State v. Torrence

STATE, Respondent TORRENCE, Appellant. v. Michael R. (406 (2d) 315) Supreme Court Atty. Bruck, Deputy I. Atty. David Chief Chief Appellate of South Carolina Elizabeth C. Fullwood of Office Columbia, appellant. Defense, for Medlock, Attys. Gen. Harold Asst. Attorney Gen. T. Travis III, Salter, Columbia, Jr., Coombs, Edgar and William M. Lexington, respondent. V. Myers, and Sol. Donald for South Condon, Charleston, curiae amicus Charles M. for Carolina Solicitors Ass’n. Rosen, Morris D. Charleston, amicus curiae South for Lawyers

Carolina Trial Ass’n. Bruch, David I. Columbia, amicus curiae South for Carolina Public Ass’n. Defenders Blume, John H. amicus curiae South Columbia, for Center, Carolina Death Penalty Resource Inc. May 1, 1989; Heard Decided May 20, 1991. Denied

Rehearing July 24, 1991.

Finney, Justice:

Appellant Michael R. Torrence was convicted armed robbery, burglary and the murders of Charlie Bush and Dennis Lollis. He received a imprisonment sentence of life the murder of Charlie Bush and a sentence death for the murder of Dennis Lollis. This appeal appellant’s combines direct appeal and this Court’s mandatory review death penalty pursuant § cases to S.C. Code Ann. 16-3-25 We affirm the convictions and sentence of imprisonment, life reverse the sentence, death and remand for a new sentencing proceeding. trial,

At the time of had appellant previously been convicted in Charleston County Cynthia for the murder of Williams and sentenced to life imprisonment.

Appellant contends the trial court erred during penalty of trial. phase Questions presented for review include the following:

I. Did the court limiting testimony appellant’s err from

mother? I. Did the court err when it did not instruct the as to of appellant’s voluntariness statements? III. Did the court err by refusing appellant’s requested

instruction regarding parole eligibility?

I. MOTHER’S TESTIMONY As part appellant’s case mitigation mother, his Maria Torrence, was called as a witness. Mrs. Torrence testified that when the appellant old, was around twelve years she divorced appellant’s father was custody awarded of her four children. Mrs. Torrence further testified she still loved on to had done. She went for what he sorry

her and was son after problems emotional to have appellant began that explain the divorce. place: took

Thereafter, following exchange your jury spare this to asking a basis for Q. Do have you son’s life? Honor. MYERS: Your Objection,

MR. I have— Honor, Your MR. McWHIRTER: This is the Your Honor. proper, It’s not MR. MYERS: here. defendant, lady this poor not a Honor, I have case— Your MR. McWHIRTER: to my I don’t want him die. WITNESS: That’s son. Honor, interpose objection. I an Your

MR. MYERS: MeWhirter, purpose know what the you Mr. THE COURT: of this is. proceeding you I a if Honor, case, can get Your

MR. McWHIRTER: (sic) beg a mother can for the me, says let will life her son. to tell you instruct now Well, I am to going

THE COURT: witness tell the or other or let this witness jury, help will young man which something about this jury naturally the mama who would them assess him and not ' being her son in this situation. upset about terribly be her exchange, Mrs. Torrence concluded After the above has needed with appellant help testimony by explaining she never years, for number of but was problems emotional appellant When if she cared whether to afford it. asked able just “I want Mrs. Torrence stated prison, ever out of got someone to him.” help that Mrs. by ruling court erred the trial

Appellant contends state, on jury mercy. to for appeal Torrence could improperly line of hand, questioning asserts that the the other decided to the ultimate issue be went —whether Adams, v. See State a life sentence death. impose State, In Childs 257 Ga. illustrated Georgia Court Supreme mercy and the ultimate between a plea

distinction following terms: in the question witnesses who know [Although may present a defendant to ask for willing and care for him and are on that basis mercy behalf, may present on his a defendant or testify merely religious witnesses to to their attitudes about the death philosophical penalty____Nor a defendant entitled to of a witness present opinion to reach. jury “ought” about what verdict the (citation omitted). We find this Id. 357 S.E. at 60 persuasive adopt reasoning. distinction and herein its present case, sought only In the to have Mrs. appellant mercy Torrence make a for for the life of general plea testimony her son. He did not seek to elicit about what imposed, verdict the witness should be as was thought Matthews, case in State v.

(1988).Thus, the line of was not addressed to the questioning Despite ruling ultimate issue. the trial court’s which limited testimony, pleaded mercy appellant her Mrs. Torrence and Matthews, prejudice. supra. has shown no See State v. Therefore, we conclude that the has failed to appellant demonstrate that he was the trial prejudiced by judge’s only clarify This issue is addressed the law should ruling. arise on retrial. question OF II. JURY INSTRUCTION/VOLUNTARINESS STATEMENTS erred Appellant by failing charge contends the trial court at the close of the that it must find that penalty phase voluntarily given confessions were and appellant’s This accompanied by rights. waiver of his constitutional preserved issue was not via a at contemporaneous objection employ trial. The state contends that this Court should not the in vitae doctrine to reach this issue. In favorem favorem vitae, life,” which “in favor of is a doctrine literally means more than one which has been adhered to this Court for years. hundred The state this Court to abolish petitioned modify the doctrine so as to review of issues prohibit by contemporaneous cases which have not been preserved objections, asserting: rendered in legal developments

1. That historical and have obsolete; vitae favorem

2. That the contemporaneous objection rule serves and

promotes justice judicial and economy; 3. That post-conviction remedies and improved procedures

adequately efficiently protect an accused from possible abuses or errors. We find utilization of the doctrine of in vitae

unnecessary to a resolution of case and decline to address its abolition or However, modification. we shall address the asserted error since it recur may during retrial.

This Court has never that a jury held must determine the voluntariness of a defendant’s statement during the penalty phase However, Adams, of trial. in State v. supra, regard with to jury consideration of a defendant’s disputed statement upon conclusion of the guilt phase, this Court stated: may by confession be considered “[N]o [the jury] unless beyond found reasonable doubt to have been given freely and under the voluntarily totality of the Id., Harris, circumstances.” citing 124, State v. 682 (1948),rev’d on other grounds, U.S. 69 S. (1949). Ct. 1354, 93 L. Ed. 1815 In addition, when the defendant is in at custody the time of the alleged confession, the jury must be convinced that he received and understood his Fifth and Sixth Adams, State v. rights. Amendment supra. In our the view, same rule should apply when a capital disputed defendant’s statement is initially introduced during the penalty phase. Thus, during sentencing proceedings held subsequent to filing opinion, jury of this the should be instructed to determine the voluntariness of a defendant’s disputed statement when a has jury previously not made this In cases, determination. such the should be jury instructed they beyond must find reasonable doubt that statement freely was and voluntarily given totality under the of the circumstances before the statement bemay considered. Additionally, jury should they be instructed that must be convinced that the appellant received and understood his Fifth and Sixth Amendment if the rights alleged confession was given while appellant was in custody.

