*1 to refund agrees a client. He now deliver funds to he in this action. the funds received company insurance all defended an insurance matter, respondent In another A single matter. Commission carrier Industrial plaintiff against for the an award commissioner issued full the award. The Respondent appealed company. award, plaintiff never upheld but Commission any Subsequently, respondent payment. received however, the agreement; reached another counsel plaintiffs the carrier. Sanctions compensated by still not plaintiff was imposed. carrier were the insurance against his that he settled this matter without Respondent denies however, handling admits that consent; he client’s of the Code of Profes- case to the standards contrary Responsibility. sional for his conduct these publicly respondent
We reprimand matters. reprimand.
Public J.,
Chandler, not participating. AIKEN, Warden, CCI, YATES, and the Dale Robert Petitioner v. James Carolina, General, Respondents. Attorney South (391 (2d) 530) Supreme Court *2 David I. Blume, Bruck and John H. and S.C. Office of Appellate Defense, Columbia, petitioner. for Atty. Gen. T. Travis Medlock and Deputy Atty. Gen. Chief Zelenka, Columbia, Donald J. respondents. for 6, 1988.
Submitted June 6, 1989.
Decided Feb.
Gregory, Chief Justice: This case for petition is before us on a writ of habeas corpus. We deny petition.
In 1981 petitioner murder, armed robbery, was convicted assault kill, and He battery conspiracy. with intent to was sentenced and sentence death. The convictions were Yates, to this Court. State affirmed on 280 appeal 310 S.E. (1982), denied, 1124, 103 805 cert. (1983).
3098, 77 L. Ed. 1356 post-conviction Petitioner’s for subsequent application relief was denied the circuit court 1984. He then of writ way denial by this Court for review of-that
petitioned corpus for habeas simultaneously petitioned He of certiorari. malice charge on judge’s relief on the the trial ground law1 and under Francis under state improper Franklin, 105 S. Ed. Ct. L. (1985). United denied the summarily petitions.
This Court for petition the denial of the States Court vacated and remanded for reconsideration writ of habeas Aiken, in Francis v. Franklin. Yates v. light of its decision (1985). 896, 106 218, 88 S. Ed. U.S. Ct. the denial of the petition On remand this Court clarified Aiken, law.2 Yates v. 231, 349 under state under disposition Dissatisfied with this Court’s Franklin, however, Francis v. the United States corpus. Court reversed the denial of (2d) 546 Yates v. Ct. L. Ed. U.S. S. Franklin, which condemns It held Francis v. *3 element mandatory presumption regarding proof crime, retroactively pending cases on collateral applies principles review it announced merely because reiterates Montana, 1979 decision of Sandstrom v. U.S. 510, in 442 (2d) (1979).3 S. 39 This 2450, again 99 Ct. 61 L. Ed. case was for further consistent with the proceedings remanded 538, 98 opinion. 218, 108 Court’s 484 U.S. at S. Ct. at (2d) L. Ed. at 554. charge
Acquiescing judge’s in the conclusion that the trial 1 Woods, (2d) v. 18, 316 that under State argued Petitioner 282 S.E. 673 (1984), application of our in State he was entitled to retroactive decision v. (2d) Elmore, 417, 308 (1983), implied 781 which barred an malice 279 S.C. S.E. charge mandatory creating presumption a rebuttable rather than a permissive inference. 2 of Elmore is limited pending application We cases on held retroactive the time Elmore was decided and does not appeal apply direct to collateral at State, McClary 160, 337 v. See attacks. S.E. 218 3 analysis petitioner eligible We would note that under this not be in mandatory corpus proceedings presumption to raise the federal habeas issue this issue under Sandstrom on direct appeal because did not counsel raise Ross, 1, 104 2901, (1984); 1 court. Reed state 468 U.S. S. Ct. 82 Ed. (2d) 666, State, denied, cert. 930, Franklin v. Ga. cf. (1980) (wherein 3029, in Francis v. petitioner 100 S. 65 L. Ed. Ct. Franklin raised Sandstrom mandatory presumption under issue state court). course, accept high Of we are constrained to court’s mandate that Francis v. Franklin applies here. mandatory improper constituted an on malice is harmless address whether the error we now presumption, it doubt. We hold is. a reasonable beyond Clark, In Rose v. the United States (1986),
