THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State, Respondent,

v.

Willie Hicks, Appellant.

Appeal From Aiken County

Henry F. Floyd, Judge

Opinion No. 24784

Heard February 4, 1998 - Filed April 27, 1998

AFFIRMED

Deputy Chief Attorney Joseph L. Savitz, III, of

South Carolina Office of Appellate Defense, of

Columbia, for appellant.

Attorney General Charles M. Condon, Deputy

Attorney General John W. McIntosh, Assistant

Deputy Attorney General Donald J. Zelenka, all of

Columbia; and Solicitor Barbara R. Morgan, of

Aiken, for respondent.

BURNETT, A.J.: Appellant was convicted of murder,

kidnaping, armed robbery, and possession of a firearm or knife during the

commission of a violent crime. He was sentenced to death for murder,

plus thirty years for kidnaping, twenty-five years for armed robbery, and

five years for possession of a firearm or knife during the commission of a

violent crime.

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ISSUES

I. Did the trial judge err in determining appellant used two of

his peremptory strikes in a racially discriminatory manner in

violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712,

90 L.Ed.2d 69 (1986), and Georgia v. McCollum, 505 U.S. 42,

112 S.Ct. 2348, 120 L.Ed.2d 33 (1992)?

II. Did the trial judge err by permitting Detective Courtney to

testify charges against Simpkins had been dismissed after

interviews with numerous other individuals when those

individuals did not testify at trial?

III. Did the trial judge given erroneous jury instructions during

the sentencing phase of trial?

DISCUSSION

I.

During selection of the original jury panel, appellant, who is

black, exercised nine of his peremptory strikes to remove white prospective

jurors and one peremptory strike to remove a black prospective juror from

the panel. The State made a motion for a Batson hearing.

Appellant explained he struck Juror #18 and Juror #25 "to

reach some jurors further down the list."¹ Appellant noted, while this

explanation had previously been found unacceptable,² here the parties

were striking the jurors in order of their qualification, not at random. He

stated, if the jurors had been drawn from the entire qualified venire, he

would not have struck Jurors #18 and #25. The trial judge ruled the

explanation was unacceptable and ordered a re-strike.

The parties agreed to resume striking the jurors at Juror #18.

Ultimately, Juror #18 was seated on the jury and Juror #25 was seated as

the first alternate. Juror #27, one of the original panel members, was

other eight jurors were racially neutral.

² See State v. Grandy, 306 S.C. 224, 411 S.E.2d 207 (1991).

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seated as the second alternate. Neither of the alternate jurors

participated in the jury's deliberations.

Appellant argues the trial Judge erred in ruling his explanation

for striking Jurors #18 and #25 was not race-neutral. We disagree

The Equal Protection Clause of the Fourteenth Amendment to

the United States Constitution prohibits the State from striking a

venireperson on the basis of race. Batson v. Kentucky, supra. In

addition, "the Constitution prohibits a criminal defendant from engaging in

purposeful discrimination on the ground of race in the exercise of

peremptory challenges." Georgia v. McCollum, supra U.S. at 59, S.Ct. at

2359. L.Ed.2d at 51.

At the time appellant's jury was selected,³ a Batson hearing

was conducted in the following manner: 1) the opponent of the

peremptory strike requested a Batson hearing; 2) the party exercising the

peremptory challenge was required to present an explanation which was

racially neutral, related to the case to be tried, clear and reasonably

specific, and legitimate. If the explanation did not satisfy these criteria,

the trial judge could find a Batson violation and quash the jury panel; 3)

if the explanation did meet these criteria, the opponent of the strike had

the burden of proving the allegedly neutral explanation was pretextual.

See State v. Chapman, 317 S.C. 302, 454 S.E.2d 317 (1995); State v. Dyar,

317 S.C. 77, 452 S.E.2d 603 (1994); State v. Green 306 S.C. 94, 409

S.E.2d 785 (1991), cert. denied 503 U.S. 962, 112 S.Ct. 1566, 118 L.Ed.2d

212 (1992). State v. Tomlin, 299 S.C. 294, 384 S.E.2d 707 (1989).