III. JURY CHARGE ON PAROLE ELIGIBILITY Prior to penalty phase closing arguments, defense counsel requested a charge because appellant already was for a unrelated murder previous a life sentence serving in case would of a life sentence this conviction, imposition subsequent and sentences prior service of both require §Ann. by as mandated S.C. Code possibility parole without (1976 1987). to give & The Court declined Supp. 24-21-640 would, request, charge that it charge upon but told counsel § under S.C. Code Ann. 16-3-20 jury parole eligibility as to (1976). Thus, defense counsel that section 16-3-20 requested instructed accordingly. be and the was charged based regarding parole eligibility upon instructions Jury 16-3-20 were authorized this Court section Atkins, if Now, defendant, may, a the court lieu of a requested by in its imprisonment plain that “life is to be understood charge meaning,” charge jury regarding possible and ordinary eligibility sentences and as outlined section 16-3-20. parole The of a defendant convicted for murder is parole eligibility section 16-3-20.The General solely governed Assembly further restrictions on imposed parole eligibility pursuant has (1976 1987). §§ Supp. to S.C. Code Ann. 24-21-610to -650 case, present requested In the defense counsel a based section 24-21-640. This section charge upon states: Community Corrections shall not Board] [Parole authorized to

grant parole parole prisoner nor is conviction, serving subsequent a sentence for second conviction, a for a for following separate sentencing prior §in violent crimes as defined 16-1-60.1 24-21-640, serving Under section a a life sentence for prisoner has, as a conviction for a appellant, previous murder who does crime be for ineligible parole. Appellant alleges violent would requested it was error to refuse the instruction and that the actually given was an inaccurate statement of his charge hand, On the other the state contends that parole eligibility. State v. Matthews the trial court’s denial of the supports the law set forth in section 24-21-640. We request charge disagree. § classifies murder as a violent crime.

1 S.C.Code Ann. 16-1-60 Matthews, In jury instruction in issue was controlled section 16-3-20 prior to its amendment in 1986. The 1986 amendment of section 16-3-20established specific guidelines sentencing parole eligibility based upon the existence or non-existence of aggravating circumstances. The defendant sought Matthews to waive the prohibition against ex post application of the 1986 amendment. A grant of waiver facto would have permitted the as charge authorized by Atkins. This Court rejected the request, defendant’s concluding that the effect of such a waiver “wouldbe to fashion a requirement with a compliance defendant’s decision as to the appropriate potential sentences regardless the sentencing scheme Matthews, enacted the Legislature.” at 592. Matthews is distinguishable present from the In case. Matthews, the defendant sought to have the court alter the law to gain potential sentencing advantage. Here, appellant sought only to have the court declare correct and current law relevant to his case. Moreover, applied as to facts of the present case, the Atkins charge was an incorrect statement of appellant’s parole had eligibility another life sentence been imposed. Adams, See State v. supra; § S.C. Const. Art. 21V, (law correct). declared must be current and The state introduced evidence appellant had previously pled guilty to an unrelated murder and received a life sentence. The requested charge was a correct statement of law which would provided have with accurate information regarding appellant’s parole eligibility.

We conclude that the trial court committed prejudicial error in denying appellant’s request to charge based upon section 24-21-640,in violation of Eighth Fourteenth Amendments of the United States Constitution V, § and Article 21, of the South Carolina Constitution. This Court finds appellant’s remaining exceptions to be without merit and declines to address them.

Accordingly, appellant’s convictions and sentence of life imprisonment are affirmed. We reverse appellant’s death sentence and remand for a new sentencing proceeding.

Affirmed in part, reversed in part and remanded. Gregory, C.J., and Harwell, J., concur result JJ. separate opinion of Chandler Toal,

55 J., separate opinion. concurs in result in Chandler, Toal, J., separate opinion. concurs in result J. Finney, J., concurring Toal, dissents to of opinion result): (concurring Justice Chandler, charge I with the conclusionin Part III that the agree (2d) Atkins, 294, outlined in State v. 293 S.C. 360 S.E. (1987) accurately parole does not reflect the 302 defendant, of should he receive a life ineligibility 320, 336, 105 472 U.S. S. Mississippi, sentence. Caldwell v. Cf. (2d) 231, L. Ed. 243-44 I write 2633, 2643, Ct. I we should reconsider Atkins and separately because believe prohibiting capital sentencing reinstate earlier precedent being from informed about juries parole. forty years

For to Atkins this Court’s decisions prior consistently placing subject the of the of disapproved practice jury penalty before the in a death case. parole (2d) Hinton, (1947), In State v. 210 S.C. 43 S.E. reversed, in the solicitor’s capital part, upon convictions were to the effect “that if the defendants were closing argument but recommended to life guilty murder, found of necessarily they mean . . . this would imprisonment, at at 363.We would serve life sentence.” Id. which justification argument, suggested could find no for such the that a verdict of death “should be rendered jury government other of the state department because some or a life sentence.” Id. shorten commute might Atkinson, 253 S.C. twenty years later, More than State appropriate addressed jury’s question possibility to a about response adopted in the event of a life sentence.2We parole pardon jury charged view . . . that a with the prevailing “[t]he penalty to be suffered an assessing responsibility instruction or invited, by argument, not be accused should Morris, 225, 133 S.E. the issue was In jury’s question since the was not viewed as not decided mentioned but state, parole. regarding possibility The Court did seeking information however, given the information as to the [trial] court... “[h]ad argued doing erred in so to parole, it well be that the court possibility of could 232, 133 S.E. defendant].” Id. at at 747. prejudice [the

56 parole upon effect of the possible pardon on the

speculate (2d) Id. at S.E. at imposed.” 534, 172 the execution of sentence expressed for this view was as follows: 112. The rationale the the jury responsibility ‘The committed to Legislature punishment to determine in the first instance whether It another with charged agency be life or death. should how a life sentence shall be responsibility deciding the their task when jurors perform completely executed. The to them the assigned upon decide the matter they thereafter is no happens evidence before them. What theirs____’' concern of White, State v. (2d) Id. at 112 27 N.J. 535, 172 [quoting S.E. at (2d) (1958)].3 65, 76 158, 177-78, 142 A. in Atkinson served as a basis for numerous

The holding into the concerning parole decisions introduction of the bifurcated trial under our sentencing phase provided death law.4 All these decisions present penalty unequivocally parole state that is not consideration proper sentencing juries. (2d) Goolsby, State v. 110, 268

