*1 8:15 а. m. Mozingo radio notified the stationed law enforce- officials. ment While Gedra furnished the co-pilot aero- nautical charts from his office to return the necessary plane to its original Atlanta, in base a crew of about six men contem- poraneously began unloading marijuana bales from the plane, trucks, thеm loading into and then vacuuming plane. At that point, Mozingo moved in and arrested those persons The other law present. enforcement personnel arrived almost simultaneously began identifying arrested persons. The majority of those arrested provided false identi- fication.
Not Gedra seeing among arrested, thosе went Mozingo the office. The door was locked and a “closed” sign displayed. called for Having Gedra without receiving any response, a SLED official kicked open the door. Following short search inside, the officialsfound and arrested Gedra.
Further narration of the events is It unnecessary. is difficult to conceive оf this undertaking planned and effected being without full assurance of the cooperation participation on the am part I satisfied that the airport manager. trial Gedra’s judge justified motion directed denying verdict and in to make subsequently allowing ultimate determination of Gedra’s involvement. Accordingly, I of majority opinion. dissent from this respectfully portion J.,
Gregory, concurs. STATE, Larry Respondent, Gleaton, GILBERT and D. J. Appellants. (2d) 179)
(283 S. E. *3 Manee, III, C., Washington, D. W. appellants. Robert for McLeod, Senior Daniel R. Asst. Atty. Gen. Gen. Rrian Atty. Crowe, Gibbes, Columbia, Gen. G. Atty. Kay Asst. and P. Myers, Lexington, respondent. V. Sol. Donald for Bruck, Columbia, David I. amicus curiae S. C. Commis- Appellate sion of Defеnse. 14, 1981.
September
Ness, Justice: This is from a retrial where the appeal appellants were given robbery death sentences the armed and murder affirm. Ralph Stoudemire. We
On previous convictions were appeal, appellants’ upheld but their death sentences vacated remanded on the were basis argument during sentеnc- improper prosecutorial Gilbert, ing phase of the 273 S. C. bifurcated 690, 258 S. We review pursuant E. §16-3- 25, mandatory sentencing proceedings. review of The original opinion appeal written Justice Harwell and the Court concurred unanimously except for portion addressing the double jeopardy issue.
Appellants first challenge various the trial rulings by judge concerning the qualifications jurors. of certain relative of a competency prospective juror to be em panelled for a specific trial is a matter addressed sound discretion of the trial decision will judge whose not be dis turbed unless the evidence. State v. wholly unsupported by Watkins, 259 S. C. 191 S. E. State (1972); Franklin, 226 S. E. (1976). No abuse of discretion appears.
The appellants claim that the trial erred judge by qualifying a juror even she stated voir though allegedly during dire that she would be the lack unable to consider of a prior criminal *4 record as a factor mitigating against imposition of the death penalty.
This Court will only not сonsider isolated statements made voir during dire but will examine the entire collo quy the venireman in order to review his quali this, fications. Having done it is clear that the challenged juror When properly qualified. by the trial questioned confusing made judge subsequent inquiries by appellants’
57 counsel, that she due con- give trial stated would juror instructеd factor the court mitigating sideration to any her to consider. by that the trial erred judge
The also claim appellants who, despite jurors, excusing prospective another contrary, instruction to the revealed the trial judge’s in a case and serving capital that she might her priest Church’s stance of the Catholic sоlicited him his opinion of There was no abuse of capital punishment. on issue of this would have in person seating discretion. The possible this into the deliberations of influence troduced an outside jury.
An assertion is also made that the trial erred judge failing disqualify prospective alternate venireman read an who account of the trial matter in his news the voir dire during paper process. to the venire According man, the article stated that trial were on appellants determination the sentence for to be them imposed on the murder of Stoudemire. He testified that in the nothing article had influenced him and that he would hear have to before he could offer an testimony opinion proper on sentence. There was no abuse of discretion qualifying alternate juror. next contend certain
Appellants photographs of the crime scene were admitted since improperly they irrelevant as to the allegedly question proper wеre to inflame allegedly designed passions sentence and were were disagree. photographs We ad jury. properly the circumstances of the State mitted evidence of crimes. denied, 194, 799, Shaw, S. E. cert. 444 S. C. 255 (2d) 273 437, 957, 329 (2d) S. Ct. 62 (1979), petition U. S. 100 1027, 694, denied, U. S. Ed. 62 L. for rehearing denied, Ct. cert. U. S. 100 S. (1980), denied, petition rehearing Ed. 62 L. 1073, L. 1104, 100 62 Ed. U. S. Ct. the scene inadver was aрparently
One photograph the trial it inadmissible judge after ruled admitted tently harm- irrelevant. We find error allegedly because *5 less, however, the one photograph simply since more view scene, it the and since was neither crimes irrelevant nor it Like other inflammatory. photographs demonstra- tive of the circumstаnces the crimes. State v. See Campbell, 191 S. E. (1972).
