State v. Shafer

mail to Mr. be delivered authority respondent’s to direct office. Hudgens’ Toal, H. Jean C.J.

/a/ THE

FOR COURT

531S.E.2d Respondent, Carolina, of South STATE SHAFER, Jr., Wesley Appellant. Aaron

No. 25120. Supreme of South Carolina. Court 7, 1999.

Heard Oct. 8,May 2000. Decided Brack, Columbia, David I. for appellant. Condon,

Attorney General Charles M. Chief Deputy Attor- ney McIntosh, General W. John Deputy Attorney Assistant Zelenka, General Donald Attorney J. Assistant General S. Creighton Waters, Columbia; and Solicitor Thomas E. York, Pope, respondent.

BURNETT, Justice: Appellant admitted he shot Ray and killed Broome while attempting rob convenience store where Broome was working. Appellant killing maintained the mal- without murder, ice.1 A jury convicted attempted armed robbery, conspiracy. He was sentenced to death for murder and twenty years’ consecutive terms of imprisonment and five years’ imprisonment, respectively, attempted armed robbery conspiracy.2 Appellant appeals.

FACTS Around 11:30 p.m. April appellant and Justin Porter store, drove to the Hot Spot, convenience in Porter’s trial, During phase penalty 1. appellant’s expert the witness testified appellant response shot Broome to a lifetime of abuse and violence. statutory aggravating 2. The found the circumstance of murder while attempted robbery in the commission of an armed while armed 16-3-20(C)(a)(1)(d) deadly weapon. with a (Supp. § S.C.Code Ann. 1998). they Appellant and Porter entered the store. When truck. truck, Porter, driver, to the the back tires spun returned the gun his father’s and bullets appellant, using of the vehicle and earlier, fired five from the passen- he four or shots purchased away. drove ger they window as a.m., Porter, 1:00 and Adam approximately appellant,

At to the left Hot Spot. Mullinax returned Hot Witnesses the they suspected because trouble. Spot Porter, Spot. Hot and Mullinax entered the Mul- Appellant, linax went into the bathroom then returned truck. store, into then Porter also went the stood Appellant and the Hot few minutes. Broome was Spot outside While Hot away register, from cash Porter entered the He Spot. the He open to the cash but was unsuccessful. register tried returned outside. the Broome had appellant again.

Porter and entered store Appellant to to check- register returned booth. went away. counter shot Broome from several feet Broome out and side Appellant fell to the floor. walked another over the register, gun, register fumbled with the leaned counter, Appellant a second time.3 and and shot Broome register cash failed. attempt open Appellant Porter’s There evidence Porter appellant and Porter left. is no money shooting. asked Broome before and fled appellant Three women arrived as Porter young of the women Spot jumped the Hot into truck. One floor, store, on the and telephoned into the found Broome ran arrived, police Broome services. emergency When head.4 He had been shot twice breathing. was still hospital. Broome died at the gun shirt Mullinax’s around

Appellant wrapped hid his shirt Porter’s initially hid it in the woods. He own shooting, hours after the elsewhere. Twelve shirt going store he an at another convenience employee told basketball. park shoot firing Appellant eight second shot. seconds before waited Spot were on the store’s recorded 4. All the events inside Hot security camera. arrest, investigator After an appellant his asked had anything appellant Broome done to cause Appellant to shoot. responded: sitting “No. We were around in the woods talking him, about what we were to do with I’m going the one gun, just and I I guess had snapped.” ISSUES5 by I. trial court Did the err to instruct refusing jury appellant ineligible? by

II. Did the trial judge granting err State’s motion to both prohibit prosecution from defense referring religious to the Bible or using during references closing argument? by

III. Did refusing err to allow or, the record reopen present evidence on deterrence alternatively, for a curative instruction after the solicitor argued general effect deterrent of the death penalty?

DISCUSSION I. argues, reasons,

Appellant for various the trial court erred refusing jury instruct the he was parole ineligible. We disagree. closing

After relying on Simmons v. South arguments, Carolina,

appellant requested the trial court instruct he would be ineligible parole. The trial court denied the request.

