Petition — SAMMY D. ROBERTS v. SOUTH CAROLINA (No. 82-6192)
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82-6192
Office Supreme Court, U.S.
FILED
FEB 7 1983
ALEXANDER L. STevas,
CLERK
No.
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1982
SAMMY DAVID ROBERTS,
PETITIONER,
STATE OF SOUTH CAROLINA,
RESPONDENT.
PETITION FOR WRIT OF CERTIORARI TO
THE SUPREME COURT OF SOUTH CAROLINA
DAVID W. CARPENTER
Attorney at Law
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South Carolina Office of
Appellate Defense
1401 Calhoun Street
Columbia, &.C. 29201
ATTORNEY FOR PETITIONER.
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r
QUESTION PRESENTED
Whether a sentence of death can, consistently with
the Fifth, Eighth, and Fourteenth Amendments, be imposed
where the scheme of imposition does not apply the reasonable
doubt standard, or any objective standard, to the determi-
nation that, on weighing the mitigating and aggravating cir-
cumstances, death is the appropriate punishment in a given
case?
TABLE OF CONTENTS
QUESTION PRESENTED... + + «+ + «© @ @
TABLE OF CONTENTS. . . + + + + © © # «
TABLE OF AUTHORITIES UE
CITATION TO OPINION BELOW. . . ..
JURISDICTION . «© + se we we we wo we wo
CONSTITUTIONAL PROVISIONS AND STATUTES
INVOLVED * . * * . . * . * . . * . .
STATEMENT OF THE CASE. g.
HOW THE FEDERJ.L. QUESTION WAS RAISED AND
DECT DED BEV OW. * * * „ . * . „ * . *
REASONS FOR GRANTING THE WRIT. ....
The Court should grant the writ to
decide
if the United States Constitution requires
application of the reasonable doubt standard
to the determination of whether, on weighing
the 2 and mitigating circumstances,
death
given Ca8@ . ww we ce eee eee
CONCLUSION * * . * . * * * . * * * . *
APPENDIX A
s the appropriate punishment in a
Opinion of the Supreme Court of South Carolina,
State v. C land, et al., 8. c. P
Opinion No. 21808. filed november 10, 1982...
APPENDIX B
&.C. Code Ann, §§16-3-20 and 16-3-25 (Cum,
Supp. 1982) * * . * * * . * . * . *
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TABLE OF AUTHORITIES
CASES PAGES
Addington v. Texas, 441 U.S, 418 (1979) 09
Bullington v. Missouri, 451 U.S, 430 (1981) ..... 9
Ford v. Strickland, F.2d (llth Cir., Slip
Opinion filed January 7 196) 8
Gregg v. Georgia, 428 U.S, 153 (19776 4.II
In re Winship, 397 U.S. 358, 364 (1970) ......... 7, 9, 10
Lockett v. Ohio, 439 U.S. 5866 (1977) 7, 9
Mullaney v. Wilbur, 421 U.S. 684 (1975) ......... 10
Proffitt v. Florida, 428 U.S, 242 (1976) ......6.6. 6, 7
Santosky v. kraner, 0.8. 102 8. ct. 1388
( $82) „ „„ eee e eee e „e 9
Smith v. North Carolina, U. 8. » 103 8. ct.
447 (1982) (Stevens, J., opinton respect -
ing denial of .
Speiser v. Randall, 357 U.S, 513 (1955) ꝗ ⁊•ÿ1ͤv 10
State v. Copeland et al., §.C, „ Opinion
No. 21608, filed November 10, T9@2 ........ 1, 2, 4 11
State v. Goolsby, 275 &.C, 110, 2686 S.E.2d 31
(1980) eee „% „% „% % eee „ „ „„ „ „ „ „ „
State v. Johnson, 298 N.C, 47, 257 8. F. 2d 597
(1979) Dre 7. 11
State v. Linder, 276 8. C. 304, 278 8. F. 2d 335
(1981) rere 6
State v. Truesdale, 8. C. 296 8. k. 2d 528
(1982) „„ ee eee ee ee eee 5
State v. Shaw, 273 8. c. 194, 255 S.E.2d 799 (1979) 3, 5, 7
State v. Thonpson, 8. C. 292 S.E.2d 58)
(1982) „ „„ %%% „„ „„ eee
State V. Wocds, 648 5. 2d 71 (Utah 1982) eve 22 7, 11
Tedder v. State, 322 80. 2d 908 (Pla. 1975) ...... 7
(Ivan) v. v. City of New York, 407 U.S, 203 (1972) 9
PEDERAL STATUTE
28 v. 8. c. 5125703) „ „%% „eee 1
STATE STATUTES
Ark. Stat. Ann, $41-1302(2) (1977) eee eee „% „% „ „ „ „46%
Ohio Rev. Code Ann. $2929.03(D) (1) eee eee eee „ „ „ „%
co 2
‘aon iv
STATE STATUTES (Continued) PAGES
8. C. Code Ann, §16-3-20 (cum. Supp. 1982) ......+. 2, 3, 4, 5, 6, 8
8. C. Code Ann, §16-3-25 (Cum.Supp. 1982) ........ 2, 10, 11
Wash, Rev. Code 510.95. 06 (%) (Supp. 1981) ...... 8
CONSTITUTIONAL PROVISIONS
O.B. COMBE. AMONG. .. . . . „ 6 0 0e passim
UB. Gamat. AMONG. VITZ . . „ 0 „% passim
U.8. Comet. AMONG. o. . „ „ „6 „ 0% passim
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1982
SAMMY DAVID ROBERTS,
PETITIONER,
vs.
STATE OF SOUTH CAROLINA,
RESPONDENT.
PETITION FOR WRIT OF CERTIORARI TO
THE SUPREME COURT OF SOUTH CAROLINA
Petitioner Sammy David Roberts prays that a Writ of
Certiorari issue to review the judqment of the Supreme Court
of South Caroina in this case.
CITATION TO OPINION BELOW
The opinion of the Supreme Court of South Carolina is
reported in State v. Cupeland, et al. 8. 0c. , “Opinion
No. 21808, filed November 10, 1982, and is attached hereto as
Appendix A to this Petition,
JURISDICTION
The Supreme Court Of South Carolina filed its opinion
and, thus, entered its judgment on November 10, 1982, It
Genied timely petition for rehearing on December 8, 1982.
This Court's jurisdiction is invoked pursuant to 28 U.S.C
$1257(3), petitioner having asserted below and herein de-
privations of rights secured by the Constitutions of the United
: States.
CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED
This case involves the Fifth Amendment to the Conetitu-
tioa of the United States, which provides in relevant part:
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„ sam o to ce put in jeopa °
lafe or limb... ."
and the Eighth Amendment to the Constitution of the United
States, which provides in relevant part:
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"Excessive bail shall not be required,
nor excessive fines imposed, nor cruel and
unusual punishments inflicted."
and the Fourteenth Amendment to the Constitution of the United
States, which provides in relevant part:
Nor shall any State deprive any person
of life, liberty, or property, without due
process of law... .”
This case also involves the following sections of the
South Carolina Code of Laws: S.C. Code Ann. §§16-3-26 and
16-3-25 (Cum. Supp. 1982) 2/
STATEMENT OF THE CASE
Petitioner was tried before a judge and jury and was
convicted of three counts of murder along with accompanying
counts of kidnapping and armed robbery. In a second, sen-
tencing proceeding mandated wy S.C. Code Ann. §§16-3-20 et seq.,
the jury faced a decision whether to recommend sentences of
life or death for the crimes. The State relied on evidence,
presented earlier in the trial’s guilt phase, to prove two
statutory aggravating circumstances: that the murders had
occurred during commission of kidnapping and armed robbery.
S.C. Code Ann. §§16-3-20(C) (a) (1) (c) and (e] (Cum, Supp. 1982).
As later noted by the Statc Supreme Court, State v.
Copeland, et al., Appendix A at Al4, petitioner offered
"extensive mitigating testimony” of a difficult childhood,
problems in school, a traumatic death in hie family, violent
injuries he himself had suffered, drug abuse, and a personality
which made him easily influenced by others. Other evidence
in mitigation were his refusal to take en active part in at
least two of the killings, Tr. 2104-2107, and his affection
and concern for his girlfriend and their young child. Tr.
2976-2972.
* due to their len these statutes are included in
x B. References will be to the present 1982 supplement
* to the 1976 permanent edition of the S.C. Code of Laws. Al-
RY: though these statutes, enacted in 1977, were contained in
. earlier supplements at the time of petitioner's trial and also
when the South Carolina Supreme Court decided petitioner's
appeal, the sections applicable to this case have, however,
remained unchanged since enactment of the statutes in 1977.
* 85
Prior to the jury's deliberation, the judge instructed
it, in accordance with S. c. Code Ann. §16-3-20(C), that it
could consider any mitigating circumstances it found to exist
and any statutory aggravating circumstances it found to exist
beyond a reasonable doubt. Tr. 3075-3084. He also supplied
the jury with a list of two statutory aggravating circumstances —
murder in the commission of (1) armed robbery and (2)kidnapping —
and the nine statutory mitigating circumstances enumerated in
S. C. Code Ann. §16-3-20(C) (Cum. Supp. 1982). Tr. p. 3106.
Beyond that, he offered no guidance as to how the jury should
weigh the evidence or what standard of proof it should apply
to arrive at its determination of whether the State had con-
vinced it that death was the appropriate punishment.
The jury recommended sentences of death on all three
counts of murder. And the judge — as is mandated by S.C. Code
Ann, §16-3-20(C), see State ». Shaw, 273 S.C. 194, 255 8. E. 2d
799, 802 (1979), cert. denied 444 U.S. 957 — sentenced
petitioner to death. Tr. 3099-3101.
On appeal, the State Supreme Court affirmed the trial
court judgment and rejected petitioner's argument that the
scheme under which he was sentenced to death violated the Fifth,
Eighth, and Fourteenth Amendments.
