Petition for Writ of Certiorari — Michael Vernon Beaty, Jr., Petitioner v. South Carolina
Supreme Court briefAug 29, 2018
Ask Donna
What actually matters in this document.
Text
No. 18In the
Supreme Court of the United States
MICHAEL VERNON BEATY,
Petitioner,
v.
STATE OF SOUTH CAROLINA,
Respondent.
On Petition for a Writ of Certiorari to
the South Carolina Supreme Court
PETITION FOR A WRIT OF CERTIORARI
E. Charles Grose, Jr.
Counsel of Record
The Grose Law Firm, LLC
404 Main Street
Greenwood, SC 29646
(864) 538-4466
charles@groselawfirm.com
C. Rauch Wise, Esq.
305 Main Street
Greenwood, SC 29646
(864) 229-5010
Attorneys for Petitioner
283072
A
(800) 274-3321 • (800) 359-6859
i
QUESTIONS PRESENTED
I.
Does the South Carolina Supreme Court’s standard
for determining harmless constitutional error depart
from this Court’s mandates in Chapman v. California,
386 U.S. 18 (1967)?
II.
Does Due Process confer a right for an accused to have
a full and fair opportunity to respond to the prosecution’s
best closing argument, meaning the State must open in full
on the facts and the law and restrict its reply argument
to matters raised by the defense in closing?
ii
LIST OF PARTIES AND
CORPORATE DISCLOSURE
Michael Beaty is a natural person. The respondent is
the State of South Carolina. No corporations are involved
in this petition.
iii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i
LIST OF PARTIES AND
CORPORATE DISCLOSURE . . . . . . . . . . . . . . . . . . ii
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . iii
TABLE APPENDICES . . . . . . . . . . . . . . . . . . . . . . . . . . v
TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . vi
OPINION BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 2
WHY THE PETITION SHOULD BE GRANTED . . . 5
I.
The South Carolina Supreme Court’s
standa rd for deter mining ha r mless
constitutional error departs from this
Court’s mandates in Chapman v. California,
386 U.S. 18 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . 5
iv
table of Contents
Page
II. Due Process confers a right for an accused
to have a full and fair opportunity to
respond to the prosecution’s best closing
a rg ument , meaning the Stat e must
open in full on the facts and the law and
restrict its reply argument to matters
raised by the defense in closing. . . . . . . . . . . . . 20
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
v
TABLE OF APPENDICES
Page
A ppendix A — State v. Beaty, S.C.
Supreme Court Op. No. 27693, Filed
December 29, 2016 . . . . . . . . . . . . . . . . . . . . . . . . . 1a
Appendix b — PETITION FOR REHEARING,
FILED JANUARY 10, 2017 . . . . . . . . . . . . . . . . . . . 13a
A ppendi x C — Order Granting
P etition for R ehearing ,
Filed March 24, 2017 . . . . . . . . . . . . . . . . . . . . . 32a
A ppendi x D — A mended Order
R ehearing ,
G ranting
Filed March 28, 2017 . . . . . . . . . . . . . . . . . . . . . 34a
AppendixE— state v. beaty, S.C. SUPREME
COURT OP. NO. 27693, FILED APRIL 24,
2018 AND FILED WITH TRIAL COURT
ON MAY 31, 2018 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36a
APPENDIX F — PETITION FOR REHEARING,
FILED MAY 11, 2018 . . . . . . . . . . . . . . . . . . . . . . . . 62a
A P P E N DI X G — O R D E R D E N Y I N G
PETITION FOR REHEA RING,
FILED MARCH 25, 2018 . . . . . . . . . . . . . . . . . . . . . 84a
A PPENDIX H — REMITTITUR, FILED
IN TRIAL COURT MAY 31, 2018 . . . . . . . . . . . . . 86a
vi
TABLE OF CITED AUTHORITIES
Page
Cases
Alekesy, State v. Needs,
333 S.C. 134, 508 S.E.2d 857 (1998) . . . . . . . . . . . . . 10
Bailey v. State,
440 A.2d 997 (Del. 1982) . . . . . . . . . . . . . . . . . . . . . . . 26
Bauberger v. Haynes,
632 F.3d 100 (4th Cir. 2011) . . . . . . . . . . . . . . . . . . . . 13
Bentley v. Scully,
41 F.3d 818 (2d Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . 13
Bochette v. Bochette,
300 S.C. 109, 386 S.E.2d 475 (Ct. App. 1989) . . . . . . 25
Bonner v. Holt,
26 F.3d 1081 (11th Cir. 1994) . . . . . . . . . . . . . . . . . . . 13
Brecht v. Abrahamson,
507 U.S. 619 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Bryant v. State,
288 Ga. 876, 708 S.E.2d 362 (2011) . . . . . . . . . . . . . . 15
Bustamante v. Eyman,
456 F.2d 269 (9th Cir. 1972) . . . . . . . . . . . . . . . . . . . . 13
Cage v. Louisiana,
498 U.S. 39 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
vii
Cited Authorities
Page
Carrell v. United States,
165 A.3d 314 (D.C. 2017) . . . . . . . . . . . . . . . . . . . . . . . 14
Chapman v. California,
386 U.S. 18, 87 S. Ct. 824,
17 L. Ed. 2d 705 (1967) . . . . . . . . . . . . . . . . . . . . passim
Com. v. Harkins,
459 Pa. 196, 328 A.2d 156 (1974) . . . . . . . . . . . . . . . . 19
Commonwealth v. Morales,
76 Mass. App. Ct. 663, 925 N.E.2d 551 (2010) . . . . . 15
Degadillo v. State,
262 S.W.3d 371 (Tex. Ct. App. 2008) . . . . . . . . . . . . . 24
Dorsey v. State,
276 Md. 638, 350 A.2d 665 (1976) . . . . . . . . . . . . . . . 19
Eberhardt v. Bordenkircher,
605 F.2d 275 (6th Cir. 1979) . . . . . . . . . . . . . . . . . . . . 14
Hagos v. People,
2012 CO 63, 288 P.3d 116 (2012) . . . . . . . . . . . . . . . . 15
In Re Winship,
397 U.S. 358 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . 6, 12
Koenig v. State,
933 N.E.2d 1271 (Ind. 2010) . . . . . . . . . . . . . . . . . . . . 15
viii
Cited Authorities
Page
Love v. State,
457 P.2d 622 (Alaska 1969) . . . . . . . . . . . . . . . . . . . . . 19
Luginbyhl v. Commonwealth,
48 Va. App. 58, 628 S.E.2d 74 (2006) . . . . . . . . . . . . 16
People v. Lewis,
139 Cal. App. 4th 874, 44 Cal. Rptr. 3d 403 (2006) . 16
People v. Mehmedi,
118 A.D.2d 806, 500 N.Y.S.2d 304 (1986), aff’d,
69 N.Y.2d 759, 505 N.E.2d 610 (1987) . . . . . . . . . . . . 18
People v. Rodgers,
756 P.2d 980 (Colo. 1988), overruled on other
grounds by People v. Miller, 113 P.3d 743
(Colo. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
People v. Simms,
121 Ill. 2d 259, 520 N.E.2d 308 (1988) . . . . . . . . . . . . 17
People v. Stanaway,
446 Mich. 643, 521 N.W.2d 557 (1994) . . . . . . . . . . . . 17
Sparkman v. State,
91 Ark. App. 138, 208 S.W.3d 822 (2005) . . . . . . . . . 16
St. Clair v. Com.,
451 S.W.3d 597 (Ky. 2014) . . . . . . . . . . . . . . . . . . . . . . 14
ix
Cited Authorities
Page
State v. Aleksey,
343 S.C. 20, 538 S.E.2d 248 (2000) . . . . . . . . . . 5, 6, 10
State v. Atterberry,
129 S.C. 464, 124 S.C. 648 (1924) . . . . . . . . . . . . . 21, 22
State v. Beaty,
423 S.C. 26, 813 S.E.2d 502 (2018) . . . . . . . . . . passim
State v. Bible,
175 Ariz. 549, 858 P.2d 1152 (1993) . . . . . . . . . . . . . . 17
State v. Caldwell,
94 Wash. 2d 614, 618 P.2d 508 (1980) . . . . . . . . . . . . 19
State v. Charlie,
357 Mont. 355, 239 P.3d 934 (2010) . . . . . . . . . . . . . . 15
State v. Coggins,
210 S.C. 242, 42 S.E.2d 240 (1947) . . . . . . . . . . . . . . 12
State v. Daniels,
401 S.C. 251, 737 S.E.2d 473 (2012) . . . . . . . . . . . . . . 10
State v. DiGuilio,
491 So. 2d 1129 (Fla. 1986) . . . . . . . . . . . . . . . . . . . . . 18
State v. Hale,
277 Wis. 2d 593, 691 N.W.2d 637 (2005) . . . . . . . . . . 16
x
Cited Authorities
Page
State v. Ingalls,
544 A.2d 1272 (Me. 1988) . . . . . . . . . . . . . . . . . . . . . . 18
State v. Lee,
255 S.C. 309, 178 S.E.2d 652 (1971) . . . . . . . . . . . . . . 22
State v. LePage,
102 Idaho 387, 630 P.2d 674 (1981) . . . . . . . . . . . . . . . 18
State v. Manning,
305 S.C. 413, 409 S.E.2d 372 (1991) . . . . . . . . . . . . . . 10
State v. Morris,
141 Ohio St. 3d 399, 24 N.E.3d 1153 (2014) . . . . . . . 14
State v. Mundon,
121 Haw. 339, 219 P.3d 1126 (2009) . . . . . . . . . . . . . . 16
State v. Patterson,
112 So. 3d 806 (La. 2103) . . . . . . . . . . . . . . . . . . . . . . 14
State v. Peterson,
663 N.W.2d 417, 431 (Iowa 2003) . . . . . . . . . . . . . . . . 17
State v. Raffaldt,
318 S.C. 110, 456 S.E.2d 390 (1995) . . . . . . . . . . . . . . 10
State v. Santos,
318 Conn. 412, 121 A.3d 697 (2015) . . . . . . . . . . . . . . 14
xi
Cited Authorities
Page
State v. Scutchings,
2009 ND 8, 759 N.W.2d 729 (2009) . . . . . . . . . . . . . . 16
State v. Tibbetts,
299 A.2d 883 (Me. 1973) . . . . . . . . . . . . . . . . . . . . . . . 18
State v. Ward,
292 Kan. 541, 256 P.3d 801 (2011) . . . . . . . . . . . . . . . 15
Sullivan v. Louisiana,
508 U.S. 275 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
United States v. Haidley,
400 F.3d 642 (8th Cir. 2005) . . . . . . . . . . . . . . . . . . . . 13
United States v. Maloney,
755 F.3d 1044 (9th Cir. 2014) . . . . . . . . . . . . . . . . . . . 24
United States v. Mendoza-Mesa,
421 F.3d 671 (8th Cir. 2005) . . . . . . . . . . . . . . . . . . . . 13
United States v. Serawop,
410 F.3d 656 (10th Cir. 2005) . . . . . . . . . . . . . . . . . . . 13
United States v. Shue,
766 F.2d 1122 (7th Cir. 1985), holding modified
by United States v. Coleman, 22 F.3d 126
(7th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
xii
Cited Authorities
Page
United States v. Vazquez-Rivera,
407 F.3d 476 (1st Cir. 2005) . . . . . . . . . . . . . . . . . . . . 13
Van Arsdall v. State,
524 A.2d 3 (Del. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . 18
Vigil v. State,
2004 WY 110, 98 P.3d 172 (Wyo. 2004) . . . . . . . . . . . 17
Whitehead v. State,
777 So. 2d 781 (Ala. Crim. App. 1999), affirmed
sub nom. Ex parte Whitehead, 777 So. 2d 854
(Ala. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Statutes and Other Authorities
Fifth Amendment to the United States
Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Fourteenth Amendment to the United States
Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 6
75A AM. Jur. 2d Trial § 448 (2010) . . . . . . . . . . . . . . . . . 25
Ark. Code Ann. 16-89-123 . . . . . . . . . . . . . . . . . . . . . . . . 24
Fed. Rule Cr. Proc. 29.1 . . . . . . . . . . . . . . . . . . . . . . . 24, 25
Ga. Code Ann. § 17-8-71 . . . . . . . . . . . . . . . . . . . . . . . . . . 24
xiii
Cited Authorities
Page
In Re Amendments to the Florida Rules of
Criminal Procedure-Final Arguments,
957 So.2d 1164 (Fla. 2007) . . . . . . . . . . . . . . . . . . 24, 25
Jacob Stein, Closing Arguments 2d, § 1:6 (2010) . . . . . 25
Nev. Rev. Stat. Ann 175.141 . . . . . . . . . . . . . . . . . . . . . . . 24
Rule 43(j) of the South Carolina Rules of
Civil Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
S.C. Const. Art. V, § 21 . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Tenn. Rules of Crim. Proc. Rule 29.1 . . . . . . . . . . . . . . . 24
1
Michael Beaty respectfully petitions this Court for
a writ of certiorari to review the judgment of the South
Carolina Supreme Court.
OPINION BELOW
The South Carolina Supreme Court opinion affirming
Michael Beaty’s conviction and sentence is published,
State v. Beaty, 423 S.C. 26, 813 S.E.2d 502 (2018), and
reprinted in the Appendix (hereinafter “App.”) at 36a-61a.
The South Carolina Supreme Court’s order denying the
petition for rehearing is unreported and reprinted at App.
84a-85a.1
JURISDICTION
The South Carolina Supreme Court affirmed Michael
Beaty’s conviction and sentence on April 25, 2018, App.
36a-61a, and denied the timely petition for rehearing on
May 25, 2018, App. 84a-85a. The final order and Remittitur
were filed in the trial court on May 31, 2018. App. 36a-61a;
86a.
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
T he Fi f th A mendment to the Unit ed Stat es
Constitution, applicable to the State through the
Fourteenth Amendment, provides, “No person shall be
. . . deprived of life, liberty, or property, without due
process of law.”
1. The complete South Carolina Supreme Court record in this
case can be found at https://ctrack.sccourts.org/public/caseView.
do?csIID=59167 (last viewed August 26, 2018).
2
The Fourteenth Amendment to the United States
Constitution provides, “[N]or shall any State deprive any
person of life, liberty, or property, without due process
of law.”
STATEMENT OF THE CASE
The South Carolina Supreme Court summarized the
facts and hotly contested issues presented by the parties
to the jurors who sat in judgment of Michael Beaty:
[Michael Beaty] and [Emily Anna (“EA”)
Asbill] attended an evening party in their
hometown of Clinton. They decided to leave
the party between 9:00 pm and 10:00 pm and
agreed to give their friend Will Alexander a
ride home. [Beaty] drove the vehicle, [Asbill]
sat in the front passenger seat, and Alexander
sat in the backseat. At approximately 11:00
pm, [Beaty] rang the doorbell at his parents’
home and asked his stepfather for help. When
Appellant’s stepfather approached the car,
he found [Asbill] unconscious on the front
passenger side floorboard and called 911. EMS
arrived shortly thereafter and found [Asbill]
sitting on the floorboard with her head laid back
on the passenger seat. She was not breathing
and did not have a pulse. [Beaty’s] shirt was
wrapped around [Asbill’s] right arm. [Asbill]
was found to have severe “road rash” on her
right and left arms and bruising to her neck.
EMS transported [Asbill] to the hospital, where
she was pronounced dead. An autopsy revealed
the cause of [Asbill’s] death was asphyxia due
to strangulation.
3
At trial, the State introduced several of
[Beaty’s] statements to law enforcement into
evidence. These statements varied materially.
[Beaty] initially suggested [Asbill] died of a
self-inflicted cutting injury. Following law
enforcement’s receipt of the autopsy results,
[Beaty] voluntarily returned to the police
station and repeated his earlier version of
events. However, in this statement, [Beaty]
stated he had to undo [Asbill’s] seatbelt when he
realized she was unconscious after arriving at
his parents’ home. When [Beaty] was informed
of the autopsy results, which showed [Asbill]
had been strangled and had “road rash,”
[Beaty] gave a written statement explaining
he and [Asbill] had argued during the car ride,
[Asbill] had opened the car door to jump out,
and he had grabbed her shirt to pull her back
into the car.
At trial, the State and [Beaty] presented expert
witnesses to support their theories as to the
events leading up to [Asbill’s] death. The State’s
theory was that [Beaty] strangled [Asbill] with
a USB cord after a fight during which she tried
to jump out of the moving car. [Beaty’s] theory
was that when [Asbill] tried to jump out of the
moving car, he held her in by her tank top,
which caused the ligature marks on her neck
and rendered her unconscious, and that once
he pulled her back into the car, she succumbed
to positional asphyxiation due to the awkward
position she assumed on the floorboard.
4
The pathologist who conducted the autopsy was
called by the State and testified the ligature
marks on [Asbill’s] neck were visible on the front
and sides of her neck but not on the back of her
neck. The pathologist identified a USB cord
found in the car as consistent with the ligature
marks and the abrasion on [Asbill’s] neck. DNA
analysis of the USB cord showed [Asbill] DNA
on the middle of the cord. The cord’s ends had a
mixture of at least two individuals’ DNA, with
[Asbill] being the major contributor and [Beaty]
being the minor contributor.
A forensic pathologist also testified for [Beaty]
and stated the USB cord did not cause the
injuries to [Asbill’s] neck and opined positional
asphyxiation played a role in [Asbill’s] death. A
mechanical engineer testified for [Beaty] and
stated the ligature marks on [Asbill’s] neck
could have been caused by someone holding her
up by her tank top as she hung out of the car
and that both [Asbill’s] abrasions and her blood
found on the outside of the car were consistent
with this scenario.
[Beaty] was convicted of murder and received
a life sentence.
Beaty, 423 S.C. at 29-31, 813 S.E.2d at 504.
5
WHY THE PETITION SHOULD BE GRANTED
I.
The South Carolina Supreme Court’s standard for
determining harmless constitutional error departs
from this Court’s mandates in Chapman v. California,
386 U.S. 18 (1967).
After swearing the jurors, the trial judge instructed:
This is a real trial, which is a fundamental part
of our democracy, and it is a search for the
truth in an effort to make sure that justice is
done. In searching for the truth and ensuring
that justice is done is often slow, deliberative,
repetitive.