In (1980), 275 S.C. S.E. 31 we trial to the charge jury erroneously held that court’s included reference to The error was parole eligibility. cured, however, further instruction to by jury was See also State v. determine sentence without regard parole. Plath, (2d) (1981) 126, 277 284 S.E. 221 reference (curing S.C. counsel).5 parole by codefendant’s 3 (2d) Plath, 1, 15, 313 619, 627 (1984), See also State v. 281 S.C. S.E. decided penalty under the current death statute: time, manner, place, Such determinations as the and conditions of incarceration, parole execution or as well as the matter of are reserved agencies jury. than statute and our cases to other As we have stated, repeatedly jury capital sentencing the sole function of the in a penalty, trial is the individualized selection of one or the other based upon the circumstances of the crime and characteristics of the individual defendant. 4 Brooks, interim, 355, this Court held in State v. In the 271 S.C. 247 S.E. (2d) jury determining guilt 436 must not be or innocence regarding parole eligibility. instructed 5 (2d) Drayton, 417, In State v. 293 S.C. 361 S.E. 329 we held that a jury unnecessary parole curative instruction for the not to consider was since parole the reference to was the context of the defendant’s commission of prior crimes, possibility in not to its the event of a life sentence on the crime Middleton, (1988). charged. See also State v. 295 S.C. 457 that, in the absence further, holding went decisions Other a charge not entitled to was the defendant inquiry, the jury’s eligibility considering parole from prohibiting Butler, 277 S.C. v. determination. State sentencing making its (1982); Copeland, 543, 290 S.E. South, 331 S.E. (1982); State explained: we supra, In Copeland, solely their decisions to base were instructed jurors and the law as at trial the evidence adduced

upon true that While it is judge. the trial instructed the by jury, be considered should not parole possibility or anticipate of the trial court duty it is not the it in their consider jurors might speculate To do so accordingly. them and instruct deliberations into their fact, inject parole consideration may, not before have been. may where it deliberations (2d) at 71. 585, 300S.E. 278 S.C. at (2d) Norris, 86, 328 S.E. 339 v. 285 S.C.

Finally, State parole about jurors’ inquiry response out the proper set eligibility: instruct the raised, the Court should the issue is

When reaching eligibility not consider parole that it shall and “life imprisonment” and that the terms decision, its ordinary in their be understood should “death sentence” meaning. and plain (citation omitted). (2d) State See also at 344 328 S.E. 95,

Id. at v. (1985); 800 State Peterson, 244, S.C. 335 S.E. 287 (1987); State v. S.E. 317 Johnson, 321, 360 (1988); State v. Plemmons, 76, 296 S.C. (1989)(omission of “no 482, Smith, 298 S.C. error). harmless language concern” precedent, followed Atkins, Court established this

In parole on for instructions request defendant’s holding the discussion,the Court Without refused. properly was eligibility applied to be following guidelines, out the to set proceeded prospectively: after this to trial proceed which cases penalty

In all death defendant, requested by is published, opinion if trial shall judge charge jury that the term “life imprisonment” is to be understood in its ordinary plain meaning.

In death penalty cases controlled by Omnibus Criminal Justice Improvements Act of Acts which proceed to trial after opinion is published, so requests, may he have the if defendant followingcharge given in lieu of the “lifeimprisonment is to be understood in its plain ordinary meaning” charge:

A person who is convicted of murder must punished be death or imprisonment for life. When the state seeks the penalty death and a statutory aggravating circumstance is specifically beyond found a reasonable doubt, and a recommendation of made, death is not trial court must a sentence impose of life imprisonment without for eligibility parole until the service of thirty years. When a statutory circumstance aggravating not found beyond doubt, reasonable the defendant shall be sentenced to life imprisonment and he shall not be eligible parole until the twenty years. service of No person sentenced under either of the sentencing schemes just explained may receive any work-release credits, good-time credits, other credit that would reduce the mandatory imprisonment. (2d) 300,

293 S.C. at 360 S.E. at (Emphasis 305-306. original).

These are instructions incompatible only with the rationale of the substantiál body Atkins, of law preceding but also with that of our decisionswhich followed. Matthews, (2d)

In State v. 379, 296 S.C. 373 S.E. 587 this Court held that the trial court properly refused the defendant’s post ex application increased time for facto parole Jones, eligibility. See also State v. 118, 378 (2d) S.E. (1989); Smith, 594 State v. supra. We specifically rejected the notion punishment that “the for a crime can serve as a mitigating sentencing Matthews, consideration.” at supra, (2d) 386, 373S.E. at 592.We stated:

59 That ten appellant would serve additional before years parole eligibility provides no evidence from which “the have drawn jury could favorable regarding inferences ... character and his probable [his] future conduct if to Carolina, sentenced life in prison.” Skipper v. South (2d) 1, 4, 476 106 S. 1669, 1671, 1, U.S. Ct. 90 L. Ed. 6 (1986). judge’s refusal to apply amendment here the jury instruct on in no parole eligibility way “impeded sentencing jury’s ability carry to out its considering task of all relevant facets of the character and record of the individual 8, offender.” Id. at 106 S. Ct. at (2d) 1673, 90L. Ed. at 9. (2d)

Id. 296 386-87, 373 S.C. at S.E. at 592. Patterson, (2d) v. Similarly, State 299 S.C. 280, 384 699 (1989) held that “information regarding requirements for parole is not eligibility evidence mitigating and is irrelevant to a adaptability prison 286, defendant’s life.” Id. at (2d) There, at 703. we also noted that “whether given a is information of a . regarding reduction . . sentence commutation, pardon, parole is matter of law.” state Id. Ramos, v. U.S. [citing 992, 463 103 Ct. 3446, S. 77 California (2d) (1983)].6 L. Ed. 1171 These two recent decisions reaffirm the principle, uniformly Atkins, parole followed prior irrelevant to the Thus, of a sentence. support determination they should no time parole conclusionthat at enter the jury’s into deliberations. this logical inconsistency,

Aside from the Atkins practical present problems instructions their application. 6 and Patterson are in with Matthews weight authority. accord Two rejected parole ineligibility specifically mitigating have courts as evidence. (2d) (Fla. 1990); Clark, King Dugger, 555 So. 355 v. 108 N.M. 772 (2d) generally upheld Other courts have constitutionality P. 322 Murray, sentencing as a consideration. Peterson v. prohibiting parole 904 F. Bass, (4th (4th 1990); Turner v. 1985), 753 F. rev’d Cir. 342 Cir. Murray, grounds nom. Turner on sub other U.S. S. Ct. McCotter, (5th (1986); Andrade v. 1986); 805 F. L. Ed. Cir. (5th (2d) Estelle, 1983); O’Bryan Thigpen, v. Johnson v. 714 F. 365 Cir. 623 F. (2d) (S.D. (5th 1985), aff’d, Supp. 1986); Miss. 806 F. 1243 Cir. 1121 (E.D. Blackburn, Kirkpatrick part 1984), vacated in Supp. La. v. 597 F. 1562 Robbins, (2d) (5th 1985); grounds, 777 F. on other 272 Cir. 319 N.C. (1987). 465, 356 S.E. 279

60 rule a upon particular in to is, effect, required The trial court has even for before sentence parole defendant’s eligibility issues of may involve novel This determination imposed. been not been interpreted.8 which have statutory provisions law7or the Parole way no to be assured that Moreover, there is as the court. the same conclusion Board would reach the all I would overrule Atkins reasons, For of the stated parole extent it the introduction of into permits sentencing decision. Toal, JJ.,

