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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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.

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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.

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