L. Ed. that violate Francis held instructions Court The analysis. error to a harmless subject Franklin are record on the whole must determine whether reviewing court a beyond is harmless mandatory presumption the erroneous S. Ct. at 478 U.S. at reasonable doubt. is whether pertinent inquiry
L. Ed. at 474. to the subject of the element dispositive evidence is so a beyond say court can reviewing presumption unnecessary it would have found reasonable doubt inquiry requires the invalid Id. Such an rely presumption. on of this case judge’s charge to review the trial and the facts us charged. of the malice element of the offenses in the context opinion the facts as set forth in our earlier We restate two Henry spent Yates and his Davis compatriot this case. looking around the Greenville area for a store days driving by finally agreed upon operated The two rural store rob. gun, Willie Yates, Wood and entered store. armed with Davis, brandishing knife, confronted Wood who money. the store counter. Yates demanded standing behind gave Wood repeated Wood hesitated and Davis the demand. register. $3,000 in the cash Davis cash from approximately When Wood to lie the counter. Davis then ordered across stepped Wood refused, pointed gun Wood Yates at Wood. fired. Yates his hands in a posture. back and raised defensive tore hand and Wood’s passed completely through The bulled on Wood’s the flesh chest. Wood, entered noise, mother,
Alerted Wood’s Helen *4 office. adjoining post the store from a door leading gun. his own the counter with Wood started from behind The three knife. Davis at Mrs. Wood with lunged began Wood moments before for a few struggled together knife wounds from to the floor Davis. Mrs. Wood fell shooting the scene at Davis died in moments. her chest and died within gunshot from wounds. money took the chest, Yates
After in the shooting Wood when in the store not present from Davis and fled. Yates was Mrs. Wood and Davis were killed but was in the waiting car him. join Davis to sought petitioner’s
The State
conviction
for the
murder of Mrs. Wood on the theory
accomplice
Under
state
if
liability.
law,
two or more parties
combine
an
together
act,
commit
unlawful
in
commission
party
of that act one
commits
homicide that is a
probable
or natural
consequence
thereof,
all present
participating
the unlawful act are as guilty as the one who
Johnson,
committed the homicide. State v.
S.C.
Crowe,
State v.
(1987);
S.E.
Gilbert,
State v.
(1972);
The trial judge thoroughly and properly instructed the jury theory on the of accomplice To liability. accommodate petitioner’s defense, the judge further charged party is not liable as an for a accomplice murder committed slayer as an independent private act of malice, nor is a party if liable he withdraws entirely from the unlawful act before the homicide is committed.
We do not sit as a reviewing
court
in this case to
redetermine
factual
findings supporting
jury’s
verdict
that petitioner
guilty
is
of murder under a
theory
accomplice
liability. Contrary
to petitioner’s
brief,
assertions
we need not revisit
the purported
evidence of withdrawal
from the commission of the armed
robbery, nor must we reexamine the conclusion that Mrs.
Wood’s
a probable
murder was
or natural consequence of this
singular
unlawful act. Our
inquiry
this case is whether it is
beyond a reasonable doubt
that the
would have found it
unnecessary
rely
on the erroneous mandatory presumption
Clark,
element of malice. Rose v.
regarding
Our review of the record reveals two charges erroneous regarding implied First, malice. the trial judge charged the “willful, deliberate, and intentional doing of unlawful act withput any just cause or Second, excuse.” he charged: “malice is implied presumed from the use of a deadly . weapon [you .. are to whether determine] malice existed in the mind and heart of the killer at the time the fatal blow was struck.”