Gregory, C.J., and Harwell concur. Justice joining in result (concurring Justice Toal, result): in concurrence Chandler’s in in result join I brother Chandler’s concurrence my Atkins, v. toto. I too would overrule State (1987).However, I write separately 360 302 purpose expressing for the of this Court for the majority our of in vitae.9 abolition of the outdated doctrine favorem This a function for but many years, doctrine served useful legal in in the today, quality of advances light in and avenues representation; light many protections defendants; of relief and in of the light available criminal modern capital punishment post restricted use of day v. U.S. Ct. L. Ed. Georgia, Furman 408 92 S. has to the counterproductive the doctrine become in justice administration of some instances.10 This vitae recognized Court first the doctrine in favorem (1 Briggs, two v. 3 S.C.L. 8 nearly years ago. hundred State Brev.) (1794). This doctrine this Court to review requires when legal error, entire for and assume error record Atkins resentencing For in the trial court was faced with example, See State parole deciding eligibility. on effect of consecutive life sentences Atkins, (S.C. 1990). entirely provides in this It The statute involved case is not clear. pertinent part grant parole parole nor is “[t]he Board shall subsequent any prisoner serving for a authorized to a sentence second or conviction, conviction, separate sentencing prior following a for violent § § crimes as Ann. 24-21-640 defined in 16-1-60.” Code 9Meaning literally “in favor of life.” vitae to abolish the question We of whether address favorem only “Argument be doctrine since Torrence’s IV” could considered vitae Court via the vehicle. unobjected-to but technically improper arguments, evidence, are charges, by etc. asserted the defendant on in a appeal demand for reversal or a new trial. This Court has indicated since the doctrine’s inception that the doctrine is to be used (2 Brev.) (1809) In State v. sparingly. Fley, S.C.L. we stated: life,

In favor of great strictness has been required indictments. Courts have indeed leaned too much in favor of exceptions them, which has proved sometimes very prejudicial to public justice, a reproach and to the law. This proneness to favor exceptions in favor of life ought not to be indulged too far.

Since we have Fley, long recognized the doctrine could be abused in a given case and serve to work an injustice, which the doctrine was created specifically to prevent. Neverthe- less, we have retained the doctrine until today because of its once important utilitarian value in certain cases in halting an unjust execution or an reversing erroneous conviction. Other mechanisms of protection of relief have now been created for the criminal defendant which safeguard the defendant and render the protections afforded vitae favorem surplusage. remedy

We now this situation by letting doctrine take in history its as a place once-useful device necessary to an old culture that desperately needed some form of protection against unfair convictions and As sentences. stated United States Court Supreme Justice Oliver Wendell Holmes:

It is revolting have no better reason for rule of law than that it so was laid down in the time of IV. It Henry is still more if revolting grounds upon which it was laid since, down have vanished long and the rule simply persists from blind imitation of the past. Law,

Holmes, The Path 10 Harv. L. Rev. 457, 469 When in vitae this adopted by Court, was there favorem were numerous crimes for which one could be executed. shortly Sometime after the total number of capital offenses in two England exceeded hundred. Furman v. Georgia, 238, 314, 2726,2765, 33 408 U.S. 92 S. Ct. L. Ed. plethora concurring). While (Marshall, J. colonies, capital in the not exist did offenses crimes, just variety a wide for imposed was punishment At concurring). J. Furman, (Marshall, supra, murder. See post-conviction state adopted, vitae was time in proposition with the argue would not exist. New relief did available kind was not meaningful relief of post-conviction century. early nineteenth century late eighteenth in the in easily could to alleviate what took action courts thus State Supreme or sentence. conviction unjust be an such times observed, in Court of Ohio time when there was a fact is unquestioned

[t]he number, law were few at common felonies, which than 200 enactments, more embraced, by parliamentary if death, which, with punishable acts were offenses; when not be State, day, at this would in this committed was not felony -with all; charged when one at punishable examine the of, or even to copy have a permitted have the defense, in his or to indictment, to call witnesses found in no instance could be counsel; when assistance to render a case, had failed in a criminal jury, a which jurors it was when day impaneled; the same verdict on when guilty; return a verdict of refusing for were fined as a verdict to sentence as soon course was ordinary be cause the accused to rendered, and guilty was strange It is not followingmorning. on the executed judges, humane law, of the criminal a State such vitae, cases technicalities upon would determine as frivolous. regarded at would be day which this (1877). Ohio, Burke v. 34 Ohio St. today. not exist obviously does

Such a state of affairs case, noted non-capital in a Littlejohn, Former Chief Justice Court: for this to a give and of the United States of the states

The courts protection against crime more accused of person other many conviction of erroneous than possibility The State must face of the globe. of courts on the system person an accused many hurdles before overcome punished:

(1) magistrate may warrant; refuse to issue a (2) the magistrate may dismiss the case after a

preliminary hearing; (3) a grand jury may indict; refuse to (4) may verdict; solicitor direct a (6) a petit jury may only juror refuse to convict if one has

a doubt; reasonable . (7) the judge may set the verdict aside a notwithstanding

verdict the jury; (8) the court appellate may reverse the conviction. If the accused person any can at prevail one these a stages of he proceeding, unpunished. free and is goes On the hand, other prevail the State must at each of the eight stages punishment before is inflicted.

In addition to these many protections, the accused now has the right of application post-conviction relief upon a proper showing. In almost case a person, convicted given time for research, can up come with some sort of theory ostensibly warranting new trial. Leeke,

Anderson v. 435, 440-41, 248 122-23 Moreover, the post-conviction relief mechanism is not a minor one. South Carolina Code (1985), §Ann. 17-27-20 which provides the of scope the Uniform Post-conviction Act, Procedure reads:

(a) Any person of, who has been convicted or sentenced a for, crime and who claims:

(1) That or conviction the sentence was in of violation

the Constitution of the United States or the Constitution or of State; laws this (2) That the court was without jurisdiction to impose

sentence; (3) That the sentence exceeds the maximum authorized

by law; (4) That there exists material facts, evidence of

previously presented heard, that requires vacation or in conviction sentence the interest justice; (5) That his sentence has his expired, probation, parole or unlawfully

conditional revoked, release or ishe custody held in or other unlawfully otherwise restraint; or subject to is otherwise convictionor sentence That the alleged error any ground attack upon

collateral law, statutory under common heretofore available remedy; or writ, motion, proceeding petition, other a fee, a paying filing without may institute, chapter to secure relief. under this proceeding this section shall not be Provided, however, that ground on the collateral attack permit construed a support was insufficient the evidence conviction. to criminal relief is also available corpus

