State v. Timothy Ray Jones Jr. ( 2023 )

THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
v.
Timothy Ray Jones Jr., Appellant.
Appellate Case No. 2019-001008
Appeal from Lexington County
Eugene C. Griffith Jr., Circuit Court Judge
Opinion No. 28145
Heard November 9, 2021 – Filed March 29, 2023
AFFIRMED
Chief Appellate Defender Robert Michael Dudek,
Appellate Defender Susan Barber Hackett, Appellate
Defender David Alexander, Appellate Defender Lara
Mary Caudy, and Appellate Defender Taylor Davis
Gilliam, all of Columbia, for Appellant.
Attorney General Alan McCrory Wilson, Deputy Attorney
General Donald J. Zelenka, Senior Assistant Deputy
Attorney General Melody Jane Brown, and Assistant
Attorney General Tommy Evans Jr., all of Columbia, and
Solicitor Samuel R. Hubbard III, of Lexington, for
Respondent.
JUSTICE JAMES: Appellant Timothy Ray Jones Jr. admitted to killing his five
young children and was indicted for five counts of murder. He was convicted by
jury and sentenced to death. In this direct appeal, Jones raises eight issues centering
on three points: juror qualification, requested voir dire and a related jury instruction,
and evidentiary rulings made during the guilt and sentencing phases. We affirm the
juror qualification, voir dire, and jury instruction rulings. We hold the trial court
erred in certain evidentiary rulings; however, we hold the errors were harmless and
affirm Jones's conviction and death sentence.
Background
This background summarizes the details surrounding the murders and Jones's
actions in the succeeding days.
Jones and his wife were divorced and had five children. They had an informal
joint custody agreement, with Jones being the children's primary caretaker.
Throughout the day of August 28, 2014, Jones smoked spice—a form of synthetic
marijuana—at work to cope with the stress of an impending project. Jones left work
in the late afternoon and went to his home in Lexington County. He smoked more
spice before leaving home to pick up his children. Abigail (age 1) and Gabriel
(age 2) were staying at a neighbor's house, and Nahtahn (age 6), Elias (age 7), and
Merah (age 8) were participating in an after-school program. Jones retrieved the
children and purchased takeout from a local restaurant.
After Jones and the children returned home with their supper, Jones
discovered an electrical outlet in the house was not working. He accused Nahtahn
of tampering with the outlet because Nahtahn had an unusual interest in electricity.
To get Nahtahn to admit he played with the outlet, Jones forced Nahtahn to do one
hundred pushups, one hundred situps, and two hundred squats, all in sets of ten.
Nahtahn never admitted to playing with the outlet, but Jones later heard
Nahtahn telling his mother over the phone, "It was an accident, Mommy." Enraged,
Jones sent Nahtahn to bed. Later that night, Jones went to check on Nahtahn. He
shook Nahtahn by the shoulders and again demanded to know what happened to the
outlet. Nahtahn collapsed to the floor. Jones told Elias and Merah he thought
Nahtahn was dead, and Merah confirmed Nahtahn was not breathing.
Jones then searched the internet for a violent male-on-male rape scene from
the movie American History X and began to fear the things he would endure in prison
as a "baby killer." At approximately 2:00 a.m., Jones took Merah with him to
purchase ten packs of cigarettes at a nearby convenience store. Jones claimed that
on the way home, he heard voices in his head telling him to kill his other four
children because they would be better off in Heaven than without parents.
When Jones and Merah returned home, Merah went to bed. Jones smoked
two bowls of spice and walked to the living room where Elias and Merah were
sleeping. Jones wrapped his hands around Elias' neck and strangled him to death
while Elias begged, "Dad, take me with you." Jones then turned toward Merah, who
pleaded, "Daddy, I love you," and strangled her to death. Jones proceeded to strangle
Abigail and Gabriel to death using a belt because his hands were too big to wrap
around their tiny necks.
Jones next tried to kill himself by smoking seven or eight more bowls of spice.
He woke up the following day and became paranoid. Thinking it was a matter of
time before he was arrested, Jones decided he would go to Las Vegas. He wrapped
each of the five bodies in bedsheets and stacked them in the back seat of his Cadillac
Escalade. For the next eight days, Jones kept the bodies in his vehicle and drove
back and forth through South Carolina, Georgia, Alabama, and Mississippi. At
various points along the way, Jones purchased spice, trash bags, chemicals, goggles,
a dust mask, and a jab saw. 1 During the trip, he searched online for applicable
extradition laws and local dumpsites, landfills, and campgrounds.
On September 6—eight days after the murders—Jones placed his children's
bodies in trash bags and dumped them in a rural area near Pine Apple, Alabama.
Later that day, Jones was stopped at a safety checkpoint in Smith County,
Mississippi. Officer Charles Johnson testified that as Jones approached the
checkpoint, he smelled a strong odor of burnt marijuana and garbage coming from
the vehicle. Officer Johnson noticed Jones's eyes were red and glassy and his speech
was slurred. Officer Johnson asked Jones to pull to the side of the road. Jones
consented to a search of his vehicle, which revealed bleach stains on the floorboard;
synthetic marijuana; drug paraphernalia; bleach; muriatic acid; charcoal fluid; and a
scribbled note reading in part, "Head to campground," "Melt bodies," "Sand to dust
or small pieces," and "Day 1: Burn up bodies. Day 2: Sand down bones. Day 3:
Mexican Border☺, dissolve, and discard." Jones was arrested for driving under the
influence, possession of a controlled substance, and possession of drug
paraphernalia. A dispatcher advised the officers of a hit on Jones's vehicle for five
missing children. Jones confessed to the murders soon after his arrest, and on
September 9—eleven days after the murders—Jones led law enforcement to his
children's bodies. The bodies were still in trash bags, and the children were
unrecognizable due to severe decomposition and animal activity.
1
A jab saw is a long, narrow saw typically used to cut building material.
Jones was extradited from Mississippi to South Carolina, where he was
indicted for five counts of murder. The State sought the death penalty, claiming the
following aggravating circumstances applied: (1) the murder of two or more persons
by one act or pursuant to one scheme or course of conduct and (2) the murder of a
child eleven years of age or under. S.C. Code Ann. § 16-3-20(C)(a)(9)-(10) (2015).
Jones entered a plea of not guilty by reason of insanity (NGRI) pursuant to South
Carolina Code subsection 17-24-10(A) (2014). 2 The jury rejected the insanity
defense, returned five guilty verdicts, and recommended a death sentence. The trial
court adopted the jury's recommendation and sentenced Jones to death. Jones raises
the following issues in this direct appeal:
(1) Did the trial court err in qualifying Juror #156?
(2) Did the trial court err in disqualifying Juror #338?
(3) Did the trial court err in denying Jones's request for voir dire and a jury
instruction detailing the consequences of an NGRI verdict?
(4) Did the trial court err in denying Jones's motion to suppress evidence
obtained as a result of the safety checkpoint?
(5) Did the trial court err in excluding Dr. Adriana Flores' expert testimony
during the sentencing phase?
(6) Did the trial court err in limiting testimony pertaining to Jones's future
dangerousness, remorse, and social history during the sentencing phase?
(7) Did the trial court err in excluding Cynthia Turner's pre-recorded testimony
during the sentencing phase?
2
Subsection 17-24-10(A) sets forth the affirmative defense of insanity:
It is an affirmative defense to a prosecution for a crime that, at the time
of the commission of the act constituting the offense, the defendant, as
a result of mental disease or defect, lacked the capacity to distinguish
moral or legal right from moral or legal wrong or to recognize the
particular act charged as morally or legally wrong.
A defendant has the burden of proving insanity by a preponderance of the evidence.
S.C. Code Ann. § 17-24-10(B).
(8) Did the trial court err in admitting autopsy photographs of the child victims
during the sentencing phase?
Discussion
A. Guilt Phase
1. Qualification of Juror #156
The determination of whether a prospective juror is qualified to serve on a
capital trial jury is "within the sole discretion of the trial judge and is not reversible
on appeal unless wholly unsupported by the evidence." State v. Evins, 373 S.C. 404,
418, 645 S.E.2d 904, 911 (2007). When reviewing an alleged error in the
qualification of a juror, we conduct a three-step analysis, giving particular deference
to the trial judge who sees and hears the juror. State v. Green, 301 S.C. 347, 352,
392 S.E.2d 157, 159-60 (1990); Evins, 373 S.C. at 418, 645 S.E.2d at 911. First, we
must find the appellant exhausted all of his peremptory challenges. Second, we must
determine the disputed juror was erroneously qualified. Third, we must conclude
the erroneous qualification deprived the appellant of a fair trial.
We have repeatedly held that to determine whether a juror was erroneously
qualified, the challenged juror's responses must be examined "in light of the entire
voir dire." Evins, 373 S.C. at 418, 645 S.E.2d at 911; Green, 301 S.C. at 354, 392
S.E.2d at 161; State v. Woods, 382 S.C. 153, 159, 676 S.E.2d 128, 131 (2009). A
juror is erroneously qualified when "his or her views on capital punishment would
prevent or substantially impair the performance of his duties as a juror in accordance
with his instructions and his oath." Woods, 382 S.C. at 159, 676 S.E.2d at 131; see
Wainwright v. Witt, 469 U.S. 412, 424 (1985); S.C. Code Ann. § 16-3-20(E). "The
ultimate consideration is that the juror be unbiased, impartial, and able to carry out
the law as explained to him." State v. Sapp, 366 S.C. 283, 291, 621 S.E.2d 883, 887
(2005).
Jones exhausted all ten of his peremptory challenges before Juror #156 was
seated, thus satisfying step one of our analysis. Step two—whether the trial court
erroneously qualified Juror #156—is the crux of Jones's challenge. Jones argues
Juror #156 was erroneously qualified because (1) he was unwilling to consider social
history evidence that did not involve the facts or circumstances surrounding the
murders and (2) he could not consider voting for a life sentence on the basis of
mercy. We disagree.
During voir dire, the trial judge questioned whether Juror #156 could consider
the facts of Jones's case in an unbiased manner. Juror #156 told the trial judge, "I
believe that all the evidence and the facts should be presented and taken into
consideration when you are talking about somebody's life[,] especially what this case
deals with."
