*1 CONCLUSION In our conduct warrants disbarment. opinion, respondent’s of Profes- has violated Rule 1.15 of Rules Respondent Conduct, 407, SCACR, Rule by failing safeguard sional of client funds. has also vio- preserve identity Respondent dishonesty, lated Rule 8.4 conduct by engaging involving fraud, deceit, by engaging con- misrepresentation, justice. duct that to the administration of It is prejudicial is shall be disbarred from the respondent therefore ordered in this shall be retroactive practice of law State. Disbarment 4, 1995, tem- respondent the date on which August this practice from the of law Order of porarily suspended Court.
In addition to the of 37 and requirements Paragraph ac- 413, SCACR, Rule for reinstatement shall be petition that he made full cepted respondent proof until has filed has to all who have lost restitution institutions individuals a result of his fraudulent acts or of mishandling as funds, Lawyer’s trust to include restitution to the Fund for fifteen any payment may Client Protection for make. Within the date shall return days opinion, respondent his certificate of admission to law and file an affidavit practice that he with showing complied with Clerk of Court has 30 of Rule SCACR. Paragraph Disbarred. J.,
Burnett, participating. not STATE, Jerry McWEE, Appellant. Respondent Bridwell
(472 (2d) 235) Supreme Court *3 Dudek, Robert M. of S.C. Appellate Assistant Defender Of- Columbia; B. Huff, James Defense, and Appellate fice of North Augusta, appellant. Condon, Attor- Molony Deputy General Charles Attorney McIntosh, Attorney John Assistant ney Deputy General W. Zelenka, Attorney Donald Assistant General General J. Columbia; R. and Solicitor Barbara Norman Mark Rapoport, Aiken, Morgan, respondent. 5, 1995. Dec.
Heard 12, 1996. Reh. 10, 1996; July Decided June Den. Justice: Burnett, robbery was convicted of murder armed
Appellant a death We consider direct appellant’s received sentence. review mandated Code Ann. peal sentence § and affirm. 16-3-25
FACTS (Scott), accomplice, George and his Wade Scott store, in a killed a man rural convenience stole working In a a cash state gun, register. cigarettes, guilt ap ment admitted twice, the first time shooting the victim pellant acknowledged “by the second time mistake.”1 “by accident” and and Scott had was revealed penalty phase, one, after committed another murder one week and that had solicited kill ex-wife. Scott to killed the firing admitted the shots which second him alleged made do it.
DISCUSSION *4 Penalty Notice Intent to Death Seek the precluded State was seek Appellant argues the death in this case because failed to ing penalty thirty notice of its intention to do so as re give days’ 1995). 16-3-26(A) §Ann. We dis quired by (Supp. S.C. Code penalty phase, appellant During the contended Scott held the store and him kill the victim. back made agree. The record is clear for months to the State’s prior calling trial, the indictment2 for had ac appellant’s attorneys tual notice the State was the death Actual seeking penalty. all the requires. notice is statute (1995), S.E. 116 S.Ct. 133L.Ed.
Parole Eligibility Prior to voir trial appellant’s attorneys asked the whether he would the judge jury during penalty if it found an circumstance recom- sentence, mended a life would not be for eligible pa- role until the service of The thirty years’ imprisonment. judge initially indicated he would such a at give charge. he beginning penalty phase, judge stated would not after all. parole eligibility charge his in the jury charge penalty phase, stated that the terms “life imprisonment” penalty” and “death should be their given plain ordinary meaning, and that no other consideration about the effect of either sentence should jury’s enter into the deliberations. Following charge, jury deliberated two minutes before to the court- returning room asking whether minimum number of must years be served a defendant by sentenced to life before el- becoming igible parole. recharged jury that the terms “life and “death were to imprisonment” penalty” be their given plain ordinary meaning. Citing Simmons v. Carolina, South appellant argues the refusal to
his a life sentence violated parole eligibility given his rights.