Record on Appeal (hereinafter “R.”) at 57. The trial
judge also instructed that the attorneys for the parties
“are officers of this court who are sworn to uphold the
integrity of the fairness of our judicial system and to
help you as jurors in your search for the truth.” R. at
58. The trial judge further instructed, “[Y]our purpose
is to determine the facts of this case” and explained the
components of a jury trial. R. at 59. The trial judge then
instructed, “[I]n determining what the true facts are in
this case, you must decide what testimony of a witness
is believable.” R. at 63. The opening charge did not
explain circumstantial evidence or reasonable doubt. At
the conclusion of the opening instruction, the trial judge
offered the parties an opportunity to object, and Mr.
Beaty requested a sidebar and objected, citing State v.
Aleksey, 343 S.C. 20, 26-27, 538 S.E.2d 248, 251 (2000)
6
(“Jury instructions on reasonable doubt which charge the
jury to ‘seek the truth’ are disfavored because they ‘[run]
the risk of unconstitutionally shifting the burden of proof
to a defendant.’”). R. at 64, 84-86. See Cage v. Louisiana,
498 U.S. 39 (1990) (held that the jury instruction in that
case was contrary to the “beyond a reasonable doubt”
requirement articulated in In Re Winship, 397 U.S. 358
(1970) (holding that the accused is protected against
conviction under the Fourteenth Amendment except upon
proof beyond a reasonable doubt of every fact necessary
to constitute the crime with which he is charged)). Mr.
Beaty further explained, “[T]he objection that we made
at the bench had to do with Your Honor discussing search
for the truth” and telling the juror to find the “true facts”
and reach a “just verdict.” The trial judge acknowledged
the instruction as “search for the truth and ensure
justice.” Counsel argued, “[A] reasonable juror would
take [those remarks] as a jury instruction” explaining
the jury’s mission as “seeking the truth.” Counsel pointed
out Aleksey disfavors such an instruction and argued
prejudice occurred when the Solicitor, during the State’s
opening statement, informed the jurors there would be
“two competing theories and the jurors had to decide
which one to believe. Basically that they had to pick which
one was the most probable, the most believable, or in other
words, which was the truth in the case.” R. 77-78. Counsel
noted, “[W]e feel at this point the jurors are under the
impression that they have a duty to seek the truth, to find
what the true facts are, . . .” R. at 86. But that is not the
law in South Carolina.
Counsel noted, the trial judge’s “ very strong
instruction that [the jurors] have to accept the law as” the
trial judge instructs it, meaning the jurors “will be sitting
7
there through all this [trial] testimony believing they have
to seek the truth.” R. at 86. Although acknowledging the
instruction is “disfavored,” the Solicitor argued, “[I]t’s
not particularly characterized as reversible error either.”
The State contended the “disfavored” instruction “does
comport with what our justice system is about, which is
finding – finding a verdict which speaks the truth.” R. at
86. The trial judge overruled the objection and denied Mr.
Beaty’s request for a curative instruction. R. at 87.
After four days of trial where the jurors heard
competing theories, the Solicitor began his closing
argument by placing a photograph of Ms. Asbill on the
large screen and reminding the jurors, “This is the girl
that was born in this county, grew up here, lived her life
here over in Clinton here in Laurens County.” R. at 761.
The prosecution continued to define the trial just as it
had done during opening statements–that the jurors
had to choose between two competing hypotheses. After
attacking the defense as “ridiculous theories,” R. at 798,
the Solicitor argued:
The defense of accidental strangulation, the
defense of positional asphyxiation, defies
commonsense, and what they ask you to do is
check you commonsense at the door and come
back with a not guilty verdict. But there is a
reasonable explanation for [what] happened.
There is a very reasonable explanation for why
this smiling girl, EA Asbill, became this, lying
in a bed, not breathing, gone from this world.
R. at 799-800. The Solicitor then argued, “One of these
theories is reasonable and it passes the common sense
8
test. One of these reasons – theories is not.” R. at 803.
The Solicitor also embraced the “disfavored” instruction
when he argued:
And when you’re able to do that and really filter
everything through that filter of commonsense
there’s going to be one verdict that speaks the
truth.
Now, that’s what verdict means, folks. It’s two
Latin words, verus dictum [sic], that literally
the word means. To speak the truth – or to
speak truth. And we’re confident that you’re
[sic] verdict will speak the truth at the end
of this case, that Michael Beaty is guilty of
murder.
R. at 752. The Solicitor called for the jurors “to go back in
that jury room, reason together as a group, and come out
and speak the consciousness – you’re the consciousness
of the community as the jury, and speak the truth. R. at
783. The Solicitor implored the jurors to seek the truth
that would bring justice for Ms. Asbill’s family by finding
Michael Beaty guilty of murder:
This family was going to be celebrating her
21st birthday this coming Tuesday, February
3rd. But instead of now celebrating with her
we go into a cemetery to remember her. Never
again to go and have – Amanda, her sister, to be
setting up a get-together for her 21st birthday
with the girls. Her dad, Ashley, should be able
to give her a hug on that day. Her momma
should be able to take her to lunch and have
a good time. Take her shopping. Instead of
9
those things on Tuesday they’ll be going to the
graveyard with a tombstone. Malice, hatred,
ill-will. You’ll have an opportunity when you
go back to that jury room to deliberate, speak
as one mind because of the evidence you have
using your good common sense and speak with
one voice to Michael Beaty. Time’s up on him.
R. at 804.
After closing arguments, Mr. Beaty reminded the
trial judge about his “objection to the opening charge” and
pointed out the prosecution “actually incorporated that
language and used it in their argument.” Counsel argued
the Solicitor incorporating that language into the closing
arguments “adds to the prejudice that resulted from that
opening instruction.” R. at 828. Mr. Beaty moved for a
new trial because “[t]he Court erred by instructing the
jurors to search for the truth and find the ‘true facts.’” His
written motion reminded the trial judge, “In his closing
argument, the Solicitor parroted this language and asked
the jurors to render a verdict that speaks the truth.” New
Trial Motion, R. 973-80.
The South Carolina Supreme Court issued its first
opinion in this case on December 29, 2016. App. at 1a-12a.
On January 9, 2017, Mr. Beaty petitioned for rehearing.
App. 13a-31a. By order dated March 24, 2017, amended
on March 28, 2017, the lower court granted Mr. Beaty’s
petition and convened an oral argument on June 15, 2017.
App. at 31a-35a. On April 25, 2018, the South Carolina
Supreme Court reissued its opinion. Although making
stylistic changes to the section captioned “Trial Judge’s
Opening Remarks,” the substance of the opinion remained
the same. App. at 41a-44a.
10
In both opinions, the South Carolina Supreme Court
agreed that the trial judge, by “use of terms ‘search
for the truth,’ ‘true facts,’ and ‘just verdict,’” ignored
its own precedent in State v. Daniels, 401 S.C. 251, 256,
737 S.E.2d 473, 475 (2012) (instructing discontinuance of
charge that jury’s duty is to return a verdict that is just
and fair to all parties), Alekesy, State v. Needs, 333 S.C.
134, 151-52, 508 S.E.2d 857, 866 (1998), State v. Raffaldt,
318 S.C. 110, 115-16, 456 S.E.2d 390, 393 (1995), and State
v. Manning, 305 S.C. 413, 415-17, 409 S.E.2d 372, 374-75
(1991) (prohibited trial judges from telling jurors “to
seek some reasonable explanation of the circumstances
proven other than the guilt of the Defendant” because
“[r]ather than conveying to the jury the principle that
the State must affirmatively establish appellant’s guilt by
probative evidence beyond a reasonable doubt, this charge
could mislead a reasonable juror to focus exclusively on
appellant’s explanation of the evidence to determine the
existence of reasonable doubt.”). The court below found a
constitutional violation and reaffirmed its prior precedent
holding, “These phrases could be understood to place an
obligation on the jury, independent of the burden of proof,
to determine the circumstances surrounding the alleged
crime and from those facts alone render the verdict the
jury believes best serves its perception of justice.” Beaty,
423 S.C. at 34, 813 S.E.2d at 506. After admonishing trial
courts to avoid using these terms, the South Carolina
Supreme Court concluded:
Although there was error here, our review of
the entirety of the judge’s opening comments
and the entire trial record convinces us that
Appellant has not shown prejudice from this
error sufficient to warrant reversal. Compare
State v. Coggins, 210 S.C. 242, 245, 42 S.E.2d
11
240, 241 (1947) (providing trial judge’s choice
of words and comments, while not “happy,” did
not require reversal).
Id. (emphasis added). The court below, therefore, found Mr.
Beaty was prejudiced by the trial judge’s unconstitutional
comments but never explain why that prejudice was not
sufficient to warrant a new trial, even after Mr. Beaty’s
initial petition for rehearing pointed out this error. App.
16a.
The South Carolina Supreme Court overlooked the
Solicitor exploiting the trial judge’s remarks in his closing
argument, R. at 752, even after Mr. Beaty’s petition for
rehearing pointed out this error. App. 16a. The court
below continued to acknowledge the “State had informed
the jury that it would have to pick between two competing
theories.” Id., 423 S.C. at 33, 813 S.E.2d at 506. Indeed, the
parties did present the jurors with two competing theories,
neither of which absolved Mr. Beaty of Emily Anna Asbill’s
death. Relying entirely on circumstantial evidence, the
prosecution argued that Mr. Beaty intentionally strangled
his girlfriend with a USB cord. Relying on his statement
to investigators, expert testimony, and circumstantial
evidence, Mr. Beaty established his girlfriend tried to
jump out of a moving car and he failed to safely secure
her inside the car, resulting in her death by positional
asphyxiation. 2 The jurors’ role never was to determine
which competing theory best explained the circumstances
of the crime or to render a verdict they believed best
served their perception of justice. Rather, the jurors’ role
2. The trial judge declined to charge the jurors involuntary
manslaughter.
12
was to determine whether the State met its burden of
proving Mr. Beaty guilty of murder beyond a reasonable
doubt. See Winship, supra.
This South Carolina Supreme Court did not apply the
proper standard of review for a harmless constitutional
violation when it held Mr. Beaty “has not shown prejudice
from this error sufficient to warrant reversal.” Beaty,
423 S.C. at 34, 813 S.E.2d at 506 (emphasis added). The
lower court, therefore, required Mr. Beaty to not only
show prejudice but also placed the burden on him to show
prejudice sufficient to warrant reversal, even after Mr.
Beaty’s initial petition for rehearing pointed out this error.
App. 16a. As set forth in Mr. Beaty’s initial petition for
rehearing, under the proper standard of review, “before
a federal constitutional error can be held harmless, the
court must be able to declare a belief that it was harmless
beyond a reasonable doubt.” Chapman v. California,
386 U.S. 18, 24 (1967). The burden, therefore, was on the
court below to explain why the error is harmless beyond
a reasonable doubt and not on Mr. Beaty to explain why
a prejudicial, constitutional error is sufficient to warrant
reversal.
The South Carolina Supreme Court’s reliance on
Coggins was misplaced for two reasons. First, it was
decided two decades before this Court decided Chapman
and, therefore, does not represent the appropriate standard
of review for determining a harmless constitutional
violation. Second, the trial court’s “[un]happy choice of
words” in Coggins “did not constitute [an] objectionable
expression of the opinion of the judge,” id. 210 S.C. at 245,
42 S.E.2d at 241, in violation of the state constitutional
requirement that trial “[j]udges shall not charge juries
in respect to matters of fact.” S.C. Const. Art. V, § 21.
13
The South Carolina Supreme Court’s failure to
follow Chapman is inconsistent with the Circuit Courts
of Appeals. See, e.g., Bauberger v. Haynes, 632 F.3d 100,
104 (4th Cir. 2011) (“On direct review, the government
has the burden of proving that a constitutional error was
‘harmless beyond a reasonable doubt.’” (citing Chapman,
at 24)); United States v. Vazquez-Rivera, 407 F.3d 476,
489 (1st Cir. 2005) (“Because the defendant was ‘denied
a federal constitutional right,’ Chapman 386 U.S. at 20,
87 S.Ct. 824, the government has the burden of proving
beyond a reasonable doubt that the error did not affect
the defendant’s substantial rights.”); United States v.
Mendoza-Mesa, 421 F.3d 671, 672 (8th Cir. 2005) (“If the
error is of constitutional magnitude, then the government
is required to prove the error was harmless beyond a
reasonable doubt.’); United States v. Haidley, 400 F.3d
642, 645 (8th Cir. 2005) (“If the error is of constitutional
magnitude, then the government is required to prove the
error was harmless beyond a reasonable doubt.”); Bentley
v. Scully, 41 F.3d 818, 824 (2d Cir. 1994) (“In conducting
a direct review, Chapman dictates that the State bears
the burden of proving harmless error beyond a reasonable
doubt.’”); Bustamante v. Eyman, 456 F.2d 269, 271 (9th
Cir. 1972) (“However, the burden of proving harmless error
is a heavy one. The state must ‘prove beyond a reasonable
doubt that the error complained of did not contribute to
the verdict obtained.’” (citing Chapman, at 24)); United
States v. Serawop, 410 F.3d 656, 669 (10th Cir. 2005)
(“The harmless error test is “whether it appears ‘beyond
a reasonable doubt that the error complained of did not
contribute to the verdict obtained.’” Id. at 15, 119 S.Ct.
1827 (quoting Chapman v. California, 386 U.S. 18, 24, 87
S.Ct. 824, 17 L.Ed.2d 705 (1967)); Bonner v. Holt, 26 F.3d
1081, 1082 (11th Cir. 1994) (finding error in Magistrate
Court Judge’s application of Chapman harmless error
14
standard); and United States v. Shue, 766 F.2d 1122, 1132
(7th Cir. 1985) (“The burden of proving a constitutional
error harmless rests upon the government.”), holding
modified by United States v. Coleman, 22 F.3d 126 (7th
Cir. 1994); and Eberhardt v. Bordenkircher, 605 F.2d 275,
280 (6th Cir. 1979) (“We are unable to conclude that the
State has carried its heavy burden of proving that the
error in this case was harmless.”).
The South Carolina Supreme Court’s failure to follow
Chapman is inconsistent with every state in the union
and the District of Columbia. See, e.g. Carrell v. United
States, 165 A.3d 314, 328 (D.C. 2017) (“Under Chapman,
an error is considered harmless if the government can
‘show beyond a reasonable doubt that the error complained
of did not contribute to the verdict obtained.’” (citing
Sullivan v. Louisiana, 508 U.S. 275, 279 (1993); State v.
Santos, 318 Conn. 412, 425, 121 A.3d 697, 704 (2015) (“If
the claim is of constitutional magnitude, the state has the
burden of proving the constitutional error was harmless
beyond a reasonable doubt.”); St. Clair v. Com., 451 S.W.3d
597, 633 (Ky. 2014) (Finding harmless error “requires
‘prov[ing] beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained,’”
(citing Chapman, at 24) “[a]nd ‘[t]he State bears the
burden of proving that an error passes muster under this
standard.”” (citing Brecht v. Abrahamson, 507 U.S. 619,
630 (1993)); State v. Morris, 141 Ohio St. 3d 399, 406, 24
N.E.3d 1153, 1160 (2014) (following Chapman, “an
appellate court must declare a belief that the error was
not harmless beyond a reasonable doubt”); State v.
Patterson, 112 So. 3d 806, 810 (La. 2103) (“under
Chapman, it is clear that the burden of proving harmless
error rests squarely on the shoulders of the party
15
benefitting from the error.”); Hagos v. People, 2012 CO
63, ¶ 11, 288 P.3d 116, 119 (2012) (“These errors require
reversal unless the reviewing court is ‘able to declare a
belief that [the error] was harmless beyond a reasonable
doubt.’” (citing Chapman at 24). “In other words, we
reverse if ‘there is a reasonable possibility that the [error]
might have contributed to the conviction.’ Id.”); Bryant v.
State, 288 Ga. 876, 898, 708 S.E.2d 362, 383 (2011)
(“[B]efore a federal constitutional error can be held
harmless, the court must be able to declare a belief that
it was harmless beyond a reasonable doubt.” (citing
Chapman, at 24)); State v. Ward, 292 Kan. 541, 569, 256
P.3d 801, 820 (2011) (Following Chapman, “the error may
be declared harmless where the party benefitting from
the error proves beyond a reasonable doubt that the error
complained of will not or did not affect the outcome of the
trial in light of the entire record, i.e., proves there is no
reasonable possibility that the error affected the verdict.”);
Koenig v. State, 933 N.E.2d 1271, 1273 (Ind. 2010) (“Since
Chapman, we have reaffirmed the principle that an
otherwise valid conviction should not be set aside if the
reviewing court may confidently say, on the whole record,
that the constitutional error was harmless beyond a
reasonable doubt.”); Commonwealth v. Morales, 76 Mass.
App. Ct. 663, 667, 925 N.E.2d 551, 555 (2010) (“[I]n
determining whether a constitutional error was harmless,
we ask whether the record establishes beyond a reasonable
doubt that the error complained of did not contribute to
the verdict obtained.” (citing Chapman at 24) (internal
quotations omitted)); State v. Charlie, 357 Mont. 355, 367,
239 P.3d 934, 945 (2010) (“The United States Supreme
Court has held that a harmless error analysis turns on
the notion that “‘the burden [is] on the beneficiary of the
error either to prove that there was no injury or to suffer
16
a reversal of his erroneously obtained judgment.’” (citing
Chapman at 24)); State v. Mundon, 121 Haw. 339, 368,
219 P.3d 1126, 1155 (2009) (“[A] constitutional error may
be held harmless if ‘the court ... [is] able to declare a belief
that it was harmless beyond a reasonable doubt.’” (citing
Chapman at 24)); State v. Scutchings, 2009 ND 8, ¶ 14,
759 N.W.2d 729, 733 (2009) (“The beneficiary of a
constitutional error has the heavy burden of proving
beyond a reasonable doubt that the error complained of
did not contribute to the verdict obtained.”); People v.
Lewis, 139 Cal. App. 4th 874, 884, 44 Cal. Rptr. 3d 403,
408-09 (2006) (“When such error consists of a failure to
instruct on an element of a charge or amounts to an
instruction of a legally incorrect theory, the judgment
must be reversed unless the People prove beyond a
reasonable doubt that the error did not contribute to the
verdict in the case at hand.”); Luginbyhl v. Commonwealth,
48 Va. App. 58, 74 –75, 62 8 S.E. 2d 74, 8 3 (20 0 6)
(“Constitutional error is harmless . . . only if ‘the
beneficiary of the constitutional error ... proves beyond a
reasonable doubt that the error complained of did not
contribute to the verdict obtained.’”); Sparkman v. State,
91 Ark. App. 138, 142, 208 S.W.3d 822, 825 (2005) (“To
conclude that a constitutional error is harmless and does
not mandate a reversal, this court must conclude beyond
a reasonable doubt that the error did not contribute to the
verdict.”); State v. Hale, 277 Wis. 2d 593, 612-13, 691
N.W.2d 637, 647 (2005) (“The test for this harmless error
was set forth by the Supreme Court in Chapman. There,
the Court explained that, ‘before a federal constitutional
error can be held harmless, the court must be able to
declare a belief that it was harmless beyond a reasonable
doubt.’ An error is harmless if the beneficiary of the error
proves ‘beyond a reasonable doubt that the error
17
complained of did not contribute to the verdict obtained.’”