Moments later, the trial judge asked Juror #156 to identify himself as one of
three types of capital jurors: Type 1 jurors, who believe the death penalty is
appropriate when a defendant is convicted beyond a reasonable doubt of aggravated
murder; Type 2 jurors, who believe life without parole is appropriate when a
defendant is convicted beyond a reasonable doubt of aggravated murder; and Type
3 jurors, who believe the death penalty or life without parole may be appropriate
when a defendant is convicted beyond a reasonable doubt of aggravated murder.
Juror #156 replied, "I find myself torn between, I see myself as type three but
depending on the facts I can quickly bring myself to type one, depending on the facts
and evidence." Throughout his testimony, Juror #156 continually emphasized he
could meaningfully consider the testimony and evidence presented in light of the
trial court's instructions and the four verdict forms, all while being fair and impartial
to both sides.
When the trial judge questioned Juror #156 about the sentencing phase of trial,
Juror #156 said he understood the death penalty is not automatic and reiterated, "I
believe you have to take [into] consideration all evidence when you are talking about
somebody's life." Juror #156 continued, "If the evidence . . . calls for the death
penalty then I feel like as human beings we have to determine whether . . . to
take . . . that person's choice to live or not." Finally, Juror #156 told the trial judge
he could recommend either the death penalty or life without parole depending on the
facts presented.
During the State's examination, the solicitor asked Juror #156,
So if you were to sit on a jury . . . and [reach] with your colleagues,
your co-jurors, the decision he is guilty of murder, . . . . [w]ould you
already have your mind made up coming in that second phase or would
you want to hear additional stuff of the good and the bad, the
aggravating and the mitigating, before you made that big decision?
Again, Juror #156 reiterated:
Every ounce of information, evidence, facts, mitigation, everything,
needs to be taken into consideration before the final decision . . . . If the
evidence at the end of all of this, mitigation, aggravation, all of that, if
it constitutes for the death penalty then what is right is right, what is
wrong is wrong.
At the conclusion of the State's examination, Juror #156 told the solicitor he had not
made up his mind; instead, he wanted to hear all of the facts before making a final
decision.
During defense counsel's examination, Juror #156 explained he wanted to hear
everything—the defendant's good, bad, past, and future—before coming to a
sentencing decision. Juror #156 stated he understood and respected that jurors have
the right to decline imposing the death penalty solely based on mercy, but he also
expressed his belief that based on the facts presented, jurors should be able to explain
why they made a particular sentencing decision. Defense counsel then asked,
"Somebody might say, I can't explain it to you, this is what I feel is right. . . . Can
you respect a juror's right to say, I don't have a reason, this is my moral judgment,
this is what is right for me, I have got to do it?" Juror #156 replied, "It might sound
harsh when I say this. But if they say that after being presented the facts, I don't
believe they should be here." Soon after, Juror #156 stated,
I think after you are presented the evidence and the facts, you have a
reason of the way you feel and . . . the decision you make. . . . I don't
see how you can be here and be fair to both parties if some[one] says,
well, I feel merciful. What is right is right and what is wrong is wrong.
During the State's final examination, the solicitor questioned whether Juror
#156 could consider mitigating factors before recommending a sentence. Juror #156
responded,
I am thinking, it needs to be within a reason timetable . . . . But when
we are here for . . . the murders of these kids, [it] needs to be involved
around this. . . . The mitigating factors that have something to do with
the case. But also, I mean, when you are talking about somebody's
life, . . . . there is nothing wrong to me with getting all the facts, all the
evidence.
The solicitor then asked whether Juror #156 could consider mitigation evidence
presented by the defense that went "way back." Juror #156, again emphasizing the
facts, stated,
Yes, I don't see why it could do any wrong. But, like I said, for me
personally, you know, what happened twenty years ago when you are
in elementary school doesn't have anything to do with your decision
making now. . . . But like I said, I will be willing to, I mean when you
are talking about somebody's life, like I said, if the Defense wants to
give up their facts, the Prosecutors want[] to give their facts, I am
willing to listen to both before making an ultimate decision.
Finally, the solicitor asked whether the ultimate sentence Juror #156 recommended
"would depend on facts or just feelings." Juror #156 responded, "Facts."
After Juror #156 left the courtroom, Jones moved to excuse him as being
"substantially impaired in his ability to follow the law." Essentially, Jones argued
Juror #156 was (1) mitigation-impaired in that he could only consider mitigation
evidence within a recent timetable and (2) unable to respect the rights of other jurors
to decline imposing the death penalty based on mercy alone. The State responded
that Juror #156 was a "facts guy" who was willing to listen to all mitigation evidence
even though he had a difficult time understanding how distant evidence could relate
to a present crime. Based on the totality of Juror #156's testimony, including him
stating "repeatedly he wanted to hear all the facts . . . before mak[ing] a huge
decision of taking someone's life," the trial court qualified Juror #156. Jones
objected under the Sixth and Fourteenth Amendments, again claiming Juror #156
was mitigation-impaired and unable to consider mercy. We agree with the trial
court's qualification.
Juror #156 repeatedly stressed throughout voir dire the importance of facts.
He never indicated he would automatically impose the death penalty and instead
stated his sentencing recommendation would be wholly determined by the evidence
set forth at trial. When asked questions regarding preconceived notions about the
death penalty, Juror #156 reiterated, "I go back to the evidence." Although Juror
#156 initially expressed doubt about how mitigation evidence from a defendant's
childhood could affect the defendant's present decision-making, he completed his
response with, "but like I said, . . . . I am willing to listen to both [sides] before
making an ultimate decision."
Juror #156 never rejected the possibility of a "mercy sentence." Rather, Juror
#156 stated his belief that even if a mercy sentence was imposed, a juror should be
able to articulate why he or she chose mercy. Jones improperly isolates Juror #156's
statement, "I don't see how you can be here and be fair to both parties if some[one]
says, well, I feel merciful." That statement must be considered in light of Juror
#156's entire voir dire, including his preceding statement, "I think after you are
presented the evidence and the facts, you have a reason of the way you feel
and . . . the decision you make." Together, these responses reflect Juror #156's
desire for jurors to specify the reason for their decisions, but they do not insinuate
Juror #156 was unable to impose a life sentence based on mercy alone. For these
reasons, we affirm the trial court's qualification of Juror #156.
2. Disqualification of Juror #338
"On review, the trial court's disqualification of a prospective juror will not be
disturbed where there is a reasonable basis from which the trial court could have
concluded that the juror would not have been able to faithfully discharge his
responsibilities as a juror under the law." Green, 301 S.C. at 355, 392 S.E.2d at 161;
see State v. Wise, 359 S.C. 14, 23-24, 569 S.E.2d 475, 479 (2004). We must be
particularly deferential to the trial judge who sees and hears the juror, keeping in
mind that in certain situations, the trial judge may disqualify a juror based on a
"definite impression" that he or she would be unable to return a verdict according to
law. Evins, 373 S.C. at 418, 645 S.E.2d at 911; see S.C. Code Ann. § 16-3-20(E).
When defense counsel examined Juror #338, he questioned whether Juror
#338 could fairly consider an NGRI verdict. Particularly, defense counsel inquired,
"If in your mind you thought [expert witnesses] present[ed] enough information to
support that verdict, is that a verdict you could really consider or would you still
have some hesitation because it would kind of be letting someone off still?" Juror
#338 responded, "It would depend on the information provided and the plan of action
after that. So obviously you, claimed insanity, you wouldn't just become part of
society again. What would then be that plan[?] So you have been declared insane
and then what, now what, essentially." Around this time, the State objected and
Juror #338 was briefly excused from the courtroom.
After discussing this line of questioning, the trial judge ruled defense counsel
could ask Juror #338, "Not knowing what would happen, would that cause you to
perhaps not consider [an NGRI] verdict?" Juror #338 answered, "I would need to
know what happened to consider that verdict." Soon after, the State objected again.
The trial judge clarified, "The end result plan is not allowed to be given in a trial.
Okay. It is not. So he is asking you, if that were the case then would that affect your
ability to consider [an NGRI verdict]." The following exchange took place:
Juror #338: Can I ask a question?
The Court: You may.
Juror #338: So in the case of the death penalty, you know death is the
result.
The Court: That is the result.
Juror #338: And if you know the life sentence without parole, you
know that is a result.
The Court: Correct.
Juror #338: But in the case of not guilty by insanity, you don't know
the result.
The Court: Don't know the result.
Juror #338: I don't understand.
The Court: That is just the Court rules. So the result of that you would
always be in the dark with regard to the result of a not guilty by reason
of insanity verdict. Knowing you would always be in the dark about
that, not knowing what would happen, would that cause you to maybe
not consider that verdict as a true verdict. Would you vote for it not
knowing what would happen?
Juror #338: I have no words honestly because without knowing what
the result is how can you choose that option.
The Court: So it sounds like you do have some reservations about
choosing that option, not knowing the result.
Juror #338: It is just not knowing the result. You know the result of
the other options but you don't know the result of that option.
The Court: Okay. She has answered that sufficiently. Move on.
(emphasis added).
At the conclusion of voir dire, the State argued Juror #338 was unqualified
because she would have unanswered questions about the consequences of an NGRI
verdict. In response, defense counsel contended that although Juror #338 expressed
concern and confusion about not knowing the consequences of an NGRI verdict, she
did not express a complete inability to consider that verdict. Ultimately, the trial
judge excused Juror #338, noting: "Since I can't answer your question and that is a
big concern of you being able to go forward and make a decision I am going to
excuse you from jury service . . . ." Defense counsel objected, asserting that "just
having concerns doesn't disqualify somebody." We agree with the trial court's
ruling.
Jones argues Juror #338 should have been qualified because her responses
indicated she could meaningfully consider an NGRI verdict. In Jones's view, Juror
#338 was simply "concern[ed] about not knowing the outcome of such a verdict"
and "confus[ed] as to why jurors were told the outcome of the two potential verdicts
during the penalty phase . . . but not the outcome of a[n] NGRI verdict." Jones
alleges Juror #338 "never indicated she would be unwilling to return a verdict of not
guilty by reason of insanity . . . ."
Much like the juror's responses in Sapp, 366 S.C. at 291-92, 621 S.E.2d at
887, Juror #338's responses reflected her complete inability to render a verdict
according to law. When asked if she could consider an NGRI verdict without
knowing its consequences, Juror #338 unequivocally stated, "I would need to know
what happened to consider that verdict." Thereafter, she expressed confusion as to
why the jury was informed of the consequences of a guilty verdict (i.e., life without
parole or death) but not informed of the consequences of an NGRI verdict. The trial
judge explained he was bound by court rules, which do not permit such an
instruction, and then asked Juror #338 whether she could consider an NGRI verdict
knowing she would be in the dark as to its consequences. Juror #338 again stated
she could not.
