*1 analysis dodge to undesired Our is no artful avoid an usurped prerogative judicially of the Nor have we result. Indeed, policy Legislature. we have been steadfast our of Legislature.9 no deferring to the The result we reach raises question fidelity long-standing policy, about our to this but may very case well demonstrate the distinction between this intelligent unintelligent fidelity. “Master Consider the Master a Servant who does not and' Servant.” No wants Even the most dutiful Servant will sometimes not think. everything “drop when called Master obey running.” example, obey For the Servant will not when come unaware, time, is the Master at the that the Servant is rescuing baby obey- act of from In the rainbarrel.10 not ing, Master, does not Servant thwart intent gives Surely, Legislature but rather effect to intent. expects intelligence the same modicum of from this Court. reasons,
For these the decision of the Circuit Court is Affirmed. JJ., concur. Cureton,
Gardner STATE, CAIN, Respondent Appellant. Russell James (377 (2d) 556) E.S. Supreme Court Wallace, 657, 659 (Ct. App. E.g., 448, 452, 369 Smith v. 295 S. C. S. E. interpretation 1988) (“This legislative powers. Court has no In the and, limits, statutes our sole function is to determine within constitutional give legislature.”). effect to the intention Fuller, Speluncean Explorers, See The Case 62 Harv. L. Rev. 616 case). (1949) (where analogy hypothetical this is used in a *3 Blume,
John Bruck, H. Blume, David I. & Bruck S. C. Appellate Defense, Columbia, Ballard, Burnie W. Office of Pageland, George and Gregory, Chesterfield, W. for appellant. Atty. Medlock, Attys. Gen. T. Travis Asst. Gen. Harold M. Coombs, Clifford, Columbia, Jr. and Amie L. and Sol. J. Dupre Miller, Bennettsville, respondent.
Heard Feb. 1988.
Decided Oct. 1988. Justice:
Harwell, Appellant (2) was convicted of two counts of murder and sentenced to death appeal on both counts. This consolidates mandatory appeal review of the and this Court’s
his direct pursuant §Ann. 16-3-25 to S. C. Code death sentences convictions and sentences. affirm both the We
I FACTS (Threatte) Threatte were Appellant and Kenneth Dale Danny (Adams) Kerry murdering Adams and indicted for Threatte, (Kemmerlin). primary the state’s wit- Kemmerlin trial, follows: ness at testified as mother, Patsy Evans, appellant Appellant’s Cain told and she wanted Adams murdered because Adams Threatte that pay drug January her after a transaction. On had failed to 25th, 1986, appellant and Threatte met with Adams and purpose stealing Kemmerlin for the ostensible some mar- ijuana County The four from a Chesterfield field. traveled van, driving, sitting in Kemmerlin Adams’s with Adams seat, sitting passenger appellant on a sofa and Threatte shotgun; Appellant Threatte in the rear. was armed with a crossroads, pistol. carried a As Adams slowed at a rural forward, pointed shotgun jumped toward chin, fired two Adams’s and shot off Adams’s face. Threatte Laughing, ap- (2) pistol shots toward the front of the van. stopped pellant shot Kemmerlin. When the van turned and rolling, appellant (2) shotgun into fired two more blasts helped appellant pull Kemmerlin. Threatte both Adams and instructions, out of the van. At Threatte bodies pockets. Ap- from Adams’s removed between $700 $800 pellant the van drove the front wheels on then started top of the bodies. expert pathologist
An testified that both Adams forensic immediately shotgun and Kemmerlin died from blasts expert pistol further testified that a bullet en- head. *4 already Kemmerlin was dead tered Kemmerlin’s back after shotgun blast. from the QUALIFICATION
II JUROR First, judge appellant the trial committed two asserts during juror qualification stage: errors
501 A. Juror Catoe judge juror prospective trial excused Luella upon
Catoe regarding capital punish based her views flatly ment. Ms. during Catoe stated voir dire exam- penalty ination that she could not vote for the if she act,” regardless “had not seen the of the evidence. Because opposition her prevented to the death would have substantially impaired ability perform her her duties as juror during sentencing phase, properly she was dis- qualified. McCree, 162, See Lockhart v. 476 U. S. 106 S. Ct. 1758, (1986); 90 L. Ed. Drayton, 417, S. 293 C. (2d) (1987). S. E.