Federal habeas defendant, addition, has other capital defendants. § S.C. Code Ann. 16-3-20 him statute. See given protections be inflicted penalty may the death example, For seq. et are found to circumstances aggravating if or more only one a Additionally, capital reasonable doubt. beyond exist a to S.C. Code Ann. may Court, pursuant request defendant a review of his proportionality to conduct § 16-3-25 ain short, In the modern criminal defendant sentence. substantive variety procedural has available case himself. The with which to defend devices protective under our modern unlikely of an innocent person conviction the time when unlikely most relative to system; favorem adopted by Court. vitae was of the adoption Therefore, prompting the reasons and basis However, the no exist. longer vitae doctrine for abuse dangers potential associated with the doctrine and long as as exist of the doctrine criminal defendant with associated primary danger doctrine still has force. The deliberately refrain from the doctrine is a defendant will is what is trial. This during to an objecting error which occurs course, a Of “sandbagging.” to by referred some as preserve legal to objection requirement contemporaneous from a defendant errors to operates procedurally preclude of on it complaining then error occur at trial and allowing to review, appellate the vitae appeal. However, with in favorem to whether regard court for error without searches the record an has objection preserved it. encourages This defense (such attorneys to purposefully allow error to occur as improper solicitor argument or erroneous the charge by in a judge) they trial, case feel are they losing thereby at tainting trial, while taking comfort that this Court will a reverse convictionbased upon unobjected-to error. strategy may This serve in some cases to make more probable the convictionof a defendant but trial, at the defense in attorney finds solace an in vitae reversal appellate favorem and, possibly years later, a new trial with evidence witnesses Common missing. sense dictates a defense attorney is more likely to this employ tactic sandbagging when he feels his client will be anyway. convicted Indeed, argument it is a attorney’s defense an duty as advocate to this employ tactic does Hence, not lack force. those defend- ants who are least be likely to innocent of the charges against them are those likely most to receive the benefit of the operation of in review, vitae is since it those defend- favorem ants who must employ “sandbagging” tactics and the like an attempt to avoid punishment for their actions. This practice the goals frustrates of our criminal justice system— designed which is only not to protect innocent to but punish the guilty.

Further, attorneys some may allow errors to occur aas matter trial strategy. A attorney may, defense for example, desire that certain improper arguments by the be State heard jury, or that the jury be charged certain erroneous charge. attorney defense will thus allow the “error” to occur, on based the thinking that the introduction of the argument or charge into the case would the client due benefit to the nature of the case or the Also, circumstances involved. defense may counsel decide as a matter to strategic object his objection because highlight would evidence, erroneous argument, or With in charge. vitae review, this Court favorem merely assumes ineffectiveness in these no instances,11having 11It is true we have doctrine of vitae that the designed held only, allow Court opposed to review errors law strategy as decisions Riddle, of trial counsel. However, very the fact remains that there are few cases which can we determine, us, on based the record before whether the failure defense object strategic counsel to was a decision. to discover whether the involved

ability question parties to was strategy involved. is made to an due objection

In where situations counsel, of defense we ineffective assistance alleged of issue method preferable exploring hold the more relief, post-conviction an for application is via the avenue of in underlying by way the error of than reversal of rather in context of an adversarial It is the vitae review. favorem a relief, in tribunal such as proceeding, post-conviction on judgment a whether defense truly can make well-informed ineffective, or prejudically in a instance was given counsel of trial part strategy. the to was a object whether failure net safety because of the object failure to purposeful the trial to judge vitae also forces provided by in favorem in a inject quasi-adversarial himself into certain situations reversal, avoid appellate in order to judge must, role. The trial and the State job prevent do is what the defense counsel’s comments; and/or from making improper arguments from from evidence; asking improper or introducing improper of in a at times position is also questions. judge put The trial (1) refrain strategically to: to choosing a defendant permit (2) to refuse client; from and benefit his or objecting thereby mero motu allow the in or to be made ex argument evidence by appeal reversal this Court on via prevent traditional vitae review. This is a breakdown the we no process longer adversarial can sanction. trial contemporaneous objection

A enables requirement to make reasoned decisions judges by appropriately argument, both developing way against issues for or particular legal proposition. This, turn, potential allows prevented to be cured. The errors United States Supreme Wainwright Sykes, Court set forth in 97 S. U.S. L. 2497, 2508, Ct. Ed. a the virtues of objection requirement contemporaneous thusly: crime, A defendant has been accused of a serious and this to be place and set him tried jury is time either or not peers guilty guilty by his and found possible extent all issues which bear greatest To the jury. proceeding: determined in this charge on this should be in the courtroom, box, the accused is judge bench, witnesses, is on and been having subpoenaed sworn, await duly testify. their turn Society’s have at resources been concentrated that time place decide, in order to within the limits human the fallibility, question of of one of guilt innocence its Any procedural citizens. rule which the result encourages that those free proceedings possible be as of error as desirable, thoroughly contemporaneous objection and rule falls within surely that classification. Wainwright,

As stated by the Court in contemporaneous objection maintains the framework of our time-proven adversarial process allows the various in each actors trial (solicitor, counsel, defense judge) and trial to adhere to their traditional roles. in vitae review is argues

Torrence favorem by mandated statute despite adopted fact it was by on nearly this Court its own ago. two centuries Torrence the legislature contends codified this review for (1988 § defendants in S.C. Ann. Code Cum. 16-3-25 Supp.). We disagree interpret do not statute this as mandating in vitae review. If the legislature had favorem mentioned the vitae expressly doctrine, or if it had favorem expressly this required Court review and reverse convictions on unobjected-to errors, and/or sentences based we would think differently. 16-3-25(B)’s §

Torrence points specifically language, which Supreme reads: Court of South Carolina shall “[t]he by consider as as punishment way well errors appeal.” argues verbiage Torrence this Court indicates appellate must consider his of whether arguments regardless they are procedurally preserved contemporaneous objection. Torrence reads too much into Simply too little. because the to mention legislature procedural failed requirements necessary to error mean assign does not none exist. This Court’s general appellate jurisdiction statute, § Code Ann. 14-3-330 states in terms similar to 16-3-25(B): § those used in Supreme Court shall have “[t]he appellate jurisdiction for correction of errors law in law 16-3-25(B) accept § cases----” To Torrence’s interpretation way would mean that this Court have to analogy would review procedurally barred “errors of law” in all § cases under 14-3-330. §

Torrence next focuses on the language of 16-3-25(0, which concerns certain situations in which a death (1) viz., sentence reversed, must be when it is the result of passion, prejudice, (2) or any other arbitrary factor;12 when there is a lack of evidence supporting trial judge’s finding of a statutory aggravating circumstance; and where the sentence is excessive or disproportionate to the penalty imposed similar cases. Torrence argues this Court must 16-3-25(C) address on appeal any argument § under regardless of whether it is procedurally barred through the absence of a contemporaneous objection. He then contends the “arbitrary factor” in the language statute is a rubric under which virtually all legal fall, errors and that therefore vitae review of all legal errrors is required by 16-3-25(C). §

As an initial matter, the “arbitrary factor” language statute is not to be interpreted as broadly as Torrence urges. Were it to be so interpreted, the legislature would not have needed to include references to insufficient evidence of a statutory aggravating circumstance or to an excessive or disproportionate sentence. The legislature also would not §in have, 16-3-25(B),stated that this Court “shall consider... any errors by way of appeal,” since the “arbitrary factor” term would, under view, Torrence’s encompass all legal errors. aside,