In State v. Grandy, 306 S.C. 224, 411 S.E.2d 207 (1991), the

solicitor exercised a peremptory strike to exclude a black person from the

juy. The solicitor stated the reason for striking the prospective juror was

"to seat other venirepersons who had not yet been presented." The trial

judge ruled the reason was race-neutral; he did not require the defendant

to establish pretext. On appeal, this Court concluded to the contrary:

[T]he solicitor failed to articulate a racially neutral explanation

adopted the Batson procedure set forth in Purkett v. Elem, 514 U.S. 765,

115 S.Ct. 1769., 131 L.Ed.2d 834 (1995). Adams was filed on April 29,

1996, one week after the jury selection in the present case began.

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in his assertion that he excluded the prospective black juror

because he wanted to seat other venirepersons. Additionally,

the solicitor did not give any reason why it was desirable to

have other venirepersons seated, as opposed to the black juror.

The effect was the same as if no reason was given for striking

the black juror. His explanation was neither clear, reasonably

specific nor legitimate.

306 S.C. at 227-28, 411 S.E.2d at 209.

Quoting Batson, the Court stated:

[T]he prosecutor [could not] rebut the defendant's case merely

by denying that he had a discriminatory motive or affirming

his good faith in making individual selections. If these general

assertions were accepted as rebutting a defendant's prima facie

case, the Equal Protection Clause would be but a vain and

illusory requirement.

306 S.C. at 227, 411 S.E.2d at 208.

The trial court properly determined appellant did not offer a

clear, reasonably specific or legitimate reason for striking Jurors #18 and

#25. Although he could anticipate which jurors would be seated, appellant

offered no explanation as to which jurors he was attempting to seat or

why other jurors were more desirable than Jurors #18 ind #25.⁴ "The

effect was the same as if no reason was given for striking the [white]

juror[s]." Id. Even though the jury selection method may have been

different than in Grandy, appellant's explanation is no more persuasive

than the prosecutor's explanation in Grandy. Accordingly, we affirm the

trial judge's finding appellant failed to assert a racially-neutral

explanation for striking Jurors #18 and #25. State v. Dyar, supra (the

trial court's findings regarding purposeful discrimination are entitled to

great deference and are to be set aside only if clearly erroneous).⁵

in older to seat Juror #27. He states Juror #27 was preferable to Juror

#18 because she had lived outside the South.

⁵ Under the procedure adopted in State, v. Adams, supra, the outcome

may be different. See Evans v. Georgia, 458 S.E.2d 665 (Ga. App. 1995)(in

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II.

Seventy-three-year-old Andrew Hagan was killed in his home

during the late morning or afternoon hours of December 29, 1993. While

his arms and legs were bound, he was stabbed over thirty-four times in

the neck, chest, and abdomen, and beaten in the head with a flashlight.

Five men, including appellant and Willie Simpkins, had been

at the victim's home the evening before the murder and had sold the

victim construction equipment. By mid-January 1994, appellant,

Simpkins, and two of the other men had been arrested and charged with

the murder. There was no direct physical evidence connecting appellant or

any of the other suspects with the murder.⁶ The arrests were made

primarily on the basis of a statement given by one of the suspects. In

addition, the victim's neighbor stated she had seen a vehicle similar in

description to the one driven by Simpkins at the victim's home on the

afternoon of the murder.

Simpkins testified after his arrest, the police searched his

mother's home and found some Canadian dimes and buffalo nickels.

Simpkins' mother testified Simpkins was living with her in December

1993. She stated the police searched her home in February 1994 and

found Canadian coins in her son's bedroom. Mrs. Simpkins provided the

police with coins she kept in her own bedroom. She testified she had

these coins for many years.

Gary Hagan, the victim's son, testified after the police

processed his father's home, he looked through the home and determined

nothing was missing. A couple of days later, he hired a housekeeping

service to clean his father's home. Hagan testified his father had kept

foreign coins in a metal can in the top drawer of his dresser. He testified

after the cleaning crew left, he noticed the can was empty. Hagan

testified he thought the coins had been taken by someone from the

bottom of the jury list was reasonable and race-neutral).