Thereafter, the trial judge instructed the “life impris- onment until means the death of the defendant.” He later deciding stated: whether sentence the “[i]n defendant to death or to life I imprisonment, remind you that death means just says, what it death. imprisonment Life means incarcera- tion of the defendant until death.” his deliberation,

After three and one-half hours of the jury returned with the following questions:

1. Is there remote chance for someone convicted of parole? murder to become 5. sentencing phase All appellant's issues stem from the trial. someone convicted what conditions would Under murder eligible? the trial court appellant agreed

Regarding Question until the “life means imprisonment instruct should the read the of and court requested death the offender” 16-3-20(A) explains no sentenced to person §of which portion form of any is or other imprisonment life a life Appel- or credits which would reduce sentence. release After the Question 2 could not answered. stipulated lant be response to judge parties informed the of his intended trial judge the trial delete jury’s requested questions, appellant to parole eligibility.6 reference as jury’s questions The to the follows: judge responded trial to recom- Your consideration is restricted to what sentence that is what you you mend. I will remind what recommend I as Section 16-3-20 of our Code impose judge. will trial to states process Laws this case we’re applies as that, imprisonment life purposes ‘for the this section or eligibility means until the death of the offender.’ Parole not for ineligibility your is consideration. objection stating, “we renew our

Appellant excepted would Fourth, Fifth, Sixth, Eighth, and Fourteenth under Constitutions.” Amendments of the Federal State exception. noted the trial

A a charge entitled to Appellant argues he was dangerousness his placed after the future ineligibility solicitor a parole ineligibili- in issue. He contends Simmons mandates right his give violated ty instruction refusal process. disagree. to due We future the defendant’s 'dan places

When only sentence at issue and the available alternative gerousness due imprisonment parole, life without penalty death ‘‘[yjour charge the follows: judge stated he would as 6. The trial will, I as what to recommend. is restricted to sentence consideration you 16-3-20 of judge, impose the recommend. Section sentence provides purpose of this Carolina Code of Laws South Parole imprisonment the death the offender. section life means until your eligibility consideration.” is not process entitles the defendant to inform the he is Id.; Williams, ineligible. 468 S.E.2d process Due is violated when the State “raise[s] specter dangerousness general- future [the defendant’s] ly, then but all efforts to demon- thwart[s] [the defendant] that, intimations, contrary strate he prosecutor’s never thus, view, on parole would released in his would not society.” Simmons, danger future pose at (1994) (plurality opinion). Appellant was tried under new sentencing scheme January which became effective on 1996. S.C.Code Ann. § scheme, 16-3-20 (Supp.1998). Under new sentencing 1) 2) death, can be sentenced to life without the 3) possibility of parole, mandatory thirty year minimum held Simmons recently sentence. We inapplicable under the new scheme because life without possibility of parole only is not the legally available sentence alternative Starnes, death. (2000).7 Accordingly, appellant’s process rights due were not judge’s violated the trial refusal to instruct jury appel the parole ineligible. lant was Simmons mandates

Appellant argues parole ineligibility argues when future dangerousness and jury’s sentencing recommendation is limited death or parole, life possibility without the of even though some other read Simmons so narrowly. sentence is available. We do terms, Simmons By requires its own instruct the defendant parole ineligible only is if no other death, sentence than other than life without the of possibility Simmons, is legally available to the defendant. parole, (O’Connor, J., concurring) at 178 (“[although only alterna- tive sentence to death under state law was life imprisonment ”.) added). the possibility parole... (emphasis without of This supported by interpretation jurisdic- is decisions from other v. Angelone, (4th Cir.1999) tions. Ramdass 187 F.3d 396 (Simmons if, is inapplicable at time of sentencing proceeding, Starnes, statute, suggested, arguable we the terms is under of it thirty years defendant could be sentenced to more than and be discussion, parole thirty years. purposes after service of For of this parole ineligible. we assume was

