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Bowman v. State

Supreme Court of South Carolina

January 10, 2018

Marion Bowman, Petitioner,
v.
State of South Carolina, Respondent. Appellate Case No. 2012-213468

          Heard April 13, 2017

         Appeal from Dorchester County James E. Lockemy, Post-Conviction Relief Judge

          Chief Appellate Defender Robert M. Dudek and Appellate Defender David Alexander, both of Columbia, for Petitioner.

          Attorney General Alan M. Wilson, Chief Deputy Attorney General J. Robert Bolchoz, Deputy Attorney General Donald J. Zelenka, and Assistant Attorney General Alphonso Simon, Jr., all of Columbia, for Respondent.

          ON WRIT OF CERTIORARI

          KITTREDGE, JUSTICE.

         Petitioner Marion Bowman sought post-conviction relief (PCR) from his sentence of death for the murder of Kandee Martin in February of 2001. The essence of Petitioner's claim is that trial counsel was deficient in failing to object to the State's cross-examination of prison-adaptability expert James Aiken. The PCR court denied Petitioner's application. We issued a writ of certiorari to review the order of the PCR court. We conclude there is evidence to support the PCR court's findings, and we affirm.

         I.

         Around 7:55 p.m. the evening of February 16, 2001, a motorist was traveling down Nursery Road in the rural, northwestern portion of Dorchester County near the Orangeburg County line, when he spotted a small, four-door sedan parked unusually along the shoulder of the road. As the motorist slowed down and pulled alongside the car to take a look, he noticed that some of the windows were down and the lights were off, but no one was in sight. Although this struck him as an odd way to leave a vehicle unattended, he did not investigate further.

         Several minutes later, a neighbor who lived on Nursery Road was watching television in his living room when he heard a loud noise outside. He muted the television, and within fifteen seconds, he heard three gunshots. Suspecting someone was night-hunting, the neighbor got in his car and drove in the direction of the noise to investigate; however, after driving along Nursery Road, he was unable to find anything unusual. He returned home, continued watching television, and went to sleep around midnight. Shortly after 3:30 a.m., he was awakened by what initially sounded like more gunshots. He again got in the car to investigate down Nursery Road, this time spotting a small, four-door sedan positioned on a tractor path between the tree line and a field approximately seventy-five feet from the paved road. The vehicle was engulfed in flames extending almost five feet around and more than fifteen feet above; no other vehicles or persons were anywhere in sight. The neighbor immediately returned home and reported the vehicle fire.[1]

         The local fire department responded to the scene. After putting out most of the fire, firefighters were able to open the trunk of the smoldering car, where they discovered the scorched remains of a human body. The vehicle's charred license plate was recovered, and police discovered the car was registered to twenty-one-year-old Kandee Martin (the Victim) and her mother.[2]

         Arson investigators concluded the fire was intentionally set. The autopsy revealed the Victim was not burned alive, but rather suffered two fatal gunshot wounds- one to the head and one to the torso-before her body was placed in the trunk of her car and set on fire. No projectiles were recovered from the Victim's body; however, police found six spent .380 shell casings in the middle of Nursery Road next to a pool of blood, which contained some hair and the back of an earring. A trail of bloodstained grass and ruffled pine straw led investigators approximately thirty feet into the woods where they discovered a woman's black dress shoe next to bloodstained pine straw and branches. Through DNA testing, police identified the blood on the road, pine straw, and branches as belonging to the Victim, and the Victim's mother identified the black dress shoe found in the woods as her daughter's.

         Later that morning, Petitioner Marion Bowman was arrested on an outstanding warrant after police learned he was with the Victim the night before. He was subsequently indicted for murder and third-degree arson, and shortly thereafter, the State served upon defense counsel a notice of intent to seek the death penalty. The case was tried in May 2002, and the following summarizes the State's evidence at trial.

         Less than two weeks before the murder, Petitioner, accompanied by his first cousin Taiwan Gadson and his childhood friend Travis Felder, purchased a High Point .380 automatic pistol from "[a] dude in Orangeburg." On the afternoon of the murder, Petitioner and several others gathered at a friend's house to socialize and drink alcohol. Petitioner carried his .380 pistol to the party in a brown paper bag, then stashed it in a 55-gallon drum/fire barrel upon arrival. Shortly thereafter, Petitioner left the party to pick up some groceries. At some point while he was gone, Petitioner's first-cousin Hiram Johnson relocated the stashed gun, ostensibly for safety purposes. According to six different witnesses, Petitioner became confrontational when he returned and learned his gun had been moved, but Johnson quickly intervened, explained that he moved the gun, and returned the gun to Petitioner. After looking over the gun to ensure it was still in working order, Petitioner tucked the gun in his back pocket.