(internal citations omitted)); Vigil v. State, 2004 WY 110,
¶ 19, 98 P.3d 172, 179 (Wyo. 2004) (“On direct appeal, the
State has the burden of proving that the constitutional
errors below were harmless beyond a reasonable doubt.”);
State v. Peterson, 663 N.W.2d 417, 431 (Iowa 2003) (“To
establish harmless error, the State must ‘prove beyond a
reasonable doubt that the error complained of did not
contribute to the verdict obtained.’” (citing Chapman, at
24); Whitehead v. State, 777 So. 2d 781, 847 (Ala. Crim.
App. 1999) (“In order for a constitutional error to be
deemed harmless under Chapman, the state must prove
beyond a reasonable doubt that the error did not contribute
to the verdict and/or sentence....”) affirmed sub nom. Ex
parte Whitehead, 777 So. 2d 854 (Ala. 2000); People v.
Stanaway, 446 Mich. 643, 694, fn. 53, 521 N.W.2d 557, 582,
fn. 53 (1994) (“A state may develop a standard of harmless
error at variance with the harmless error analysis set
forth for constitutional error by the Supreme Court in
Chapman, to be applied to incorrect rulings regarding
its rules of evidence not amounting to a constitutional
violation.” (internal citation omitted)); State v. Bible, 175
Ariz. 549, 588, 858 P.2d 1152, 1191 (1993) (“The State has
the burden of convincing us that error is harmless.” (citing
Chapman at 24-26)); People v. Rodgers, 756 P.2d 980, 984
(Colo. 1988), (“[I]f the asserted error is of constitutional
dimension, reversal is required unless the [reviewing]
court is convinced that the error was harmless beyond a
reasonable doubt.” (citing Chapman at 24) overruled on
other grounds by People v. Miller, 113 P.3d 743 (Colo.
2005); People v. Simms, 121 Ill. 2d 259, 276, 520 N.E.2d
308, 315 (1988) (“Because the defendant’s interests are
heightened where constitutional error is at issue, the
Chapman harmless-error standard shifts to the State the
18
burden of proving “beyond a reasonable doubt” that the
error did not affect a given decision.”); State v. Ingalls,
544 A.2d 1272, 1275 (Me. 1988) (“In developing the
standard that we felt was ‘constitutionally required and
made obligatory upon us under the Fifth Amendment
through the medium of the Fourteenth Amendment,’ we
looked to the Supreme Court’s definition of harmless error
set forth in Chapman v. California, 386 U.S. 18, 87 S.Ct.
824, 17 L.Ed.2d 705 (1967), as further refined by Anderson
v. Nelson, 390 U.S. 523, 88 S.Ct. 1133, 20 L.Ed.2d 81
(1968), and Fontaine v. California, 390 U.S. 593, 88 S.Ct.
1229, 20 L.Ed.2d 154 (1968).” (citing State v. Tibbetts, 299
A.2d 883, 888 (Me. 1973)); Van Arsdall v. State, 524 A.2d
3, 11 (Del. 1987) “In view of the fundamental nature of the
rights guaranteed under the State constitution, we adopt
as State law a standard such as that used by the Chapman
court, whereby reversal is required whenever the
reviewing court ‘cannot say that the error was harmless
beyond a reasonable doubt.’” (citing Chapman, at 24));
People v. Mehmedi, 118 A.D.2d 806, 809-10, 500 N.Y.S.2d
304, 307 (1986), aff’d, 69 N.Y.2d 759, 505 N.E.2d 610 (1987)
(“The burden of proving constitutional error harmless is,
of course, a heavy one, requiring that the State establish
beyond a reasonable doubt that the error complained of
did not contribute to the verdict.”); State v. DiGuilio, 491
So. 2d 1129, 1138 (Fla. 1986) (“The harmless error test,
as set forth in Chapman and progeny, places the burden
on the state, as the beneficiary of the error, to prove
beyond a reasonable doubt that the error complained of
did not contribute to the verdict or, alternatively stated,
that there is no reasonable possibility that the error
contributed to the conviction.” (citing Chapman at 24));
State v. LePage, 102 Idaho 387, 393, 630 P.2d 674, 680
(1981) (“The standard for determining whether error of
19
constitutional dimension is ‘harmless,’ as set forth in is
‘that before a federal constitutional error can be held
harmless, the court must be able to declare a belief that
it was harmless beyond a reasonable doubt.’” (internal
citation omitted)); State v. Caldwell, 94 Wash. 2d 614, 618,
618 P.2d 508, 510 (1980) (“Since the error infringed upon
the petitioner’s constitutional rights, the error is presumed
prejudicial, and the State has the burden of proving that
the error was harmless.” (citing Chapman at 23-24));
Dorsey v. State, 276 Md. 638, 658–59, 350 A.2d 665, 678
(1976) (“Embracing the requirement laid down in
Chapman, that the beneficiary of error be required to
demonstrate, beyond a reasonable doubt, that such error
did not contribute to the conviction, and engrafting that
precept upon the principles and mechanics which have
antecedently and traditionally been applied in resolving
whether the rights of a defendant in a criminal case were
prejudiced by the error, we adopt the criteria enunciated
in Chapman and applied by the Supreme Court in its
progeny.”); Com. v. Harkins, 459 Pa. 196, 200, 328 A.2d
156, 157 (1974) (Applying Chapman, “The prosecution has
failed to establish that the error was harmless beyond a
reasonable doubt. Error cannot be harmless beyond a
reasonable doubt if there is a reasonable possibility that
the information received by the jury contributed to the
conviction.”); and Love v. State, 457 P.2d 622, 631 (Alaska
1969) (“[I]n cases where constitutional rights are affected
by evidentiary determinations in state courts…. we are
bound by the rule of Chapman v. California, supra, that
before a federal constitutional error can be held harmless,
‘the court must be able to declare a belief that it was
harmless beyond a reasonable doubt.’” (citing Chapman
at 24)).
20
This Court should grant the writ, consider the issue,
reverse the decisions below, and remand for the South
Carolina Supreme Court to conduct a proper constitutional
harmless error analysis pursuant to Chapman.
II.
Due Process confers a right for an accused to have a
full and fair opportunity to respond to the prosecution’s
best closing argument, meaning the State must open
in full on the facts and the law and restrict its reply
argument to matters raised by the defense in closing.
Currently, there is no rule [of criminal procedure
in South Carolina] governing the content and order of
closing arguments in criminal cases in which a defendant
introduces evidence.” Beaty, 423 S.C. at 46, 813 S.E.2d at
512. Individual trial judges must address this situation in
individual cases. Michael Beaty’s trial judge followed a
procedure allowing the State to open only on the law and
then close fully on the facts after the defendant makes his
final argument. Prior to closing arguments, Mr. Beaty
moved for the trial judge to require the prosecution to
open fully on the law and facts. R. at 815-816; 828-830.
Trial counsel was under the impression the trial judge
granted this motion. The opening argument in “full” by
the Solicitor consisted of only twelve pages. R. at 741-752.
Of those twelve pages, only three pages were used to
discuss the facts. R. at 749-52. In the “rebuttal” argument,
the prosecutor used a PowerPoint presentation, which
was not sued in the opening argument. The “rebuttal”
argument consisted of thirty-four pages, almost three
times longer than his opening argument in “full” and ten
times longer than his discussion of the facts in his opening
21
argument at closing. R. at 782-815. After the State’s
“rebuttal” argument, Mr. Beaty moved for a mistrial or, in
the alternative, for an opportunity to give a brief reply to
the new matters the prosecution brought up in its rebuttal
argument, placing on the record the new matters raised
by the State in its rebuttal. R. at 816, 822-28. The trial
judge declined to do either.
This closing argument procedure followed by Mr.
Beaty’s trial judge—also followed by other South
Carolina trial judges—is long on tradition but short
on law to support that tradition. The early practice in
South Carolina was for the State to open fully on the law
and the facts. In State v. Atterberry, 129 S.C. 464, 124
S.C. 648 (1924), the South Carolina Supreme Court held
that the failure to require the State to open fully on the
law and facts was reversible error. At that time Circuit
Court Rule 59 provided, “The party having the opening
in argument shall disclose his entire case and on his
closing shall be confined strictly to a reply to the points
made, and authorities cited by the opposite party.” In
reversing the conviction of the defendant the Court said,
“The defendant moved the court to require the solicitor to
make the opening speech to the jury before the defendant’s
attorneys were required to make their arguments. This
was refused. This was error.” Atterberry, 129 S.C. at ___,
124 S.E. at 651. In his concurring opinion Acting Associate
Justice Aycock stated the principle best when he said “It
is but fair that the party who has the advantage of the last
address to a jury should be required to open and apprise
the opposing party of his views as to his entire case.” Id.
at ___, 124 S.E. at 651. As a matter of legal history, the
State in South Carolina was required to open fully on the
law and the facts.
22
The more recent practice developed in South Carolina
when the Circuit Court Rules were changed. This change
was noted in State v. Lee, 255 S.C. 309, 178 S.E.2d 652
(1971). Again, the defense counsel requested that the
State be required to open fully on the law and the facts.
This request was denied by the trial judge. The Court
noted that since the decision in Atterberry, Rule 59 of
the Circuit Court Rules had been changed to Rule 58
and the rule then read, “The party having the opening
in an argument shall disclose fully the law upon which
he relies if demanded by the opposite party.” The South
Carolina Supreme Court in Lee concluded that “It follows
that the trial judge, under the changed rule, was correct
in holding that a solicitor is no longer required to make
an opening argument to the jury on issues of fact.” Lee, at
318, 178 S.E.2d at 656. Thus began the more recent, but
incorrect, practice of requiring the State to open only on
the law and not the facts.
Today, Rule 43(j) of the South Carolina Rules of Civil
Procedure controls the order of argument in civil cases.
This rule now provides that the plaintiff shall have the
right to open and close at the trial of the case. The rule
then concludes, “The party having the right to open shall
be required to open in full, and in reply may respond in full
but may not introduce any new matter.” With Rule 43(j)
of the South Carolina Rules of Civil Procedure, the long
practice in civil cases of plaintiff’s lawyers “sandbagging”
and saving their real argument for their last argument,
came to an end. But the practice, without any support
in the law, continued in the general sessions courts not
based upon the law or logic, but upon misapplication of
the civil rules.
23
In the opinion in this case, the court below summarized
the state of the closing argument in South Carolina:
Our current closing argument rules consist
of the following patchwork: Pursuant to the
common law rule pronounced in [State v.]
Brisbane[, 2 S.C.L. 451 (S.C. Const. App. 1802)]
and as clarified in [State v.] Garlington, [90 S.C.
138, 72 S.E. 564 (1911)], in cases in which no
defendant introduces evidence, the defendant(s)
have the right to open and close, but may waive
the right to both or may waive opening and
present full argument after the State’s closing
argument. Pursuant to the common law rule set
forth in [State v.] Huckie, [22 S.C. 298 (1885)], if
two or more defendants are jointly tried, if any
one defendant introduces evidence, the State
has the final closing argument. Pursuant to the
common law rule as clarified in [State v.] Gellis,
[158 S.C. 471, 155 S.E. 849 (1930)], in cases in
which a defendant introduces evidence of any
kind, even through a prosecution witness, the
State has the final closing argument. However,
in cases in which the State is entitled to the
reply argument, there is no common law or
codified rule as to whether the State must open
in full on the law, or the facts, or both, or neither,
and there is no rule governing the content of
the State’s reply argument.
Beaty, 423 S.C. at 42, 813 S.E.2d at 510-11 (2018). The
South Carolina Supreme Court then held:
24
Article V, section 5 of the South Carolina
Constitution limits this Courts authority to
correcting errors of law and does not empower
us to promulgate a procedural rule for future
cases by simply issuing an opinion. Article V,
section 4A, of the South Carolina Constitution
prohibits this Court from adopting any rules of
practice and procedure—even a much-needed
rule governing the practice and procedure of
closing arguments in criminal cases—without
first going through the prescribed legislative
process.
Beaty, 423 S.C. at 46, 813 S.E.2d at 512. The South
Carolina Supreme Court refused to declare this order
and content of closing argument violated the due process
clause. Further, as a result, each individual trial judge in
South Carolina must establish their own rule regarding
the order and content of closing arguments.
The majority of states and the federal courts require
the prosecutor to open fully on the law and the facts. See,
e.g. Fed. Rule Cr. Proc. 29.1; ARK. CODE ANN. 16-89123; GA. CODE ANN. § 17-8-71; NEV. REV. STAT. ANN
175.141; TENN. RULES OF CRIM. PROC. Rule 29.1; In
Re AMENDMENTS TO THE FLORIDA RULES OF
CRIMINAL PROCEDURE-FINAL ARGUMENTS,
957 So.2d 1164 (Fla. 2007) but see, Degadillo v. State,
262 S.W.3d 371 (Tex. Ct. App. (2008). See also United
States v. Maloney, 755 F.3d 1044 (9th Cir. 2014) (held that
prosecutor’s improper comment during rebuttal warranted
reversal of conviction). 3 Treatise writers also support the
3. The oral argument in Maloney is enlightening and can be
viewed at https://www.youtube.com/watch?v=HgafGnA4Eow&fe
ature=youtu.be (last viewed August 26, 2018).
25
requirement that the State open fully on the law and
evidence. See JACOB STEIN, CLOSING ARGUMENTS
2d, § 1:6 (2010) and 75A AM. JUR. 2D Trial§ 448 (2010).
In revising its rules as to closing argument the Florida
Supreme Court noted, “The statute provides that in
accord with the common law, the prosecuting attorney
shall open the closing arguments, defendant or his or
her attorney may reply, and the prosecuting attorney
may reply in rebuttal.” In re AMENDMENTS TO THE
FLORIDA RULES OF CRIMINAL PROCEDUREFINALARGUMENTS, 957 So.2d at 1166.
In commenting on the proposed amendment to
Federal Rule 29.1 of the Federal Rules of Criminal
Procedure, the committee said it “believes that, as the
Advisory Committee Note has stated, fair and effective
administration of justice is best served if the defendant
knows the arguments actually made by the prosecution
in behalf of conviction before the defendant is faced with
the decision whether to reply and what to reply.”4 H.R.
REP. 94-247, 17, 1975 U.S.C.C.A.N. 674, 689
The order of closing argument and the content of the
argument should afford both parties a fair opportunity to
present their side and refute the argument of the other
side. As seen, this worthy goal is recognized in virtually
4. The South Carolina appellate courts acknowledge the
inherent logic of this position concerning reply briefs and oral
argument. “An appellant may not use either oral argument or the
reply brief as a vehicle to argue issues not argued in the appellant’s
brief.” Bochette v. Bochette, 300 S.C. 109, 112, 386 S.E.2d 475, 477
(Ct. App. 1989). The reason of this rule in the appellate court is a
party should have a fair chance to respond to matters raised by
counsel in their briefs. The rule should also be applied to arguments
before a jury.
26
every state in the union in which the government is
required to fully open on the law and the facts, including
its theory as to how and why the defendant committed the
crime. The defendant, then having fully heard the State’s
theory, is able to refute that theory and give its theory.
The government in its final argument then refutes the
theory the defendant proposed as to why the defendant is
not guilty. Such a procedure is equally fair to both sides.
As one court has said “The rule is rooted in the concepts
of due process and fundamental fairness. Simply put, it
is unfair and often highly prejudicial for plaintiff’s or
State’s counsel to avoid treatment of certain issues in the
opening summation so as to deprive defense counsel of the
opportunity to reply.” Bailey v. State, 440 A.2d 997, 1002
(Del. 1982). The practice of “sandbagging” in a closing
argument was a basis for reversal of a criminal conviction
in Bailey. The Court said “Application of these authorities
to the facts at hand compels us to reverse and remand the
case for a new trial on the ground that the Trial Court
abused its discretion in permitting the State to utilize
the inherently prejudicial “sandbagging” trial strategy.”
Id. In South Carolina “sandbagging” by a prosecutor is
not only approved but is actually legalized. Without the
opportunity by defense counsel to point out that there is
no evidence in the record to support these arguments, the
jury was left only with the authoritative statement of the
Solicitor when they considered the evidence. A fair trial
is not conducted when defense counsel hears the State’s
real theory of guilt and the State’s interpretation of the
facts for the first time during the prosecution’s “rebuttal
argument.” If the State’s case and argument is so strong,
then the State should be willing to open fully on the facts
and its theory of the case.
27
This Court should grant the writ, consider the issue,
reverse the decisions below, and hold due process requires
an accused to have a full and fair opportunity to respond
to the prosecution’s best closing argument.
CONCLUSION
This Court, therefore, should grant the writ and
consider the constitutional issues presented in this case.
Respectfully submitted,
E. Charles Grose, Jr.
Counsel of Record
The Grose Law Firm, LLC
404 Main Street
Greenwood, SC 29646
(864) 538-4466
charles@groselawfirm.com
C. Rauch Wise, Esq.
305 Main Street
Greenwood, SC 29646
(864) 229-5010
Attorneys for Petitioner
August 27, 2018
APPENDIX
1a
Appendix
A
APPENDIx A — State
v. Beaty,
S.C. SUPREME
COURT OP. NO. 27693, FILED DEcEMBER 29, 2016
SUPREME COURT OF SOUTH CAROLINA
Opinion No. 27693
THE STATE,
Respondent,
v.
MICHAEL VERNON BEATY, JR.,
Appellant.
October 19, 2016, Heard
December 29, 2016, Filed
Appeal from Laurens County
W. Jeffrey Young, Circuit Court Judge
Appellate Case No. 2015-000718
AFFIRMED
CHIEF JUSTICE PLEICONES: Appellant was convicted
of murdering his girlfriend and received a life sentence.
While we affirm his conviction and sentence, we find two of
the issues he raises require discussion.1 Those two issues
1. The remaining issues are affirmed pursuant to rule 220,
SCACR. State v. Bailey, 298 S.C. 1, 377 S.E.2d 581 (1989); State v.