B. Juror Rivers qualified prospective juror Rivers,
The court Sheila appellant by excluded her peremptory Ap- use of a strike. pellant disqualified by claims Ms. Rivers should have been the court because she mitigating stated that the factors of age background would make no difference her sen- tencing decision. responses challenged prospective jurors must
be examined context of the entire voir dire. State v. 137, cert. Gaskins, S. 132, 284 C. (2d) 326 S. E. denied, 1120, 2368, 471 U. S. Ct. 86 L. Ed. (1985).Ms. give Rivers stated that she could the state and appellant impartial trial, a fair accept would and follow charged, the law as vote imprisonment could for either life penalty, or the death mitigating and would consider circum stances as instructed Qualification trial court. of this juror proper light of her entire testimony. voir dire Additionally, because pe failed to all use of his strikes, remptory he is any prejudice. unable to show See Singleton, 388, State 284 C. cert. denied, 105 S. Ct.
GUILT PHASE III BRADY VIOLATION Appellant next contends that the state failed to re negotiations” veal “certain held with Threatte before testified, he thereby violating appellant’s right to due *5 502 in ad- background is essential
process. information Some dressing appellant’s claim. trial, appellant a filed motion months before
Several Brady pursuant impeaching to of information disclosure 1194, L. 215 Maryland, Ct. Ed. U. S. 83 S. 150, 92 States, Giglio Ct. (1963), United judge granted motion L. The trial 31 Ed. as follows: any monetary it to grant Paragraph (1)
I as relates witness, any given promised to compensation to whatsoever, any arrangement of nature plea bargain whatsoever, any plea immunity grant any any of nature nature, any pro- any criminal bargain discussion of particular in reference to that ceeding the state witness. any pending it (2) granted is as relates
Number specifically court charges against witness ... The parole, or inquiry probationary, kind into denies in the prison I do not think that is status because attorney. prosecuting prerogative of the state prom- “nothing” had trial, that been At Threatte testified testimony. ised him in return for his hearing of murder and plea on the same counts Threatte’s appellant’s (5) days con- robbery was five after armed held nego- and certain viction. Pursuant to “certain discussions solicitor, counsel and tiations” Threatte’s between guilty with- pled count murder. state Threatte to one penalty; drew to seek the its Notice Intention robbery were remaining murder armed indictments for imprison- prossed, nol was sentenced life and Threatte ment. referred to discus- plea hearing,
At the Threatte’s counsel Threatte testi- sions he had with the solicitor week before that fied at Threatte’s counsel stated trial. during solicitor discussions that “assured” him these everything he could see that” solicitor “would do ap- facility as imprisoned not the same Threatte was pellant and another convict.
Appellant claims failure to disclose the solicitor’s Brady this discussion order and necessitates violated the disagree. reversal. We
First, distinguishable Hinson, this case is from State v. (1987). Hinson, granted 293 S. C. In we leave to move for a new trial where the solic- “[mjoments *6 itor had announced after” the found the appellant guilty that the state’s witness who testified against prosecuted. him would not be The Hinson record “strongly suggested] promise” grant an undisclosed to the immunity. witness Id. at at 121. Such a suggestion present only is not here. The record here contains passing pre-trail by reference to a statement the solicitor assist, possible, keeping that he would if in Threatte from being in appellant. incarcerated the same institution as giving There is no evidence rise to an inference that an immunity grant plea bargain existed, undisclosed or that perjured testifying Threatte prom- himself in he had been nothing. (5) day period ised appellant’s five between sentencing plea hearing ample op- and Threatte’s afforded portunity the negoti- solicitor and Threatte’s counsel to plea agreement. ate the accept The solicitor’s decisions to guilty plea only Threatte’s one count of murder and to logical light withdraw the death notice in were physical testimony presented the appellant’s evidence and in Accordingly, trial. we hold that the trial court’s disclosure order was not violated.
