Petition — Gilbert v. South Carolina

PS ' FILED

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SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

LARRY GILBERT,

ZETITIONER,

V.

STATE OF SOUTH CAROLINA,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO

COURT OF COMMON PLEAS OF LEXINGTON COUNTY

SOUTH CAROLINA

Vance L. Cowden

William Lewis Burke, Jr.

School of Law

University of South Carolina

Columbia, South Carolina 29208

Counsel for Petitioner

QUESTIONS PRESENTED

I. Whether the court below correctly found that

petitioner was not denied effective assistance of counsel where

the uncontroverted evidence on the record established inter alia:

1) that trial counsel failed to conduct any independent

investigation to secure evidence or witnesses in migitation;

2) failed to secure a psychological evaluation of petitioner;

3) failed to investigate the effects of drugs on petitioner

at the time of the crime; 4) failed to present or argue evidence

of petitioner's lesser participation in the murder, and where

the resentencing trial judge characterized trial counsel's

performance as "deficient," “poor,” and "cavalier."

II. Whether the court below erred in finding that

trial counsel's joint representation of petitioner and codefendant

at the 1980 re-sentencing trial did not result in a conflict

of interest and a denial of petitioner's right to effective

assistance of counsel, where no inquiry was conducted by the

trial judge into adequacy of representation or the potential

for conflict of interest despite the trial judge's own belief

that petitioner was not being adequately or properly represented.

III. Whether the court below erred in finding that no

waiver by petitioner of his right to effective, conflict free

assistance of counsel at his 196 re-sentencing crial was

required where the testimony of re-sentencing trial judge

revealed that the trial judge's failure to conduct such an

inquiry resulted entirely from his erroneous belief that the

trial court was prohibited from acting to protect criminal

defendants’ Sixth Amendment rights to effective assistance of

counsel where counsel had been retained rather than appointed.

QUESTIONS PRESENTED ..... 2+ © see ee ee ees i

TABLE OF CONTENTS . 2. se ese eceeeeevreeve ii

TABLE OF AUTHORITIES ... 2 2 se se ee eves &

INTRODUCTION. 1

CITATION TO OPINION BELOW . 1

As is eee ae ee ee ee ae ee ee 2

CONSTITUTIONAL PROVISIONS INVOLVED 2

STATEMENT OF THE CASE . 2

REASONS FOR GRANTING THE WRIT ......+.+ +6 «ees 12

I. The decision below conflicts with the decision

of this court in Cuyler v. Sullivan and with

the decision of the Supreme Courc of Georgia

in Fleming v. State. .......

lL. The decision below presents the quintessence

of the roblems created by the variety of

standaras applied by the United States Courts of

Appeals and the highest state courts to claims

of ineffective assistance of counsel. As such

it involves an issue of substantial importance

and should be considered in conjunction with

Strickland v. wastingron., No. 82-1554 and

te tates v. Cr c, No. 82-660, which ar

12

currently pending betore this court. ... . 16

ee 8 ee eae ee ee 18

APPENDICES

APPENDIX A. Order of the Court of Common Pleas

for Lexington County denying post-conviction

relief (November 23, 1982).

APPENDIX B. Order of the South Carolina Supreme

Court denying certiorari (April 6, 1983).

APPENDIX C. Order of the South Carolina Supreme

Court denying rehearing (April 20, 1983).

ii

TABLE OF AUTHORITIES

Page

Coles v. Peyton, 389 F.2d 224 (4th Cir. 1968). . . 17

Cuyler v. Sullivan, 446 U.S. 335 (1980). ..... 12,13,14,15

Dukes v. Warden, 406 U.S. 250 (1972) ....... 14

Flanagan v. United States, No. 82-374, cert. granted,

____» 32 Crim. L. 4145 (1/10/83)... . 15,16

Fleming v. State, 246 Ga. 90, 270 S.E.2d 185 (1980) 12,15

Glasser v. United States,

Holloway v. Arkansas,

U.S.

Johnson v. Zerbst,

Marzullo v. Maryland,

McMann v. Richardson, 397 U.S.

315 U.S.60 (1942)... . 14

435 U.S. 475 (1978) ...... 12

304 U.S. 458 (1938) ...... 16

561 F.2d 540 (4th Cir. 1977) 17

739 €aB7G). . « « » 17

McQueen v. Swenson, 498 F.2d 207 (8th Cir. 1974) . 17

State v. Gilbert, 273 S.C. 690, 258 S.E.2d 890 (1979) 2

State v. Gilbert,

Strickland v. Wash

omy.

» Sl

277 S.C. 53, 283 S$.E.2d 179 (1981) 2

ton, No. 82-1554, cert. granted .

SO7i CO/G/GSP 2 ow ete ew 1,16.18

United States v. Cronic, No. 82-660,

cert. pune,

U.S. -. Se 3598 (2/22/83) . Ca aaron 1,16

United States v. — 624 F.2d 196 Boia Cc. Cir.

1979) . , 17

United States ex rel. Green v. agar. 434 F.2d 1112

(3rd Cir. 1970) . gle otk: ie = ge ee 17

United States ex rel. Johnson v. TORE ue F. on

169 (Sed Cis. 1976) . . « « 17

United States v. vanes sib: 679 F.2d 1072 Per: Cir.

1982) . : 15

United States v. Frady, 456 U.S. 152 (1982). ... 17

United States v. Ramsey, 661 F.2d 1013 (4th Cir.

1981) ‘ Sy : geen ale tae whet aE ake 13

Washington v. perma Sage: F.2d oe naa Cir.

Unit B 1982)... . +. 2 17

Washington v. Strickland, ys .24 1243 (5th Cir.

Unit B 1982). .. aS ea ee a 17

iii

; ¥ p ; teen

eee ee ie Be: ol aha RIGS 2 | pes -

Wood v. Georgia, 450 U.S. 261 (1981)

STATUTES :

28 U.S.C. § 1257(3)

S.C. Code § 17-27-10 et seq.

iv

14

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

LARRY GILBERT,

PETITIONER,

Vv.

STATE OF SOUTH CAROLINA,

RESPONDENT.

INTRODUCTION

The petitioner, Larry Gilbert, respectfully

prays that a writ of certiorari issue to review the November 23,

1982, judgment of the Court of Common Pleas for Lexington County,

South Carolina, on grounds that important questions of federal

constitutional law are present on which there are conflicting

decisions by the highest courts of other states and United States

Courts of Appeals, and that the decision is in conflict with prior

decisions of this Court. Additionally, this case presents

a similar issue to United States v. Cronic, No. 82-660,

cert. granted, U.S. , SL LW 3598 (2/22/83), and Strickland

v. Washington, No. 82-1554, cert. granted, U.S. -, Si

3871 (6/4/83).

OPINION BELOW

The order of the Court of Common Pleas for Lexington

County, South Carolina is unreported and appears as Appendix

A. The order of the South Carolina Supreme Court denying the

petition for writ of certiorari is unreported and appears as

Appendix B. The order of the South Carolina Supreme Court

denying the petition for rehearing is unreported and appears as

Appendix C.

JURISDICTION

The judgment of the Court of Common Pleas was

rendered on November 23, 1982. The petitioner filed a timely

notice of appeal and a petition for writ of certiorari with

the South Carolina Supreme Court. The petition was denied

on April 6, 1983. The petitioner filed a timely petition for

rehearing which was denied on April 20, 1983. The jurisdiction

of this Court is invoked under 28 U.S.C. § 1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution Amendment VI:

"In all criminal prosecutions, the accused

shall enjoy the right. . . to have the

assistance of counsel for his defense."

United States Constitution Amendment XIV:

"nor shall any state deprive any person

of life, liberty, or a without

due process of law. . .

