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South Carolina
Judicial Department
24803 - State v. Hill

Davis Adv. Sh. No. 21
S.E. 2d


In The Supreme Court

The State, Respondent


David Clayton Hill, Appellant.

Appeal From Georgetown County

Ralph King Anderson, Jr., Judge

Opinion No. 24803

Heard February 2, 1998 - Filed June 8, 1998


Assistant Appellate Defender Robert M. Dudek, of

S.C. Office of Appellate Defense, of Columbia, for


Attorney General Charles Molony Condon, Deputy

Attorney General John W. McIntosh, Assistant

Deputy Attorney General Donald J. Zelenka, and

Assistant Attorneys General Christie Newman

Barrett and Robert F. Daley, Jr., all of Columbia;

and Solicitor Ralph J. Wilson, of Conway, for


MOORE, A.J.: Appellant was convicted of murdering a police

officer and sentenced to death. We affirm.




On March 7, 1994, Officer Spencer Guerry of the Georgetown

Police Department stopped appellant in the parking lot of a car wash.

Appellant was driving a silver/gray Honda Prelude with expired Colorado

plates. He did not have a valid driver's license and he, had marijuana in

the car. Officer Guerry took appellant's Colorado identification card and

car registration and called the information in to the dispatcher. As he

was walking back to appellant's car, he was shot once through the cheek.

After the shooting, appellant drove to his house, picked up his

girlfriend, Wendy, and some of his belongings, and then drove to his

mother's mobile home. He told his mother he was in trouble and asked if

Wendy could borrow her car. His mother refused but offered to drive. His

mother and Wendy followed appellant down a dirt road where appellant

drove his car into a ditch. They then returned to his mother's mobile

home and appellant asked Wendy to report his car stolen. Wendy refused.

Appellant left the mobile home for a while. During his absence, the police

arrived searching for appellant. Later, appellant returned to his mother's

mobile home. He took a shower, washed his clothes, and poured Clorox on

his hands. He then called the police and was arrested. Appellant's

defense at trial was that someone had been hiding in his backseat and

shot Officer Guerry. At trial, several witnesses testified appellant was the

only person in the Honda.


Excited Utterance

Appellant contends the trial judge erred in refusing to allow a

witness to testify about hearsay evidence under the excited utterance or

res gestae exception. We disagree.

Kenneth Grant was a block away from the car wash when the

shooting occurred. Fifteen minutes after the shooting, Grant went to the

car wash. He testified in camera that after being at the car wash for

another 15 or 20 minutes, he heard an unidentifiable person in the crowd

state there were two suspects. The trial judge ruled this hearsay

testimony inadmissible.

Ru-le 803 (2), SCRE, states: "The following are not excluded by

the hearsay rule, even though the declarant is available as a witness: ...

(2) Excited utterance. A statement relating to a startling event or

condition made while the declarant was under the stress of excitement



caused by the event or condition."

The rationale behind the excited utterance exception is that

the startling event suspends the declarant's process of reflective thought,

thus reducing the likelihood of fabrication. See State v. Harrison, 298 S.C.

333, 380 S.E.2d 818 (1989)(decided prior to the adoption of the Rules of

Evidence but discussed the "excited utterance" exception in relation to res

estae . In determining whether a statement falls within the excited

utterance exception, the totality of the circumstances is viewed. Id.

"Statements which are not based on firsthand information, as

where the declarant was not an actual witness to the event, are not

admissible under the excited utterance or spontaneous declaration

exception to the hearsay rule." 23 C.J.S. Crim. Law § 876 (1989). The

hearsay statement of an unknown bystander is admissible under the

excited utterance exception only when the circumstances which surround it

would affect the declarant in a way that assures its spontaneity and,

therefore, its reliability for trustworthiness. People v. Mares, 705 P.2d

1013, 1016 (Colo. 1985). See also People v. Fields,, 71 III.App.3d 888, 390

N.E.2d 369 (1979)(if nature of event or circumstances indicate bystander

did not observe the act, declaration should be excluded); State v. Kent

157 Mich.App. 780, 404 N.W.2d 668 (1987)(declarant must have had.

opportunity to personally observe the matter of which he speaks);