Under state law, murder is killing defined as the of any person with malice aforethought, express either or implied. § S.C. Code Ann. 16-8-10 case, On the facts of this as charged judge, trial the element of malice relied by on killer, the State is that of the Davis. We Henry therefore focus on the facts surrounding Henry multiple Davis’ brutal of Mrs. stabbing Wood. We find beyond a reasonable doubt would have found it on unnecessary rely either erroneous mandatory presumption in concluding that Davis acted with malice in killing Mrs. Wood. only context in which the element of malice relates to
petitioner’s individual acts is the offense of assault and battery with intent to kill. This offense is defined under state law as an unlawful act of a violent nature to the person of another with aforethought, malice express implied. State v. Hinson, We find beyond reasonable doubt the would have found it unnecessary on rely either erroneous mandatory presumption in concluding that acted with petitioner malice when he shot WillieWood who in a defenseless position.
Pursuant Rose v. Clark and based on our exhaustive record, review of the any we hold error under Francis v. Franklin is harmless beyond a reasonable doubt. The petition ofwrit is therefore
Denied. and JJ., concur. Chandler,
Harwell Finney Toal, JJ., dissent in separate opinion.
Toal, Justice (dissenting):
I respectifully Although dissent. this court has upheld defendant Yates’ conviction of murder and robbery armed and sentence of death on separate occasions, three the United States Supreme Court, after certiorari on Yates’ denying direct has, on appeal, review, collateral our twice reversed denying decisions Corpus. Petition for Writ of Habeas again We are required I not consider the Petition. do believe that the latest decision of the Court Yates (1988) U.S. 98 Ed. leeway part. on our any further
allows County, a store in rural Greenville Davis robbed Yates and the contents After Yates obtained near 1981. Tigerville *6 the at and shot gunpoint the proprietor the drawer from cash Yates had run he fled the store. After hand, in the proprietor the mother then entered store, proprietor’s the out of the death was shot to her to death and store. Davis stabbed robbery and the of armed Yates was convicted proprietor. to death. mother and sentenced proprietor’s murder to key required was a element aforethought Intent or malice murder. convict Yates of the State order to proved by be presumed malice is instructed “that jury a Yates’ defense deadly weapon.” primary of from the use and he in the when the victim entered was not store was that anyone. did not intend murder that which 1979, Supreme Court held an instruction In mandating as as a matter could understand juror a reasonable a from he defendant’s criminal intent presume of law that violates the Fourteenth set of circumstances given improperly in that such an instruction shifts Amendment the State to the defendant. Such of from proof burden held, instruction, requires jury Court defendant’s intent from his actions and draw conclusions as to its of and the of proving, relieves the State of its burden beyond a reasonable doubt. burden of intent finding, Montana, Sandstrom v. 510, 2450, 99 S. Ct. 61 (2d) (1979). L. Ed. 39 judge this court held that it was error for trial 1983,
In in a mandatorily presumed instruct case that malice is Elmore, 279 State v. deadly of a S.C. weapon. from the use Elmore, (1983). 417, Prior to our decision 308 781 v. appeal [State we had affirmed Yates’ conviction on direct Yates, (1982)] 29, summarily 310 S.E. 805 petition for a writ of certiorari. denied 1985, United States Court reversed In v. Francis and death sentence penalty conviction murder Franklin, L. Ed. 105 S. Ct. only defense is that (1985), holding that where accused’s he required kill, did not have intent to an instruction is presumed deadly intent is from the use of a error weapon and cannot be considered harmless.
Shortly thereafter, the United States Supreme Court granted petition for a writ of certiorari, vacated our judgment and remanded the case to this court reconsideration in the light its in Francis v. decision See, Aiken, Franklin. Yates v. U.S.
L. Ed. On remand, this court held that the jury at instruction issue suffered Elmore, the same infirmities present in State v. supra, We, and Francis v. however, Franklin. declined apply the State Elmore standard retroactively. Yates 349 S.E. The retroactive application of Francis v. Franklin and the application Sandstrom v. Montana was not court, addressed. This therefore, denied the petition for a writ of corpus.
In January of this year, the United
Supreme Court,
States
in a unanimous opinion, again considered
Mr. Yates’
*7
for habeas
in
corpus
Aiken,
relief Yates v.
