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THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State, Respondent,

v.

Kelvin Cooper, Appellant.

Appeal From Newberry County

Costa M. Pleicones, Circuit Court Judge

Opinion No. 24918

Heard February 2, 1999 - Filed March 15, 1999

AFFIRMED

James C. Galmore, of Winnsboro, for appellant.

Attorney General Charles M. Condon; Deputy Attorney

General John W. McIntosh; Assistant Deputy Attorney

General Donald J. Zelenka, all of Columbia, Solicitor

W. Townes Jones., IV, of Greenwood, for respondent.

TOAL, A.J.: In this criminal case, Kelvin Cooper ("Defendant") was

convicted and sentenced for the murder of Charles H. Griffin ("Victim").

Defendant appeals his conviction.

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FACTUAL/PROCEDURAL BACKGROUND

On March 1, 1995, Victim's cousin, John Griffin, discovered Victim

stabbed to death in Victim's house in Newberry, South Carolina. John Griffin

testified that he found Victim lying nude on the floor in the bedroom. Victim's

throat had been cut and his face slashed. Victim had been cut, stabbed, and

slashed over 70 times. Griffin immediately called the police.

Shortly after arriving at the scene, Newberry police developed Defendant

as a suspect in the murder. Police visited Defendant at his mother's house and

then escorted him to the police station. Officer Max Pickelsimer testified that

Defendant's right hand was heavily bandaged. Defendant eventually removed

the bandage, and police photographed cuts on his hand.

After being advised of his Miranda rights, Officer Pickelsimer asked

Defendant if he wanted to make a statement. Defendant stated that he did. In

a signed, written statement, Defendant denied any involvement in Victim's

death. Defendant stated that on the night in question he was at his girlfriend's

house until about 10:00 p.m. He then went to the store and stopped at his

aunt's house to get out of the rain. He went back to his girlfriend's house at

about 1:30 a.m. Afterwards, he returned home and went to bed. Defendant

claimed he cut his hand while picking up a knife at his girlfriend's house. He

again cut his hand on a knife the next morning while reaching for a cigarette

lighter by the side of his bed.

After giving this initial statement, Defendant's mother told police that

Defendant wanted to give another statement. Officer Charles Counts testified

he tape-recorded Defendant's second statement. Defendant stated that after he

left his girlfriend's house, he went to Victim's house to get a beer. Defendant

claimed that while standing on Victim's porch, Victim came out and held a

sharp object to Defendant's throat, forcing Defendant inside the house. Once

inside, the two began to fight, resulting in Victim being cut. Defendant claimed

Victim was still alive when he left the house.

On March 3, 1995, police interviewed Defendant for a third time. This

interview was arranged to allow Newberry's Chief of Police, Louis J. Swindler,

to question Defendant because Chief Swindler had been out of town during the

initial part of the investigation. During the interview, Defendant gave another

version of events. Defendant stated he went to Victim's house to get out of the

rain and while standing on Victim's porch, Victim came out and held a knife to

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Defendant's throat, forcing Defendant inside the house. Defendant claimed that

once inside the house, Victim forced Defendant to have sex with him. After the

sexual act was over, the two began to fight, and Defendant grabbed the knife,

cutting himself on the hand in the process. Defendant then stabbed Victim two

or three times. Upon leaving the house, Defendant grabbed Victim's "Louis

Rich" I.D. card and some personal papers and then returned to his girlfriend's

house.

On December 7, 1995, a jury convicted Defendant of murder, possessing

a knife during the commission of a violent crime, and larceny. Defendant was

sentenced to life imprisonment for the murder charge, five years consecutive for

the weapons charge, and thirty days concurrent for larceny. Defendant appeals,

raising the following issues:

(1) Did the trial court err in failing to grant Defendant a new trial

based on prejudicial comments by the trial judge throughout the

trial?

(2) Did the trial court err in excluding exculpatory evidence pursuant

to State v. Doctor1?

(3) Did the trial court err in failing to grant a mistrial based on outside

influence on a juror?

(4) Did the trial court err in failing to grant a directed verdict on the

charge of murder?

(5) Were the solicitor's closing arguments sufficiently prejudicial to

warrant a new trial?