Commonwealth v. Stetler, 494 Pa. 551, 431 A.2d 992 (1981)(declarant

must have perceived the happening); Underwood v. State, 604 S.W.2d 875

(Tenn. Crim. App. 1979)(excited utterance of bystanders admissible when

declarant observed the act and the declaration arose from personal

observation). Cf Crawford v. Charleston-Isle of Palms Traction Co., 126

S.C. 447, 120 S.E. 381 (1923)(under res gestae exception, declarant must

have had opportunity to personally observe the matter of which he


There is no evidence the unidentified declarant witnessed the

shooting. Further, it is unknown whether the declarant was under the

stress of excitement caused by the event. Therefore, the trial judge did

not err in ruling this statement inadmissible.

Presence of Uniformed Officers

Appellant contends the trial judge erred in refusing to clear

the courtroom and the hallways of uniformed officers. Appellant also

moved for the trial judge to order officers who were witnesses to dress in



civilian clothing.1 Appellant contends this was a show of force which

denied him a fair trial. We disagree.

To prevail on such a claim, appellant must,show that the

measures taken in the courtroom created either an actual or inherent

prejudicial effect on the jury. Inherent prejudice occurs when "an

unacceptable risk is presented of impermissible factors coming into play."

Holbrook v. Flynn, 475 U.S. 560, 572, 106 S.Ct. 1340, 1346-47, 89 L.Ed.2d

525, 535 (1986). State v. Tucker, _ S.C. _, 478 S.E.2d 260.9 271

(1996)(citing Holbrook. In Holbrook, the United States Supreme Court

held the presence of four uniformed officers seated directly behind the

defendant was not so inherently prejudicial that respondent was thereby

denied his constitutional right to a fair trial.

Here, appellant conceded that of the six people he counted,

some were bailiffs and personnel of the solicitor's office. We cannot tell

from the record how many uniformed officers were present. We also

cannot tell if these officers were witnesses waiting to testify. There were

at least 17 police officers (not counting SLED agents) who testified.

In this case, the number of officers is unknown and the role of

the majority of the officers was not to provide additional security, but

rather testify as witnesses. Any actual prejudice in this case is wholly

1 The State argues appellant's argument is procedurally barred

because he made this motion in limine and failed to renew the objection at

trial and obtain a final ruling citing State v. Schumpert, 435 S.E.2d 859,

312 S.C. 502 (1993). The State also argues this same procedural bar for

appellant's issue regarding television cameras. We disagree. Appellant

made these motions during voir dire. Generally, a motion in limine seeks

a pretrial evidentiary ruling to prevent the disclosure of potentially

prejudicial matter to the jury. See State v. Floyd, 295 S.C. 518, 369 S.E.2d

842 (1988). A pre-trial ruling on the admissibility of evidence is

preliminary, and is subject to change based on developments at trial. Id.

Here, the issues appellant raised were not motions in limine. See

Hernandez v. State, 767 S.W.2d 902 (Tex. Ct. App. 1989)(appellant's

motion made during voir dire was not a true motion in limine). The

uniformed officers and television cameras were, according to appellant,

already affecting the jurors. These were not motions in limine about the

admissibility of evidence which would not effect the trial until actually




speculative. Appellant simply has presented no evidence to show the

presence of the officers had any effect on the jury. Further, without

anything more than the mere assertion that six officers were present in

the courtroom, we cannot find appellant has shown any inherent prejudice.

Accordingly, we find no actual or inherent prejudice.2

Moreover, at the sentencing phase, appellant renewed his

objection and the trial judge went over specifically the number of officers

in the courtroom. The trial judge again denied the motion and appellant

is not appealing this ruling. Appellant stated there were four bailiffs, one

uniformed officer near him, two uniformed officers near the door and two

uniformed officers on the back row. The appellant then stated if that was

all of the officers in the courtroom, he was satisfied. He was concerned

the courtroom might fill up with officers at a later time. There were

fewer officers present during the guilt phase which is the basis for this

issue on appeal.