HOW THE FEDERAL QUESTIONS WERE RAISED
AND DECIDED BELOW
By way of pre-trial motion (Tr. 3248-3252), petitioner
requested that the trial judge “declare unconstitutional” the
state statutory capital sentencing scheme because, inter alia,
(a) S.C. Code Ann. §16-3-20 did not provide adequate direction
for applying aggravating and mitigating circumstances and thus
resulted in arbitrary inflicting of the death penalty in violation
of the due process guarantees of the United States Constitution;
and (b) §16-3-20 “allowled] the jury subjective discretion in
applying the death penalty” and thus offended the Eighth Amend-
ment. On appeal to the Supreme Court of South Carolina petitioner
argued that §16-3-20 violated the Fifth, Eighth, and fourteenth
' Amendments because it did not require application of the objective
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reasonable doubt standard?’ to the ultimate determination of
whehter, on weighing the aggravating and mitigating factors,
the State had proved that death was the appropriate punishment.
Brief of Appellant Roberts at 26-29. Petitioner alternatively
argued that even if the court would for the first time read into
§16-3-20 t:he appropriate standard, still in petitioner's case
the sentencing authority did not apply that standard to the final
determination. Id.
Without discussion, the state court held that the capital
sentencing statutes were constitutional. State v. Copeland, et
al., Appendix A at A5. It also characterized as “frivolous
and without merit” the contention that jurors — if instructed
to apply the reasonable doubt standard for finding aggravating
circumstances — needed to be instructed not to return a binding
recommendation of death if they had doubt that it was the
appropriate sentence. Appendix A at Al0o.
2/ tm truth, $16-3-20 does not provide any standard for
making that finding.
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REASONS FOR GRANTING THE WRIT
THE COURT SHOULD GRANT THE WRIT TO DECIDE
IF THE UNITED STATES CONSTITUTION REQUIRES
APPLICATION OF THE REASONABLE DOUBT STANDARD
TO THE DETERMINATION OF WHETHER, ON WEIGHING
THE AGGRAVATING AND MITIGATING CIRCUMSTANCES,
THE STATE HAS PROVED THAT DEATH IS THE APPRO-
PRIATE PUNISHMENT IN A GIVEN CASE,
Neither South Carolina's statutory capital sentencing
scheme nor its Supreme Court, in construing those statutes,
provides the sentencing authority2’any standard to apply or
procedure to follow when weighing mitigating and aggravating
circumstances, A jury may recommend death only after finding
beyond a reasonable doubt that at least one statutory aggra-
vat ing circumstance exists. State v. Shaw, 273 8. c. 194, 255
S.£.2d 799, 802 (1979), cert. denied 444 U.S. 957; &.C. Code
Ann. §16-3-20(C) (Cum. Supp. 1982). Once it finds a statutory
aggravating circumstance to exist, however, it has unbridled
discretion to choose either life or death. There exists no
requirement that it find the aggravating circumstances to cut-
weigh the mitigating ones, no standard to apply if it does en-
gage in a weighing process. And the trial judge, when imposing
the jury's decision to inflict death, simply must "find as an
affirmative fact that the death penalty is warranted under the
evidence ...." State v. Shaw, 255 8. F. 2d at 802; 8. c. Code
Ann. §16-3-20(C) (Cum. Supp. 1982). Again, no standard guides
the fact-finding.
3/ South Carolina law provides for a bifurcated capital
proceeding. 8. c. Code Ann. §16-3-20(B) (Cum. Supp. 1982). If
a defendant pleads guilty or otherwise waives a jury trial, the
udge determines the sentence in a second, sentencing proceed-
g, but if the accused has a jury trial on guilt, the same
jury must recommend a sentence at the second proceeding. 8. C.
8. E. 2d 528 (1982). That “recommendation” is Binding on the
court. State v. Shaw, 273 S.C. 194, 255 8. E. 2d 799, 802 (1979).
“(T)he court, prior to imposing the death penalty, is required
to find as an affirmative fact that the death penalty is warranted
under the evidence and is not imposed as the result of [some]
arbitrary factor.” Id., 255 S.E.2d at 802-803. The State
Supreme Court has noted the dilemma confronting a trial judge
who feels the binding recommendation is not warranted or results
from arbitrary factors, but the court has declined to offer
guidance. Id., 255 8. E. 2d at 803 n.2. In no case to date has
the State Supreme Court faced a situation in which the ‘rial
judge declined to follow a jury's recommendation.
: ) 1
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Only twice has the South Carolina Supreme Court specifi-
cally mentioned this issue. In State ». Shaw, 255 S.E. at 804,
the first case it decided under the current death penalty statutes,
the court stated:
Appellants also contend the statutory
complex is constitutionally defective be-
cause it does not assign numerical values
to the aggravating and mitigating circum-
stances so that the sentencing authority
can determine when the mitigating circum-
stances outweigh the aggravating circum-
stances. This issue was decided adversely
to appellants in Proffitt v. Florida, 428
U.S. 242, 96 s. ct. 7960, 4 L. Ed. 2d 913
(1976).
Later, in State v. Thompson, 8. C. „ 292 8. E. 2d 581,
584 (1982), the court characterized one of Thompson's arguments
as follows:
Appellant excepts to the application
of the Death Penalty Statute to his case.
He asserts that &.C. Code Ann. 16-3-20(C)
provides no guidelines for the weighing of
aggravating and mitigating circumstances.
To this the State Supreme Court replied that “these issues
were decided adversely to appellant in State v. Linder, [276
S.C. 304,278 8. K. 2d 335 (1981)47} and State v. Shaw,
1255 8. E. 2d 799)." State v. Thompson, 292 S.E.2d at 584.
In the present case the South Carolina Supreme Court re-
Lied on State v. Linder, 278 S.E.2d 335, and State v. Goolsby,
275 S.C. 110, 268 8. E. 2d 31 (1980), cert. denied, 449 U.S. 1037
(1981), in holding that the State's capital sentencing statutes
are constitutional. Appendix A at A5. Both the Linder and
Goolsby opinions relied on the Shaw decision. State v. Linder,
278 8. Ek. 2d at 340; State v. Goolsby, 268 S.E.2d at 35. And
Shaw rested, albeit erroneously, on Proffitt v. Florida, 428
U.S. 242 (1976). State v. Shaw, 255 8. E. 2d at 804.
7 The Linder opinion did not mention this issue. There
the court, relying on its earlier Shaw decision, simply said:
"The appellant contends that the South Carolina Death Penalty
4 Statutory Complex, Sections 16-3-20 et „ Code of Laws of
‘ South Carolina (1976) is constitutionally defective. We find
no reasons to from our eo holdings that the complex
is constitutional.” 278 S.E.2d at 340.
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The point at which the sentencing scheme approved in
Shaw diverges from the one this Court approved in Proffitt
marks not only the area of unconstitutionality of the former
but also the point at which constitutional development in
death penalty law stops short. Although this Court has held
that a conviction cannot rest on any degree of certainty less
than proof beyond a reasonable doubt, in re Winship, 397 U.S.
358 (1970), it has not decided whether there is a requisite
degree of certainty on which a sentence of death must rest.
Proffitt's lead opinion placed considerable emphasis
on Florida's requirements that the jury, which (unlike in
South Carolina) only performs an advisory role, must determine
whether the mitigating circumstances outweigh the aggravating
one, and that “tthe facts suggesting a sentence of death shou'd
be so clear and convincing that virtually no reasonable person
could differ. Proffitt v. Florida, 428 U.S., at 249, quoting
Tedder v. State, 322 80. 2d 908, 910 (Fla. 1975). South Carolina
has no such standards and safeguards applicable to the jury's
fact-finding function, except that it requires the State to
prove statutory aggravating circumstances beyond a reasonable
doubt. Although Florida's procedure might — at least on its
face — minimize “the risk that the death penalty will be im-
posed in spite of factors which may call for a less severe
punishment,” Lockett v. Ohio, 438 U.S. 586, 605 (1978) (plurality
opinion), South Carolina‘s sentencing scheme offers only the
hope, not the guarantee, that risk will not materialize.
Some state courts, while keeping an eye on due process
guarantees, have construed their state statutes to impose a
reasonable doubt standard to the ultimate determination of the
appropriateness of the death penalty under the surrounding
circumstances, State x, Johnson, 298 N.C. 47, 257 S.E.2d 597,
617 (1979); State v. Wood, 648 P.2d 71, 83-84 (Utah 1982).
Several state statutes specifically require juries to apply
the reasonable doubt standard when determining whether aggravating
circumstances sufficiently outweigh mitigating ones to warrant
a death sentence. Ark. Stat. Ann. §41-1302(2) (1977); Ohio
rT eee eS SO Le gute MED ‘ae: eee) a A a 2
Rev. Code Ann. §2929.03(D) (1); Wash. Rev. code §10.95.060(4)
(Supp. 1981). So the legislatures or courts of many states
believe that applying an objective standard to such a deter-
mination is indeed both possible and advisable.’ This view,
however, is not unanimous. Ford v. Strickland, F.2d
(llth Cir., Slip Opinion, filed January 7, 1983) (en banc).
A majority of the Eleventh Circuit Court of Appeal takes a
different view: that the process of weighing mitigating
and aggravating circumstances “is not... susceptible of proof
under any standard... Id., at 20. But see Smith v. North
Carolina. ... 102 S.Ct. 474 (1982) (Stevens, J.,
opinion respecting denial of cert.). So the various juris-
dictions cannot even agree whether applying an objective
standard at the punishment-determining stage is even feasible,
let alone mandated by due process or Eigth Amendment consider-
ations.
Along with the “quantitative difference [between sentences
of life and death], there is a corresponding difference in the
need for reliability in the determination that death is the
appropriate punishment in a specific case.“ Woodson v. North
Carolina, 428 U.S. 238, 305 (1976) (plurality opinion). That
there exists a degree of subjectivity, thus 4 measure of un-
reliability, in the decision to impose a death sentence should
mulitate for a stricter, not lesser, standard of proof. A
weaker point needs more reinforcement.
