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THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State, Respondent,

v.

William Oliver

Dickerson, Appellant.

Appeal From Charleston County

Daniel F. Pieper, Circuit Court Judge

Opinion No. 25164

Heard May 4, 2000 - Filed July 3, 2000

AFFIRMED

Assistant Appellate defender Robert M. Dudek, of

South Carolina Office of Appellate Defense, of

Columbia, for appellant.

.

Attorney General Charles M. Condom Chief Deputy

Attorney General John W. McIntosh, Assistant

Deputy Attorney General Donald J. Zelenka,

Assistant Attorney General G. Robert Deloach, III,

all of Columbia; and, Solicitor David P. Schwacke, of

North Charleston, for respondent.

CHIEF JUSTICE TOAL: William Oliver Dickerson

("defendant") was convicted of murdering Mary Middleton ("victim"). Defendant

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appeals. We affirm.

FACTUAL/PROCEDURAL BACKGROUND

Victim was last seen alive on the evening of May 31, 1996, in her

Charleston home. She was 83 years old and lived by herself. Around 8:00 p.m.

that evening, victim went next door to tell Chrisaundra Lockwood, her

neighbor, that she had a telephone call at her house. Lockwood did not have a

phone of her own so victim allowed her to take calls on her line. On the way

back to her house, victim told Lockwood that she was talking in the backyard

with a man who had gone to school with her son, but who she did not

remember. While in the house, Lockwood observed victim talking in the

backyard to a man in a green hospital shirt, which resembled a doctor's shirt.

When Lockwood left the house after the call, victim was still talking to the man.

At this same time, another one of victim's neighbors, Quinnie Gailliard,

observed victim in her backyard talking with an man she recognized as the

defendant. She even asked her husband at the time if he thought it was

defendant talking to victim. Husband disagreed with her at the time that the

man was defendant. Gailliard testified the man was standing near victim's car

in the backyard, looking at some damage to the vehicle.

Around 8:30 p.m. that evening, a few blocks away from victim's house,

defendant approached Willie Gibbs, a friend defendant had grown up with, and

asked him for a ride into the city. Once in the car, defendant asked Gibbs to

take him to MUSC so he could get a key from his girlfriend, Sandra Jenkins, in

order to change clothes. Gibbs refused and defendant told him that he needed

to change clothes because he and a friend had just killed a man in Mt. Pleasant.

Defendant showed Gibbs that he had turned his pants inside out to cover up the

blood. In the car, Gibbs could see defendant's pants legs were covered in blood.

Defendant and Gibbs got into an argument and defendant got out of the car.

Soon after 11:00 p.m. that night, defendant knocked on Sandra Jenkins'

door. When she let him in the apartment, defendant was wearing a green

hospital shirt and his pants on inside out. Even though the pants were

reversed, Jenkins testified she could tell they were covered in blood. Defendant

told Jenkins that he had been in a truck with a man and his girlfriend and the

man had repeatedly stabbed the girlfriend and he did not know if she was alive

or dead.

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Jenkins was scared and asked defendant to leave. Defendant refused to

leave and emptied his pockets onto her coffee table. In addition to a small

amount of money, defendant also put a broach on the table that "somebody

would wear to church." Defendant then showered and put on some clothes that

belonged to Jenkins' son. He rolled up the green hospital scrub top and bloody

pants and took them with him when he left.

The next morning, victim's neighbors became concerned when she did not

get her morning paper or open up her windows. Eventually one of the

neighbors entered the house. Victim was found dead on the floor with her body

naked from the waist down. The house had been ransacked. The neighbors

called the police who arrived at the scene around 2:30 p.m. on June 1, 1996.

The police found no signs of forced entry into the house. Victim had

suffered 25 separate stab wounds on her head and neck, causing her to bleed

to death. Two of the stab wounds had pierced victim's carotid artery and

jugular vein, both were fatal injuries. The medical examiner estimated the time

of death at around 8:00 p.m. the previous evening.