As to requiring the officers who were witnesses to dress in

civilian clothing, we find this issue has no merit. The trial court did not

abuse its discretion in allowing the officers to testify while in uniform

since the officers were acting in their official capacity and not as civilians.

People v. Beil, 76 III.App.3d 924, 395 N.E.2d 400 (1979). See also Brown v.

Indiana, 256 Ind. 444, 446, 269 N.E.2d 377, 378 (1971)("It would be

nothing short of ludicrous for this Court to hold these officers would be

required to change into civilian clothes before entering the court room to


Television cameras

Appellant contends the trial judge erred in refusing to order

the television cameras to discontinue filming during jury selection.

Appellant argues the television cameras were intimidating the jurors. We


On appeal, appellant points to two jurors. One juror originally

2 The appellant states the presence of the uniformed officers resulted

in a "carnival-like atmosphere." However, he does not point to any

evidence or show how the officers' presence might have disrupted the trial

or influenced the jury.



had not given correct information about his mental status. The juror sent

the trial judge a note stating he did not give correct information and he

wanted to inform the court he was on medication for depression. The trial

judge cleared the courtroom and inquired as to the jurqr's mental status

and his medication. This juror stated, "[T]here were people in the room

that I did not want to have this information . . . " The juror never stated

he was troubled by only the media or, in particular, the cameras. The

other juror stated he thought the voir dire process was going to be more

private and he did not realize the media and others would be present.

Appellant's argument addresses only the presence of television

cameras in the courtroom, while these jurors' concerns were about privacy

in general. Further, we note both of these jurors were found unqualified

by the trial judge.

Lastly, appellant contends camera crews from three television

stations were present at trial and created a disruptive atmosphere. This

information is not in the record. In fact, when appellant made this

motion, the court noted there was only one television crew present. The

trial judge did not abuse his discretion in refusing to remove the cameras

from the courtroom. Accordingly, this issue has no merit.

Voir Dire Regarding Specific Mitigating Circumstance

Appellant wanted to ask jurors whether they would consider

that appellant did not have a significant prior criminal history of violence.

Appellant contends the trial judge erred in not allowing him to ask this

question on voir dire.3 We disagree.

The authority and responsibility of the trial court is to focus

the scope of the voir dire examination as set forth in S.C. Code Ann.

§14-7-1020 (Supp. 1995). State v. Plath, 281 S.C. 1, 313 S.E.2d 619

(1984). S.C. Code Ann. § 16-3-20(D) (Supp. 1995) grants a capital

defendant the right to examine jurors through counsel but does not

enlarge the scope of voir dire permitted under § 14-7-1020. State v.

Owens, 293 S.C. 161, 359 S.E.2d 275 (1987). The manner in which these

questions are pursued and the scope of any additional voir dire are

matters of trial court discretion. State v. Smart, 278 S.C. 515, 299 S.E.2d

3 We note the trial judge also ruled that he would not let the State

identify any specific aggravating circumstance during voir dire.



686 (1982).

Appellant cites Morgan v. Illinois, 504 U.S. 719, 119 L.Ed.2d

492, 112 S.Ct. 2222 (1992), for the proposition that general questions

about whether a juror would follow the law are not adequate in voir dire.

In Morgan, the United States Supreme Court held the defendant was

entitled to know if jurors would consider general mitigating evidence. The

Court did not hold that the defendant was entitled to know if a juror

would consider specific mitigating evidence.

In United States v. Tipton, 90 F.3d 861 (4th Cir. 1996), the

court held the trial court's refusal to allow questioning of jurors about

specific mitigating factors did not constitute an abuse of discretion.