As we discuss immediately below, South Carolina law does not permit a juror
to know the consequences of an NGRI verdict. To discharge her responsibilities as
a juror, Juror #338 must have been able to fully consider each of the verdicts before
her and decide upon a verdict in accordance with the law. Because Juror #338
unambiguously stated she could not consider an NGRI verdict unless she was
informed of its consequences and because the trial court is forbidden from informing
the jury of those consequences, we affirm the disqualification of Juror #338.
3. Denial of Jones's Request for Voir Dire and a Jury Instruction
Detailing the Consequences of an NGRI Verdict
The trial court denied Jones's request for voir dire and a jury instruction
detailing the consequences of an NGRI verdict. We affirm the trial court's ruling on
this issue.
In State v. Poindexter, the defendant was charged with murder. 314 S.C. 490,
491, 431 S.E.2d 254, 254 (1993). Potential verdicts in the case were guilty, not
guilty, NGRI, and guilty but mentally ill. The jury found the defendant guilty but
mentally ill. The defendant appealed, arguing the trial court erred in refusing to
inform the jury of the consequences of each verdict either during voir dire, opening
statements, closing arguments, or special instructions. We affirmed the trial court's
ruling, noting:
[V]oir dire is not to be used as a means of pre-educating or
indoctrinating a jury or as a means of impaneling a jury with particular
predispositions. In our view, the discovery and elimination of biased
or prejudiced jurors during voir dire does not require that they first be
informed of the consequences of each potential verdict.
Id. at 492 n.2, 431 S.E.2d at 255 n.2 (citation omitted).
With respect to jury instructions after a jury is seated and sworn, the trial judge
shall instruct the jury on the "current and correct law." State v. Taylor, 356 S.C. 227,
231, 589 S.E.2d 1, 3 (2003). "To warrant reversal, a trial judge's charge must be
both erroneous and prejudicial." Id.On several occasions, we have considered whether trial courts should instruct
jurors on the consequences of an NGRI verdict. We have held that in noncapital
trials, absent agreement by the parties, a consequences instruction is improper unless
it would be curative under the facts of a particular trial or it is required to clarify a
misstatement of law and would not prejudice either party. See State v. Huiett, 271
S.C. 205, 208, 246 S.E.2d 862, 864 (1978). The justification for this rule is that in
a noncapital trial, the jury has no sentencing responsibility and sentencing is
irrelevant to the determination of guilt. Poindexter, 314 S.C. at 492, 431 S.E.2d at
255; see State v. Pulley, 216 S.C. 552, 555, 59 S.E.2d 155, 157 (1950); State v.
Valenti, 265 S.C. 380, 388, 218 S.E.2d 726, 729 (1975); State v. McGee, 268 S.C.
618, 620-21, 235 S.E.2d 715, 716 (1977). In a capital trial, which is uniquely
bifurcated, the same rule applies but for different reasons: (1) NGRI is a verdict
during the guilt phase, not the sentencing phase, and (2) if an NGRI verdict is
rendered, the jury has no sentencing responsibilities. See State v. Bell, 293 S.C. 391,
399, 360 S.E.2d 706, 710 (1987).
We granted Jones's motion to argue against the foregoing precedent.
Although we acknowledge there is a trend toward requiring a consequences
instruction,3 we decline to join that trend. Therefore, we hold the trial court did not
3
Some states require the instruction notwithstanding objection or request. See
Alaska Stat. Ann. § 12.47.040(c) (West 2022); People v. Tally, 7 P.3d 172, 184
(Colo. App. 1999); Roberts v. State, 335 So. 2d 285, 288-89 (Fla. 1976); Ga. Code
Ann. § 17-7-131(b)(3)(A) (West 2022); Kan. Stat. Ann. § 22-3428(f) (West 2022);
Kuk v. State, 392 P.2d 630, 634-35 (Nev. 1964); State v. Blair, 732 A.2d 448, 451
err in denying Jones's request for voir dire and a jury instruction detailing the
consequences of an NGRI verdict.
4. Denial of Jones's Motion to Suppress
Quite by chance, on the same day Jones disposed of the children's bodies, he
was apprehended at a safety checkpoint in Smith County, Mississippi. Deputy
Charles Johnson, one of the two officers conducting the checkpoint, testified that
"because things were quiet" on the night of September 6, 2014, he and Deputy
Robert Thompson asked Smith County Under-Sheriff Marty Patterson for
permission to conduct a safety checkpoint. Sheriff Charlie Crumpton testified safety
checkpoints were intended to check for driver's licenses, seatbelt violations, proper
child restraints, and proof of insurance. Sheriff Crumpton estimated approximately
ten percent of drivers are ticketed or arrested at safety checkpoints. He also testified
the department's verbal policy required that checkpoints be approved by a supervisor
and conducted at a safe location by two or more officers who wear reflective vests
and stop all vehicles. Deputy Johnson testified he and Deputy Thompson followed
the department's policy. Deputy Johnson further testified he was normally equipped
with a portable device to conduct breathalyzer tests on suspected drunk drivers.
Jones moved to suppress all evidence stemming from the Smith County
checkpoint, arguing the checkpoint violated the Fourth Amendment because its
(N.H. 1999); State v. Krol, 344 A.2d 289, 304-05 (N.J. 1975); N.Y. Crim. Proc. Law
§ 300.10(3) (McKinney 2023); Commonwealth v. Mulgrew, 380 A.2d 349, 351 (Pa.
1977); Tenn. Code Ann. § 33-7-303(e) (West 2023); State v. Nuckolls, 273 S.E.2d
87, 90 (W. Va. 1980). One state requires the instruction "unless the defendant
affirmatively objects[.]" Conn. Gen. Stat. Ann. § 54-89a (West 2023). Other states
require the instruction only upon request. Haw. Rev. Stat. Ann. § 704-402(2) (West
2022) (required when requested by the defendant); Georgopulos v. State, 735 N.E.2d
1138, 1143 (Ind. 2000) (same); Commonwealth v. Chappell, 40 N.E.3d 1031, 1042-
43 (Mass. 2015) (same); Erdman v. State, 553 A.2d 244, 249-50 (Md. 1989) (same);
Mo. Ann. Stat. § 552.030(6) (West 2022) (same); State v. Hammonds, 224 S.E.2d
595, 604 (N.C. 1976) (same); State v. Shickles, 760 P.2d 291, 297-98 (Utah 1988)
(same), abrogated on other grounds by State v. Doporto, 935 P.2d 484 (Utah 1997);
People v. Dennis, 215 Cal. Rptr. 750, 753 (Cal. Ct. App. 1985) (requiring an
instruction when requested by the jury or the defendant); State v. Leeming, 612 So.
2d 308, 315 (La. Ct. App. 1992) (same); Ky. RCr 9.55 (requiring an instruction when
requested by either party).
primary purpose was general crime prevention. The trial court denied Jones's
motion, and he contends the denial was improper. We disagree.
"[A]ppellate review of a motion to suppress based on the Fourth Amendment
involves a two-step analysis. This dual inquiry means we review the trial court's
factual findings for any evidentiary support, but the ultimate legal conclusion . . . is
a question of law subject to de novo review." State v. Frasier, 437 S.C. 625, 633-
34, 879 S.E.2d 762, 766 (2022).
The United States Supreme Court has considered the constitutionality of
checkpoints on several occasions. The Supreme Court has unequivocally held
checkpoints constitute Fourth Amendment seizures, even though their purpose is
limited and the time of detention is brief. United States v. Martinez-Fuerte, 428 U.S.
543, 556 (1976).
In Delaware v. Prouse, the Supreme Court considered the constitutionality of
random spot checks designed to verify driver's licenses and vehicle registration. 440
U.S. 648, 650 (1979). The issue in Prouse arose when an officer on routine patrol
decided to randomly stop a vehicle despite observing no traffic or equipment
violations. The officer was not acting under law enforcement guidelines or
procedures pertaining to spot checks. The Supreme Court noted there was no
empirical data suggesting spot checks produced anything more than a marginal
contribution to highway safety. Balancing "the State's interest in discretionary spot
checks" and the "resulting intrusion on the privacy and security of the persons
detained[,]" the Supreme Court held the "incremental contribution to highway
safety" ensured by a random spot check is insufficient to justify a warrantless seizure
under the Fourth Amendment. Id. at 655, 659. The Supreme Court clarified,
however, that its holding did not prohibit states "from developing methods for spot
checks that involve less intrusion or that do not involve the unconstrained exercise
of discretion." Id. at 663. Critically, the Supreme Court suggested "[q]uestioning
of all oncoming traffic at roadblock-type stops is one possible alternative." Id.In Michigan Department of State Police v. Sitz, the Supreme Court considered
the constitutionality of highway sobriety checkpoints. 496 U.S. 444, 447 (1990).
The law enforcement policy in Sitz required all vehicles to be stopped at sobriety
checkpoints; if an officer suspected intoxication, he was required to direct the driver
to pull over and produce a driver's license and vehicle registration. Data showed that
during the challenged checkpoint, two out of 126 drivers (1.6%) were arrested for
drunken driving. The Supreme Court distinguished Prouse, noting that "[u]nlike
Prouse, this case involves neither a complete absence of empirical data nor a
challenge to random highway stops." Id. at 454. Balancing "the State's interest in
preventing drunken driving, the extent to which this system can reasonably be said
to advance that interest, and the degree of intrusion upon individual motorists who
are briefly stopped," the Sitz Court held mandatory sobriety checkpoints survive
Fourth Amendment scrutiny. Id. at 455.
In City of Indianapolis v. Edmond, the Supreme Court addressed "the
constitutionality of a highway checkpoint program whose primary purpose [wa]s the
discovery and interdiction of illegal narcotics." 531 U.S. 32, 34 (2000). The
Supreme Court observed the stops in Sitz and Prouse were concerned with highway
safety, which is a significant Fourth Amendment interest. However, because the
primary purpose of the Edmond program was not to ensure highway safety but
instead "to uncover evidence of ordinary criminal wrongdoing," the Supreme Court
held the program violated the Fourth Amendment. Id. at 41-42. Importantly, the
Supreme Court repeated the suggestion it made in Prouse that "a similar type of
roadblock with the purpose of verifying drivers' licenses and vehicle registrations
would be permissible." Id. at 37-38.