⁶Only the victim's blood was found at the crime scene. The victim's

blood was not found on the suspects' clothes. Only the victim's son's

fingerprints were found at the victim's home. The murder weapon was not

located.

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cleaning service.

On cross-examination, Hagan testified the police had showed

him some coins. Hagan admitted in his February 1994 statement to the

police he had identified two of the coins as being from his father's

collection and had stated other coins were similar to those his father had

collected. During his testimony, however, he explained his father's coins

were not rare and he could not positively identify any of the coins as

belonging to his father.

Approximately halfway through the State's case, Detective

Courtney testified a second time. He explained he had investigated

several leads from January through March 1994 none of the leads

materialized

Thereafter, the following transpired:

Q. All right, and by mid-April how about the leads with

regard to the coins and Mr. Simpkins' car, where had they

gone?

A. By that point in time, we'd pretty much determined that

there was no specific manner for Mr. Gary Hagan to

absolutely, positively identify the coins that had been obtained

from Ms. Simpkins . . .

[Defense Counsel]: Objection to this, Judge.

The Court: And your objection is?

[Defense Counsel]: Mr. Hagan's statement can speak for itself.

He undermines the credibility of that witness.

After a bench conference, the trial judge sustained appellants

objection, noting Detective Courtney was prohibited from commenting

the testimony of another witness. The judge stated:

He can certainly testify that they had this lead, if you address

for example, coins, which you were, he may either say they

pursued that lead or they abandoned it. But as to the why

that goes to the issue of credibility, pits one witness against

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another, and that's for the jury to work out.

The solicitor continued her cross-examination of the detective:

Q. I asked you a question as to did you, through the course

of your investigation, continue to pursue any connections with

the coin information you had originally received?

A. Yes, ma'am, we did.

Q. And what did you do in regards to those coins?

A. The theory of those coins was just dismissed.

Q. And was that based on interviews with several people?

A. Yes, it was.

Q. And how about the situation with the car and any

attachments of the car to the murder of Andrew Hagan?

A. Eventually, that theory was also dismissed.

Q. And that was based on results and witnesses?

A. That's correct.

Q. And we are talking about numerous witnesses you

discussed?

A. Yes, ma'am.

Q. When you say you're following up, you interviewed how

many people?

A. Somewhere between twenty and thirty myself, I believe. It

was a very large number of people that we talked to.

Detective Courtney then testified the suspect who had given

the statement providing the basis for the arrest of the four men had

recanted his story. Courtney stated as a result of a conversation with

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another suspect's attorney, he spoke with Danny Felder.⁷ Ultimately,

Felder testified he witnessed appellant stab and beat the victim and steal

$210 from the victim's wallet.

Appellant now argues the trial judge erred in allowing

Detective Courtney to testify the charges against Simpkins were dismissed

based on interviews with individuals who did not testify at trial.⁸ He

maintains he was prejudiced by this testimony because it corroborated

Felder's account of the crime and bolstered Felder's credibility. Appellant

relies on State v. Coleman, 301 S.C. 57, 389 S.E.2d 659 (1990), where the

solicitor stated during closing argument he had not called the two other

suspects as witnesses because they did not have probative testimony.

Appellant's only objection at trial concerned Detective

Courtney's suggestion Gary Hagan's statement positively identifying the

coins taken from Simpkins as the coins from his father's collection was

unreliable. Appellant's objection to the solicitor pitting witnesses was

sustained. Appellant offered no objections however, to Detective Courtney'

comments concerning his reason for dismissing the charges against

Simpkins. Accordingly, this issue is not preserved for appeal. State v.

Byram, 326 S.C. 107, 485 S.E.2d 360 (1997)(to be preserved for appeal, a

issue must be raised to and ruled on by the trial judge).

In any event, there was no error in Detective Courtney

testifying he conducted numerous interviews and, as a result, the charges

against Simpkins were dismissed. Coleman is inapposite. Unlike the

solicitor's argument in Coleman, Detective Courtney's testimony was base

on his own knowledge and investigation and he was subject to appellant's

cross-examination.

victim's murder.

