State v. Cooper

439 S.E.2d 276, 312 S.C. 90, 1994 S.C. LEXIS 4

• Court: Supreme Court of South Carolina
• Decided: January 10, 1994
• Docket: 23987
• Status: Published

Opinions

Chandler, Justice:

Appellant Gene Tony Cooper (Cooper) was convicted of murder, armed robbery, kidnapping and conspiracy to commit armed robbery. He was sentenced to death for murder, five years for armed robbery and five years for conspiracy.

We reverse the murder conviction and remand for new trial; the remaining convictions and sentences are affirmed.

FACTS

In the early morning of October 6, 1989, seven-year-old Amanda Quinn discovered that her mother, Kimberly Ann Quinn (Victim) was missing from their Cayce, South Carolina, home. Victim’s empty wallet was found in the yard; at 9:17 a.m., Victim’s forged welfare check was cashed at a Cayce bank.

The remains of Victim’s body were discovered two days later; she had suffered shotgun blasts to the head, neck and back. After her murder, Victim’s hands and feet were severed with an ax and her body set on fire with gasoline. The hands and feet were subsequently discovered in a nearby creek, along with an ax owned by Appellant Cooper.

ISSUES

(1) Did the court err in failing to secure an on-the-record waiver of Cooper’s right to personally address the guilt phase jury?

(2) Did the court err in refusing to permit Cooper to question State’s witness, Red Farmer, regarding Farmer’s involvement in a drug smuggling conspiracy?

DISCUSSION

I. Waiver of Jury Argument

Cooper contends failure to obtain an on-the-record waiver of his right to personally address the guilt phase jury mandates reversal. We agree.

Recently, we dispositively addressed this issue in State v. Charping, — S.C. —, 437 S.E. (2d) 88 Opin. No. 23942, filed October 11, 1993, and held that, absent a knowing and voluntary waiver on the record, in favorem, review1 mandates reversal of the defendant’s murder conviction. See also State v. Rocheville, — S.C. —, 425 S.E. (2d) 32 (1993). Accordingly, Cooper’s murder conviction is reversed and the case remanded for a new trial.²

II. Impeachment of State’s Witness

Inasmuch as the issue may occur upon retrial, we address Cooper’s contention that trial court erred in refusing to permit his cross-examination of State’s witness, Red Farmer (Farmer), regarding Farmer’s involvement in a conspiracy to smuggle drugs into Central Correctional Institute (CCI). We agree,³ but hold the error harmless.

Evidence of prior bad acts which are not the subject of a conviction, but which go to the witness’ credibility, are subject to cross-examination; however, the cross-examiner must take the witness’ answer and the prior bad acts may not be proved by extrinsic evidence. State v. Major, 301 S.C. 181, 391 S.E. (2d) 235 (1990).

Error in excluding evidence of a witness’ prior bad acts is harmless where the witness is thoroughly impeached by admission of numerous previous convictions and acknowledges his testimony is given in exchange for favorable treatment on pending charges. State v. Tillman, 304 S.C. 512, 405 S.E. (2d) 607 (Ct. App. 1991) cert. denied. See also, State v. Ferguson, 300 S.C. 408, 388 S.E. (2d) 642 (1990).

The record is abundant with evidence tending to impeach Farmer. Exclusion of his drug-smuggling activities at CCI was harmless.

CONCLUSION

Cooper’s conviction for murder and death sentence are reversed and remanded.

The remaining guilt phase exceptions are affirmed pursuant to Rule 220(b)(1) SCACR: State v. Drayton, 270 S.C. 582, 243 (1978) (Issue 1); State v. Gregory, 198 S.C. 98, 16 S.E. (2d) 532 (1941) (Issue 3; State v. Swilling, 249 S.C. 541, 155 S.E. (2d) 607 (1967), cert. denied 389 U.S. 1055, 88 S.Ct. 806, 19 L.Ed. (2d) 853 (1968), State v. Cabbagestalk, 281 S.C. 35, 314 S.E. (2d) 10 (1984) (Issue 4); 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) (Issue 6).

In light of our holding, we do not address the remaining sentencing phase issues.

Affirmed in part, reversed in part and remanded.

Harwell, C.J., and John P. Gardner and Costa M. Pleicones, Acting Associate Justices, concur. Moore, J., dissenting in part in separate opinion.

1 This case was tried prior to State v. Torrence, 305 S.C. 45, 406 S.E. (2d) 315 (1991), which abolished in favorem vitae. Errors not appropriate for direct appeal must now be raised in applications for Post Conviction Relief.

2 Cooper’s conviction for conspiracy and armed robbery are unaffected. State v. Charping, supra.

3 This testimony was admissible solely to impeach Parmer’s credibility. The identities of other drug-smuggling co-conspirators were properly excluded. State v. Gregory, 198 S.C. 98, 16 S.E. (2d) 532 (1941).