STATEMENT OF THE CASE

In 1977 the petitioner, and his codefendant,

J. D. Gleaton, were indicted for and convicted of murder

and armed robbery as a result of the July 12, 1977, death

of Ralph Stoudemire, a South Congaree, South Carolina,

service station operator. Petitioner's death sentence was

reversed by the South Carolina Supreme Court because of

improper jury argument by the solicitors (State v. Gilbert,

273 S.C. 690, 258 S.E.2d 890 (1979)), and the case was

remanded for a new sentencing trial.

On February 19, 1980, a resentencing trial was

commenced and on February 26, 1980, the death penalty was

again imposed on petitioner. The sentence of death was upheld

by the South Carolina Supreme Court in State v. Gilbert, 277

S. C. 53, 283 S.E.2d 179 (1981).

At all stages of the proceedings through September

14, 1981, both petitioner and his codefendant were represented

by the same attorney, Robert W. Mance.

On June 4, 1982, petitioner filed an application

for post-conviction relief in the Court of Common Pleas for

Lexington County, South Carolina, pursuant to South Carolina

Code Section 17-27-10 et seq. In his application petitioner

raised thirty-five grounds including the denial of effective

assistance of counsel resulting from the failure to conduct

an adequate, independent investigation, the denial of

effective assistance of counsel because a conflict of interests

arising from the joint representation, and the trial judge's

failure to make the requisite inquiry into the potential

for conflict arising from the joint representation. Petitioner's

application was joined with that of his codefendant for

hearing. A hearing was held during the week of September 20,

1982, and the court entered an order on November 23, 1982,

denying the application.

The pertinent facts surrounding the incident and

petitioner's trials are summarized below.

On Sunday, July 10, 1977, around midday the

petitioner and his half-brother J. D. Gleaton left Salley,

South Carolina, and drove to Columbia. Beginning that after-

noon they embarked on a routine of drug consumption which

continued through the morning of Tuesday, July 12, 1977. The

linchpin of this routine was the intravenous injection of

“Bams" (Preludin, or phenmetrazine hydrochloride NF) every four

to six hours. In addition they were ingesting valiums,

marijuana, and gin. During this period petitioner neither

slept nor ate any food. This pattern continued until 11:00 AM

on Tuesday, July 12, 1977, when they “shot up" for the final

time. (PCR. 414-423).+

At approximately 1:00 PM on Tuesday, July 12, 1977,

two Black males driving a blue Mark IV Continental with a white

top stopped at Ralph Stoudemire's SOC Station in South Congaree,

South Carolina. The codefendant entered the station and asked

for cigarettes. He then informed Mr. Stoudemire that it was

a robbery. The petitioner remained outside. A struggle

occurred between the codefendant and Mr. Stoudemire during

which Mr. Stoudemire received five stab wounds to the trunk

of his body, one a fatal wound to the heart. The petitioner

entered the station and fired one shot from a .22 calibre

pistol, inflicting a superficial wound on Mr. Stoudemire

(PCR. 75; 843). The two men then left the scene in the car.

The next day, July 13, 1977, a highway patrolman

in Aiken County, acting on information concerning the car in-

volved in the incident, stopped a car occupied by petitioner,

his codefendant, Bobby Carmichael, and Wilbert Gleaton. The four

subsequently accompanied deputies to the Aiken Sheriff's

Department. Later in the day investigators from the Lexington

County Sheriff's Department arrived and arrested them on charges

of murder and armed robbery. They were then transported to the

Lexington County Sheriff's Department where they were booked

and advised of their rights. During the course of that evening

petitioner was questioned on more than one occasion, but did |

not make a statement.

On July 14, 1977, petitioner and codefendant were taken

to the Richland County Sheriff's Department and given polygraph

examinations. At approximately 5:00 PM that day petitioner was

questioned by Charles Jones and James Harris, black investigators

with the Lexington Sheriff's Department. Prior to that time

lyor purposes of uniformity and simplicity PCR will be used to

designate the transcript of the post-conviction relief hearing,

TR-I the transcript of record on appeal from the 1977 trial, and

TR-II the transcript of record on appeal from the 1980 resentencing.

4

petitioner had talked to only white investigators. Shortly

after talking with Jones and Harris, petitioner gave an oral

confession which was later reduced to writing. Petitioner then

accompanied deputies on a search for the weapons involved in the

incident. Upon being informed that petitioner had confessed,

codefendant also signed a confession.

Robert W. Mance became involved in the case on

July 15, 1977, when members of petitioner's family were referred

to him by a bail bondsman. (PCR. 261, 295). Mance was

retained by petitioner's mother and initially undertook

representation of petitioner, codefendant, Carmichael, and Wilbert

Gleaton. (PCR. 296-297, 773).

Mance accompanied the family to the Lexington

Sheriff's Department cn July 15, 1977, and met with petitioner

and codefendant for approximately thirty minutes. (PCR. 426-

427) During this meeting he obtained copies and discussed

the statements with them. (PCR. 427, 767). He also indicated

he would look into getting them released on bond. (PCR. 427,

767). Between July 15, 1977, and the trial in October of

that year trial counsel met with petitioner and codefendant

four more times. All of these were joint meetings with petitioner

and codefendant together. The first of these meetings was for

the purpose of discussing the bond hearing and lasted twenty to

thirty minutes (PCR. 427). Shortly before the preliminary

hearing they met again for about half an hour. (PCR. 428).

The third, also for approximately thirty minutes, was to inform

them about the hearing to be held in Edgefield County on the

motion for a change of venue (PCR. 429). The final meeting

took place on the evening before the trial started. At this

meeting which lasted an hour and a half, counsel had them write

out what had happened from the time of their arrests to their

confessions. During this meeting counsei talked with each cf

them alone for a few minutes about calling them as witnesses,

but did not review their testimony or the questions they would

be asked. (PCR. 430-431). Trial counsel had no individual

meetings with petitioner prior to trial.

During the course of the trial counsel met with

petitioner three more times to discuss the case. Two of these

meetings, approximately five minutes each, were right before

petitioner took the witness stand to testify. (PCR. 432). The

third was between the guilt and sentencing phasea when Judge Peeples

directed counsel to confer with his clients. (TR-I 876).

Codefendant was also present for all of these meetings. Trial

counsel did not meet with petitioner at night during the trial.

Prior to the October, 1977, trial counsel attempted to

talk with only two of the State's witnesses, Deputies Jones

and Byars. (PCR. 53, 56-57, 60, 75-76, 160-161, 212-213, 217,

471, 797, 833). Counsel asked Jones about a promise to petitioner

that Jones would help him get bond if he made a statement.

This was denied by Jones. Byars refused to talk with counsel.

(PCR. 769-770).

On September 27, 1977, a motion for discovery and

inspection and production of evidence by trial counsel was argued

before Judge Peeples in Edgefield, South Carolina. (TR-I-7). The

week preceding that hearing counsel received from the Solicitor

some notes on the inquest and a list of witnesses. (TR-I-43).

He also had copies of statements by petitioner, codefendant,

Carmichael, and Wilbert Gleaton, and the incident report. (PCR.

816). He did not receive any writter witness statements from

the Solicitor (PCR. 819; TR-I-43), and no transcript or tapes

of the preliminary hearing were available. (TR-I-43). Nor

did he receive any information on the process used for obtaining

petitioner's confession (PCR. 819, 820). Despite the fact that

as a result of that hearing the items of physical evidence were

made available to trial counsel (TR-I-45-46), he did not take

advantage of that opportunity to examine them. (PCR. 770;

TR-I-502).

In advance of trial counsel requested that petitioner

be sent to the State Hospital for a psychological evaluation.