Second, assuming pre-testimony even this “assur given anee” was Threatte not disclosed to the defense, constitutionally reversal is not mandated. Bagley, 667, 673-674, 105 In United States v. S. Ct. (2d) 481, (1985), the United States Supreme Brady Maryland “requires Court stated that only disclosure of evidence that is both to the favorable ” guilt punishment.’ accused (Em and ‘material either to phasis added.) material, majority agreed, Evidence is the “only that, if probability there is a reasonable had the defense, evidence been disclosed to the the result of the proceeding proba would have A been different. ‘reasonable bility’ probability is a sufficient to overcome confidence the outcome.” Id. at 105 S. Ct. at L. 87 Ed. at 494. assuming agreement here,
Even an existed there is no probability reasonable its disclosure would have changed guilty phase result of the trial. tests, bodies, evidence, laboratory physical scene, testimony pathologist’s these factors
crime —all Threatte, testimony only eye- strongly supported the defense of a are confident that disclosure to witness. We by solicitor to assist Threatte pre-trial assurance separate being in an institution from incarcerated jury’s had no effect on the verdict. would have PENALTY PHASE MITIGATING CIRCUMSTANCES IV STATUTORY judge failing Appellant asserts that the trial erred charge statutory mitigating circumstances 16-3-20(C)(b)(2) § Ann. Section found at S. C. Code influ (1985) (murder committed while defendant under the disturbance). Appellant or emotional claims ence of mental subjected psycho physical and evidence that he was to both logical throughout mother his life necessitated abuse his *7 charge. disagree. We the “emotional distubance” judge duty statutory The trial “has a to review all miti- jury any gating instruct the as to which circumstances and merely may supported and not those be the evidence Bellamy, requested by which the defendant.” State v. are (1987) (emphasis added); 359 E. 65. S. C. S. 16-3-20(C) (1985). ample § Ann. While evi- see S. C. Code deplorable conditions dence reconstructed the often under reared, appellant no evidence existed to show which appellant influence of a mental or that acted under the emotional disturbance at the time he committed the mur- Pierce, ders. See 289 C. State (1986))(“mental or emotional disturbance” instruction man- drugs extremely using in- dated where defendant was during crimes). There was no toxicated commission of error jury statutory charge mitigating in the on this refusal to circumstance.
V STATUTORY CIRCUMSTANCE AGGRAVATING sought imposition penalty The of the death based on state alleged aggravating Ann. three circumstances: S. C. Code (armed robbery); 16-3-20(C)(a)(4) 16-3-20(C)(a)(l)(d) § § (offender (murder money); 16-3-20(C)(a)(6) § for caused or directed another to commit murder or committed murder ap- another). jury acquitted agent employee The as or of accordingly robbery; judge refused pellant armed the trial judge charge aggravating submit- that circumstance. money” aggravating on circumstance ted the “murder appellant testimony by appellant’s that basis of cellmate paid (ap- him in had had stated that “someone Florence” judge charged pellant) the murders. The to commit trial his “agent employee” aggravating circumstance based on interpretation “agent” 16-3-20(C)(a)(6) as Section enough broad to include those who murder “on behalf of jury rejected money” ag- another.” The the “murder for gravating circumstance and its death recom- based 16-3-20(C)(a)(6). aggravating mendations on Section finding quoted statutory language: “The circumstance offender murder or caused or directed another to commit agent employee committed murder of another as an person.”
Appellant constitutionality attacks the of his death sentences. He court erred sub contends the trial mitting jury parts” to the “both of Section 16-3-20 (C)(a)(6). charge, appellant argues, This caused finding aggravating return a written that was ambiguous disjunctive. because it was rendered in the We disagree.
First, error, any, portion if submitting the first 16-3-20(C)(a)(6) (“offender Section an- caused or directed murder”) other to commit was harmless. No evidence was presented juror from which a have found reasonable could appellant “caused or directed” other individual to commit murder. guilt phase testimony suggested
No *8 “caused or directed” Threatte to commit murder. Threatte’s testimony unequivocally appellant’s established that mother murderers, motivated the then instructed them to wash their blood-stained mur- clothes leave town after the Sherry Lynn Knight, charged accessory ders. as an murder, appellant’s appellant testified that mother asked brought fingers whether he had back one of the victim’s as pre-murder in “a souvenir” accordance with her instruc- Richardson, police Stephen tions. who of Mark informed murders, appellant’s appellant role testified that Patsy of that he committed the murders on behalf stated theory aggravation, The state’s made clear to Cain Evans. summation, jury during phase was that agent, directing appellant murder not as a committed as an penalty phase principal. The defense’s summation was jury persuading was not his aimed at phases appellant’s clearly agent. Both of trial mother’s jury appellant’s attention on role as his mother’s focused agent.
