Richard Charles Johnson, the appellant, was indicted for the murder of Bruce K. Smalls (Trooper Smalls), a South Carolina State Trooper. A jury convicted appellant of murder, and he was sentenced to death. We revеrse and remand this case for a new trial.
*323 In September, 1985, Dan Swanson (Swanson) was traveling through North Carolina in his recreational vehicle on his way to Florida when he picked up appellant, who was hitchhiking. The following day Swanson and appellant picked up hitchhikers Curtis Harbert (Harbert) and Connie Hess (Hess), alias Julie Smith, on Interstate 95. This group made stops in Florence County and Clarendon County, South Carolina, where Swanson parked along the interstate to rest. As Swanson slept, the appellant fatally shot him with a .357 caliber gun. Appellant and Harbert wrapped Swanson’s body in blankets and sheets, tied it with wire and concealed the corpse in the vehicle underneath а mattress.
The appellant, Harbert and Hess continued their journey in Swanson’s vehicle with appellant driving. Appellant had been drinking liquor and began driving erratically. Several motorists noticed his reckless operation of thе vehicle, including a truck driver who notified Trooper Smalls. The officer stopped the vehicle and during the questioning, appellant shot Trooper Smalls six times, killing him.
Appellant alleges he was denied due process of law when the solicitor argued to the jury during the guilt phase of the trial that appellant had shown no remorse for his actions.
An accused has the constitutional right to act as his own counsel, confront witnesses, plead not guilty, and рut the state to its burden of proof.
State v. Brown,
289 S. C. 581,
*324 In the instant case, appellant pled not guilty and testified that he did not recall shooting Trooper Smalls. In his closing argument, the solicitor made reference to appellant’s alleged memory lapse and stated:
When he got on that stand, he said, “I don’t remember. But if I had done it, I’m sorry. ” Did you hear him say that? Don’t you think he ought to apologize ... (Emphasis added.)
We hold the solicitor’s improper refеrence to appellant’s lack of remorse was error because it was a comment upon his constitutional right to plead not guilty and put the state to its burden of proof. It would be an irreconcilable equivoсation for the accused to plead not guilty, present a defense, and simultaneously express remorse for acts he denied committing. Under these circumstances, an apology would have violated appellant’s Fifth Amendment right not to incriminate himself as well as his Sixth Amendment right to present a defense. Comments by the prosecution upon an accused’s failure to express remorse invite the jury to draw an adverse inference merely bеcause the defendant did not appear penitent.
Appellant next alleges he was denied due process of law and the right to a fair trial when the court allowed the state to introduce detailed evidence of his prior acts or crimes because those past acts were either irrelevant or the prejudicial effect of the evidence outweighed its probative value.
It is well established that evidence of оther crimes or prior bad acts is inadmissible to show criminal propensity or to demonstrate the accused is a bad individual.
See, e.g., State v. Gregory,
191 S. C. 212,
At the trial the state was allowed to introduce evidence of grand larceny, armed robbery and Swanson’s murder allegedly committed by appellant in Clarendon County. The theory advanced by the prosecution to support admission of this otherwise inadmissible evidencе was that commission of these crimes was so closely related to the principal crime that revelation of appellant’s criminal behavior was necessary to show motive and intent. Specifically, the state argued that “[t]he facts and circumstances of Swanson’s homicide reasonably tended to demonstrate appellant’s state of mind ... at the time of the murder of Smalls.”
The state introduced at the trial for Trooper Smalls’ murder, inter alia, (A) appellant’s prior statement concerning Swanson’s murder (admitted for impeachment purposes to illustrate that despite appellant’s alleged lapse of memory concerning the occurrences of September 27,1985, he had previously recited the events clearly); (B) a photograph of Swanson’s body; (C) Deanna Swanson’s identification of items allegedly taken in the armed robbery and grand larceny; (D) Hess’ and Harbert’s detailed testimony about Swanson’s murder, the armed robbery and grand larceny; and (E) a pathologist’s testimony as to the etiology of Swanson’s wounds and the cause of death. It is uncontradicted in the record that Swanson died from a gunshot wound to the head and that the body was concealed in the camper. Based upon this record, we conclude that the pathologist’s testimony and the photograph of Swanson’s body were irrelevant as introduced to show motive and intent, and their admission constituted error.