Also, the standard of proof required should correspond
to the degree of confidence sought:
5/ Although it has prescribed no objective standard to
apply, South Carolina's legislature has viewed the matter of
whether a sentence of death is “warranted” as something that
can be determined “as an affirmative fact.” 8. C. Code Ann.
$16-3-20(C) (Cum. Supp. 1982). This indicates that the creators
of its death penalty statute felt that the final .
process was indeed fact-finding. Thus it viewed the ultimate
fact, appropriateness of the death penalty, as susceptible of
proof under some standard, even if it did not specify a standard.
a
The function of a standard of proof,
as that concept is embodied in the Due
Process Clause and in the realm of fact-
finding, is to “instruct the factfinder
concerning the degree of confidence our
society thinks he should have in the
correctness of factual conclusions for a
particular type of adjudication.”
Addington v. Texas, 441 U.S. 418, 423 (1979), quoting In re
Winship, 397 U.S., at 370. Principles of due process recognize that
as the stakes grow, all want a greater degree of confidence
that the outcome will be correct.
That a measure of subjectivity is involved here should
not discourage this Court from demanding a strict, objective
standard of proof. It has not in the past. In Addington v.
Texas, 441 U.S. 418 (1979), this Court held that the Fourteenth
Amendment due process protections require application of at
least a “clear and convincing” evidence standard prior to in-
voluntary commitment of an individual to a state mental hospital.
Likewise, in Santosky v. Kreer. b. s. 102 S.Ct. 1385
(1982), it held that due process requirements mandate that sam
burden of proof when a state seeks to terminate parental right.
Surely the state must shoulder a heavier burden when it seeks
to terminate a life. The difficulty of proof is no greater,
but the stakes are monumentally higher.
In the context of the ordinary criminal trial, application
of the reasonable doubt standard is a matter of fundamental
fairness. In re Winship, 397 U.S. 358, 363 (1970). Its
absence “substantially impairs the truth-finding function.”
Ivan V. v. City of New York, 407 U.S. 203, 205 (1972). The
sentencing phase of a bifurcated capital proceeding is more
like a criminal trial than it is like an ordinary sentencing
hearing: the prosecutor must shoulder a burden of proof and
the jury (where it determines the sentence) is a fact-findcer.
See Bullington v. Missouri, 451 U.S. 430 (1981). Asa result,
special precautions — unnecessary in a noncapital case — are
essential to eliminate the risk that a death sentence will be
imposed despite factors calling for a less severe punishment.
Lockett v. Ohio, 438 U.S., at 605.
10
Not only is the reasonable doubt standard "a prime
instrument for reducing the risk of convictions resting on
factual error,” In re Winship, 397 U.S., at 363 (emphasis added),
but also it is a constitutionally mandated protection against
factual error when determining “the degree of criminal cul-
pability.” Mullaney v. Wilbur, 421 U.S. 684, 698 (1975).
This standard is the fundamental vehicle in the Anglo-American
legal system for assuring reliability in criminal judgments.
It does this by allocating the burden according to the risk:
There is always in litigation a margin of
error, representing error in fact-finding,
which both parties must take into account.
Where one party has at stake an interest
of transcending value... this margin of
error is reduced as to him by the process
of placing on the other party the burden
of... proof... beyond a reasonable doubt.
Speiser v. Randall, 357 U.S. 513, 525-529 (1958). Here the
relative differences in the interests the State and petitioner
have at stake are pronounced, Just as “proof beyond a reasonable
doubt has traditionally been regarded as the decisive [test of]...
criminal responsbility” and has been made a mandate of the
Fifth and Fourteenth Amendments, so also must the Eighth and
Fourteenth Amendments require this same standard to determine
whether “death is the appropriate punishment.” Woodson v. North
Carolina, 428 U.S., at 305.
A South Carolina jury must engage in two sets of fact-
finding at the punishment phase of a capital case. It must first,
applying the reasonable doubt standard, find if any statutory
aggravating circumstance has been proved. Finding that, death
is a possible punishment. Then the jury must consider the
surrounding circumstances and find whether the State has convinced
it that death is the appropriate punishment in that particular
instance. At this second stage South Carolina law provides no
standard for weighing the factors, no objective gauge of whether
the State has proved its case. Beyond the first stage the
jury's discretion is essentially unfettered.
Moreover, S.C, Code Ann. §16-3-25 (Cum. Supp. 1982) and
its provisions for proportionality review by the Supreme Court
11
of South Carolina do not cure this constitutional defect. That
court does not independently weigh the circumstances of the
case. Rather, it determines (1) if “the sentence of death was
imposed under the influence of passion, prejudice, or any other
arbitrary factor,” (2) if the evidence supports the jury's
finding of the existence of a staturory aggravating circumstance,
and (3) if the sentence is excessive or disproportionate when
compared to that imposed in “similar cases“ where the death
penalty has also been imposed. 8. C. Code Ann. §16-3-25 (Cum.
Supp. 1982); State v. Copeland et al., Appendix A at Al0-Al5.
At no time from trial through the appeal is there applied an
objective standard to the determination of whether the aggra-
vating factor sufficiently outweigh the mitigating ones to
allow a sentence of death,
This Court has not yet addressed this critically important
issue. Although it has upheld Georgia's capital sentencing
scheme, similar in many respects to South Carolina's, against
attacks that it was unconstitutional on its face, its decision
did not resolve this dilemma. Gregg v. Georgia, 428 U.S. 153
(1976) (plurality opinion). If South Carolina's Supreme Court
had chosen to construe §16-3-20 to make the reasonable doubt
standard applicable to the final determination, as North Carolina®/
and vtah_/ courts have done, then the statute, as construed,
would be constitutional in that regard. But it has repeatedly
refused to do so, and it has refused in petitioner's case.
Because the Supreme Court of South Carolina has erroneously
refused to require the standard mandated by the United States
Constitution; because confusion exists among the jurisdictions
on this matter; and because this Court has not as yet definitively
resolved the confusion, the Court should grant this petition
for a writ of certiorari, apply the requisite standard of the
Fifth, Eighth and Fourteenth Amendments, and vacate petitioner's
sentence of death.
6/ State v. Johnson, 298 N.C. 47, 257 8. E. 2d 597, 617 (1979).
state v. Wood, 648 p. 2d 71, 83-84 (Utah 1982).
|
CONCLUSION
Petitioner requests that his petition for a writ of
certiorari be granted.
Respectfully submitted,
Mas Cape
Attorney at Law
South Carol.ina Office of
Appellate Defense
1401 Calhoun Street
Columbia, South Carolina 29201
(803) 758-8601
ATTORNEY FOR PETITIONER,
February 7, 1983,
12
4 APPENDIX A (
THE STATE OF SOUTH CAROLINA
In The Supreme Court ‘
The Geste wee eee eee 4 ee roo 6 0 0 © ROOPORSERE,
v.
H. Wesley Copeland and
Sammy David Roberts, . ++ +++ e+e eee ee eens Appellants.
— —
Appeal From berkeley County
Marion H. Kinon, Judge
Opinion No. 21608
Filed November 10, 1982
AFFIRMED
Appellate Defender John L. Sweeny, Assistant Appellate Defenders David
u. Carpenter and Tara D. Shurling, all of S. C Commission of Appellate
Defense; and David 1. Bruck, 411 of Columbia; and Peter F. Them, Il,
and John G. Frampton, both of Summerville, for appellants.
Attorney General Daniel R. McLeod, Senior Assistant Attorney General
Brian P. Cibbes and Assistant Attorney General Lindy P. Funkhouser, 41
of Columbia; and Solicitor Charles NM. Condon, of Charleston, for
respondent.
——— —
GREGORY, A. J.: Appellants Wesley Copeland and Sammy Roberts were convicted of
arred robbery, kidnapping, and murder. Both received sentences of twenty-five years, lile,
and death for the respective offenses. They appeal, asserting numerous exceptions. We
consolidate their appeals with our mandatory review pursuant to
S. c. Code Ann. § 16-3-25 (Cum. Supp. 1981). We vacate their life sentences for kidnappiog,
aod otherwise affira.
Sometime around midnight, June 18, 1980, Bill Spain and Butch Krause were closing
for the night the service station where they worked. They were robbed of One Thousand
Ninety-Six and 03/100 ($1,096.03) Dollars, taken from the station in North Charleston to a
secluded spot in Berkeley County, and shot to death. In the early morning hours of
June 19, 1980, Louise Cakley, a service station attendant in Moncks Corner was robbed of
four Hundred Twenty-Six and 11/100 ($426.11) Dollars, taken to another secluded spot in
Berkeley County, and shot to death.
The bodies of the three men were found several dye after the murders.
Investigations began immediately and continued for several months. On October 24, 1940,
upon information given to the authorities by Danny Ray Coker, an accomplice in these crises,
appellenctes vere arrested for the armed robbery, kidnapping, and murder of the three men.
Coxer was granted immunity from prosecution in exchange for his testimony.
First, appellants challenge the constitutionality of the South Carolina death
lty statutes. We held these statutes constitutional in State v. Linder, 276 8. 0.
278 S.£.2d 335 (1981) and State v. Goolsby, 275 8. C. 110, 268 8. k. 2d 31 (1980),
cert. denied, 101 &.Ct. 616 (1981).
Next, appellants contend imposition of the death penalty for the crime of murder
vhile in the commission of kidnapping violates the Eighth Amendment prohibition against
arbitrary infliction of the death penalty because the statutory definition of kidnapping ts
overbroad and ambiguous. We held in State v. Plath, 27/7 S.C. 126, 264 8. k. 2d 221 (1981)
and state v. Salth, 275 S.C. 165, 268 8. K. 24 276 (1980), the kidnapping statute in
constitutional, not overbroad and ambiguous. This exception is without merit.
lant Roberts argues it ie unconstitutional to sentence a person to death
without finding that he caused or intended anot har 6 death. He contends this offends both
the Eighth Amendment mandate that any decision to impose the death penalty be based on reason
rather than caprice and the Cruel and Unusual Punishment Clause of the Eighth Amendment.