Additionally, reject appellant’s we contention that 16-3-20(C)(a)(6) separate ag Section contains two gravating interpret circumstances. We that section to legislative aggravating reflect a intent to create one circum- making principal agent in stance both a murder scheme eligible penalty. Legislature has decided for the death distinguish culpability principal not to the relative infirmity in agent. no either that We discern constitutional finding upon aggravating decision or the jury sentences. which the based Next, “agent appellant argues he was not an or meaning 16-3-20(C) employee” within the Section money killings. (a)(6) he received no for the because upheld application “agent employee” We have or aggravating involving circumstance to facts a murder-for- refuse, Gaskins, supra. hire scheme. See We how- State ever, “agent” to limit the definition of under the statute to only paid include those murder. hired Whittington Georgia’s Supreme Court faced this issue in State, (1984), where 252 Ga. 313 S.E. defendant had been convicted and sentenced to death for killing paramour’s her wife. The based its death sen- “agent employee” aggravating tence on the circumstance. 17-10-30(b)(6)(1982). See Ann. ac- Ga. Code Section While knowledging by kill that the defendant was “motivated” to paramour, Georgia her court ruled 4-3 that she was not acting “agent” as an because she was not “hired” Accordingly paramour. at 82. 252 Ga. at the court vacated the death sentence. narrowly “agent” as as
To restrict our construction Georgia’s would lead to an absurd result terms of this “agent” capital sentencing To state’s scheme. construe *9 only paid mean “one who is to act for another” —a hired portion killer —would in 16-3-20(C) result this of Section (a)(6) duplicating aggravating Section 16-3-20(C)(a)(4) (murder purpose receiving committed for money thing monetary value). other We refuse to penalty construe the death legislative statute to reflect a intent to create statutory two aggravating identical circum- stances. The legislative clear intent behind enactment of these subsections was to aggravating create two distinct circumstances. long statutory
We have held that terms should be con- encompass strued plain their ordinary meanings. Hardee, 279 S. C. “Agent,” then, as used Section 16-3-20(C)(a)(6) means one who acts on behalf Whittington State, of another. See supra (Weltner, J., dissenting).
Appellant argues also enough that a construction broad “agent” include him as an 16-3-20(C)(a)(6) under Section would contravene the Stephens, mandate of Zant v.
862, 103 S. Ct. 77 L. (1983) Ed. and render the aggravating circumstance disagree. unconstitutional. We
Zant describes constitutionally indispensable two features any aggravating first, circumstance: genuinely it “must narrow the persons eligible class of penalty”; for the death second, reasonably justify it “must imposition of a more severe sentence on the compared defendant to others found guilty 877, 103 of murder.” Id. at S. Ct. at Appellant at 249. “agency” concedes the factor narrows the persons eligible class of penalty; not, for the death it does he argues, meaningful do so in reasonably justifying manner imposition “agent” death if is construed to include gratuitously those who murder on behalf of another. earlier, 16-3-20(C)(a)(6)
As stated Section legis- reflects a lative intent principal (the to make both the director) and agent (the actor) eligible a murder scheme for the penalty. request One who murders at the or moti- socially vation of another exhibits that most destructive of character “agent” traits —a total lack of conscience. The satisfy ends, merely kills not to his own desires or but satisfy murder, “agency” the desires of another. bankrupt human conscience fueled
product of a another, especially shocking. victim, is who motives of *10 reasonably expected wary might to be of or fear the be helpless by principal, is rendered even more his lack of suspicion agent. agent-murderer any is less
Nor do we believe that the heinous, money no can culpable, his act less because be actually changed principal hands between shown to have Here, agent. Threatte testified that mother money he her for co- wanted Adams killed because owed appellant testified that stated his caine. Richardson also immediately after the murders: motive they [Appellant] said did it for his mama so that word collecting got wouldn’t have trouble her out that she anymore people were more debts and that there two they going money that were to take care of because anybody pay owed and that from then on that didn’t they going their mama to take care of it. [sic] testimony clearly supports The in the record the inference appellant that killed on behalf of his mother furtherance drug agent her acted business. That as an heightened culpability his under the circumstances here and imposition reasonably “more severe sentence” was justified.