Here, the checkpoint was precisely the type of checkpoint suggested by the
Supreme Court in Prouse and Edmond. The State presented evidence sufficient to
prove the primary purpose of the Smith County checkpoint was highway safety, not
general crime prevention. Four officers testified the checkpoint was intended to
check for driver's licenses, vehicle registrations, and proof of insurance. At no point
did any witness suggest a contrary purpose. As in Sitz, the Smith County Sheriff's
Department had a policy requiring that all vehicles passing through checkpoints be
stopped in a safe, structured manner. Officers did not have unbridled discretion as
was the case in Prouse; instead, stops were brief and minimally intrusive. For these
reasons, we hold the trial court did not err in denying Jones's motion to suppress.
B. Sentencing Phase
1. Exclusion of Dr. Adriana Flores' Expert Testimony
The South Carolina Code provides jurors must consider several mitigating
circumstances in a capital trial, including whether "[t]he murder was committed
while the defendant was under the influence of mental or emotional disturbance";
whether "[t]he capacity of the defendant to appreciate the criminality of his conduct
or to conform his conduct to the requirements of law was substantially impaired";
and "[t]he age or mentality of the defendant at the time of the crime." S.C. Code
Ann. § 16-3-20(C)(b)(2), (6)-(7). Additionally, the Eighth Amendment, which
applies to the states through the Fourteenth Amendment, "requires that the jury [in
a capital case] be able to consider and give effect to all relevant mitigating evidence
offered by [the defendant]." Boyde v. California, 494 U.S. 370, 377-78 (1990); see
Lockett v. Ohio, 438 U.S. 586, 604 (1978). This is particularly due to the "qualitative
difference" between ordinary criminal trials and capital trials—where there is a
"corresponding difference in the need for reliability . . . ." Woodson v. North
Carolina, 428 U.S. 280, 305 (1976).
"Generally, the admission of expert testimony is a matter within the sound
discretion of the trial court." State v. Whaley, 305 S.C. 138, 143, 406 S.E.2d 369,
372 (1991). We will not reverse the trial court's exclusion of expert testimony unless
the exclusion resulted from a prejudicial abuse of discretion. State v. Cope, 405 S.C.
317, 343-44, 748 S.E.2d 194, 208 (2013). "An abuse of discretion occurs when the
conclusions of the trial court either lack evidentiary support or are controlled by an
error of law." State v. Kromah, 401 S.C. 340, 349, 737 S.E.2d 490, 495 (2013)
(quoting State v. Douglas, 369 S.C. 424, 429-30, 632 S.E.2d 845, 848 (2006)).
During the guilt phase of trial, Jones presented testimony from several experts
in an attempt to establish his NGRI defense. Their testimony is summarized below.
In reply, the State called neuropsychologist4 Dr. Kimberly Kruse. Because the
testimony from Jones's insanity witnesses and Dr. Kruse was also relevant to the
foregoing statutory mitigation circumstances, it was incorporated into the sentencing
phase.
Dr. Kruse testified she was asked by Dr. Richard Frierson, the court-appointed
evaluator, to evaluate Jones. Dr. Kruse interviewed Jones on February 19, 2019,
approximately two months before trial. Dr. Kruse testified about several tests she
administered during the evaluation and explained how she scored the raw data. The
tests included the M-FAST, SIMS, SIRS, MMPI, and PAI.5 Dr. Kruse testified her
scoring of the raw data led her to conclude Jones was malingering symptoms of
mental illness. She testified malingering is voluntary, conscious, and self-directed
behavior aimed at exaggerating symptoms or creating symptoms that do not exist.
4
Neuropsychology focuses on understanding the relationship between one's brain
and behavior.
5
These acronyms stand for the Miller Forensic Assessment of Symptoms Test, the
Structured Inventory of Malingered Symptomology, the Structured Interview of
Reported Symptoms, the Minnesota Multiphasic Personality Inventory, and the
Personality Assessment Inventory, respectively.
As noted above, Dr. Kruse's testimony was incorporated into the sentencing
phase. During that phase, Jones provided the State with an affidavit from forensic
psychologist Dr. Adriana Flores. Dr. Flores was new to the case and was prepared
to testify "regarding errors and incorrect conclusions" on the part of Dr. Kruse,
specifically with regard to Dr. Kruse's scoring of the raw data that led her to conclude
Jones was malingering. In her affidavit, Dr. Flores stated she was obligated under
the American Psychological Association's ethical principles to confront Dr. Kruse
about her concerns.
The solicitor lodged three basic objections to Dr. Flores' testimony. First, he
argued Dr. Flores' affidavit and purported testimony were "an attack on Dr. Kruse."
The solicitor argued that allowing Dr. Flores to testify would "permanently
stain . . . [Dr. Kruse's] personal and professional integrity" and intimidate Dr. Kruse
to the point that she would be afraid to testify in response to Dr. Flores' allegations.
Second, the solicitor argued Dr. Flores would improperly pit her testimony against
that of Dr. Kruse. Third, the solicitor argued the State would suffer unfair prejudice
if Dr. Flores were allowed to testify without any notice to the State.
The trial judge noted trial had been underway for six weeks, Dr. Flores was
not on the witness list, and numerous expert witnesses had already testified for both
parties. Defense counsel informed the trial judge that he discovered Dr. Flores'
concerns the preceding weekend when defense witness Dr. Julie Dorney asked Dr.
Flores to review Dr. Kruse's testing methodology and conclusions. Defense counsel
stated that as soon as he became aware of Dr. Flores' interest in testifying, he
informed the State. The trial judge considered these arguments and ruled, "I've got
to draw the line somewhere . . . . We're too far in the game to call new players. I
presume you'll have to proffer her, but I don't think she should be allowed to testify."
The record is not clear on this point, but apparently, the defense had Dr. Kruse's
report and raw data in advance of trial yet did not secure its own expert to review
them.
During her proffer, Dr. Flores testified she was concerned Dr. Kruse had
"omitted a validity section" from one of the tests she conducted, and in turn, Dr.
Flores "had the feeling that something was being hidden from [Dr. Kruse's] report."
The trial judge noted what he termed "improper pitting of witnesses" and warned
defense counsel, "Just be careful not to pit the witnesses. . . . If [Dr. Flores] took the
raw data and scored it herself, that's rescoring the data. But if she's going to testify
to the mistakes Dr. Kruse made, that's pitting witnesses. So characterize your
question properly." Dr. Flores explained in detail several tests that Dr. Kruse
performed on Jones. Dr. Flores explained the M-FAST and SIMS were screening
tests for malingering, and if the scores on those tests are above a certain level, the
SIRS should be administered. Dr. Flores testified she reviewed the raw data and
determined Jones's scores on the M-FAST and SIMS were below the cut-off levels
for malingering; therefore, in Dr. Flores' opinion, Dr. Kruse should not have
administered the SIRS. Dr. Flores testified as to her own scoring of the raw data and
concluded, "Just looking at the data, I don't think there's enough information there
to say that [Jones] was malingering."
In its brief, the State argues the trial court properly excluded Dr. Flores'
testimony. The State repeats its grounds for exclusion as witness intimidation;
"improper pitting of witnesses"; and Rule 403, SCRE (i.e., the probative value of
Dr. Flores' testimony was substantially outweighed by the danger of unfair prejudice
to the State). The State also presents an additional argument that Dr. Flores'
testimony would have amounted to needless presentation of cumulative evidence
under Rule 403.
First, we reject the State's argument Dr. Kruse would have been so intimidated
by Dr. Flores' accusations that she would have been afraid to testify in reply. As the
State notes in its brief, at the time of trial, Dr. Kruse had served as Chief
Neuropsychologist at Prisma Health for eleven years and had been qualified as an
expert in the field of neuropsychology over seventy-five times. There is no evidence
Dr. Kruse would have been afraid to return to the courtroom and testify in reply.
Even if she had been, we question how this would be germane to the admissibility
of Dr. Flores' testimony.
Second, as the trial court concluded and as the proffer transcript bears out, Dr.
Flores' testimony could have been tailored to avoid any purported "improper pitting
of witnesses." The trial court had a firm grasp of the issue and could have resolved
all related objections. We therefore reject the State's argument on this ground.
Citing Rule 403, the State claims Dr. Flores' testimony would have been
needlessly cumulative in light of the testimony of eight defense experts. Rule 403
provides in part that relevant evidence "may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice . . . or by considerations
of . . . needless presentation of cumulative evidence." The State did not argue Dr.
Flores' testimony was needlessly cumulative at trial, and the trial court did not
consider this ground when excluding Dr. Flores' testimony. We review evidentiary
rulings for an abuse of discretion, and on this particular ground, we cannot review a
nonexistent ruling.
The State did, however, raise unfair prejudice at trial. The State claims the
trial court properly excluded the testimony because under Rule 403, the probative
value of Dr. Flores' testimony was substantially outweighed by the danger of unfair
prejudice to the State. Of course, the "unfair prejudice" cited by the State is the
surprise arising from Jones's late disclosure of Dr. Flores. The State claims this
surprise left the State unable to appropriately prepare for and respond to Dr. Flores'
testimony. Jones argues he should have been able to use Dr. Flores' testimony to
argue before the jury that Dr. Kruse's scoring was faulty and perhaps misleading.
Jones, as the proponent of Dr. Flores' testimony, had to establish its probative value;
if the evidence had probative value, the State, as the opponent of the evidence, had
to establish its probative value was substantially outweighed by the danger of unfair
prejudice. We agree with Jones that Dr. Flores' testimony had probative value
because it included her rescoring of Dr. Kruse's raw data in a way that purported to
rebut Dr. Kruse's conclusions of malingering.
Having determined the evidence had probative value, we next review the trial
court's ruling on three fronts. First, was the State prejudiced by the evidence? Here,
the prejudice cited by the State was "surprise." There is no question Dr. Flores'
testimony was prejudicial to the State; after all, most evidence offered by one party
is prejudicial to the other. Second, was this prejudice to the State unfair? Probably
so because Jones obtained Dr. Kruse's report before trial and could have secured a
qualified individual to review the raw data before Dr. Kruse entered the fray in the
eleventh hour. Third, was the probative value of Dr. Flores' testimony substantially
outweighed by the danger of unfair prejudice to the State? This is always a difficult
question. We recognize trial courts necessarily process and rule upon objections in
a rapid-fire setting, and we applaud the trial judge's immediate grasp of the State's
objections to Dr. Flores' testimony. The trial judge quickly moved to the most
pertinent objection: whether Jones presented Dr. Flores' testimony too late in the
game. Implicit in the trial judge's exclusion of Dr. Flores' testimony is that the
probative value of that testimony was substantially outweighed by the danger of
unfair prejudice to the State. It is on this point we conclude the trial court erred.