( (
THE STATE v. COPELAND, ET AL.
Recently, the U. 8. Supreme Courc reversed a Florida Supreme Court judgsent
upholding the death penalty because thera was dz proof the codefendant killed, atteapted to
kill, intended or contemplated that life would be taken. Enmund v. Florida,
50 U.S.L.W. 5067 (June 29, 1982).
We think imposition of the death penalty in this case does not offend the
standards set out in Enmund, supra. The evidence is clearly sufficient to justify the
death penalty. It shows Roberts did, in fact, cause Cakley'’s death, and, while not the
triggermun in the two earlier murdern, he was present the entire time the crimes were
committed, and he held a gun on at least one of the two victims and forced him to lay on
the ground whereupon both men were shot to death. Roberts cannot seriously contend that he
did not intend or contemplate that life would be taken.
We do not find the jury's recommendation to be the result of passion, prejudice,
or any other arbitrary factor, nor do we find imposition of the death penalty unconstitu-
tional in Roberts’ case.
Next, appellants argue the trial judge erred io refusing to change venue to
another county.
A change of venue is addressed to the judicial discretion of
the trial judge, and his decision will not be disturbed absent
a shoving of an abuse of that discretion. State v. Valenti,
265 S.C, 380, 218 8. F. 24 726 (1975). Where the trial judge
bases his ruling on adequate voir dire examination of the jurors,
his conclusion that the objectivity of the jury panel has not
been polluted with outside influence will not be disturbed absent
extraordinary circumstances. State v. Fowler, 266 8.C. 203,
222 S.E.2d 497 (1976); State v. Crowe, 258 S.C. 258,
168 8. F. 24 379, cert. den, 409 U.S. 1077, 93 S.Ct. 691,
* L.Ed.2d 666 (1972).
State v. Neeley, 271 8. c. 33, 244 8. K. 24 522, 524 (1977). Appellants must prove actval
juror prejudice. State v. Plath, supra; State v. Goolsby, supra; State v. Tyner,
273 S.C. 646, 258 S.E.2d 559 (1979). The record shows maximum precaution by the tr. : |
judge to ensure elimination of veniremen who may have been prejudiced by pretrial publicity
and the absence of prejudice on the part of the jurors. Appellants’ motions for change of
venue vere properly denied.
Next, appellants argue the trial court erred in denying their motions for coutin-=
wance. A motion for continuance is addressed to the sound discretion of the trial judge
and his ruling thereon will not be disturbed absent a showing of abuse of discretion.
State v. Brooks, 271 S.C. 355, 247 8. k. 2d 436 (1978). We find no abuse of discretion on
the part of the trial judge.
° Appellants further argue the trial court erred in disqualifying jurors who oppose
the death penalty. This issue was resolved adversely to appellants in State v. Hyman,
276 &.C. 559, 281 8. k. 24 209 (1981); State v. Linder, supra; State v. Goolsby, supra,
State v. lyner, supra.
Next, appellants argue the trial court erred in disqualifying Anthony Gadsden,
a member of the venire, because of his strong feelings against the death penalty where the
record did not show he was irrevocably committed to vote against imposition of the death
penalty. The questioning process of Mr. Gadsden, viewed in its entirety, clearly
demonstrates his unvillingness to vote for the death penalty. The questioning process was
consistent with the standards established in Witherspoon v. Illinois, 261 U.S. 510 (1968).
Thus, the trial court did not err in disqualifying Mc. Gadsden for cause.
Appellants next argue the trial court erred in qualifying a venireman who
indicated he would impose the death penalty in every case of aggravated murder. The
questioning process of this venireman clearly demonstretes he would not impose the death
penalty in every case of aggravated aurder, but would follow the trial court's instructions
and bring in 3 life sentence if he thought it was proper. This excep(ion is meritless.
Le
| (
THE STATE v. COPELAND, ET AL.
Appellants argue the solicitor's closing argument at the firse phase of the trial
was improper. In his closing argument, the solicitor stated, "(Danny Ray Coker) is going
to prison for at least — I submit to you for somewhere around twenty yer. Allegedly,
this statement is not supported by evidence established at trial and attempts to bolster
the credibility of the State's key witness by distracting the minds of the jurors from the
fact that Coker received complete imaunity from prosecution in exchange tor his test imony
Throughout the record is testimony that Coker will be sentenced to one - twrnt
(1-20) years for various crimes he comaltted in Sumter. We do not see how the tet that
Coker will be sentenced for other crimes he committed could in any way bolster his
credibility. In addition, the solicitor discusses the immunity agreement with Coker an the
next paragraph of his argument. Thus, rather than distracting the minds of the jurors trom
the fact that Coker is receiving complete immunity from prosecution for his part in these
curdera, the solicitor calls this fact to their minds.
The trial judge has wide discretion in dealing with the range and propriety of
tre solicitor’s argument to the jury, and ordinarily his rulings on such matters will not
be disturbed. State v. Durden, 264 8. C. 86, 212 8. K. 2 587 (1975). We find no error.
kent, appellant Copeland argues the trial judge improperly commented on the facts
during bis instruction on the law concerning the presumption of innocence, and thereby
injected his opinion thereof. The instruction complained of is as follows:
The presumption of innocence accompanies the defendant
throughout the trial of this case and, when you go to the jury
room to deliberate, it follows the defendant there with you and
it entitles hin to a verdict of not guilty at your hands until
such time as you are convinced that the State of South Carolina
has proven to your satisfaction that the defendant is guilty
beyond a reasonable doubt. And if the state has watisfied you
of the defendant's guilt bayond « reasonable doubt, then tl st
presumptiva of innocence disappears; and you would write a yoclict
that spesks the truth of this controversy. (Emphasio added.)
No rea dle interpretation of this portion of the trial judge's charge can result in the
conclusion that he commented on the facts and injected his opinion as to the guilt of
appellanc. This exception is frivolous and without merit.
Appellaats next argue the trial judge ecred in defining reasonable doubt as
doubt that is well founded in reason” and "a substantial doubt.” The trial judge“
definition of reasunable doubt is well within the guidelines set by this Court. State v.
Butler, ___ §.C. , 290 8. k. 24 1 (1982); State v. Criffin, 8. c. —
225 8.1. T 631 (1981). There is no error.
Appellant Copeland argues the trial judge erred in refusing to inatruct the jury
that their sentencing recommendation would be binding upon the trial judge. We resolved
this issue in State v. Linder, supra, at 338-339.
Use of the word “recommend” by the trial judge or solicitor is
not per se suspect. Under the statute “recommendation” is the
ters applied to the jury's function at this phase of the trial.
To instruct the jury that it will recommend what sentence the
convicted wurderer will be given is not improper and does not
mask the true nature of the jurors’ responsibility at this phase
of the trial.
We find no error.
Appellants argue the trial court erred in failing to instruct the jury that a
police officer's testimony concerning 4 witness's statement prior to trial which is
inconsistent with that witness's statement made at trial, is to be considered soluly tor
inpeachtent purposes. Lieutenant ‘iettles of the Berkeley County Sheriff's Depoctment
testified that Bilangie Thomas, who was in « jail cell next to Coker, told him ti» guns
used in the surders of the three nen were buried behind Wesley Copeland's trailer.
Bilangla Thomas denied at trial telling Lt. Nettles anything concerning the guns. We neld
( (
THE STATE v. COPELAND, ET AL.
in State v. Vatren. 8. C. 2684 S.E.2d 355 (1981) that “when a prior inconsistent
statement is introduced to impeach a witness, the court, upon request, must instruct the
jury that it can consider such eviderce for the purpose Of impeachment only... ."
(Emphasis added). Were, appellants did not request the trial judge to instruct the jury to
consider Lt. Nettles’ testimony only for impeachment purposes.
Weretofore, South Carolina has followed the traditional rule that testimony
inconsistent statements is admissible osly to impeach the credibility of the witness.
Henceforth from today, we will allow testimony of prior inconsistent statements to be used
as substantive evidence when the declarant testifies at trial and is subject to cross
examination. We quote with approval the reasoning by the Supreme Court of Georgia in
Cibbonus v. State, 248 Ga. 858, 286 8. K. 2d 717, 721 (1982), in adopting this new prio:
inconsistent statement rule:
[Clommentators...suggest that the oath is not as strong a
guaranty of truch as once it may have been, and the
requirements that the jury observe the declarant and that
the defendant have an opportunity to cross-examine are met
where the declarant takes the stand and is subject to cross-
examination. The assertion by a person that the declarant
made s prior statement is not itself heresay, and the jury
can determine the credibility of the witness on that point.
With respect to the truth of the prior statement, the jury
has the opportunity to observe the declarant as he may
repudiate or vary his former statesent, and as he is cross-
examined. Thus, the jury can determine whether to believe
the present testimony, the prior testimony - or neither....
[Prior statenents...are made closer in time to the event in
question, when ot les are fresher, and...the traditional
rule requires the courts to give unrealisiic and confusing
instructions to the jury. See A Wigeore,
Evidence (Chadbourn rev.) § 1018; McCormick, Handbook of the
Law of Evidence, 2d „., § 251, Morgana, Neresay, Dangers and
the Application of the Mearsay Concept, 62 Harv. L. k. 177.
192 et seq. (19,60
We believe the adoption of this rule will more effectively aid in the discovery of truth,
and sore adequately insure the freedom of the innocent and the conviction of the guiity.
Appellant Copeland argues the trial court should have allowed introduction in the
sentencing phase of the results of the state's key witness's polygraph examination.
Copeland contends the examination revealed deception in some aspects of Coker'r stury, and
this would be relevant in the sentencing phane to show mitigating circumstances.
Generally, the results of polygraph examinations are inadmissible because the
reliability of the polygraph 1% questionable. We decline to create an exception to this
general rule in order to allow ad=a‘ssios of the results in the sentencing phase of this
bifurcated trial for the same reason that it is generally inadmissible - its queationale
reliability for scientific sccuracy.
