*1 relied regulatory taking Supreme United States and concludedthere was no that involved real property2 eases property question property of the since taking personal case, Permit Development retained some value. this an owner’s permitted develop- retained some value since extent allowed under the rezoned ment of the to the property summary judgment classification of C-3. we hold was properly granted. arguments regarding
We need not address Cove’s Long Long alternative of the trial Cove’s ground judge’s ruling. disposed are without merit and are maining arguments 220(b), to Rule SCACR. pursuant Affirmed. JJ.,
Finney, C.J., Toal and A. Lee Chan- Waller, Justice, concur. Acting Associate dler, STATE, YOUNG, Appellant. Respondent v. Kevin Dean
(459
(2d) 84)
Supreme Court
City,
Transportation Co. v. New York
98 S.Ct.
Penn Central
438 U.S.
Mahon,
Pennsylvania
(1978);
Coal Co.
Kansas,
Mugler
8 S.
Decided June Reh. Den. July Justice: Waller,
Appellant, Kevin Dean Young,was convicted of the murder of an Anderson school elementary principal and sentenced to death. This Court affirmed his murder conviction but re versed the sentence of death and remanded for resentencing. Young, (Young I)).1Youngwas resentenced to death.
This case consolidates the direct of his appeal resentenc- with the ing mandatory provisions review of S.C. Code Ann. § 16-3-25
We affirm.
ISSUES The issues are for our review: following presented
1)Was the required, prior solicitor resentencing,
serve a new notice of intent to seek the death penalty? 2) Where statement to determined to Young’s police was voluntary and admissible in the of his guilt phase
trial, hewas entitled to the issue of its volun- relitigate tariness at resentencing? opinion. in details of the crime are set forth
3) that, if Was entitled to a instruction sen- life he would not be imprisonment, eligible
tenced to thirty years? 4) an involuntary Was entitled to instruction on
manslaughter?
I) PENALTY NOTICE OF DEATH trial, initial Prior to the solicitor served Notice (Notice). Intent to Death from that Penalty appeal Seek On trial, this reversed and remanded for resentencing. I. The solicitor did not serve another Notice prior contends the failure to do so mandates resentencing; Young disagree. reversal. We 16-3-26(A)(Cum. 1993) Code Ann. Supp. provides:
S.C. Whenever the solicitor seeks the death he shall penalty notify attorney the defense of his intention to seek such at least to the trial of case. penalty thirty days prior At the of the defense the defense attor- request attorney, ney days shall be excused from all other trial duties ten to the term of court which the trial is to be held. prior There is no of written notice in the statute. requirement The order counsel to a death case is dated appointing 11,1993, Feb. almost months prior resentencing. Clearly, counsel had sufficient notice. Rackley, cites
(1980),for the that the proposition forgoes possibil- a death ity of sentence when it fails to serve a Notice of In- did, tent. here Rackley inapplicable since the State initial proceeding, serve the Notice.
Moreover, further
and the
process
institution of en
new
in the lower court are
tirely
proceedings
ordinar
*4
ily unnecessary after remand. 5
and Error
Appeal
CJS
(1993).
§ 978
Where defendants are
and tried
arraigned
upon
indictments for
granted
murder and thereafter
a new trial on
a second
not
appeal,
arraignment
necessary
is
and retrial
upon
Hewitt,
the
indictments is sufficient.
206
original
State v.
(2d)
(1945).
409,
Davis,
S.C.
34 S.E.
764
See also
267
State
Stewart,
S.C.
26
State
S.C.
(1887).
We State serve a second No tice of Intent the Penalty to Seek Death at resentenc ing.
II) VOLUNTARINESS OF STATEMENT the During guilt phase trial, Young of challenged admissibility of his statement to in which he con police to shooting fessed After a victim. Jackson Denno2 hearing, judge the trial ruled the statement admissi At ble. moved for another resentencing, in camera hearing regarding the voluntariness of the statement. court request. Young denied his now asserts error in the refusal to him permit court’s evi present additional dence that his statement co demonstrating police was erced. disagree. We
At now, did not as resentencing, he does suggest, that he should be or permitted testify present additional before evidence that demonstrate the statement was coerced. this issue not preserved. Meyers, S.C. 203 S.E. not (party may raise not ground asserted below on appeal). event, any court did not resentencing rule could not present concerning additional evidence statement;
circumstances of the to the the court contrary, merely him from prohibited issue of admissi- relitigating Truesdale, This bility. ruling proper. (1990)(defendant not at re- may relitigate, sentencing, of which admissibility statement has previously admissible); Stewart, been determined (1986). 16-3-25(E)(2) See also Code (1985)(introduction evidence during admitted properly guilt trial phase previous permissible resentencing).
