/opinions/HTMLFiles/SC/25886.htm

THE STATE OF SOUTH CAROLINA
In The Supreme Court

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The State, Respondent,

v.

Bobby Lee Holmes, Appellant.

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Appeal From York County
John C. Hayes, III, Circuit Court Judge

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Opinion No. 25886
Heard February 19, 2004 - Filed November 1, 2004

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AFFIRMED

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Senior Assistant Appellate Defender Wanda Haile, of Columbia, for appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, and Assistant Deputy Attorney General Donald J. Zelenka, all of Columbia; and Thomas E. Pope, of York, for respondent.

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JUSTICE MOORE: Appellant was convicted [1] of murder, first degree burglary, first degree criminal sexual conduct (CSC), and robbery. He received a death sentence for the murder, the jury having found three statutory aggravating circumstances, [2] and received three concurrent sentences for the other offenses. [3] Appellant alleges errors occurred in both the guilt phase and the sentencing phase of his trial. We affirm appellants convictions and sentences.

FACTS

At approximately 6:15 a.m. on December 31, 1989, the eighty-six-year-old victim opened her door in response to someones knocking. A black male forced his way into her apartment, beat her about the chest and head, and demanded money. The man forced the victim into her bedroom where he ripped off her nightgown and anally raped her. He took $40 from her purse and left the apartment after ripping the living room phone from the wall.

At 7:45 a.m., the victims friend (Mrs. Thrasher) phoned to check on the victim. After six or seven rings, the victim answered and told Mrs. Thrasher she had been beaten, anally raped, and robbed. Mrs. Thrasher called another friend, Mrs. Byers, who had an automobile and a key to the victims apartment. Mrs. Byers went to the apartment, noticed it was messy, spoke with the victim who told her the assailant was big and dark, and then drove to the police department since the living room phone had been pulled off the wall. [4]

The first officer on the scene was Dale Edwards. The victim told him that around 6 or 6:30 a.m. she heard knocking at her front door and that when she opened the door, a black male forced his way in. She had taken a shower before the police arrived. Officer Edwards removed the sheets and pillowcase from the bed for use as evidence, and placed the items in a paper grocery bag taken from the victims kitchen. Lt. Barnett arrived and assisted in the evidence collection. A pink nightgown, a housecoat, and a rag were removed from the bathroom and placed in another grocery bag. The victim gave Officer Edwards a pink paper towel with blood on it that he placed in a manila envelope brought to the scene by Captain Mobley, the third officer on the scene.

While the three police officers were there, two paramedics arrived to transport the victim to a local hospital emergency room. Blood samples were taken, but a rape kit was not processed because the victim was complaining of hip pain and medical personnel were awaiting X-rays before performing the exam. The blood testing kit used to take samples from the victim had expired several months earlier. [5] Before the victims mental state began to deteriorate, she described her attacker to an emergency room nurse as a black male in his late twenties. On February 19, 1990, the victim was transferred to a nursing home where she died in March. The cause of death was pneumonia, which developed as the consequence of her severe brain injury.

Captain Mobley testified he arrived at the victims apartment as the EMS personnel were transporting her out the door. He took custody of the evidentiary items from Officer Edwards and Lt. Barnett. He sent Officer Edwards door to door in the neighborhood and instructed Lt. Barnett to go to the hospital and speak with the victim.

Lt. Barnett recorded the victims statement at the hospital emergency room before she became confused. She described her attackers clothing: a dark jacket, must have been blue or black, must have been black; a pair of those funny looking pants . . . not the old pant, but something thats kind of mixed up you know; his hair: kind of long. Not too long, but a little longer than you usually wear it; she then said: he was middle aged. He was young. He was not too young. And he, as I remember, his hair was not short or not too long. The victim described her attacker as dark skinned, not too heavy. Not too slim.