This we have already, by implication, rejected 16-3-25(C) Torrence’s argument § that somehow mandates in Butler, vitae review. In State v. favorem James Butler on argued appeal his sentence 16-3-25(C)(l) should be vacated pursuant §to because a solicitor’s personal opinion was injected into the jury’s determinations. Under § Torrence’s view, 16-3-25itself would require us to review Butler’s claim. We did not interpret Butler, statute in such a inway however. There, Harwell, Justice for the writing court, stated: 12 finding A of a sentence of death based on such Eighth would constitute an Amendment violation in event. no Although timely objection to the remarks was made at trial, this Court will review record in vitae favorem in a case. We conclude that the solicitor’s arguments during penalty phase require appellant’s sentence of death be vacated. When.a solicitor’s personal opinion explicitly injected into the jury’s determinations as though it were in itself evidence a sentence of justifying death, death resulting sentence may be free from the influence of any arbitrary § factor as S.C. Code Ann. required 16-3- 25(C)(1).... added) (citations omitted)

(emphasis 277 S.C. at 290 S.E. 16-3-25(C) § at 421. In Butler we clearly reached the argument through the in vitae mechanism. Absent favorem that mechanism, the failure to object procedurally would have barred Butler’s In argument. sum, reject we Torrence’s argument that in statutorily vitae review is required. favorem However, we do not our relinquish entirely ability

provide relief to have, reason, those who for whatever been utterly failed our criminal justice system. While we abolish vitae review as an outdated doctrine too easily abused, an imprisoned may individual obtain a writ of habeas corpus from this Court after all other sources of exhausting relief, “where there has been a ‘violation, which, in the setting, constitutes denial of fundamental fairness to the shocking universal sense of ” — State, Butler v. justice.’ —, (emphasis Miller, in the original) (quoting State v. 16 N.J. (1951)). 251, 84 A. Super. said, This we hold a contemporaneous objection is necessary all trials beginning after the date of this opinion properly preserve errors for our direct appellate review.13

Gregory, C.J., JJ., Chandler, and Harwell concur. 13 they review, vitae require following cases, To the extent alia, inter hereby are overruled: Arthur, (2d) State v. 495, 374 (1988); 296 S.C. S.E. 291 (2d) Diddlemeyer, State v. 235, 371 (1988); 296 S.C. S.E. 793 Hawkins, (2d) 418, 357 (1987); State v. 292 S.C. S.E. 10 (2d) Bellamy, State v. 103, 359 (1987); 293 S.C. S.E. 63 Reed, (2d) (1987); State v. 515, 362 293 S.C. S.E. 13 Riddle, (2d) 232, 353 (1987); State v. 291 S.C. S.E. 138

70 (2d) Cooper, State v. 332, 353 (1986); 291 S.C. S.E. 441 Pierce, (2d) State v. 430, 346 (1986); 289 S.C. S.E. 707 Damon, (2d) denied, State v. 125, (1985); 285 S.C. cert. 328 S.E. 628 474 (2d) denied, 865, 106 187, 88 156, U.S. reh. 1015, 106 S. Ct. L. Ed. 474 U.S. (2d) 551, 88 (1985); S. Ct. L. Ed. 479 Drayton, (2d) State v. 226, 337 (1985); 287 S.C. S.E. 216 Gaskins, (2d) denied, State v. 105, (1985), 284 S.C. cert. 326 S.E. 132 471 1120, 105 (2d) 2368, 86 (1985); U.S. S. Ct. L. Ed. 266 Koon, (2d) denied, State v. 1, (1984), 285 S.C. cert. 328 S.E. 625 471 U.S. (2d) 1036, 105 2056, 85 (1985); S. Ct. L. Ed. 329 Lucas, (2d) 37, denied, State v. (1985), 285 S.C. cert. 328 S.E. 63 472 U.S. (2d) 1012, 105 denied, 2714, 729, S. Ct. reh. 925, 106 86 L. Ed. 473 U.S. S. (2d) 15, 87 (1985); Ct. L. Ed. 694 Norris, (2d) State v. 86, 328 (1985); 285 S.C. S.E. 339 Peterson, (2d) State v. 244, 335 (1985); 287 S.C. S.E. 800 Plemmons, State (2d) v. 78, 332 (1985), 286 S.C. vacated on other S.E. 765 grounds, 1102, 106 (2d) 1943, 90 (1986); 476 U.S. S. Ct. L. Ed. 353 Singleton, (2d) State v. 388, denied, (1985), 284 S.C. 326 S.E. cert. 153 471 1111, 105 (2d) 2346, 85 (1985); U.S. S. Ct. L. Ed. 863 Smith, (2d) State v. 406, denied, (1985), 286 S.C. cert. 334 S.E. 277 475 1031, 106 (2d) 1239, 89 347; U.S. S. Ct. L. Ed. Chaffee, State (2d) v. 21, denied, (1984), 285 cert. 328 S.E. 464 471 (2d) 1009, 105 1878, 85 (1985); U.S. S. Ct. L. Ed. 170 Patterson, State (2d) (1984) v. 5, denied, (II), cert. 285 S.C. 327 S.E. 650 1036, 105 (2d) 2056, 85 (1985); 471 U.S. S. Ct. L. Ed. 329 Adams, (2d) (1983) State v. 228, 306 (II); 279 S.C. S.E. 208 Elmore, State (2d) (1983) v. 417, 308 (I); 279 S.C. S.E. 781 Butler, (2d) State v. H. 452, denied, (1982), 277 S.C. 290 S.E. cert. 1 459 932, 103 (2d) 242, 74 (1982); U.S. S. Ct. L. Ed. 191 Butler, (2d) State v. J.A. 543, 290 (1982); 277 S.C. S.E. 420 Patterson, State (2d) v. 319, 295 (I); 278 S.C. S.E. 264 Smart, State v. (2d) 515, denied, (1982), 278 S.C. 299 S.E. cert. 686 460 1088, 103 (2d) 1784, 76 U.S. (1983); S. Ct. L. Ed. 353 Thompson, State v. (2d) 1, denied, (1982), 278 S.C. 292 S.E. cert. 581 456 938, 102 (2d) 1996, 72 U.S. (1982); S. Ct. L. Ed. 458 Yates, (2d) State v. 29, 310 (1982); 280 S.C. S.E. 805 Adams, State (2d) v. 115, 283 (1981); 277 S.C. S.E. 582 Hyman, (2d) State v. 559, denied, (1981); 276 S.C. cert. 281 S.E. 209 458 1122, 102 (2d) denied, 3510, 73 1384, U.S. S. Ct. reh. L. Ed. 458 U.S. (2d) 18, 73 103 S. Ct. (1982); L. Ed. 1403 Woomer, State (2d) v. 258, 277 (1981); 276 S.C. S.E. 696 Goolsby, State v. (2d) denied, (1980), 275 S.C. cert. 31 449 1037, 101 (2d) 616, 66 U.S. (1980); S. Ct. L. Ed. 500 Gilbert, State (2d) 690, 258 (1979); 273 S.C. S.E. 890 Shaw, State v. (2d) denied, 194, 255 273 S.C. cert. S.E. 799 444 U.S. 957, 100 (2d) 437, 62 (1980); S. Ct. L. Ed. 329 Allen, State v. A. (2d) 175, 222 (1976); 266 S.C. S.E. 287 Allen, State v. (2d) J.L. 468, 224 (1976); 266 S.C. S.E. 881 Ingram, (2d) State v. 462, 224 (1976); 266 S.C. S.E. 711 Atkinson, State v. 531, 172 (2d) (1970); 253 S.C. S.E. Bell, State v. 37, 156 (1967); 250 S.C. S.E. Gamble, State v. 605, 155 (1967); 249 S.C. S.E. Cannon, State v. 506, 151 (1966); 248 S.C. S.E. Gamble, (1966);