Appellant Roberts argues the trial judge chilled appellant's right to testify at
the sentencing phase of the trial by allegedly advising his erroneousiy that his testimony
would be adeissible in another court if there were a new trial. In response to Roberts’
request for advice a» to whether his testimony at the sentencing phase could be used
against him at a new trial, the trial judge stated:
"All right, sir. I cannot tell Mr. Roberts whether to take
the stand or not. That is a decision that he will have to
make. Of course, as you know, if there is a new trial, thet
record would be adaissible in another court.”
In State v. Cilbert, 2718 C. 690, 258 8. K. 2d 890, 894 (1979), we stated:
Each accused, with the assistance of counsel, makes this
decision [not to testify) as a part of his trial strategy.
( (
THE STATE v. COPELAND, ET AL.
Under the first principle of ethics and justice, a defend-
ant who secures a ruling of the court, albeit erroneous,
should not be permitted to profit...from the court's assent
to an impruper trial strategy.
Roberts relies on State v. Adams, 8. C. 283 S.E.2d 582 (1981), to suppoct
his position that his testimony at the sentencing phase cannot be used against hia in
determining his guilt or innocence ata sew. trial. Roberts,.with assistance of counsel,
chose not to testify at his sentencing proceeding. Appareatly, he inferred from the trial
judge's remarks that his testimony at that proceeding might be used against him in the guilt
or innocence phase of a new trial of the case should there be one. The trial judge dia noc
specifically advise Roberts as to that satter, aud Roberts did not ask for a clarification;
therefore, we cannot say the trial judge's statement was erroneous. Moreover, the defendant,
with assistance of counsel, is the one to decide whether to testify at his trial. He cannot
be permitted to profit from his faulty interpretation of the trial court's statement.
Appellant Roberts argues the soliciter improperly inserted his own opinion Chat
capital punishment deters crime into hts closing argument at the sentencing phase of the
trial. We disagree.
"While the solicitor should prosecute vigorously, State v.
Davis, 239 $.C. 280, 122-S.£.2d4.633, his duty is not to
convict a defendant but to.see justice done. State v. Allen,
266 S.C. 468, 224 8. K. 2 881 (1976). The solicitor’s closing
argument must, of course, be based upon this principle. The
argument therefore must be carefully tailored so as not to
appeal to the personal bias of the juror nor be calculated to
arouse his passion or prejudice. State v. White, 246 S. c. 502,
144 s. E. 2d 461 (1965). The trial judge is vested with a broad
discretion in dealing with the propriety of the argument of the
solicitor to the jury. State v. Durden, supra. Once the trial
judge has allowed the argument to stand, as here, the defendanc
must bear the burden of demonstraticg that the argument in
effect denied his a fair determination of his guilt or innocence.
On appeal, this Court will review the alleged impropriety of
argument in the context of the entire record.”
State v. Woomer, 8. C. „ 284 8. K. 24 357, 359 (1981) [quoting Ststa v. Linder,
276 S.C. 304, 278 Fr. 24 335, 339 (1981)).
Viewing the argument in the context of the entire record, we find the solicitor's
arguzent is properly within the guidelines set by this Court.
Appellant Copeland argues the trial judge erred in denying his request to instruct
the jury of the actual effect of failure to reach a unaninous agreement ss to punishmeat,
and in instructing the jury that .unaniaity is required before a life sentence can be
izposed. Copeland asserts the judge misstated the applicable law and inserted an arbitrary
factor into the jury's sentencing decision by lastruct ag “irrespective of what your verdict
or recommendation is, it must be unanimous oo each count, that is, your verdict or recos-
cendation ast be the verdict or recommendation of all twelve of you." Allegedly, this instruction
night affect the jury's decision to impose life or death unless the jury is instructed that, in the
4e: all cannot agree on a recommerdation as to whether the death penalty should be inrosed, te
trial judge shall dismiss the jury and sentence the defendeat to life imprisonment. ‘Ye disagree.
The trial judge correctly stated the applicable law. We stated in State v.
A, supra, at 587:
The language of (§ 16-3-20(C)] provides that here a sentence
of death is not recommended by the jury, « life sentence must be
given. The situation implicitly envisioned here is that normally
the jury will unanisously either. recomend life or death. The
undecided jury is the exception. That portion of the statute
addressing the legal effect given to the existence of an unalter-
ably divided jury is addressed to the trial judge only and need
not be divulged to the jury.
0 C
THE STATE v. COPELAND, ET AL.
Appellants next argue the trial judge's charge and written statutory instructions
concerning mitigating circumstances were insufficient to alert the jurors that they could
consider mitigating circumstances other than the nine statutory mitigating circumscances.
Section 16-3-20(C) of the Code requires the trial judge to instruct the jury to
consider “any mitigating circumstances otherwise authorized or allowed by low and any .
*
statutory . . . mitigating circumstances... . The trial judge fully complied with
this provision. This exception is without merit.
Appellant Copeland argues the trial court erred in failing to instruct the jury
that life imprisonment means one will actually spend his life in prison. Copeland assets
the jury will consider the possibility of parole in its deliberations and the tailure ol
the trial court to instruct the jury not to consider it injects an arbitrary factor into
the trial. Again, we disagree.
The jurors were instructed to base their decisions solely upon the evidence
adduced et trial and the law as instructed by the trial judge. While it is true thac
possibility of parole should not be considered by the jury, it ie not the duty of the trial
court to anticipate or speculate that jurors might consider it in their deliberations and
instruct them accordingly. To do so may, in fact, inject consideration of parole into
their deliberations where it say not before have been.
Appellants next argue the trial judge should have instructed the jury that
they must find the death penalty is appropriate beyond a reasonable doubt. The trial
judge repeatedly instructed the jurors they must find the existence of a statutory
aggravating circumstence beyond a reasonable doubt before they could impose the death
penalty. He further instructed the jurors that they could recommend a sentence of lile
imprisonment even if they found the existence of a statutory aggravating circumst ince
beyond a reasonable doubt. The jurors must have had the phrase “beyond a reasonal\e
doubt" firmly etched in their minds at this point in the bifurcated trier Surely,
appellants would not have us believe a person of ordinary sensibilities would recommend
imposition of the death penalty if he had a reasonable doubt that it was an appropriate
sentence in that case. This exception is frivolous and without merit.
This appesl represeats the sixth occasion for this Court to perform the
statutory function known as “proportionality review,” mandated by f 16-3-25(C) of the Code.
(1977 Act No. 177, section 2, eff. June 8, 1977.) State v. Thompson, _-—sS«.C. ~Sics
292 8. E. 2d 581, cert. denied, 102 S.Ct. 1996 (1982); State v. Butler, supra; State v.
Cilbert, supra; State v. Hyman, supra; State v. Shay, 273 S.C. 194, 255 8. k. 2d 799,
cert. denied, 644 U.S. 957 and Roach v. South Carolina, 444 U.S. 1026.
Appellant Copeland attacks the constitutionality of the South Carolina death
penalty regime on the basis of this Court's interpretation of § 16-3-25(C) of the Code.
The issue is raised in the face of the very recent holding in State v. Thompson, supca,
published well before appellant's brief was fil» i. The issue is raised without the
benefit of a petition under Supreme Court Rule b, section 10, and amounts in our view
to a “reopening of closed questions” as discussed in State v. Truesdale, Smith's Advance
Sheets, Opinion No. 21799, filed October 19, 1982. Normally the issue would be dismissed
without comment. We deem it appropriate, however, to make one final pronouncement on
the proper interpretation of § 16-3-25(C) at this time.
The General Assembly of South Carolina has clearly made the policy determination
that proportionality review by this Court shall be accorded capital defendants who
actually receive s sentence of death. The language of § 16-3-25(C) puts three question:
before this Court for review in a given case:
1. Whether sentence of death was imposed under the
influence of passion, prejudice, or any other arbitrary
factor, and
2. Whether the evidence supports the jury's or judge's
finding of a statutory aggravating circumstance as
in section 16-3-20, and
a T .
." ra” aaa” | ale
THE STATE v. COPELAND, ET AL.
3. Whether the sentence of death is excessive or ‘
disproportionate to the penalty imposed in similar
cases, considering both the ccime and the defendant.
It is the third inquiry which constitutes proportionality review in South Carolina.
Under the statute, the task of defining “similar cases" and with it the scope of any
comparative analysis is plainly and properly left to this Court. As indicated below,
both the statutory language and the nature of the task give rise to perplexity. There
is, after all, some logic to the view that the heinous crime is sui generis, simply
beyond comparison.
A complex of federal constitutional issues has enveloped all death penalty
statutes since Furman v. Georgia, 408 U.S. 238 (1972). This Court has taken careful noce
of U. S. Supreme Court decisions touching upon proportionality review, and we find in chase
decisions a profound tension between the requirement of individualized sentencing and tlh
notion of comparative review. The avoidance of an arbitrary and capricious pronouncement
of the death sentence has now been declared a constitutional mandate. It compels the cries
of fact to make specific findings with respect to the particular circumstances of a capital
crime and the indlivii.al defendant. Bell v. Ohio, 438 U.S. 637 (1978); Lockett v. Ohio,
438 U.S. 586 (1978); (Stanislaus) Roberts v. Louisiana, 428 U.S. 325 (1976); Woodson v.
North Carolina, 428 U.S. 280 (1976); Jurek v. Texas, 428 U.S. 262 (1976); Proffitt v.
Florida, 428 U.S. 242 (1976); Cregg v. Georgia, 428 U.S. 153 (1976). Ia like manner, these
cases encourage, vhile not mandating, an appellate review which accords priority to the
particular and distinctive features of each defendant as well as the specific circumstances
of the crime for which the death sentence has been imposed. The ultimate outcome, it is
svpgested by these decisions, should be the infliction of capital punishment upon only
those individuals who have been culled from all other defendants by a process which high
lights the unique attributes of their personalities and their crimes.