Later that day, Officer Edwards talked to several of the victims neighbors. Ms. Boyd told him she heard knocking at her door about 3 a.m.; Mr. Lynn, who lived next door to the victim, reported knocking between 5:30 a.m. and 6:30 a.m.; and Ms. Diggs, who lived on the other side of the victim, heard someone knocking on her door around 6 or 6:30 a.m.

Officer Grady Harper testified he was dispatched to an apartment complex near the victims residence at about 4:43 a.m. on December 31, 1989. A number of people, including appellant, were making a disturbance, and Officer Harper told them to quiet down and move on. Appellant was unruly, and Officer Harper called for back-up to assist in arresting appellant. When the additional officers arrived, appellant ran. Officer Harper saw appellant get into a car; Officer Harper gave chase in his patrol car. The driver stopped the car and appellant ran from it. The last time Officer Harper saw appellant was about 5:30 a.m. and the other officers were chasing appellant. One of the chasing officers testified he lost sight of appellant at about 5:20 a.m. Appellant was wearing a black sweater with a hood and blue jeans.

Captain Mobley testified that after Officer Edwards and Lt. Barnett left the victims apartment; he locked the front door and began processing the scene. He seized one more paper towel, the telephone touched by the assailant, and the victims purse. He then dusted the apartment for fingerprints. On the interior side of the front door he photographed and lifted a palm print located slightly above the doorknob. Captain Mobley also photographed and lifted a print from the outside of the front door. The inside palm print was later identified as that of appellant.

Appellant was arrested on the afternoon of December 31, 1989, at his fathers home in York, and denied ever having been inside the victims apartment. When the police arrived, appellant was wearing a black hooded sweatshirt, underwear, and socks. He dressed in jeans before being transported by the police. While he was dressing, Officer Boot Smith noticed a tank top that appeared to have blood on it and asked if the police officers could take it. Appellant consented and stated the blood came from a fight he had been involved in the night before at a bar.

Forensic evidence linked appellant to the crime scene. In addition to the palm print found on the victims door, the State introduced evidence that:

(1) fibers consistent with a black sweatshirt owned by appellant were found on the victims bed sheets;

(2) a blue acrylic fiber was found on the victims pink nightgown, and another on appellants blue jeans: they could have come from the same common source or it could have come from different sources, but indeed they do . . . match each other;

(3) microscopically consistent fibers were found on the pink nightgown and, in the form of a fiber pill, on appellants underwear;

(4) appellants underwear contained a mixture of DNA from two individuals and 99.99% of the population other than appellant and the victim were excluded as contributors to that mixture; and

(5) appellants tank top was found to contain a mixture of his blood and the victims blood.

The defense theory was two-fold. First, it sought to discredit the forensic evidence by showing the evidence was mishandled and by demonstrating the many opportunities for contamination because of unprofessional errors. The defense also sought to suggest that the alleged contamination was not merely the result of simple negligence, but part of a plot on the part of certain law enforcement officers to see that appellant was convicted of these crimes. In connection with this prong of the defense strategy, appellant sought to introduce evidence of third party guilt.

ISSUE

Whether the circuit court erred by refusing to admit evidence of third party guilt?

DISCUSSION

At a pretrial hearing, appellant proffered evidence of third party guilt. Specifically, he sought to introduce evidence at trial that the crimes were actually committed by Jimmy McCaw White (Jimmy).

1. Pre-trial testimony

Like appellant, Jimmy is a black male. At the time of the victims murder, he was twenty-two years old; appellant was eighteen. Jimmys hair was longer than appellants and Jimmy had lighter skin than appellant.

Several witnesses placed Jimmy in the victims neighborhood near 6 a.m. on December 31, 1989. Frenetta Johnson testified she saw Jimmy going toward the apartments where the victim lived between 4:30 and 5:30 a.m. Later in her testimony, she narrowed the time to from four-thirty to something to five. Meshelley Gilmore testified she observed Jimmy in an apartment parking lot as she drove away from her home at about 3:30 or 4 a.m., and that he was still there when she returned at 4:30-4:45 a.m. These apartments were near the victims complex. Mrs. Gilmore was awakened by a police officer knocking on her door at 7:30 a.m. She told him she had seen Jimmy hanging around the parking lot earlier that morning.

