonstrated the angle and distance from which the victim was shot); Tucker, 324 S.C. at 155, 478 S.E.2d at 267 (admitting photographs of victim's head to demonstrate the shots were fired at close range). Moreover, this Court has not found an abuse of discretion in the admission of graphic photographs similar to the photographs in the present case. See State v. Gardner, 332 S.C. 389, 505 S.E.2d 338 (1998) (admitting a close-up color photograph of the victim's face in the sentencing phase of the trial where she had been shot in the face five times).

CONCLUSION

After reviewing the entire record, we conclude the death sentence was not the result of passion', prejudice, or any other arbitrary factor, and the jury's finding of statutory aggravating circumstances is supported by the evidence. See S.C. Code Ann. 16-3-25 (1985). Further, the death penalty is neither excessive nor disproportionate to that imposed in similar cases. See State v. Powers, 331 S.C. 37, 501 S.E.2d 116 (1998), cert. denied, 119 S. Ct. 597, 142 L.Ed.2d 539 (1998); State v. Bryam, 326 S.C. 107, 485 S.E.2d 360 (1997); State v. Tucker, 324 S.C. 155, 478 S.E.2d 260 (1996), cert. denied, 520 U.S. 1200, 117 S. Ct. 1561, 137 L.Ed.2d 708 (1997); State v. Green, 301 S.C. 347, 392 S.E.2d 157 (1990), cert. denied, 498 U.S. 881, 111 S. Ct. 229, 112 L.Ed.2d 183 (1990); State v. Lucas, 285 S.C. 37, 328 S.E.2d 63 (1985), cert. denied, 472 U.S. 1012, 105 S. Ct. 2714, 86 L.Ed.2d 729 (1985). Based on the foregoing, the convictions and sentences are AFFIRMED.

FINNEY, C.J.: I respectfully dissent. In my opinion, the testimony from the neuropsychologist coupled with the evidence of appellant's head traumas and his car accident constitute some evidence warranting a charge on the statutory mitigating circumstance of capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. State v. Caldwell, 300 S.C. 494, 388 S.E.2d 816 (1990). Accordingly. I would reverse and remand for resentencing.