The appellants contend that they should been have testify allowed introduce witnesses to why the death penalty is allegedly proper punishment. not form of This has no merit. exception Nothing in the record supports the contention addi appellants sought even introduce rate, At any witnesses. tional of the death sen propriety as tences a form of punishment is a matter addressed to the discretion of the legislature. has legislature determined capital punishment is an apropriate mode of punishment this in State. This Court judicial will not sacrifice resources in considering philosoрhical correctness of capital punish since it ment has been in legislatively approved a statutory complex we have examined previously and found to con Shaw, v. Linder, stitutional. State supra; C., S. E.S. 335.
Appellants’ allegations that their confessions should have been suppressed have been considered Cоurt and resolved These adversely appellants. to the Gilbert, are matters therefore res S. judicata. State v. 273 C. 690, 258 S. E.
Finally, appellants allege trial court violated constitutional provision against jeopardy by sub mitting jury’s an cir aggravating consideration cumstance not found in by the the first sentencing disagree. We
The double jeopardy clause Fifth Amendment basi- cally prohibits reprcsecution same offense. For the time Supreme Missouri, Bullington first . . Court , . U. 68 L. Éd. (2d) held (1981), the double clause applies equally sentencing of a trial. phases guilt trial,
At the first two circumstances aggravating were sub- to the sentencing mitted but found they “robbery armed with a as an cir- deadly weаpon” while trial, cumstance. At the second both while “robbery armed with a the use of deadly weapon” “larceny circumstances, were deadly weapon” *6 to exist a reasonable doubt. now assert the trial court erred in
Appellants submitting with the use a aggravating “larceny circumstance of of at the second trial because the deadly weapon” against failure of the find or him on that issue in jury to for the first trial amounted a that this cir- finding aggravating cumstance did exist. not
We hold there is no merit to assertion of double appellants’ find or him against as the failure of the on the larceny circumstance of with the use of a deadly would not the submissiоn of the weapon preclude in itself suf other valid circumstance which was Ger ficient to call for the the death application penalty. of Swenson, 368, ber 371 ding 1970), 435 F. Cir. (2d) (8th denied, 91 29 L. Ed. 682 cert. 403 U. S. S. Ct. (2d) (1971). case,
Under the particular facts of this appellants’ argument. that the failure him jury’s for or on the issue against larceny of with the use at deadly of the first sen- weapon, trial, was tencing tantamount to an that acquittal on issue is merit. without is an essential element Larceny offense offense of robbery, robbery commonlaw is essen- “[t]he Brown, tially larceny commission of with force.” 48, 49, Therefore, 260 S. E. 719 it was (2d) have had necessary appellant for the com- mitted a as well as element larceny finding additional he used force to accomplish larceny. Toteo,
Moreover, remember, in U. S. v. we must as held 377 1587, 1589, 12 463, 466, U. (1964), an accused to be right given fair “[corresponding interest one whose punishing guilt trial is the societal is such a trial.” clear he has after obtained have decided death is the sentеncing juries appropriate Two clause does punishment appellants. here. not protect appellants determine under 16-3-25 to “whether the
We are required § or to the disproportionate sentence death is excessive considering cases both the crime in similar penalty imposed in this the recоrd case and com- Considering and defendant.” Roach, v. Shaw and 273 S. it with State C. paring v. Hyman, S. E. State S. C. 281 S. E. (1979), find the death penalty proportionate we (1981), to a crime this nature and to the crime and defendants in this case. We affirm.
Affirmed. C. J., J., Acting
Lewis, R. Asso- Gregory, Moss, Joseph ciate Justice, concur. J.,
Harwell, dissents. *7 Harwell, (dissenting): Justice dissent, I respectfully that the cоncluding State violated the constitutional provision against double in the jeopardy1 sec- ond trial submitting for jury’s consideration an circumstance which the in the jury first sen- tencing had proceeding considered but had failed to exist beyond a reasonable doubt.
Section the Capital Punishment 16-3-20(C) Statutory in Complex provides part: “The if its pertinent jury, verdict death, be a shall in designate recommendation of writing, by all circum- signed jury, members of stance or circumstances which it beyond a reasonable doubt.” (Emphasis added).