Initially, we note this issue is not for review preserved because at never cited constitu tional request give parole eligibility basis Holmes, 259, 464 charge. State S.C. S.E. (1991)(issues Williams, not raised to and ruled on the trial court are not preserved 2Appellant given was first indicted and written notice was on that Appellant challenges validity indictment. of the 1992 indictment. Since was re-indicted in and the 1993 indictment was the one called for trial, we need not reach the issues related to the lawfulness of the 1992 indict- ment.
392 a event, required would have process for In due appeal). fu only appellant’s in this case if eligibility on charge parole would only appellant was an issue and dangerousness ture of a life imposition for ineligible parole upon have been Tucker, Carolina, v. supra; sentence. Simmons South — (2d) denied, (1995), 263 cert. U.S. 319 S.C. 462 S.E. (2d) Southerland, 789, 133L.Ed. State v. (2d) (1994), cert 316 S.C. 447 S.E. (1995), overruled on other S.Ct. 302, 454 grounds, Chapman, (1995). have ineligible Because would not been sentence, of a life re imposition judge’s parole upon a a was not violation of give parole eligibility fusal addition, the refusal to rights. in was not a violation of a this case parole eligibility under the Amendment. See State appellant’s rights Further, the entire carefully reviewing after Young, supra. no evidence the trial initial indication record, judge’s we find influenced either voir eligibility charge he would give parole or the of evidence jurors, presentation the selection of agree of trial. we do not guilt phase Consequently, subsequent with the that the decision not judge’s dissent “fundamentally unfair.” give parole eligibility charge in contends the trial erred refus Appellant also voir dire of on the issue of ing potential jurors to allow parole eligibility and what effect parole eligibility have decision to a life or death jurors’ impose would is not a rele parole eligibility sentence. We Since ineligible parole, vant issue unless the defendant would be it was not an voir dire issue this case. See State appropriate Torrence, 406 S.E. supra; (1991) (Chandler, A.J., see also State v. concurring); Matthews, 1559, 103L.Ed. S.Ct.
Pathologist’s Testimony Sexton, Dr. Joel During guilt phase examination, testified for the State. direct pathologist, Sexton, long the solicitor asked Dr. “How did live [the victim] Appellant objected, with two wounds to the head?” gunshot that.” The trial stating, way knowing “This witness has answered, overruled the and the objection, pathologist immediately unconscious “The could have been person time or could have lived a matter of hours.” died a short or request any did not move to strike the answer later renewed further relief at that time. was inad- opinion that Dr. Sexton’s objection, contending *6 to a rea- because he could not state the time of death missible time, the trial certainty. of medical At degree sonable instruction, offered to a curative de- appellant the admission of the patholo- clined. now asserts disagree. answer mandates reversal. We gist’s ap this issue is barred because Initially, procedurally declined the offer of a curative instruc judge’s have ordinarily tion. an instruction is deemed to Such v. e.g., See State testimony. cured error in the admission of (1993), cert. longworth, — (1994). L.Ed. In any U.S. 115 S.Ct. event, here. Error prejudice cannot demonstrate reversal. Wyatt, prejudice without does not warrant (1995). The evidence of appel S.E. His defense in the guilt overwhelming. only guilt lant’s was that he shot the recocked the “accidently” habit, “mistakenly” out of shot the victim second possible time. evidence about the victim’s suf Any speculative did not to the verdict. fering guilty contribute Circumstances
Aggravating The circumstances were submitted to following aggravating (1) robbery while armed jury during penalty phase: with a deadly weapon; larceny deadly weapon. with a that since both circumstances arose from Appellant contends act, to the violated his the same the submission of both process rights. disagree. have not considered this before Although argument we claim, have rejected in the context of a due we an in the context of argument Elkins, See state challenge. trial con Here, specify failed to at which Conse argument upon.