In State v. Mercer, we considered a similar challenge to the trial court's
exclusion of expert testimony about a capital defendant's brain scan. 381 S.C. 149,
160, 672 S.E.2d 556, 561 (2009). Although a prior witness testified the scan showed
a "questionable abnormality[,]" defense expert Dr. John Steedman planned to
"render a stronger finding of an abnormality." Id. at 160, 672 S.E.2d at 562. The
trial court excluded Dr. Steedman's testimony during the sentencing phase, finding
he was a surprise witness and his testimony was unduly prejudicial. On appeal, we
concluded, "The probative value of Dr. Steedman's excluded testimony was, as a
matter of law, not substantially outweighed by its potential for prejudice, as a result
of the purported late disclosure or otherwise." Id. at 161, 672 S.E.2d at 562. Our
conclusion rested on two grounds. First, the trial court never issued a formal
discovery order. Second, both Dr. Steedman and the substance of his testimony were
disclosed to the State before he was set to testify. Although we found the exclusion
of Dr. Steedman's testimony error, we held the error was harmless beyond a
reasonable doubt because the brain scan was admitted into evidence; another expert
testified as to its abnormality; and Dr. Steedman was allowed to testify "at length"
about the defendant's "cognitive deficiencies" and "learning disorder." Id. at 161-
62, 672 S.E.2d at 562-63.
We emphasize that our holding in Mercer does not stand for the black-letter
proposition that in every criminal or civil case, a trial court's exclusion of tardy
evidence is error under Rule 403. However, in this case, we hold as a matter of law
that the probative value of Dr. Flores' testimony was not substantially outweighed
by the danger of unfair prejudice to the State. The trial court should have allowed
Dr. Flores to testify about her rescoring of Dr. Kruse's raw data.
i. Harmless Error
Having determined the exclusion of Dr. Flores' testimony was error, we must
determine whether the error was harmless. We hold it was harmless. During the
guilt phase, Jones presented seven expert witnesses to testify in support of his NGRI
defense. This testimony was incorporated into the sentencing phase and was before
the jury as mitigation evidence. Additionally, Jones called Dr. Donna Schwartz-
Maddox as a mitigation witness during the sentencing phase. A summary of these
witnesses' testimony is important, and this summary reveals that each defense
witness who gave an opinion as to whether Jones was malingering stated quite
unequivocally he was not.
Richard Frierson, M.D., is a general and forensic psychiatrist and a professor
of psychiatry at the University of South Carolina School of Medicine. The medical
school has a contract with the South Carolina Department of Mental Health (DMH),
so Dr. Frierson regularly performs forensic evaluations at DMH's request. Dr.
Frierson testified he interviewed Jones six times for a total of nineteen hours and
reviewed information from 295 sources. Dr. Frierson opined that at the time of the
murders, Jones was sane, or criminally responsible (i.e., Jones could distinguish
moral right from moral wrong and could recognize his actions as legally and morally
wrong). Dr. Frierson testified that at the time of the murders, Jones had substance-
induced psychotic disorder from smoking spice. Jones knew he had a family history
of schizophrenia and was convinced the drug-induced "anxious thoughts" he was
having were, in fact, schizophrenia. Dr. Frierson testified he has practiced forensic
psychiatry for thirty years; he has examined individuals who were malingering and
was rather surprised the tests he conducted did not indicate Jones was malingering.
Dr. Frierson testified Jones "was trying to convince himself he had schizophrenia so
he could live with what he did."
Julie Dorney, M.D., testified for the defense as an expert in forensic
psychiatry. Dr. Dorney provided exceedingly detailed testimony on the issue of
insanity. She met with Jones eight times before trial—the first time being on the
three-year anniversary of the murders. Dr. Dorney testified that at the time of the
murders, Jones "suffered from psychotic symptoms, specifically delusional thinking
and hallucinations." She testified this was "a major mental illness," and Jones was
insane because he did not recognize the legal wrongfulness of his conduct and did
not have the capacity to distinguish moral right from moral wrong. She further
testified that after Jones killed Nahtahn, he felt the other four children would be
better off in Heaven than without parents.
Dr. Dorney testified she always looks for signs of malingering and saw none
in Jones. She testified that although a staff member from the South Carolina
Department of Corrections (SCDC) questioned whether Jones was malingering, the
hundreds of pages she reviewed did not support a finding of malingering. During
cross-examination, the State questioned Dr. Dorney about Dr. Kruse's testing. Dr.
Dorney stated Jones was not displaying symptoms of schizophrenia at the time of
Dr. Kruse's evaluation, so she questioned why anyone would conduct malingering
tests at that time. Dr. Dorney stated the malingering tests conducted by Dr. Kruse
"are tools that you use if someone is actively reporting symptoms. At the time
[Jones] saw [Dr. Kruse], he didn't have any symptoms." Dr. Dorney characterized
Dr. Kruse's employment of the tests as "a misuse of the tests." Again, she testified
nothing would support the conclusion that Jones was malingering.
April Hames, Ph.D., Jones's marriage therapist, testified for the defense as an
expert in marriage and family therapy. Jones's therapy sessions with Dr. Hames took
place three to four years before the murders. Dr. Hames testified that during Jones's
first session, Jones said he had a "monster" inside of him. Jones repeatedly
referenced the monster in subsequent sessions. Dr. Hames testified Jones came to
her for help with anxiety, depression, and feelings of inferiority. She diagnosed
Jones with recurrent major depressive disorder and unspecified nonpsychotic mental
disorder.
Bhushan Agharkar, M.D., testified for the defense as an expert in adult and
forensic psychiatry. Dr. Agharkar testified Jones suffered from schizophrenia and
minor neurocognitive disorder, the latter of which is commonly referred to as "brain
damage." Dr. Agharkar was very informative and detailed how schizophrenia
manifests itself in those stricken with the disorder. He noted Jones's mother is
schizophrenic, which creates in Jones a "significant genetic loading" for the disorder.
Dr. Agharkar testified he always considered the prospect of malingering but
determined Jones was not malingering based on his history, brain damage, symptom
presentation, and response to medications. Dr. Agharkar also testified that he
requested neuropsychologist Erin Bigler, Ph.D., to review Jones's brain imaging
studies.
Dr. Bigler testified for the defense as an expert in neuropsychology. Dr.
Bigler testified he had particular expertise "in looking at brain imaging methods and
how to use those findings to relate to the behavior of the individual." Evidence
introduced at trial established that Jones was involved in a car accident at age fifteen.
The accident left Jones with a brain injury and visible indentation on his forehead.
After reviewing Jones's brain imaging studies, Dr. Bigler testified he could
immediately tell Jones had "a significant traumatic brain injury and . . . skull defect."
Dr. Bigler testified there is a connection between traumatic brain injury and
schizophrenia. Ultimately, Dr. Bigler recommended Jones's brain imaging studies
be reviewed by a neuroradiologist.
Travis Snyder, M.D., testified for the defense as an expert in neuroradiology.
Dr. Snyder examined MRI scans of Jones's brain and found a large left frontal
depressed skull fracture, indicating Jones sustained a severe traumatic brain injury
at some point in his life. Among other abnormalities, Dr. Snyder found thinning of
the cortex and corpus collosum, which he testified are associated with schizophrenia
and schizoaffective disorder. Dr. Snyder testified frontal lobe injuries—such as the
one Jones sustained—often result in cognitive problems, personality changes, risk
taking, disinhibition, and behavior spontaneity.
Donna Schwartz-Maddox, M.D., testified for the defense as an expert in
forensic psychiatry. Her testimony was very detailed on the subject of schizophrenia
and its causes and treatment. Dr. Schwartz-Maddox testified she first saw Jones in
an SCDC hospital on September 13, 2014, just fifteen days after the murders. She
testified "there was no question in [her] mind" Jones "was clearly psychotic" that
day. She testified Jones "me[t] the diagnostic criteria for schizophrenia." On the
issue of whether Jones's condition was substance induced—in his case, whether it
was caused by smoking spice—Dr. Schwartz-Maddox testified most instances of
substance-induced psychosis resolve within a month when the patient is hospitalized
and properly medicated. She testified Jones remained in the hospital until trial and
was properly medicated but still had symptoms of psychosis. Dr. Schwartz-Maddox
testified that before trial began, Jones was housed at SCDC and was prescribed a
very high dose of Geodon, an antipsychotic drug. However, when trial began, Jones
was moved to the Lexington County Detention Center, and his Geodon dosage was
reduced to a much lower level. According to Dr. Schwartz-Maddox, this caused
Jones's psychotic symptoms to worsen, which lent legitimacy to her conclusion that
he was not malingering. Dr. Schwartz-Maddox testified she had "not seen [Jones]
intentionally fake his symptoms," and if anything, Jones underreported his
symptoms.
Beverly Wood, M.D., Chief of Psychiatry at SCDC, testified for the defense
as an expert in psychiatry. Dr. Wood diagnosed Jones with schizoaffective disorder
and prescribed a medication regimen that included the aforementioned Geodon. Dr.
Wood testified as to Jones's family history of schizophrenia. Jones told Dr. Wood
he had been hearing voices since he was twelve years old. Dr. Wood noted Jones
displayed "flight of ideas," "pressured speech," and disregard for personal hygiene,
all of which indicate mental illness. Dr. Wood testified that in the SCDC setting, a
number of inmates fake mental illness for various reasons, but nothing led her to
believe Jones was malingering.
Jones admits in his brief that he "presented significant evidence to prove he
was not sane at the time he killed his children." According to Jones, Dr. Frierson,
Dr. Dorney, Dr. Hames, Dr. Agharkar, Dr. Schwartz-Maddox, and Dr. Wood
"presented significant evidence" that he was mentally ill and not malingering.
Additionally, the detailed explanations of Jones's brain damage given by Dr. Bigler
and Dr. Snyder were front and center for the jury as mitigation evidence. In light of
the extensive testimony that Jones was not malingering, we hold any error in the trial
court's exclusion of Dr. Flores' testimony was harmless. In fact, the only witness
who suggested Jones was malingering was Dr. Kruse. Dr. Dorney directly
challenged the propriety of Dr. Kruse administering malingering tests because Jones
was not displaying symptoms of schizophrenia at the time. While only Dr. Flores
rescored Dr. Kruse's data, we hold the issue of malingering was exhaustively and
fully addressed.