211,
(1988).
S. Ct.
98 L. Ed.
The Court described its
first remand to this
as one “predicated entirely
.court
on the
petitioner’s
fact that
challenge
the jury
to
instruction
asserted a substantial federal question.” 108S. Ct. at 536.The
Court then admonished this court for not complying with its
mandate: “The
of
portion
the state court’s opinion concluding
petitioner’s
that the instruction in
case was infirm ‘for the
responsive
reasons addressed in Francis’ was
to our
mandate, but the
question
discussion
the
whether the
decision in
applied
Elmore should be
retroactively was not.”
Without this court’s corpus my it is petition, denial belief that we compelled grant petitioner now are to a new trial since we previously petitioner’s concluded that the instruction in case was constitutionally infirm under Francis v. Franklin. Since on its claim the constitutional already considered
we have Francis, we to violative of be merits, charge and found the law as requires” that federal to the relief duty grant have “a S. Ct. at Court. 108 Supreme the United States by instructed to our their directive Court underscored 538. The Supreme not proceedings “for further by remanding Yates court 108S. Ct. at 538. opinion.” this inconsistent with Court does Supreme the United States This mandate from which analysis harmless error my view, in allow the not, deny corpus petition. to the habeas majority employs now in engage desired this court Court Supreme Had Court would have so I believe the analysis, harmless error Indeed, this court opinion. their most recent indicated in Aiken, 290 349 S.E. v. in Yates recognized footnote, principles in that a violation of (1986), to a harmless subject v. Franklin was enumerated Francis so, to do analysis. court, despite the opportunity error This the Franklin issue as harmless. analyze not to chose harmless error refused consider the Court also Supreme this court’s reference to Rose seizing not on analysis (1986) Clark, 3101,92 Ed. 349 S.E. Yates v. failing this court’s decision for Instead, the Court reversed the issue in mandate, is, analyze their with comply The directive from the v. Franklin. light of Francis “grant requires” the relief federal law to this court to Court for habeas relief. that we grant mandates that the United States assuming arguendo Even analyzing not this court from preclude Court’s mandate did Clark, then, my we opinion, under Rose Mr. claim *8 Mr. Yates a new trial because the are still afford obliged mandatory presumption charge erroneous which created a reasonable doubt. beyond was not harmless charge defense to the murder primary Yates’ Importantly, he had withdrawn from the on the contention that rested he left the store before Mrs. Wood enterprise criminal when Mrs. Because he entered, prior stabbing to Davis’ of Wood. withdrawn, Yates contended that Davis’ malicious intent had one, “the of of imputed could not be him under hand hand the Although charged jury concerning all” the judge doctrine. of from an he also enterprise, elements withdrawal the erroneously charged that “maliceis implied presumed from the of a deadly weapon.” use The erroneous which charge intent from possession the of a deadly weapon countered the charge concerning withdrawal. Given an presumed instruction that malice is from the use of a deadly weapon light the fact that both Yates and Davis had deadly weapons, jury could easily have on the focused deadly weapon carried, Yates a gun, instead of the weapon by Davis, used a knife. Merely possessing gun, especially one which the jury knew Yates used Wood, to shoot Mr. have would been sufficient for the jury conclude,by virtue instruction, erroneous that had requisite Yates intent to murder. Despite majority’s contention one must look at the intent of killer, not that of the judge failed to accomplice, articulate that the must jury find the killer acted with malicious intent. Thus, jury mistakenly could have inferred from the confusing instructions that the required intent to prove order murder was that of Yates because he carried a gun. unconstitutional instruction which allowed the I presume intent, believe, would have eclipsed Yates’ defense
of withdrawal, and prejudiced right to a fair trial. Therefore, the erroneous instruction to was not beyond harmless reasonable doubt.
I would, therefore, grant for habeas vacate conviction, subject to the of the State of right South Carolina to retry Yates within a reasonable period time. Any other on our part decision further a simply delays retrial, which I believe the United States Court has mandated.
Finney, J., concurs.