VI SOLICITOR’SPENALTY PHASE SUMMATION Appellant penalty phase next asserts that the solicitor’s closing argument constitutionally him denied a fair and disagree. reliable determination of his sentence. We Appellant (3) portions of the attacks three summation. First, penálty the solicitor informed the message surrounding verdict would send a counties that County don’t do that in Chesterfield without “[Y]ou [murder] Next, paying price.” equated the assistant solicitor courtroom, van which the murders were committed with a noting that and ... “Adams Kemmerlin didn’t have the having people good true, peers, benefit of their to sit picked on their trial ... The murderer ... courtroom jury.” Finally, was their argued the assistant solicitor [and] justified imposition penalty: that the facts of the death How I it enough? brought do know was bad Because I you something grimace you you will make when it, anything you thought look at than worse existed in County. Chesterfield proper penalty phase
A carefully is one summation personal appeal tailored so not to as to the bias of a juror, passion preju nor calculated to his arouse Bell, dice. State v. 293 S. (1987); C. 360 S. Reed, C. solicitor must confine his comments to record and its reasonable inferences must focus on characteristics of the defendant and the nature of Reed, the crime. State v. supra. challenged here, third first and comments when summation,
viewed in the context of the entire were *11 no more by than recommendations the solicitor as to appropriateness the of the penalty based on evidence argument adduced at trial. The message” “send a here cer tainly arousing juror did not the passion rise to level of prejudice. challenged The improperly third did not comment inject personal opinion, the solicitor’s rather but served as a legitimate gruesome reminder of the nature of the crime. challenged comment, ill-advised, second while was improperly appellant’s isolated and did not focus on exercise jury right. Instead, of his trial effectively the comment jury’s focused the attention on vicious and arbi- trary carrying illegal executions; character in out the it acceptable Bell, therefore supra. falls within limits. State VII PENALTY PHASE INSTRUCTIONS First, appellant excepts judge’s to the trial charac jury’s sentencing terization of the decision as a “rec throughout ommendation” his instructions. That characterization, appellant argues, conveyed jury to the the impression erroneous that its not binding verdict would be Bellamy’s requirement contravened State v. that the jury clearly sentencing be instructed that its “recommenda- tion” will be followed. penalty jury’s
This state’s death terms statute fact the penalty phase a See verdict “recommendation.” S. C. Code 16-3-20(C) (1985). § Ann. judge’s sentencing The trial in- word “recommendation.” here the did contain structions jury at the outset judge’s statement to the conveyed clearly the however, the idea phase, jury’s: punishment the decision on ultimate give you I charges of murder and will take two You will punish- you the regard will decide forms to that You will applies the cases. it each of murder ment as each of the separate verdict on a and distinct reach punishment. cases. now decide murder You Bellamy requirement. See This instruction satisfied Middleton, C. Next, judge’s failure to appellant argues that the trial jury it to consider specifically instruct was able jury non-statutory mitigating circumstances convinced only statutory mitigating We circumstances. to consider disagree. that, judge jury addition
The trial instructed circumstances, consider statutory mitigating it could also “any extenuating authorized circumstances otherwise jury by He later clear to the those allowed law ...”. made “mitigating which free to circumstances that it was consider grant supported by evidence” [were] impose imprisonment mercy” and life “recommendation of error in all.” was no “for reason or no reason at There 393, 107 Dugger, Ct. S. instruction. U. Hitchcock (1987), appellant, does not cited Hitchcock, United compel a In different conclusion. Supreme unanimously instructions held that States Court only mitigating directing circum to consider those *12 penalty specifically the Florida death stances enumerated there was Eighth violated Amendment. Because statute the here, not man such erroneous Hitchcock does no instruction appellant’s sentence. date reversal of death Finally, judge’s in the trial asserts jury “gov warning struction the to avoid a decision by by prejudice, by passion, or sympathy, erned ignore persuaded jury appellant’s public opinion” case previously mitigation. decided this issue This Court has Owens, contrary appellant’s position. See S. C. 293 Brown, 161, (1987); E. Accord 359 S. 275 California 837, (1987). 107 L. Ed. S. Ct. REVIEW PROPORTIONALITY VIII us that convinces entire record of the review Our prejudice passion, not the result was death sentence ag- finding factor, jury’s of the arbitrary other See supported by the evidence. is gravating penalty here is (1985). The §Ann. 16-3-25 Code S. C. imposed in disproportionate to the excessive or not Gaskins, supra. The convic- capital cases. See State similar accordingly are and sentences tions Affirmed. Gregory J., JJ., Chandler,
