# Petition — Allen v. South Carolina

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977
- **Citation:** 432 U.S. 902

## Text

IN THE

Jt 4 0 Ki5

OFFice oF THE F
SUPRENE Count, ua

SUPREME COURT OF THE UNITED STATES —

October Term, 1975

No. 75- leG e) 5

ARCHIE ALLEN,

Petitioner,

THE STATE OF SOUTH CAROLINA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE SUPREME
COURT OF SOUTH CAROLINA

ROBERT L. HALLMAN, Jr.
Jenkins, Perry & Pride
924 Hampton Street
Columbia, South Carolina 29202

JACK GREENBERG

JAMES M. NABRIT, IIL

PEGGY C. DAVIS

DAVID E. KENDALL
10 Columbus Circle, Suite 2030
New York, New York 10019

ANTHONY G. AMSTERDAM
Stanford University Law School
Stanford, California 94305

ATTORNEYS FOR PETITIONER

> da , aia ®
- ¢ : . '
LNDEX TABLE OF CASES
Page Page
Atkinson v. South Carolina, 408 U.S. 936 (1972)...... cee 13
Citation to Opinion Below ree er eeeeeeeeeeeeeeeereeeeeeeeee 1 . Brady Vv. United States, 397 * s 742 (1970) se eee eeeeeee . 26
Fowler v. North Carolina, U.S. Supreme Court,
Jurisdiction eee eee eee eee eee ee ee ee ee ee ee | 1 No. 73-7031 e909 0e020200080020086080 eeoeoee e002 688 eooesee 30
Fuller v. South Carolina, 408 U.S. 937 (1972) ...........- 13
Question Presented *eneeneeeveeeeeeeeeeeeeeeeeeeereeeneer ewe eener eee 2 :
Furman v. Georgia, 408 U.S. 238 (1972) ........... 12-16, 26, 30
Constitutional and Statutory Provisions Involved ........ 2 ! Guinn v. United States, 238 U.S. 347 (1915)...... ecccces 15
Jurek v. Texas, U.S. Supreme Court, No. 75-5394....... ee 30
Statement eee eeeeeeeenvneeeeeeeeeeeeeeeeeee eee ewe eee eee rere! 4
Lane v. Wilson, 307 U.S. 268 (1939).......-eeeees TTTTTr 15
Below e*enrenneeeneeneeneeeeneeeeeneeeeeeeeeneneeeeeeneeeeeeeeeee 12
State v. Abney, 109 S.C. 109 S.C. 102, 95 S.E.179
GR 6 ©6000 606060000 64660660646 4468 ee eereeeee ne eee? 27
Reasons for Granting the Writ eee eeeeeeeeeeeeeeeeeeeeneee 12
State v. Allen, Florence County Circuit Court,
THIS COURT SHOULD GRANT CERTIORARI TO CONSIDER No. 74-GS-21-100. ener nreeneee ee ee, enrneeneeeeee *eenreeeeee 14, 17
WHETHER THE IMPOSITION AND CARRYING OUT OF THE
SENTENCE OF DEATH FOR THE CRIME OR MURDER UNDER State v. Bealin, 201 S.C. 490, 23 S.E.2d 746 (1943)..... 27
THE LAWS OF SOUTH CAROLINA VIOLATE THE EIGHTH
OR FOURTEENTH AMENDMENT TO THE CONSTITUTION OF State v. Bellue, 259 S.C. 487, 193 S.E.2d 121 (1972).... 13
THE UNITED STATES *eeeeeeeeneeeeeeeeeeeeneeeeeeeeeneeeee 12
State v. Bowers, 65 S.C. 207, 43 S.E. 656 (1903)........ 20
A. The Perpetuation of Arbitrary Selectivity
Under the New South Carolina Capital State v. Cannon, 260 S.C. 537, 197 S.E.2d 678 (1973).... 28
Punishment Statutes ser ereeneneneeeneeeeneeeeneeeenereeeee 12
State v. Cason, Charleston County Circuit Court,
* Prosecutorial Charging EE, 2keennnete 16 No. cc Ee 14
2. Plea Bargaining eer eeeeneenereeeeeeeeeeeeneeeeee 24 State Vv. Charles, 183 $.Cc. 188, 190 S.E. 466 (1937) “ene ee 17, 24
De Jury Discretion “eee neneneeeeneeeneneeeeeneeeeeeeee 26 State Vv. Craven, Florence County Circuit Court,
No. pC en re ef ef © seer ee eee 14
4. Executive Clemency ee eeeneeeeeeeeeeeeeeeeeee 28
State v. Davis, Dillon County Circuit Court,
B. The Excessive Cruelty of the Penalty of No. po, a as 14
Death eee eeeeneeeeeneneneneneeeeneeneeeeeeeeeeeeeee eee © 30
State v. Davis, Florence County Circuit Court,
‘ No. PP. «cecnnesbateuanouned ene fe ee © *“e eee eeee l4
Conclusion *neeereereneeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeweeeeneneeee 31
State v. Dooley, Sumter County Circuit Court,
No. 76-GS-43-403 es ee ee © een ereneeeeeeeeeeeeeeeeeeeeee 14
State v. Puller, 229 S.C. 439, 93 S.E.2d 463 (1956)..... 19
eie- -iie-
a — ——— .- — — _——_