299 law; state hence where parole eligible is under defendant defendant’s third murder yet had be entered for judgment conviction, under “three strikes” parole eligible defendant was Flores, (5th Cir.1995), law); United States v. 63 F.3d (1996) denied, 87, 825, 136 L.Ed.2d 43 cert. 519 U.S. 117 S.Ct. (because district court with discre sentencing guidelines vest downward, life life sentence without adjust tion sentence than only legal is not sentence other death possibility therefore Simmons is and, might receive which defendant Scott, (5th Cir.1994), Allridge v. 41 F.3d 213 inapplicable); denied, 1108, 1959, cert. 514 U.S. S.Ct. 131 L.Ed.2d 851 (1995) (Simmons applies ineligible where defendant is capital law; if Simmons apply does not even as a matter of People Simpson, unlikely paroled); it is defendant would denied, cert. 671, 1228, 117, 172 Ill.2d 216 Ill.Dec. 665 N.E.2d (Simmons 436, 519 U.S. 117 S.Ct. 136 L.Ed.2d statutorily eligible inapplicable defendant where imprisonment); natural life a sentence less than denied, cert. McLaughlin, 341 N.C. 462 S.E.2d (1996) (Sim life mons to death is not impris where alternative inapplicable appellant’s At time possibility parole). onment without deliberations, began three alternative sentences were its one alternatives to was not life available. Since of these death Simmons inapplicable.8 possibility parole, without Although inapposite. are 8. The dissent contends the cases cited herein case alternatives under consideration each referenced capital sentencing may above from in South Carolina's new differ those statute, process requires support the conclusion due each of the cases parole ineligible be informed the where possibility only sentencing are death or life without alternatives argues dangerous- prosecution the defendant’s future and the above, Flores, of cited the Excepting ness. in each the cases therefore, process parole eligible, due did not mandate defendant was Flores, parole ineligible. jury was the informed the defendant be ineligible, judge depart- have although parole the federal district could sentencing imposed a less life guidelines and sentence than ed from the process require jury Accordingly, did not the imprisonment. due fully parole ineligible. in v. As discussed informed Flores Starnes, possibility the supra, without of because death life statute, only under the new are not the sentence alternatives process require juiy not the be informed the defendant due does parole ineligible. B.

Appellant contends the failure to inform the jury he was ineligible Eighth violated the Amendment prohibition against arbitrary the of death penalty.9 infliction the He specifically argues the failure to inform the his parole prevented him from ineligibility presenting mitigating evi- of a support dence sentence less than death and diminished the reliability jury’s sentencing light decision. In statute, new sentencing he asks the Court to reconsider its policy prohibiting from informing parole ineligible. Initially, note properly we this issue is not preserved appellate consideration. After the trial judge responded jury’s question, appellant excepted stated he “on basis of the Eighth Amendment.” He no explanation offered argument support exception. Appellant’s objection supplemental instruction is simply vague too for the Bailey, Court review. State v. S.E.2d review). (general objection nothing leaves Court to Clearly, appellant now, never as does argued, he that Eighth requires Amendment ineligibility as mitigating evidence and reliability to ensure the of the sen imposed. Co., tence J.F. Cleckley McKissick v. & (an objection S.E.2d 67 (Ct.App.1996) should be sufficiently specific to into bring precise focus the nature of alleged error so that it be reasonably can understood by trial judge). event,

In any Eighth Amendment requires death arbitrarily. sentence be imposed Jones v. United States, 373, (1999). 2090, 527 U.S. 119 S.Ct. 144 L.Ed.2d 370 It prohibits the from limiting the sentencer’s consider of “any ation mitigating relevant evidence” which could cause to impose decline the death penalty. Payne v. Tennessee, S.Ct. 115 L.Ed.2d 720 Oklahoma, citing Eddings 104, 114, v. Supreme United States has Court “deferred to the State’s choice substantive factors penalty Ramos, relevant determination.” California 9. U.S. Const. amend. VIII.