71 Thomas, v. (2d) State State v. 573, 151 (1966); 248 S.C. S.E. 855 Cain, (2d) 536, 144 (1965); 246 S.E. S.C. 905 denied, Swilling, v. (2d) State 144, 142 (1965), cert. 246 S.C. S.E. 864 389 (2d) 1055, 88 806, 19 (1968); U.S. S. L. Ct. Ed. 853 Black, Moorer, (2d) State State 42, 132 v. v. (1963); 243 S.C. S.E. 5 (2d) 487, 129 (1963); 241 S.C. S.E. 330 Morris, v. (2d) State State v. 225, 133 (1963); 243 S.E. S.C. 744 Sharpe, (2d) 258, 122 (1962); 239 S.C. S.E. 622 Worthy, (2d) State v. v. 449, 123 (1962); 239 S.C. S.E. 835 Outen, (2d) State 514, 118 (1961); 237 S.C. S.E. 175 Robinson, (2d) State v. 140, 119 (1961); 238 S.C. S.E. 671 Thorne, (2d) State v. v. 164, 121 (1961); 239 S.C. S.E. 623 Young, (2d) State 115, 119 (1961); 238 S.C. S.E. 504 Britt, (2d) v. State 293, 117 (1960); 237 S.C. S.E. 379 Johnson, v. v. (2d) State 207, 113 (1960); 236 S.C. S.E. 540 Britt, (2d) State 395, (1959); 235 S.C. 111 S.E. 669 Brooks, dismissed, v. (2d) State appeal 344, (1959), 235 111 S.C. S.E. 686 300, 81 (2d) 707, 5 (1961); 365 U.S. S. Ct. L. Ed. 689 Bullock, State v. (2d) (1959); 111 235 S.C. S.E. 657 Livingston, State v. State v. v. (2d) 400, 105 (1958); 233 S.C. S.E. 73 Daniels, (2d) 176, 97 (1957); 231 S.E. S.C. 902 Byrd, Jones, (2d) State State v. 593, 93 (1956); 229 S.C. S.E. 900 (2d) (1956); 228 1 S.C. Boone, v. (2d) State 438, 90 (1955); 228 S.C. S.E. 640 Chasteen, State v. v. (2d) 88, 88 (1955); 228 S.C. S.E. 880 Green, Waitus, (2d) State State v. 1, 86 (1955); 227 S.E. S.C. 598 (2d) 44, 83 (1954); 226 S.C. S.E. 629 Gantt, v. denied, (2d) State 431, 76 cert. 223 S.C. S.E. 674 347 U.S. 906, 74 433, 98 (1954); S. Ct. L. Ed. 1065 Blassingame, v. State (2d) 169, 69 (1952); S.C. 221 S.E. 601 Harvey, Harris, (2d) State v. v. 506, 68 (1951); 220 S.C. S.E. 409 (2d) State 124, 46 (1948); 212 S.C. S.E. 682 Lincoln, v. (2d) State State v. 553, 50 (1948); 213 S.C. S.E. 687 Taylor, (2d) 330, 49 (1948); 213 S.C. S.E. 289 Gidron, v. (2d) State (1947); 360, 45 211 S.C. S.E. 587 Gatlin, v. (2d) State 414, 38 (1946); 208 S.C. S.E. 238 Scott, v. State State State 61, 38 (1946); 209 S.C. S.E. 902 Simmons, v. 538, 38 (1946); 208 S.E. S.C. 705 Grant, denied, v. 412, 19 (1942); 199 S.C. S.E. 638 cert. 316 U.S. 662, 62 942, 86 (1942); S. Ct. L. Ed. 1739 Osborne, v. v. State State 504, 21 (1942); 200 S.C. S.E. 178 McDonald, 290, 192 (1937); 184 S.E. S.C. 365 Williams, also, v. e.g., State 63, 164 See State v. 166 S.C. S.E. 415 Green, 136, 26 (1897); 48 S.C. S.E. 234 Faile, State v. 52, 20 (1895); 43 S.E. S.C. 798 Morgan, Turner, State 345, 18 In re State v. (1894); 40 S.E. S.C. 937 39 (1893), affirmed, Turner, 414, 17 420, 17 S.C. S.E. 888 39 S.C. (1893); Levelle, Davis, v. v. State State State v. 120, 13 (1891); 34 S.C. S.E. 319 (1888); S.E. 567 McNinch, (1879); Fley, (2 Brev.) State v. v. v. (1809); 4 S.C.L. 338 Arden, (1 State State (1795); Bay) S.C.L. 487 Briggs, (1 Brev.) (1794). 3 S.C.L. 8 dissenting: Finney, Justice, concurring majority’s the from dissent

I respectfully my In in vitae. of the doctrine to abolish decision favorem decidedly and is a reasonable vitae review in opinion, favorem to the state seeks when measure precautionary modest of death. the sanction impose reasons advanced the concurrence, primary I read the

As 1) The vitae are: of in of the doctrine abolishment for favorem for defendants capital to other mechanisms availability of 2) by abuse defendants’ errors; and remedy and of detection interposing refrain from deliberately who trial counsel I the doctrine. upon in reliance to trial errors objections the abolishing for grounds reasons invalid consider both doctrine. of other availability procedural the

First, regard with the defendants, none of these serve for capital safeguards statutory provision The vitae. function of in specific favorem rectify prejudicial relief was post-conviction for created to review in its of scope and is limited case, criminal error in more hand, expansive the On the other application. and address errors within created to review was vitae favorem Butler, 277 v. James trial. State capital context of a unique (1982). (2d)420 543, 290 S.C. to obtain a writ defendants ability capital

