State v. Ivey , 331 S.C. 118 ( 1998 )

BURNETT, Justice:

Appellant Thomas Treshawn Ivey was convicted of the murder, kidnaping, and armed robbery of Robert Montgomery. He was sentenced to death for murder and thirty years imprisonment for armed robbery. This appeal consolidates appellant’s direct appeal with the mandatory review provisions of S.C.Code Ann. § 16-8-25 (1985). We affirm.

FACTS

In early January 1993, appellant and Vincent Neumon escaped from a prison in Alabama. Appellant and Neumon stole a truck and drove to Columbia, South Carolina, Neumon’s hometown.

Neumon testified during the guilt phase of appellant’s trial. According to Neumon’s testimony, on the evening of January 13, 1993, appellant suggested the two men should rob some people. Appellant carried a pistol in his coat pocket while the two men walked through Columbia. They stopped at Owens Steel. A maroon Suburban was parked outside. Mr. Montgomery came out of Owens Steel. At gunpoint, appellant led Montgomery back into the building to obtain the keys to the vehicle. When they returned, Neumon drove the vehicle, Mr. Montgomery sat beside him, and appellant sat in the back. Mr. Montgomery was scared and begged the two men not to hurt him; he stated he had a young child at home and his wife was expecting another child. Neumon and appellant assured Mr. Montgomery he would not be hurt.

Neumon drove to North, South Carolina. At that point, appellant stated “this is far enough.” Neumon stopped the vehicle. Appellant told Mr. Montgomery to get out of the vehicle. Neumon remained in the vehicle. Appellant and Mr. Montgomery walked away. Neumon testified he saw the “flame” flash from the gun twice. Appellant returned to the vehicle with the pistol in his hand. Appellant later told Neumon when he shot Mr. Montgomery in the back of the head his hair “jumped up.” He then rolled Mr. Montgomery over and shot him in the chest.¹

Neumon explained, prior to the murder, he (Neumon) borrowed the murder weapon from someone. On cross-examination, defense counsel asked Neumon if he had borrowed the pistol from “Fletch.” Neumon stated he had.²

After a brief recess, the trial judge informed the parties he had received a note from Juror Young which stated: “I know the person, Fletch, that Mr. Neumon was talking about.” Defense counsel and the solicitor agreed the judge should examine Juror Young.

After completion of Neumon’s testimony, the trial judge asked Juror Young to remain in the courtroom and excused the remaining members of the jury. The trial judge examined Juror Young as follows:

Q. Okay, Ms. Young, you sent out a note that says, “I know the person, Fletch, that Mr. Neumon was talking about.”

A. Uh huh.

Q. Do you feel like you know that same person?

A. Yes.

Q. If it is the same person, would that have any effect (sic) on your ability to be fair and impartial in this case, just because you know Fletch?

A. No, it shouldn’t.

Q. Ma’am.

A. It shouldn’t affect me.

Q. Okay. It shouldn’t have any effect (sic) on you at all, you just wanted us to know that?

A. Yeah.

Q. Okay. All right, we appreciate it.

The solicitor stated no objection to Juror Young remaining on the jury. Defense counsel requested Juror Young be removed. The trial judge denied the motion to remove Juror Young, observing she had stated her knowledge of “Fletch” would have no effect on her ability to remain fair and impartial. The trial judge then inquired if either party had “anything else.” Defense counsel replied negatively. The court recessed for the evening.

The following morning, after discussing other matters, defense counsel moved to question Juror Young regarding her knowledge of “Fletch.” The trial judge denied the motion.

DISCUSSION

Relying on S.C.Code Ann. §§ 16-3-20(D) and 14-7-1020 (Supp.1997), appellant now argues he was entitled to question Juror Young about her relationship with “Fletch.” We disagree.

Appellant’s request to ask additional questions of Juror Young was untimely. If dissatisfied with the trial judge’s examination of Juror Young, appellant should have immediately moved for permission to make additional inquiries of the juror. Appellant’s request for additional questioning the day after the trial judge had examined Juror Young and ruled her qualified was untimely. State v. Nance, 25 S.C. 168 (1886) (if counsel considered questioning by court perfunctory or otherwise unsatisfactory, the objection should have been made at the time of the questioning); 50A C.J.S. Juries § 489 (1997) (a party, by failing to object in a timely fashion, waives any irregularity in the examination of jurors). Accordingly, this issue is not properly preserved for appeal. State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991) (a contemporaneous objection is required to preserve an error for appellate review).

In any event, neither § 16-3-20(D) nor § 14-7-1020 entitled appellant to question Juror Young. Section 14-7-1020 sets forth the parameters of inquiry for prospective jurors by the trial judge. Section 16-3-20(D) 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. Patterson, 324 S.C. 5, 482 S.E.2d 760 (1997), cert. denied, — U.S. —, 118 S.Ct. 146, 139 L.Ed.2d 92. These two statutes govern the selection of prospective jurors, not the situation where, as here, the court is informed of a matter which may justify the discharge of a seated juror.