Page

State v. Gardner, 219 S.C. 97, 64 S.E.2d 130.......++++ 19,27

State v. Gaskins, Florence County Circuit Court,
No. 76-GS-21-472 eee nee eeeneneneeeeeeeeeeeneeeeeeeeeeee

State v. Gibson, 259 S.C. 459, 192 S.E.2d 720 (1972)...

State v. Hall, Greenville County Circuit Court,
Nos. 75-GS-23-1155, 75-GS-23-1156 .........- ceccece

State v. Ingram, Darlington County Circuit Court,
No. 75-GS-16-104 eeeeeeeeneeneeneen een eee eeeeeeneeeneeee

14
13

14

14

State v. Judge, 208 S.C. 497, 38 S.E.2d 715 (1947)..... 19,20

State v. Law, Florence County Circuit Court, No.
7§-GS— 28-180. cc cccccccccccceccccccecesesescosecseoce

State v. Lawson, Richland County Circuit Court,
No. 76-GS-40-B49. cccccccccccccccceccccecsecesecece

State v. McPhee, Orangeburg County Circuit Court,
No. . ) Srrrrrrire rrr Tree et

State v. McDowell, Horry County Circuit Court, No.
TWE—GB— 2S} BAZ. ccccccesceevccceccecessecesceseecscoece

State v. Moseley, 133 S.C. 53, 130 S.E.123 (1925)......

State v. Neeley, Florence County Circuit Court,
No. 76-GS-21-551 ener eneereeneeneeee e*eeeneneeneveeeeeeeeeeee

State v. Norris, 253 S.C. 31, 168 S.E.2d 564 (1969)....

State v. Robinson, Orangeburg County Circuit Court,
No. ,, >, ee ry) tte) Tt rt Pr tr er re

State v. Rumsey, Greenville County Circuit Court,
No. , \ - reerrTy rT TTT TT TTT TTT ttt

State v. Sauls, Florence County Circuit Court,
No. WG=GS— {ZL BEG cccccccccceccccccecccovesececccces

State v. Schneider, Greenville County Circuit Court,
Nos. 75-GS-23-1908, 7S addressed
to diserction of trial judge, and, uriess that
discretion is abuser, his decision will not be
disturbed of apperl; such cule applics with
equal force when the motion is based on
antagonistic defenses.

3. Criminal Law o622(2)

Denia! of motion for severance and sep-
arate trisis on ground of antagonistic dec-
fenses was not an abuse of diserction in
murder prosceution in which cicfencdlant tes-
tifie? that codefendant shot two game
wardens and in which coricfendant testified
that defendant instiyated the troubdic and
shot one of the wartens.

4. Criminal Law © 955(1)

Whether to grant motion to set asice
ver * or, in alternative, grant new tria!
duc to alleged insufficiency of tne evidence
is addressed to sound diserction of (rial
court.