301 1001, 992, 3446, 77 1171 103 S.Ct. L.Ed.2d 463 U.S. the eligibility is relevant to deter- parole Whether Id.; v. see South Simmons law. is a matter of state mination Carolina, 2187, 154, 176, 114 L.Ed.2d 133 129 512 U.S. S.Ct. (“[t]he (O’Connor, to J., whether not concurring) decision generally early the release jury possibility inform States.”).10 left Carolina, parole eligibility is not relevant

In South Young, v. jury’s sentencing considerations. State 319 S.C. (defendant (1995) 33, parole eligible 459 84 who was S.E.2d not on thirty charge parole entitled years after service the jury to inform the eligibility). reftisal Eighth not violate the eligibility does defendant’s Id. Amendment. explicitly Eighth have ruled whether

Although we never informing to a charge Amendment entitles defendant no jury eligible, precedent suggests such he Torrence, v. 45, State In 305 required.11 instruction is S.C. (1991) (Chandler, J., concurring), Court to a parole ineligible prior who was due held defendant not to a for a violent crime was entitled conviction v. informing parole ineligibility. of his Southerland, cert. denied 377, (1994), 447 862 S.E.2d (1995), 1166, 1136, 115 1096 U.S. S.Ct. 130 L.Ed.2d 513 302, grounds Chapman, v. other overruled on no (1995), Eighth concluded there was S.E.2d 317 we 454 the trial did instruct Amendment violation where parole ineligible but defense jury the defendant was “life means the defendant will imprisonment” argued counsel In Simmons v. South Car prison. never be released from olina, (1994), S.Ct. the Eighth Court declined hold Supreme States United Netherland, 1969, 138 U.S. 117 S.Ct. L.Ed.2d O’Dell v. 521 10. Simmons, (”[i]n exception carved out an Court ever, by, requiring the first time general described in Ramos rule postsentencing be allowed to inform eventualities.”). legal prohibition against any been Appellant agrees there has a blanket ineligibility. parole eligibility or on instruction requires Amendment to be informed a capital defen- parole ineligible. dant is Carolina,

Relying Skipper South L.Ed.2d asserts ineligibility of mitigating a circumstance which should have disagree. been informed. We above,

As Eighth noted Amendment prohibits the limiting from “any State the sentencer’s consideration of rele Tennessee, Payne 808, vant v. mitigating evidence.” 501 U.S. 822, 2597, 111 S.Ct. 115 L.Ed.2d 720 For purposes of Eighth Amendment, mitigating is “any aspect evidence of a defendant’s character or record of the circum proffers stances the offense that the defendant aas basis Carolina, for a sentence than Skipper less death.” v. South 1, 4, 1669, 1, 476 U.S. 106 S.Ct. 90 citing Eddings L.Ed.2d v. Oklahoma, 110, 104, 869, 455 U.S. 102 S.Ct. 71 L.Ed.2d 1 (1982); 496, (1996) see v. George, 323 S.C. 476 S.E.2d 903 (mitigating circumstances are details specific the character of the defendant trial on circumstances of crime and/or he committed which are considered order to reduce the degree his moral culpability guilt). Skipper, Supreme Court held of the good evidence defendant’s behavior in jail awaiting while potentially mitigating it because indicated he a pose danger would not in the future. Accord ingly, excluding evidence of the defendant’s future adaptability violated the Eighth Amendment.