Ness, concur. C. Finney, J., dissenting. Justice, dissenting:
Finney, long-established principle that while a In view of trial, perfect he must be is not entitled to a defendant trial, majority I from the decision a fair dissent accorded appellant’s case, being opinion that the affirming this Stewart, abridged. See State v. right to a fair trial was S. C. pertinent facts which are omitted
The record sets forth majority opinion. Appellant Russell Cain James from charged two Dale Threatte were each with and Kenneth robbery arising of murder and two counts of armed counts January an incident which occurred on 1986. from and Cain of its intention Solicitor’s Office notified Threatte penalty against them. On October to seek the death both of 2,1986, joint pretrial hearing a trial court conducted Brady motions, including disposed a motion and a of several (an open evidence favorable to the defendants motion for lawyer present opportunity file). was and had an Threatte’s However, he proceedings. did not make participate hearings appears participation at the and his motions appellant by Office informed The Solicitor’s restrained. would not be that his case letter dated October appellant’s trial with Threatte’s and that consolidated 17,1986. begin Threatte testified on November would appellant’s trial. state at during sentencing deliberating
While the trial, mother, Patsy Evans, his Cain phase of *13 512 conspir- fifty-year sentence plea received a
entered a accessory murder, after the fact counts of acy two to commit accessory before the fact of murder, and one count for which robbery arising the same crimes from armed to death. appellant was sentenced Monday following on the During civil term of court and the court’s Tuesday night death sentence recess, guilty count of pled to one Thanksgiving Threatte of murder and one count The solicitor dismissed murder. robbery against Threatte. counts of armed two MOTION) PHASE GUILT {BRADY legitimate exercise of a recognized as a bargaining is Plea prosecutors discretion; unusual for and it is not prosecutor’s independent plea agreements with co-defendants. to make into, accomplice agreement is entered When such an exchange for truthful usually consideration receives some See, e.g., Giglio v. trial. testimony during the co-accomplice’s 150, 763, (2d) States, 31 L. Ed. 104 92 S. Ct. United 405 U. S. 1326, 1333-34(10th Boley, (2d) F. 730 (1972);United States v. However, imposes 1984). Constitution the United States Cir. the Due Process plea agreements. Under restrictions on Clause, duty provide an accused with prosecutors have a evidence, agreement including plea involv all favorable guilt accomplices, material to either ing testifying which is 667, Bagley, 105 punishment. v. 473 U. United States States, Giglio 3375, (2d) (1985); v. United 481 S. Ct. 1194, supra; Brady Maryland, 83 S. Ct. 10 Hinson, C. (1963). 293 S. L. 215 See also State Ed. E. 361 S. case, disclose his failed to
In the instant the solicitor every- do that he “would to Threatte’s counsel assurance imprisoned not Threatte was thing he could to see that” convict.1The facility appellant and another same as Hinson, from State v. majority distinguishes this case (1987), of the time on the basis S. C. testimony the solicitor’s nolle elapsing between the is not deter- charges. The time factor alone prosequi implication my opinion, raises the that he In the solicitor’s “assurance” penalty against plans Threatte. withdraw his to seek the would Rather, minative of the whether, issue. the test should be *14 together when considered surrounding with all other cir- cumstances, transpired the events logical which lead to the conclusion plea agreement that an prior undisclosed or a understanding tacit existed which infers a lack of adven- in the titiousness solicitor’s actions and inured to the benefit testifying of the codefendant. See Hinson, 361 S. (2d) at 121-22. majority goes further assuming and states that this given Threatte,