Phillips, 416 S.C. 184, 785 S.E.2d 448 (2016); State v. Sterling, 396
S.C. 599, 723 S.E.2d 176 (2012); State v. Scott, 414 S.C. 482, 779 S.E.2d
529 (2015); State v. Martin, 415 S.C. 475, 783 S.E.2d 808 (2016); State
2a
Appendix A
involve the trial judge’s use of certain terms in his opening
remarks to the jury, and the content requirements of a
divided closing argument.
A. Opening Remarks
After the jury was sworn the trial judge gave
preliminary remarks. These remarks began with a
warning that a real trial was not like television, and
outlined the roles, duties, and responsibilities of the
lawyers and the jury. This was followed by a “non-charge,”
further advice about the proper role of the jury, and an
explanation of trial procedure. During those remarks,
the judge said:
This . . . trial . . . is a search for the truth in
an effort to make sure that justice is done.
In searching for the truth and ensuring that
justice is done is [sic] often slow, deliberate,
and repetitive.
[The attorneys] are sworn to uphold the
integrity and the fairness of our judicial system
and to help you as jurors to search for the truth.
[Y]ou also just took an oath to listen to the
evidence in this case and reach a fair and just
verdict and you are expected to be professional,
reasonable and ethical.
v. Smith, 230 S.C. 164, 94 S.E.2d 886 (1956); State v. vang, 353 S.C.
78, 577 S.E.2d 225 (Ct. App. 2003).
3a
Appendix A
[Y]ou the jurors find [the facts] from the
testimony from a witness from the witness
stand or any other evidence, and after hearing
that evidence you will deliberate and render a
true and just verdict under the solemn oath that
you just took as jurors.
[I]n determining what the true facts are in
this case you must decide whether or not the
testimony of a witness is believable.
[A]fter argument of counsel and the charge on
the law by me, you will then be in a position to
determine what the true facts are and apply
those facts to the law and thus surrender [sic]
a true and just verdict.
Following this statement, appellant requested a
sidebar, and his objection was later put on the record.
At trial, appellant objected to the use of the terms
“search[ing] for the truth,” “true facts,” and “just
verdict.” Appellant complained these terms were
especially concerning when linked with the Solicitor’s
“misstatement” of circumstantial evidence and reasonable
doubt in his opening statement, 2 and because the Solicitor
had informed the jury that it would have to pick between
two competing theories. The Solicitor acknowledged to
the trial judge that the “search for the truth” language is
2. Appellant did not contemporaneously object to these alleged
misstatements.
4a
Appendix A
disfavored but argued that its use here was not reversible
error. The trial judge denied appellant’s request for a
curative instruction, holding that his remarks were merely
an opening comment and not a jury instruction.
Appellant relies upon State v. Aleksey, 343 S.C. 20,
538 S.E.2d 248 (2000), which held that jury instructions
on reasonable doubt which also charge the jury to “search
for the truth” run the risk of unconstitutionally shifting
the burden of proof to the defendant. The Aleksey court
found there was no reversible error in the charge given
there because the “seek the truth” language was given in
conjunction with the credibility charge, and not with either
the reasonable doubt or circumstantial evidence charge.
Cf. State v. Daniels, 401 S.C. 251, 737 S.E.2d 473 (2012)
(instructing discontinuance of charge that jury’s duty is
to return a verdict just and fair to all parties).
It is true, as the trial judge noted, that the comments
here can be distinguished from Aleksey in that his
was a “statement” and not a jury charge. Further, the
remarks were not linked to either reasonable doubt or
circumstantial evidence as was condemned in Aleksey.
However, we agree with appellant that a trial court
should refrain from informing the jury, whether through
comments or through its charge, that its role is to search
for the truth, or to find the true facts, or to render a just
verdict. These phrases may be understood to place an
obligation on the jury, independent of the burden of proof,
to determine the circumstances surrounding the alleged
crime and from those facts alone render the verdict it
believes best serves the jury’s perception of justice. We
5a
Appendix A
caution trial judges to avoid these terms and any other
that may divert the jury from its obligation in a criminal
case to determine, based solely on the evidence presented,
whether the State has proven the defendant’s guilt beyond
a reasonable doubt. Although there was error here, our
review of the entirety of the judge’s opening comments
and the entire trial record convinces us that appellant
has not shown prejudice from this error sufficient to
warrant reversal. Compare State v. Coggins, 210 S.C.
242, 42 S.E.2d 240 (1947) (trial court’s choice of words and
comments, while not “happy,” did not require reversal).
B. Closing Argument
Appellant also contends the trial court erred in failing
to require the State to open fully on the law and facts
in its closing argument, and to limit the State’s reply
to matters raised by appellant’s counsel in his “middle”
closing argument. 3 Appellant argues that without such
a rule, his procedural due process rights are offended.
State v. Legg, 416 S.C. 9, 785 S.E.2d 369 (2016) (procedural
due process requires a fair hearing). We agree in part,
and hold that in a criminal trial where the party with the
“middle” argument requests, the party with the right to
the first and last closing argument must open in full on the
law and the facts, and in reply may respond in full to the
3. This is, in fact, the issue raised by appellant to the trial judge
prior to the closing arguments by both oral and written motion.
Justice Few confuses appellant’s arguments concerning prejudice
made after those arguments with the actual issue before the Court
today.
6a
Appendix A
other party’s argument but may not raise new matter.4 Cf.
Rule 43(j), SCRCP; compare Bailey v. State, 440 A.2d 997
(Del. 1982) (due process offended when State permitted to
“sandbag” by making perfunctory opening statement and
then argue in full in reply, thereby depriving defendant
the opportunity to counter State’s arguments).
With the adoption of this rule governing the contents
of closing arguments, we restore what had been, largely
by court rule, the practice in this state for many years
until 1971. Compare State v. Huckie, 22 S.C. 298 (1885)
(identifying rule as having been “in existence” since 1796)
with State v. Lee, 255 S.C. 309, 178 S.E.2d 652 (1971),
overruled in part on different grounds by State v. Belcher,
385 S.C. 597, 685 S.E.2d 802 (2009) (stating open in full
practice altered with replacement of Circuit Court Rule
59 by Rule 58). In this case, we have reviewed the State’s
opening argument and its reply, and find that appellant is
not entitled to a new trial as any error in the trial court’s
denial of his motion to require the State to open in full and
4. Justice Few does not grasp that the common law rule we
adopt today is not the rule we proposed to the General Assembly and
that, as is its prerogative under the Constitution, it rejected. That
rule would have required that the State open and close in every case.
Today, we preserve the common law rule that the defendant has the
right to open and close if he presents no evidence adopted in State
v. Brisbane, 2 S.C.L. (2 Bay) 451, 452-4 (1802), the rule that would
have been changed had Rule 21 been adopted. Moreover, in restoring
the requirement that the party with the first argument open in full
and raise no new matters in reply we exercise our authority and
our duty to alter, and in this case restore, the common law rule.
e.g., Marcum v. Bowden, 372 S.C. 452, 643 S.E.2d 85 (2007); State
v. Huckie, supra.
7a
Appendix A
limit its reply was harmless beyond a reasonable doubt.
See Chapman v. California, 386 U.S. 18, 87 S. Ct. 824,
17 L. Ed. 2d 705 (1967) (harmless constitutional violation
standard).
C. Conclusion
We instruct trial judges to omit any language, whether
in remarks to the jury or in an instruction, which might
have the effect of lessening the State’s burden of proof in
a criminal case. Further, we hold that in criminal cases
tried after this opinion becomes final, if requested by
the party with the right to second argument, the party
with the right to open and close will be required to open
in full on the law and the facts, and be limited in reply to
addressing the other party’s argument and not permitted
to raise new matters.
After review of the record in this matter, appellant’s
conviction and sentence are
AFFIRMED.
BEATTY, KITTREDGE and HEARN, JJ., concur.
FEW, J., concurring in part and dissenting in part in
a separate opinion.
8a
Appendix A
JUSTICE FEW: I concur in section A, the majority’s
comments regarding the trial court’s opening remarks
to the jury. It is only fair to the trial court, however,
and the other trial judges in South Carolina who have
been using similar charges to introduce a jury to its
responsibilities in a criminal trial, that we acknowledge
our own responsibility in regard to the trial court’s
remarks. While “we have urged trial courts to avoid
using any ‘seek’ language when charging jurors on either
reasonable doubt or circumstantial evidence,” State v.
Aleksey, 343 S.C. 20, 27, 538 S.E.2d 248, 251 (2000) (citing
State v. Needs, 333 S.C. 134, 155, 508 S.E.2d 857, 867-68
(1998)), that is not what the trial court did in this case.
The trial court’s “search for the truth” charge in this case
was not connected to its charge on reasonable doubt or
circumstantial evidence. What the trial court did do in this
case is to use language almost identical to a “Preliminary
Charge” this Court has continued to maintain for circuit
judges on the judicial department intranet. Thus, we
have been recommending that circuit judges use the very
charge we now forbid.
I do not agree with section B, the majority’s decision
to change the rules of procedure regarding closing
arguments for future criminal trials. As to the substance
of the majority’s new rule, the new rule is a better rule
that will uphold the due process rights of defendants while
adequately preserving the right of the State to present
and argue its cases to the jury. But this Court does not
have the power to promulgate new rules of procedure for
future trials by writing opinions to decide cases. Rather,
when we decide an appeal from a criminal conviction—as
9a
Appendix A
we do here—our power is limited to correcting errors of
law. 5 The majority’s decision today exceeds that power.6
The Supreme Court does have the power to promulgate
rules of procedure, but that power must be exercised
pursuant to article V, section 4A of the South Carolina
Constitution, which provides,
All rules and amendments to rules governing
practice and procedure in all courts of this
State promulgated by the Supreme Court
must be submitted by the Supreme Court to
5. See S.C. C onst. art. V, § 5 (“The Supreme Court shall
constitute a court for the correction of errors at law under such
regulations as the General Assembly may prescribe.”); State v.
Asbury, 328 S.C. 187, 193, 493 S.E.2d 349, 352 (1997) (“This Court’s
scope of review is determined by our State constitution which limits
our scope of review in law cases to the correction of errors of law.”
(citing S.C. Const. art. V, § 5)); State v. Francis, 152 S.C. 17, 149
S.E. 348, 364 (1929) (“We think it not out of place to once again call
attention to the fact that in criminal cases, even in those where men
have been sentenced to death, this court, under the Constitution of
this state, is absolutely limited to the correction of errors of law.”).
In Asbury and Francis, we cited the article V, section 5 limitation
on our power to demonstrate we do not have the power to reach
questions of fact. The limitation is even more important when the
constitution specifically provides the manner in which we may act.
See S.C. Const. art. V, § 4A.
6. In most cases, of course, our decision to correct an error of
law becomes precedent that is binding on courts in the future. See,
e.g., State v. Belcher, 385 S.C. 597, 612, 685 S.E.2d 802, 810 (2009)
(finding an error of law in the use of the inferred malice jury charge,
reversing the conviction, and noting the ruling is binding in future
cases).
10a
Appendix A
the Judiciary Committee of each House of the
General Assembly . . . .
S.C. Const. art. V, § 4A.
It is particularly inappropriate that this Court would
write this new rule in this case. On January 28, 2016, the
Supreme Court proposed an amendment to the South
Carolina Rules of Criminal Procedure to add new Rule
21, which would have changed the law precisely as the
majority changes the law today. Re: Amendments to the
S.C. Rules of Criminal Procedure, 2014-002673 (S.C.
Sup. Ct. Order dated Jan. 28, 2016). The proposed rule
provided, “Closing arguments in all non-capital cases
shall proceed in the following order: (a) the prosecution
shall open the argument in full; (b) the defense shall be
permitted to reply; and (c) the prosecution shall then be
permitted to reply in rebuttal.” Id. The January 28 order
proposing the rule specifically stated, “These amendments
shall be submitted to the General Assembly as provided
by Art. V, § 4A of the South Carolina Constitution.” Id.
Article V, section 4A provides the General Assembly may
reject proposed rules. “Such rules or amendments shall
become effective ninety calendar days after submission
unless disapproved by concurrent resolution of the General
Assembly, with the concurrence of three-fifths of the
members of each House present and voting.” S.C. Const.
art. V, § 4A. On April 26, 2016, the General Assembly
rejected Rule 21 by concurrent resolution, stating:
Be it resolved by the Senate, the House of
Representatives concurring:
11a
Appendix A
That the amendments to the South Carolina
Rules of Criminal Procedure, as promulgated
by the Supreme Court of South Carolina and
submitted to the General Assembly on January
28, 2016, pursuant to the provisions of Article
V of the South Carolina Constitution are
disapproved.
S. Con. Res. 1191, 121st Gen. Sess. (S.C. 2016).
Having attempted to change the rules of criminal
procedure by follow ing the requi rements of the
constitution, but having the changes rejected by the
General Assembly (as the constitution provides it may do),
this Court now makes an end-run around the constitution
to change the rules anyway. While I respect the majority’s
determination to write rules of procedure that protect the
due process rights of our citizens, we must do so within
the constitutional limitations on judicial power.
In this case, Beaty’s trial counsel raised a narrow
issue that we could address without changing the rules of
procedure for future trials. After the solicitor made his
final closing argument, beaty’s counsel told the trial court
the solicitor had “sandbagged his entire argument” and
argued it was “a gross violation of due process.” Counsel
then requested the opportunity to “go through a list of
things that we would like to have had the opportunity to
refute” if given the opportunity to reply to the State’s
argument. As to one specific point, counsel argued the
State presented a factual scenario for the first time in its
final argument. Counsel then argued he could not have
12a
Appendix A
anticipated such an argument, and Beaty deserved the
right to reply to it. Counsel then listed numerous other
points in the State’s final argument he argued were
misleading, and explained in detail how he would have
structured his own closing argument to respond if he had
the opportunity. Finally, counsel specifically requested he
be allowed “to reargue before the jury” to protect Beaty’s
due process rights. The trial court stated, “I’m not going
to do that.”
Beaty raised this limited issue on appeal. The majority
finds “any error in the trial court’s [ruling] was harmless
beyond a reasonable doubt.” Presumably, the majority
finds the error harmless because it finds beaty’s due
process rights were not actually violated in this case. This
limited ruling on this limited issue is sufficient to resolve
this appeal. I therefore dissent from section B in which
the majority adopts new rules regarding closing argument
in all future criminal trials.
13a
Appendix BFOR REHEARING,
APPENDIx B — PETITION
FILED JANUARY 10, 2017
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Appellate Case No. 2015-000718
S.C. Supreme Court Opinion No. 27693
The State,
Respondent,
v.
Michael Vernon BeatY, Jr.,
Appellant.
APPEAL FROM LAURENS COUNTY
Court of General Sessions
W. Jeffery Young, Circuit Court Judge
PETITION FOR REHEARING
Pursuant to Rule 221, SCACR, the appellant,
Michael Beaty, petitions for rehearing because this Court
overlooked or misapprehended the points discussed in this
petition. As discussed below, this Court did not discuss
the facts of the case, explain why the two Constitutional
violations do not require reversal, and address numerous
issues raised by Mr. Beaty in his appeal.
14a
Appendix B
I. ISSUES ADDRESSED IN THE COURT’S
OPINION.
This Court found two constitutional violations but
never explained why these violations do not require
reversal under the facts of Mr. Beaty’s case. Once these
constitutional violations are considered in the context
of the facts of this case, the need to reverse becomes
apparent.
A. Opening Remarks.
This Court agreed that the trial judge, by “use of
terms ‘search for the truth,’ ‘true facts,’ and ‘just verdict,”’
Slip Opinion, p. 3, departed from this Court’s precedent
in State v. Daniels, 401 S.C. 251, 256, 737 S.E.2d 473,
475 (2012), State v. Alekesy, 343 S.C. 20, 538 S.E.2d 248
(2000), and other cases relied on by Mr. Beaty in his Brief
of Appellant, at pp. 28-37, and Reply Brief, at pp. 12-14.
This Court found a constitutional violation and once again
held, “These phrases may be understood to place an
obligation on the jury, independent of the burden of proof,
to determine the circumstances surrounding the alleged
crime and from those facts alone render the verdict it
believes best serves the jury’s perception of justice.” Slip
Opinion, pp. 3-4. After admonishing trial courts to avoid
using these terms, this Court concluded, “Although there
was error here, our review of the entirety of the judge’s
opening comments and the entire trial record convinces
us that appellant has not shown prejudice from this error
sufficient to warrant reversal.” Slip opinion, p. 4. This
Court found Mr. Beaty was prejudiced by the trial judge’s
15a
Appendix B
unconstitutional comments but never explained why that
prejudice as not sufficient to warrant a new trial.
This Court overlooked the Solicitor exploiting the trial
judge’s remarks in his closing argument. Rec. on App. 772,
ll 4-12. This Court correctly observed, “[T]he Solicitor had
informed the jury that it would have to pick between two
competing theories.” Slip Opinion, p. 3. Indeed, the parties
did present the jurors with two competing theories,
neither of which absolved Mr. Beaty of Emily Anna Asbill’s
death. Relying entirely on circumstantial evidence, the
prosecution argued that Mr. Beaty intentionally strangled
his girlfriend with a USB cord. Relying on his statement
to investigators, expert testimony, and circumstantial
evidence, Mr. Beaty established his girlfriend tried to
jump out of a moving car and he failed to safely secure her
inside the car, resulting in accidental death by positional
asphyxiation. The jurors’ role never was to determine
which competing theory best explained the circumstances
of the crime or to render a verdict they believed best
served their perception of justice. Rather, the jurors’
role was to determine whether the State met its burden
of proving Mr. Beaty guilty beyond a reasonable doubt.
In re Winship, 397 U.S. 358 (1990). “Where the charge
contains both the correct and incorrect law, an appellate
court must assume the jury followed the incorrect
charge.” State v. Buckner, 341 S.C. 241, 247, 534 S.E.2d
15, 18 (Ct. App. 2000). The unconstitutional remarks,
when considered with the Solicitor’s opening statement
and closing arguments, increase the need to apply this
presumption.
16a
Appendix B
This Court, additionally, did not apply the proper
standard of review for a harmless constitutional violation
when it held:
Although there was error here, our review of
the entirety of the judge’s opening comments
and the entire trial record convinces us that
appellant has not shown prejudice from this
error sufficient to warrant reversal. Compare
State v. Coggins, 210 S.C. 242, 42 S.E.2d
240 (1947) (trial court’s choice of words and
comments, while not “happy,” did not require
reversal).