As to the exhausting after only is available remedy corpus, habeas “where there and is limited to cases avenues of relief all other a denial which, setting, in the constitutes ‘violation, has been to the universal sense of shocking fairness of fundamental ” — State, —, Horace Butler justice.’ — denied, —, 111 cert. U.S. original), in the (emphasis Miller, (1990),quoting 112 L. Ed. S. Ct. I would find A. Super. 16 N.J. corpus, though obtaining habeas upon circumscription and cases, unduly restrictive criminal to other applicable of death imposition in a case where inappropriate remediation. subsequent precludes vitae defend- of in concerning abuse Second, to trial errors reliance fail to object who ants’ trial counsel I am of the opinion “sandbagging,” called doctrine, so upon this reason is a severe of the doctrine that abolishment and more remedy properly misdirected a matter attempt mechanisms through presently addressed other appropriately I in this allegation I would out that find no place. point “sandbagging.” record nor citation in the concurrence of However, part such an assertion bad faith on the presumes case, I such is the suggest defense counsel. would where remedies for provide the Rules of Professional Conduct It system.. of the attorney misconduct abuse that a incomprehensible capital penalized defendant should be may for the ultimate result be actions his counsel when the which a prejudicial pays error for defendant with his life. evolution of mechanisms of cited protection majority does not alter the fact that the trial of a case from resulting punishment inherently are different any other criminal For almost 200 prosecution. years, Court has vitae as a recognized doctrine of in favorem necessary integrity viable and device for safeguarding our criminal error justice system by insuring prejudicial in capital cases did not undetected and unremedied. State go (1 Brev.) (1794). Briggs, Likewise, v. 3 S.C.L. the United 8 States Supreme recognizes severity uniqueness Court capital 153, cases. See v. 428 U.S. 96 S. Ct. Gregg Georgia, (2d) (1976). 2909, 49 L. Ed. 859 of the “Imposition penalty profoundly death is different from all other Lockett penalties, (2d) Ohio, 586, 2954, 2965, 973, v. 438 U.S. 98 S. Ct. 57 L. Ed. (1978),and, more, fewer, 990 as such requires procedural 639, . .” State v. 477 A. safeguards.. Biegenwald, 630, N.J. (1984). 318, 666, 97 N.J. A. At the clarified, least, justice very demands and conscience dictates that irretrievable life extinguishment by of human the state be preceded by a conscionable effort to be fair and thorough, reasonably certain measures are maintained and adequate observed to minimizethe of an execution. illegal likelihood courts in several other prevailing practice appellate is to overlook defaults and review the jurisdictions procedural trial record for affirming reversible error a death prior See, e.g., sentence. Alabama:

In all cases in which the penalty imposed, death has been . . . the Court notice error or Supreme may any plain review, defect in the under whether or not proceeding court, trial and take of the brought to the attention thereof, whenever by action reason appellant appropriate affected the adversely has probably error has or such of the rights petitioner. substantial 39(k). Rule Proc. App. Ala. imprison- for life either a sentence

Arkansas: [W]here Court shall Supreme ment or death present], [is rights appellant. to the of the prejudicial all errors review (1977). §Ann. 43-2725 Arkansas Rev. Stat. course, continue cases,] will,

Florida: capital [w]e [In our own issue and to conduct every presented to review Florida Rule of Appellate in accordance with review 9.140(f). Procedure (Fla. State, 180, 183, 1985), n. 1 cert. 476 So.

Cave denied, 106 S. Ct. 90 L. Ed. 476 U.S. Court shall Georgia: cases,] Supreme [t]he [In timely of error raised review each of the assertions court the trial during proceedings the defendant error was or not an assertion of regardless of whether trial, and to the trial court motion for new presented in the of whether error is enumerated regardless Court. Supreme B(2). IV Unified Rule

Georgia Appeal clearly punishment Idaho: Death is a different kind of any [might] imposed, Code] from other that be [Idaho only § that we examine not 19-2827 mandates imposing followed procedure sentence but the an is even taken. appeal sentence of whether regardless may unchallenged we not ignore This indicates to us that a Moreover, errors. of sentence of death gravity it is imposed outweighs with which infrequency justify refusal to might proposed rationale that be objected errors not to below. consider (2d) Osborn, 405, 410-411,631 P. 187, v. 102 Idaho 192- State (1981). 193

75 Illinois: Ordinarily, contention not made in the trial court is on appeal. waived . . . However, because qualitative difference between death and other forms of punishment... this court has elected to address errors in death penalty cases which might have affected the decision the sentencing jury. Holman, (2d) v.

People 133, 103 Ill. 176, 82 Ill. 585, 606, Dec. (2d) 469 119, N.E. denied, 140 cert. 469 1220, U.S. 105 (2d) (1985). 1204, 84 S. Ct. L. Ed. 347 Indiana: The failure to properly raise issues Motion to Correct generally results in a waiver Errors — of the claimed errors. . .. Since the death penalty was imposed in this case, however, we will review the state of the record concerning these questions. (2d)

Lowery State, (Ind. 478 N.E. 1214, 1229 1985), cert. denied, 475 U.S. 1098, (2d) 106 1500, S. Ct. 89 L. Ed. 900 (1986).

Kentucky: a death penalty [I]n case every prejudicial error must considered, be whether or not an objection was made in the trial court. v. Commonwealth,

Ice. 667 671, 674 S.W. (Ky. 1984),cert. denied, 469 860, 105 (1984). U.S. S. Ct. L. Ed.

Louisiana: In death penalty cases, this Court has reviewed assignments error, despite the absence of a contemporaneous objection, in order to determine whether the error the result unreliable,” “rendered] thus avoiding later consideration of the error in the context ineffective assistance of counsel. Hamilton, (La. 123, 478 So. 127, 1985), n. 7 cert.

denied, U.S. S. Ct. L. Ed.

Missouri: Several general states hold that the rule that allegations of court error not assigned in a motion new preserved trial are not for appellate review, codified in 29.11(d) Missouri Rule exceptions with not applicable here, is in death inapplicable penalty cases. Even though the assignment of error has been improperly preserved,

76 plain relied on gratia, point ex review,

we if or a injustice manifest to determine error ... denial of Nave’s from the justice of resulted miscarriage for continuance. request (Mo. denied, 1985), cert. Nave, 729, v. 694 S.W.

State (1986). 1500, 89L. Ed. 1098, 106S. Ct. 475 U.S. imposition penalty of the death Because Pennsylvania: imperative it is that the finality, in its irrevocable is is fixed be sentence which standards . . . The rule beyond waiver constitutionally reproach. lofty require as to this to a so position cannot be exalted propriety of to the real issue—the to blind itself Court illegal to conduct an execution. the state allowing A. McKenna, 428, 440-441, Pa. Commonwealth 174, 181 the omission. Never- was made to objection

Utah: [N]o theless, capital case, we consider the defend- as this is contention on appeal. ant’s 1980). (Utah Brown, P. penalty imposed that the death is not so I would maintain that we can state so vast infrequently power nor high of human life or our standard afford to trivalize the value my view, In justice for the justice expediency. sake spawned proliferation safeguards has not such a as system error, and we ill protection against human can guarantee of one of the few effective the cavalier abolishment afford the extent the concurrence relies in existence. To devices State, that, supra, noting it is worth Horace Butler v. upon including protections, despite procedural other infavorem vitae, extraordinary relief. Court was constrained to issue no or relief within our protection I other conclude unique to the domain of system applicable justice criminal vitae, should be retained as an doctrine integral of our law. part

Case Details

Case Name: State v. Torrence

Court Name: Supreme Court of South Carolina

Date Published: May 20, 1991

Citation: 406 S.E.2d 315

Docket Number: 23403

Court Abbreviation: S.C.