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In The Supreme Court


The State,

Respondent, v.

Spencer Leonard McHoney,



Appeal From Berkeley County

Charles W. Whetstone, Jr., Circuit Court Judge


Opinion No. 25264

Heard January 11, 2001 – Filed March 19, 2001




Attorney General Charles M. Condon, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General
Donald J. Zelenka, Assistant Attorney General Derrick K.
McFarland, all of Columbia, and Solicitor David P. Schwacke, of
North Charleston, for respondent.

Deputy Chief Attorney Joseph L. Savitz, III, of South Carolina
Office of Appellate Defense, of Columbia, for appellant.


CHIEF JUSTICE TOAL: Spencer Leonard McHoney
("McHoney") appeals his murder conviction and his life
imprisonment sentence. We affirm.

Facts/Procedural Background

On November 15, 1995, Violet White’s ("Victim")
parents went to her home and found her with her throat slashed
and with numerous stab wounds in her abdomen. Her parents rushed
her to the hospital where Helen Nelson ("Nelson"), a
nurse on duty, attended to her. Nelson testified that when the
victim was removed from her parent’s vehicle, the victim’s head
fell back "like a PEZ toy," and the width of the cut on
her neck was wide enough to "lay her arm in it."

Nelson talked to the victim while the physicians were trying
to stabilize her for transfer to another trauma center. Although
the victim was unable to speak, she was able to nod in response
to questions by Nelson. Nelson asked the victim if she knew who
stabbed her, and the victim nodded yes. Nelson asked her if her
family knew the attacker, and the victim again nodded her head
yes. When asked if her attacker lived in her neighborhood, the
victim nodded yes. However, the victim shook her head no when
Nelson asked if her boyfriend was the attacker.

At the suggestion of the physician, Nelson recited the
alphabet and asked the victim to nod her head when she reached
the attacker’s initials. When Nelson got to the letter
"S", the victim nodded. Nelson began the alphabet again
and when she got to the letter "P", victim nodded.
Nelson asked the victim if "SP" were the initials of
her attacker and she shook her head no. The victim nodded her
head when Nelson asked her if she was attempting to spell her
attacker’s name. Nelson questioned the victim in this manner for
approximately thirty to forty minutes.

When the intensive care helicopter arrived, Nelson told the
victim she was going to a hospital where she would get the
"best care from the best doctors." Nelson then assured
the victim she would be fine. In response to Nelson’s statement,
the victim looked at her, shook her head no, and closed her eyes.
The victim lost consciousness before the flight, and she died two
weeks later without regaining consciousness.

The doctor who performed the autopsy testified the victim was
stabbed seven times in her abdomen and had a four inch long
incised wound across her neck. The victim died from aspirating
blood as a result of her injuries.

McHoney was quickly associated with the murder. McHoney, whose
first name begins with "SP", was a known crack addict
the police had previously used as an informer. Another crack
addict testified he saw McHoney driving the victim’s car around
the time of her murder. On November 17, 1995, McHoney fully
confessed to police that he robbed and violently murdered the
victim to get money for crack.

In January 1996, McHoney was indicted for the victim’s murder.
The State provided McHoney its notice of intention to seek the
death penalty relying on the aggravating circumstances of
criminal sexual conduct, physical torture, armed robbery, and
larceny with a deadly weapon. The case proceeded to trial on
April 28, 1997. In May 1997, the jury found McHoney guilty of
murder accompanied by all aggravating circumstances except
criminal sexual conduct. McHoney was sentenced to life

On July 21, 1998, McHoney’s counsel filed an Anders
brief that raised the following two issues:

I Did the trial judge err by allowing into evidence, as a
dying declaration, the victim’s identification of
"SP" as her killer?

II Did the trial judge err by excluding evidence McHoney
passed a polygraph test when questioned about the victim’s

McHoney sent the Court a pro se brief raising the
following four additional issues:

III Did the trial judge err by denying McHoney’s directed
verdict motion, where the State failed to introduce any
substantial evidence he was guilty of the victim’s murder?

IV Did the trial judge err by instructing the jury they
could not acquit McHoney unless "[t]here is a real
possibility that he is not guilty," because this
instruction diluted the State’s burden of proving guilt
beyond a reasonable doubt?

V Did the trial judge err by allowing the solicitor to ask a
leading question of a key State’s witness, which improperly
bolstered the credibility of that witness?

VI Did the trial judge err by rejecting the jury’s request
to visit the location where a key State’s witness testified
he saw McHoney driving the victim’s car?

On July 17, 2000, we denied McHoney’s attorney’s petition to
be relieved as counsel, and directed him to brief all six issues.