From a logical standpoint, of course, that which is unique is also incommensur ble
Here nm lies the conflict between particularired sentencing (and review) and the notion
comparing “similar cases." Clearly, a comparative review cannot be permitted to diminis:
the particularized quality of sentencing, since the latter is now an absolute command of che
u. 8. Constitution. By the same token, the final resolution of a given appeal, if sentcnie
is to be affirmed, should rest upon the unique correctness of the result in the given
instance rather than its coarse resemblance to other cases.
We find that the b. 8. Supreme Court has ioplicitly recognized this tension in
that it hes carefully avoided imposing any model of appellate review upon the states. Most
obvious in the fact that the Texas statute, scrutinized in Jurek v. Texas, supra, provided
for no proportionality review whatever. Equally striking is the absence in either Crepe v.
Georgia, supra, or Proffice v. Florida, supra, of any language elevating compa ative
proportionality review to constitutional prominence. We conclude that the proper balancing
of particularized snd comparative review, if any, has been left to the states as an
“interstitial” matter not appropriate for federal constitutional resolution. "Developments
in the Law--State Constitutions,” 95 Harvard Law Review 1324, 1356 (1982).
Aside from the problematical nature of this balancing task, there may be other
grounds for the apparent reluctance of the U. S. Supreme Court to impose a single model of
appellate review upon the states. Comity and diversity of state death penalty regimes
present obvious difficulties, although they have not deterred rulings of sweeping effec: in
the past. See (Stanislaus) Roberts v. Louisiana, supra; Woodson v. North Carolina, sup~s;
Furean v. Georgia, supra. By way of example, we note that § 16-3-25(C) of the Code, beirs
&@ strong resemblance to GA CODE ANN. § 27-2537(c) (Supp. 1975), which vas challenged and
discussed in Cregg v. Georgia, supra. The South Carolina Code, however, does not spec Ay
the “universe” of similar cases as does § 27-2537(c) of the Georgia Code. Reading Greg; v.
Ceorgie, supra, along with Proffite v. Florida, supra, we must conclude that the
U. 8. Supreme Court has elected to allow diversity azong the states to continue, at least
in determining the scope of any comparative review.
Encouraging diversity among the states ic, of course, a practice that coaports well
with the basic concept of federalise. It has been explicitly approved by the U. 8. Sup: cme
Court in the very setting of criminal lav. Speaking for a unanimous Court in Addington v.
Tens, 441 U. S. 418, 431 (1979), Chief Justice Burger stated: “The essence of tedecalisn
is that states must be free to develop a variety of solutions to problems and not be torced
11
( (
THE STATE v. COPELAND, ET AL.
into a common, uniform mold.” In the same spirit is the “celebrated dictum" of
Justice Brandeis in which the individual states vere compared to laboratories of socia!
and economic experimentation, a view taken on many occasions since it was first expressed
in New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (dissenting opinion). See
Brooks v. Tennessee, 406 U.S. 605, 617 (1972) (Burger, C. J.. dissenting); Duncan v.
Louisiana, 391 U.S. 145, 193 (1968) (Harlan, J., dissenting); Fay v. New York, 332 U.S. 01,
296 (1947) (Opinion of Jackson, J.).
Imposition upon the states of a single design for proportionality review would
represent a massive intrusion upon the integrity of state governments within the fede:
scheme. We cannot assume that the United States Supreme Court would take such a step '
mere implication or inadvertence. Rather, we believe such a dramatic curtailment of state
autonomy would be openly announced and most likely heralded by decisions preparing a
foundation.
Neither formal announcement nor suggestive precedent reveals itself in any o:1 th
post-Furman decisions. The due process clause of the Fourteenth Amendment to the
U. S. Constitution does not even require states to provide appellate reviev, as was
indicated in Ortwein v. Schwab, 410 U.S. 656, 661, (1973), citing o line of prior decisions
including Lindsey v. Normet, 405 U.S. 56, 77 (1972); Griffin v. Illinois, 351 U.8. .
18 (1956); District of Columbia v. Clawans, 300 U. 8. 617, 627 (1937); McKane v. Durston,
153 U.S. 684 (1894). We find no suggestion that, where state appellate review is granted
the U. 8. Supreme Court has mandated any particular mode of conduct, to say less of ruling
any mode unconstitutional. Likewise there is no hint that the doctrine of equal protection
requires comparative review at the state level. Indeed the application of an equal
protection analysis would take the Supreme Court of the United States into the very process
of defining "similar cases" which it hae declined to enter heretofore. The existence o'
similarly situated persons is after all a logical precondition for denial of equal
protection.
As indicated above, none of the Eighth Amendment decisions following Gre
Georgia, supra, have imposed or suggested a preferred method of state appellate re ftew. in
the final analysis, it appears that the U. S. Supreme Court itself looks only to the
ultimate result, which is preventing the imposition of excessive and disproport low «te
punishment upon the individual petitioner. In Coker v. Georgia, 433 U.S. 584 (197%) the
v. 8. Supreme Court vacated a “disproportionate” sentence of death for the crime of fips
In its opinion, the Court made no mention of the Georgia appellate process. While the Court
conducted a modified “proportionality review" of its own, the ultimate result was resched
independently for, in the words of Justice White, "the Constitution contemplates tha: an the
* *
end our own judgment will be brought to bear on the question of the acceptability of t'«
death penalty under the Eighth Amendment." 433 b. 8. at 598. See ele Enmund v. Fivr ic
Supra - Another arguably disproportionate sentence was vacated in Godfrey v. Georgia,
446 U.S. 420 (1980). The U. S. Supreme Court there devoted some attention to actinus © the
Supreme Court of Georgia. The basis of the decision, however, was not the matter o1 cevirw
but the overly broad reading which Georgia had given to one of its statutory aggrava. sg
ciccumstances. It is thus apparent that the Eighth Amendment to the U. 8. Constitution does
not mandate any mode of appellate review, or even appellate review as such, but on!“
outcome. That outcome, again, is a penalty imposed on a meaningful basis which can b,
sustained as neither excessive nor disproportionate in light of the crime and the delcadant.
We conclude from the foregoing that the contours of proportionality review, where
it exists, have been left to state determination since the U. 8. Supreme Court has dev! ined
to impose any specific model of review upon the states. $ 16-3-25(C) of the Code repre-
sents an act of legislative grace by the General Assembly which ve are required to
interpret in accordance with sound rules of statutory construction.
In our view, the search for "similar cases” can only begin with an actual
conviction and sentence of death rendered by a trier of fact in accordance with § 16-)-20
of the Code. We consider such findings by the trial court to be a threshold requicem \'
for comparative study and indeed the only foundation of “similarity” consonant with our
role as an appellate court.
We recognize that in some jurisdictions and commentaries it fe felt that the
reviewing court should compare a given death sentence with a “universe” of cases whic!
includes sentences of life imprisonment, acquittals, reversals and even mere indictments
and arrests. Under such a regime, the reviewing court could only determine the sizv o! its
12
( (
THE STATE v. COPELAND, ET AL.
sample or “universe” by some arbitrary device. Fact findings of the grial court, by
contrast, provide a fundamental line of demarcation well recognized in and even exalted y
our legal tradition. The decisive importance of such findings is evidenced by the language
of Article v, section 5, South Carolina Constitut.on, which limits our review to “correction
ef errors at law" in all but equity cases.
To expand the notion of a “universe” would also entail intolerable speculation by
this Court. Under the South Carolina statute, a jury is not required to state its reasons
for failing to recommend a sentence of death. In a given case, the alleged aggravating
circumstance may not have been proven to the satisfaction of the jury, while in another
„al dar case" (expansively defined) the statutory mitigating circumstances or some
mitigating factor “otherwise authorized or allowed by law" may have deterred imposition
the death sentence.
This Court would enter a realm of pure conjecture if it attempted to compare anc
contrast such verdicts with an actual sentence of death. They represent acts of mercy which
have not yet been held to offend the United States Constitution. Moreover, they reflect the
emphasis upon individualized sentencing mandated by the Un ted States Supreme Court. We
will not subject these verdicts to scrutiny in pursuit of phantom “similar cases," when 4
meaningful sample lies ready at hand in those cases where the jury has spoken unequivocally.
It is axiomatic, of course, that a death sentence infected by prejudicial trial
error is a nullity which must be categorically rejected from any comparative review of
properly imposed death sentences. Thus our prior de isions vacating and remanding death
sentences for retrial must be disregarded in the course of proportionality review. State v.
Trvesdale, supra; State v. Patterson, Smith's Advance Sheets, Opinion No. 21788,
filet September 13, 1982; State v. James Anthony Butler, _ s. C. 290 8. k. 24 420 (1982);
State v. Woomer, 8. C. 284 S. k. 2d 357 (1981); State v. Plath, supra; State v. Adams,
supra; State v. Linder, supra; State v. Woomer, 276 8. c. 258, 277 8. k. 2d 696 (1981); State v.
Goolsby, supra; State v. Tyner, supra.
It is of no consequence that the South Carolina “universe” has consiated of only
five cases to this date. State v. Shaw, supra, presente! the first occasion for propor
tionality review under our current statute. We noted then that no similar cases existed,
but the sentence imposed was none the less appropriate and neither “excessive” nor
“disproportionate” considering the crime and the defendants. Indeed, a comparable crime
involving sultiple surder by two or more accomplices, ‘n the course of armed robbery,
kicnapping and rape, attended by unspeakable cruelty and mutilation, has yet to come before
this Court. Shaw, thus, constitutes a category unto itself.
In like manner. the succeeding three cases of State v. Hyman, supra, State v.
Gilbert, supra, and State v. Thompson, supra, proved “similar” in only the os: superficial
terner—t hat is, the aggravating circumstance in each instance was armed robbery. The
transcripts of these cases are public records, as pointed out in Thompson, supra, and when
inspected reveal significent differences between thee.
William Gibbs Hyman conspired with four other persons to rob two elderly brothers.