Although Dr. Flores' testimony would have purportedly cast doubt on Dr.
Kruse's scoring and allegedly flawed approach to concluding Jones was malingering,
Jones presented a wealth of evidence that he had brain damage, was schizophrenic,
and was not malingering. We hold it is not reasonably likely Dr. Flores' testimony
would have affected the jury's decision to impose a death sentence. See Skipper v.
South Carolina, 476 U.S. 1, 8 (1986) (stating that in the sentencing phase of a capital
trial, an error is not harmless if "it appears reasonably likely that the exclusion of
evidence . . . may have affected the jury's decision to impose the death sentence");
Chaffee v. State, 294 S.C. 88, 91, 362 S.E.2d 875, 877 (1987); State v. Key, 256 S.C.
90, 93-94, 180 S.E.2d 888, 890 (1971). Therefore, the trial court's exclusion of Dr.
Flores' testimony was harmless.
2. Limitation of Testimony Pertaining to Jones's Future
Dangerousness, Remorse, and Social History
As noted above, the admission of evidence is left to the sound discretion of
the trial court, and generally, evidentiary rulings will not be reversed on appeal
absent a prejudicial abuse of discretion. Whaley, 305 S.C. at 143, 406 S.E.2d at 372;
Cope, 405 S.C. at 343-44, 748 S.E.2d at 208.
Although the Eighth Amendment recognizes a capital defendant's right to
present mitigation evidence, that right is limited by general evidentiary principles.
See Jurek v. Texas, 428 U.S. 262, 271 (1976); Mercer, 381 S.C. at 161, 672 S.E.2d
at 562. Specifically, to be admissible, mitigation evidence must be relevant. Lockett,
438 U.S. at 604 n.12; Payne v. Tennessee, 501 U.S. 808, 822 (1991); see State v.
Northcutt, 372 S.C. 207, 221, 641 S.E.2d 873, 880 (2007); State v. Dickerson, 395
S.C. 101, 116, 716 S.E.2d 895, 903 (2011). "The meaning of relevance is no
different in the context of mitigating evidence introduced in a capital sentencing
proceeding" than it is in any other trial. McKoy v. North Carolina, 494 U.S. 433,
440 (1990). Evidence is relevant if it has "any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence." Rule 401, SCRE. Evidence
that is not relevant should be excluded. See Rule 402, SCRE. In the context of
capital sentencing, "if the sentencer could reasonably find that [mitigation evidence]
warrants a sentence less than death, . . . . the Eighth Amendment requires that the
jury be able to consider and give effect to that evidence." Tennard v. Dretke, 542
U.S. 274, 285 (2004) (cleaned up) (first quoting McKoy, 494 U.S. at 441; and then
quoting Boyde, 494 U.S. at 377-78).
i. Future Dangerousness
During the sentencing phase, defense counsel proffered the testimony of
Sergeant Barry Sowards. Sergeant Sowards testified about an encounter he had with
Jones while transporting Jones from Mississippi to South Carolina. According to
Sergeant Sowards, when he and the extradition team stopped at a rest stop, the other
team members went inside, and he remained in the vehicle with an automatic weapon
on his lap. Noticing the weapon, Jones told Sergeant Sowards, "You guys don't need
automatic weapons for me. I'm not going to hurt you." Sergeant Sowards replied,
"These weapons are not for you, in particular, [they're] for everyone trying to kill
you."
Defense counsel sought to introduce Sergeant Sowards' response as mitigating
evidence that Jones did not present a risk of future dangerousness. After hearing
Sergeant Sowards' proffered testimony, the trial judge ruled, "You can get Tim's
response in, but Detective Sowards' response, to me, is his personal opinion and not
relevant to Mr. Jones character in any way. I think it goes to Mr. Sowards' training
as an officer, that's his job to protect him, it is Mr. Sowards' character."
We affirm the trial court's ruling that Sergeant Sowards' proffered testimony
was not relevant to Jones's future dangerousness. The testimony reflected Sergeant
Sowards' speculative opinion about how the public perceives Jones. It was not based
on Sergeant Sowards' own perception and had nothing to do with Jones's actual
dangerousness.
ii. Remorse
Before the jury, Sergeant Sowards testified he had been with Jones throughout
the entire trial. Defense counsel classified Sergeant Sowards as Jones's "handler"
and then asked whether he witnessed Jones crying during trial. Sergeant Sowards
replied, "Yes," upon which the following exchange took place:
Defense Counsel: Do you believe that those are crocodile tears?
Deputy Solicitor: Objection, Your Honor, speculation.
The Court: I sustain the objection.
Defense Counsel: When you've seen him crying, do you believe that
his remorse is real?
Deputy Solicitor: Objection, speculation.
The Court: Sustained.
Defense counsel argued Sergeant Sowards' testimony demonstrated Jones's remorse.
At no point, however, did defense counsel proffer Sergeant Sowards' responses to
these questions.
Even assuming Sergeant Sowards would have testified that he thought Jones's
tears were real and Jones's remorse was genuine, we hold any error in excluding this
testimony is harmless. A fleeting mention of Jones's remorse, if admitted, would not
have affected the jury's decision to impose a death sentence. See Skipper, 476 U.S.
at 8; Chaffee, 294 S.C. at 91, 362 S.E.2d at 877; Key, 256 S.C. at 93-94, 180 S.E.2d
at 890.
iii. Social History
When Roberta Thornsberry—Jones's paternal grandmother—testified during
the sentencing phase, defense counsel inquired about her life before Jones was born.
The State objected, upon which the trial court excused the jury. Noting that he
consistently "directed the [d]efense to only ask questions from [Jones's] birth
forward" in the guilt phase, the trial judge asked defense counsel why his ruling
should differ in the sentencing phase. Defense counsel responded by requesting to
proffer Thornsberry's testimony. The trial judge allowed the proffer. Thornsberry's
testimony detailed a family history full of abandonment, incest, abuse, and
exploitation.
Although the trial judge recognized that evidence of Thornsberry's horrific
childhood certainly "impacted [Jones] to some degree," he ruled such evidence
would be irrelevant to Jones's character and would, therefore, confuse the jury.
Defense counsel objected to the ruling, and the trial judge clarified Thornsberry
would be allowed to testify generally about her "childhood from a broken home and
traumatic history" but would not be allowed to testify about intimate details that
were irrelevant to Jones's character.
Anticipating the trial court's ruling would equally apply to the testimony of
Jones's father Timothy Ray Jones Sr. (Senior), defense counsel proffered Senior's
testimony. Senior explained how his childhood was marked by fear, violence,
trauma, mental illness, physical abuse, and substance abuse. At the end of the
proffer, defense counsel again requested the jury be permitted to hear testimony
about events occurring before Jones's birth. The trial court did not allow this
testimony.
Defense counsel also proffered the testimony of Deborah Grey, a social
historian. The disputed portion of Grey's proffer began with Thornsberry's
childhood and continued until Jones's birth; it largely tracked Thornsberry's and
Senior's proffers, albeit with more expansive details. At the conclusion of Grey's
proffer, the trial judge made the following statement:
I want to think of a way and I suggest you all come up with a way for
this lady to say, this lady's summary of Ms. Thornsberry's mental
history, Ms. [Turner] -- Cynthia [Turner's] history . . . -- without going
through every single minute detail. . . . All of the social psychologists
and psychiatrists said the Jones family . . . had a huge bunch of
illnesses, medical, suicides, physical abuse, sexual abuse. I think she
can say things like that without saying the grandma was sexually abused
18 times by the time she was six . . . .
The trial judge later instructed defense counsel to "use a broader brush rather than a
detailed brush" and to "present some mitigating facts without becoming the Dr. Phil
show." The trial judge continually advised defense counsel to give the facts but to
avoid the details of each fact: "Put up some rails on the alley where you don't go in
the gutter. . . . If you get too detailed, I'm going to say move on."
Before the jury, Grey was permitted to testify extensively about Jones's family
history. She testified that both the paternal and maternal sides of Jones's family were
littered with attachment and protection issues. She recounted the rape, torture,
abandonment, trafficking, substance abuse, domestic violence, and mental illness
Jones's caretakers endured and opined this was the family dynamic into which Jones
was born. Nonetheless, Jones argues the trial court erred in forcing him to deliver a
"condensed and sanitized" social history and in repeatedly instructing Grey to "move
on" when her testimony became too detailed. We disagree and, therefore, affirm the
trial court's limitations.
Although events occurring to Thornsberry and Senior before Jones's birth
undoubtedly shaped their parenting methods and family environment, these events
were irrelevant to Jones's character. In our view, Jones disregards the requirement
that evidence of a defendant's social history be relevant and concerned with the
defendant's character or record. See Lockett, 438 U.S. at 604-05, 604 n.12; Eddings
v. Oklahoma, 455 U.S. 104, 113-15 (1982); United States v. Tsarnaev, 142 S. Ct.
1024, 1038 (2022) ("[W]e have expressly held that 'the Eighth Amendment does not
deprive' a sovereign 'of its authority to set reasonable limits upon the evidence a
[capital] defendant can submit, and control the manner in which it is submitted."
(alteration in original) (quoting Oregon v. Guzek, 546 U.S. 517, 526 (2006))). It
would be far too remote to conclude external events impacting Jones's family
members before his birth directly affected Jones's own character. If anything, these
events affected the character of Jones's family members—an issue that was not
before the jury during sentencing.
Even assuming the trial court erred by limiting the testimony of Thornsberry
and Senior, any error is harmless. Grey was permitted to testify considerably about
Jones's family history, including all relevant details. For these reasons, we affirm
the trial court's limitations.
3. Exclusion of Cynthia Turner's Pre-Recorded Testimony
During the sentencing phase, defense counsel sought to publish the pre-
recorded testimony of Jones's mother—Cynthia Turner—as mitigation evidence of
Jones's state of mind and mental illness. In the recording, Turner was unable to
recall basic facts about her personal history and appeared detached from reality.
When asked about her father, mother, and siblings, Turner said she did not know
them well despite spending the majority of her childhood with them. Turner also
claimed she did not know Senior, even though she dated and was married to him for
five years. Turner was unsure why Senior was awarded primary custody of Jones
after their divorce, and she did not remember giving birth to one of her other
children. When asked how she felt about Jones, Turner replied, "He's a nice kid, but
I don't understand how he did that about his kids."