The medical examiner characterized the victim's death as an "overkill"

murder. According to the medical examiner, "overkill" occurs when the

murderer inflicts injuries much more severe than necessary to cause death. The

medical examiner testified that she had only encountered "overkill" murders as

the result of a lovers' quarrel or when the killer had been high on drugs like

cocaine. She also testified that expert literature on the subject of "overkill"

murders reports that such killings often occur when the killer is high on drugs

or motivated to kill by sexual passion.

Investigators at the crime scene found defendant's fingerprints all over

the inside of victim's house and on her belongings. Fingerprints were on a

magazine in the living room, on one of victim's purses, on victim's dresser, on

a plastic bag, and on a jewelry box in victim's bedroom. The purse and jewelry

box covered with defendant's fingerprints had been emptied onto victim's bed.

The police also found defendant's fingerprints on the car in victim's backyard

where Gailliard had testified that victim and the man were standing shortly

before the murder.

Two days after the murder the police arrested defendant. On the day of

the murder, defendant had been living with his brother in a house located on

the street directly behind victim's house. Defendant had grown up in the

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neighborhood and attended school with victim's son. He also told the police that

he had never been inside victim's house before. When arrested, defendant

voluntarily gave the following sworn statement to the police:

On Friday, which is May 31st, 1996, about 9:00 a.m. I went and

picked up Lee in Ashleyville. We went to Mimi's house in

Shadowmoss to clean the garage. I came back to the area of the

Hess Gas Station on Highway 61 about 5:00 or 6:00 p.m. and

caught a rid [sic] to the North Area.

In the North Area, I got a bag of cocaine and a bag of heroin. I got

high on Arbutus Street in the Height. I caught a ride back into

Charleston and went to the same Hess Station and bought a quart

of Old English Beer. This was about 1:00 a.m. I then walked back

to Armstrong Avenue and crawled through the window of my

brother's house and went to sleep.

I got up around 8:00 or 9:00 a.m. Saturday morning. I caught a

ride to Tony's Auto Repair on Highway 61 to check on my car and

then to Shadowmoss. I then left Shadowmoss, and I went to the

North Area again and got high. I came back to Armstrong Avenue

again about 1:00 a.m. Sunday. Gopher took me to Tony's and then

to Shadowmoss. 1

At trial, defendant did not challenge the voluntariness of the statement,

but moved to redact the references to his drug use. The judge allowed the

entire statement to be read to the jury without any redactions. The jury

convicted defendant and he has appealed. The issue before the Court is:

Did the trial judge err in allowing evidence of defendant's drug use

during the time frame in which the murder took place to be

presented to the jury?

LAW/ANALYSIS

Defendant argues the trial court erred by not redacting, as improper

evidence of prior bad acts, admissions of drug use contained in his statement to

the police. We disagree.

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Defendant's admitted drug use during the time period of the murder is

not improper character evidence because it was not being used to show a

criminal propensity. It was introduced to identify defendant as the murderer.

South Carolina law precludes evidence of a defendant's prior bad acts to prove

the defendant's guilt for the crime charged except to establish: (1) motive; (2)

intent; (3) the absence of mistake or accident; (4) a common scheme or plan; or

(5) the identity of the perpetrator. Rule 404(b), SCRE; see also State v. King,

334 S.C. 504, 514 S.E.2d 578 (1999); State v. Lyle, 125 S.C. 406, 118 S.E. 803

(1923). In the current case, the State argues defendant's confessed cocaine use

during the time in which the murder occurred serves to establish his identity

as the killer because the medical expert testified that cocaine use is one of the

two main causes of "overkill" murders such as victim's. 2

This Court has addressed several times the admissibility of evidence of

a defendant's drug use under State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923)

during the trial of another crime. See State v. King, 334 S.C. 504, 514 S.E.2d

578 (1999); State v. Hough, 325 S.C. 88, 480 S.E.2d 77 (1997); State v. Adams,

322 S.C. 114, 470 S.E.2d 366 (1996); State v. Smith, 309 S.C. 442, 424 S.E.2d

496 (1992); State v. Bolden, 303 S.C. 41, 398 S.E.2d 494 (1990); State v.