Slip Opinion, p. 4. This Court, thus, required Mr. Beaty
to not only show prejudice but also to show prejudice
sufficient to warrant reversal. rather, under the proper
standard of review, “before a federal constitutional error
can be held harmless, the court must be able to declare
a belief that it was harmless beyond a reasonable doubt.”
Chapman v. California. 286 U.S. 18, 24 (1967). The
burden, therefore, is on this Court to explain why the
error is harmless beyond a reasonable doubt and not on
Mr. Beaty to explain why a prejudicial, constitutional error
is sufficient to warrant reversal.
This Court’s reliance on Coggins is misplaced
for two reasons. First, it was decided two decades
before Chapman and, therefore, does not represent
the appropriate standard of review for determining a
harmless constitutional violation. Second, the trial court’s
“[un]happy choice of words” in Coggins “did not constitute
17a
Appendix B
[an] objectionable expression of the opinion of the judge.”
Id. 210 S.C. at 245, 42 S.E.2d at 241. Thus, this Court
erred by applying a standard of review from a case where
no constitutional violation occurred. This Court’s error is
further demonstrated by its complete failure to discuss
the facts of this case.
This Court should rehear this appeal, reverse Mr.
Beaty’s convictions and sentences, and order a new trial.
B. Closing Argument.
Adopting the reasoning of Bailey v. State, 440 A.2d
997 (Del. 1982), this Court found the Solicitor’s closing
arguments violated Mr. Beaty’s right to due process.
Citing Chapman, this Court concluded, “[T]he trial
court’s denial of [Mr. Beaty’s] motion to require the State
to open in full and limit its reply was harmless beyond a
reasonable doubt.” Slip Opinion, pp. 4-5. Once again, this
Court neither discussed the facts of the case nor explained
why the error was harmless. Although Bailey recognized
the trial judge has
a measure of discretion as to the application of
the rule governing the scope of a rebuttal, that
discretion is not so broad as to permit a Trial
Judge to oversee a blow to a defendant’s right to
a fair trial via the State’s sandbagging. Closing
argument is an aspect of which is implicit in
the Due Process Clause of the Fourteenth
Amendment by which the States are bound.
It is encumbent [sic] on the Trial Judge to
18a
Appendix B
protect the defendant’s right to a fair trial
through constant vigilance over the conduct of
all officers of the Court. . . .
Bailey, at 1003 (internal quotations and citations omitted).
Like the Court in Bailey, this Court recognizes the trial
court’s responsibility to “safeguard the rights of litigants,”
State v. Langford, 400 S.C. 421, 429, 735 S.E.2d 471,
475 (2012), and the prosecution’s “obligation to see the
defendant is accorded procedural justice,” State v. Jones,
343 S.C. 562, 578, 541 S.E.2d 813, 822 (2001).
As Justice Few acknowledged in a separate opinion:
After the solicitor made his final closing
argument, Beaty’s counsel told the trial court
the solicitor had “sandbagged his entire
argument” and argued it was “a gross violation
of due process.” Counsel then requested the
opportunity to “go through a list of things that we
would like to have had the opportunity to refute”
if given the opportunity to reply to the State’s
argument. As to one specific point, counsel
argued the State presented a factual scenario
for the first time in its final argument. Counsel
then argued he could not have anticipated such
an argument, and Beaty deserved the right to
reply to it. Counsel then listed numerous other
points in the State’s final argument he argued
were misleading, and explained in detail how he
would have structured his own closing argument
to respond if he had the opportunity. Finally,
19a
Appendix B
counsel specifically requested he be allowed “to
reargue before the jury” to protect Beaty’s due
process rights.
Slip Opinion, p. 8.
The “sandbagging” in Mr. Beaty’s case is much worse
than the “sandbagging” by the United States Attorney in
United States v. Maloney, 755 F.3d 1044 (9th Cir. 2014).1
In Maloney,
[t]hough there was never any ev idence
introduced regarding whether Maloney had
luggage with him on the trip, for the first
time in rebuttal during closing argument, the
prosecutor argued that Maloney must have lied
about the details of his trip because he had not
luggage with him when he was apprehended, a
fact from which the jury could infer knowledge.
Id. at 1045-46. After oral argument in Maloney,2 the
United States Attorney conceded error and moved the
Court of Appeals “to summarily reverse the conviction,
vacate the sentence, and remand to the district court.”
Id. at 1046 (citing Berger v. United States, 295 U.S. 78,
1. Mr. Beaty cited Maloney during his oral argument on October
19, 2016, found at http://media.sccourts.org/videos/2015-000718.mp4
(last viewed January 8, 2017).
2. The oral argument in Maloney is enlightening and can
be viewed at https://www.youtube.com/watch?v=HgafGnA4Eow&
feature=youtu.be (last viewed January 8, 2017).
20a
Appendix B
88 (1935) and United States v. Kojayan, 8 F.3d 1315, 1323
(9th Cir. 1993)).
In Mr. Beaty’s case, the Solicitor not only argued facts
outside the record, but also argued for the first time the
State’s theory about how Mr. Beaty allegedly strangled
his girlfriend. The Solicitor argued the strangulation
occurred in the driveway of the home of Mr. Beaty’s
mother and stepfather after his girlfriend was screaming
loudly. Despite his request for a sur-rebuttal argument,
the trial judge did not give Mr. Beaty an opportunity to
refute the Solicitor’s argument.
This Court should rehear this appeal, reverse Mr.
Beaty’s convictions and sentences, and order a new trial.
II. ISSUES NOT ADDRESSED IN THE COURT’S
OPINION.
This Court completely overlooked Questions I, II,
V, VI, VII, and VIII raised by Mr. Beaty in his appeal.
Mr. Beaty will elaborate on three of these Questions in
this petition for rehearing: (a) the trial court’s failure
to instruct involuntary manslaughter, (b) the State’s
failure to produce substantial circumstantial evidence
of Mr. Beaty’s guilt, and (c) this Court’s failure to apply
a cumulative error analysis. As discussed in more detail
below, the cases cited by this Court in footnote 1 of
its opinion, pursuant to Rule 220, SCACR, indicate it
misapprehended the issues on appeal. 3
3. Regarding the other issues on appeal, the cases cited in
footnote one do not explains this Court’s failure to address those
21a
Appendix B
A. This Court erred in failing to consider the facts
supporting the request for a charge on involuntary
manslaughter.
In holding that Michael Beaty had not established
sufficient facts to create a jury issue as to involuntary
manslaughter, this Court either failed to consider the
facts established by Mr. Beaty or adopted a new rule as
to lesser included offenses.
This Court has long held that involuntary manslaughter
is a lesser included offense of murder even though
involuntary contains the element of recklessness that is
issues on the merits. State v. Phillips, 416 S.C. 184, 785 S.E.2d
448 (2016) addressed the application of the waiver rule when the
defendant presents evidence. Mr. beaty’s case-in-chief did not fill
in any gaps of the State’s theory of murder. Rather, as discussed
in more detail in Section II(A), the expert testimony presented by
Mr. Beaty further supported the trial court charging involuntary
manslaughter. The reason for citing State v. Smith, 230 S.C. 164, 94
S.C.2d 886 (1956) is unclear. Mr. Beaty did not seek to introduce the
affidavit of Valerie Jones; rather, she was available to testify, and
Mr. beaty introduced the affidavit as a proffer of her live testimony.
Although there was evidence of Mr. Beaty’s intoxication, he was never
offered a test to determine his level of intoxication and, therefore,
never refused such a test. Regarding State v. vang, 353 S.C. 78, 577
S.E.2d 225 (Ct. App. 2003), Mr. Beaty demonstrated the prosecution
attacked the defense lawyers, thereby establishing prejudice for the
trial judge not asking voir dire questions number 9. Finally, it is not
clear that any of the cases cited by this Court in footnote 1 apply the
State v. edwards, 298 S.C. 272, 379 S.E.2d 888 (1989) instruction,
as opposed to the involuntary manslaughter instruction. Footnote
1 failed to address the Cumulative Error Doctrine.
22a
Appendix B
not present in murder. “Involuntary manslaughter is a
lesser-included offense of murder . . . .” State v. Scott, 531,
414 S.C. 482, 487, 779 S.e.2d 529 (2015); See also State
v. elliott, 346 S.C. 603, 610, 552 S.E.2d 727, 731 (2001)
(Pliecones dissenting) overruled on other grounds by
State v. Gentry, 363 S.C. 93, 610 S.E.2d 494 (2005).
In determining if the lesser included of involuntary
manslaughter should be given, now Chief Justice Beatty
has said, “The trial court is required to charge a jury on
a lesser-included offense if there is evidence from which
it could be inferred that the defendant committed the
lesser, rather than the greater, offense.” State v. Sams,
410 S.C. 303, 308, 764 S.E.2d 511, 513 (2014) (emphasis
added). And former Chief Justice Pliecones has also said,
“The trial judge is to charge the jury on a lesser included
offense if there is any evidence from which the jury could
infer that the lesser, rather than the greater, offense
was committed.” State v. Watson, 349 S.C. 372, 375, 563
S.E.2d 336, 337 (2002) (emphasis added). Further, this
Court has said, “Involuntary manslaughter is a lesser
included offense of murder only if there is evidence the
killing was unintentional.” tisdale v. State, 378 S.C.
122, 125, 662 S.E.2d 410, 412 (2008) (emphasis added).
Against these standards, this Court has now said, without
discussion, that the act of a drunken driver in pulling an
intoxicated passenger back into a moving automobile,
positioning her onto the front floor board of the automobile,
not rendering her aid and not keeping her from dying of
positional asphyxiation does not create, as matter of law,
facts from which a jury may infer Mr. Beaty was grossly
negligent. This position is contrary to the position of this
23a
Appendix B
Court in tisdale. In tisdale the physical facts were the
deceased was shot twice in the back of the head. These
physical facts were inconsistent with the statement of
the defendant who claimed the gun went off while the
defendant and the deceased were struggling over the gun.
This Court said, “The fact that Victim’s wounds may have
been inconsistent with petitioner’s testimony that the gun
fired while in Victim’s hand is not overwhelming evidence
that petitioner intentionally killed Victim.” tisdale, 378
S.C. at 126, 662 S.E.2d at 412. Here the exact opposite
is true. The physical evidence is more consistent with
the theory of the Defendant than that of the State. The
evidence at trial established that Ms. Asbill’s hair was
pulled up in a bun. The State’s expert admitted that if the
hair were up and the ligature mark did not go all the way
around the neck of Ms. Asbill, then she was most likely
pulled from behind. Rec. on App. at 526, ll 19-25. The
State never presented any factual theory consistent with
the evidence that would explain why the ligature mark
did not go completely around the neck of Ms. Asbill. The
only theory presented by the State was that the USB cord
they contended caused Ms. Asbill’s death was wrapped
completely around her neck.
This Court further erred in relying upon State v.
Scott, 414 S.C. 482, 779 S.E.2d 529 (2015). In that case
this Court said, “Simply put, Scott has not presented any
evidence that he acted with reckless disregard for the
safety of others.” Id. at 488, 779 S.E.2d at 532. This fact
is simply not correct for Mr. Beaty in this case. Further,
and perhaps most importantly, Scott further said, “As the
trial court noted, if the jury accepted Scott’s version of
24a
Appendix B
the facts as true, he would be entitled to acquittal because
the killing would have been justified.” Id. In this case, if
the jury accepted Mr. Beaty’s eyidence as true, the jury
would still conclude that Mr. Beaty was responsible for
the death of Ms. Asbill. His defense was not a complete
defense, but was a defense of a lesser included. See State v.
Chatman, 336 S.C. 149, 153, 519 S.E.2d 100, 101-02 (1999)
(involuntary manslaughter instruction required when “the
evidence establishes that appellant was not attempting to
strangle Victim with his hands”).
This Court failed to note that an attempt to render aid,
if recklessly done, can be a basis for finding a defendant
guilty of involuntary manslaughter. As the North Carolina
Supreme Court said, “Clearly there exists a conflict in our
decisions regarding the propriety of submitting to the jury
the issue of a defendant’s guilt of involuntary manslaughter
where there is evidence that the killing was unintentional
and occurred when the defendant attempted to prevent
the victim from committing suicide.” State v. tidwell.
112 N.C. Ct. App. 770, 775, 436 S.E.2d 922, 926 (1993).
The Court then held that a reckless act in attempting to
prevent a suicide would entitle a defendant to a charge of
involuntary manslaughter. The same principle should be
applied in this case.
As noted above, in order for a trial judge to be required
to charge the lesser included charge of involuntary
manslaughter, a defendant is only required to produce
evidence from which it may be inferred the defendant
acted with gross negligence. In making the determination
as to whether sufficient evidence has been produced by
25a
Appendix B
the defendant to make such a charge proper, this Court
is not concerned with the weight of the evidence but the
existence of the evidence. State v. Reese, 370 S.C. 31, 36,
633 S.E.2d 898, 900 (2006) overruled on other grounds
by State v. Belcher, 385 S.C. 597, 685 S.E.2d 802 (2009).
Whether the standard of review be that there must be
evidence from which a jury may infer a lesser included,
whether there must be any evidence of involuntary
or evidence the killing was unintentional, Mr. Beaty
presented evidence to satisfy any of these standards of
review this Court has used in the past.
As this Court said in this case, the “seek the truth
charge,” “may be understood to place an obligation on
the jury, independent of the burden of proof, to determine
the circumstances surrounding the alleged crime and
from those facts alone render the verdict it believes best
serves the jury’s perception of justice.” Slip Opinion, pp.
3-4. In this case, where Mr. Beaty never denied causing
the death of Ms. Asbill, the only “justice” the jury could
do is to convict Mr. Beaty of murder as that was the only
choice they had other than setting him free. By depriving
Mr. Beaty of the jury electing to convict him of involuntary
manslaughter, “the jury’s perception of justice” insured
a conviction of murder. The failure to charge the lesser
included deprived Mr. Beaty of due process as guaranteed
by the Fourteenth Amendment to the United State’s
Constitution and Article I, Section 3 of the South Carolina
Constitution.
In the alternative, this Court might have affirmed the
denial of the request to charge involuntary manslaughter
26a
Appendix B
based upon a change in the standard of review of lesser
included offenses. In State v. elliott, 346 S.C. 603, 552
S.E.2d 727 (2001), this Court applied a two-part test
for determining whether an offense is a lesser included
offense. Initially, “[t]he test for determining when an
offense is a lesser included offense of another is whether
the greater of the two offenses includes all the elements
of the lesser offense.” Id. At 606, 552 S.E.2d at 728. See,
Chris Blair, Constitutional Limitations on the Lesser
Included Offense Doctrine, 21 Am. Crim. L. Rev. 445
(1984). In elliott, this Court, nevertheless, adhered to
precedent recognizing that assault and battery of a high
and aggravated nature is a lesser included offense of
attempted criminal sexual conduct, even though the same
elements test was not satisfied. After recognizing “the
existence of a few anomalies,” this Court concluded, “We
will continue to consider offenses on a case-by-case basis,
beginning with the elements test.” elliott, at 608, 552
S.E.2d at 730. If this Court applied the same elements test
in this case, then the lesser include charge of involuntary
manslaughter could not have been given. The reason is
that involuntary manslaughter included an element of
recklessness that is not included in the charge of murder.
If this Court applied the standard of review used
in elliott, then the decision in this case would violate
the ex post facto and due process clauses of the United
States and South Carolina Constitutions. By adopting
such a standard of review, this Court would have adopted
a rule not previously applied to a case of involuntary
manslaughter being a lesser included offense of murder.
While this Court could adopt such a rule, it could only
27a
Appendix B
have prospective application. Bouie v. City of Columbia,
378 U.S. 347 (1967).
This Court should rehear this appeal, reverse Mr.
Beaty’s convictions and sentences, and order a new trial.
B. This Court failed to consider that the theory used
by the State to argue the basis for the conviction
of Michael Beaty are speculation and is contrary
to the undisputed facts in this case.
The State’s theor y of mu rder is based upon
circumstantial evidence. As such, in reviewing the
evidence this Court should be guided by the words of the
United States Supreme Court in United States v. Holland.
348 U.S. 121, 135 (1955). “Appellate courts should review
the cases, bearing constantly in mind the difficulties that
arise when circumstantial evidence as to guilt is the chief
weapon of a method that is itself only an approximation.”
Here, the circumstances are hardly conclusive. No
reasonable juror could conclude that other reasonable
hypotheses have been excluded. The theory of the State,
and the only theory, is that Michael Beaty wrapped a USB
cord around the neck of Emily Anna Asbill and strangled
her to death. If this theory is not correct, the State has no
secondary theory to support the conviction. This Court
failed to consider that when the undisputed evidence in
this case is that the ligature mark did not go completely
around the neck of Ms. Asbill, then the theory of the State
is simply not proven. Dr. Ross agreed that if the mark did
not completely around the neck, then she was being pulled
from behind. Rec. on App. at 526, ll 19-25. Neither the facts
28a
Appendix B
nor the testimony of the State’s own expert supports the
position of the State.
The Seventh Circuit has said, “Where a witness’
testimony is such that reasonable men could not have
believed the testimony, however, then exceptional
circumstances are present and the district court may
take the testimony away from the jury. The exception is
an extremely narrow one, however, and can be invoked
only where the testimony contradicts indisputable physical
facts or laws.” United States v. Kuzniar, 881 F.2d 466, 47071 (7th Cir. 1989) (internal citations omitted). The same
principle should be applied when this Court reviews the
State’s theory in a circumstantial evidence case. Here, this
Court failed to consider the fact that the State’s theory is
not just inconsistent with the physical facts established
by the State, but the facts established by the State make
the theory impossible.
And the State fairs no better when it contends that
the USB cord was used to strangle Ms. Asbill. As noted
in the Brief of Appellat, at p. 18, the expert for the State
testified the DNA on the cord was more consistent with a
mere touching and not the grabbing required to strangle
someone. As the physical facts and expert testimony for the
State do not support the only theory of the State, this court
erred in not holding the facts were insufficient to convict.
This Court should rehear this appeal, reverse Mr.
Beaty’s convictions and sentences, and order a new trial.
29a
Appendix B
C. Cumulative Error Doctrine
The cumulative error doctrine “provides relief to a
party when a combination of errors that are insignificant
by themselves have the effect of preventing a party from
receiving a fair trial and it requires the cumulative effect
of the errors to affect the outcome of the trial.” State v.
