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Friday, August 20, 2010

Passion and Prejudice: Divided S.C. Supreme Court Allows Dramatic Funeral Footage in Sentencing Phase

Members of the Bixby family in Abbeville County threatened violence when South Carolina officials informed them of plans to "take advantage of a right of way ... across the Bixbys' property" to expand South Carolina Route 72.  Steven V. Bixby, son of the property owners, informed one official "that he was from New Hampshire and he said that, you know, their motto was something like, you know, if I can't --- I'd rather be dead if I can't be free, something like that."  Days later, he said he would "blow their mother f****** heads off if they step one step onto [his] parent's property" (asterisks in original).  He made good on his threats the next day, killing two law officers on his parents' land, and was convicted of murder and sentenced to death.  State v. Bixby, --- S.E.2d ----, 2010 WL 3219290, at *1-*3 (S.C. Aug. 16, 2010) [pin cites refer to Westlaw pagination]; see also Bob Moser, "The Abbeville Horror" (Southern Poverty Law Center "Intelligence Report," Spring 2004).

The appeal raised several interesting issues, including questions concerning the proper scope of voir dire in a capital case, the relevance of proffered evidence excluded by the trial judge concerning the family's prior experience with property disputes, and how ignorance of the proper location of South Carolina records concerning highway rights of way can disqualify a witness from testifying.  I recommend the entire opinion.  This post, however, concerns only the admission during the penalty phase of a videorecording of the funeral of a victim.

After the jury convicted Bixby of the murders, the court held a penalty phase proceeding to determine whether to impose the death penalty.  During the hearing, "it admitted a seven minute video showing portions of [one victim's] funeral."

The video at issue here contained footage that showed the folding of an American flag over the closed coffin; the playing of "Taps" on a trumpet; footage of mourners; and a recording of a fictional 911 call in which Deputy Wilson is given permission to "return home," a tradition at law enforcement funerals.  Over Appellant's objection, the trial judge concluded that the video was admissible because it went to the question of the victim's uniqueness, showed the harm committed by Appellant, and showed the impact of the victim's death on his family and the community.

Bixby, at *13.  The Supreme Court of South Carolina affirmed the conviction, voting 3-2 that the evidence was properly admitted.  Bixby offered two reasons that the evidence should have been rejected.  First, S.C. Stat. 16-3-25(C)(1) instructs the supreme court to consider whether a "sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor."  Second, S.C. Rule of Evidence 403 (which is identical to Fed. R. Evid. 403) provides that "relevant ... evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."

The majority affirmed the death sentence with the following explanation:

Turning to Appellant's argument, ... this Court vacated [a different murderer's] death sentence holding that a staged funeral procession in which the solicitor draped a large, black shroud over a baby crib and dramatically wheeled it out of the courtroom introduced an arbitrary factor into the sentencing phase of the defendant's trial.  The instant matter is distinguishable from [the crib case] for one major reason: the video showed events that actually took place, whereas the [crib] funeral was a staged dramatization. ... A staged funeral procession in which a solicitor dramatically and in person drapes a shroud over a baby's crib has more of a tendency to elicit passion and prejudice than a videotape showing excerpts from a victim's actual funeral.

Turning to the State's argument, a State may conclude that victim impact evidence "is relevant to the jury's decision as to whether or not the death penalty should be imposed."  Payne, 501 U.S. at 827.  Victim impact evidence demonstrates "the loss to the victim's family and to society which has resulted from the [victim]'s homicide."  Id. at 822.  We find the videotape at issue was victim impact evidence because it showed the traditional trappings of a law enforcement officer's funeral, demonstrating the general loss suffered by society.  Additionally, the video showed footage of actual mourners, displaying for the jury the specific impact of the murder on particular members of society.  Thus, we hold the video was victim impact evidence pursuant to Payne.

Nonetheless, this evidence is subject to Rule 403, ....  We find the probative value of the videotape was not substantially outweighed by the danger of unfair prejudice.  As the trial judge ruled, the videotape was relevant to show the uniqueness of the victim, the harm committed by Appellant, and the impact of the victim's death on his family and society.

Additionally, deference is due to the trial court's admission of the evidence.  After all, "[a] trial judge has considerable latitude in ruling on the admissibility of evidence and his ruling will not be disturbed absent a showing of probable prejudice."  Ard, 332 S.C. at 378, 505 S.E.2d at 332.  In our view, it is not probable that Appellant was prejudiced by the State's presentation of the videotape at issue to the jury.

Bixby, at *14.  Writing for himself and another member of the court, Justice Pleicones dissented over the admission of the funeral video (along with the voir dire issue mentioned in passing above):

In my opinion, the video did not demonstrate anything about the victim's uniqueness, or the impact of his loss on his family or friends or on community groups with which he had been involved.  Instead, the video contains a staged 911 call which, we are informed, is standard at law enforcement funerals and thus not related to Deputy Wilson as an individual.  Moreover, video of unidentified mourners does not demonstrate the impact of Deputy Wilson's death on his family or friends, ... but rather reflects the affect of unidentified persons attending the funeral.  Payne evidence is intended to show the lasting consequences of victim's death, while a funeral video merely preserves the visible expressions of grief exhibited by persons attending the service.

Under Payne, the jury is constitutionally permitted to consider "the specific harm caused by the crime in question" through the introduction of "evidence about the victim and about the impact of the murder on the victim's family."  In my view, Payne evidence must be presented through testimony of those who have suffered as a result of the victim's death.  Cf. Humphries v. State, 351 S.C. 362, 570 S.E.2d 160 (2002) (Payne permits victim impact evidence in the form of testimony).  I find the video tape, including the staged 911 call, did not constitute Payne evidence.

Unlike the majority, I find appellant suffered prejudice as the result of this improper evidence.  I venture to say there are few individuals who could view this video without themselves being moved both by sympathy for the mourners and by outrage at the person who inflicted this suffering.  Even if appellant did not suffer prejudice, I would hold the admission of this video violated the statutory prohibition of a death sentence "imposed under the influence of passion, prejudice, or any other arbitrary factor," S.C. Code Ann. ยง 16-3-25(C)(1) (2003), and thus requires that we reverse the sentencing proceeding.

Id. at *19.  This sad case has spawned many legal arguments.  Those interested in the scope of offenses subject to capital punishment should see State v. Bixby, 373 S.C. 74, 644 S.E.2d 54 (S.C. 2007) (holding, over dissent of chief justice, that state could not seek death sentence against Rita Bixby, Steven's mother, because "the Legislature has not shown an intent to make one charged with accessory before the fact to murder death penalty-eligible").

Finally, I'd like to thank Colin once again for inviting me to guest blog during the past two weeks.  It has been a pleasure, and I hope to post here again in the future.

  - Ben Trachtenberg

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