S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
v.
Titus L. Huggins, Appellant.
Appeal From Horry County
R. Markley Dennis, Jr., Circuit Court Judge
Opinion No. 24993
Heard November 4, 1998 - Filed August 23, 1999
AFFIRMED
Assistant Appellate Defender Robert M. Dudek, of
South Carolina Office of Appellate Defense, of
Columbia, for appellant.
Attorney General Charles M. Condon, Chief Deputy
Attorney General John W. McIntosh, Assistant Deputy
Attorney General Donald J. Zelenka, all of Columbia;
and Solicitor Ralph J. Wilson, of Conway, for
respondent.
PER CURIAM: Appellant was convicted of capital murder, armed
robbery, and conspiracy and received concurrent sentences of five years
(conspiracy), twenty-five years (armed robbery), and death (murder). The sole
aggravating circumstance was that the murder was committed while in the
commission of a robbery while armed with a deadly weapon. This opinion
consolidates appellant's direct appeal and our mandatory review pursuant to
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STATE v. HUGGINS
S.C. Code Ann. 16-3-25 (1985). We affirm.
Appellant was convicted of murdering and robbing Mrs. Weaver,
the operator of the local grocery/liquor store, as she entered her home with the
day's receipts. The evidence showed Aaron Hill suggested Mrs. Weaver as the
robbery target, and that he was present at the scene. Hill maintained he hid
and watched as appellant committed the robbery they had planned, and then
as appellant unexpectedly shot the victim.1 Appellant gave a statement that
Hill was present and actually did the robbing and shooting. On appeal,
appellant raises only sentencing issues.
Appellant first argues he was entitled to have the judge direct a
life sentence because the State failed to produce any evidence of aggravation
in the sentencing phase of the trial. The State instead chose to introduce only
"Victim Impact" evidence, and did not formally reintroduce the guilt phase
evidence. We find no reversible error.
Appellant's directed verdict motion was denied because the trial
judge ruled that the guilt phase evidence "carried over" to the sentencing
phase. Appellant contends this ruling was incorrect.2 This issue has already
been decided adversely to appellant's position.
In State v. Shaw, 273 S.C. 194, 255 S.E.2d 799 (1979) subsequent
1Appellant and Hill were originally tried together: Appellant was
convicted of murder, armed robbery, and conspiracy while Hill was acquitted
of murder but convicted of armed robbery and conspiracy. Juror misconduct
led to a mistrial for appellant, but Hill did not seek one and his convictions
stood. At this second trial, Hill invoked his 5th Amendment right to refuse to
testify, and consequently his testimony from the first trial was read into the
record.
2To the extent appellant now argues in brief that his sentencing phase
was unconstitutional because the State focused solely on the character of the
victim and not on the individual characteristic of the crime and the appellant,
his argument is procedurally barred since it was not raised below. State v.
Gardner, 332 S.C. 389, 505 S.E.2d 338 (1998).
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STATE v. HUGGINS
history omitted, this Court held:
The purpose of the bifurcated trial proceeding is to
permit the introduction of evidence at the pre-sentence
hearing that normally would be inadmissible at the
guilt determination proceeding. The pre-sentence
hearing is for the introduction of additional evidence
in extenuation, mitigation or aggravation of
punishment. The statute does not exclude from the
consideration of the sentencing authority any evidence
received at the guilt determination stage. To the
contrary, the sentencing authority is required to
consider all the evidence received at the guilt
determination stage regarding the circumstances of
the crime and the characteristics of the individual
defendant together with additional evidence, if any, in
extenuation, mitigation or aggravation of punishment.
Although it is customary for the State to formally reintroduce the guilt phase
evidence at the beginning of the sentencing phase, this formality is not
required by statute or case law. We affirm the trial judge's refusal to direct a
life sentence.
Appellant next argues the court committed reversible error in
refusing to allow him to introduce certain evidence in the sentencing phase.
Specifically, appellant wanted to introduce the fact that he had briefly been
released on bond3 after being served with notice of intent to seek the death
penalty, and that he did not flee during that period. He offered this evidence
in mitigation, to show his good character.