Johnson, 334 S.C. 78, 93, 512 S.E.2d 795, 803 (1999). And
see State v. Blurton, 342 S.C. 500, 512, 537 S.E.2d 291,
297 (Ct. App. 2000) reversed on other grounds by State v.
Blurton. 352 S.C. 203, 573 S.E.2d 802 (2002) (cumulative
error of Solicitor’s improper argument and improperly
excluded evidence warranted reversal).
This Court’s opinion demonstrates cumulative error.
Regarding the trial judge’s unconstitutional opening
remarks, this Court held, “These phrases may be
understood to place an obligation on the jury, independent
of the burden of proof, to determine the circumstances
surrounding the alleged crime and from those facts
alone render the verdict it believes best serves the jury’s
perception of justice.” Slip Opinion, pp. 3-4. As pointed
out in Section I(A) supra, the Solicitor exploited the trial
judge’s opening remarks during his closing arguments.
Then, in his final rebuttal argument, the Solicitor for the
first time argued facts outside the record and advanced a
theory about the circumstances surrounding the alleged
crime, thereby increasing the chances that the jurors would
render a verdict they believed best served their perception
of justice. This danger was enhanced by the Solicitor’s
appeal to the jurors to seek justice for decedent and her
family. rec. on App. 85, l 15-86, l 14; 824, l 16-825, l 6.
30a
Appendix B
Additionally, once this Court reconsiders the
trial court’s error in not instructing the jurors the
lesser-included offense of involuntary manslaughter,
an additional reason to apply the cumulative error
doctrine becomes apparent. The Solicitor framed the
trial as a choice between two competing hypothesizes,
but the trial judge did not provided the jurors with
the option of finding Mr. Beaty guilty of involuntary
manslaughter. As discussed in Section II(A) supra, once
the jurors concluded that Mr. Beaty was responsible
for his girlfriend’s death, they could find him guilty of
murder as the verdict they believed best served their
perception of justice, rather than holding the State to its
burden of proof. Once the failure to instruct involuntary
manslaughter is considered in connection with the trial
judge’s opening remarks and the Solicitor’s closing
arguments, the need to reverse is apparent.
This Court should rehear this appeal, reverse Mr.
Beaty’s convictions and sentences, and order a new trial.
III. CONCLUSION.
This Court should rehear this appeal, reverse Mr.
Beaty’s convictions and sentences, and order a new trial.
31a
Appendix B
Respectfully Submitted,
By: /s/ C. Rauch Wise
C. Rauch Wise
305 Main Street
Greenwood, SC 29646
(864) 229-5010
rauchwise@gmail.com
S.C. Bar No. 06188
E. Charles Grose, Jr.
The Grose Law Firm, LLC
404 Main Street
Greenwood, SC 29646
(864) 538-4466
charles@groselawfirm.com
S.C. Bar No. 66063
attorneys for appellant Michael Beaty
January 9, 2017
Greenwood, South Carolina
32a
Appendix
C
APPENDIx C — ORDER
GRaNTINg
PETITIoN
FoR REHEaRINg, FILED MaRcH 24, 2017
THE SUPREME COURT OF SOUTH CAROLINA
Appellate Case No. 2015-000718
The State,
Respondent,
v.
Michael Vernon BeatY, Jr.,
Appellant.
ORDER
A fter careful consideration of the petition for
rehearing, the petition for rehearing is granted. The
previous briefs filed by the parties will be utilized, with no
further briefing required. Counsel will be advised when
oral arguments have been rescheduled.
/s/___________________ J.
/s/___________________ J.
/s/___________________ J.
33a
Appendix C
We would deny the petition for rehearing.
/s/___________________ C.J.
/s/___________________ A.J.
Columbia, South Carolina
March 24, 2017
34a
Appendix D
APPENDIx D — AMENDED
ORDER GRaNTINg
REHEaRINg, FILED MaRCH 28, 2017
THE SUPREME COURT OF SOUTH CAROLINA
Appellate Case No. 2015-000718
The State,
Respondent,
v.
Michael Vernon BeatY, Jr.,
Appellant.
AMENDED ORDER
After careful consideration of the petitions for
rehearing, the petitions for rehearing are granted. The
previous briefs filed by the parties will be utilized, with no
further briefing required. Counsel will be advised when
oral arguments are rescheduled.
/s/___________________ J.
/s/___________________ J.
/s/___________________ J.
35a
Appendix D
We would deny the petitions for rehearing.
/s/___________________ C.J.
/s/___________________ A.J.
Columbia, South Carolina
March 28, 2017
36a
Appendix
e
APPENDIx E — State
v. Beaty,
S.C. SUPREME
COURT OP. NO. 27693, FILED APRIL 24, 2018 AND
FILED WITH TRIAL COURT ON MAY 31, 2018
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Appellate Case No. 2015-000718
The State,
Respondent,
v.
Michael Vernon BeatY Jr.,
Appellant.
Appeal from Laurens County
W. Jeffrey Young, Circuit Court Judge
Opinion No. 27693
June 15, 2017, Heard; April 25, 2018, refiled
AFFIRMED.
JUSTICE JAMES: Michael Vernon Beaty Jr.
(Appellant) was convicted of murdering Emily Anna
Asbill (Victim) and received a life sentence. We affirmed
Appellant’s conviction on December 29, 2016, in State v.
Beaty, Op. No. 27693, 2016 S.C. LExIS 413 (S.C. Sup.
Ct. filed Dec. 29, 2016) (Shearouse 2017 Adv. Sh. No. 1
37a
Appendix e
at 13). We subsequently granted the parties’ petitions
for rehearing and heard further argument. We affirm
Appellant’s conviction.
FACTUAL AND PROCEDURAL HISTORY
Appellant and Victim attended an evening party in
their hometown of Clinton. They decided to leave the
party between 9:00 pm and 10:00 pm and agreed to give
their friend Will Alexander a ride home. Appellant drove
the vehicle, Victim sat in the front passenger seat, and
Alexander sat in the backseat. At approximately 11:00
pm, Appellant rang the doorbell at his parents’ home and
asked his stepfather for help. When Appellant’s stepfather
approached the car, he found Victim unconscious on the
front passenger side floorboard and called 911. eMS
arrived shortly thereafter and found Victim sitting on
the floorboard with her head laid back on the passenger
seat. She was not breathing and did not have a pulse.
Appellant’s shirt was wrapped around Victim’s right arm.
Victim was found to have severe “road rash” on her right
and left arms and bruising to her neck. EMS transported
Victim to the hospital, where she was pronounced dead. An
autopsy revealed the cause of Victim’s death was asphyxia
due to strangulation.
At trial, the State introduced several of Appellant’s
statements to law enforcement into evidence. These
statements varied materially. Appellant initially suggested
Victim died of a self-inflicted cutting injury. Following law
enforcement’s receipt of the autopsy results, Appellant
voluntarily returned to the police station and repeated
38a
Appendix e
his earlier version of events. However, in this statement,
Appellant stated he had to undo Victim’s seatbelt when
he realized she was unconscious after arriving at his
parents’ home. When Appellant was informed of the
autopsy results, which showed Victim had been strangled
and had “road rash,” Appellant gave a written statement
explaining he and Victim had argued during the car ride,
Victim had opened the car door to jump out, and he had
grabbed her shirt to pull her back into the car.
At trial, the State and Appellant presented expert
witnesses to support their theories as to the events
leading up to Victim’s death. The State’s theory was that
Appellant strangled Victim with a USb cord after a fight
during which she tried to jump out of the moving car.
Appellant’s theory was that when Victim tried to jump out
of the moving car, he held her in by her tank top, which
caused the ligature marks on her neck and rendered her
unconscious, and that once he pulled her back into the
car, she succumbed to positional asphyxiation due to the
awkward position she assumed on the floorboard.
The pathologist who conducted the autopsy was called
by the State and testified the ligature marks on Victim’s
neck were visible on the front and sides of her neck but
not on the back of her neck. The pathologist identified a
USB cord found in the car as consistent with the ligature
marks and the abrasion on Victim’s neck. DNA analysis
of the USB cord showed Victim’s DNA on the middle of
the cord. The cord’s ends had a mixture of at least two
individuals’ DNA, with Victim being the major contributor
and Appellant being the minor contributor.
39a
Appendix e
A forensic pathologist also testified for Appellant
and stated the USb cord did not cause the injuries to
Victim’s neck and opined positional asphyxiation played
a role in Victim’s death. A mechanical engineer testified
for Appellant and stated the ligature marks on Victim’s
neck could have been caused by someone holding her up
by her tank top as she hung out of the car and that both
Victim’s abrasions and her blood found on the outside of
the car were consistent with this scenario.
Appellant was convicted of murder and received a life
sentence. Appellant timely filed a notice of appeal, and
we certified the case from the court of appeals pursuant
to Rule 204(b), SCACR. Appellant raised the following
issues: (1) whether the State presented substantial
circumstantial evidence proving Appellant committed
murder; (2) whether the trial judge erred by denying
Appellant’s request to charge the lesser-included offense
of involuntary manslaughter; (3) whether the trial judge
erred in using certain language in his opening remarks
to the jury; (4) whether the trial judge erred during the
closing argument stage in not (a) requiring the State
to open fully on the law and the facts of the case and
(b) limiting the State’s final closing solely to reply to
new arguments presented during Appellant’s closing
arguments; (5) whether the trial judge erred in charging
the law of circumstantial evidence as set forth in State
v. Logan, 405 S.C. 83, 747 S.E.2d 444 (2013); (6) whether
the trial judge erred in excluding testimony concerning
a prior incident when Victim threatened to jump from an
automobile; (7) whether the trial judge erred in denying
one of Appellant’s voir dire requests; and (8) whether a
40a
Appendix e
new trial should be ordered based on the cumulative error
doctrine.
In affirming Appellant’s conviction in our prior
opinion, we found two of the issues Appellant raised
merited discussion. State v. Beaty, Op. No. 27693, 2016 S.C.
leXIS 413 (S.C. Sup. Ct. filed Dec. 29, 2016) (Shearouse
2017 Adv. Sh. No. 1 at 14-17). First, we addressed the trial
judge’s use of certain language in his opening remarks
to the jury and the content requirements and order of
closing argument. We affirmed Appellant’s conviction but
instructed trial judges to avoid language urging jurors to
“search for the truth,” find “true facts,” and render a “just
verdict.” Second, we adopted a rule for closing argument
in criminal cases, requiring the party with the right to
open and close to open fully on the law and facts and
limit its reply to those matters raised by the other party
in its closing argument. We affirmed all of Appellant’s
remaining issues under Rule 220(b), SCACR.
We granted the parties’ petitions for rehearing and
have heard further argument. We issue this opinion
to again address both the trial judge’s use of certain
language in his opening remarks to the jury and the rules
governing the content and order of closing argument.1 We
affirm Appellant’s conviction.
1. All remaining issues are affirmed pursuant to rule 220,
SCACR. State v. Bailey, 298 S.C. 1, 377 S.E.2d 581 (1989); State v.
Phillips, 416 S.C. 184, 785 S.E.2d 448 (2016); State v. Sterling, 396
S.C. 599, 723 S.E.2d 176 (2012); State v. Scott, 414 S.C. 482, 779 S.E.2d
529 (2015); State v. Marin, 415 S.C. 475, 783 S.E.2d 808 (2016); State
v. Smith, 230 S.C. 164, 94 S.E.2d 886 (1956); State v. vang, 353 S.C.
78, 577 S.E.2d 225 (Ct. App. 2003).
41a
Appendix e
DISCUSSION
I.
Trial Judge’s Opening Remarks
After the jury was sworn, the trial judge gave
preliminary remarks to the jury. The trial judge outlined
the roles, duties, and responsibilities of the lawyers and
the jury and explained trial procedure. During these
remarks, the judge stated:
This . . . trial . . . is a search for the truth in
an effort to make sure that justice is done.
Searching for the truth and ensuring that
justice is done is often slow, deliberate, and
repetitive.
[The attorneys] are sworn to uphold the
integrity and the fairness of our judicial system
and to help you as jurors to search for the truth.
You also just took an oath to listen to the
evidence in this case and reach a fair and just
verdict and you are expected to be professional,
reasonable and ethical.
You the jurors find [the facts] from the testimony
from a witness from the witness stand or any
other evidence, and after hearing that evidence
you will deliberate and render a true and just
verdict under the solemn oath that you just
took as jurors.
42a
Appendix e
In determining what the true facts are in
this case you must decide whether or not the
testimony of a witness is believable.
After argument of counsel and the charge on
the law by me, you will then be in a position to
determine what the true facts are and apply
those facts to the law and thus render a true
and just verdict.
Appellant objected to the use of the phrases
“search[ing] for the truth,” “true facts,” and “just
verdict.” Appellant argued these phrases were especially
improper when linked with the State’s “misstatement”
of circumstantial evidence and reasonable doubt in its
opening statement, and because the State had informed
the jury that it would have to pick between two competing
theories. The State acknowledged to the trial judge that
the “search for the truth” language is disfavored but
argued that its use here was not reversible error. The
trial judge denied Appellant’s request for a curative
instruction, concluding that his remarks were merely an
opening comment and not a jury instruction.
Appellant relies upon State v. Aleksey, 343 S.C. 20, 538
S.e.2d 248 (2000), in which we held that jury instructions
on reasonable doubt which also charge the jury to “seek
the truth” or “search for the truth” run the risk of
unconstitutionally shifting the burden of proof to the
defendant. In Aleksey, we found there was no reversible
error because the “seek the truth” language was charged
in conjunction with the credibility of witnesses charge,
43a
Appendix e
and not with either the reasonable doubt or circumstantial
evidence charges. Id. at 27-29, 538 S.E.2d at 251-53; cf.
State v. Daniels, 401 S.C. 251, 737 S.E.2d 473 (2012)
(instructing discontinuance of charge that jury’s duty is
to return a verdict that is just and fair to all parties).
As the trial judge noted, the disputed comments can
be distinguished from Aleksey because they were a mere
statement to the jury and not a charge on the law. Further,
the remarks were not linked to either the reasonable doubt
or the circumstantial evidence charges as was condemned
in Aleksey. However, we agree with Appellant that a trial
judge should refrain from informing the jury, whether
through comments or through a charge on the law, that its
role is to search for the truth, or to find the true facts, or to
render a just verdict.2 These phrases could be understood to
place an obligation on the jury, independent of the burden
of proof, to determine the circumstances surrounding the
alleged crime and from those facts alone render the verdict
the jury believes best serves its perception of justice. We
instruct trial judges to avoid these terms and any others
that may divert the jury from its obligation in a criminal
case to determine whether the State has proven the
defendant’s guilt beyond a reasonable doubt. Although there
was error here, our review of the entirety of the judge’s
opening comments and the entire trial record convinces
us that Appellant has not shown prejudice from this error
sufficient to warrant reversal. Compare State v. Coggins,
210 S.C. 242, 245, 42 S.E.2d 240, 241 (1947) (providing trial
2. We acknowledge the general sessions benchbook this Court
previously supplied to all circuit judges contained language virtually
identical to the disputed language employed by the trial judge.
44a
Appendix e
judge’s choice of words and comments, while not “happy,”
did not require reversal).
II. Closing Arguments
A.
Background
During trial, before closing arguments, Appellant
requested the trial judge to require the State to open
fully on the law and facts of the case and then reply only
to new matter raised by Appellant in his closing argument.
Appellant stated to the trial judge, “I understand [the
State is] going to open fully on the law and the facts, and
not just open on some of the facts, but fully on the facts
to explain their theory of the case so that --.” The trial
judge then interrupted and said, “[The State] will open
and explain and then they will have final argument which I
will allow them to go int[o] what they want to talk about.”
The solicitor responded, “[W]e believe the law in the state
right now is the State [has the option] to bifurcate or to
give one argument. We honestly would prefer to give one
argument, but if [Appellant] demands that we open and
close, I don’t have any problem with it.” The trial judge
replied, “You can do it either way.”
The State proceeded to open on the law and gave the
facts only a cursory review. Appellant then gave his closing
argument and stated to the jury that when he concluded
his argument, the State would give a final argument and
reply to everything he said. Appellant then informed the
jury:
45a
Appendix e
Then what’s going to happen is this. The State’s then
going to come up with their real theory. How the arm got
scratched, exactly how this alleged strangulation took
place, and we have to sit mute. We will not have the chance
to come back and refute that, and yet they’ll have a chance
to refute everything we’ve laid out there. That was their
choice as to how they chose to do the closing arguments.
I can’t make them do it any differently.
During its reply argument, 3 the State reviewed the
inconsistencies in the statements Appellant gave to law
enforcement. The State also argued the murder took place
in Appellant’s car on the street in front of his parents’
house and that Appellant murdered Victim because she
was screaming and Appellant wanted to “shut her up.”
Appellant argues this was improper reply argument
because he mentioned none of these points during his
closing argument.
Appellant argued the State’s reply argument “was
nothing but one big sandbag, which we discussed in
chambers”4 and constituted a violation of his due process
rights. Appellant asserted the State presented factual
scenarios for the first time in its reply argument and
3. In this opinion, if used in conjunction with the State’s second
closing argument, the terms “the reply,” “reply argument,” “final
argument,” and “last argument” are synonymous.
4. When used as a transitive verb, Merriam—Webster defines
“sandbag” as “to conceal or misrepresent one’s true position,
potential, or intent especially in order to gain an advantage over.”
Merriam—Webster Dictionary, http://www.merriam-webster.com/
dictionary/sandbag.
46a
Appendix e
requested either a mistrial or the opportunity to reply
to the State’s argument. The trial judge denied both
requests.
In this appeal, Appellant contends the trial judge
erred in refusing to require the State to open fully on
the law and facts in its closing argument, in refusing
to limit the State’s reply argument to matters raised
by Appellant’s counsel in his closing argument, and in
refusing to allow him to reply to new matter raised by
the State in its reply argument. Appellant claims these
errors violated his rights under the due process clauses
of the South Carolina and United States Constitutions. 5
In our prior opinion, we agreed in part, holding that
in criminal trials, “where the party with the ‘middle’
argument requests, the party with the right to the first and
last closing argument must open in full on the law and the
facts, and in reply may respond in full to the other party’s
argument but may not raise new matter.” Nevertheless, we
concluded Appellant was not entitled to a new trial, as any
error in the trial judge’s denial of his motion to require the
State to open in full on the facts and the law and to limit
its reply was harmless beyond a reasonable doubt. Having
revisited these issues upon rehearing, we now address the
history of the rules governing the content and order of
closing argument in criminal cases, and we address our
authority to promulgate new rules governing the same.