Coleman, 301 S.C. 57, 389 S.E.2d 659 (1990). These cases stand for the general

proposition that, in order to be admissible, the drug use must have some

relevant connection to the crime charged. See State v. King, 334 S.C. 504, 514

S.E.2d 578 (1999)("The record must support a logical relevance between the

prior bad act and the crime for which the defendant is accused."). In the current

matter, defendant's drug use is admissible because the testimony of the medical

examiner connects it to the violent "overkill" nature of the murder. Thus it

serves to identify defendant as the "overkill" murderer.

In State v. Smith, 309 S.C. 442, 424 S.E.2d 496 (1992), this Court held the

trial court erred by admitting evidence of the defendant's use of cocaine. At

trial, one of the State's witnesses testified that at some time in the past, he and

the defendant had obtained cocaine by trading stolen goods and that the

defendant had in the past left the witness waiting beside the road while she

went to get cocaine. Id. at 445, 424 S.E.2d at 498. On appeal, the State argued

the defendant's prior cocaine use was relevant to establish a motive for murder.

overkill, your Honor, as far as the multiple stab wounds to the head. That

certainly could be something that would be viewed as while under the influence

of drugs or certainly heroin."

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Id. at 446, 424 S.E.2d at 498. The Court found that "evidence of drug use is

incompetent to establish motive for a crime . . . where the record does not

support any relationship between the crime and the drug use." Id. The Court

indicated that where drug use is unrelated to the crime at issue, evidence of the

drug use should be excluded. Id. at 447, 424 S.E.2d at 498. In noting the time

lapse between the drug use and the murder, the Court stated that "the prior

incident of [defendant] smoking cocaine at an unspecified time was certainly not

contemporaneous with [victim's] murder." Id. The current case is

distinguishable from Smith because defendant admits in his statement to being

high on cocaine during the actual time period in which the murder took place.

In State v. Bolden, 303 S.C. 41, 398 S.E.2d 494 (1990), this Court found

error in admitting evidence that the defendant smoked crack cocaine the night

before he committed an armed robbery. Evidence presented at trial indicated

the defendant had checked into a hotel with a woman and had smoked crack

cocaine while at the hotel. The next morning he robbed the hotel clerk at

gunpoint. The Court held that there was "nothing in the record to indicate a

logical relevance between use of the crack cocaine during the night before the

robbery and the robbery which occurred at 6:10 a.m. the next day." Id. at 43,

398 S.E.2d at 494-95. The current case is distinguishable from Bolden because

the medical expert testified cocaine use was a probable source of the "overkill"

nature of the murder.

In State v. Coleman, 301 S.C. 57, 389 S.E.2d 659 (1990), this Court held

the trial court should not have allowed into evidence that the defendant was a

social user of cocaine. The Court recognized that evidence of prior bad acts

sometimes is admissible, but found that:

While there was testimony that appellant appeared "wired" on the

morning of the murder, there was no evidence to suggest

appellant's condition was the result of cocaine use. Further, there

was nothing in the record to support the inference that the victim

and appellant were involved in a drug transaction. Evidence of

appellant's social use of cocaine was therefore incompetent to

establish . . . a motive for the murder. In fact, the only function of

this evidence was to demonstrate appellant's bad character and

social irresponsibility. The prejudice to appellant as a result of the

admission of this evidence far outweighed its probative value, if

any.

p.372

Id. at 60, 389 S.E.2d at 660-61. Unlike Coleman, identity is at issue in the

current case and defendant's drug use was not used to attack his character, but

to help identify him as the probable killer. Furthermore, the defendant

voluntarily admitted to the police that he was high on drugs during the time

frame in which the murder took place.