The language Section man- 16-3-20(C) quoted above that a dates shall in which of those designate writing provides The in Fifth Amendment of the United States Constitution any part: person subject “. .. nor shall offense be be for the same put in life .” twice or limb . . I, provides South Carolina Section 12 Constitution at Article in person subject put part: be “No shall the same twice offense liberty life . .” in or . statutory aggravating circumstances it has found Thus, reasonable doubt. when several such circumstanсes are submitted to the but a designation a few is made, the only legal conclusion to be drawn is that the un- designated, submitted circumstances were not established be- yond reasonable doubt.
The United States Supreme Court recently applied the principles of double jeopardy prohibition to the sentencing portiоn of the bifurcated capital Missouri, Bullington S....., ... U. 101 Ct. 68 L. Ed.
In Bullington the
Court held that
Supreme
once the sentenc-
ing jury recommends a life sentence the State may not on
retrial of the matter
seek
again
the death penalty. “By enact-
ing
capital sentencing procedure that resembles and is like
a trial on the
innocence,.
issue of guilt or
. . Missouri explicitly
requires the jury to determine whether the prosecution ‘has
proved its case’ .... A verdict of acquittal on the issue of
is,
or
guilt
course,
innocence
absolutely final. The values
underly
...
principle
are equally applicable when a
jury has rejected the State’s claim that the defendant deserves
die . .” . .
.,
.
. U.
. .
S.....at
.
The above statement follows logically from the rule of law as restated in United Francesco, States v. Di , .... U. S. ... 66 L. Ed. (1980):
“An
acquittal
accorded special weight. “The constitu-
tional protection against double jeopardy unequivocally pro-
hibits a second trial
an
following
acquittal,’ for the ‘public
interest in the finality of criminal judgments is so
strong
an acquitted defendant may not be retried even though the
acquittal was based upon an egregiously erroneous founda-
*8
tion’. Arizona v. Washington, 434 U. S.
824,
at
829],
54 L. Ed.
(2d)
717. The law ‘attaches
[497]
at 503
particular
[98
S. Ct.
significance
Scott,
to an
United States v.
acquittal.’
437 U. S.
[82]
at
91,
S. Ct.
98 2187,
at
2193,
57 L. Ed.
(2d)
65.” .
. .
U. S. . . . at
.,
433,
. . .
Carolina
62 a recom- of the double purposes guarantee,
For
the death issue.
of life
an
acquittal
mendation
must extend
principles
that the
I believe
784,
at
Benton v.
U. S.
89
Maryland,
the situation
bar.
2056, 23
that when guilt
Ct.
holds
(1969)
S.
is established as to one crime but
reasonable doubt
beyond
as to a second
established
reasonable doubt
is not
first,
a re-
tried with
if the defеndant obtains
crime
the
then
tried a
time
the
on
he
not be
second
appeal, may
versal
See,
Kirby,
crime not
at the
original
established
The
rule
I quote approval Silhan, C. in State 302 N. Court Supreme the North Carolina 223, 275 S. 450 (1981): E. (2d)
“If upon defendant’s of a death the case is appeal sentence remanded for a new double hearing, jeopardy pro- hibitions state from relying any would not the on preclude it evi- aggravating circumstance which offered sufficient at the dence from and which was either hearing appealed submitted, or, not then the if the then jury jury submitted to it to dictates a jeopardy found exist. The double would [sic] the circum- any aggravating state from on preclude relying at stance of it insufficient evidence the hearing which offered This be tantamount to state’s hav- from. would appealed an essential element ing offered insufficient evidencе of state, case the because criminal offense in which of double considerations, could the defendant even retry not it had sufficient evidence which new if could be offered at a Similarly prohibition would against preclude relying, state from at a new sentencing hearing, any on aggravating circumstance the existence of which from, it, at jury hearing appealed failed upon considering find. The jury’s failure to the existence of the aggravat- circumstance, it, it had after would tanta- ing considered having mount to defendant’s been this circum- acquitted stance.”
I the death Gilbert and would vacate sentences of Gleaton matter for a sentencing proceeding. new and remand 3 Any that the error is since one other contention harmless exist reasonable is without circumstance doubt life if an can recommend even circumstance merit. Thus, only speculate properly we can is to whether established. robbery cir recommended death had armed would have speculation it This is for consideration. been submitted cumstance arbitrary in a case nature. factor which intolerable of this sort