Noting numerous experts had already testified about Turner's mental illness,
the trial judge questioned the relevance of her testimony. Defense counsel
responded, "It's his mother, his mother who is diagnosed with schizophrenia, in
which a number of other people have diagnosed Tim with, and what condition Tim
could end up in. . . . It's his future." The solicitor countered that Turner's testimony
was prejudicial because it was unclear whether her exhibited symptoms were signs
of schizophrenia, manifestations of another disorder, or medicinal side effects. The
following exchange then took place:
Defense Counsel: Mitigation is any reason not to give death.
The fact that his own mother couldn't come to his trial is likely a
reason for a Juror not to give death.
The Court: How are you prevented from arguing that right
now?
Defense Counsel: I'm not.
....
The Court: All right. I'm not letting it in then. You talked me in to it.
Defense Counsel: We object under State v. Mercer and that relevant
mitigation should be admitted and 403 shouldn't be used to exclude
mitigation evidence.
The Court: It's a broader 403. That video was done late, it was done
during jury selection. There's too many things that are unknown with
her medical condition. And the State has not challenged whatsoever
that she has severe mental challenges, issues, is institutionalized. All
that's free game for you to argue that she couldn't come for those
reasons. She was not allowed to come. So you are certainly welcome
to argue that. I think it's inflammatory and I don't think that it's a proper
video to be introduced in this phase of the case. So I'm not going to
allow it.
We affirm the trial court's ruling that Turner's testimony had no probative
value and risked confusing the issue to be decided—Jones's mental state—with the
issue that was demonstrated by the testimony—Turner's own mental state. Jones
claims Weik v. State, 409 S.C. 214, 761 S.E.2d 757 (2014), supports the recording's
admission because Turner's "bizarre behavior . . . would have corroborated the
defense mental health experts' description of schizophrenia." However, Jones's
reliance on Weik is misplaced. In Weik, defense counsel conducted numerous pre-
trial interviews with the defendant's family members, coworkers, and acquaintances,
all of whom "revealed [his] childhood was traumatic, filled with emotional and
physical abuse at the hands of his psychotic father[.]" Id. at 217, 761 S.E.2d at 758.
Despite abundant evidence, defense counsel presented only one mitigation
witness—the defendant's sister—who provided "extremely limited testimony, which
was general, vague, and offered no detail or insight into the degree of abuse [the
defendant] suffered as a child." Id. at 235, 761 S.E.2d at 768. We remanded the
case for a new sentencing trial because the evidence presented by defense counsel
failed to sufficiently reveal the defendant's "abusive and dysfunctional childhood"
as well as his "genetic predisposition to schizophrenia" and hallucinogenic
symptoms at the time of the crime. Id. at 238-39, 761 S.E.2d at 769-70.
Unlike in Weik, where defense counsel presented minimal testimony about the
defendant's abusive family background, Jones's extensive social history was elicited
through the testimony of Thornsberry, Senior, and Grey. While the social history
testimony in Weik spanned merely three pages of the trial transcript, the testimony
here was set forth in more than one hundred pages in the sentencing phase alone.
Jones argues that at the very least, Turner's testimony bore on mitigating factors
related to his mental state; however, Turner's testimony was relevant to her mental
state, not Jones's. Neither Turner's diagnosis nor the hereditary nature of
schizophrenia was disputed. We therefore affirm the trial court's exclusion.
4. Admission of Autopsy Photographs
During the sentencing phase, the trial court admitted—over Jones's
objection—ten autopsy photographs (two per child). The issue before us is whether
the probative value, if any, of the photographs was substantially outweighed by the
danger of unfair prejudice under Rule 403, SCRE.
Jones argued at trial that the photographs were inadmissible under Rules 401
and 403, SCRE, because the State had already proved the existence of statutory
aggravating circumstances and the "absolutely horrific" and "nightmarish"
photographs would do nothing more than "arise sympathy or prejudice." The
solicitor responded that the photographs "show[] [Jones's] character, the work of his
hands" because they "depict the bodies of the victims in the same condition he left
them in -- or condition he left them to become in." The solicitor argued the
photographs were relevant to show how Jones bagged up his children's bodies, drove
them around for more than a week, and deliberately left them in the hot sun to
accelerate decomposition.
After reviewing cases cited by both parties, the trial judge allowed the State
to admit two autopsy photographs per child, citing several cases along with Rules
401, 402, and 403, SCRE. The trial judge determined the photographs, "even though
very unpleasant," were probative of Jones's "conduct of packing the children in the
bags and contorting the bodies in different fashions, putting them out there in the
woods." Over Jones's objection, the photographs were admitted during the
testimony of expert witness Dr. Janice Ross—the forensic pathologist who
performed the autopsies and took the disputed photographs. Dr. Ross testified
during the guilt phase and was recalled by the State during the sentencing phase for
the purpose of having the photographs admitted into evidence.
Although Dr. Ross described what was depicted in each photograph, the
solicitor did not publish the photographs in open court—out of what the solicitor
stated was his "respect for the jury." Dr. Ross testified Elias' cause of death was
asphyxia due to strangulation; Gabriel's cause of death was homicidal violence with
probable strangulation; and Merah's, Abigail's, and Nahtahn's causes of death were
homicidal violence. Dr. Ross testified there was a wound to Nahtahn's knee—which
was depicted in a photograph published during the guilt phase—that appeared to be
caused by a sharp instrument "like a saw or a knife."
After Dr. Ross's testimony, defense counsel noted, "[The State] needed the
photographs to show Dr. Ross in testimony and they were not used for that purpose,
which enhances the fact that they're just being used to create an emotional impact."
Defense counsel then moved to have the photographs kept in the courtroom during
jury deliberations so that a record could be made of any emotional impact the
photographs evoked if a juror asked to see them. The trial court denied this request,
and the photographs went into the jury room along with other trial exhibits.
"The determination of the relevancy and materiality of a photograph is left to
the sound discretion of the trial judge" whose "rulings will not be disturbed absent a
showing of probable prejudice." State v. Kornahrens, 290 S.C. 281, 288, 350 S.E.2d
180, 185 (1986); see Evins, 373 S.C. at 421, 645 S.E.2d at 912. In the sentencing
phase of a capital trial, photographs may be offered as extenuating, mitigating, or
aggravating evidence to "direct the jury's attention to the specific circumstances of
the crime and the characteristics of the offender." State v. Haselden, 353 S.C. 190,
199, 577 S.E.2d 445, 450 (2003) (quoting State v. Matthews, 296 S.C. 379, 390, 373
S.E.2d 587, 594 (1988)).
"[I]t is well-established that photographs calculated to arouse the sympathies
and prejudices of the jury are to be excluded if they are irrelevant or unnecessary to
the issues at trial." State v. Middleton, 288 S.C. 21, 24, 339 S.E.2d 692, 693 (1986);
see Rule 401, SCRE; Rule 403, SCRE. Photographs are relevant if they "depict the
bodies of the murder victims in substantially the same condition in which the
defendant left them." Kornahrens, 290 S.C. at 289, 350 S.E.2d at 185. Even if
relevant, photographs are unfairly prejudicial if they "create a 'tendency to suggest a
decision on an improper basis, commonly, though not necessarily, an emotional
one.'" State v. Franklin, 318 S.C. 47, 55, 456 S.E.2d 357, 361 (1995) (quoting State
v. Alexander, 303 S.C. 377, 382, 401 S.E.2d 146, 149 (1991)); see S.C. Code Ann.
§ 16-3-25(C)(1) (2015).
In several capital trials, we have considered the admissibility of autopsy
photographs.6 We explained in Franklin, "The criteria is not . . . that photographs
6
Notable cases outside of those discussed in this subsection include State v. Patrick,
289 S.C. 301, 308-09, 345 S.E.2d 481, 485 (1986) (holding an autopsy photograph
was "not substantially necessary" and was "highly prejudicial" because it showed
the victim lying on an autopsy table with a "considerable amount of blood" and
without any depiction of the crime scene or post-mortem abuse), overruled on other
grounds by Brightman v. State, 336 S.C. 348, 520 S.E.2d 614 (1999); State v.
Rosemond, 335 S.C. 593, 597, 518 S.E.2d 588, 590 (1999) (holding the probative
become inadmissible because they graphically depict a gruesome scene. Rather, the
question is whether the photographs are unfairly prejudicial so as to outweigh the
probative value." 318 S.C. at 55, 456 S.E.2d at 361. We noted the autopsy
photographs in that case were highly relevant to the issue of physical torture
delivered upon the victim by the defendant. In Middleton, we considered a challenge
to the trial court's admission of photographs showing the victim's scalp pulled away
from her skull and her surgically opened vaginal cavity filled with semen. 288 S.C.
at 24, 339 S.E.2d at 693. Because it was clear the facts were not in dispute and
because the testimony of a forensic pathologist "negated any arguable evidentiary
value of the photographs[,]" we held the "prejudice created by the photographs
clearly outweighed any evidentiary value." Id. at 23-24, 339 S.E.2d at 693.
Nine months after deciding Middleton, we decided Kornahrens, 290 S.C. at
281, 350 S.E.2d at 180. In Kornahrens, the trial court admitted several photographs
during sentencing that depicted the autopsies of two murder victims. Photographs
of one victim showed her lying on an autopsy table in the same condition her body
was found, and photographs of the other victim showed knife wounds to his chest,
back, and thigh. We concluded the photographs were properly admitted because
"while not pleasant to look at, they showed what the defendant himself did to the
bodies," and the bodies were not "altered by decomposition or by any other outside
force." Id. at 289, 350 S.E.2d at 186 (cleaned up).
More recently, we considered a challenge to the trial court's admission of
several autopsy photographs during sentencing, each "graphically depict[ing] the
injuries of the victim[.]" State v. Torres, 390 S.C. 618, 624, 703 S.E.2d 226, 229
(2010). We acknowledged "some of the photographs were close-ups of the victims'
injuries and were graphic in nature," but we concluded the "purpose of the close-ups
was to help identify the nature of the particular injury" and "show what the defendant
did to the victims, which goes straight to circumstances of the crime." Id. (cleaned
up). We upheld the trial court's admission because although the crime was
value of crime scene and autopsy photographs outweighed any prejudicial effect
because they "served to corroborate the pathologist's testimony describing the
position of the victims as they were dying and the wounds each received"); and State
v. Johnson, 338 S.C. 114, 129-30, 525 S.E.2d 519, 526-27 (2000) (holding autopsy
photographs that depicted the victim's nearly severed shoulder and her head wound
were admissible because although "difficult to look at, they nevertheless revealed
the true nature of the attack and would have permitted the jury to comprehend the
precise damage inflicted by the [murder weapon]").