5. Criminal Law o925(!)

In ruling on motions to set aside ver-
dict or, in alternative, grant new trial on
basis of alleged insufficiency of the evi-
denee, trial court is concerned with the cx-
istence of evidence, not with its weight

6. Homicide » 250

Evidence, inciuding exme wartien’s tes-
timony that he heard a sccond warden ask
aceused not to shoot such warden and that
first warden subsequentiy heard a blast and
saw second warden fail, was sufficient to
sustain conviction of murier of law en-
forcement officer.

7. Nomicide 1351

Statute, which recuires imposition of
death penalty under certain circumstances
whercin one is found guilty of murter, is

not iegisiation unconstitutionally vesting
triai court or jury with diseretion im umpos-
ing death penaity. Cole 1962, 3 16-52.

8 Criminal Law © 1213

Capital punishment (ces not violate
fetiveai constitutional prohibition against
cruci and unusual punisament. Cone 1962,
§ 16-52; U.S.C.A.Const. Amends. 5, 3, Ld.

9. Criminal Law @ 1215

Capital punishment cioes not violate
state constitutionai nrumbition against cru-
el, corporal or unusual punishment. Code
1962, § 16-52; Const. art. 1. § 15.

Frankiin R DeWitt. Conway, and Mat-
thew J. Perry, Columbia, for appellant.

Atty. Gen. Daniel R. Mef.cod and Asst.
Atty. Gea. Josepa 2. Barker. Columbia, Sol.
J. M. Long, Je. and Asst. Sol. Jim Dunn,
Conway, fur respundent.

MOSS, Acting Associate Justice:

Archie Allen, the Appellant, was tried in
Horry County before the Honorabie Clar-
ence E. Singletary on the charge of murver-
ing one Charies McNeill, 2 South Carolina
Game Warien. The jury returned a verdict
of guilty of the murder of a Inw enforce-
ment officer and the Appellant was sen-
tenced, pursuant to Section 16-52 of the
1962 Code of Laws, to Jeath.

The Appeilant contends before this Court
that he is entitled to 2 reversal of bis con-
viction and a new trial. Speeificaily, he
assigns error to the conduct of the ‘rial
court iA three particulars:

(1) In refusing to grant Appellant's mo-
tion for a change of venue;

(2) In refusing to grant Appeilant’s mo-
tion for severance and separate trials, aad

(3) In refusing to grant Appellunt’s mo-
tion to sct aside the verilict or, in the alter-
native, for a new trial.

The Appellant also urges that his death
sentence must be sci aside beenuse of what

le
oe cee oe

STATE v. ALLEN S.C. 289
(Cite as 222 S.£.26 287

he perceives to be constitutional infirmities
‘ia Section 16-52

Appeilant’s arguments will be considered
in detail below. Initially, however. a re-
view of the facts is necessary to an under-
standing of the issues.

On October 3, 1974. the Appeilant, his
brother, Cleve Allen, and a friend Sam
Todd, were engaged in a deer drive in a
rural area of Horry County. At about
11:00 A.M., South Carolina Game Wardens

That afternoon, McNeill and Benton re-
turned to the same area and discovered that
a cable, which they had oreviously piaced
across the road to keep peooie out of a
nearby game management area, was down.
They observed <hat a vehicle had entered
management area and proceeded to foi-
it

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The
and Sam Todd. The Wardens
the

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é

Up to this point, the testimony of the
four surviving participants of this incident
was generally in agreement. Their versions

Floyd Benton testified that McNeill
stopped their car near the cable and that he

in the process of getting the tools from the
trunk of his car, he ovserved the Appellant
take his gun and walk toward the front of /
his truck. A few seconris later. Benton
heard MeNeiil say, “Don't shoot me, Arck.
don't shoot me.” Benton saw McNeill
standing a few feet away but could not, duc
to the positions of the vehicles, see the
Appellant. Looking around, Benton ob-
served Cleve Allen and Sam Todd-sitting in
Cleve's truck. He testified that he called to
Cieve in an effort to get the latter to re-
strain his brother. Benton then heard a
blast and saw McNeill fall. He testified
that the biast came from the direction in
which the Appellant was heading when
Benton had last seen him.