(PCR. 768). The report of that evaluation done at the Stoney

Building indicated that petitioner was diagnosed as being in the

borderline mental retardate range. (PCR. 477, 857-862). Trial

counsel did not have an independent psychological or psychiatric

evaluation performed on petitioner. (PCR. 782, 294, 435). No

psychological evidence or testimony concerning petitioner was

presented to the jury in either the 1977 trial or the 1980

re-sentencing trial.

Additional psychological testimony beneficial to the

petitioner could have been obtained for use in mitigation at

both trials. At the post-conviction hearing Diane Follingstad,

Ph.D., a clinical psychologist, testified that an evaluation of

petitioner which she conducted revealed that he experiences a

very high level of tension and anxiety all of the time (PCR. 480);

that he is a high strung, jumpy person who will experience a lot

of fears and phobias (PCR. 481); that he will overreact to very

minor things (PCR. 481); that he has established very dependent

relationships, especially with members of his family (PCR. 482).

Dr. Follingstad also testified that petitioner's anxiety neurosis

would have been in existence in 1977 (PCR. 489). There was a

strong likelihood that petitioner used drugs as a means of re-

ducing anxiety, especially social anxiety. (PCR. 539).

Trial counsel knew that petitioner and codefendant were

on drugs at the cime of the incident and thought that fact should

be a mitigating factor (PCR. 777). However, his focus was on the

guilt phase in the 1977 trial and he never considered getting an

expert in pharmacology to explain the effect of the drugs (PCR.

788-789). At the re-sentencing trial in 1980 counsel included

the use of drugs as part of his mitigating argument (TR-II 1521),

but again gave no consideration to obtaining an expert in pharma-

cology (PCR. 788).

At the post-conviction hearing Donald 0. Allen, Ph.D.,

chairman of the Pharmacology Department at the University of

South Carolina School of Medicine, testified concerning phenmetrazine

hydrochloride and its effects. Phenmetrazine hydrochloride is a

compound in the same class and having similar effects on the

central nervous system as amphetamines. (PCR. 545). There was

evidence that the drug had an affect on petitioner by his

failure to eat and lack of sleep. (PCR. 545). The maximm

therapeutic dose of phenmetrazine is 75 milligrams taken by

oral ingestion per day. On a mathematical basis the petitioner

was taking between five and nine times the maximm therapeutic

dose. On a functional basis it was actually several times

greater than that because he was injecting the drug interavenously.

(PCR. 544-545). A high dose or concentration of phenmetrazine,

such as was present in petitioner's case, can lead to a number

of central nervous system effects: aggressive behavior, impulsive

behavior, poor judgment, acute anxiety bordering on a panic state,

and loss of impulse control. (PCR. 545-546). High doses of

compounds such as phenmetrazine also produce a syndrome known

as amphetamine psychosis, a condition nearly indistinguishable

from schizophrenia. (PCR. 546). Any or all of these responses

could have occurred in the petitioner. (PCR. 546). This in-

formation would have been available in 1977. (PCR. 549).

Trial counsel considered the suppression of the confession

central tc che defense (PCR. 430, 820). However, he did not

call Bobby Carmichael as a witness to corroborate petitioner's

testimony that the Lexington Sheriff's Department refused his

requests to make phone calls prior to this confessing. (PCR. 190,

|!

194, 197). Carmichael had gj ven a statement to the police in

which he indicated that the codefendant had told him about the

incident. (PCR. 205). The determination not to use Carmichael

as a witness was based on defense counsel's joint representation

of petitioner and codefendant and not on an independent

assessment of the harm or benefit to petitioner. (PCR. 808, 809).

After the 1977 trial per’tioner did not see trial

counsel until eight months later when he came to have him sign

some papers. (PCR. 435). The next time trial cotnsel saw

petitioner was after the decision on the first appeal. This

meeting which lasted thirty minutes was in response to a phone call

from petitioner who learned of the decision from television.

Counsel gave no real explanation of what would happen at the re-

sentencing trial. (PCR. 436-437). Petitioner did not see

counsel again until the motions hearing on Thursday before the

re-sentencing trial in February, 1980. (PCR. 438). The only

two meetings between trial counsel and petitioner to discuss

the case lasted for approximately five minutes each and occurred

right before petitioner took the stand to testify. (PCR. 439-440).

Again all of these were joint meetings between petitioner,

and codefendant.

Trial counsel presented only two witnesses in

mitigation at the 1980 re-sentencing trial, Mrs. Lizzie Gilbert

and petitioner's minister. Mrs. Gilbert testified that counsel

did not talk with her about her testimony until shortly before

she took the stand.

At the post-conviction hearing the testimony or

affidavits of four witnesses who would have been available in

1980 and could have testified in mitigation for petitioner were

presented. One of these affidavits was from Tolley Cooper of

Salley, South Carolina. (PCR. 854). Mr. Cooper is the former

police chief from Salley. He was unable to testify at the post-

conviction trial due to his health.

Y,

4 ¥

SF hs, 4 . 4 »

de gitar’

However, Mr. Coope-'s «<fidavit attests that he had

known petitioner for years, and that as police chief and as an

employer, he had never known petitioner to be in any trouble.

In fact, Mr. Cooper said he was shocked when he heard that petitioner

had been arrested. Mr. Cooper said he was not contacted by

trial counsel in 1977 or 1980, but that if he had been contacted

he would have testified for petitioner.

Another affidavit that was submitted was from Mack

Woodward. (PCR. 853). Mr. Woodward is a correctional officer

and served as supervisor at death row between 1977 to 1980.

Mr. Woodward noted that petitione: was an inmate on death

row during that period and was a model inmate. Mr. Woodward

could have testified in 1980 but was not contacted by trial counsel.

| Mrs. Flora W. Harris testified. (PCR. 218-228) Mrs.

Harris had known petitioner since he was a small child. She

taught him in elementary school and had supervised him in the

scouts. In fact, Mrs. Harris was a neighbor of petitioner and

had attended the same church with him. As a neighbor and a

lifelong friend, she said that she never knew petitioner to

be in any trouble, and she was shocked when she heard that he

had been arrested.

Mrs. Harris testified chat she was not contacted by

defense counsel but would have teen willing to testify at the

previous trials. In fact, Mrs. Harris had taken the day off

from work to testify at the post-conviction relief hearing.

Also testifying for petitioner was Barry Naylor.

(PCR. 245). Also a lifelong friend, Mr. Naylor attended school

and church with petitioner. Mr. Naylor, a recent law school

graduate and candidate for admission to the bar, said he would

have testified at the previous trials but was not contacted by

trial counsel. Mr. Naylor testified that petitioner had a good

reputation in their community.

10

Re

Mr. Maxey Adams, a former supervisor of petitioner

would also have been available to testify in 1980. (PCR. 237,

239). None of these witnesses were ever contacted by defense

counsel. (PCR. 226, 235, 236, 249, 809).

Any discussions between defense counsel and petitioner

concerning the possibility of a conflict of interest arising out

of the joint representation were limited, and were conducted with

codefendant present. Prior to the 1977 trial defense counsel

"told them there might be a time when their interest [sic]

might be opposed to one another and they indicated they did

not think so."" (PCR. 792). Between the guilt and sentencing

phases another conference was held at the behest of the trial

judge. (TR-I-876). At that meeting counsel told them an

argument could be made that codefendant was more culpable because

the stab wound was the cause of death. (PCR. 827). No other

differences in mitigation between petitioner and codefendant were

discussed. (PCR. 827, 829-830). Trial counsel did not

discuss the degrees of culpability in terns of the importance

of petitioner naving separate counsel. (PCR. 814). Defense

counsel conceded at the post-conviction hearing that the

ramifications of representing both the petitioner and codefendant

at the mitigation stage were not clear to him at the time and as

a result he never made them clear to petitioner. (PCR. 793,

814-815). Counsel never met with petitioner individually to

discuss the possibility of a conflict and to allow him to make

an independent decision (PCR. 828). Defense counsel testified

that at no time did he discuss the question of a conflict interest

with petitioner prior to or during the re-sentencing tris! in

1980. (PCR. 815, 828, 830-831, 832).