LAW/ANALYSIS

A. COMMENTS BY TRIAL COURT

Defendant argues that his conviction should be reversed because the trial

judge made prejudicial comments toward defense counsel which influenced the

verdict reached by the jury. Defendant further contends that prejudicial

comments made to defense counsel outside the presence of the jury had the

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effect of prohibiting defense counsel from presenting an adequate defense. We

disagree.

Defendant cites to approximately twenty instances in the record where

he contends the trial judge made prejudicial comments toward defense counsel.

Defendant does not contend that any of the rulings constituted legal error by

the trial judge. Rather, he argues the cumulative effect of the comments

prejudiced the verdict because they tended to impugn the credibility of defense

counsel by insinuating lack of legal skill. We have examined each of the

instances about which appellant complains. Each involves a situation in which

the trial judge and defense counsel are interacting with regard to evidentiary

or testimonial rulings. On each complained of instance, the trial judge has

either ruled against counsel, asked counsel to avoid repetitive questions, asked

counsel for clarification, or declined a request by defense counsel.

It is well settled that a trial judge must act with absolute impartiality in

the performance of judicial duties. State v. Pace, 316 S.C. 71, 447 S.E.2d 186

(1994); Canon 3 of Rule 501, SCACR. In Pace, this Court granted a new trial

where the trial court commented on defense counsel's age and gender. The

Court found that the remarks of the trial court tended to impugn the credibility

of trial counsel and to diminish her in the eyes of the jury. Further, in State v.

Simmons, 267 S.C. 479, 229 S.E.2d 597 (1976), this Court found reversible error

where the trial judge threatened defense counsel with a jail sentence,

immediately after which counsel proceeded no further with the arguments. The

Court concluded that the remarks tended to impugn the credibility of defense

counsel.

In other instances, this Court has found the trial court's comments to

defense counsel to be harmless. See, e.g., State v. DeBerry, 250 S.C. 314, 157

S.E.2d 637 (1967)(holding that trial judge's admonition to defense counsel to be

brief and stop wasting court's time was not abuse of discretion nor prejudicial

to the rights of defendant). Moreover, there is generally no prejudice when the

trial court's hostile comments are made outside the jury's presence. See Graves

v. State, 309 S.C. 307, 422 S.E.2d 125 (1992).

In the instant case, the trial judge's comments and rulings were routine.

None of the exchanges involved any improper, personal comment about defense

counsel, nor did the comments tend to impugn counsel's credibility or diminish

him in the eyes of the jury. Many of the comments were innocuous or merely

explanatory of the trial court's ruling and were therefore permissible. See State

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v. Mishoe, 198 S.C. 215,17 S.E.2d 142(1941)(holding that remarks made by the

judge in the course of a trial need not be confined in such narrow limits as to

prevent him from stating his reasons for his rulings). Some of the comments

were made outside the presence of the jury, and therefore, could not affect the

verdict. See Graves, supra. Further, the contention that these comments

nonetheless inhibited defense counsel is not supported by the record. In sum,

these were instances in which the trial judge made routine rulings against

defense counsel over the course of a four-day murder trial. There was no

resulting prejudice to Defendant.

We therefore affirm the trial court on this issue. See State v. Bridges, 278

S.C. 447, 298 S.E.2d 212 (1982)(holding that, in general, the conduct of a

criminal trial is left largely to the sound discretion of the presiding judge, and

the appellate court will not interfere unless it clearly appears that rights of the

complaining party were abused or prejudiced in some way).

B. EXCLUSION OF EVIDENCE

Defendant argues that the trial court erred in characterizing evidence as

exculpatory and excluding it pursuant to State v. Doctor, 306 S.C. 527, 413

S.E.2d 36 (1992). At trial, Defendant proffered the testimony of Solomon

Nelson who testified that while in a restaurant, he overheard Shirley Gilmore

tell Peter Wayne Marshall that Gilmore, Dottie Suber, and Defendant's

girlfriend had murdered Victim. Marshall admitted having a conversation with

Gilmore about the murder but denied that Gilmore told him she killed Victim.