I Dying Declaration

McHoney argues the trial judge erred by admitting the victim’s
identification of "SP" as her killer under the dying
declaration exception to the hearsay rule, Rule 804(b)(2), SCRE,
because there was no evidence the victim believed her death was
imminent, and the victim did not die until two weeks after making
the statements. We disagree.

Hearsay is not admissible unless it fits within an exception
to the hearsay rule. Rule 802, SCRE. The State sought to
introduce the victim’s identification of "SP" as her
killer under the dying declaration exception. Rule 804(b)(2),
SCRE. A statement made under the belief of impending death is not
excluded by the hearsay rule if the declarant is unavailable as a
witness in a prosecution for homicide, the statement is made by a
declarant while believing the declarant’s death is imminent, and
the statement concerned the causes or circumstances of what the
declarant believed to be impending death. Rule 804(b)(2), SCRE;
29A Am. Jur. 2d
Evidence ? 829 (Supp. 2000)
("In a homicide prosecution, the dying declaration must bear
on the fact of the homicide and the person by whom it was
committed. Such statements must be made voluntarily and in good
faith. In addition, such statement must be made under a sense of
impending death.").

McHoney argues there was no evidence the victim believed her
death was imminent at the time of her declaration. According to
defense counsel:

If this nurse who has been taking care of me and talking
to me says I am going to be fine and I am getting the best
medical treatment possible, then exactly the opposite would
have been understood by the declarant. So it would not
qualify as a dying declaration.

The medical personnel who attended the victim assured her she
would be "fine." However, the victim shook her head no
in response to the assurances, indicating she was aware of her
impending death.

A declarant does not have to express, in direct terms, his
awareness of his condition for his statement to be admissible as
a dying declaration. The necessary state of mind can be inferred
from the facts and circumstances surrounding the declaration.
Louisiana v. Bell,
721 So. 2d 38 (La. Ct. App. 5th
Louisiana v. Nicholson, 703 So. 2d 173 (La. Ct.
App. 4th Cir.
1997); Louisiana v. Matthews, 679 So. 2d
977 (La. Ct. App. 4th Cir. 1996). Repeated questioning by the
declarant concerning whether he is going to live, a less than
reassuring answer, the nature of the wound, and the declarant’s
critical condition are circumstances that indicate the
declarant’s awareness of approaching death.
Charles v. Texas,
955 S.W.2d 400 (Tex. Ct. App. 1997). [1] In fact, a
declarant can be aware of imminent death even when he is assured
he will not die and will be fine.
See id. at 404
(holding evidence was sufficient for trial court to infer victim
believed her death was imminent where victim had severe burns all
over her body, she asked if she was going to die, and the officer
replied negatively to reassure her and to prevent shock).

Furthermore, the length of time the declarant lives after
making the dying declaration is immaterial. The focus is on the
declarant’s state of mind when the statement is made, not on the
eventual outcome of the declarant’s injuries.
See State v.
, 134 S.C. 361, 133 S.E. 24 (1926).[2] In
State v. Hall, we held
a dying declaration was properly admitted when the declaration
was made shortly after the injury, and the declarant died 33 days
later. We held it was the jury’s duty to pass upon the
credibility of the dying declaration, and the length of time
between the declaration and death is just one factor to be
Id. at 361, 133 S.E. at 26.

In the instant matter, the fact the victim died two weeks
after her injury does not indicate the victim did not believe her
death was imminent, where she shook her head when told she would
be fine, and where she never regained consciousness after she
made the declaration. Therefore, we find the trial judge properly
admitted the victim’s identification of "SP" as her
killer under Rule 804(b)(2), SCRE.

Although we find the victim’s statement was a valid dying
declarations, her statement also satisfies the excited utterance
exception to the hearsay rule. Rule 803(2), SCRE. An excited
utterance is a statement relating to a startling event or
condition made while the declarant is under the stress of
excitement caused by the event or condition. Rule 803(2), SCRE.
basis for the excited utterance exception to the hearsay rule is
that the perceived event produces nervous excitement, making
fabrication of the statements about the event unlikely." 29A
Am. Jur. 2d ? 865 (1994). An excited utterance expresses the
real belief of the speaker because the utterance is made under
the immediate and uncontrolled domination of the senses, rather
than under reason and reflection.