Unlike a behavior in prison, defendant’s parole ineligi is not an bility aspect of a defendant’s character or record. eligibility Parole or ineligibility legislative determination; is a it not mitigating Patterson, See evidence. State v. 299 S.C. 280, (1989), grounds vacated on other 493 U.S. (1990) 1013, 709, (information 110 S.Ct. 107 L.Ed.2d 730 regarding requirements parole eligibility is not mitigating evidence); Matthews, 379, State v. 373 S.E.2d 587 denied, (1988), 1091, 109 cert. 489 S.Ct. L.Ed.2d 861 (punishment for a crime mitigat cannot serve as a consideration); ing sentencing George, see also State v. 323 496, (1996) (the S.C. general S.E.2d effect of capital as punishment a deterrent to crime is not a mitigating circum- stance). refusing by is not violated Eighth The Amendment ineligible. is parole capital to inform now defendants are asserts since all Appellant informed of juries to be permit the Court should ineligible, juries He with accurate providing claims parole ineligibility. prejudicial will eliminate parole ineligibility information juries concerning eligibility hold misinformation determinations. We dis- more reliable produce agree. jury’s duty it is

Traditionally, South Carolina trial to sentencing phase in the responsibility law in consideration of punishment authorized impose of the crime and the characteristics circumstances legislate a is not authorized to individual defendant. Plath, 1, S.C. 313 S.E.2d plan punishment. cert, 1265,104 82 L.Ed.2d 862 denied Atkinson, (1984); S.E.2d State v. see White, 142 A.2d 27 N.J. citing (1958) (“the responsibil the Legislature jury committed to the ity punishment in the first instance whether determine agency with the charged life or It another should be death. a deciding how life sentence shall execut responsibility they completely The their task when jurors perform ed. assigned upon the matter to them evidence before decide theirs.”), no is concern of happens What thereafter them. Torrence, 305 S.C. other grounds overruled on (1991). new jury’s duty The is the same under the S.E.2d 315 parole ineligibility a statute. While defendant’s sentencing decision, an it nonetheless remains jury’s could affect the Affirma jury not consider. irrelevant factor which the should factor undermine mentioning an irrelevant would tively in a decision process and result which jury’s decisionmaking more, policy, As a matter of we less, than reliable. rather jury inform the inappropriate maintain it does Eighth Amendment parole ineligible. defendant is States, 527 v. United compel not a different result. Jones 2090, 2099, 373, 381-83, 370 144 L.Ed.2d (a meaning arbitrary not within death sentence is given “if the is not bit jury Amendment Eighth juror’s the individual might possibly that influence information behavior.”). voting

Appellant trial argues judge’s supplemental instruction 1) erroneous. He jury’s was contends responding the trial questions, judge should have the jury informed he 2) admonition, parole ineligible, was judge’s “parole trial consideration,” or eligibility ineligibility your is not for incor- 3) rectly he suggested parole eligible, and the trial judge by refusing portion erred to read parole ineligibility. statute which referred to disagree. We above, As noted or parole eligibility not ineligibility is jury’s relevant to sentencing considerations injected issue of should not be into the jury’s delibera Ard, (1998); tions. State v. S.C. S.E.2d 328 State Torrence, v. S.C. S.E.2d 315 jury When a inquires about parole, the court should instruct it shall not parole eligibility consider in reaching its decision imprisonment” and the terms “life penalty” “death should in their ordinary plain meaning. be understood v. Norris, 328 S.E.2d 339 overruled on other Torrence, grounds

(1991).12 Norris, with keeping the trial in- judge’s supplemental struction told properly parole eligibili- consider or ty ineligibility. Although Norris was decided prior to statute, new sentencing find no we reason a differ- require response parole. ent when inquires about Moreover, above, as noted potential three sentences were 1) death, 2) 3) available: life imprisonment, mandatory minimum thirty year Appellant sentence. was not Nonetheless, under parole any these sentences.13 sug- as gested by appellant, by asking parole, for information on jury attempting was to ascertain the length appellant time judge's we parole 12. In Ard held the trial erroneous mention of was suggests judge harmless. To the extent Ard trial should defendant, parole eligibility requested by if is it overruled. We eight present note Ard was decided months after the case was tried. 13. But see footnote 7. impris- in if life realistically sentenced to spend prison

would ineligible appellant parole was Informing onment. when, sentence of jury, possible to the he faced a unbeknownst be uncondi- thirty years imprisonment after which he would fairly jury’s not to the tionally responded have released would inquiry.