Marshall testified that Gilmore simply told him that Defendant was not alone

in killing Victim. Finally, Gilmore proffered testimony, denying she told

Marshall that she killed Victim. Gilmore claimed she only told Marshall that

she believed Defendant had not committed the crime.

After the testimony was proffered, defense counsel stated that he

intended to first call Gilmore and then impeach her with Nelson's testimony.

The solicitor objected on the basis of hearsay. The trial court sustained the

objection pursuant to Rule 804(b)(3), SCRE, and State v. Doctor. The trial court

further stated: "You see why you can't do that? You can't call a witness to come

up and to deny that she ever made that statement she was involved in a murder

of somebody and then bring somebody else to say that -- it doesn't work that

way."

In Doctor, this Court held that out-of-court statements against penal

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interest made by an unavailable declarant are admissible at trial. However, if

offered to exculpate the accused in a criminal trial, they are admissible only if

corroborating evidence clearly indicates the trustworthiness of the statements.

Rule 804(b)(3), SCRE, codified this exception to the hearsay rule. Rule 804(b)(3)

provides:

(b) Hearsay Exceptions. The following are not excluded by the

hearsay rule if the declarant is unavailable as a witness: . . . (3)

Statement Against Interest. A statement which was at the time of

its making so far contrary to the declarant's pecuniary or

proprietary interest, or so far tended to subject the declarant to civil

or criminal liability, or to render invalid a claim by the declarant

against another, that a reasonable person in the declarant's

position would not have made the statement unless believing it to

be true. A statement tending to expose the declarant to criminal

liability and offered to exculpate the accused is not admissible

unless corroborating circumstances clearly indicate the

trustworthiness of the statement.

Rule 804(b)(3), SCRE.

Under Rule 804, Defendant could not have called Nelson to testify

concerning Gilmore's statements, since Gilmore was available to testify.

However, it is clear from the trial transcript that the Defendant intended to

first call Gilmore and then impeach her denial with Nelson's testimony. In

other words, Defendant argues that if Gilmore testified consistent with her

proffered testimony, Nelson's testimony would have been admissible as a prior

inconsistent statement.2

Defendant admits that the sole purpose for calling Gilmore was to

impeach her with Nelson's testimony, thereby supplying substantive evidence

of her guilt in committing the crime. However, this Court has imposed strict

(d) Statements Which Are Not Hearsay. A statement is not

hearsay if - (1) Prior Statement by Witness. The declarant testifies

at the trial or hearing and is subject to cross-examination

concerning the statement, and the statement is (A) inconsistent

with the declarant's testimony . . . .

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limits on the admissibility of third-party guilt. In State v. Gregory, 198 S.C. 98,

16 S.E.2d 532 (1941), this Court held:

The 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. . . . 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.

Gregory, 98 S.C. at 104-05, 16 S.E.2d at 534-35 (citation omitted)(emphasis

added); accord State v. Parker, 294 S.C. 465, 366 S.E.2d 10 (1988); State v.

Caulder, 287 S.C. 507, 339 S.E.2d 876 (Ct. App. 1986).

In the instant case, Gilmore admitted having a conversation with

Marshall concerning Defendant's case, but denied admitting to the crime. Aside

from Nelson's assertions, there was no credible evidence linking Gilmore to

Victim's murder. Gilmore testified in camera that she had never been to

Victim's house. Thus, there was no evidence that tended clearly to point out

that Gilmore was guilty of the crime. Nelson's testimony would therefore be

prohibited under Gregory, supra.

Yet, even if testimony is inadmissible as substantive evidence of third

party guilt, it may still be admissible for impeachment purposes. See State v.

Fossick, - S.C. _, 508 S.E.2d 32 (1998). However, Gilmore was not relevant

to the instant case except to provide testimony of her own culpability.3

circum stances surrounding the murder. On cross-examination, defense counsel

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Defendant, expecting Gilmore to deny making the statement if she testified,

then wanted to supply extrinsic evidence of a prior inconsistent statement. In

other words, Defendant wanted to call an otherwise irrelevant witness so that

testimony of that witness's guilt could come in under the guise of a prior

inconsistent statement. Such use of a prior inconsistent statement serves only

to prove third-party guilt, and therefore, cannot be justified on the ground of

impeachment alone. Since the testimony would be improper as substantive

evidence of third-party guilt, the trial court properly excluded the evidence.