Petitioner did not see trial counsel again following

the 1980 re-sentencing trial until the post-conviction relief

hearing. (PCR. 446).

REASONS FOR GRANTING WRIT

I.

THE DECISION BELOW CONFLICTS WITH THE DECISION OF

THIS COURT IN CUYLER V. SULLIVAN AND WITH THE DECISION OF THE

SUPREME COURT OF CEORGTA IN FLEMING V. STATE.

While joint representation is not per se violative

of the constitutional guarantee of effective assistance of

counsel, Holloway v. Arkansas, 435 U.S. 475 (1978), trial

counsel's representation of both petitioner and his codefendant

at the 1977 trial resulted in an actual conflict of interest.

Because of this actual conflict of interest, trial counsel's

performance on behalf «! petitioner was adversely affected and

petitioner was denied his right to effective assistance of

counsel. Cuyler v. Sullivan, 446 U.S. 335 (1980). "[A]

defendant who shows that a conflict of interest actually

affected the adequacy of his representation need not demonstrate

prejudice in order to obtain relief." 446 U.S. at 349-350.

Trial counsel acknowledged that the suppression of

petitioner's confession was crucial to his defense (PCR 430, 820).

Trial counsel was'also aware that Bobby Carmichael could

corroborate petitioner's testimony that the police denied his

requests to make phone calls (PCR 808). Trial counsel did not

present Carmichael as a witness because petitiorier's codefendant

had previously admitted his involvement in the ijncide:. to

Carmichael. (PCR 807). This information woul: havz been

admissible against the codefendant, but not as to petitioner. At

the post-conviction hearing trial counsel acknowledged that his

assessment of the risks in Carmichael's testimony and the

decision not to call him were based on the fact that trial counsel

was representing both petitioner and his codefendant. (PCR

808-809). Similarly, as a result of this joint representation

trial counsel was not in a position to cross-examine the co-

defendant when he took the stand or to request an instruction

12

from the court that the codefendant's statement could not be

considered as evidence against petitioner. This denied petitioner

his right to confront the witnesses against him.

Unlike in United States v. Ramsey, 661 F.2d 10613 (4th Cir.

1981), where the court found that rather than a conflict, an

advantage resulted from joint representation, in this case trial

counsel was forced to choose between the interests of his two

clients in adopting a strategy. Each of these choices was

resolved in a fashion which benefitted the codefendant and

adversely affected petitioner.

Trial counsel's joint representation of petitioner

and his codefendant at the 1980 re-sentencing trial again

resulted in an actual conflict of interest that adversely

affected his performance on behalf of petitioner. Cuyler, supra.

At the 1977 trial, counsel was faced with a choice between the

conflicting interests of his two clients and resolved the issue

to the detriment of petitioner.

The fact that the codefendant initiated the robbery

and struck the fatal blow provide the petitioner with a strong

argument in mitigation. As a result of the joint representation,

this argument was never made by trial counsel. (PCR 806). In fact,

he did not even cross-examine the pathologist to inform the

jury that the only wound inflicted by the petitioner was super-

ficial. Counsel did not point out the ten year age difference

between the twenty-one year old petitioner and his codefendant

and argue that as the younger brother the petitioner had been

lead into the incident by the codefendant. The codefendant's

prior history of drug abuse was never presented to the jury. Nor

was it revealed to the jury that the petitioner's drug usage

began after exposure by his older brother, the codefendant.

What amounted to a substantial case in mitigation on behalf of

13

petitioner could not be presented by trial counsel because of the

adverse effect it would have had on the codefendant.

Since petitioner's re-sentencing trial in February

of 1980 this Court has clarified the duty required of trial

courts faced with multiple representation cases in which a

particular conflict is known to exist. See, Cuyler v. Sullivan,

supra; Wood v. Georgia, 450 U.S. 261 (1981). Im light of these

decisions it is now incumbent upon the trial court to make an

inquiry into the propriety of multiple representation when it

knows or reasonably should know of the particular conflict.

There can be no doubt that under this standard an inquiry by

the re-sentencing trial court was required in petitioner's case

by the varying degrees of culpability apparent from the most

basic facts of the case.

In arriving at its conclusion, the court below stated

that the evidence offered to demonstrate how petitioner's case

could have been presented had there not been joint representation

was interesting but did not indicate a conflict of interest.

This reasoning reflects a total disregard for the principles

embodied in Cuyler. In discussing what is required to meet the

burden placed upon a defendant who has raised no objection to

the joint representation, this Court offered two prior decisions

as illustrative. The petitioner in Dukes v. Warden 406 U.S. 250

(1972), failed in his attempt because he did not identify an

actual lapse in representation. By contrast, relief was granted

in Glasser v. United States, 315 U.S. 60 (1942), because the

evidence revealed omissions resulting from counsel's desire to

diminish the jury's perception of a codefendant's guilt. This

same type of showing was made in petitioner's case. Petitioner

presented numerous omissions that were the result of a desire on

the part of trial counsel to diminish or, at least, not to

14

accentuate the guilt or culpability of petitioner's codefendant.

At the post-conviction hearing trial counsel acknowledged that

omissions were not decisions independently made on petitioner's

behalf, but were the result of the joint representation. (PCR

806-809).

The lower court's conclusion that the petitioner did

not meet his burden evinces a misunderstanding of or a total

disregard for the standard announced by this Court in Cuyler.

In either event the lower court's decision is in direct conflict

with the prior decision of this Court.

The question of multiple representation in capital

cases is one of significant importance because of the potential

for problems and the severity of the risks to which defendants

are subjected. It is virtually impossible to imagine a capital

case in which the interests of multiple defendants would not

differ at either the guilt or innocence phase or the sentencing

phase of the bifurcated proceeding. In light of this problem

Georgia has adopted a per se rule prohibiting multiple repre-

sentation in capital cases. Fleming v. State, 246 Ga. 90, 270

S.E.2d 185 (1980). Similarly, in a non-capital case the Third

Circuit Court of Appeals affirmed the district court's refusal

to allow codefendants to be represented by the same law firm.

United States v. Flanagan, 679 F.2d 1072, cert. granted,

Flanagan v. United States, No. 82-374, U.S. , 32 Crim. L.

4145 (1/10/83). This was despite a finding that the defendants

were thoroughly aware of the potential conflicts and that they

voluntarily and intelligently chose to waive any conflict.*

unlike the defendants in Flanagan who were thoroughly informed

by both the court and counsel 3 the various likely conflicts,

petitioner was never adequately advised of the actual and potential

conflicts from joint representation in his case. In fact trial

counsel testified at the post-conviction hearing that the

(footnote continued on next page)

15

This Court should grant certiorari and consider

this case in conjunction with Flanagan v. United States.

Il.

THE DECISION BELOW PRESENTS THE QUINTESSENCE OF THE

PROBLEMS CREATED BY THE VARIETY OF STANDARDS APPLIED BY THE

UNITED STATES COURTS OF APPEALS AND THE HIGHEST STATE COURTS

TO CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL. AS SUCH IT

INVOLVES AN ISSUE OF SUBSTANTIAL IMPORTANCE AND SHOULD BE

CONSIDERED IN CONJUNCTION WITH STRI V. WASHINGTON, NO. 82-

ag UNITED STATES V. CRONI -660, CURRENTLY

BEFORE THIS COURT.

The importance of this issue is without question.