We also address Appellant’s due process argument and
conclude his conviction must be affirmed.
5. Due process requires no person shall be deprived of life,
liberty, or property without due process of law. U.S. Const. amend.
xIV § 1; S.C. Const. art. I, § 3.
47a
Appendix e
B. Rules Governing Content and Order of
Closing Argument
Prior to 1802, the practice regarding closing
arguments in all public prosecutions on behalf of the
State was to allow the State the privilege of opening and
concluding the arguments in every case addressed to
the jury. See State v. Brisbane, 2 S.C.L. (2 Bay) 451, 453
(1802). This partiality shown to prosecutors was a “relict
of the kingly prerogative.” Id. However, in Brisbane, the
Constitutional Court of Appeals of South Carolina (a
predecessor to this Court) formulated a rule governing
closing argument in criminal courts, holding that in all
cases in which a defendant calls no witnesses, he should
have the privilege of concluding to the jury. Id. at 454.
In State v. Huckie, Prince Huckie and his codefendant
paris bailey were jointly indicted and tried for burglary
and larceny. 22 S.C. 298, 298-99 (1885). Following the
State’s presentation of evidence, Huckie declined to offer
evidence in his defense, but Bailey called one witness. Id.
at 299. Huckie argued it was error to deny him the last
argument because he did not offer any evidence in his
own behalf. Id. We noted there was no express rule giving
the defendant a right to reply when the defendant offered
no evidence but stated, “[R]esting upon the common law,
such has been the practice.” Id. We concluded that when
a defendant in a criminal prosecution offers no evidence,
he is entitled to the last argument; however, when two
or more defendants are jointly tried, if any codefendant
introduces evidence, the State is entitled to the reply
48a
Appendix e
argument. Id. at 300-01.6 See also State v. Mouzon, 326
S.C. 199, 485 S.E.2d 918 (1997); State v. Crowe, 258 S.C.
258, 188 S.E.2d 379 (1972).
In State v. Garlington, 90 S.C. 138, 144-45, 72 S.E.
564, 566 (1911), we held that in cases in which no defendant
introduces evidence, the defendant(s) have the right to
open and close during closing argument but may waive
the right to both arguments or may waive the right to
open and instead present full argument to the jury after
the State’s closing argument. In State v. Gellis, 158 S.C.
471, 485-86, 155 S.E. 849, 855 (1930), the defendant did not
call any witnesses in his own defense, but he introduced
letters and telegrams into evidence through a prosecution
witness. Holding the defendant did not have the right
to the final argument, we clarified that “if a defendant
offers any evidence on trial of the case, the state is not
deprived of its general right to the opening and concluding
arguments.” Id. at 486-87, 155 S.E. at 855 (emphasis
added). Consequently, the loss of the right to make
the final argument depends upon whether a defendant
introduces any evidence at all, not upon whether he calls
any witnesses.
In State v. Atterberry, 129 S.C. 464, 469, 124 S.E. 648,
650 (1924), the defendant was indicted for possession of
“a quantity of whisky” in violation of the Prohibition Law
and was found guilty by a jury. For perhaps the first time,
we applied a codified court rule to closing arguments in a
6. The rationale behind this particular rule, as explained in
Huckie, is curious but irrelevant to the instant case.
49a
Appendix e
criminal trial. The defendant introduced evidence during
the trial, and prior to closing arguments, he demanded the
trial court to require the State to open in full on the facts
and the law. Id. at 471, 124 S.e. at 651. The trial judge
refused the defendant’s request and allowed the State to
fully waive its opening argument. Id. At that time, Circuit
Court Rule 59 provided, “The party having the opening
in an argument shall disclose his entire case; and on his
closing shall be confined strictly to a reply to the points
made and authorities cited by the opposite party.” We
explained Rule 59 was clear and mandatory and held the
trial court’s failure to require the State to open fully on
the law and facts was reversible error. Atterberry, 129 S.C.
at 471, 124 S.E. at 651. Noting the “wisdom of this rule”
was most clearly evident in circumstantial evidence cases,
we explained that if the rule did not require the State to
open in full on the facts and the law, an able prosecutor
would be able to present a connection of circumstances
to the jury during his last argument that the defendant
would not be allowed to rebut. Id.
Subsequent to Atterberry, Circuit Court Rule 59 and
any wisdom it possessed were replaced by Circuit Court
Rule 58, which provided in relevant part, “The party
having the opening in an argument shall disclose fully
the law upon which he relies if demanded by the opposite
party.” (emphasis added). We addressed Rule 58 in State
v. Lee, 255 S.C. 309, 178 S.E.2d 652 (1971), overruled in
part on other grounds by State v. Belcher, 385 S.C. 597,
685 S.E.2d 802 (2009). In Lee, the defendant introduced
evidence to the jury. At the close of the trial, the defendant
requested the trial judge to require the State to open fully
50a
Appendix e
on the law and the facts during its closing argument. Id.
at 317, 178 S.e.2d at 656. The trial judge required the
State to open on the law but refused to require the State
to open on the facts. Id. We held “the trial judge, under
the changed rule, was correct in holding that a solicitor
is no longer required to make an opening argument to
the jury on issues of fact.” Id. at 318, 178 S.E.2d at 656.
There was no discussion of due process concerns or “the
wisdom” inherent in the former Rule 59.7
On July 1, 1985, the South Carolina Rules of Civil
Procedure went into effect. See Rule 86, SCRCP. Rule
1, SCRCP, limits the application of those rules to civil
cases. 8 Rule 85(b), SCRCP, also effective as of July 1, 1985,
retained ten enumerated criminal practice rules contained
in the Appendix of Criminal Practice Rules; according
to Rule 85(b), SCRCP, those ten rules were renumbered
as Criminal Practice Rules 1 through 10 and were to
“continue in full force and effect.” Circuit Court Rule 58
was not one of those ten retained rules. Rule 85(c), SCRCP,
7. Both Rule 59 and Rule 58 were part of an appendix to
the Code of Civil Procedure. In his concurrence in Atterberry,
Acting Associate Justice Aycock observed that nothing limited the
application of these rules to civil cases. 129 S.C. at 473, 124 S.E. at
651. Circuit Court Rules 59 and 58, while they were in effect, were
properly applied to criminal cases.
8. rule 43(j), SCrCp, controls the content and order of argument
in civil cases. This rule essentially provides that the plaintiff shall
have the right to open and close at the trial of the case and must open
in full, and in reply may respond in full but may not introduce any
new matter. This rule has never been applied to criminal cases, and
Rule 1, SCRCP, expressly prohibits such application.
51a
Appendix e
also effective July 1, 1985, provides that all other Circuit
Court Rules were repealed as of that date. Consequently,
Circuit Court rule 58 no longer existed as a codified rule
as of July 1, 1985.
On September 1, 1988, the South Carolina Rules
of Criminal Procedure went into effect. See Rule 40,
SCRCrimP. No rule contained within the South Carolina
Rules of Criminal Procedure addresses the content and
order of closing arguments in criminal trials. Rule 39,
SCRCrimP, expressly repealed all existing Criminal
Practice Rules. With the repeal of Circuit Court Rule
58 by Rule 85(c), SCRCP, and with the adoption of Rule
39, SCrCrimp, there is no codified or otherwise duly
adopted court rule governing the content and order of
closing arguments in criminal cases in which a defendant
introduces evidence. However, Rule 37, SCRCrimP,
provides in part, “In any case where no provision is made
by statute or these rules, the procedure shall be according
to the practice as it has heretofore existed in the courts
of the State.” Rule 37, SCRCrimP (emphasis added). In
the instant case, both the content and order of closing
arguments were in keeping with repealed Circuit Court
Rule 58, which required the State to open only on the
law. Lee, 255 S.C. at 318, 178 S.e.2d at 656. We must first
determine whether, almost thirty years after its adoption,
Rule 37 preserves the application of repealed Circuit
Court Rule 58 in criminal cases in which a defendant
introduces evidence. We hold it does not.
This Court cannot simply assume that from July 1,
1985 through the trial of the instant case, the criminal
52a
Appendix e
trial courts of this State have uniformly continued to
follow repealed Circuit Court Rule 58 to the extent that
it remains the “practice as it has heretofore existed” in
criminal cases in which the defendant introduces evidence.
We have no effective way to ascertain the prevailing
practices of current and past trial judges. We can only
conclude that absent a published court rule or a defined
common law rule, individual trial judges have developed
their own practices governing closing argument in
cases in which a defendant introduces evidence. That is
an untenable approach to such an important phase of a
criminal trial.
One may inquire whether this Court may simply
create a much-needed practice or procedural rule simply
by exercising its authority to alter the common law. This
is a reasonable inquiry, especially since the courts of
this State attend on a daily basis to the notions of order,
predictability, and due process in criminal proceedings.
Indeed, “[t]he common law changes when necessary to
serve the needs of the people. We have not hesitated to act
in the past when it has become apparent that the public
policy of the State is offended by outdated rules of law.”
Russo v. Sutton, 310 S.C. 200, 204, 422 S.E.2d 750, 753
(1992) (citations omitted). See also Marcum v. Bowden, 372
S.C. 452, 643 S.E.2d 85 (2007) (altering the common law
of social host liability); Nelson v. Concrete Supply Co., 303
S.C. 243, 399 S.E.2d 783 (1991) (abolishing contributory
negligence); Hossenlopp v. Cannon, 285 S.C. 367, 329
S.E.2d 438 (1985) (observing that since the dog-bite law
was of common law origin, it could be changed by common
law mandate); McCall v. Batson, 285 S.C. 243, 329 S.E.2d
741 (1985) (abolishing sovereign immunity).
53a
Appendix e
In the foregoing cases, we certainly did alter the
common law and were within our authority to do so.
However, those cases involved substantive common law,
not common law procedural rules. We are prohibited on
two fronts from promulgating a new rule in the course of
deciding the issues in this case. First, this Court does not
have the power to adopt new rules of procedure for future
trials by writing opinions to decide cases. Instead, when
we decide an appeal from a criminal conviction—as we do
here—our power is limited to correcting errors of law.9
Second, the South Carolina Constitution limits this
Court’s power to promulgate rules governing practice
and procedure in the courts of this State. Before 1973, the
South Carolina Constitution did not address in any manner
the power of this Court to implement rules of practice and
procedure in the courts of this State. On April 4, 1973,
article V, section 4 of the South Carolina Constitution was
amended to grant power to this Court, subject to statutory
law, to “make rules governing the practice and procedure
in all such courts [in the unified judicial system].” S.C.
Const. art. V, § 4. While this amendment was in effect,
we did not make any rules governing the content and
order of closing argument in criminal cases, and Circuit
Court Rule 58 and other Circuit Court Rules carried the
day until July 1, 1985, when the South Carolina Rules of
Civil Procedure came into being, with Rule 85, SCRCP,
preserving some criminal practice rules and repealing
others, including Circuit Court Rule 58.
9. See S.C. C onst. art. V, § 5 (“The Supreme Court shall
constitute a court for the correction of errors at law under such
regulations as the General Assembly may prescribe.”).
54a
Appendix e
On February 26, 1985, article V, section 4A of the
South Carolina Constitution took effect. It remains in
effect today and provides:
All rules and amendments to rules governing
practice and procedure in all courts of this
State promulgated by the Supreme Court
must be submitted by the Supreme Court to
the Judiciary Committee of each House of the
General Assembly during a regular session, but
not later than the first day of February during
each session. Such rules or amendments shall
become effective ninety calendar days after
submission unless disapproved by concurrent
resolution of the General Assembly, with the
concurrence of three-fifths of the members of
each House present and voting.
S.C. Const. art. V, § 4A (emphasis added).
On January 28, 2016, we initiated the prescribed
legislative process by proposing an amendment to the
South Carolina Rules of Criminal Procedure to add Rule
21. See Re: Amendments to the South Carolina Rules of
Criminal Procedure, 2014-002673 (S.C. Sup. Ct. Order
dated Jan. 28, 2016). Proposed Rule 21 stated, “Closing
arguments in all non-capital cases shall proceed in
the following order: (a) the prosecution shall open the
argument in full; (b) the defense shall be permitted to
reply; and (c) the prosecution shall then be permitted to
reply in rebuttal.” Id. However, by concurrent resolution,
the General Assembly, as was its prerogative, rejected
55a
Appendix e
proposed Rule 21 in April 2016. See S. Con. Res. 1191,
121st Gen. Sess. (S.C. 2016).
While we acknowledge and respect the limitations
placed on this Court’s power pursuant to article V, section
4A of our constitution, in order for our criminal court
system to operate efficiently, effectively, and consistently,
clearly stated rules governing the content and order
of closing argument are required. Our current closing
argument rules consist of the following patchwork:
Pursuant to the common law rule pronounced in Brisbane
and as clarified in Garlington, in cases in which no
defendant introduces evidence, the defendant(s) have the
right to open and close, but may waive the right to both
or may waive opening and present full argument after the
State’s closing argument. Pursuant to the common law
rule set forth in Huckie, if two or more defendants are
jointly tried, if any one defendant introduces evidence,
the State has the final closing argument. pursuant to
the common law rule as clarified in Gellis, in cases in
which a defendant introduces evidence of any kind, even
through a prosecution witness, the State has the final
closing argument. However, in cases in which the State
is entitled to the reply argument, there is no common law
or codified rule as to whether the State must open in full
on the law, or the facts, or both, or neither, and there is no
rule governing the content of the State’s reply argument.
This case falls within the last category. Appellant
introduced evidence during trial. Under our holdings in
Huckie and Gellis, the State was entitled to the reply
argument. Appellant asked the trial court to require the
56a
Appendix e
State to open in full on the facts and the law and asked
the trial court to restrict the State’s reply argument to
rebuttal to matters raised by Appellant in his closing
argument. The trial court denied these requests and
essentially followed repealed Circuit Court Rule 58,
allowing the State to open on the law and give the facts
a cursory review. Appellant then presented his closing
argument. After the State made its reply argument,
Appellant asked to be allowed to rebut what he argued was
new matter raised by the State. The trial court denied this
request as well. Appellant claims his due process rights
were violated by this procedure.
C. Due Process
While this Court’s authority to promulgate rules is
restricted by article V, section 4A of the South Carolina
Constitution, we retain the authority to determine—on a
case-by-case basis—whether a defendant’s due process
rights have been violated by procedural methods employed
during a trial. Stated another way, our authority to rectify a
specific due process violation falls within our constitutional
power to correct errors of law and trumps our inability
to adopt a clearly stated practice or procedural rule. We
must therefore determine whether Appellant’s due process
rights were violated in this instance.
“Due Process is not a technical concept with fixed
parameters unrelated to time, place, and circumstances;
rather it is a f lexible concept that calls for such
procedural protections as the situation demands.” State
v. Legg, 416 S.C. 9, 13, 785 S.E.2d 369, 371 (2016). In any
57a
Appendix e
case, procedural due process contemplates a fair trial.
Id. This concept applies to closing arguments. South
Carolina case law focuses upon allegedly inflammatory
or unsupported content of the State’s closing argument,
not upon whether the State must open in full on the facts
and not upon reply arguments which have a basis in the
record but to which a defendant is not allowed to respond.
Generally, “[i]mproper comments [made during closing
argument] do not automatically require reversal if they
are not prejudicial to the defendant, and the appellant
has the burden of proving he did not receive a fair trial
because of the alleged improper argument.” Humphries
v. State, 351 S.C. 362, 373, 570 S.E.2d 160, 166 (2002).
The relevant inquiry is whether the State’s comments
“so infected the trial with unfairness as to make the
resulting conviction a denial of due process.” Id. “A denial
of due process occurs when a defendant in a criminal
trial is denied the fundamental fairness essential to the
concept of justice.” State v. Hornsby, 326 S.C. 121, 129,
484 S.E.2d 869, 873 (1997).
Appellant cites Bailey v. State, 440 A.2d 997, 1003
(Del. 1982), in which the Delaware Supreme Court held
the trial court abused its discretion in permitting the
State to utilize the “sandbagging” trial strategy in its
reply argument. Appellant acknowledges there is no rule
in South Carolina that prohibits “sandbagging,” but he
asserts his due process rights were violated because the
State was allowed, in its reply argument, to present to the
jury for the first time “two crucial theories” and “an out
of context statement of Appellant.”
58a
Appendix e
Appellant’s defense at trial was that he accidentally
strangled Victim when he pulled her back into the moving
vehicle by pulling on her tank top, thereby rendering her
unconscious, with Victim then succumbing to positional
asphyxiation on the front passenger floorboard. The
State’s theory of the case was that Appellant strangled
Victim to death with the USB cord found in Appellant’s
car. The Appellant’s parents’ driveway as a potential
scene of the murder was put before the jury through
the State’s witnesses—the first responders who found
Victim deceased in the driveway of Appellant’s parents’
house. Appellant contends the first new theory argued
by the State in its reply argument dealt with the location
of the murder, i.e., that Appellant strangled Victim in
Appellant’s car in the driveway in front of Appellant’s
parents’ house. Appellant claims his due process rights
were violated when the State was permitted, in its reply,
to argue this point to the jury. Appellant contends that
at the least, he should have been permitted to respond.
We first note that the State’s presentation of this theory
during its reply was arguably a proper response to the
theory Appellant advanced in his closing argument.
Whatever the case, the question of exactly where
Victim’s death occurred was largely inconsequential
to the question of whether Appellant murdered Victim
or whether Victim instead died of causes unrelated to
Appellant’s criminal conduct.
Appellant contends the second new theory argued
by the State in its reply was that Appellant murdered
Victim because Victim was screaming at Appellant during
the drive home, and Appellant wanted to “shut her up.”
59a
Appendix e
The fact that the two were in an argument and Victim
was screaming at Appellant was entered into evidence
through Appellant’s own statement to law enforcement.
Again, the State’s advancement of this theory in reply
was arguably a proper response to the sequence of events
argued by Appellant in his closing argument. Even if it
could be considered new matter, we conclude the State’s
advancement of this theory was relatively insignificant.
During its reply argument, the State also presented
a PowerPoint summary of one of Appellant’s statements
to law enforcement. Appellant argues the State took the
statement out of context when it “implied that [Appellant]
said that [Victim] made it seem like I made her want
to hurt herself.” Appellant’s actual statement to law
enforcement was, “Yet a little before or at this point, I
believe, that [Victim] made it seem like I had made her
want to hurt herself, which is common for us when we
argue.” We conclude this minor point was insignificant to
the jury’s consideration of the issues.
