S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State,
Respondent,
v.
Roy Beck, Jr.,
Appellant
Appeal From Richland County
Thomas W. Cooper, Jr., Circuit Court Judge
Opinion No. 25190
Heard June 20, 2000 - Filed August 21, 2000
AFFIRMED
Joseph L. Savitz, III, Deputy Attorney, and Melody J. Brown, Assistant
Appellate Defender, both of the Office of Appellate Defense of Columbia, for
appellant.
Charles M. Condon, Attorney General; John W. McIntosh, Chief Deputy
Attorney General; Donald J. Zelenka, Assistant Deputy Attorney General; G.
Robert Deloach, III, Assistant Attorney General and Warren B. Giese,
Solicitor all of Columbia, for respondent.
JUSTICE PLEICONES: Appellant was convicted of murder and
received a life sentence. He appeals, arguing the circuit court erred in
admitting evidence of a prior bad act and of a statement he had made several
months before this murder. We affirm.
p.536
State v. Beck
ISSUES
Did the trial judge err in admitting evidence that the appellant had
assaulted and robbed an escort service employee two days prior to the
murder for which he was on trial?
Did the trial judge err in admitting the appellant's statement, uttered
some four months prior to this crime, that he planned to rob escort
service employees?
FACTS
On November 13, 1996, the body of Virginia Russell (Victim) was
discovered lying in the road near Owens Field in Columbia. An autopsy
revealed that she had been shot three times in the head with a .380 caliber
pistol, between 9:00 p.m. and 12:00 a.m. the preceding night.
Two purses were discovered by Victim's body, one of which contained
$2.00 in change. Testimony of family members established that both of the
purses belonged to Victim, and further indicated that she had had several
hundred dollars with her on the night of her death.
Victim's family members also testified that Victim had worked for an
escort service, and that she had received a page around 8:30 p.m. on the night
of her death. Phone records established that in fact Victim was paged at 8:54
p.m. on November 12, 1996, by someone calling from a phone at the
apartment of Richard Bullard (Bullard). Victim was heard mentioning
"Jaco's," which is a bar in the Olympia area of Columbia, when she returned
the page.
Roy Beck, Jr. (Appellant) was living with Bullard and Trevett Foster
(Foster) at the time of the murder, since the power had been disconnected at
his own apartment on Whitney Street in Olympia. He was previously
acquainted with Victim.
During a consensual search of Bullard's apartment after the murder,
police officers found a knife 1 and a .380 caliber pistol belonging to Bullard.
1 Another escort service employee testified during the trial that the knife
found in Bullard's apartment was the weapon used by Appellant to assault (1 continued...)
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State v. Beck
Later tests determined that the gun was the murder weapon. Bullard also
gave the police a pair of his black military-style boots which Appellant often
borrowed. The boots had Victim's blood on them.
Appellant was charged with the murder of Victim. 2 During the trial,
the judge allowed testimony that Appellant had assaulted and robbed another
escort service employee (Employee) two days prior to the murder. 3 The trial
judge, relying upon Rule 404(b), SCRE and State v. Lyle, 125 S.C. 406, 118
S.E. 803 (1923), held that the evidence was probative of identity and motive.
The trial judge also ruled that the assault and robbery of Employee formed
part of the res gestae of the murder.
The trial judge also allowed in evidence a statement made by Appellant
to Larry Barlow (Barlow) four months prior to the murder, to the effect that
Appellant planned to call escort services for dates and then rob and have sex
with the escort service employees.
DISCUSSION
I. The Statement to Barlow.
Barlow testified that Appellant had asked him on July 10, 1996, to
participate in a plan to call escort services for dates and then rob and have
sex with the employees. Barlow claimed that he had never participated in the
plan, and that he had told Appellant that "it was a crazy idea."
Appellant argues that the statement should riot have been admitted
under Lyle. We agree, because Lyle concerns bad acts and other crimes of a
defendant, not statements of intent to commit crimes. See State v. Lyle,
supra; United States v. Masters, 622 F.2d 83 (4th Cir. 1980).
Appellant's statement to Barlow is, however, admissible upon other
(1 continued...)and rob her. See discussion infra.
2 Bullard and Foster had alibis for the night of the murder.
3 Employee also alleged that she had been raped by Appellant, but was
not allowed to testify concerning this matter in the presence of the jury.
p.538
State v. Beck
grounds. 4 "As a general rule, statements or declarations made by one accused
of a crime are admissible against him." State v. Ply, 275 S.C. 291, 270
S.E.2d 126 (1980). Of course, such evidence must meet the threshold test of
admissibility, i.e., relevance. See Rule 401, SCRE (" `Relevant evidence'
means evidence having any tendency to make the existence of any fact that is
of consequence to the determination of the action more probable or less
probable than it would be without the evidence").
In this prosecution, the state relied upon circumstantial, yet
nonetheless compelling, evidence of guilt. There was, for example, no direct
evidence placing Appellant at the scene. 5 Testimony that Appellant had
made a statement of his intent to perpetrate such crimes - albeit four months
prior to this event - was highly probative as to a manifestation of that intent
through the fatal attack upon Victim. It thus bore directly on Appellant's
identity as the killer as well as on the establishment of a financial motive. 6
Moreover, the probative value of Barlow's testimony far outweighed any
possibility of undue prejudicial effect. See Rule 403, SCRE.
The temporal attenuation between the making of this statement and
the crime in this case is of no moment in assessing its admissibility. The four
month lapse is at most a matter bearing on the weight of the evidence, which
was for the jury to determine. State v. Glenn, 328 S.C. 300, 492 S.E.2d 393
(Ct. App. 1997).