⁸ Based on German v. State, 325 S.C. 25, 478 S.E.2d 687 (1996),

appellant agrees the testimony was not objectionable as hearsay. The fact

individuals provided information exculpating Simpkins was not offered

proof Simpkins was not guilty (for the truth of the matter asserted) but

rather, for the purpose of showing why Detective Courtney dismissed

Simpkins as a suspect. State v. Brown, 317 S.C. 55, 451 S.E.2d 888

(1994).

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III.

Appellant argues the penalty phase instructions were

erroneous. Specifically, he contends the trial judge erred by charging the

jury the following:

• Any decision you make with regard to sentence for the

defendant must be based upon proof beyond a reasonable

doubt . . . .

• Also, you must find unanimously and beyond a

reasonable doubt that the sentence you have decided to

impose is the appropriate sentence in light of the record

of the case.

In addition, appellant argues the trial judge erred by not

instructing the jury it could "recommend life imprisonment if it found the

existence of one or more statutory aggravating circumstances beyond a

reasonable doubt" or "for any reason or no reason at all." Appellant

contends because of these errors, a reasonable juror would have

understood the given instructions as placing the burden of proof upon him

to establish he should not be sentenced to death once it found the State

had established a statutory aggravating circumstance beyond a reasonable

doubt.⁹

Appellant concedes "[d]efense counsel did not object to the

judge's oral and written instructions." He contends because the errors

were so egregious, however, the Court should address the issue on direct

appeal.

This issue is not preserved for appellate review. State v.

Longworth, 313 S.C. 360, 438 S.E.2d 219 (1993), cert. denied, 513 U.S.

831, 115 S.Ct. 105, 130 L.Ed.2d 53 (1994)(failure to object to a given

instruction or to request a particular charge acts as a waiver of the right

to complain about the issue on appeal). A contemporaneous objection is

necessary to preserve errors for direct appellate review, even in cases

where a death sentence is imposed. State v. Torrence, 305 S.C. 45, 406

S.E.2d 315 (1991).

p.20

In any event, the instructions include the following statements:

• [W]ith regard to any set of instructions that are given to

you, that you take them in their whole context. Do not

put any more emphasis on one portion as opposed to the

other, and please make sure that you keep it in the total

context that it is given to you;

• [T]he burden of roof in this procceding is on the State

• If all twelve of you agree that you are satisfied beyond

reasonable doubt that one or more of the statuyory

aggravating circumstances existed at that time, existed at

the time the victim in this case was murdered, then you

would be authorized to impose either a sentence of life

imprisonment or death upon the defendant.

• While it is necessary that you find, beyond a reasonable

doubt, that one or more of the alleged statutory

aggravating circumstances existed at the time the victim

was murdered in order to impose the sentence of death

upon the defendant, it is not necessary that you find

beyond a reasonable doubt any mitigating circumstances

existed at the time the victim was murdered in order to

impose a sentence of life imprisonment rather than death

upon the defendant. You are authorized to impose a

sentence of life imprisonment regardless of whether you

find that any mitigating circumstances existed at the

time the victim was murdered.

(emphasis added).

A jury instruction must be viewed in the context of the over

charge. Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38

L.Ed.2d 368, 373 (1973); State v. Norris, 285 S.C. 86, 328 S.E.2d 339

(1985), overruled on other grounds, State v. Torrence, supra. The test for

sufficiency of a jury charge is what a reasonable juror would have

understood the charge to mean. State v. Patterson, 299 S.C. 280, 384

S.E.2d 699 (1989), vacated on other grounds 493 U.S. 1013, 110 S.Ct. 70

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107 L.Ed.2d 730 (1990). There is no burden of proof on a capital

defendant with regard to evidence of mitigating circumstances. State v.

Bell, 293 S.C. 391, 360 S.E.2d 706 (1987), cert. denied 484 U.S. 1020, 108

S.Ct. 734, 98 L.Ed.2d 682 (1988).

Considering the instructions as a whole, a reasonable juror

would not have understood the burden of proof was upon appellant to

establish he should not be sentenced to death once the State established a

statutory aggravating circumstance or that a mitigating circumstance must

be established before a life sentence could be imposed. The instructions

specified the State had the overall burden of proof. Further, the charge

provided, even if it found a statutory aggravating circumstance, the jury

could impose a life sentence. Moreover, the jury was instructed it was

authorized to impose a life sentence even if it did not find any mitigating

circumstances. Similar instructions have been found adequate. State v.