Deloris Brown testified she saw Jimmy walking down the victims street in the direction of the victims apartment between 4 and 5 a.m. on December 31, 1989. Eighty-seven-year-old Anna Boyd, a resident of the same apartment complex as the victim, testified that someone knocked on her door during the night of December 30-December 31. The knocker said, Open the door, my man, this is Jimmy, open the door. These are appellants proximity witnesses.

Appellant also presented several witnesses who testified that Jimmy had acknowledged that appellant was innocent or to whom Jimmy had admitted his guilt. Thomas Murray testified that Jimmy said he knew appellant was innocent, and that he (Jimmy) could not be brought to court for it. Ken Rhodes testified he asked Jimmy whether the word on the street, that Jimmy was the victims murderer, was true and that Jimmy put his head down and he raised his head back up and he said well, you know, I like older women. . . . and he never called the ladys name but you know he say that he liked old women and that yeah he did what they say he did and you know that somebody else was locked up for it. And you know its like he didnt have no regrets about it at all. Rhodes went on to testify that [Jimmy] didnt say exactly what he done, he just told me that she had some good stuff . . . He said that he didnt kill the lady. The lady was alive when he left . . . .

Mattie Mae Scott testified that in October 1997 she was at her sons house when Jimmy came to visit. Jimmy was partially intoxicated, and when the others began talking about the old lady in York that Jimmy had raped and murdered, Jimmy said, Yes, I did it but [appellant] is going to fry for it.

The defenses star witness was Stephen Westbrook. [6] He testified that in 1990 and again in 1994 Jimmy told him he had broken into the victims house and raped her. Jimmy told Westbrook that Officer Boot Smith [7] had told Jimmy to keep quiet about his guilt. Westbrook further testified that Officer Smith and Investigator Potts came to see Westbrook before appellants first trial and offered to get him out of jail if he would testify that appellant had confessed to him. Westbrook testified that in June 2000, about two months before this pretrial hearing, he was brought to Rock Hill from Kirkland Correctional Institute. In Rock Hill, he was confronted by several employees of the solicitors office who sought to convince him to testify against appellant in the upcoming second trial. Westbrook stated that the solicitors office employees acknowledged to him that they had manufactured underwear evidence incriminating appellant. Westbrook also testified that Jimmy told him that Officer Smith was out to frame appellant, and that even appellants former attorney had urged him to testify against appellant. Finally, Westbrook testified an employee of the solicitors office stated that, in addition to the manufactured underwear evidence, they had lifted one of appellants palm prints from the county jail door to use against him at trial. These are appellants confession witnesses.

Further, the defense called a witness who testified that when asked why he would not confess, Jimmy told him its all over and done with and [appellant] is going to do the time for it.

The former receptionist at the York Public Defenders Office testified that Jimmy brought up the crime in conversation with her one day, and remarked that he did not believe appellant was guilty, that maybe Jimmy knew who did it, and that everybody on the street knew.

Finally, the defense called Jimmy to testify at the pretrial hearing. The trial judge instructed Jimmy he had the right to remain silent and the right to an attorney, and warned Jimmy that anything he chose to say could be used against him. Jimmy declined the offer of an attorney and opted to testify. Jimmy testified he left York and was home in Sharon by 2 a.m. on December 31, 1989. He claimed to have ridden with Junior Lytle. Lytle, however, testified at the pretrial hearing and denied driving Jimmy home to Sharon that night. Jimmy denied telling Stephen Westbrook that he had raped and killed the victim and denied confessing in the presence of Thomas Murray or John Dixon or telling the York Public Defenders receptionist that he knew who killed the victim.

2. Standard for admitting third party guilt

We have held that a defendant seeking to present evidence of third party guilt must meet this standard:

[T]he 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.