         Sometime later, Petitioner left the party again to run errands with his sister Yolanda Bowman (Yolanda) and their cousin, Katrina West. As they drove through downtown Branchville, they spotted the Victim sitting in her car talking with a man standing outside the Victim's driver's window. Evidently, the Victim owed Petitioner some money. Petitioner, who was sitting in the back seat, asked Yolanda to pull the car over so he could speak to the Victim. Yolanda complied, and Petitioner rolled down his window and tried to get the Victim's attention. The Victim was mid-conversation with the man standing outside her car, and she asked Petitioner to wait a minute. Petitioner then cursed at the Victim and, in front of three witnesses, said he was going to kill the Victim that evening.[3]

         Around 7:30 p.m. that evening, Petitioner returned to the party with the Victim; the Victim drove herself and Petitioner in her Ford Escort, a small, four-door sedan. Gadson got in the car with Petitioner and the Victim, they stole some gas from a convenience store, and Petitioner directed the Victim to drive out to Nursery Road. Once they reached Nursery Road, Petitioner instructed the Victim to pull over and turn off the vehicle lights. The Victim remained in the car while, Petitioner and Gadson exited the vehicle and began walking down Nursery Road; as they walked, Petitioner told Gadson he intended to kill the Victim because he believed she was wearing a wire. A few minutes later, the Victim got out of the car and caught up with them, she grabbed Petitioner by the elbow and said she was scared because it was extremely dark outside. Just as the Victim was pleading to leave, the threesome saw a car coming down the road, so they all ran and hid in the woods until the car passed.

         The Victim then started walking back down the road with Petitioner following. As Gadson came out of the woods behind them, he saw Petitioner fire three times at the Victim. The Victim ran towards Gadson, but turned to face Petitioner and begged, "Please, [Petitioner], don't shoot me no more. I have a baby to take care of." Petitioner then fired twice more and the Victim fell to the ground. Gadson testified he jumped in the car while Petitioner dragged the Victim's body by her feet into the woods. Petitioner later returned, got into the driver's seat of the Victim's car, and stated "I shot that bitch in the head. Heard her head hit the ground." The two then returned to Branchville in the Victim's car, and on the way back, Petitioner threatened Gadson that if he ever told anyone what happened, he would blow Gadson's brains out.

         Sometime after midnight, Petitioner drove himself, Gadson, Johnson, and Darrien Williams to a nightclub in the Victim's car. Petitioner stated the car was stolen and instructed everyone to wear gloves to avoid leaving fingerprints. At the club, Petitioner attempted to sell the Victim's car with no success. Thereafter, Petitioner drove the group back to Branchville in the Victim's car; as he drove, he had the murder weapon sitting in his lap and remarked, "I killed Kandee, heh heh heh."

         Shortly after 3:00 a.m., Petitioner knocked on Felder's door and asked Felder to give him a ride. Felder testified that he got in his own car and followed Petitioner, who was driving the Victim's car, back to Nursery Road. Petitioner pulled over on the side of the road and went into the woods for a minute. Then, Felder saw Petitioner dragging a body out of the woods by the feet. As Petitioner opened the trunk and put the body inside, Felder recognized the Victim's face by the trunk light. Petitioner looked back at Felder and said "You didn't think I would do it, did you? I killed Kandee Martin." Petitioner instructed Felder to reposition his car while Petitioner drove the Victim's car into a field. Felder watched as Petitioner lit a fire and tossed it in the car, which immediately became engulfed in flames. Felder then drove Petitioner back to Branchville and returned to his girlfriend's house.

         When Petitioner was arrested the following day, the Victim's wristwatch was found in the pocket of the pants Petitioner wore the previous night. A few days later, Petitioner's wife found the murder weapon stuffed in a couch in the couple's living room; upon this discovery, she enlisted the help of Petitioner's sisters and father, who dropped the gun off a bridge into the Edisto River. Petitioner's DNA was identified in the vaginal swabs taken from the Victim during autopsy.[4] The gun was recovered by a team of divers and the shell casings recovered at the scene matched the pistol. Additionally, the arson investigator testified that a heavy petroleum product-not gasoline-was found on Petitioner's pants, but the items retrieved from the burning car had gasoline on them.

         II.

         Petitioner proceeded to trial. Although the fact that the Victim had been murdered was indisputable, the defense theory in the guilt phase was that it was not Petitioner but some other person who killed her and burned her body. Ultimately, a jury found Petitioner guilty of murder and arson.

         During the sentencing phase of the trial, the State incorporated all of the evidence introduced in the guilt phase and presented evidence of Petitioner's 1998 third-degree burglary and petty larceny convictions. The State introduced additional photographs of the Victim's charred corpse in the trunk of her car and presented further testimony from the forensic pathologist who performed the autopsy as to the gruesome condition of the Victim's body. The State also introduced pictures of the Victim celebrating family occasions and elicited victim-impact testimony from the Victim's mother and father before resting its case. The State did not present any evidence during the sentencing phase regarding Petitioner's potential to adapt to prison or conditions of prison.