2. Furthermore, contrary argument, to appellant’s admonition, is not “parole eligibility ineligibility or judge’s consideration,” suggest appellant parole did not was your admonitions v. South Car eligible. Unlike the Simmons olina, parole” proper “is not a

“you are not to consider consideration,” specifically the instruction here your issue for eligibility or not consider either informed therefore, and, appellant did not ineligibility imply eligible.

Finally, response jury’s questions, of the judge portion the trial read that requested below: highlighted statute guilty of or murder person pleads

A who is convicted life, death, by or by imprisonment punished must be years. thirty imprisonment minimum term of mandatory statutory penalty and a the death If the seeks beyond a reasonable aggravating circumstance is found (B) (C), recom- pursuant to subsections doubt made, must the trial of death mendation purposes imprisonment. For impose of life a sentence imprisonment’ the death section, means until ‘life of this person imprison- sentenced to life offender. No parole, eligible for pursuant to this section is ment any early program, community supervision, or release any credits, person receive work nor credits, credits, good other conduct education mandatory imprison- life reduce the that would credits required person this section. No sentenced ment thirty years imprisonment for minimum term of mandatory pursuant early this section is or any nor program, person eligible any release is the to receive credits, credits, work good credits, education conduct any other credits that mandatory would reduce the minimum term of imprisonment thirty years required by this section. 16-3-20(A)

Section (Supp.1998). prejudice We find no error or from the judge’s trial refusal to read highlighted portion Again, statute. neither parole eligibility nor ineligibility are proper consider- Ard, ations for the jury. S.C. S.E.2d 328 (1998); Torrence,

Furthermore, appellant’s suggestion providing that highlighted with the language promote would “truth-in-sen- tencing” is tenuous. The highlighted text provides only with those portions of the sentencing statute which deems favorable but excludes reference to other less favorable options.

We supplemental conclude the instruction appropriate. was

II. argues he Appellant deprived right was of his to make religious arguments jury. disagree. We

Over objection, the appellant’s granted State’s motion prohibit references to the religion Bible or during closing argument by prosecution both the and defense. Appellant proffered religious arguments several he had con- including argument. sidered in his closing closing his argument, appellant stated: story There’s a about woman who broke the long, law a long, long time Before we ago. electricity, had before we injection, had lethal we still had death penalty. There was a time that she had been caught, she was caught law, breaking people and the her community gathered her, they around going were to kill her for what she had They objects done. had the they were kill going use to hands, her in their and she stood before them. Somebody ‘I’m walked and said that denying not what she was did wrong, this isn’t about what she did wrong, this is about being make confront- you are about going statement what with ed this.’ referenced, man very I discussed story great woman, and didn’t. they killing them about

with Previously, we judge’s ruling. find in the trial no error We when the trial no unfairness have held there is fundamental from arguing and the precludes the solicitor defense judge Patterson, 5, 482 v. 324 S.C. religion. God State about or 146, 760, 853, 139 118 S.Ct. cert. denied 522 U.S. S.E.2d (1997). event, clearly In demon L.Ed.2d 92 record judge’s the trial appellant prejudiced by was not strates his to make all of permitted he was not ruling. Although conveyed story the Biblical religious arguments, Bennett, v. 328 S.C. and the adulterous woman. State Jesus (1997) 251, preju was not (capital 493 S.E.2d 845 objection argument to his where religious diced sustained nonetheless). The argument indicated he made record the State’s judge granting trial did not abuse his discretion religion during to references to the prohibit motion Bible See closing arguments. defense prosecution both (1986)14(trial Patrick, 301, 345 S.E.2d 481 v. 289 S.C. State in dealing range with the is vested with broad discretion judge ordinarily rulings his closing propriety arguments disturbed). not will on such matters

