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State v. Gay1/24/2001
" of alcohol. The redacted portion addressed the victim's relationship with Metz and therefore did not impact the portion the State admitted. Moreover, for the reasons discussed above, we agree with the trial court that the redacted portion would have been improperly admitted as third party guilt evidence.
Accordingly, the trial court's decision to exclude evidence regarding Metz is affirmed.
2. ADMISSIBILITY OF PHOTOGRAPH
Appellant argues that the trial court erroneously admitted a photograph of the victim and her former boyfriend Greg Hiers because the photograph was irrelevant and was only offered to arouse sympathy for the victim.
During Hiers's testimony, the State admitted a photograph of Hiers and the victim taken in 1993. The photograph shows the two sitting on a bench with Hiers's arm around the victim and city lights in the background. The State established, through testimony from Hiers, that the victim was wearing her eyeglasses in the photograph.
Appellant maintains that this Court's decision in State v. Livingston, 327 S.C. 17, 488 S.E.2d 313 (1997), establishes that the admission of the photograph was improper. The Livingston Court reversed a conviction for felony driving under the influence (DUI) of marijuana where the appellant had caused a car accident, killing a woman in the other car. The woman's husband testified at trial, and a photograph of the two was admitted. This Court held that the photograph was irrelevant to the trial since DUI was the only charge at issue. The Court stated that "a photograph should be excluded if it is calculated to arouse the sympathy or prejudice of the jury or is irrelevant or unnecessary to substantiate facts." Id. at 20, 488 S.E.2d at 314 (emphasis added).
The State argues that the photograph was relevant to establish the broken eyeglasses which were found in the tunnel 20 feet away from the body were actually the victim's eyeglasses. We agree. This fact was relevant to establishing that a struggle had occurred in the tunnel. See Rule 401, SCRE (evidence is relevant if it has a direct bearing upon and tends to establish or make more or less probable the matter in controversy). In our opinion, the admission of the photograph was not "calculated to arouse the sympathy or prejudice of the jury;" instead, it was admitted to "substantiate facts" surrounding the circumstances of the murder. Livingston, 327 S.C. at 20, 488 S.E.2d at 314. Moreover, the probative value of the photograph was not outweighed by any unfair prejudicial value. See Rule 403, SCRE (relevant evidence may be excluded if the danger of unfair prejudice substantially outweighs its probative value).
We therefore affirm the trial court's admission of the photograph.
3. SENTENCING UNDER S.C. CODE ANN. § 16-3-20(A)
Appellant argues that the trial court erred in sentencing him to a mandatory life sentence where S.C. Code Ann. § 16-3-20(A) allows a minimum sentence of thirty years imprisonment.
The murder was committed on December 31, 1995. At that time, section 16-3-20(A) read in pertinent part: " person who is convicted of . . . murder must be punished by death or by imprisonment for life . . . ." S.C. Code Ann. § 16-3-20(A) (Supp. 1995). Appellant was sentenced on September 26, 1997. An amendment to section 16-3-20(A) which took effect on January 1, 1996, changed the section to read, in relevant part: " person who is convicted of . . . murder must be punished by death, by imprisonment for life, or by a mandatory minimum term of imprisonment for thirty years." S.C. Code Ann. § 16-3-20(A) (Supp. 1995) (emphasis added); see also 1995 S.C. Acts No. 83, § 10 ("the Act").
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