The conspirators made their way at nightfall to the ict tos home where stealth and decep-
tion were initially employed. Failing in their first foray, the conspirators epplied
wiolesce. One of the victims was able to fire a shot from within before the home was
stormed. From the testimony, a jury could have concluded that the decedent was killed by
a shot-gun blast fired by Hyman at close range while the victim stood disarmed. It appears
that everyone at the scene was intoxicated, but the defendant was sufficiently sober to
continue d-wand ing money while he beat the surviving brother with one of the two weapons
involved. Mitigating testimony was offered by a clergyman as well as family members who
related personal frustrations and tensions suffered by the defendant at some time befor
the killing. In addition, the defendant himself took the stand to express his remorse.
The jury recommended a sentence of death and we affirmed, considering the penalty neither
eccessive nor disproportionate with respect to the crime and the defendant and notwith-
standing the lack of any truly “similar” case to that point in time.
Larry Gilbert and J. b. Gleaton, brothers of whom Gleaton is the elder, robbed
and gurdered the operator of a filling station shortly after noon following a morning spent
crvising in their autozobile in search of (and possibly using) drugs. In the course of che
robbery, the victim wes savagely stabbed seven times as he struggled with Gleaton and was
( (
THE STATE v. COPELAND, ET AL.
shot once by Gilbert. From the testimony, a jury could have inferred that the shot was
fired while the victim lay on the floor of his business establishment. A witness testified
that one of the assailants laughed at the victim in his agony, which testimony was sharply
contested by defendants. Mitigating testimony was taken from a clergyman and the
defendants’ mother. Gilbert and Gleaton in turn took the stand to state that they herd
acted on impulse and had intended no harm to the vict ia. The jury recommended death sen-
tences, and we affirmed. The cases of State v. Shaw, supra, and State v. Hyman, mn;
offered no assistance by way of comparison, particularly since the latter case had involved
an elaborate, aulttparty scheme to rob and the use of weapons by the robbery victim» in
the crime of Gilbert and Cleaton, the deceased vas unarmed and could only use bis hands to
ward off the repeated thrusts of the ku‘fe. We held the sentence of death to be neither
excessive nor disproportionate considering the crime and the defendants.
Albert "Bo" Thompson shot and killed the proprietor of a small store in the
course of a robbery. In fact the defendant shot his victim twice, the second time in the
face from close range. Testimony of an accomplice indicated that the defendant, on the
morning of the incident, had determined to rob someone somewhere and that one other store
was reconnoitered before that of the victim was chosen. No mitigating testimony was
offered, unlike the cases of Hyman, Cilbert and Gleaton. The jury was asked only to
consider the defendant's age as well as a brief unsworn statement by him in the course of
which he wept and asserted that the killing war an accident. Thompson's crime differed
from those of Hyman, Gilbert and Gleaton in other respects, too. The latter defendants all
offered some evidence of acting under the influence of alcohol or drugs, while Thompson
inferably acted with a clear mind and cool deliberation. Thompson fired the fatal shots,
it appears, after his accomplice left the store, whereas Hyman, Gilbert and Gleaton k:lled
their struggling victims in the presence of others or one another. The jury could
reasonably have concluded that Thompson acted alone in committing a senvelesa murder withouc
even @ pretext of justification. The jury recommended a sentence of death and, notwith-
standing the lack of a truly “similar” case for guidance, this Court found the sentence
neither excessive nor disproportionate with res ect to the crime ard the defendant. In the
course of proportionality review, this Court exs ines the record through the eyes of the
sentencing authority. In the case of Thompson, however, this Court could not avoid noting
that ve had previously affirmed his conviction for an armed robbery occurring oubsequent to
this murder, one in which the defendant had again held a gun to the head of the robbery
victim. State v. Thompson, 276 S.C. 616, 281 5K. 2d 216 (1981). At trial the State had no
opportunity to offer this conviction in evidence, yet it clearly would have rebutted
mitigating arguments under § 16-3-20(C)(b) (1) of the Code. We do not consider it amiss to
recognize such information regarding an appellant in the course of our final proportionslicy
review.
The remaining case of State v. Horace Butler, supra, involved the abduction, rape
and murder of an eighteen-year-old girl as she left her place of employment after derk.
The defendant offered his poor record in school, his youth, and the fact that he had a
gmall child as mitigating «evidence. We affirmed the conclusion of the jury that a sentence
of death was neither ences ve nor disproportionate in light of the defendant's character
and his wanton crime. Wo truly “similar” case existed for comparison, and by the seme
token State v. Butler, supra, offers no guidance in thy review of the instant appeal.
Unlike previous cases involving surder and armed robbery, this appeal arises from
two separete atrocities occurring in e single night. Unlike lyman, Gilbert, Gleston and
Thompson, appellants Copeland and Roberts were not content to terrorize and slay their
victims where they found thes but instead transported thes to backroads execution sites.
Two of the victims were brought down by gunfire as they sought to escape. Thus sounded,
they were subsequently riddled with bullets as they lay on the ground. On the body of one,
a series of post-mortem stab wounds was also in‘licted.
Mitigating evidence for appellant Copeland was limited to the testimory of hus
former wife who vouched for the promptness of his alimony and child support payment
She also stated that she had never seen hin do anything cruel. More extensive mi: gating
tertimony was offered on behalf of appellant Roberts. Family members as well as « tresned
psychologist revealed that Roberts had suffered an uchappy childhood, problems in school,
the recert traumatic slaying of a brother, drug abuse and injuries in fights and car
accidents. Roberts vas characterized as having an impulsive personality and being easily
led by others. By way of the trial court's charge to the jury, Roberts received the tull
benefit of the relevant statutory eitigating circumstances. In the end it is probable that
the jury relied on the psychologist's own statezent that Roberts’ prognosis for
“straightening up" was poor.
14
( (
THE STATE v. COPELAND, ET AL.
It is our conclusion that no "similar" case exists that would permit meaningful
comparative review of these death sentences. In view of the facts set forth above, however,
we are satisfied that the sentence of death imposed on each of these appellants was
appropriate and neither excessive nor disproportionate in light of their crimes and their
respective characters. The sentences are accordingly affirmed.
It should now be clear that proportionality review in South Carclina is firs: and
foremost directed to the particular circumstances of a crime and the specific character of
the defendant. Comparative review will be thereafter undertaken if possible. Without
hazarding a prediction, ve can imagine that the “universe” of similar cases will gradi
expand in the fullness of time. At present, South Carolina has found the death penalty '
be neither excessive nor disproportionate in six distinct cases: (1) where one or mor
defendants rob, abduct, rape and murder one or more victims in circumstances which starkly
reveal the malignant character of the defendant or defendants; (2) where a victim, armed
and defending himself, is slain by an intruding defendant who is himself armed (and possibly
intoxicated) while engaged in robbing the deceased; (3) where two or more defendants, on
impulse or even while intoxicated rob and murder an unarmed struggling victim in hin place
of business; (4) where a single defendant, alone with an unarmed and unresisting victin,
robs and without mitigation whatever murders the deceased; (5) where a single defendant
kidnaps, rapes and murders a victim; (6) where one or more defendants perpetrate multiple
offenses by robbing, kidnapping and murdering one or more victims in each separate incident.
As comparable cases arise, they will be reviewed against this background. As dissimilar
circumstances may lead to affirmed sentences of death, new classes“ or types of capical
cases will be added to the existing “pool.”
In the foregoing construction of § 16-3-25(C) of the Code, this Court has paid
particular attention to the reasoning adopted by three members of the U. 8. Supreme Courc,
speaking through Justice White, in Gregg v. Georgia, supra. Ar he understood the propor
tionality function, it waa to serve as a mechanism to monitor imposition of death sentences
vithin “classes” or types of crimes, those “classes” and “types” being determined by the
statutory aggravating circumstances in a given state scheme, 428 U.S. at 223-224. In ou
concluding passage, Justice White in essence stated the philosophy underlying our definits
of “cinilarity” as he answered complaints that the Georgia statute permitted uncon.titul
acts of discretion:
Petitioner's argument that there is an unconstitutional
amount of discretion in the system which separates those
suspects who receive the death penalty from those who receive
life imprisonment, a lesser penalty, or are acquitted or never
charged, seems to be in final analysis an indictment of our
entire system of justice. Petitioner has argued, in effect,
that no matter how effective the death penalty may be as a
punishment, government, created and run as it must be by
humans, is inevitably incompetent to administer it. This can-
not be accepted as a proposition of constitutional lav.
Imposition of the death penalty is surely an avesome responsi-
bility for any system of justice and those who participate in
it. Mistakes will be made and discriminations will occur which
will be difficult to explain. However, one of society's most
basic tasks is that of protecting the lives of its citizens and
one of the most basic ways in which it achieves the task is
through criminal laws against murder.
§ 16-3-910 of the Code provides that one shall suffer the punishment of lite
inprisonment for kidnapping unless sentenced for murder as provided in § 16-3-20. Sin«
a pcllants were sentenced for murder, as provided in § 16-3-20, their sentences of lite
inprisonment for kidnapping are vacated. Their convictions and sentences are otherwise
affirmed. A search of the entire record reveals no other error.
AFFIKMED.
LEWIS, C.J., LITTLEJOHN, NESS and HARWELL, JJ., concur.
15
APPENDIX B
S.C. Code §16-3-20. Punishment for murder:
spearate sentencing proceeding to determine
whether sentence should be death or life
imprisonment.
(A) A person who is convicted of or pleads
guilty to murder shal) be punished by death
or by imprisonment for life and shall not be
eligible for parole until the service of twenty
years, notwithstanding any other provisions of
law. Provided, however, that notwithstanding
the provisions of this section, under no circum-
stances shall a female who is pregnant with child
be executed so long as she is in that condition.
(B) Upon conviction or adjudication of guilt
of a defendant of murder, the court shall conduct
a separate sentencing proceeding to determine
whether the defendant should be sentenced to death
or life imprisonment. The proceeding shall be
conducted by the trial judge before the trial jury
as soon as practicable after the lapse of twenty~-
four hours unless waived by the defendant. If
the trial jury has been waived by the defendant
and the State, or if the defendant pleaded guilty,
the sentencing proceeding shall be conducted before
the court. In the sentencing proceeding, the jury
or judge shall hear additional evidence in extenua-
tion, mitigation or aggravation of the punishment.