         Petitioner followed by presenting extensive mitigation evidence, including testimony of Petitioner's mother and older sister concerning Petitioner's troubled childhood and abusive upbringing. The defense also presented testimony of Alice Baughman, an adult education teacher at the Dorchester County Detention Center where Petitioner was held awaiting trial. Baughman testified Petitioner had become one of her teaching assistants and had never exhibited any inappropriate behavior during classes. The defense also presented testimony of two detention center guards, one of whom described Petitioner as "just as polite as can be." The other, however, testified that Petitioner occasionally refused to cooperate "depend[ing] on what kind of day [Petitioner] was having, " but that Petitioner had never become violent or caused her to feel threatened.

         Additionally, the defense presented the testimony of forensic social work expert Jeffrey Youngman, who testified in detail to Petitioner's upbringing. As part of Youngman's testimony, he educated the jury on many aspects of Petitioner's life, including being born to a teenage mother, domestic violence between his parents that eventually led to their divorce, and prolonged and extreme financial hardship. Moreover, the mitigation evidence included Petitioner's low IQ and difficulties in school, his family history of alcohol and drug abuse (including his mother's conviction for drug distribution), his mother's debilitating health issues that required Petitioner to provide care for her at the age of nine, and Petitioner's experience selling drugs beginning at age 14. Youngman observed that these myriad factors combined to undermine Petitioner's ability to develop good judgment skills. On cross-examination, Youngman explained that people who sell drugs engage in certain behavior patterns to protect their image and opined "I think part of this whole process was him protecting his image" as a drug dealer.

         Petitioner thereafter presented the testimony of James Aiken, a correctional consultant who testified about the classification of prisoners and Petitioner's adaptability to prison. It is counsel's failure to object when Aiken's testimony transitioned from a discussion of prison adaptability into one about general prison conditions that lies at the heart of this PCR case.

         Aiken opined that Petitioner had adjusted well to prison in the past, and relayed the security measures at correctional facilities-including gun towers, fences, bars, concrete structures, constant supervision, and no possibility of parole. Aiken did not believe Petitioner would pose a risk of future dangerousness. On cross-examination, the Solicitor elicited testimony from Aiken about the various levels of security that exist within a prison environment (i.e. minimum, medium, maximum, and "super max") and that inmates may be assigned to less restrictive environments within prison as an incentive for their good behavior. Aiken acknowledged that while in prison, Petitioner would have the ability to move within the facility, including to perform work duties and access secure outdoor recreation areas; however, Aiken explained that, due to the seriousness of the offense of which Petitioner had been convicted, he would never be eligible for work release and would never be permitted to leave the prison facility.

         In response to the Solicitor's question regarding what incentive Petitioner would have to follow the rules, Aiken explained,

The incentive that he has is . . . that the management of that prison system has authority to ensure that his behavior is appropriate. And that's anywhere from sanctioning him . . . [to] using lethal force against that individual . . . We are not in the business of motivation when you deal with a life without parole [sentence]. Our business is incapacitation. We're not preparing you to go anywhere. You're going to stay with us as long as you are breathing, so we're not talking about trying to prepare you for anything. What we're talking about is that we do a good job of keeping you behind bars and behind fences and in gun towers for the remainder of your life.

         On redirect examination by defense counsel, Aiken gave a more detailed description of super max confinement and testified that Petitioner would not be going to a "kiddy camp" or a place where he would be "mollycoddled" or have "picnic lunches outside the gate." Aiken explained that all inmates are expected to work to perform cheap labor to reduce the burden on taxpayers and repay society and reiterated, "I don't care how well he does, he will never get out of that prison." Nevertheless, Aiken explained that Petitioner could salvage the rest of his young life and have some redeeming qualities.

         On re-cross, the Solicitor attempted to elicit information about how often inmates generally escape from prison, but defense counsel's objection to this irrelevant evidence was sustained. Following a curative charge by the judge as to the escape question, the Solicitor elicited from Aiken testimony about general prison conditions, asking "what is he adapting to, what is going on there?" Aiken described the daily routine an inmate would likely have including going to work, eating meals, and sleeping, cautioning "you have to understand that this is in a prison environment and this is not in a community environment . . . . It's just like the police being in your home and writing you up for any violation." Aiken explained that inmates are under 24-hour supervision and inmates are cited for administrative violations such as speaking too loudly, being disrespectful, or disobeying a direct order. Then the Solicitor asked:

Q. And are there recreational facilities ...

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