III. phase closing In solicitor penalty argument, committing mur deters others from argued penalty death Thereafter, judge the trial either appellant requested der. evidence the present to allow him to statistical reopen case or, alternatively, murder penalty does deter death regard the solicitor’s comments disregard instruct both judge requests. denied deterrence. The ing general disagree. this was We error. Appellant argues clear: Carolina, abundantly case our law South may argue then- and defense prosecution both the while effect of general deterrent opinions regarding respective Overruled, 348, State, 336 S.C. 520 grounds Brightman v. on other 445, State, (1999); Casey v. 305 S.C. 409 S.E.2d 391 614 S.E.2d 308 may

the death neither penalty, present evidence supporting 496, views. v. George, their 323 S.C. 476 S.E.2d 903 (1996).15 Accordingly, trial did not err by refusing appellant’s request reopen the record for the purpose presenting on evidence the deterrent effect of the death penalty.

Furthermore, we have held it directly never is reversible give error refuse to such a curative instruction where the McWee, solicitor argues general deterrence. v. See State 322 387, (1996), 1061, 117 S.C. S.E.2d cert. denied U.S. 695, (1997) (where S.Ct. 136 L.Ed.2d 618 argued solicitor deterrence, specific requested charge general deterrence not required); Longworth, (1993), cert. S.E.2d denied 513 U.S. (where general solicitor did not argue

deterrence, general refusal to charge deterrence need not be considered); Patterson, cert. denied 105 S.Ct. 85 L.Ed.2d (1985), Torrence, grounds 329 overruled on other v. State 305 45, (1991) (refusal 406 S.C. S.E.2d 315 to charge general properly deterrence is as refused function of deter is to fact, appropriate penalty present mine charge). orn eases have repeatedly allowed solicitor to argue opinion his regarding the deterrent of capital effect punishment. State v. Truesdale, 546, 168, 301 S.C. 393 S.E.2d cert. 498 denied U.S. 1074, 800, 111 (1990); 112 Jones, S.Ct. L.Ed.2d 861 State v. 118, (1989); 298 Yates, S.C. 378 S.E.2d 594 v. State 280 S.C. 29, (1982), 1124, 103 310 S.E.2d 805 cert. denied 462 U.S. S.Ct. 3098, (1983), 77 L.Ed.2d 1356 overruled on other grounds Torrence, 45, v. (1991). State 305 S.C. 406 315 S.E.2d Since argument general deterrence it permitted, would be illogical jury may instruct it not consider the of effect its sentence on others. of

Finally, light his freedom to argue punishment discourage murder, does others from committing appel- process lant’s due was not by violated trial judge’s denial request present his on general evidence or deterrence approved Assembly Because General has the propriety of punishment, attempting evidence to establish its effectiveness or ineffec- tiveness as an instrument deterrence is irrelevant.

309 deterrent effect jury not to consider the charge the penalty. death REVIEW

PROPORTIONALITY record, we conclude death reviewing After the entire other passion, prejudice, sentence was not result aggrava factor, statutory of a arbitrary jury’s finding See S.C.Code circumstance is the evidence. ting supported (1985). Further, penalty § hold the Ann. we death 16-3-25 imposed to that disproportionate nor neither excessive 146, Hughes, See State v. S.C. 493 S.E.2d 328 similar cases. denied, 1674, 1097, 140 cert. (1997), 118 523 U.S. S.Ct. 821 Patterson, (1998); 5, v. 324 482 S.E.2d State L.Ed.2d S.C. 798 denied, 853, cert. 760, 146, L.Ed.2d 92 522 U.S. 118 S.Ct. 139 57, cert. 37, v. (1997); 479 Simpson, State 325 S.E.2d S.C. denied, 2460, (1996); 1277, 217 117 S.Ct. 138 L.Ed.2d 520 U.S. denied, 52, cert. v. Humphries, 479 S.E.2d (1996); 2441, 138 1268, 117 201 L.Ed.2d S.Ct. denied, McWee, (1996), cert. S.C. (1997); 1061, 117 U.S. S.Ct. L.Ed.2d denied, Sims, cert. S.E.2d 377 AFFIRMED.

