Originally created 07/12/00

High court gives man new trial



AIKEN - An inmate with the word "Outlaw" tattooed on his arm will get a new murder trial because the solicitor called him an "Outlaw" 23 times in closing arguments and his attorney was not allowed to argue self-defense, the South Carolina Supreme Court has ruled.

Raymond Day, 24, was convicted in 1997 of killing 43-year-old Cecil Wayne Renew, who had hired him to kill Mr. Renew's girlfriend. Mr. Renew's body was found inside the cab of his red 1991 Ford Ranger pickup on Muddy Branch Road on March 31, 1996. He died from a single gunshot to his left temple.

In ordering a new trial, justices wrote that then-Circuit Judge Charles W. Whetstone Jr. was wrong not to allow the defense team to argue self-defense. Deputy Public Defender Wallis Alves was prepared to argue that Mr. Day feared for his life when he did not go through with the killing because Mr. Renew was a drug abuser who had a history of violence. But Judge Whetstone ordered Ms. Alves not to argue self-defense.

"There is sufficient evidence in (this) case to support a charge of self-defense," Chief Justice Jean Hoefer Toal wrote in the 5-0 opinion.

The justices also said the judge was wrong to exclude testimony of witness Marva Szumowicz concerning a past act of violence by Mr. Renew near the time of the killing that may have shown the victim was a vengeful person.

The court also ruled that the judge erred by allowing Second Circuit Solicitor Barbara Morgan to cross-examine a witness about Mr. Day's "Outlaw" tattoo.

Evidence of a tattoo or nickname is not damaging to a case when used to prove something at issue, the court wrote. But when it is used simply to attack someone's character, the nickname deprives the defendant of due process of law. In this case, the comments "so infected the trial with unfairness as to make the resulting conviction a denial of due process," Chief Justice Toal wrote.

The Supreme Court said Ms. Morgan's repeated use of the nickname was excessive and repetitious and was not used to prove any matter in controversy.

"The solicitor's continuous use of the nickname was extremely prejudicial because it was used to portray (Mr.) Day as a `planner,' someone who was accustomed to deluding law enforcement, and someone who was proud of his notoriety as an outlaw," the court wrote.

On Tuesday, Ms. Morgan said the defendant's actions made it hard "not to be able to comment on such outlaw behavior." The solicitor also said appeals are based on the trial's written transcript, which makes the trial unidimensional and hard to judge without seeing or hearing the action in the courtroom.

Ms. Morgan said they will soon begin the process of retrying Mr. Day. Mr. Day originally was sentenced to life imprisonment on the murder charge and a concurrent sentence of five years for possession of a firearm during the commission of a violent crime.

Reach Greg Rickabaugh at (803) 279-6895.