In determining whether a statement falls within the excited
utterance exception, a court must consider the totality of the
State v. Dennis, 337 S.C. 275, 523 S.E.2d
173 (1999). In this case, the victim was rushed to the hospital
and immediately bombarded by medical personnel. When the victim
arrived at the hospital, she was still under the continuing
stress of being stabbed seven times in the abdomen and having her
throat slit. There was no time for the victim to reflect on the
event, so her statement is inherently reliable.
See id.
(the rationale behind the excited utterance exception is the
startling event suspends the declarant’s process of reflective
thought, reducing the likelihood of fabrication). Therefore,
because her statement was made under the continuing stress of the
attack, it is admissible as an excited utterance. Rule 803(2),


II. Polygraph Results

McHoney argues the trial judge erred by excluding evidence he
passed a polygraph test when questioned about the victim’s death.
We disagree.

The police administered a polygraph test the day after the
victim’s murder. The polygraph examiner asked McHoney whether he
stabbed the victim or knew who did. He answered "no" to
both questions, and the polygraph examiner, who was an expert in
interrogation and body language, concluded McHoney was telling
the truth.

At the start of the trial, the State objected to the admission
of the polygraph results based on their unreliability. The trial
judge agreed and excluded the evidence pursuant to
State v.
, 322 S.C. 253, 471 S.E.2d 700 (1996). McHoney did not
present any evidence concerning the reliability of polygraph

We recently addressed the admissibility of polygraph
examinations in
State v. Council, 335 S.C. 1, 515 S.E.2d
508 (1999). We held that
the results of polygraph examinations
are generally inadmissible because the reliability of the test is
Id. at 23, 515 S.E.2d at 519; see also
Wright, supra
State v. Copeland, 278 S.C. 572, 300
S.E.2d 63 (1982). Furthermore, the United States Supreme Court
recently held that a
per se rule against the admission
of polygraph evidence does not violate a defendant’s right to
present relevant evidence in his defense as guaranteed by the
United States Constitution.
United States v. Scheffer,
523 U.S. 303, 118 S. Ct. 1261, 140 L. Ed. 2d 413 (1998).
According to the United States Supreme Court, "there is
simply no consensus that polygraph evidence is reliable. To this
day, the scientific community remains extremely polarized about
the reliability of polygraph techniques."
Id., 118
S. Ct. at 1265.

However, in light of the adoption of the SCRE, we held in Council
that the admissibility of polygraph evidence should be analyzed
pursuant to Rules 702 and 402, SCRE and the factors outlined in
v. Jones
, 273 S.C. 723, 259 S.E.2d 120 (1979). Under Rule
702, SCRE, the trial judge must find: (1) the scientific evidence
will assist the trier of fact; (2) the expert witness is
qualified; and (3) the underlying science is reliable. [4] The trial judge
should determine the reliability of the underlying science by
using the
Jones factors: the publication of peer review
of the technique; prior application of the method to the type of
evidence involved in the case; the quality control procedures
used to ensure reliability; and the consistency of the method
with recognized scientific laws and procedures.
Further, if the evidence is admissible under Rule
702, SCRE, the trial judge must determine if its probative value
is outweighed by its prejudicial effect under Rule 403, SCRE.

As we indicated in Council, at the time of McHoney’s
1997 trial, polygraph examinations were generally not admissible
because of their unreliability. Therefore, the trial judge did
not abuse his discretion by excluding the polygraph results.
Furthermore, even under a
Council analysis, McHoney did
not meet his burden of proof under Rule 702, SCRE because he did
not present any evidence that polygraphs were inherently
reliable, the polygraph was reliable and properly conducted in
this case, or that the
Jones factors were met.

III Directed Verdict Motion

McHoney argues the trial judge erred by denying his directed
verdict motion because the State failed to introduce substantial
evidence he was guilty of murder. Specifically, McHoney contends
the State presented evidence that was totally unreliable. We

A defendant is entitled to a directed verdict when the State
fails to produce evidence of the offense charged.
State v.
, 103 S.C. 437, 88 S.E. 21 (1916). In reviewing a
motion for directed verdict, the trial judge is concerned with
the existence of the evidence, not with its weight.
State v.
, 341 S.C. 406, 535 S.E.2d 126 (2000). On appeal
from the denial of a directed verdict, an appellate court must
view the evidence in the light most favorable to the State.
v. Burdette
, 335 S.C. 34, 515 S.E.2d 525 (1999);
v. Kelsey
, 331 S.C. 50, 502 S.E.2d 63 (1998). If there is
any direct evidence or substantial circumstantial evidence
reasonably tending to prove the guilty of the accused, we must
find the case was properly submitted to the jury.
State v.
, 339 S.C. 346, 529 S.E.2d 526 (2000).