MOORE, WALLER, JJ., and Justice THOMAS C. Acting HUFF, concur.

FINNEY, C.J., opinion. in a dissenting separate FINNEY, Chief Justice: dissent, reverse and remand for respectfully

I and would proceeding. new 16-3-20, § to Ann. the 1996 amendments S.C.Code

Under face one of three sentences: capital all defendants (1) death; or

(2) death; until or prison life in of a minimum term of release after service unconditional thirty possibility parole.1 with no of years, Starnes, opinion In and in State this (2000), deciding parole eligibility directly Court has avoided was

Appellant parole ineligible contends that since he as a law, charged matter of state to entitled be this they fact I inquired. agree. when majority holding The in deems Simmons v. South Carolina,

inapplicable appellant’s because sentencing options were not limited to death or without possibility parole, life cites a number of cases in all support proposition. this In the cited one, however, except cases sentencing possibil the defendant’s eligible. ities included one in which he be parole would only case which the did a potential defendant not face parolable Flores, sentence was United States v. 63 F.3d 1342 (5th Cir.1995). conviction, Flores involves a parole federal has been abolished in the system. inapposite federal It is the present sentencing scheme, South Carolina as are all the other I cases cited. While concede Simmons does not case2, directly control this overriding principle drawn from that process decision is that due is violated when jury’s speculative a misunderstanding capital about a defen Here, dant’s is eligibility go allowed to uncorrected. jury’s inquiry a prompted misleading which response suggested parole was a In possibility. my due opinion, pro cess mandates reversal. capital years status of who defendant receives term of sentence. my opinion, question today we must this decide order address the

jury charge by appellant. issues raised The murder statute clear as to person mandatory certain defendants: "No sentenced to a minimum imprisonment thirty years pursuant term of for to this section is ... for mandatory other credits which would reduce the imprisonment thirty years required by minimum term of this sec 16-3-20(A) (Supp.1999). § tion.” Since murder statute is silent as parole eligibility receiving of defendants a sentence in excess of minimum, mandatory general § rule controls. Under 16 — 1— 10(d) (Supp.1999), exempt system, murder from the classification § (Supp.1999), persons under 24-13-100 exempt convicted of Thus, ineligible parole. are although offenses may years, receive a sentence of a term ineligible he is whatever duration that term. 2. We are not concerned with charge whether a Simmons was warrant- ed at the initial dangerousness since future was not issue, procedure but an rather to be with followed when a jury inquires parole. about Further, .juries if whether to inform which the decision as the eligibility simply policy, one inquire about C, I why adopt policy in Part then majority suggests no The jurors simply parole. truth: gives which must,3 as it that considerations majority acknowledges, decision,4 then deems it jury’s sentencing affect a but “could” of infor- denigrates importance “irrelevant” and its as bit “[a] juror’s mation that influence the individual might possibly every capital haunts voting specter behavior.” State, I in this cannot understand sentencing proceeding in of our new scheme why, given simplicity parole eligible, no is ever we would which prohibiting make a decision the dissemination policy truth. course, I with a that the defendant stop

Of would not for that is half the truth. I would parole eligible, only was not found, if circumstance is aggravating tell the no thirty years possibility minimum of without defendant faces a release, are aggravating but that if circumstances early found,.then in until prison the alternatives are death or life death. reasons, instructions that henceforth

For these and with the truth about sentenc- juries inquire charged which shall be sentencing pro- I reverse and remand for new ing, would ceeding this matter. parole, capital juries inquire regularity with which about

3. Given the sentencing. deny we cannot its role Bowers, Dugan, Opinion On & A New Look at Public 4. See Vandiver Prefer, Legislators 22 Am. Capital What Punishment: Citizens J.Crim.L. 77

Case Details

Case Name: State v. Shafer

Court Name: Supreme Court of South Carolina

Date Published: May 8, 2000

Citation: 531 S.E.2d 524

Docket Number: 25120

Court Abbreviation: S.C.