While the State perhaps did not restrict its reply
argument to matters raised by Appellant, and while
Appellant was not allowed to respond to the foregoing
three points, we conclude Appellant did not suffer
prejudice as a result. See Humphries, 351 S.C. at 373,
570 S.E.2d at 166 (errors in closing argument “do not
automatically require reversal if they are not prejudicial
to the defendant, and the appellant has the burden of
proving he did not receive a fair trial because of the
alleged improper argument”); id. (noting the relevant
inquiry is whether the State’s comments “so infected the
60a
Appendix e
trial with unfairness as to make the resulting conviction
a denial of due process”). Neither the State’s reply
arguments on these three points nor the trial court’s
refusal to allow Appellant to respond denied Appellant
“the fundamental fairness essential to the concept of
justice.” See Hornsby, 326 S.C. at 129, 484 S.E.2d at 873.
Therefore, we conclude Appellant has not established a
due process deprivation.
CONCLUSION
We instruct trial judges to omit any language, whether
in remarks to the jury or in an instruction, which might
have the effect of lessening the State’s burden of proof in
a criminal case. Such language includes, but is not limited
to, any language suggesting to the jury that its task is
to “search for the truth” or to find “true facts,” or that
the jury should render a “just verdict.” However, we hold
Appellant has failed to show prejudice from these remarks
sufficient to warrant reversal.
Article V, section 5 of the South Carolina Constitution
limits this Court’s authority to correcting errors of law
and does not empower us to promulgate a procedural
rule for future cases by simply issuing an opinion.
Article V, section 4A, of the South Carolina Constitution
prohibits this Court from adopting any rules of practice
and procedure—even a much-needed rule governing the
practice and procedure of closing arguments in criminal
cases—without first going through the prescribed
legislative process.
61a
Appendix e
Currently, there is no rule governing the content and
order of closing arguments in criminal cases in which a
defendant introduces evidence, except for the “constitutional
rule” that a defendant’s right to due process cannot be
violated at any stage of a trial. Consequently, trial judges
must, on a case-by-case basis, ensure that a defendant’s due
process rights are not violated during the closing argument
stage. Absent authority to formally adopt procedural rules,
our authority—and the authority of the trial court—is but
to address due process considerations as they arise. In
cases in which a defendant introduces evidence, trial judges
clearly have the authority to require the State to open in full
on the facts and the law and have the authority to restrict
the State’s reply argument to matters raised by the defense
in closing. This authority remains in keeping with the trial
judge’s authority to ensure that a defendant’s due process
rights are not violated during a criminal trial. We remain
mindful of the need for clearly articulated rules governing
the content and order of closing arguments in cases in which
a defendant introduces evidence. The uncertainty resulting
from the absence of such rules is unfortunate. We hope the
day will soon come when such rules are firmly in place.
We hold Appellant has not established prejudice
resulting from the trial judge’s opening remarks, and we
hold Appellant was not denied due process during the
closing argument stage of the trial. Appellant’s conviction
is therefore
AFFIRMED.
BEATTY, C.J., KITTREDGE, HEARN and FEW, JJ.,
concur.
62a
Appendix F
APPENDIx F — PETITION
FOR REHEARING,
FILED MAY 11, 2018
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Appellate Case No. 2015-000718
S.C. Supreme Court Opinion No. 27693
THE STATE,
Respondent,
v.
MICHAEL VERNON BEATY, JR.,
Appellant.
APPEAL FROM LAURENS COUNTY
Court of General Sessions
W. Jeffery Young, Circuit Court Judge
PETITION FOR REHEARING
Pursuant to Rule 221, SCACR, the appellant,
Michael Beaty, petitions for rehearing because this Court
overlooked or misapprehended the points discussed in
this petition. Once again, this Court discussed only two
of the issues raised in Mr. Beaty’ s brief. The two issues
discussed in this Court’s opinion leave unaddressed two
federal questions, which are:
63a
Appendix F
1)
Does this Court’s standard for determining
harmless constitutional error depart from the
mandates of Chapman v. California, 286 U.S.
18, 24 (1967)?
2)
Does Due Process confer a right for an accused
to have a full and fair opportunity to respond to
the prosecution’s best argument, meaning the
State must open in full on the facts and the law
and restrict its reply argument to matters raised
by the defense in closing?
After addressing these two issues, this petition will
address several of the issues not discussed in this Court’s
opinion.
I. ISSUES ADDRESSED IN
THE COURT’S OPINION.
A. Opening Remarks.
This Court issued its first opinion in this case on
December 29, 2016. On January 9, 2017, Mr. Beaty
petitioned this Court for rehearing. By order dated March
24, 2017, amended on March 28, 2018, this Court granted
Mr. Beaty’s petition. On April 25, 2018, this Court reissued
its opinion. Although making stylistic changes to the
section captioned “Trial Judge’s Opening Remarks,” the
substance of the opinion is the same.
In both opinions, this Court agreed that the trial
judge, by “use of terms ‘search for the truth,’ ‘true facts,’
64a
Appendix F
and ‘just verdict,”’ ignored this Court’s precedent in State
v. Daniels, 401 S.C. 251, 256, 737 S.E.2d 473, 475 (2012)
(instructing discontinuance of charge that jury’s duty is to
return a verdict that is just and fair to all parties), State
v. Alekesy, 343 S.C. 20, 538 S.E.2d 248 (2000), and other
cases relied on by Mr. Beaty in his Brief of Appellant, at
pp. 28-37, and Reply Brief, at pp. 12-14. This Court found
a constitutional violation and once again held, “These
phrases could be understood to place an obligation on the
jury, independent of the burden of proof, to determine the
circumstances surrounding the alleged crime and from
those facts alone render the verdict the jury believes best
serves its perception of justice.” Slip Opinion at 3. After
admonishing trial courts to avoid using these terms, this
Court once again concluded:
Although there was error here, our review of
the entirety of the judge’s opening comments
and the entire trial record convinces us that
Appellant has not shown prejudice from this
error sufficient to warrant reversal. Compare
State v. Coggins, 210 S.C. 242, 245, 42 S.E.2d
240, 241 (194 7) (providing trial judge’s choice
of words and comments, while not “happy,” did
not require reversal).
Slip Opinion at 3. This Court once again found Mr. Beaty
was prejudiced by the trial judge’s unconstitutional
comments but still did not explain why that prejudice was
not sufficient to warrant a new trial, even after Mr. beaty’s
initial petition for rehearing pointed out this error.
65a
Appendix F
This Court once again overlooked the Solicitor
exploiting the trial judge’s remarks in his closing argument,
Rec. on App. 772, ll4-12, even after Mr. Beaty’ s petition
for rehearing pointed out this error. This Court continues
to acknowledge the “State had informed the jury that it
would have to pick between two competing theories.” Slip
Opinion at 3. Indeed, the parties did present the jurors
with two competing theories, neither of which absolved
Mr. Beaty of Emily Anna Asbill’s death. Relying entirely
on circumstantial evidence, the prosecution argued that
Mr. Beaty intentionally strangled his girlfriend with a
USB cord. Relying on his statement to investigators,
expert testimony, and circumstantial evidence, Mr. Beaty
established his girlfriend tried to jump out of a moving car
and he failed to safely secure her inside the car, resulting
in her death by positional asphyxiation. The jurors’ role
never was to determine which competing theory best
explained the circumstances of the crime or to render
a verdict they believed best served their perception of
justice. Rather, the jurors’ role was to determine whether
the State met its burden of proving Mr. Beaty guilty of
murder beyond a reasonable doubt. In re Winship, 397
U.S. 358 (1990). “Where the charge contains both the
correct and incorrect law, an appellate court must assume
the jury followed the incorrect charge.” State v. Buckner,
341 S.C. 241,247,534 S.E.2d 15, 18 (Ct. App. 2000). The
unconstitutional remarks, when considered with the
Solicitor’s opening statement and closing arguments,
increase the need to apply this presumption.
This Court, once again, did not apply the proper
standard of review for a harmless constitutional violation
when it held:
66a
Appendix F
Although there was error here, our review of
the entirety of the judge’s opening comments
and the entire trial record convinces us that
Appellant has not shown prejudice from this
error sufficient to warrant reversal. Compare
State v. Coggins, 210 S.C. 242, 245, 42 S.E.2d
240, 241 (1947) (providing trial judge’s choice
of words and comments, while not “happy,” did
not require reversal).
Slip Opinion at 3 (emphasis added). This Court, thus,
continues to require Mr. Beaty to not only show prejudice
but also to show prejudice sufficient to warrant reversal,
even after Mr. Beaty’s initial petition for rehearing
pointed out this error. As set forth in Mr. Beaty’ s initial
petition for rehearing, under the proper standard of
review, “before a federal constitutional error can be held
harmless, the court must be able to declare a belief that
it was harmless beyond a reasonable doubt.” Chapman v.
California, 286 U.S. 18, 24 (1967). The burden, therefore,
is on this Court to explain why the error is harmless
beyond a reasonable doubt and not on Mr. Beaty to explain
why a prejudicial, constitutional error is sufficient to
warrant reversal.
This Court’s continued reliance on Coggins is
misplaced for two reasons. First, it was decided two
decades before Chapman and, therefore, does not
represent the appropriate standard of review for
determining a harmless constitutional violation. Second,
the trial court’s “[un]happy choice of words” in Coggins
“did not constitute [an] objectionable expression of the
67a
Appendix F
opinion of the judge.” Id. 210 S.C. at 245, 42 S.E.2d at 241.
Thus, this Court once again erred by applying a standard
of review from a case where no constitutional violation
occurred.
This Court should rehear this appeal, reverse Mr.
Beaty’s convictions and sentences, and order a new trial.
B. Closing Argument.
1)
The Common law.
In the opinion this Court concluded, “This Court
cannot simply assume that from July 1, 1985 through the
trial in the instant case, the criminal trial courts of this
State have uniformly continued to follow repealed Circuit
Court Rule 58 to the extent it remains the ‘practice as
it has heretofore existed in criminal cases in which the
defendant introduces evidence.” Slip Opinion at 7. The
present Court has 36 years of combined experience on
the circuit court bench. This Court has approximately
62 years of combined appellate experience reviewing the
testimony and arguments of counsel in criminal cases.
This Court has ample experience with the criminal courts
of our State to know what the standard practice has been
since the repeal of Rule 58. That standard practice has
been to require the State to open on the law and not the
facts, when the defendant presents evidence.
This Court further concluded that “absent a published
order, court rule, or a defined common law rule, individual
judges have developed their own practices governing
68a
Appendix F
closing arguments in cases in which a defendant introduces
evidence.” Slip Opinion at 7. This statement is wrong for
two reasons. First, there are no facts in the record of this
case or cited by the court to support this conclusion. As
this Court has acknowledged, erroneously in the opinion
of undersigned counsel, the Court cannot assume what
the practice is, this Court cannot conclude that individual
trial judges have developed their own practices concerning
the content and order of closing argument. Second, this
Court has ignored that since at least 1795, the trial courts
of our state have required the party having the burden
to open and close on the case. As this Court held quoting
an old Rule 59:
And on all motions or special matters either
springing out of a cause or otherwise, the actor
or party submitting the same to the court, shall,
in like manner, begin and close; and so shall
the defendant, where he admits the plaintiff’s
cause by the pleadings, and takes upon himself
the burden of proof, have the like privilege.”
This rule, with slight modification, has been
in existence in this state ever since 1796 (see
Miller’s Compilation), ....
State v. Huckie, 22 S.C. 298, 299 (1885).
The fact that the State has the obligation to open fully
on the facts and then reply to new matter has been part of
the common law since the founding of our country. Nicole
Velascoal, TAKING THE “SANDWICH” OFF OF THE
MENU: SHOULD FLORIDA DEPART FROM OVER
69a
Appendix F
150 YEARS OF ITS CRIMINAL PROCEDURE AND
LET PROSECUTORS HAVE THE LAST WORD?, 29
nova l. rev. 99, 112 (2004) As the author stated:
The rationale behind the common law rule
is that the party with the burden of proof
should be entitled to the opening and closing
arguments to the jury. This structure for the
order of closing arguments is grounded in
the premise that justice is best served if the
defendant knows the actual arguments that the
prosecution will make in support of a conviction
before the defendant is faced with the decision
whether to reply, and if so, what to reply.”
Id. at 128-129.
Thus, the law in our State, in the absence of a rule
promulgated by this Court, is that the State be required
to open fully on the facts and respond only to new matter
raised by the defendant. We have never had a hodgepodge
of closing arguments determined by the peculiarities of
each individual judge, until now. This Court should recall
the opinion, instruct the judges they are to follow the
long established common law and reverse the conviction
of Michael Beaty.
2)
Due Process.
Regardless of whether this Court analyzes this case
based upon a violation of the common law rule or the Due
Process clause of the State and Federal Constitutions,
70a
Appendix F
the argument in this case was prejudicial to Michael
Beaty. The reason is simple. As discussed at the two
oral arguments in this case, Mr. Beaty simply asked for
the opportunity to respond to the best argument of the
State. This request was denied. No understanding of the
meaning of a fair trial can mean that one side is deprived
of the opportunity to respond to the best argument of
the other side. As noted by this Court, the Powerpoint
presentation, which represents the best argument of the
State, was used in the reply argument. The opinion in this
case sanctions the state using its Powerpoint presentation,
and thus its best argument, in reply.
This Court found that the final reply argument of
the State did not prejudice Mr. Beaty when the State
introduced for the first time the theory was Mr. beaty
strangled Ms. Asbil because she was screaming in front
of his parent’s house. No testimony at trial would have
prepared Mr. Beaty’s counsel for that argument. As noted
Mr. Beaty’s brief, the evidence to refute that argument
was available, but the jury never hear it. Even this Court
noted in the opinion that “the ligature marks on Victim’s
neck but not on the back of the neck.” Slip Opinion at 1.
This fact seriously questions the theory of the state as to
how Ms. Asbill lost her life. This fact proves the theory
of the biomechanical engineer was more probable. But
notwithstanding these facts, this Court concluded that Mr.
Beaty was not prejudiced by not being able to respond to
the best argument of the state. The facts recognized by
this Court establish this is a questionable case where the
least error could have been prejudicial to the defendant.
71a
Appendix F
As to closing arguments, the United States Supreme
Court has said:
It can hardly be questioned that closing
argument serves to sharpen and clarify the
issues for resolution by the trier of fact in
a criminal case. For it is only after all the
evidence is in that counsel for the parties are in
a position to present their respective versions
of the case as a whole. Only then can they
argue the inferences to be drawn from all the
testimony, and point out the weaknesses of their
adversaries’ positions. And for the defense,
closing argument is the last clear chance to
persuade the trier of fact that there may be
reasonable doubt of the defendant’s guilt.
Herring v. New York, 422 U.S. 853, 862 (1975)
Counsel for Mr. Beaty did not have the last clear
chance to respond to the best argument of the State. In
depriving Mr. Beaty of this opportunity, the lower court
denied Mr. Beaty Due Process of law as guaranteed by
Article I, Sec. 3 of the Constitution of the State of South
Carolina and by the Fifth and Fourteenth Amendments
to the Constitution of the United States of America.
3)
Alternate Way to Address this Issue.
This Court recognized trial judges have the “authority
to ensure that a defendant’s Due Process rights are not
violated during a criminal trial,” including that “trial
72a
Appendix F
judges clearly have the authority to require the State
to open in full on the facts and the law and have the
authority to restrict the State’s reply argument to matters
raised by the defense in closing.” Slip Opinion at 10. Yet,
this Court reasoned, “We remain mindful of the need
for clearly articulated rules governing the content and
order of closing arguments in cases in which a defendant
introduces evidence. The uncertainty resulting from the
absence of such rules is unfortunate.” Slip Opinion at
10. because this Court is the head of our state’s “unified
judicial system,” S.C. Const. art. V, § 1, it is strange that
this Court would recognize the trial judges have more
authority than this Court to protect the Due Process
rights of an accused.
This Court, in fact, exercised the very rulemaking
authority it claims to lack by issuing its memorandum
dated April 26, 2018, a copy of which is attached.1 This
memorandum strongly urges trial judges to require
the State to open in full on the facts and the law and to
restrict the State’s reply argument to matters raised by
the defense in closing. It is difficult to imagine trial courts
ignoring such a strong admonition from this Court. This
Court, therefore, has conferred on future defendants the
very rights Mr. Beaty sought from his trial judge and
this Court.
The solution is simple. This Court should hold Due
Process requires an accused to have a full and fair
1. “A court can take judicial notice of its own records, files and
proceedings for all proper purposes including facts established in
its records.” Freeman v. McBee, 280 S.C. 490, 494, 313 S.E.2d 325,
327 (Ct. App. 1984).
73a
Appendix F
opportunity to respond to the prosecution’s best argument,
meaning the State must open in full on the facts and the
law and restrict its reply argument to matters raised
by the defense in closing. Certainly, this Court has that
inherent authority pursuant to S.C. Const. art. V, § 1.
This Court, in fact, exercised similar inherent authority
in State v. Langford, 400 S.C. 421, 735 S.E.2d 471 (2012).
II. ISSUES NOT ADDRESSED
IN THE COURT’S OPINION.
This Court completely overlooked Questions I, II, V,
VI, VII, and VIII raised by Mr. Beaty in his brief.
A. This Court erred in failing to consider the facts
supporting the request for a charge on involuntary
manslaughter.
Sections II(B) of Mr. Beaty’s initial petition for
rehearing argued, “This Court erred in failing to consider
the facts supporting the request for a charge on involuntary
manslaughter.” In his initial petition for rehearing, at p. 1,
Mr. Beaty pointed out, “[T]his Court did not discuss the
facts of the case.” Although the opinion reissued on April
25, 2018 discussed the facts, this Court did not explain why
those facts did not warrant the trial judge instructing the
jurors about involuntary manslaughter. In continuing to
hold that Michael beaty did not establish sufficient facts
to create a jury issue as to involuntary manslaughter, this
Court either continues to overlook the facts established by
Mr. Beaty or has adopted a new rule as to lesser included
offenses.
74a
Appendix F
1)
Involuntary Manslaughter as a Lesser Included
Offense.
This Court has long held that involuntary manslaughter
is a lesser included offense of murder even though
involuntary contains the element of recklessness that
is not present in murder. “Involuntary manslaughter is
a lesser-included offense of murder ....” State v. Scott,
531,414 S.C. 482,487, 779 S.E.2d 529 (2015); See also State
v. elliott, 346 S.C. 603,610,552 S.E.2d 727, 731 (2001)
(Pliecones dissenting) overruled on other grounds by
State v. G
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.