As noted in the amici brief filed on behalf of forty-two States,

including South Carolina, "(t]he problem is pervasive and the

issue complex. As a result, the need to establish a consistent

standard of review is immediate." Brief of Amici Curiae in

Support of Petition for Writ of Certiorari, Strickland v.

Washington, at page 5.

The question of what standard is to be applied to

claims of ineffective assistance of counsel takes on added

importance in the present case where the uncontroverted evidence

on the record established inter alia: 1) that trial counsel

failed to conduct any independent investigation to secure

evidence or witnesses; 2) failed to secure a psychological

evaluation of petitioner; 3) failed to investigate the effects

of drugs on petitioner at the time of the crime; 4) failed to

present or argue evidence cf petitioner's lesser participation

in the murder, and where the resentencing trial judge charac-

terized trial counsel's performance as "deficient," "poor,"

and "cavalier."

(footnote 2 continued from previous page)

ramifications of representing both petitioner and his codefendant

were not clear to counsel at the time and, as a result, he never

made them clear to petitioner. No knowing and intelligent waiver

of the type required by Johnson v. Zerbst, 304 U.S. 458 (1938),

was made by petitioner at either of his trials.

16

we

Although the lower court cited McMann v. Richardson,

397 U.S. 759 (1970), and Marzullo v. Maryland, 561 F.2d 540 (4th

Cir. 1977), in ammouncing that the proper test was whether counsel

had acted "within the range of competence demanded of attorneys

in .riminal cases," (Appendix A p. 11) there was no indication

of how this “range of competence" was to be determined or applied

beyond a reference to the requirements of Coles v. Peyton, 389

F.2d 224, 226 (4th Cir. 1968). Similarly, the lower court

gave no indication of the test to be applied in determining

whether prejudice was established. As a result, it is impossible

to know whether the lower court's subsequent findings of no

prejudice were based upon the outcome-determinative test,

United States v. Decoster, 624 F.2d 196 (D.C. Cir. 1979); the

test of whether the trial, but not necessarily the outcome,

would have been altered in a way helpful to the defendant,

Washington v., Strickland, 673 F.2d 879 (Sth Cir. Unit B 1982);

See also, United States ex rel. Green v. Rundle, 434 F.2d 1112

(3rd Cir. 1970); United States ex rel. Johnson v. Johnson, 531

F.2d 169 (3rd Cir. 1976); McQueen v. Swenson, 498 F.2d 207 (8th

Cir. 1974); or the test of whether it worked to the defendant's

actual and substantial disadvantage, Washington v. Strickland,

693 F.2d at 1258 (Sth Cir. Unit B 1982), citing United States

v. Frady, 456 U.S. 152, 170 (1982).

In direct contrast to the bifurated approach required

by Washington v. Strickland, 693 F.2d 1243, 1258 (5th Cir. Unit B

1983), the lower court findings indicate that the questions of

ineffectiveness and prejudice were considered in mixed fashion.

Thais method of review created a hodgepodge in which some of

che alleged shortcomings of counsel were decided on the question

of ineffectiveness while others were decided on the issue of

prejudice. In light of the trial court's failure to adequately

17

Rely

“nme. ff.

set forth the standard applied, there is no way to know whether

the proper standard was used.

For these reasons certiorari should be granted and

this case should be considered with Strickland v. Washington

to determine the proper standard to be applied in claims of

ineffective assistance of counsel.

CONCLUSION

For the reasons mentioned above, the petition for

writ of certiorari should be granted.

Respectfully submitted,

rs

nce L. e

William Lewis Burke, Jr.

University of South Carolina

School of Law

Columbia, South Carolina 29208

Counsel for Petitioner

July /} , 1983

18

APPENDIX A

STATE OF SOUTH CAROLINA )

) IN THE COURT OF COMMON PLEAS

COUNTY OF LEXINGTON )

Larry Gilbert,

Applicant,

-vs- ORDER

James Aiken, Warden, CCI;

Capt. Lester Reynolds,

Lexington County Detention

Center,

Respondents.

ee a ae ee ee 8 ee ee ee

This matter comes before this Court by way of an

Application for Post-Conviction Relief filed June 4, 1982.

The Respondents made Return on August 18, 1982, requesting

that a hearing be held. A hearing was convened on

September 20, 1982, at which time the Applicant was present

in court and represented by his court-appointed attorneys,

Vance L. Cowden, Esquire, W. Lewis Burke, Esquire, and Naomi

E. Mims, Esquire. The Responderts were represented by

Donald J. Zelenka, Esquire, and Sally M. Rentiers, Esquire,

of the Attorney General's Office.

The Applicant's hearing was consolidated with that of

his co-defendant, J. D. Gleaton, who had also filed an

Application for Post-Conviction Relief. This was done by

agreement of all parties because their allegations were

similar and for convenience of the witnesses. During the

hearing, the following witnesses testified: Steve Boozer,

1015

Elijah Dunbar, Earl Shirey, Detective Richard Byars, Officer

Charles Jones, Dr. Irvin Shaw, Officer James Harris, William

Anderson, %fficer Jotm Dauth, Coroner Harry Harmon, Officer

Renew, Officer Davis, Judge Julius Baggett, Richard

Briebart, Esquire, Daniel Beck, Esquire, Bobby Carmichael,

Flora Harris, Barry Naylor, Charles Gilbert, Mrs. Lizzie

Gilbert, J. D. Gleaton, Larry Gilbert, Dr. Diane

Follingstad, Donald 0. Allen, Gaston Fairey, Esquire, Peter

Hyman, Esquire, Donald V. Myers, Esquire, and Robert W.

Mance, Esquire. The Court had before it a copy of the

records of the Clerk of Court, the South Carolina Department

of Corrections, a transcript of record and briefs on the

first direct appeal to the South Carolina Supreme Court, the

opinion of the Court, the transcript of record and briefs on

the second direct appeal, the opinion of the Court, the

Petition for Certiorari in the United States Supreme Court,

the Order denying the Writ, various exhibits (listed on

pages 2-e through 2-g of the post-conviction hearing

transcript), the post-conviction hearing transcript, the

deposition of Dr. Raymond Paternoster and exhibits.

The records reflect that the Applicant is presently

confined in the Central Correctional Institution of the

South Carolina Department of Corrections as & Safekeeper

pursuant to orders of commitment of the Clerk of Court for

Lexington County, South Carolina. The Applicant and his

co-defendant, J. D. Gleaton, were indicted at the September,

1977 term of the Court of General Sessions for Lexington

1016

2

County for armed robbery and murder. They were represented

by Robert W. Mance, Esquire. The Circuit Solicitor served

timely notice upon the Applicant that the State intended to

seek the death penalty. On September 16, 1977, the

Applicant was arraigned, at which time he entered a plea of

not guilty.

The trial began on October 4, 1977. Om October 6,

1977, the jury found the Applicant guilty of murder and

armed robbery. The sentencing hearing was delayed until the

following day. After a full sentencing hearing, the jury

returned a verdict imposing the death penalty. The

Honorable Rodney Peeples sentenced the Applicant to the

death penalty for murder and twenty-five (25) years for

armed robbery.

Following the imposition of the death penalty by the

trial judge, the Applicant appealed his conviction and

sentence to the South Carolina Supreme Court. The sentence

was subject to automatic review by the South Carolina

Supreme Court pursuant to § 16-3-25(A), Code of Laws of

South Carolina, Cum. Supp. (1978). The Applicant raised the

following exceptions on his direct appeal:

(1) That the stop and subsequent arrest of

Appellants was illegal because there was

no probable cause and evidence obtained as

a result thereof should have been excluded.

(2) That the court erred in all the admission

of the confessions of the Appellants because

they were involuntary having resulted from

coercion.