State v. Gregory, 198 S.C. 98, 104, 16 S.E.2d 532, 534 (1941) (citing 16 C.J. 560).

The Gregory court went on to cite from 20 Am. Jur. 254:

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.

Id., 198 S.C. at 104-105, 16 S.E.2d at 535. Further, in State v. Gay, 343 S.C. 543, 541 S.E.2d 541 (2001), we held that where there is strong evidence of an appellants guilt, especially where there is strong forensic evidence, the proffered evidence about a third partys alleged guilt does not raise a reasonable inference as to the appellants own innocence.

Appellant fails to meet the standard set out in Gregory and Gay due to the strong evidence of his guilt. He simply cannot overcome the forensic evidence against him to raise a reasonable inference of his own innocence. This evidence included: (1) appellants palm print was found just above the door knob on the interior side of the front door of the victims house; (2) fibers consistent with a black sweatshirt owned by appellant were found on the victims bed sheets; (3) matching blue fibers were found on the victims pink nightgown and on appellants blue jeans; (4) microscopically consistent fibers were found on the pink nightgown and on appellants underwear; (5) appellants underwear contained a mixture of DNA from two individuals, and 99.99% of the population other than appellant and the victim were excluded as contributors to that mixture; and (6) appellants tank top was found to contain a mixture of appellants blood and the victims blood. [8]

Further, besides the forensic evidence, there was evidence that appellant matched the description of the perpetrator given by the victim and there was evidence that appellant was fleeing from police officers and was in the area of the victims house prior to the time she was attacked.

Regarding appellants claim that he should have been allowed to present evidence that Jimmy White may have been the perpetrator of the crimes, the State proffered the testimony of a Federal Bureau of Investigations forensic examiner. This examiner testified that, after testing Jimmy Whites specimen, i.e. a dried bloodstain, and comparing the specimen to the clothing items that were tested as part of the investigation, White was excluded.

Given the overwhelming evidence of appellants guilt, the circuit court did not err by excluding the evidence of third party guilt.

CONCLUSION

Appellants remaining issues are without merit and we dispose of them pursuant to Rule 220(b), SCACR. See Issue I: State v. Council, 335 S.C. 1, 515 S.E.2d 508, cert. denied, 528 U.S. 1050 (1999) (whether juror is qualified to serve on death penalty case is within discretion of trial court and is not reviewable on appeal unless wholly unsupported by the evidence; responses of challenged jurors must be examined in light of entire voir dire); Issue IV: State v. Johnson, 338 S.C. 114, 525 S.E.2d 519, cert. denied, 531 U.S. 840 (2000) (appellate court will not disturb trial courts ruling concerning scope of cross-examination of a witness to test his or her credibility absent manifest abuse of discretion); see also State v. Beckham, 334 S.C. 302, 513 S.E.2d 606 (1999) (trial court erred by not admitting impeachment evidence after officer denied he had investigated two suspects different from the defendant; however, error found to be harmless); Issue VI: State v. Humphries, 325 S.C. 28, 479 S.E.2d 52 (1996), cert. denied, 520 U.S. 1268 (1997) (contemporaneous objection required to preserve issue for appellate review); Issues VII and VIII: State v. Hughes, 336 S.C. 585, 521 S.E.2d 500 (1999), cert. denied, 529 U.S. 1025 (2000) (capital defendant may present as mitigating evidence (1) any aspect of defendants character or record and (2) any circumstances of the crime that may serve as a basis for a sentence less than death); State v. Southerland, 316 S.C. 377, 447 S.E.2d 862 (1994), cert. denied, 513 U.S. 1166 (1995) [9] (residual doubts are not a mitigating factor in sentencing); Issue IX: Ohio v. Roberts, 448 U.S. 56 (1980), overruled on other grounds by Crawford v. Washington, U.S. , 124 S.Ct. 1354 (2004) (properly administered the business and public records exceptions are among the safest against a Confrontation Clause challenge of the hearsay exceptions); Rule 1006, SCRE (contents of voluminous records may be presented in form of a summary provided underlying data are admissible into evidence); State v. Whipple, 324 S.C. 43, 476 S.E.2d 683, cert. denied, 519 U.S. 1045 (1996) (prison disciplinary records admissible under Uniform Business Records as Evidence Act, S.C. Code Ann. 19-5-510 (1985); Issue XI: Payne v. Tennessee, 501 U.S. 808 (1991) (victim impact evidence is admissible in a capital sentencing proceeding); Neill v. Gibson, 278 F.3d 1044 (10^th Cir. 2001), cert. denied, 537 U.S. 835 (2002) (no ex post facto violation in allowing victim impact evidence when crime occurred in 1984); Issue XII: State v. Humphries, 325 S.C. 28, 479 S.E.2d 52 (1996), cert. denied, 520 U.S. 1268 (1997) (contemporaneous objection required to preserve issue for appellate review); Issue XIII: State v. Stroman, 281 S.C. 508, 316 S.E.2d 395 (1984) (party cannot complain of error which his own conduct has induced); Issue XV: State v. Weik, 356 S.C. 76, 587 S.E.2d 683 (2002), cert. denied, 539 U.S. 930 (2003) (issues cannot be raised for the first time on appeal); State v. Saltz, 346 S.C. 114, 551 S.E.2d 240