Appellant had wanted to ask jurors whether they would be willing to

consider mitigating factors such as appellant's "deprived poor background,"

66 emotional," "physical abuse," "young age," "limited intelligence," and "brain

dysfunction." The court stated that "[t]he undoubted fact that such

detailed questioning might have been somehow helpful to appellant in

exercising peremptory challenges does not suffice to show an abuse of

discretion." Id. at 880. The court reasoned that the trial judge had

sufficiently voir dired the jurors to cull out any prospective juror who

would always vote for the death penalty whatever the circumstances.

In Mu'Min v. Virginia, 500 U.S. 415, 11 S.Ct. 1899, 1905, 114

L.Ed.2d 493 (1991), the United States Supreme Court held a defendant is

entitled to specific questions only if the failure to ask them would render

his trial "fundamentally unfair." Here, the trial judge stated he would

allow appellant to ask whether a juror would consider mitigating

circumstances as presented by the defense and as instructed by the court.

This general question covers whether a juror would refuse to consider

mitigating circumstances and does not render appellant's trial unfair.

Accordingly, this issue has no merit.

Victim Impact Evidence

Appellant contends the trial court erred in allowing the

admission of victim impact evidence. We disagree.

At the time of appellant's trial, S.C. Code Ann. § 16-3-1550

(1985) provided that a victim may submit to the court at the time of

sentencing a victim impact statement to be considered by the judge.

Subsection (A) provided: "The provisions of this section govern the



disposition of any offense within the jurisdiction of the General Sessions

Court, excluding any crime for which a sentence of death is sought, in any

case which involves an identified victim whose whereabouts are known."

(emphasis added).4 Appellant contends this language prohibited victim

impact evidence from being admitted at his trial. We disagree.

This section merely limits the victim impact evidence in non-

capital cases. It does not address the admission of victim impact evidence

in capital proceedings. By merely excluding capital proceedings, this

section does not prohibit any victim impact evidence from being admitted

in capital sentencing proceedings.5 Section 16-3-1550 merely sets forth the

procedure for victim impact statements for other crimes. There is no

statutory section which provides for the introduction of victim impact

evidence in a death penalty case. However, our case law clearly allows for

its introduction.

In Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115

L.Ed.2d 720 (1991), the United States Supreme Court reversed its prior

precedent regarding the admission of evidence of a victim's personal

characteristics and the emotional impact of the murder on the victim's

family in a capital sentencing hearing. We adopted Payne in State v.

Johnson, 306 S.C. 119, 410 S.E.2d 547 (1991). Accordingly, this issue has

no merit.

Appellant's remaining arguments are affirmed pursuant to

Rule 220 (b)(1), SCACR, and the following authorities: Issue 1: State v.

Babb, 299 S.C. 451, 385 S.E.2d 827 (1989)(denial of motion for continuance

will not be disturbed absent clear abuse of discretion resulting in

prejudice); Issue 6: Washington v. Whitaker, _ S.C. 451 S.E.2d 894

(1994)(admission of evidence is within sound discretion of trial court and

its ruling will not be disturbed on appeal absent clear abuse of discretion);

Issue 8: State v. Simpson, __ S.C.__ , 479 S.E.2d 57 (1996)(Simmons V.

South Carolina, U.S. , 114 S.Ct. 2187, L.Ed.2d - (1994),

applies only when defendant is ineligible for parole and future

dangerousness is argued).

4 This section was re-written by 1997 Act No. 141, § 3, effective

October 1, 1997. This exclusionary language is not in the current statute.

5 We also note subsection (F) states: "No sentence may be invalidated

because of failure to comply with the provisions of this section."



We have conducted the proportionality review pursuant to S.C.

Code Ann. § 16-3-25 (1985). The sentence was not the result of passion,

prejudice, or any other arbitrary factor; the evidence supports the finding

of the aggravating circumstance; and the sentence is not disproportionate

to that imposed in similar cases. State v. South, 285 S.C. 529, 331 S.E.2d

775, cert. denied, 474 U.S. 888, 106 S.Ct. 209, 88 L.Ed.2d 178 (1985).