Ill) PAROLE ELIGIBILITY dire, voir numerous During questioned prospective jurors regarding their of “life understanding imprisonment.” A majority responded the term meant the would defendant spend the rest of his life prison, ineligible or would be *5 38 the defendant meaning “life” as juror interpreted One
parole. Thereafter, Young twenty years prison. serve about would to S.C. jury, pursuant the trial court charge requested 16-3-20(A) 1993), that if sentenced to life (Supp. Ann. Code for until service of ineligible parole he would be imprisonment but did request charge, The court refused the thirty years. (2d) Norris, to State v. 285 328 339 S.E. pursuant eligibility not to consider (1985), jury parole that the was are “life and “death sentence” imprisonment” that the terms and ordinary meaning. understood their plain that if sentenced to jury’s knowledge contends until service of “life,” eligible he would not be imposi- would have warranted factor which thirty years the failure to so of a life sentence. he asserts Accordingly, tion Amendment.3 We dis- jury Eighth violates agree. Amendment, States cannot limit the Eighth
Under the relevant circum consideration of sentencer’s impose which could cause the to decline to jury stance Tennessee, Payne the death U.S. penalty. Stewart, 288 S.C. (1986). Supreme The United States rele
has “deferred to the State’s choice of substantive factors Ramos, vant to the determination.” California (1983). 3446, 3453, 77 L.Ed. 992, 1001, 103S.Ct. U.S. the sentencing is relevant to deter parole eligibility Whether Id. mination is a matter of state law. we is not relevant to a parole eligibility have ruled Torrence, considerations. sentencing (1991) (Justice concurring); Chandler Davis, we no Amendment violation. find
Moreover, contention the have found jury may to warrant a sentence thirty-year parole eligibility his than death is untenable. The record reveals that a less jury who were seated on the be majority jurors polled lieved that “life meant the defendant would imprisonment” ineligible never be released from or would be prison pa Fur- Nonetheless, jury role. sentenced to death. CONST, amend VIII. thermore, years at the twenty old time crime; is no there evidence the would have found lease from prison age fifty To the it is mitigating. contrary, *6 feasible such information would have served to merely en- that, hance the belief day since would one be Young leased from death prison, was appropriate.
Finally, there no here is issue future regarding a which a dangerousness,4 may factor sentenc impact ing jury’s consideration of life versus death. See Sim —, mons (1994).5 Accordingly, Simmons is inapplicable to the present case.6
IV) INVOLUNTARY MANSLAUGHTER CHARGE Young asserts the trial court should have the charged jury on the elements of involuntary as manslaughter “mitigating evidence.” We disagree. did not
Young request a charge involuntary mans no laughter.7 Accordingly, issue is preserved re view. State v. Longworth, 438 S.E. (1993)(failure object charge given as or request ad charge ditional constitutes a waiver of the right complain on appeal). event,
In any
the evidence
not
did
warrant a
on in-
voluntary manslaughter. According Young’s
version of
events,
codefendant, Bell,
the
grabbed
Victim’snecklace
from around his neck. When the Victim “started” towards
Bell,
aimed the
the
Young
gun at
Victim’s
Bell
head.
asked
and,
forth,
the Victim for his
after
money
back and
arguing
finally
the Victim
tossed his wallet towards Bell. The Victim
“kind of swung” at Young
gun just
and the
went
and
off
shot
presented concerning Young’s
prior
Evidence was
character and his
crimi
was, however,
nal record.
sentencing phase
Such evidence
relevant
regard
dangerousness.
without
to future
Simmons
South Carolina. There
Young
day
fact,
was no contention that
prison.
would one
be
from
released
In
counsel for
stressed to
would never be released.
expressed
opinion
The Simmons court
no
on the
Amendment issue
presented.
—,
—,
Victim 1) of an killing is either Involuntary manslaughter but while one unintentionally, other malice and without act not of some unlawful in the commission engaged naturally tending not to cause felony to a amounting 2) with harm, killing of another bodily death or great in the engaged doing while unintentionally out malice and but of oth safety with a reckless disregard of a lawful act State, ers. Bozeman (Ct. McCall, App. 405 S.E.
1991). in the commissionof armed rob-
Here, engaged As 16-1-10, shooting. under at the time of bery, felony an such, involuntary manslaughter he was not entitled to charge.
CONCLUSION review proportionality pur We have concluded §Ann. 16-3-25 The sentence suant to S.C. Code other passion, prejudice, was not the result of factor; of the arbitrary supports finding ag the evidence circumstance; dispropor and the sentence is not gravating Bell, tionate to that similar cases. imposed denied, 1038, 112 11, 406 165,cert. 502U.S. S.Ct. Green, denied, cert. U.S. (1990).The sentence of death is L.Ed.
Affirmed. C.J., Moore, JJ., concur.
Chandler, and Toal Finney, J., dissenting separate opinion.
Finney, Justice: refusal of my opinion,
I dissent. respectfully a on violated jury charge parole eligibility quest Amendment I would reverse. Eighth rights. to be voir dired on their judge jurors
The trial allowed The re- of the term “life understanding imprisonment.” if understood the jurors, any, few sponses potential indicated allowed this judge of this Once legal meaning phrase. issue to be raised in the minds of jurors, became rele vant circumstance in determining the sentence appropriate circumstances, Under these imposed. the refusal the law on parole eligibility was a violation Carolina, Amendment. See Simmons —, —, 2187, 2198, 129 (Souter, A.J., concurring). Further, I do not understand how the majority is able to conclude that the correct information would have had no impact sentencing decision. Simmons South supra. STATE, Respondent MOLLISON, Appellant STATE, v. Joanne and The Respondent Phillip SMITH, Appellant. G.
(459 (2d) 88) Appeals