(3) That there was insufficient evidence to

support the verdict of guilty.

1017

(4) That the Statute under which the llants

were sentenced to death is unconstitutional

because it still leaves the authority with the

solicitor in deciding who shall receive the

death penalty and who shall not and by doing

so deprives the llants herein of equal 1

protection of the laws and due process of law.

On October 2, 1979, the South Carolina Supreme Court,

in a full written opinion, affirmed the Applicant's

convictions, but vacated the Applicant's death sentence and

remanded the case for a re-sentzncing hearing. State v.

Gilbert, et al., Opinion Mo. 21060, Filed October 2,

1979.2

A re-sentencing hearing commenced on February 19, 1980,

in Lexington County before the Honorable Julius H. Baggett.

On February 26, 1980, the jury recommended the death penalty

for the Applicant; the Honorable Julius H. Baggett imposed

the death penalty.

The Applicant appealed his sentence to the South

Carolina Supreme Court. He raised the following exceptions:

(1) That the court erred in failing to excuse for

cause a prospective juror who had indicated

that she could not consider the lack of a prior

criminal record as a mitigating factor in

possibly lessening the sentence.

(2) That the court erred in excusing prospective

juror Margaret Burris on the ground that she had

violated the court's order not to read about

or discuss the case with anyone where the juror

stated that she had had general discussion with

her priest but that no specific reference was

made to this case.

the Pent J. D. Gleaton, raised the same

allegations; Supreme Court treated the appeals jointly.

the Supreme Court also affirmed the conviction of the

co-appellant and remanded his case for a re-sentencing.

1018

(3) That the court erred in allowing the introduction

into evidence of certain photographs of the scene

of the offense which depicted numerous bloodstains

because said photographs were inflammatory and had

no relevance.

(4) That state's exhibit 19 was ruled inadmissible by

the court on objection of counsel because it had

no relevance and the prosecution admitted it

into evidence undetected by the Court and counsel.

(5) That the court erred in allowing the confession

because they were obtained by duress and were

involuntary.

(6) That the Court erred in limiting Appellants’

witnesses on mitigation to those persons who

knew them personally.

On September 14, 1981, the South Carolina Supreme

Court, in a full written opinion, affirmed the death

sentence for the Applicant and his co-defendant. State v.

Gilbert, et al., _—s_—— S.C. ©, 283 S.E.2d 179 (1981).

On September 24, 1981, the Applicant filed a Petition

for Rehearing and Stay of Remittitur, Application for Stay

of Execution of Sentence of Death, and Petition for

Withdrawal and Substitution of Counsel. By Order dated

October 9, 1981, the South Carolina Supreme Court denied the

Petitions for Rehearing and Stay of Remittitur and

Application for Stay of Execution of Sentence of Death, and

granted the Petition for Withdrawal of counsel by

Substitution of Counsel.

By Order of the Clerk of Court of the South Carolina

Supreme Court dated October 19, 1981, the execution of Larry

Gilbert was scheduled for November 6, 1981. This Order of

the Clerk was entered pursuant to the Order of the South

Carolina Supreme Court to the Clerk to send the remittitur

1019

and proceed with the execution.

The Applicant filed an Application for Stay of

Execution in the Supreme Court of the United States dated

October 14, 1981. By Order dated October 21, 1981, the

Honorable Warren E£. Burger granted a stay of execution

pending the timely filing and disposition by the Court of a

Petition for Writ of Certiorari.

The Applicant then filed a Petition for Writ of

Certiorari in the Supreme Court of the United States on

December 8, 1981. The Writ was denied on May 17, 1982. On

June 1, 1982, the Supreme Court also denied the Applicant's

Application for Suspension of the Order denying Certiorari.

On June 4, 1982, the Applicant filed an Application for

Stay of Execution of Sentence of Death in the South Carolina

Supreme Court. By Order dated June 10, 1982, the Court

granted the Petition for a stay until October 11, 1982.

In his Application for Post-Conviction Relief and an

Amendment to the Application, dated September 17, 1982, the

Applicant makea the following allegations:

(1) That he was denied the effective assistance

phases im Visletion of the Siath aod

ourteenth Amendments; he alleges that

his attorney:

(a) failed to investigate and interview

_. witnesses;

(b) failed to examine physical evidence;

(c) failed to obtain a psychiatric

evaluation of Applicant;

(d) failed to adequately prepare a change

of venue motion before the second

trial;

1020

>

ee,

(e)

(£)

(g)

(h)

(1)

(j)

(k)

(1)

(m)

(n)

(o)

(p)

—

peste to do research on questions of

’

failed to conduct an adequate voir dire

inquiry }

failed to Stee the attorney-client

relationship with the Applicant;

failed to interview or e witnesses

who would give favorable acter testimony

for Applicant;

failed to present evidence in mitigation

concerning the Applicant's mental state;

had a conflict of interest in ar og

both the Applicant and his co-defendant

because he could not present the possibility

of lesser — of culpability and could

not a tely cross-examine the co-defendant

on Applicant's behalf;

failed to identify and argue the issue of

the solicitor's improper argument, the

issue of the trial oe he erroneous grant

of fifth amendment ty and the issue

of submission of larceny as an aggravating

circumstance;

failed to adequately research and prepare

the appeal;

failed to object to the court's exclusion

of defendants, counsel and the — from

pon courtroom during the drawing of the

ury;

failed to object to the omission of an

instruction on the Miranda warnings from

the instructions ee to the jury for

consideration in determining the voluntariness

of Applicant's confession;

failed to impeach Gerald Stoudemire by

s that his testimony at the second

sentencing trial was inconsistent with the

testimony he gave at the first trial;

failed to object to exclusion of Applicant

from a portion of the {ery voir dire at the

secord sentencing trial;

1021

7

oa

i, alas:

wipe et

(2)

(r)

(s)

(t)

(u)

(v)

That

(a)

(b)

(c)

failed to object to the opening instruction

at the first trial defining reasonable doubt

as a substancial doubt;

failed to object to the final instruction

at the guilt phase of the first trial that

defined reasonable doubt as being a “serious

or strong or well-founded doubt as to the

truth of the charges,"

failed to object to the court's charge and

request an instruction that J. D. Gleaton's

confession could not be considered as evidence

against Applicant;

failed to object at the first trial to the

exclusion of jurors on the basis of their

opposition to capital punishment and failed

to cite § 16-3-20 (Z) which would have

precluded disqualification of any juror on

the sole basis of that juror's inability to

impose the death penalty; and

failed to object to the instruction to the

jury at the second sentencing trial that "the

hand of one is the hand of all."

the trial court erred in the following particulars:

Both trial courts failed to include an

instruction on the Miranda warnings as

part of the instructions ate to the

jury for their consideration in determining

the voluntariness of Appellant's confession;

The trial court failed sua sponte to make

the requisite inquiry into potential for

conflict surrounding the joint representation,

thereby precluding a voluntary and intelligent

waiver of conflict-free representation;

The trial judge at the second sentencing

trial excluded Applicant from a portion

of the jury voir dire;

1622

(3)

(4)

(5)

(d) The trial excluded licant, trial

counsel, oid Biuseif from the drawing of

the jury at the second sentencing ;

(e) The trial judge excluded licant's testimony

concerning the inconsistencies in the

testimony of Gerald Stoudemire;

(f)} The court failed to charge at the first

trial that the defendant's invocation of

the Fifth Amendment constituted no evidence

against them whatsoever’ and raised no

inference of guilt;

(g) The court's opening instruction at the first

trial defining reasonable doubt as a substantial

doubt reduced the State's burden of rroof;

(h) The court's final instruction at the guilt

phase of the first trial defining reasonable

doubt as being a “serious or strong or well-

founded doubt as to the truth of the charges"

reduced the burden of proof on the State;

(1) The trial judge's failure to instruct the

jury at the guilt phase that they could not

consider the confession of J. D. Gleaton

as any evidence against Applicant denied

Applicant his right to confront the witnesses

against him; and

(j) The trial judge instructed the jury that "the

hand of one is the hand of all" and failed

to instruct that the differing degrees of

anges pre of a particular defendant may

e considered in mitigation.