In State v. Hough, 325 S.C. 88, 480 S.E.2d 77 (1997), this Court held the

fact that the defendant had previously, on unspecified occasions, done crack

cocaine or previously stolen to obtain money for crack does not demonstrate a

motive for the alleged robbery on trial. On the contrary, such evidence would

only serve to demonstrate that the defendant acted in conformity with a

propensity to commit crimes. Unlike Hough, in this case the State argues

defendant's admitted drug use was contemporaneous with the crime on trial

and the State argues it had an integral role in how the murder was committed.

The testimony of the expert witness supports a logical relevance between

defendant's confessed drug use and the murder for which he is accused. The

expert testified:

There are really two main situations that the literature cites and

that I have also seen in my experience that you find overkill. One

of them is an individual when they know the person, lover's quarrel

. . . And the second situation is when the assailant is high on drugs,

a stimulant such as cocaine. They're just really going at it because

they are under the influence of the drug. They are the two

situations where we see overkill.

By introducing evidence of defendant's cocaine use during the time frame in

which the murder occurred and the testimony of the medical examiner

regarding "overkill" murders, the State can show the defendant would be in the

state of mind to commit an "overkill" murder. In this case, evidence of

defendant's cocaine use would serve to identify him as victim's killer.

The evidence of defendant's cocaine use also meets the standard of clear

and convincing evidence. "The evidence of the prior bad acts must be clear and

convincing to be admissible." State v. Adams, 322 S.C. 114, 470 S.E.2d 366

(1996). Defendant freely admitted his drug use during the time frame of the

murder in his voluntary statement to the police. This evidence satisfies the

clear and convincing standard.

p.373

Furthermore, we find the evidence of defendant's drug use has probative

value that outweighs any prejudicial effect. "[E]ven though the evidence is clear

and convincing and falls within a Lyle exception, it must be excluded if its

probative value is substantially outweighed by the danger of unfair prejudice

to the defendant." See Rule 403, SCRE. Unfair prejudice means an undue

tendency to suggest decision on an improper basis. State v. Alexander, 303 S.C.

377, 401 S.E.2d 146 (1991). "The determination of the prejudicial effect of prior

bad act evidence must be based on the entire record and the result will

generally turn on the facts of each case." State v. Forney, 321 S.C. 353, 358, 468

S.E.2d 641, 644 (1996).

Here, the prior bad act was not introduced to show a propensity for that

type of crime. The State did not argue the evidence that defendant committed

a similar crime in the past meant he would be more likely to commit the same

crime again. See, e.g., State v. Hough, 325 S.C. 88, 480 S.E.2d 77 (1997). As

a result, we believe the trial judge did not abuse his discretion in finding the

probative value of the defendant's prior bad act was not substantially

outweighed by the danger of unfair prejudice.

Although not argued by the State, the evidence of defendant's drug use

in this case would also be admissible under the theory of res gestae. As stated

in State v. Adams, 322 S.C. 114, 122, 470 S.E.2d 366, 371 (1996):

Here . . . the temporal proximity of the cocaine use to the robbery

and murder is so close that one cannot deny that the cocaine use

was so much a part of the "environment" of the crime that omitting

the evidence of it would unnecessarily fragmentize the State's case:

. . . The use of the cocaine here was inextricably intertwined with

the robbery and murder. Under these circumstances, such evidence

was properly admitted as part of the res gestae of the crime.

In addition to finding the drug use evidence admissible under the theory of res

gestae, the Adams court also found the evidence was properly admitted under

Lyle. We believe the evidence of defendant's cocaine use in the current case

would also be admissible on each basis.

CONCLUSION

Based on the foregoing, we AFFIRM defendant's conviction.

Moore, Waller, Burnett and Pleicones, JJ., concur.

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