Benton further testified that he heard an
unidentified voice say, “well, there ain't but
one thing to do now and that's kill the last
damn one of these sons of *::ches:~ Benton
turned to find Sam Todd siming his shot
gun at him. Todd then shot Benton down,
seriously wounding him. The three men
then drove off. .

-

(1] Immediately prior to trial, Appellant
moved for a change of venue on grounds
that extensive pre-trial publicity had preju-
diced his right to a fair trial. After hearing
oral argument and reviewing some six
newspaper and magazine articles tendered
by the Appellant, Judge Singletary denied
the motion. Appeilant contends that denial

In State v. Swilling, 249 S.C. 541. 155
$.E.2d 607, this Court heid that the moving
party has the burden of showing that pro-
spective jurors have been prejudiced by pre-
trial publicity. Further, we have held that
the decision of the trial judge on motions of
this nature will not be disturbed in the
absence of a showing of abuse of dise-ction.
State v. Fuller. 227 S.C. i238, $7 S.E.24 237.

A review of the record fails to reveal that
the trial judge abused his discretion in the
instant case.

Appellant's showing in support of his mo-
was insufficient to carry his burden of

3a -

a

299 S.C. 202 SOUTH EASTERN REPORTER, 2d SERIES

establishing that prospective juror had
been prejudiced by the pre-trial publicity.
That showing, as noted above, was limited
to some six newspaper and magazine arti-
cles. None of those articles were inflam-
matory or aecusatory toward ihe Appeilant
end none appeared +o be anything out fac-
tual ia nature.

Furthermore, the irial court followed the
procedure approved of in our «decision in
State v. Crowe, 253 $.C. 238, 188 $.E2u 379.
cert. dea., 409 U.S. 1077, 93 S.C. G91, Wi
L.Ed.2d 666, in that he conducted a czereful
voir dire examination of the jurors .o deter-
mine the existence of any dias or prejudice
on their part. The record indicates, in fact,
that the trial cour. propounueu every one of
the voir dire questions requested by the
Appeilant.

The second issue raised by the Appellant
concerns the denial of his motion for sever-
ance and scparate trials. That motion,
made some two duys prior Ww trial, wus
based upon an allegation that the defenses
of the Appeilant and his cowcfendant, Sam
Todd, were antugonistic to each otner and
that the Appellant would be prejudiced if
they were tried together.

(2] Generally speaking, as noted by this
Court on numerous cccasions, the granting
or deniai of a motion for severance and
separate trials is addressed to (he discretion
of the trial judge. Uniess that discretion s
abused, his decisior wil! not be disturbed on
appeal. Siate v. Holland, 261 3.C. +85, 201
S.B.2d 118, and sce cases collected under
om 62% 1), and 62212), West's Sourh Caroiina
Digest, Criminsi Law.

The general rule applies with equal force
when, as in the instant case, the motion is
based upon antagonistic defenses. Stace v.
Britt, 235 $.C. 395, 111 S.E.2d 569.

{3} Cleariy, the trial court acted proper-
ly withia the bounds of its dwercticn. The
facts in Britt, supra, are striking!y similar.
In that case, three men were on trial for
the murder of a South Carolina Highway
Patrolman. As in the instant cose, there

was a dispute among the defendants 2s to
who fired the fatai shot. Two of the de-
fendants moved for severance and separsic
trials on the grounds of antsgonistiec de-
fenses. They boin denied having fired the
fatal shot and one, corroborated by the
third defendant, averred that she other did

“the shooting. The trial court denied the

motion and this Court affirmed citing as
authority five previous cases in which deni-
als of motions for severance based upon
antagonistic defenses had been upheld.
State v. Brown, 168 S.C. 490, 95 5.E. 61;
State v. Jeffords, 121 S.C. 443, 114 5.5. 415;
State v. Francis, 1$2 S.C. 27, 149 S.E. 3s;
State v. Atkins, 205 S.C. 450, 32 $.E.2d 372;

State v. Mathis, 174 $.C. 344, 177 3.2. Sis.