The appointment of only one attorney to ———

Applicant at his second trial did not comp y with

the procedural safeguards established for the

death penalty cases in South Carolina in

§ 16-3-26(B).

That the Applicant was denied the right to confront

witnesses against him at both phases of trial

because counsel made no attempt to cross-examine

POR ees ances the co-defendant, on Applicant's

= ‘ .

That the 9h Reape was denied a fair trial and due

rocess of law when one attorney represented both

plicant and his co-defendant.

1623

(6) That the licant was denied his right to trial

by jury fairly selected from a representative

cross-section of the community by the systematic

exclusion of blacks from his jury at both trials.

(7) The exclusion of jurors at Applicant's first

trial on the basis of their opposition to capital

punishment produced a jury ch was less than

neutral with respect to Applicant's guilt or

innocence.

(8) That the exclusion from the jury at the second

trial of people opposed to the death penalty

violated licant's rights under the Sixth and

Fourteenth dments to the neutral and

representative jury on the question of punishment.

(9) That the South Carolina death penalty procedure

is unconstitutional because it has led to the

arbitrary and capricious imposition of the death

penalty in violation of the Eighth and Fourteenth

Amendments.

(10) That the South Carolina desth poe statute,

as applied, is unconstitutional because it lacks

adequate procedural safeguards to insure that

the death penalty will be applied in a rational,

even-handed fashion.

(11) That the South Carolina death ee statute,

as applied, is unconstitutional because it has

resulted in a pattern of racially discriminatory

imposition of the death penalty.

(12) That the imposition of the death penalty where

the only aggravating circumstances are robbery

or larceny is unconstitutional because it is

excessive and disproportionate to the crime.

This Court has had the opportunity to review the record

in its entirety. I had the opportunity to observe the

witnesses presented at the hearing and to pass upon their

credibility, considering their demeanor on the witness

stand, any interest they may have in the case, any bias or

prejudice for cr against Applicant, their abilities and

opportunities to observe and their displays of expertise. I

now set forth the relevant findings of fact and conclusions

1624

of law, as required, pursuant to § 17-27-80, Code of Laws of

South Carolina (1976).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The Applicant's initial allegation concerns the

effectiveness of his attorney, Robert W. Mance, Esquire.

Applicant alleges twenty-two separate failings of Mr. Mance.

It is clear that a defendant is entitled to effective

assistance of counsel. McMann v. Richardson, 397 U.S. 759

(1970). A court should not measure the competency of

counsel's advice by retrospectively considering whether it

was right or wrong. The proper test is whether counsel's

advice "was within the range of competence demanded of

attorneys in criminal cases." 397 U.S. at 770-71. In

Marzullo v. Maryland, 561 F.2d 540 (4th Cir. 1977), the

Court said that a convict generally must establish that his

counsel's error was so flagrant that a court can conclude

that it resulted from neglect or ignorance rather than from

informed professional deliberation. The Court in Marzullo

also noted that, in determining whether counsel was

effective, they adhered to the statement made in Coles v.

Peyton, 389 F.2d 224, 226 (4th Cir. 1968):

Counsel for an indigent defendant should

be er ma promptly. Counsel should

be orded a reasonable opportunity to

prepare to defend an accused. Counsel

must confer with his client without undue

delay and as often as necessary, to advise

him of his rights and to elicit matters of

defer a or to ascertain that potential

defen:es are unavailable. Counsel must

conduct appropriate investigations, both

factual and legal, to determine if matters

1825

of defense can be developed, and to allow

himself enough time for reflection and

preparation for trial.

The Court in Marzullo also noted that the normal competency

standard is necessarily broad and flexible because it is

designed to encompass many different factual situations and

circumstances.

In reviewing the entire record and hearing all of the

testimony presented at the post-conviction hearing, I find

that the Applicant was adequately and effectively

represented by his attorney at all stages of the

proceedings. I specifically find that Applicant's attorney

met each requirement imposed under the Coles v. Peyton test.

The following witnesses testified that Mr. Mance failed

to contact them prior to trial: Steve Boozer, Elijah

Dunbar, Earl Shirey, Detective Byars, Officer Jones,

Dr. Irvin Shaw, Officer Harris, William Anderson, Officer

Dauth, Coroner Harmon, Officer Renew and Officer Davis;

there was also a stipulation that Officer Johnson would have

testified that Mr. Mance also failed to contact him. All of

these witnesses testified for the State at the first and/or

second trial. They were either eyewitnesses who had

identified the car, investigating officers or custodians of

evidence, including the bullet, autopsy report and coroner's

report. Mr. Mance testified that,as soon as he was retained,

he met with the Applicant and his co-defendant (about 2 - 3

days after arrest) and obtained statements. He testified

that they informed him that the statements were accurate.

ilfe6

He said that he talked with Solicitor Myers and Assistant

Solicitor Littlejohn and also briefly with Officer Jones who

informed him that he would have to get all of his

information from the solicitor. Mr. Mance further testified

that he received from the solicitor an incident report, the

statements, a list of witnesses and what their reported

testimony would be. He said he saw the autopsy report as

well as the notes from the inquest. He stated that he never

viewed the bullet. Mr. Mance testified that he knew that

several people had identified the car, that Mr. Roberts was

reported to be an identification witness and that the stab

wound, not the bullet wound, was the fatal wound. Based on

Mr. Mance's knowledge gained from the solicitor on what the

evidence would be and his review of the statements and

various reports he was provided, I find no error or failing

in his not contacting any of these witnesses for the State.

It is equally apparent that Mr. Mance attempted to find

witnesses in Applicant's behalf. He questioned Applicant as

well as his family about potential witnesses and the best

witnesses he was able to come up with were Applicant's

brother, sister, mother and pastor. Mr. Mance testified

that he had never heard of Flora Harris or Barry Naylor.

Also, these witnesses were not crucial ones; they did not

have close contact with Applicant at or near the time of the

crime. They merely had known him as a child. I find that

Mr. Mance's investigation and interview of witnesses was

adequate.

13

1027

Applicant alleges that Mr. Mance failed to examine

physical evidence. He admitted that he did not examine the

bullet. However, his failure to do so’ resulted in no-

prejudice to Applicant. Applicant has failed to point to

other physical evidence that his attorney should have viewed

and failed to do so.

The Applicant alleges that his attorney failed to

obtain a psychiatric or psychological evaluation of

Applicant. Mr. Mance testified that the Applicant was sent

to the State Hospital and he reviewed the report, finding

nothing to support a possible plea of insanity. Although in

hindsight, perhaps such an evaluation would have been useful

to the attorney, nothing in Dr. Follingstad's testimony at

the hearing convinced me that an evaluation of Applicant

would have been important for the judge or jury to know

either at the guilt or sentencing stage. Applicant has

attempted to show that this type of evaluation would have

been necessary, especially in the sentencing phase of the

trial as evidence in mitigation; however, this type of

evidence can be helpful or harmful to a defendant in that

regard and Dr. Follingstad's testimony did not convince me

that it would have been helpful. Also, there was nothing to

indicate to the attorney that an evaluation was necessary.

The failure <« have an evaluation done was not ine*fective

assistance of counsel.

