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THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State, Respondent,

v.

Sterling Barnett Spann, Appellant.

Appeal From York County

John C. Hayes, III, Circuit Court Judge

Opinion No. 24902

Heard September 23, 1998 - Filed February 16, 1999

REVERSED

John H. Blume, of Cornell Law School, of Ithaca,

New York; Diana L. Holt, of Georgia Resource Center, of

Atlanta, Georgia; and Pamela A. Wilkins, of

Columbia, for appellant.

Attorney General Charles M. Condon, Assistant

Deputy Attorney General Donald J. Zelenka, and

Assistant Attorney General Lauri J. Soles, all of

Columbia, for respondent.

Finney, C.J.: This is an appeal from the denial of a new trial

motion based upon after-discovered evidence. We find the trial judge erred in

finding certain expert evidence could have been discovered by the exercise of

due diligence, and reverse and remand for a new trial.

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Appellant was convicted of the 1981 sexual assault, robbery, and

murder of Melva Neill, as well as the burglary of her home, and received a

death sentence. See State v. Spann, 279 S.C. 399, 308 S.E.2d 518 (1983). In

order to prevail in this new trial motion, appellant must show the after-

discovered evidence:

(1) is such that it would probably change the result

if a new trial were granted;

(2) has been discovered since the trial;

(3) could not in the exercise of due diligence have been

discovered prior to the trial;

(4) is material; and

(5) is not merely cumulative or impeaching.

State v. Prince, 316 S.C. 57) 447 S.E.2d 177 (1993).

Appellant presented both expert and lay testimony in support of

his motion. The circuit court judge held the expert evidence failed the due

diligence prong of the test. He denied the new trial motion as to the lay

evidence, holding that some of that evidence was merely impeaching, and

some was simply not credible. We reverse the order as it relates to the expert

testimony and the due diligence issue. Since reversal on this ground entitles

appellant to a new trial, we need not address his remaining issues.

In order to understand the after-discovered evidence, it is

necessary to review certain events which occurred within a twelve mile radius

in York County between July and November 1981. On July 18, 1981, the

body of Mary Ring was discovered in the bathtub of her home. Ms. Ring was

a heavy-set white woman, fifty-seven years old, who had been beaten about

the head, sexually assaulted, and strangled to death. Her nude body was

found in her partially filled tub. Approximately two months later, the nude

body of eighty-one year old Melva Neill was found in the bathtub of her home.

Ms. Neill had been beaten around the face and chest, had been brutally

sexually assaulted, and strangled, her body then placed in the partially filled

tub. Ms. Neill was a heavy-set white woman.

On November 16, 198 1 , the mostly nude body of Bessie Alexander

was found on her dining room floor. Ms. Alexander had been injured on her

face and neck, and there were bruises on other parts of her body. She too had

been sexually assaulted, and then strangled. Ms. Alexander was a heavy-set

white woman who, like Ms. Ring and Ms. Neill, was living alone. Ms.

Alexander's bathtub was inaccessible from her home's interior, but her body

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had been drenched in liquids, including fruit juice.

Ms. Ring's killer was never. found. Appellant was arrested for the

murder of Ms. Neill on September 18, 1981, and subsequently convicted.

Johnny Hullett was convicted of the crimes against Ms. Alexander, committed

approximately two months after appellant was jailed. At the time of the

Alexander murder, investigating officers said in a published newspaper story

that they perceived no connection between the three murders. The local

pathologist who performed two of the three autopsies and was-present at the

third did not recognize any pattern in 1981. The pathologist testified at

appellant's new trial hearing that although he still felt there were significant

differences between the deaths, he acknowledged that, upon reflection, the

similarities were "scary."

At the new trial hearing appellant presented the testimony of

three expert witnesses: a forensic pathologist (Dr. Spitz); a forensic

psychiatrist (Dr. Tanay); and an expert in crime scene analysis and criminal

personality profiling (Mr. Ressler). Dr. Spitz testified that all three women

were strangled in a unique way, a method he had never before observed in

forty-three years of practice. He testified to other factual similarities between

the crimes, and opined that one perpetrator was responsible for all three

murders. Dr. Tanay testified the three murders were committed by a single

individual, a sexual sadistic murderer. He testified to the psychiatric

characteristics of these types of killers, and opined based upon his

examination of appellant that it was "impossible" that appellant had

committed these offenses. Dr. Tanay also testifed that sexual sadistic killers

are almost always psychiatrically disturbed white males. Appellant is a black

man with no history of psychiatric problems; Johnny Hullett is a white male

with a long psychiatric history. Finally, Mr. Ressler profiled the killer of

these three women as a white male in his mid-20's to mid-30's with a history

of mental illness, who was either single or had a dysfunctional marriage, a

person with bizarre fantasies, a history of childhood abuse, and knowledge of

the area. Appellant does not fit this profile.

The circuit court judge found the expert testimony "thought-

provoking" and "intriguing", and specifically found that Mr. Ressler's

testimony "raise[d] a reasonable inference as to [appellant's] innocence." The

judge rejected the testimony of all three experts as grounds for the granting of

a new trial, however, finding the evidence and science upon which their

opinions were based was all in existence at the time of appellant's trial, and

thus could have been discovered by his attorneys with the exercise of due

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diligence. We disagree. In order for the attorneys to have pursued these

types of experts, they would first have needed to recognize the similarities

between the crimes, similarities not apparent at the time even to the experts

(i.e. law enforcement investigators and the pathologist) involved in all three

cases. We hold that the due diligence standard imposed upon trial attorneys

cannot fairly be said to be this high.

We find the circuit court judge committed an error of law, under

the unusual facts of this case, in holding the newly discovered expert evidence

could have been discovered by the exercise of due diligence. State v. Prince,

supra ; State v. Parker, 249 S.C. 139, 153 S.E.2d 183 (1967). Accordingly, we

reverse and remand for a new trial.

REVERSED AND REMANDED.

TOAL, MOORE, WALLER, and BURNETT, JJ., concur.

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