stitutional he based his provision Holmes, barred. this issue is quently, procedurally Williams, supra; supra. State any event, sufficient evi which would presented during penalty phase dence was factual support conclusion circum stances arose two different acts.3 we Consequently, find error in submission of both aggravating circumstances to the jury. Demonstration Weapon
It is undisputed shot the convenience store clerk and that his Scott accomplice shot and killed their sec- ond victim a week later. the penalty phase, appellant require sought to demonstrate how he held the gun while shooting the second victim. trial sustained relevancy solicitor’s objection, ruling appellant contends constitutes reversible error. We
Whether evidence is relevant or it whether should be in a admitted criminal are within prosecution issues trial judge’s Wyatt, discretion. Evidence supra. is relevant if tends to make more or less fact in probable issue. Id. Appellant argues a demonstration of Scott’s shoot ing technique would have been relevant to that appel show lant acted under Scott’s dominion or under duress shooting *7 the clerk, convenience store and that was a merely minor in accomplice the see killing. first neither relevancy, nor an of abuse discretion in the exclusion of this evidence. on Deterrence
Charge In discussing jury during the charges penalty phase, appel- lant requested on charge general deterrence. to such a the agreed forego charge after solicitor
agreed not to argue argument. deterrence closing De- spite this the agreement, argued, solicitor “The man will con- kill, tinue to ladies and gentlemen. There’s no I don’t question. think I have seen true, from that man anything says, 3Appellant gun brought testified he was armed with a he had the scene. him, While holding gun the victim was still alive with on register. robbery, is, stole a from the cash act This constituted “the taking goods money, property felonious or unlawful personal of or other person presence value from the by by of another or in his violence or Bland, putting (2d) person in fear.” State v. such S.C. 457 S.E. (1995). Appellant then shot and killed and he and Scott took the cigarettes. is, larceny, This theft constituted “the felo taking goods nious of another without the consent of the other ... permanently deprive possession.” Kerrigan [with] an intent the owner of State, object did not anything.” Appellant heart and soul remorse of jury, the trial judge charged to this but after argument, on deterrence. The request charge renewed his was error. We dis- declined. contends this agree. error in the refusal to prejudice
We discern neither nor First, there no preju on deterrence. was give charge went to the issue of requested charge dice because spe while the solicitor’s went to general argument deterrence that a Second, this Court has indicated cific deterrence. only deterrence is when so general appropriate See, licitor it. She did argues e.g., Longworth, supra. here, and thus no was required. not do so Review
Proportionality record, entire we are convinced reviewing After case not the re the death sentence or factor. In prejudice, any arbitrary sult of passion, circumstances is addition, jury’s finding § the evidence. Ann. 16-3-25 See S.C. Code supported (1985).Further, hold the death here is not exces penalty we cap to the in similar disproportionate penalty imposed sive or Sims, 409, ital 405 S.E. cases. See State 1193, 117 L.Ed. (1991),cert. S.Ct. Thompson, S.Ct. Torrence, grounds, overruled on other review). vitae We therefore af (abolishing in supra favorem firm and sentence. convictions Affirmed. JJ., concur. Waller,
Toal, Moore and Finney, C.J., opinion. dissents separate *8 Justice, dissenting: Chief Finney, initially The trial judge granted I dissent. respectfully penalty phase to in the pellant’s request jury parole thirty years would not be eligible and recom- found an circumstance jury to prior initial was made ruling mended a life sentence. This the se- process, influenced jury profoundly voir evi- guilt phase the presentation jurors, lection the guilty had returned jury until after It was not dence. had learned the attorneys that appellant’s verdicts Whether charge. not to give mind and decided changed one, fundamentally it is proper was the ruling not the initial or State, in mid-trial. Butler rules change ground unfair the cir- my opinion, 466, 397 S.E. granted be require of this case cumstances new trial.
Further, in my opinion, refused when were violated rights ex- after the issue was eligibility appellant’s parole — —, 459 dire. See State v. on voir plored This error alone man- A.J., (Finney, dissenting). sentencing proceeding. a new dates reasons, I dissent. respectfully the foregoing For GOURDINE, STATE, Petitioner. Respondent v. Jason (2d) 241)
(472 S.E. Supreme Court