C. OUTSIDE INFLUENCE ON JUROR

Defendant argues. that the trial court erred in failing to grant a mistrial

based on outside influence on a juror. We disagree.

At trial, the solicitor informed the trial court that a juror had been seen

waving to Corey Edwards, a spectator in the audience. Edwards was also

overheard stating that Defendant's girlfriend should be on trial. Further,

Edwards was seen talking to the juror during a break in the trial. Defense

counsel moved for a mistrial.

The trial judge called Edwards to the stand and questioned him about the

incident outside the presence of the jury. Edwards stated that the juror was

married to his cousin. He admitted having a conversation with the juror, but

denied talking to the juror about Defendant's case. He further stated that he

had told the assistant solicitor, not Defendant, that Defendant's girlfriend

should be on trial. The assistant solicitor confirmed Defendant's version on this

point. The trial court also permitted defense counsel to extensively question

Edwards about the incident. Additionally, the trial judge asked the jurors to

write him a note if anyone had attempted to discuss the case with them. There

was no response from the jury.

In a criminal prosecution, the conduct of the jurors should be free from all

who killed the victim. The witness denied making the statement. Defense

counsel then sought to -admit extrinsic evidence of a prior inconsistent

statement made by the witness. This Court held that even if the evidence was

inadmissible as evidence of third-party guilt, it was admissible for impeachment

purposes. However, unlike the instant case, the witness in Fossick testified for

the State concerning circumstances surrounding the crime.

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extraneous or improper influences. State v. Kelly, 331 S.C. 132, 502 S.E.2d 99

(1998). Unless the misconduct affects the jury's impartiality, it is not such

misconduct as will affect the verdict. Id. The granting or refusing of a motion

for a mistrial lies within the sound discretion of the trial court and its ruling

will not be disturbed on appeal unless an abuse of discretion amounting to an

error of law occurs. Id.

On appeal, Defendant does not contend that the trial court should have

granted a mistrial. Rather, he argues the trial court should have done

something more to investigate the alleged misconduct. Initially, it is hard to

conceive of anything more the trial court could have done to investigate the

incident. Moreover, defense counsel never requested that the trial court do

anything else. Nevertheless, there simply was no showing of any outside

influence on the jury which resulted in prejudice. We therefore affirm the trial

court on this issue. See Kelly, supra (holding that a juror's possession of a

religious pamphlet on the death penalty did not warrant reversal).

D. DIRECTED VERDICT ON THE MURDER CHARGE

Defendant argues that the trial court erred in failing to grant a directed

verdict on the murder charge since the evidence raised only a mere suspicion

of guilt. We disagree.

In reviewing the denial of a motion for a directed verdict, the evidence

must be viewed in the light most favorable to the State, and if there is any

direct evidence or any substantial circumstantial evidence reasonably tending

to prove the guilt of the accused, an appellate court must find that the case was

properly submitted to the jury. State v. Kelsey, 331 S.C. 50, 502 S.E.2d 63

(1998). In ruling on a motion for directed verdict, the trial court is concerned

with the existence of evidence, not its weight. Id.

In the instant case, there was substantial circumstantial evidence of

Defendant's guilt. There was testimony that Defendant told police that he had

a fight with Victim on the night of the murder and slashed Victim two or three

times with a knife. There was evidence that Defendant cut his hands on a knife

as a result of stabbing Victim. Further, there was expert testimony that

Defendant's blood matched blood found on Victim's body. We therefore find the

trial court correctly denied Defendant's motion for a directed verdict on the

murder charge.

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E. CLOSING ARGUMENTS

Defendant argues his conviction should be reversed based upon (1) the

solicitor's inflammatory comments during closing arguments, and (2) the

solicitor's comments on Defendant's silence. We disagree.

1. Inflammatory Comments

Defendant contends the cumulative effect of the following comments

prejudiced the defense: First, in commenting on Defendant's initial statement

given to police, the solicitor stated: "Does that look like you cut your right hand

reaching for a cigarette lighter? Does that look like you cut your hand slipping

down across a blade from stabbing someone?" The solicitor later stated: "And

then his mother comes to an officer to get Captain Counts to talk to her son

again. He told a little more." Defendant contends the implication was that he

conspired with his mother in giving a second voluntary statement to the police.