"particularly horrific[,] . . . the admission of the photographs did not unduly
prejudice the jury." Id. Despite affirming the trial court's admission, we explained
the photographs were "at the outer limits of what our law permits a jury to consider."
Id. In light of our growing concern in the admission of autopsy photographs, we
"strongly encourage[d] all solicitors to refrain from pushing the envelope on
admissibility in order to gain a victory which, in all likelihood, was already assured
because of other substantial evidence in the case." Id.After Torres, we again considered the admissibility of horrendous autopsy
photographs, albeit in a noncapital trial. See State v. Collins, 409 S.C. 524, 531-34,
763 S.E.2d 22, 26-28 (2014). In Collins, the defendant was indicted for several
crimes arising from a ten-year-old boy being mauled to death by the defendant's
unrestrained dogs. At trial, the State offered into evidence a group of pre-autopsy
photographs taken by a forensic pathologist that demonstrated "the dangerous
propensities of the dogs, the manner and extent of the attack, and [the defendant's]
criminal negligence[.]" Id. at 532, 763 S.E.2d at 27. The "nature and extent" of the
victim's injuries were in dispute, and the photographs "show[ed] the boy's exposed
jawbone and upper arm bone[] and the areas where his chest and face had been
partially eaten during the dog attack." Id. at 532, 533 n.3, 763 S.E.2d at 27 & n.3.
The trial court admitted the photographs, and the court of appeals reversed, holding
the probative value of the "disturbing" and "gruesome" photographs was
substantially outweighed by the danger of unfair prejudice. State v. Collins, 398
S.C. 197, 202, 208-10, 727 S.E.2d 751, 754, 757-58 (Ct. App. 2012).
In Collins, we acknowledged the photographs were graphic, but we concluded
they were "highly probative, corroborative, and material in establishing the elements
of the offenses charged; their probative value outweighed their potential prejudice;
and the court of appeals should not have invaded the trial court's discretion in
admitting this crucial evidence based on its emotional reaction to the subject matter
presented." 409 S.C. at 535, 763 S.E.2d at 28 (cleaned up). We observed
photographs should not be excluded just because they are gruesome. Id. at 535-36,
763 S.E.2d at 28.
As we noted in Kornahrens, "The purpose of the bifurcated proceeding in a
capital case is to permit the introduction of evidence in the sentencing proceeding
which ordinarily would be inadmissible in the guilt phase." 290 S.C. at 289, 350
S.E.2d at 185. With respect to photographs, we stated, "In determining whether to
recommend a sentence of death, the jury may be permitted to see photographs which
depict the bodies of the murder victims in substantially the same condition in which
the defendant left them." Id. We also noted that even though the trial court must
balance the probative value of evidence against the danger of unfair prejudice, the
scope of the probative value of evidence in the sentencing phase is "much broader"
than in the guilt phase. Id. at 289, 350 S.E.2d at 186. An obvious takeaway from
Kornahrens is that the evidence must still have at least some probative value for it
to enjoy that "much broader" scope.
Unlike the photographs admitted in Kornahrens, Torres, and Collins, the
autopsy photographs in this case were of no probative value. The photographs here
do not depict the children's bodies in substantially the same condition in which Jones
left them. The photographs depict the children's bodies in the advanced stages of
decomposition occurring in the three days between the time Jones dumped the bodies
to the time law enforcement discovered them. The bodies were so severely
decomposed that with the exception of one photograph, neither strangulation nor
ligature marks were visible to corroborate Dr. Ross's testimony. The State does not
claim Jones altered his children's faces or limbs, yet several photographs showed
extensive tissue loss appearing as though an animal had eaten their faces and limbs.
Even assuming the photographs had some probative value because they
purport to show Jones's character through the method and manner in which he
bagged and disposed of the bodies, we hold as a matter of law that under Rule 403,
such probative value—even in its "much broader" form as noted in Kornahrens—
was substantially outweighed by the danger of unfair prejudice to Jones. The
photographs show the children's bodies in a state of complete discoloration; they
were engulfed in maggots and contorted beyond recognition. Some of the children's
faces were missing, a number of their limbs had been eaten by animals, and one
child's head had decomposed to skeletal remains.
The solicitor's statement that he was not going to publish the ten admitted
photographs in open court "out of respect for the jury" is telling on the issue of
whether any probative value was substantially outweighed by the danger of unfair
prejudice. Also, when Jones offered the photographs into evidence during the guilt
phase, the solicitor, after first objecting on relevance grounds, argued the
photographs should be excluded under Rule 403:
The photographs are far more prejudicial than probative. I think what
Jones is trying to do is basically use shock value to diminish the shock
should there be a second half of this case. In the second phase of this
case, we get to show the characteristics of the crime, the defendant, how
the victims were found. The photographs become probative at that
point, relevant at that point. Right now, they're not.
(emphasis added) (cleaned up). The solicitor's words "to diminish the shock" are
even more indicative that the probative value of the photographs was substantially
outweighed by the danger of unfair prejudice. We observed in Torres that
"[p]hotographs calculated to arouse the sympathy or prejudice of the jury should be
excluded if they are irrelevant or not necessary to substantiate material facts or
conditions." 390 S.C. at 623, 703 S.E.2d at 228.
Based on the record before us, we hold the photographs had no probative
value. We hold that even if the photographs had probative value, the broader
probative value implicated by Kornahrens was substantially outweighed by the
danger of unfair prejudice to Jones.
i. Harmless Error
Having determined the autopsy photographs were admitted in error, we must
determine whether the error was harmless. There is no question that the murders
perpetrated by Jones were horrific—perhaps the most horrific imaginable. After
running six-year-old Nahtahn to death, Jones strangled seven-year-old Elias to death
while Elias begged Jones not to kill him. Jones strangled eight-year-old Merah to
death while she pleaded, "Daddy, I love you." Jones strangled one-year-old Abigail
and two-year-old Gabriel to death with a belt because their necks were too small for
Jones to strangle with his bare hands. Jones then packed his children's bodies in
plastic bags, stacked them in the back seat of his vehicle, and drove across several
states, all while trying to decide what to do. As he drove, Jones bought spice, trash
bags, chemicals, goggles, a dust mask, and a jab saw. He searched the internet for
applicable extradition laws and local dumpsites, landfills, and campgrounds. He
wrote a note reading in part, "Melt bodies," "Sand to dust or small pieces," and "Day
1: Burn up bodies. Day 2: Sand down bones. Day 3: Mexican Border☺, dissolve,
and discard." His expression of happiness about escaping to Mexico is particularly
compelling. While the autopsy photographs should not have been admitted, we
properly take note of Jones's calculated efforts to dispose of his children's bodies in
a remote area to evade responsibility for what he had done.
Were the autopsy photographs horrific? Absolutely. Were they inadmissible
under Rule 403? Yes, for the reasons we have explained. However, after weighing
the horrific facts of this case against the improper admission of the photographs, we
hold the photographs did not contribute to the jury's sentence of death. See Skipper,
476 U.S. at 8; Chaffee, 294 S.C. at 91, 362 S.E.2d at 877; Key, 256 S.C. at 93-94,
180 S.E.2d at 890.
C. Proportionality Review
Pursuant to South Carolina Code section 16-3-25, we must conduct a
proportionality review of Jones's death sentence. We find the sentence was not the
result of passion, prejudice, or any other arbitrary factor and was instead supported
by the aggravating factors alleged by the State, as set forth in subsections 16-3-
20(C)(a)(9) (murder of two or more persons by one act or pursuant to one scheme or
course of conduct) and (10) (murder of a child eleven years of age or younger). With
the possible exception of State v. Wilson, 306 S.C. 498, 413 S.E.2d 19 (1992) in
which the defendant was sentenced to death for murdering two eight-year-old girls
on an elementary school campus, there is not a comparable case to the one before
us. Frankly, the horrific murders perpetrated by Jones are incapable of comparison
in this state. Cf. Kornahrens, 290 S.C. at 283-84, 290-91, 350 S.E.2d at 182-83,
186-87; Moore v. Stirling, 436 S.C. 207, 229, 871 S.E.2d 423, 435 (2022); State v.
Bell, 302 S.C. 18, 21-22, 39-40, 393 S.E.2d 364, 366-67, 376 (1990); State v.
Passaro, 350 S.C. 499, 501-02, 508-10, 567 S.E.2d 862-64, 867-68 (2002).
Therefore, Jones's death sentence is neither excessive nor disproportionate.
Conclusion
For the foregoing reasons, we affirm Jones's convictions and death sentence.
AFFIRMED.
BEATTY, C.J., KITTREDGE and HEARN, JJ., concur. FEW, J., concurring
in a separate opinion.
JUSTICE FEW: I concur in the majority opinion in all respects except as to
subsection B.4. I would hold the trial court acted within its discretion to admit two
autopsy photographs of the badly decomposed body of each child, and thus, the
admission of the photographs was not error under Rule 403 of the South Carolina
Rules of Evidence. The majority is correct the photographs are gruesome, and were
certain to cause a forceful, emotional reaction from the jury. Like the other Justices,
I have seen—and sat with—these photographs. It is not possible to describe them.
They are literally unbearable. A death penalty trial, however—like a man's heinous
murder of his own children—is itself a gruesome business, and even without
photographs such as these, evidence of what this man did to his children certainly
caused a forceful, emotional reaction from the jury. There is hardly anything
"unfair" in allowing the jury to see—not just hear—what this man did to the bodies
of his children. It is simply not possible to sanitize the murder of these five innocent
children, nor for that matter the trial of the man who did it, nor certainly the evidence
on which the State seeks to convince the jury to kill that man through the death
penalty. Timothy Ray Jones Jr. took a long series of planned and deliberate actions,
first to murder his own children, then to conceal his vicious crimes, and finally to
leave the bodies of his own children for the purpose of having them deteriorate to
the condition shown in the photographs. His crimes were unspeakable; his efforts
to get away with his crimes were unconscionable; he is despicable. The photographs
show all that, and thus, the photographs have probative value. In my view, the trial
court's determination that the probative value of the photographs was not
substantially outweighed by the danger of unfair prejudice was a reasonable decision
and within the trial court's discretion. I would find no error.