Appellant was not prejudiced by the erroneous admission of his
statement to Barlow as a Lyle exception, as it was otherwise admissible as
discussed herein.
II. The Employee Robbery.
Appellant next argues that evidence of the assault and robbery of
Employee was not admissible under Lyle or res gestae. We disagree in part,
4 Rule 220(c), SCACR; I'On. L.L.C.,v.Town of Mt. Pleasant, 338 S.C.
406, 526 S.E.2d. 716 (2000) (appellate court may affirm a ruling of a lower
court upon any grounds appearing in the record on appeal).
5 A human hair, the source of which was established by forensic
testimony to be Appellant's, was, however, found on Victim's skirt.
6 See Rule 801(d)(2)(A), SCRE (admission of a party-opponent).
p.539
State v. Beck
and find that the evidence was properly admitted under Lyle's identity
exception:
Evidence of other crimes or bad acts is inadmissible to prove the bad
character of the defendant or that he acted in conformity therewith. Such
evidence is admissible, however, when it, tends to establish motive, identity, a
common scheme or plan, the absence of mistake or accident, or intent. See
Rule 404(b), SCRE; State v. Lyle, supra. In addition, the "bad act" must
logically relate to the crime with which the defendant has been charged. If
the defendant was not convicted of the prior crime, evidence of the prior bad
act must be clear and convincing. State v. Kennedy, 339 S.C. 243, 528 S.E.2d
700 (Ct. App. 2000). Finally, even if the evidence meets the above criteria,
the trial judge must exclude it if its probative value is substantially
outweighed by the danger of unfair prejudice to the defendant. Id: at 19;
Rule 403, SCRE.
Employee testified that she received a call through her escort service at
4:00 a.m. on November 10, 1996. The customer did not identify himself, but
gave his address as an apartment on Whitney Street in the Olympia area of
Columbia. Police officers later found that the apartment belonged to
Appellant. After her arrival, Employee entered the apartment and a man
wearing black, military-style boots held a knife to her throat. When she
asked if he had a gun, the man "smirked" and said, "Don't make me use it."
The man took $300.00 from Employee's purse before releasing her. She later
identified Appellant as the robber, and the knife found in Bullard's apartment
as the weapon used during the assault.
Employee's testimony was admissible to prove the identity of the
appellant as the perpetrator of Victim's murder. Employee testified that
Appellant wore black military-style boots when he assaulted and robbed her.
A pair of boots matching that description and covered with Victim's blood
were given to the police by Bullard, Appellant's roommate. In addition,
Employee identified a knife belonging to Bullard as the one with which
Appellant had threatened her. The gun used to shoot Victim was also owned
by Bullard. Both weapons were easily accessible to Appellant, and Bullard
testified that Appellant had borrowed the gun before the murder.
Employee's testimony is admissible to identify Appellant as Victim's
murderer because both perpetrators committed similar offenses within a
relatively short period of time, using weapons belonging to Bullard and
wearing his boots. See State v. Forney, 321 S.C. 353, 468 S.E.2d 641(1996)
p.540
State v. Beck
(evidence that defendant was the gunman in an earlier robbery was
admissible to prove that he, not his co-defendant, shot a police officer).
Appellant claims that even if evidence of the assault and robbery of
Employee is admissible under Lyle, it is unduly prejudicial. We disagree.
After conducting a Lyle analysis and finding evidence both relevant and
admissible as a prior bad act, the trial court must conduct a Rule 403, SCRE
analysis to determine whether or not the evidence is unduly prejudicial. We
find that evidence of the assault and robbery, although certainly prejudicial
to Appellant, is not unduly so under our previous decisions. 7 Moreover, as
conceded in Appellant's brief to this Court: "The person who killed call girl
Virginia Russell the night of November 12, 1996, used Richard Bullard's gun
and was probably wearing his boots." The evidence of the crimes committed
against Employee is both clear and convincing and logically relevant to the
murder charge.
Since evidence of the assault and robbery of Employee is clearly
appropriate to prove identity, we need not conduct a more extensive analysis
regarding motive or common scheme or plan. 8
Appellant also argues that evidence of Employee's assault and robbery
should not be admissible as part of the res gestae of the murder. We agree the
crimes were not part of the same criminal episode, since the murder occurred
nearly two days after the assault and robbery of Employee. Further, the
crimes are not so intertwined that one cannot be proven without mention of
the other. See United States v. Masters; 622 F.2d 83 (4th Cir. 1980); State v.
Smith, 309 S.C. 442, 424 S.E.2d 496 (1992).
While we thus agree with Appellant that evidence of the assault and
robbery of Employee is not admissible as res gestae, we hold that Appellant
suffered no prejudice as it was properly admitted to prove the identity of
7 See, e.g., State v. Dickerson, Op. No. 25164 (S.C. Sup. Ct. filed July 3,
2000)(Shearouse Adv. Sh. No. 28 at 5); State v. Smith, 337 S.C. 27, 522 S.E.2d
598 (1999); State v. Kornahrens, 290 S.C. 281, 350 S.E.2d. 180 (1986).
8 Although the trial judge did not admit Employee's testimony for the
purpose of a common scheme or plan, the State was allowed to make this
argument on appeal. Rule 220(c), SCACR; I'On. L.L.C. v. Town of Mt.
Pleasant, supra.
p.541
State v. Beck
Victim's murderer. See State v. Wyatt, 317 S.C. 370, 453 S.E.2d 890 (1995)
(error without prejudice does not warrant reversal).
CONCLUSION
Based on the foregoing discussion, the decision of the Court of Appeals
is AFFIRMED.
TOAL, C.J., MOORE, WALLER and BURNETT, JJ., concur.
p.542