The trial judge properly inquired into the effect Juror Young’s knowledge of “Fletch” would have on her ability to be fair and impartial.³ Juror Young unequivocally stated her knowledge of “Fletch” would have no effect on her ability to render an impartial verdict. The trial judge did not abuse his discretion in allowing Juror Young to remain on the jury. State v. Thompson, 278 S.C. 1, 292 S.E.2d 581 (1982), cert. denied, 456 U.S. 938, 102 S.Ct. 1996, 72 L.Ed.2d 458, overruled on other grounds, State v. Torrence, supra (a juror’s competence is within the trial judge’s discretion and is not reviewable on appeal unless wholly unsupported by the evidence).

Appellant’s remaining issues are affirmed pursuant to Rule 220(b)(1), SCACR, and the following authorities: Issue 1: State v. Atkins, 303 S.C. 214, 399 S.E.2d 760 (1990), cert. denied, 501 U.S. 1259, 111 S.Ct. 2913, 115 L.Ed.2d 1076 (1991); Issue 3: State v. Doctor, 306 S.C. 527, 413 S.E.2d 36 (1992); State v. Anderson, 304 S.C. 551, 406 S.E.2d 152 (1991); Issue 4: State v. Southerland, 316 S.C. 377, 447 S.E.2d 862 (1994), cert. denied, 513 U.S. 1166, 115 S.Ct. 1136, 130 L.Ed.2d 1096 (1995), overruled on other grounds, State v. Chapman, 317 S.C. 302, 454 S.E.2d 317 (1995); State v. Bailey, 298 S.C. 1, 377 S.E.2d 581 (1989) (issue not preserved for appeal where one ground is raised below and another ground is raised on appeal); Issue 5: State v. Bailey, id.

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.⁴ See S.C.Code Ann. § 16-3-25 (1985). Further, we hold the death penalty is neither excessive nor disproportionate to that imposed in similar cases. See State v. Patterson, supra; State v. Humphries, 325 S.C. 28, 479 S.E.2d 52, cert. denied, — U.S. —, 117 S.Ct. 2441, 138 L.Ed.2d 201 (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. Von Dohlen, 322 S.C. 234, 471 S.E.2d 689, cert. denied, — U.S. —, 117 S.Ct. 402, 136 L.Ed.2d 316 (1996); State v. Young, 319 S.C. 33, 459 S.E.2d 84 (1995), cert. denied, 516 U.S. 1051, 116 S.Ct. 718, 133 L.Ed.2d 671 (1996); State v. Bell, 305 S.C. 11, 406 S.E.2d 165 (1991), cert. denied, 502 U.S. 1038, 112 S.Ct. 888, 116 L.Ed.2d 791 (1992); 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); State v. Howard, 295 S.C. 462, 369 S.E.2d 132 (1988), cert. denied, 490 U.S. 1113, 109 S.Ct. 3174, 104 L.Ed.2d 1036 (1989); State v. Drayton, 293 S.C. 417, 361 S.E.2d 329 (1987), cert. denied, 484 U.S. 1079, 108 S.Ct. 1060, 98 L.Ed.2d 1021 (1988).

AFFIRMED.

MOORE and WALLER, JJ., and JOHN W. KITTREDGE, Acting Associate Justice, concur. FINNEY, C.J., dissenting in separate opinion.

1 . After failing to locate a "chop-shop” in Atlanta, Neumon and appellant disposed of Mr. Montgomery’s vehicle in Winnsboro. They stole another vehicle and drove to Sumter. In Sumter, appellant shot and killed police officer Thomas Harrison. Appellant’s conviction and death sentence for the murder of Officer Harrison were affirmed by this Court in State v. Ivey, 325 S.C. 137, 481 S.E.2d 125 (1997).

2 . "Fletch” was not identified as a potential witness during voir dire and did not testify at either stage of appellant’s trial.

3 . 50A C.J.S. Juries § 503 (1997) ("[w]here the court is informed of a matter which may justify the discharge of a juror, the court generally must take some action and must inquire into the matter, at least where the juror’s competency is in question. The court has the discretion to question a juror whose qualifications have been called into doubt. Where and in what form to conduct an inquiry may depend upon the circumstances. ’ ’).

4 . The jury found the statutory aggravating circumstances of murder while in the commission of kidnaping, while in the commission of robbery while armed with a deadly weapon, and while in the commission of larceny with the use of a deadly weapon, and by a person with a prior conviction for murder. S.C.Code Ann. § 16-3-20(C)(a)(l)(b) (d) & (e) and (C)(a)(2) (Supp.1997).