(2001) (admission of evidence is in trial courts discretion and will not be disturbed on appeal absent an abuse of discretion). [10]

Proportionality Review

Under State law, S.C. Code Ann. 16-3-25(C)(3) (1985) requires this Court to determine in a death case [w]hether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. There is no requirement the sentence be proportional to any particular case; however, death sentences have been imposed in similar cases. See State v. Simmons, S.C. , 599 S.E.2d 448 (2004); State v. Terry, 339 S.C. 352, 529 S.E.2d 274, cert. denied, 531 U.S. 882 (2000); State v. Council, 335 S.C. 1, 515 S.E.2d 508, cert. denied, 528 U.S. 1050 (1999); State v. Whipple, 324 S.C. 43, 476 S.E.2d 683, cert denied, 519 U.S. 1045 (1996). Accordingly, appellants sentence is not disproportionate under State law. The judgment of the circuit court is

AFFIRMED.

TOAL, C.J., WALLER, J., and Acting Justice John W. Kittredge, concur. PLEICONES, J., dissenting in a separate opinion.

JUSTICE PLEICONES: I respectfully dissent, and would find the circuit court erred in refusing to allow appellant to introduce evidence of third party guilt in the guilt phase of the trial. I would therefore reverse and remand for a new trial.

The majority and I agree on the third party guilt evidence proffered by appellant. In my view, the proffer met the standard established by State v. Gregory, 198 S.C. 98, 16 S.E.2d 532 (1941). The majority, relying on State v. Gay, 343 S.C. 543, 541 S.E.2d 541 (2001), concludes that the third party guilt evidence was properly excluded. I find Gay distinguishable.

In Gay, the Court affirmed the exclusion of evidence of third party guilt because the States case, particularly the forensic evidence, was so strong that it admitted of no reasonable inference regarding the defendants innocence. The present case is distinguishable from Gay in several important particulars. First, the validity of the forensic evidence was not called into question in Gay. Here, appellant presented evidence of mishandling, for example the collection of evidence at the scene using grocery bags from the victims kitchen, the mislabeling of samples at the lab, and the loss of all blood samples collected from the victim. Further, appellant proffered evidence that representatives of the State had admitted manufacturing blood and palm print evidence against him. Finally, unlike the defendant in Gay, appellant proffered both proximity witnesses and confession witnesses. Considering the record as a whole, the States evidence was not sufficient to negate the reasonable inference of appellants innocence arising from appellants proffer.

I would reverse and remand for a new trial.

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