McHoney argues the State’s case was based on unreliable
evidence. However, in ruling on a directed verdict motion, the
trial judge is concerned with the existence of the evidence, not
its weight.
Mitchell, supra; State v. Williams,
303 S.C. 274, 400 S.E.2d 131 (1991). We find the State presented
enough evidence to survive a directed verdict motion.

Viewing the evidence in a light most favorable to the State,
there was evidence that reasonably tended to prove McHoney’s
guilt. The victim’s dying declaration tended to inculpate
McHoney. McHoney gave a full confession two days after the crime
where he admitted to choking the victim, stomping on her neck,
stabbing her repeatedly in the abdomen until the knife bent,
using another knife to slit the victim’s throat, and stabbing the
victim in the chest with the second knife until it bent.
Furthermore, a witness saw McHoney driving the victim’s car
around the time of the crime.

IV. Reasonable Doubt Instruction

McHoney contends the trial judge gave an erroneous reasonable
doubt instruction. He contends it was error to instruct the jury
they could not acquit unless "there is a real possibility
that he is not guilty" because the instruction diluted the
State’s burden of proving guilt beyond a reasonable doubt. We

The trial judge gave the following reasonable doubt
instruction, in relevant part:

So the burden of proof then is upon the state to establish
by evidence to your satisfaction the guilt beyond a
reasonable doubt of the defendant here on trial. Now, what is
a reasonable doubt in the law? A reasonable doubt is a doubt
that would cause a reasonable person to hesitate to act. As I
told you, the state has the burden of proving the defendant
guilty beyond a reasonable doubt. . . .

Proof beyond a reasonable doubt is proof that leaves you
firmly convinced of the defendant’s guilt. . . . If based upon
your consideration of the evidence you are firmly convinced that
the defendant is guilty of the crime charged, then you must find
him guilty.
If on the other hand you think there is a real
possibility that he is not guilty, you must give him the benefit
of that doubt and find him not guilty.
(emphasis added).

We specifically approved a similar reasonable doubt
instruction in
State v. Darby, 324 S.C. 114, 477 S.E.2d
710 (1996). As we stated in
Darby, "[c]ourts
specifically addressing whether the ‘real possibility’ language
lessens the government’s burden of proof have held it does not in
the context of the preceding language requiring that the juror be
‘firmly convinced’ of the defendant’s guilt."
at 116, 477 S.E.2d at 711 (citations omitted). We also found
there is nothing in this language to suggest the defendant bears
the burden of proof.
Id. Furthermore, the "real
possibility" language is found in the proposed jury
instruction developed by the Federal Judicial Center, and was
cited with approval in Justice Ginsberg’s concurring opinion in
v. Nebraska
, 511 U.S. 1, 114 S. Ct. 1239, 127 L. Ed. 2d 583
Id. at n.1. Finally, we approved the
use of the "real possibility" language in
State v.
, 333 S.C. 134, 508 S.E.2d 857 (1998), and the Court of
Appeals approved the language in
State v. Lowery, 332
S.C. 261, 503 S.E.2d 794 (Ct. App. 1998).

V Leading Question

McHoney argues the trial judge erred by allowing the solicitor to
ask a leading question of a key witness, which improperly
bolstered the credibility of that witness. We disagree.

On redirect examination of the State’s witness, who testified
he saw McHoney driving the victim’s car, the solicitor asked,
"[Y]ou don’t know – you are not – are you connected closely
with either side of this case, either the victim or the
defendant?" The witness answered, "The defendant are
[sic] my family. I am not related to the victim." Both
McHoney and the State agree defense counsel did not object to the
question or the answer. Therefore, the issue is not preserved
because a contemporaneous objection is required to preserve
issues for direct appellate review.
State v. King, 334
S.C. 504, 514 S.E.2d 578 (1999). The question was also cumulative
to other evidence because the witness had previously testified he
was related to McHoney.

"A leading question is one which suggests to the witness
the desired answer. . . . In order to require reversal, appellant
must show an abuse of discretion resulting in prejudice." State
v. Tyner
, 273 S.C. 646, 258 S.E.2d 559, 563 (1979). The
contested question provided the witness with a choice of answers
and did not require a "yes" or "no" response.
Further, no prejudice was demonstrated because the question was

VI Visiting the Crime Scene


McHoney asserts the trial judge erred by denying the juror’s
request to visit the "41 Quick Stop," a location where
a State’s witness testified he saw McHoney driving the victim’s
car around the time of the murder. We disagree.