We now address appellant’s argument that the admission of details surrounding the relevant prior-acts evidence prejudiced the appellant because the prejudicial effect outweighed its probative value. In examining the issue of admissibility of prior-acts evidence, this Court is required to determine whether the prejudicial effect of the evidence
*326
outweighed its probative value, which could result-in a jury reaching a “legally spurious presumption of guilt.”
State v. Wilson,
Whether appellant suffered prejudice must be ascertained on the basis of the entire record. Once the trial court makes a determination that evidence of prior bad acts or criminal behavior is admissible, a clear distinction must be made between the amount of proof required to adequately establish a material fact or element of the crime charged and the point at which such prior-acts evidence becomes prejudicial. Considering the volume of testimony and evidence presented about the armed robbery, grand larceny and Swanson’s murder, as well as the solicitor’s numerous references to appellant’s prior crimes in closing argument, it can be asserted with reasonаble certitude that the prejudicial impact of the excessively detailed evidence presented concerning appellant’s prior crimes outweighed its probative value. Much of Hess’ and Harbert’s testimony еstablished no material fact or element of the crime for which appellant was on trial; instead, it served to prejudice the jury by focusing its attention on appellant’s propensity to commit criminal acts.
1
Under the tоtality of the circumstances, we conclude that the admission of extensive evidence in detail of appellant’s prior criminal conduct was an abuse of discretion, prejudiced the jury, and constitutes reversible еrror.
See, e.g., Kotteakos v. U.S.,
*327
Finally, appellant contends he was denied due process of law when the Court failed to instruct the jury that it shall not consider parole eligibility, and the terms “life imprisonment” and “death sentence” should be understood in their plain and ordinary meaning.
See, State v. Atkins,
The legislature has enacted a plan of punishment, which is either life or death under the laws of this state. In the sentencing phase of a capital case, the jury’s sole function is to make a selection of life imprisonment or the death penalty, based upon the circumstances of the crime and the characteristics of the defendant, and not to legislate a plan of punishment.
See, e.g., State v. Plath,
281 S. C. 1,
During deliberations in the sentenсing phase of appellant’s trial, the jury returned to the courtroom seeking to determine whether it was possible to recommend a life sentence without parole. The Court instructed the jury as follows:
Ladies and Gentlemen of the Jury, the possibility of parole is of no concern of yours, and you should not consider whether or not the Defendant will or will not be paroled. That’s a matter that is not of our concern ...
In
Norris,
this Court held that an instruction to clаrify a jury’s concern about parole should also contain a directive that “life imprisonment” and “death sentence” are to be understood in their ordinary and plain meaning. 285 S. C. 95,
Under the circumstances of this case, we conclude that the solicitor’s comment on appellant’s lack of remorse, the admission of the superfluity of testimony of appеllant’s prior bad acts and crimes, and the insufficient Norris charge denied appellant the fundamental standards of due process and a fair trial.
*328 Based upon our disposition of these issues, it is not necessary that the Court addrеss appellant’s remaining exceptions. This case is reversed and remanded for a new trial.
Reversed and remanded.
Notes
For example, Harbert testified that appеllant placed a .357 pistol to Harbert’s head with the hammer pulled back.
This Court has diligently attempted to avoid imposing impractical constraints on the introduction of evidence in the retrial of this case by not speсifying what prior acts will or will not be admissible. To some extent, this will depend upon the witnesses available and the content of their testimony. Further guidance in establishing parameters for the admissibility of prior-acts evidence is set оut in State v. Lyle, supra. See, also, G. Lilly, An Introduction To The Law Of Evidence, at 131 (1978):
A trial judge should not perfunctorily exclude or accept evidence of other crimes or bad acts, but rather determine the admissibility on the basis of such factors as probative value, potential prejudice and the availability of alternative forms of evidence.