Appellant advances no reason why these
decisions are not controliing and this Court
is aware of none. There is no basis for 3
reversal on this point

The third issuc raised by the Appellant
concerns the trial court's denial of his mo
tion to set axide the verdict or, in the alier-
native, for 2 new trial. The motion was
based upon alleged insufficiency of the evi-
dence.

{4,5] The grunting or denial of such
notions is addressed to the sound discretion
of the tris! court. State v. Quiilice, 283
S.C. 87, 207 S.E.2d 814. Furthermore, ia
ruling on motions of this nature, the trial
court is concerned with the existence of
evidence—not with its weight Stute v.
Addis, 257 $.C. 482, 186 S.E.2d 415; Stace v.
Jordan, 235 3.C. 36, i177 S.E2d 46.

{6} Under the facts of the instant case,
as reviewed above, the trial court acted
properiy within its discretion in subm.tuny
the factual issues to the jury. Undeniably,
there were both direet and circumstaaual
evidence which reasonably tended to estao-
lish the Appeilant’s guilt. Indeed, the testi-
mony of Floyd Benton clone was sufficient
lo warrant sending the case to the jury.

The fourth and final issue mised by the
Appellant concerns the constitutionality of
Section 16-S2 of the: 1962 Code of Laws.

3a -

+= +,

~~ rn On ---

STATE

v. ALLEN S.C. 29]

Cite as 222 S.£.2¢ 257

The Appeliant launches three attacks on
the constitutionaiity uf this Section. fe
argues: ;

(1) That Section 16-52 ix uncnastitutional
under the United States Supreme Court
decision in Furmaz v. Coorgia, 403 US. 228,
92 S.Ct 2726. 33 LF 2546;

(2) That capita! punix iment is “cruel and
unusual punishment” and is therefore un-
constitutional per se umler the Eighth
Amendment to the United States Constitu-
tion: and

(3) That cupital punishment is “cruel,
corporal, or unusual punishment” and is
therefure unconstituGonal per se under Ar-
ticle 1, Section 15 of the South Carolina
Constitution.

Although these issues were ncither mised
before, nor ruled oa by, the wriai court, this
Court has, ia favorem vitae consielered the
Appellant's arguments thereon. Slate v.
Swilling, 249 SC. S41, 155 S.A 607, We
Fimi chem wo be without merit They will
be diseume! serizium

(7] Appellant contends that Section 16-
52 is uncunsiiiutional unter the Furman
decision because imposition of the death
penalty pursuant to that section is disere-
Gerary and therefore cruci and unusual
punishment under the Fighth Amendment
to the United States Comaiitution. He spe-
cifically aitacks the clixeretion of the jury,
the Solicitor's charzimg ciiseretion, Lae Suiic-
itor’s plea negotiat.on ciseretion, and the
Governor's iiscretion in granting or with-
hukding execuuve clemency.

The Legislature of this State, in amend.
ing Section 19 52. apparently made a con-
scious, deliberate effort Lo compiy with ihe
mandate of Furman. We Laink that effort
was successful.

Although Furman is not subject to Cecile
interpretations, ith the majority and mi-
Mority justices of ths. derision concur that
the decisiva did no more than condiema hey
station which vested the trial court or jury
with discretiun in impemay the cicath penal-
ty (See Justice Marshail’s clsent, joined by

Justices Douglas and Brennan in Schick v.
Reed, 119 US. S46, 95 SCL. S79, 42 LiFe 2d
420, and see Ue aeparste dissentiag onin-
ions, in Furman, of Chief Justice Burger,
403 U.S. 375-276, 398, 92 S.Cu 2796-2797,
2803, St LEd2t 427-428, 451; Justice
Blackmun, 40% U.S. 413, 92 S.CL 2816. 33
L.Ed2i 450; and Justice Poweil, 408 US.
415-418, 92 SCL Bl6-Bi3, 33 LE
451-453).