Second, the solicitor stated: "[Defendant] cut his hand, and he is standing over

that victim." Finally, the Solicitor argued:

And look at those wounds. Remember the testimony from Dr.

Sexton. Back and forth. From right to left. To left to right. They

went in both directions. What does that indicate to you, ladies and

gentlemen? It indicates a sawing motion, and the mutilation to the

face. What is more malicious, ladies and gentlemen, than to stab

a man and to saw a man's neck and to cut his face 71 times and

then stand over him and watch him die? That is murder. That is

murder in this state and any state.

A solicitor's closing argument must be carefully tailored so it does not

appeal to the personal biases of the jurors. State v. Linder, 276 S.C. 304, 278

S.E.2d 335 (1981). The argument may not be calculated to arouse the jurors'

passions or prejudices and its content should stay within the record and its

reasonable inferences. Id.; see State v. Huggins, 325 S.C. 103, 481 S.E.2d 114

(1997). However, a solicitor has a right to state his version of the testimony and

to comment on the weight to be given such testimony. State v. Caldwell, 300

S.C. 494, 388 S.E.2d 816 (1990).

In the instant case, the solicitor's comments were based upon evidence in

the record and reasonable inferences therefrom. The solicitor's statement that

Defendant stood over Victim after stabbing him is supported by evidence that

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some of the blood found on Victim's body matched Defendant's blood, and

Officer Counts testimony that he found "uniform drops of blood that were

consistent when falling at a 90 degree angle straight to the abdomen area of the

victim in three specific areas." Further, the evidence revealed Victim's face and

neck had been brutally slashed and cut over 70 times. We therefore affirm the

trial court on this issue.

2. Comments on Silence

Defendant contends the following comments by the solicitor improperly

referred to Defendant's silence: "There's no testimony in this record of any other

knife being used;" "We don't know what clothes he was wearing. There were

only two people in there, ladies and gentlemen, the defendant and Chuck

Griffin." After the first comment, defense counsel objected, and the trial judge

gave the following curative instruction: "To the extent that [the solicitor's]

comments may have implied to you that the defendant has any burden of

coming forward with any evidence, you must disregard those comments,

because he has no such burden." Defense counsel raised no contemporaneous

objection to the solicitor's second comment.4 See State v. Robinson, 238 S.C.

140, 119 S.E.2d 671 (1961)(issue is not preserved for review where there is no

contemporaneous objection to solicitor's comments).

It is impermissible for the prosecution to comment, directly or indirectly,

upon the defendant's failure to testify at trial. Johnson v. State, 325 S.C. 182,

480 S.E.2d 733 (1997)(citing Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229,

14 L. Ed.2d 106 (1965)); Robinson, supra. However, improper comments on a

defendant's failure to testify do not automatically require reversal if they are

not prejudicial to the defendant. Johnson, supra.

In the instant case, it is questionable whether the solicitor's comments

either directly or indirectly referred to Defendant's failure to testify or present

a defense at trial. However, even if a negative inference could have been made

by the jury, the trial judge immediately gave a curative instruction following

defense counsel's objection. Further, the trial court charged the jury, after

closing arguments, that Defendant did not have the burden of proving his

solicitor to things not in the record. Defense counsel renewed this objection at

the end of the solicitor's arguments. However, this objection did not relate to

comments on Defendant's silence.

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innocence, and the jury could not consider Defendant's failure to testify in its

deliberations. We find that any prejudice to Defendant was cured by the trial

court's instructions to the jury. See Johnson, supra (holding that even

assuming arguendo the comment was improper, the trial court's instruction to

the jury that it could not consider Johnson's failure to testify in any way and

could not use it against him was sufficient to cure any potential error); State v.

Plath, 281 S.C. 1, 313 S.E.2d 619 (1984)(holding that solicitor's comment that

defendants were not testifying was cured by solicitor's apology and judge's

charge).

CONCLUSION

Based upon the foregoing, we AFFIRM the trial court on all issues.

FINNEY, C.J., M00RE, WALLER, and BURNETT, concur.

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