assurance was nondisclosure would not mandate reversal because probability there is no reasonable that changed disclosure would have guilt the result of the phase appellant’s of case, trial. In view of the of facts this jury’s problem duress, the jury’s with aggravating the cir finding, cumstances pretrial the solicitor’s assurance to subsequent acceptance Threatte and guilty plea of a with sentencing exposure Threatte, reduced for disagree I with majority’s holding. view, my In acceptance the solicitor’s plea guilty only eyewitness of a from the would have created probability a reasonable guilt that the phase results of the certainly sentencing phase and appellant’s trial would changed. See, have e.g., been Texas, _ U. Satterwhite v. _, 108 S. Ct. (1988). As I read South capital sentencing scheme, Carolina’s a defen dant a death every case is entitled to reasonable doubt; and, particularly during phase sentencing of the trial, to have the fully triers of the cog fact advised and culpability, nizant responsibility potential and bias of all witnesses. process guarantees
Due
right
a
defendant
to a fair
trial,
tending
impinge
evidence
upon
right
subject
should be
scrutiny by jury.
to disclosure and
Under
case,
the facts of this
testimony
Threatte’s
is so tainted or
presumptively unreliable that a new trial
is mandated.
Bagley,
United States v.
SENTENCING PHASE First, charge statutory mitigating the trial court’s on the erroneous, requi- circumstances this case lacks the finding by statutory aggravating site clear penalty. imposition of the death jury juris- American punishment a feature of Capital has been many For framing Constitution. prudence of our since rejected Supreme the notion Court years the United States capital limits imposed some on the Constitution major on the arbitrariness assault punishment. first not man- capital punishment was capriciousness of in McGautha v. Supreme Court’s decision until the ifested L. 28 Ed. California, U. 91 S. C. Ct. rejected arguments that though McGautha Even proceeding every capital punishment then applicable to
were States, addressed a number Court used the United First, opinion. the court addressed arguments in its these *15 capital punish- leaving rejected argument that and unguided discretion of the sentencing issue to the ment fundamentally arbitrary which were invited determinations Second, argument limit- rejected the the Court unfair. only testimony on the issue of ing and evidence admissible opportunity to a guilt deprived an accused of a reasonable penalty See McGautha v. hearing in a death case.. fair Jeffries, Jr., Low, supra; P. J. and R. California, see also (1981). Bonnie, LAW CRIMINAL at 783-84 2726, 238, Georgia, S. 92 S. Ct. 33 In Furman v. 408 U. The (2d) (1972), reversed its course. L. 346 the Court Ed. initially rejected in were arguments McGautha the Court every justify state’s very ones used to the invalidation response capital punishment provisions. In to Furman adopted penalty Georgia, supra, a death South Carolina proceedings in which provided for bifurcated statute that aggravating mitigating cir specified consideration of required a sentence of death could be cumstances was before 16-3-20(C)(a),(b) (1985).See imposed. §Ann. See S. C. Code 1, 581, Thompson, (2d) E. 278 S. C. 292 S. cert. also State v. 1996, 938, 102 (2d) (1982); L. denied, Ct. 72 Ed. 458 456U. S. S. 799, 194, (2d) denied, Shaw, E. cert. State v. 273 S. C. 255 S. 957, 100 437, (2d) (1979); Ct. 329 U. S. 236, (1976). Rumsey, E. 267 S. C. 226 S. South Caro statutory overcomes the fundamental lina’s current scheme Georgia, deficiencies found in Furman v. su- constitutional pra,2 by reducing sentencing body the likelihood that a impose capriciously. would a death sentence See State v. South, 775, denied, 285 S. C. cert. short, 106 S. Ct. L. Ed. In our Penalty capital sentencing
Death Act statutes do not leave unguided jury. to the discretion of a majority’s willing- affirmation of this case exhibits a ness to circumvent Furman and our state’s reformulated penalty upholding statutes the sentence of death in spite sentencing proceeding of an error infested which re- arbitrary capricious Imposi- sulted an determination. tion of the death in this instance cannot withstand scrutiny. constitutional submitting following trial court erred in statutory
aggravating jury: circumstance to the
The offender caused or directed another to commit murder agent employee or committed murder as an person. (Emphasis added.) another S. C. Code Ann. 16-3-20(C)(a)(6) (1985). § reading A literal the statute shows statutory aggravating that it contains two circumstances and is principal intended to make both the agent eligible in a penalty. murder for the death In a case where the evidence shows that the defendant was a principal, part provision then the first of the should be hand, submitted. proving On the other if there is evidence he agent employee, part was an provision the second disjunctive conjunc- should be submitted. Id. The use of the *16 tion “or”3 indicates that the evidence must show is principal agent, either or not both.