Section 15 52 allows no such ciiseretion to
the trial jusige ami jury. The staiute pro
vitlos curtain specific, narrow, well delineat-
ed circumstances in witirh one who is found
guilty of muricr musi suffer the penalty of
death. la compliance with Furman, re-ther
the trial judge nor jury is given any disere-
tion in the matter.

Appellant's contentions concerning the
discretion of whe Solicitors ani tne Cover-
for are clearly without merit. Furman
cannel ressena iy be rod to extend bevord
the trial jugs and jury or seyand the sen-
tencing state of the proceedings. Section
16-42 has removei the discretion con-
demaed by Furman: « \« therefore in com-
pliance with that deconn.

([S] Appellant's next conteation is that
capital punishment constitutes “crue! and
vnuscal punisament™ and is therefore un-
COMMtutional per x umier the Eighth
Amendment to the United States Comsiitu-
ton.

The <ccisions of the United Sistes Su-
preme Court lend absolutely ae support to
the Appellant's contention On the enn.
irury. proe to Furman. the Court either
expressly or implicaly upheld the constitu-
tonality of capital punishment on aumer-
ous vecasions. Wilkerson v. Utah, 99 US.
190, 25 L.Ed. 245 (1879); fm Re Kemmier.
136 US. $26. 10 S.C 940, 24 L.Bu. $19
(1890); Weems v. Unite! States, 217 US.
349, BO S.Cv. 545, 54 Lied. 793 (1910): Louie
sians ex rel. Francis +. Nexwever, 322 US.
459, GF S.Ct. 374, 91 LB. 422 (1946); Trop
v. Dulles, 256 US. 36. 78 SCL 590, 2
LEd.2l 639 (1953); Witherspoon v. [lineis,

- 4a -

Se ee

292 S.C. 222 SOUTH EASTERN REPORTER. 2d SERIES

391 US. 510, 8&3 S.Ct 1770. 20 LEd 2d 776
(1968); McGautha v. Caiiforniz, 402 US.
183, 91 S.Ct. 1454, 23 L.Edld 711 (1971).

Furthermore. as :his Court noted in State
v. Speights, 26% S.C. 127, 134, 208 S.E-tu 43,
Furman itself canno’. de read to declare
capital punishment unconstitutional per se

Under the foregring decisions and under
any constitutionally sound interpretation of
the Fifth, Eighth, and Fourteenth Amend-

* ments, it is clear that capital punishment
does not violate the prohidition against cru-
el and unusual] pusisrmeat

Appellant's final contention is that
an pocshment constitutes “cruel, cor-
poral, or unusual punishment” and is there-
fore unconstitutional per se under Art:cie |.
Sectioa 15 of the South Carolina Constitu-
tion.

This Court considered this issue on no iess
than four oceasions under Article |, Section
19, the predecessor provision of Article 1,
Section 15. On each occasion, the constitu-

tionality of capital punishment was upaeid. -

v. Crowe, 258 S.C. 258, 188 $.E.2d 379:
State», Atkinvon, 253 $C. 831, 172 S524
$.E.2d 916; and Moorer v. MacDougall, 245
S.C. 633, 142 S.E2d 46.

The Appellant relies heavily upon the

fact that the language of Article 1, Section -

15 differs from that of Article 1, Section 19.

The former provision used the words “cruei
and unusual punishment” He urges that
the specific language of Articie 1. Section ~
15 compeis the conciusion that continued
imposition of the death penalty ts ‘ncnnsist-
ent with this new provision. We lisagrce.
The reasoning upon which he foregoing
decisions were based is as directly applics-
ble to Articie 1, Section 15 as it was to
Article 1, Section 19. See Crowe, 258 5.C.
at 271, 188 S.E2d at 385. We adnere to
those decisions.

As is our custom in cases of this ature,
we have, in fsvorem vitae, carefuily exam-
imed the record for any errors affecting the
substantial rights of the accused, even
though not made a ground of appeal. We
find none. Having coucluded <hat the evi-
oe Sees Sas See

finding no errors of law in the trial, we
ponpronton terscryniy teeta gen
and sentence imposed.

Affirmed.

LEWIS, C. J.. and LITTLEJOHN, NESS
and GREGORY, JJ.. concur.

---

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