Appellant was permitted to introduce evidence that he was briefly
bonded out of jail. The jail record keeper testified to the dates of appellant's
release and his bail bondsman testified he had no trouble contacting appellant
while he was out on bond and no trouble picking him up when bond was
3 This Court found error in the order releasing appellant on bond and
therefore he was reincarcerated.
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STATE v. HUGGINS
revoked. Appellant then sought to introduce into evidence the "notice of
intent" which had been served prior to his release, and related documents in
order to establish an evidentiary basis for his mitigation argument. See, e.g.,
State v. Cannon, 229 S.C. 614, 93 S.E.2d 889 (1956)(counsel must confine
argument to evidence and fair inferences in the record). The trial judge held
that since appellant's release on bond had been predicated on an error of law,
and since the bond was quickly revoked when the error was discovered, the
whole issue of the bond and the notice were "too confusing", and refused to
admit the documents. He also held the "fact" the State had sought the death
penalty was already before the jury.
In her closing argument, appellant's attorney stated, without
objection:
One fact, one series of facts, I do think, speak to
[appellant] also. No question he was arrested for
murder, armed robbery and conspiracy. He was given
notice by the State of South Carolina "We intend to
seek the death penalty." , [sic] and he knows this. He
is released on bond on April 2nd. He is returned to the
jail on April 8th. He is out for that period of time
knowing the State wants to seek the death penalty.
The bondsman had daily contact with him and had no
problem picking him up and returning him to jail
when he was so directed.
Assuming the trial judge erred in refusing to admit the actual
notice of intent to seek the death penalty and the other documents into
evidence, appellant simply cannot show prejudice since he was permitted to
make the mitigation argument he sought. Error without prejudice does not
warrant reversal. State v. McWee, 322 S.C. 387, 472 S.E.2d 239 (1996).
As noted above, appellant and Hill admitted conspiring to rob Mrs.
Weaver, and each blamed the other for the actual robbery and murder. In the
penalty phase of this second trial, appellant proffered the testimony of
Leonard Hemingway and James Lawrimore in an attempt to shift blame onto
Hill. Hemingway testified that two days prior to Mrs. Weaver's murder, Hill
had fired a gun at him in a dispute over food stamps. Appellant argues this
evidence was relevant to the statutory mitigating circumstances that he was a
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STATE v. HUGGINS
relatively minor participant in a murder committed by Hill because it showed
Hill was quick to fire a gun. The trial judge refused to admit Hemingway's
testimony, finding it irrelevant.
Evidence is relevant if it tends to make more or less probable a
fact in issue. State v. McWee, supra. The relevancy of evidence is an issue
within the trial judge's discretion. Id. We find no abuse of discretion here.
Hemingway's testimony is simply not relevant to the circumstances of Mrs.
Weaver's death. Further, appellant's own statement negates any contention
that he was a "minor participant" in the crime, regardless which individual
was the actual shooter.
Appellant also proffered the testimony of Lawrimore that three or
four years before Mrs. Weaver's death, Hill shot Lawrimore over a trivial
incident. This evidence was excluded on grounds of remoteness. Again,
appellant cannot show an abuse of discretion nor any prejudice since there is
simply no evidence he was a minor participant in the crime, and Lawrimore's
testimony was simply not probative of any fact in issue. State v. McWee,
supra. We find no error in the trial judge's refusal to admit Lawrimore's
testimony.
Finally, the record in this case shows it was prosecuted not by the
elected solicitor, but by two individuals identified as "Special Prosecutor John
Hilliard" and "Special Prosecutor Thomas J. Rubillo." No objection was made
at trial to their role, although appellant raises numerous objections on appeal.
It is well-settled that issues may not be raised for the first time on appeal.
State v. Gardner, supra. There is nothing in this record regarding the
propriety of the participation of these attorneys for our review.
PROPORTIONALITY REVIEW
We find the sentence imposed here is proportional to the one
imposed State v. Patterson, 324 S.C. 5, 482 S.E.2d 760 (1997)(prior and
subsequent history omitted). Accordingly, the conviction and sentence are
AFFIRMED.
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STATE v. HUGGINS
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