The death against appellant sentence verdicts rendered upon jury’s are based finding written that “the offender caused or directed another to commit murder or committed agent murder employee as an findings of another.” These 2“Furman sentencing mandates that where body discretion is afforded a grave on a matter so as the determination of whether a human life should spared, suitably be taken or that discretion must be directed and limited so wholly arbitrary capricious Gregg as to minimize the risk of action.” v. Georgia, 153, 189, (2d) (1976). 96 S. Ct. 49 L. Ed. 3According Collegiate Dictionary (1987), Webster’s Ninth New “or” is used as a function word to indicate an alternative. beyond a doubt erroneously jury determined that the
reflect to commit another appellant “caused or directed to show no evidence The record contains murder.” Thus, it person murder. another to commit appellant caused to the aggravating circumstance this was error to submit finding. jury make such a for the jury, was error and it infirmity majority’s no constitutional Despite claim of jury instance, they ascertain whether cannot in this erroneously findings submitted alternative. on the based its findings, imposition of the ambiguous jury Because certainly jury’s discretion infirm since the penalty is resulting in the likelihood of an unguided misguided, was Georgia, v. su See Furman arbitrary and unfair decision. 862, 103 Ct. Stephens, 462 U. S. pra. See also Zant prophylactic rule of Second, majority contravenes statutory mitigating regarding circum- charging jury a a following a 16-3-20(C)(b)(2)sets forth the as stance. Section mitigating circumstance: the defendant was was committed while
The murder emotional the influence of mental or disturbance. under 16-3-20(C)(b)(2)(1985). Appellant argues §Ann. S. C. Code refusing charge mitigat- erred in this that the trial court clearly that this stat- ing The record shows circumstance. by request supported utory mitigating was circumstance instance, presented was at trial For evidence evidence. abused, neglected showing appellant had been and domi- Furthermore, by it is uncontradicted that his mother. nated murder and di- appellant’s mother conceived the scheme majority Even the admits that there rected its execution. illustrating deplorable ample conditions evidence reared, “no appellant was but reasoned evi- under which under the influence of a to show that acted dence existed [he] ...” emotional disturbance mental or duty statutory to review all miti The trial court has and instruct the on which are gating circumstances Bellamy, 293 S. C. supported the evidence. State Pierce, 430, 346 (1987); S. C. S. E. 359S. deciding statutory mitigating (1986).In whether evidence, supported by the is trial court is *17 only concerned with the of existence evidence not its weight. Bellamy, supra. reasoning major- State of ity specific necessitates that a meet a defendant unarticu- evidentiary lated burden in order establish the existence mitigating of a circumstance at the time of the commission 16-3-20(C)(b) place a crime. Section does such not capital statutory burden on a in order defendant to receive mitigating See, e.g., Patrick, charge. State 289 S. C. my opinion neglect,
It is that the existence evidence appellant by supported abuse and domination of his mother charge. Pierce, requested supra. I Accordingly, would reverse remand this case for a new trial.
In the Matter of AN THE ANONYMOUS MEMBER OF BAR, Respondent. SOUTH CAROLINA
(377 (2d) 567) E.S. Supreme Court