Jury views are controlled by S.C. Code Ann. ? 14-7-1320 (1976
), which provides:

The jury in any case may, at the request of either
, be taken to view the place or premises in
question or any property, matter or thing relating to the
controversy between the parties when it appears to the court
that such view is necessary to a just decision, if the party
making the motion advances a sum sufficient to pay the actual
expenses of the jury and the officers who attend them in
taking the view, which shall be afterwards taxed like other
legal costs if the party who advanced them prevails in the

A jury view of a scene is a matter within the discretion of
the trial judge.
Kincaid v. Landing Dev. Corp., 289 S.C.
89, 344 S.E.2d 869 (Ct. App. 1986) (citations omitted). The trial
judge’s decision will not be reversed absent an abuse of

During jury deliberations in this matter, the jury sent a
message to the trial judge asking: "Will it be possible to
visit the 41 Quick Stop at nighttime?" The trial judge
declined the request, informing the jury they must decide the
case based on the evidence presented. Similarly, in
v. State
, 300 S.C. 473, 388 S.E.2d 804 (1990), the jury sent
a note to the trial judge asking if they could view the scene of
the crime. We found the trial judge was correct in denying the
jury’s visit to the crime situs because section 14-7-1320
mandates that a
party make a motion before a jury view
is allowed.
Id. at 477, 388 S.E.2d at 806.

Based on our opinion in Gossett, supra, the trial
judge was correct in denying the jury view of the crime situs.
However, even assuming
a proper motion was made, a jury view was
not necessary for the jury to make a just decision. The jury
wanted to view the scene at night because they were concerned the
State’s witness did not have enough light to clearly identify
McHoney. However, a jury view of the scene was unnecessary
because: (1) a photograph of the scene was admitted into evidence
indicating a street light was in the vicinity of the scene; and
(2) the witness testified he had enough light to recognize


Based on the foregoing, we AFFIRM the
conviction and sentence of the trial court.




[1] See, e.g., Illinois v.
, 708 N.E.2d 1196 (Ill. App. Ct. 1st Dir.
1999) (holding the belief in the imminence of death may be
demonstrated by the declarant’s own statement or from
circumstantial evidence, such as the nature of the wounds or
statements made in his presence);
Louisiana v. Lucas,
762 So.2d 717 (La. Ct. App. 1st Cir. 2000) (finding the magnitude
of the victim’s gunshot wound, the victim’s knowledge he was
going into surgery, his obvious pain, and his "serious"
tone of voice provided enough evidence to infer victim was aware
of his imminent death).

[2] See also North Carolina v. Hamlette, 276
S.E.2d 338 (N.C. 1981) (holding the fact victim lingered for
several days after his communication to police officer that
defendant was the man who shot him did not render statement
inadmissible as a dying declaration); North Carolina v.
, 243 S.E.2d 771 (N.C. 1978) (the fact victim
survived one week longer than doctors told him he might live did
not render victim’s dying declaration inadmissible);
v. Arkansas
, 973 S.W.2d 1 (Ark. Ct. App. 1998) (holding
under the dying declaration exception, it is declarant’s belief
in nearness of death when he makes the statement, not the
swiftness with which death actually ensues, that is most
Charles v. Texas, 955 S.W.2d 400 (Tex. Ct.
App. 1997) (holding length of time declarant lives after making
dying declaration is immaterial in determining if statement is
dying declaration for purposes of hearsay exception);
v. Texas
, 682 S.W.2d 313 (Tex. Crim. App. 1984) (length of
time declarant lives after making dying declaration is immaterial
to dying declaration exception).

[3] The totality of the circumstances indicate the
victim was under the stress of the startling event of being
violently attacked, even though she did not make her statements
until asked by the nurse at the hospital. The victim did not make
her statements contemporaneously with her attack simply because
her throat was cut and she could not speak. Therefore, the time
lapse between the attack and her statements is immaterial because
she communicated with the nurse at the first opportunity.
Webb v. Lane
, 922 F.2d 390 (7th Cir. 1991) (statements made
up to two hours after victim had been shot six times in the chest
and abdomen, in which he identified assailant, were admissible
under excited utterance exception to the hearsay rule);
v. Harrison
, 298 S.C. 333, 380 S.E.2d 818 (1989) (allowing
as res gestae the statements of an attempted sexual assault
victim to an officer at the hospital upon first opportunity to
tell what occurred to her);
State v. Blackburn, 271 S.C.
324, 247 S.E.2d 334 (1978) (noting that a time interval of over
one hour, and up to eleven hours, did not necessarily eliminate a
statement as part of the res gestae).

[4] Rule 702, SCRE, states:

If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may testify
thereto in the form of an opinion or otherwise.

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