Only such evidence in aggravation as the State
has made known to the defendant in writing prior
to the trial shall be admissible. This section
shall not be construed to authorize the introduction
of any evidence secured in violation of the Consti-
tution of the United States of the State of South
Carolina or the applicable laws of either. The
State, the defendant and his counsel shall be per-
mitted to present arguments for or against the
sentence of death. The defendant and his counsel
shall have the closing argument regarding the
sentence imposed.
(C) The judge shall consider, or he shall include
in his instructions to the jury for it to consider,
any mitigating circumstances otherwise authorized
or allowed by law and any of the following statutory
aggravating and mitigating circumstances which may
be supported by the evidence:
(a) Aggravating circumstances:
(1) Murder was committed while in the commission
of the following crimes or acts: (a) rape, (b) assault
with intent to ravish, (c) kidnapping, (d) burglary,
(e) robbery while armed with a deadly weapon, (f) larceny
with use of a deadly weapon, (g) housebreaking, and
fp killing by poison and (i) physical torture
(2) Murder was committed by a person with a prior
record of conviction for murder;
(3) The offender by his act of murder knowingly
created a great risk of death to more than one person
in a public place by means of a weapon or device which
would normally be hazardous to the lives of more than
one person;
(4) The offender committed the offense of murder for
himself or another, for the purpose of receiving money
or any other thing of monetary value;
(5) The murder of a judicial officer, former judicial
officer, solicitor, former solicitor, or other officer
B2
of the court during or because of the exercise
of his official duty;
(6) The offender caused or directed another to
commit murder or committed murder as an agent
or employee of another person;
(7) The offense of murder was committed against
any peace officer, corrections employee or fire-
man while engaged in the performance of his
official duties.
(b) Mitigating circumstances:
(1) The defendant has no significant history of
prior criminal conviction involving the use of
violence against another person;
(2) The murder was committed while the defendant
was under the influence of mental or emotional
disturbance;
(3) The victim was a participant in the defendant's
conduct or consented to the act;
(4) The defendant was an accomplice in the murder
committed by another person and his participation
was relatively minor;
(5) The defendant acted under duress or under the
domination of another person;
(6) The capacity of the defendant to appreciate
the criminality of his conduct or to conform his
confuct to the requirements of law was substantially
impaired;
(7) The age or mentality of the defendant at the
time of the crime;
(8) The defendant was provoked by the victim into
committing the murder;
(9) The defendant was below the age of eighteen
at the time of the crime.
The statutory instructions as to aggravating and
mitigating circumstances shall be given in charge
and in writing to the jury for its deliberation.
The jury, if its verdict be a recommendation of
death, shall designate in writing, and signed by
all members of the jury, the aggravating circum-
stance or circumstances which it found beyond a
reasonable doubt. In nonjury cases the judge shall
make such designation. Unless at least one of the
statutory aggravating circumstances enumerated in
this section is so found, the death penalty shall
not be imposed, Where a statutory aggravating
circumstance is found and a recommendation of death
is made, the court shall sentence the defendant
to death, The trial judge, prior to imposing the
death penalty, shall find as an affirmative fact
that the death penalty was warranted under the
evidence of the case and was not a result of pre-
judice, passion, or any other arbitrary factor.
Where a sentence of death is not recommended by
the jury, the court shall sentence the defendant to
life imprisonment. In the event that all members
of the jury after a reasonable deliberation cannot
agree on a recommendation as to whether or not the
death sentence should be imposed on a defendant
found guilty of murder, the trial judge shall dismiss
such jury and shall sentence the defendant to life
imprisonment. The jury shall not recommend the
death penalty if the vote for such penalty is not
unanimous.
S.C, Code §16-3-25, Punishment for murder: re-
view by Supreme Court of imposition of death penalty.
*
B3
(A) Whenever the death penalty is imposed, and
upon the judgment becoming final in the trial court,
the sentence shall be reviewed on the record by
the Supreme Court of South Carolina. The cle: of
the trial court, within ten days after receiving the
transcript, shall transmit the entire record and
transcript to the Supreme Court of South Carolina
together with a notice prepared by the clerk and a
report prepared by the trial judge. The notice
shall set forth the title and docket number of the
case, the name of the defendant and the name and
address of his attorney, a narrative statement of
the judg»ent, the offense, and the punishment
prescribed. The report shall be in the form of a
standard questionnaire prepared and supplied by the
Supreme Court of South Carolina.
(B) The Supreme Court of South Carolina shall
consider the punishment as well as any error by way
of appeal,
(C) With regard to the sentence, the court shall
determine:
(1) Whether the sentence of death was imposed under
the influence of passion, prejudice, or any other
arbitrary factor, and
(2) Whether the evidence supports the jury's or
judge's finding of a statutory aggravating circum-
stance as enumerated in §16-3-20, and
(3) Whether the sentence of death is excessive or
disproportionate to the penalty imposed in similar
cases, considering both the crime and the defendant.
(D) Both the defendant and the State shall have the
right to submit briefs within the time provided by
the court and to present oral arguments to the court.
(E) The court shall include in its decision a
reference to those similar cases which it took into
consideration. In addition to its authority regarding
correction of errors, the court, with regard to review
of death sentences, shall be authorized to:
(1) Affirm the sentence of death; or |
(2) Set the sentence aside and remand the case for |
resentencing by the trial judge based on the record |
and argument of counsel, The records of those
similar cases referred to by the Supreme Court of
South Carolina in its decision, and the extracts
prepared as hereinafter provided for, shall be
provided to the resentencing judge for his consider-
ation. If the court finds error prejudicial to
the defendant in the sentencing proceeding con-
ducted by the trial judge before the trial jury as
outlined under Item (B) of §16-3-20, the court may
set the sentence aside and remand the case for a
resentencing proceeding to be conducted by the same
or a different trial judge and by a new jury impaneled
for such purpose. In the resentencing proceeding,
the new jury, if the defendant does not waive the
right of a trial j for the resentencing proceeding,
shall hear evidence in extenuation, mitigation or
aggravation of the punishment in addition to any
evidence admitted in the defendant's first trial
relating to guilt for the particular crime for which
the defendant has been found guilty.
The sentence review shall be in addition to
direct appeal, if taken, and the review and appeal
(P)
shall be consolidated for consideration. The court
shall render its decision on all legal errors, the
factual substantiation of the verdict, and the
validity of the sentence.
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1982
NO.
SAMMY DAVID ROBERTS,
PETITIONER,
V.
STATE OF SOUTH CAROLINA,
RESPONDENT.
CERTIFICATE OF SERVICE
I hereby certify that on this 7th day of February, 1983,
1 served three (3) copies of the Petition for Writ of
Certiorari in the above-captioned case, together with
one (1) copy of petitioner's Motion for Leave to Proceed
in Forma Pauperis, by depositing the same, postage prepaid,
in the United States mail addressed to Assistant Attorney
General Brian P. Gibbes, Office of the Attorney General,
State of South Carolina, P.O. Box 11549, Columbia, South
Carolina 29211. 1 further certify that all parties required
‘to be served have been so served.
Counsel for Petitioner
1401 Calhoun Street
Columbia, &.C. 29201
(803) 758-8601
tule
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1982
NO.
SAMMY DAVID ROBERTS,
PETITIONER,
V.
STATE OF SOUTH CAROLINA,
RESPONDENT.
MOTION FOR LEAVE TO PROCEED
IN FORMA PAUPERIS
Petitioner, Sammy David Roberts, respectfully moves this
Court for leave to proceed herein in forma pauperis, in
accordance with the provisions of Title 28, United States Code,
Section 1915, and Rule 46 of this Court. The affidavit of
petitioner in support of this motion is attached hereto.
Presented herewith is a petition for writ of certiorari
of the moving party.
Respectfully submitted,
1401 Calhoun Street
Columbia, &.C. 29201
Counsel for Petitioner.
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1982
NO.
SAMMY DAVID ROBERTS,
PETITIONER,
Vv.
STATE OF SOUTH CAROLINA,
RESPONDENT.
AFFIDAVIT OF SAMMY DAVID ROBERTS
IN SUPPORT OF MOTION TO
PROCEED IN FORMA PAUPERIS
I, Sammy David Roberts, being first duly sworn, depose and
say that I am the petitioner in the above-entitled case; that in
support of my motion to proceed without being required to pre-
pay fees, costs or give security therefor, I state that because
of my poverty I am unable to pay the costs of said proceeding
or to give security therefor; that I believe I am entitled to
redress.
I further swear that the responses which I have made to
the questions and instructions below relating to my ability
to pay the cost of prosecuting the appeal are true.
1. Are you presently employed? No
a. If the answer is yes, state the amount of
your salary or wages per month and give
the name and address of your employer.
b. If the answer is no, state the date your
last employment and the amount of the salary
and wages per month which you received. 1979
W925 en hows
2. Have u received within the past twelve months
any income from a business, profession or other form of self-
employment, or in the form of rent payments, interest, dividends,
or other source? pe
a. If the anewer is yes, describe each source of
income, and state the amount received from
each during the past twelve months.
3. Do you own any cash or checking or savings
account? No
a. If the answer is yes, state the total value
of the items owned.
4. Do you own any real estate, stocks, bonds, notes,
automobiles, or other valuable property (excluding ordinary
household furnishings and clothing)? __A/O
a. If the answer is yes, describe the property
anc state its approximate value.
5. List the persons who are dependent upon you for
support and state your relationship to those persons. hea <
I understand that a false statement or answer to any
questions in this affidavit will subject me to penalties for
— Kl.
SWORN TO d e before me
this 3 day of 3 „ 1983.
45 ge A 70 r South Carolina
My Commission Expires: A 87 e
perjury.
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.