Green, 301 S.C. 347, 392 S.E.2d 157, cert. denied 498 U.S. 881, 111 S.Ct.

229, 112 L.Ed.2d 183 (1990).

Finally, the trial judge is not required to instruct the jury it

could impose a life sentence "for any reason or no reason at all" where the

jury is informed, as it was here, it could consider any mitigating

circumstance authorized by law and could impose a life sentence even if

aggravating circumstances were found. Id.; State v. Jones, 298 S.C. 118,

378 S.E.2d 594 (1989), cert. denied 494 U.S. 1060, 110 S.Ct. 1534, 108

L.Ed.2d 773 (1990). There was no error.¹⁰

PROPORTIONALITY REVIEW

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.¹¹ See S.C. Code Ann. § 16-3-25 (1985).

not be construed as eliminating the contemporaneous objection

requirement.

¹¹ The jury found the statutory aggravating circumstances of murder

while in the commission of kidnaping and while in the commission of

robbery while armed with a deadly weapon. S.C. Code Ann. § 16-3-20

(C)(a)(1)(b) & (d)(Supp. 1997).

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Further, we hold the death penalty is neither excessive nor

disproportionate to that imposed in similar cases. See State v. Byram,

supra; State v. Patterson, 324 S.C. 5, 4S2 S.E.2d 760, cert. denied ____ U.S.

____ 118 S.Ct. 1463 139 L.Ed.2d 92 (1997); State v. McWee, 322 S.C. 387,

472 S.E.2d 235 (1996), cert. denied, ____U.S. ____, 117 S.Ct. 695, 136

L.Ed.2d 618 (1997); State v. Elkins, 312 S.C. 541, 436 S.E.2d 178 (1993),

cert. denied, 511 U.S. 1063, 114 S.Ct. 1634, 128 L.Ed.2d 357 (1994); State

v Adams, 279 S.C. 228, 306 S.E.2d 208, cert. denied, 464 U.S. 1023, 104

AFFIRMED.

TOAL, MOORE and WALLER, JJ., concur. FINNEY, C.J.,

dissenting in separate opinion.

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The State v. Willie Hicks

FINNEY, C.J.: I respectfully dissent and would vacate appellant's death

sentence and remand for resentencing.

In my view the charge as a whole was confusing and could lead a

juror to conclude incorrectly that the state satisfies its burden by proving at

least one statutory aggravating circumstance beyond a reasonable doubt and

then the burden shifts to appellant to prove beyond a reasonable doubt that he

should not be sentenced to death. State v. Patrick, 289 S.C. 301, 345 S.E.2d

481(1986)(capital defendant has no burden of proof).

The trial judge stated in part:

[A]ny decision you make with regard to sentence for the

defendant must be based upon proof beyond a

reasonable doubt . . . .

Also, you must find unanimously and beyond a reasonable

doubt that the sentence you have decided to impose is the

appropriate sentence in light of the record of the case.

A capital jury needs to understand the following concepts: (1) it

could recommend life imprisonment even if it found the existence of one or more

statutory aggravating circumstances beyond a reasonable doubt; (2) it need not

find a mitigating circumstance in order to impose life imprisonment; and (3) it

could recommend a life sentence for any reason or no reason at all. State v.

Atkins, 303 S.C. 214, 399 S.E.2d 760 (1990); State v. Tyner, 273 S.C. 646, 258

S.E.2d 559 (1979). The judge did not instruct the jury on the first and third

concepts. Furthermore, the judge instructed the jury at least twice that any

sentencing decision must be based upon proof beyond a reasonable doubt.

Considering the jury instructions as a whole, I believe a reasonable

juror could have been confused and misled by the instruction and given the

impression that there was a burden upon appellant to prove beyond a

reasonable doubt that the jury should recommend mercy in the sentencing.

Under these instructions, a reasonable juror could conclude the burden was on

appellant to prove beyond a reasonable doubt that he should not be sentenced to

death.

Accordingly, I would vacate appellant's death sentence and remand for

resentencing.

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