The Applicant next alleges that his attorney failed to

adequately prepare a change of venue motion before the

1028

second trial. Mr. Mance testified that his motion for

change of venue before the first trial was denied and,

although he made a motion for change of venue and

continuance at the second trial, he felt it did not have

much of a chance. In fact, Applicant himself testified that

the publicity was greater before the first trial. I find

that Mr. Mance's preparation on the matter of a motion for

change of venue, when viewed in light of the surrounding

circumstances, did not amount to ineffective assistance of

counsel. Also, it is clear from the record that an

impartial jury was selected. cf. State v. Truesdale,

Opinion No. 21799, filed October 19, 1982.

The allegation that Mr. Mance failed to do research on

questions of law has no merit.

The allegation that Mr. Mance failed to conduct an

adequate voir dire inquiry also has no merit. His second

voir dire inquiry was much more effectively done and, even

Mr. Fairey agreed that he did a much better job in the

second trial. The South Carolina Supreme Court has reviewed

this case twice under the in favorem vitae doct~ine and,

having reviewed the entire record each time, including the

voir dire of the juries, they obviously have found no flaw

in either voir dire inquiry. Since the voir dire was part

of the record before our Supreme Court, I conclude that it

is not properly before me now. In view of that, I cannot

find that Mr. Mance did an inadequate job on voir dire.

15

1029

The next allegation states that Mr. Mance failed to

develop the attorney-client relationship. The testimony at

the hearing indicates that, although Mr. Mance was retained

by Applicant's mother, he met with Applicant, informing him

of all developments, alternatives and planning the case with

Applicant. While it is true that Mr. Mance represented

Applicant's co-defendant, who was his half-trother, it is

clear that he met with them separately as well as together

and it was their choice to proceed together. I find that

the attorney-client relationship did exist between Mr. Mance

and the Applicant.

Applicant alleges that Mr. Mance failed to interview or

prepare witnesses who would give favorable character

testimony for Applicant. The record and testimony shows

that he had the brother, sister, mother and pastor testify

about Applicant's character and he could find no better

witnesses than those he presented.

The next allegation is that Mr. Mance failed to present

evidence in mitigation concerning the Applicant's mental

state. The Applicant himself testified regarding his mental

state. He testified that he was on drugs at the time and

that they only meant to rob the victim. Also, in hearing

the testimony of Dr. Follingstad and Dr. Allen, I find that

it was not error for counsel not to call these or similar

witnesses in mitigation.

The Applicant alleges that Mr. Mance had a conflict of

interest in representing both the Applicant and his

1030

co-defendant because he could not present the possibility of

lesser degrees of culpability and could not adequately

cross-examine the co-defendant on Applicant's behalf. It is

clear that multiple representation alone is not violative of

the Sixth Amendment. Holloway v. Arkansas, 435 U.S. 475

(1978). Until a defendant shows that his counsel actively

represented conflicting interests, he has not established

the constitutional predicate for his claim of ineffective

assistance. Cuyler v. Sullivan, 446 U.S. 335, 349 (1980).

In Cuyler, the Court stated:

In order to establish a violation of the Sixth

Amendment, a defendant who raised no objection to

the multiple representation must demonstrate that

an actual conflict of interest adversely affected

his lawyer's performance...446 U.S. at 338.

In the instant case, there was no actual conflict of

interest. Mr. Mance testified that he told Bobby Carmichael

and Wilbur Gleaton who were charged as accessories that he

could not represent them because their interests were

opposed to those of Mr. Gilbert and Mr. Gleaton. He

recognized this as a potential for conflict. Mr. Mance

further testified that the Applicant and his co-defendant

had consistent stories and they said they wanted to be tried

together. The record indicates that their stories were

consistent, that neither one blamed the other. In United

States v. Ramsey, 661 F.2d. 1013 (4th Cir.1981), the

co-defendants had a single attorney and later claimed there

was a conflict of interest; the court said that there was no

conflict in the defenses or the theories and, therefore, no

1031

conflict existed. In fact, the Court said that there was an

advantage to having a single attorney because it allowed him

to formulate an internally consistent defense strategy. It

is clear that the Applicant and his co-defendant's having 4

single attorney allowed them to present a consistent and

unified defense. Since their stories were always

consistent, the Applicant was in no way compromised by the

joint representation.

Also, it is important to note that Applicant waived any

alleged conflict of interest during his first trial. In

fact, before the sentencing portion of the first trial, the

judge specifically discussed the possibility of varying

degrees of culpability and whether Applicant and his

co-defendant wanted to proceed with one attorney. Applicant

waived any alleged conflict at that time.

Applicant claims there was a conflict in the second

trial because there were different degrees of culpability

which was not brought out because he and his co-defendant

were both represented by Mr. Mance. He argues that

Mr. Mance should have argued that he was less culpable

because he did not inflict the fatal wound, he was younger

than his co-defendant and his drug use had started through his

connection with his co-defendant. Essentially, he contends

that his attorney should have put the blame on his

co-defendant. However, Mr. Mance testified that the

Applicant did not want to put the blame on his co-defendant

at the time of the trial. Additionally, all of these things

1032

were brought out to the jury at trial with the possible

exception of the last one. I do not find the claim that

Applicant's co-defendant got him involved with drugs to be

credible. I find that no actual conflict of interest

existed in this joint representation. During the hearing,

there was much testimony concerning how this case could have

been tried differently, were the two defendants represented

by two lawyers or even by a single lawyer. Although this

testimony was interesting, I find thac it indicated no

actual conflict of interest. I also note that

representation by a single attorney allowed the two

defendants to put forth a consistent defense.

The Applicant alleges that Mr. Mance failed to

identify, research and prepare certain issues for appeal.

In reviewing the records and briefs, I find that his

preparation for appeal was adequate. [It is clear that

counsel need not appeal every possible question of law at

the risk of being found to be ineffective. Gillihan v.

Rodriguez, 551 F.2d. 1182 (10th Cir. 1977). Decisions

concerning which legal issues will be urged on appeal are

uniquely within the lawyer's skill and competence, and their

resolution is ultimately left to his judgment. Ennis v.

LeFerne, 560 F.2d. 1072, 1075 (2d Circuit 1977), cert.

denied, 435 U.S. 976 (1978). There was no ineffective

assistance on appeal.

The remaining allegations relating to effectiveness of

counsel are contentions that Mr. Mance failed to object to

1033

I =~,

certain instructions, lack of instructions and decisions

made by the trial court. In reviewing all of these

allegations, I find no merit in then. The record

demonstrates that Mr. Mance made all the necessary

objections. The allegation that Mr. Mance failed to impeach

Gerald Stoudemire on inconsistent statements has no merit.

That was obviously a tactical decision, especially in light

of the fact that Mr. Stoudemire was the son of the victim

and had a very hostile attitude.

After thoroughly reviewing all of the allegations

relating to ineffective assistance of counsel, I find that

Applicant was afforded the effective assistance of counsel

and that Mr. Mance represented him within the range of

competence demanded of attorneys in criminal matters.

Marzullo v. Maryland, supra. I also find that there was no

actual conflict of interest in the joint representation of

Applicant and his co-defendant. Cuyler v. Sullivan, supra.

The Applicant alleges approximately ten errors on the

part of the trial judges. These include alleged errors in

instructions to the jury, exclusions of Applicant from jury

voir dire and jury selection and exclusion of certain

testimony of Applicant. Post Convictiou Relief proceedings

do not afford relief in cases of alleged errors for which

remedies were available before or during the original trial

or on direct appeal. Simmons v. State, 264 S.C. 417, 215

S.E.2d. 883 (1975); Irick v. State, 264 S.C. 632, 216

S.E.2d. 545 (1975). I cannot pass on alieged trial court

19°34

errors; consequently, these allegations must be dismissed

and denied.

Applicant's next allegation (#3) states that the

appointment of one attorney to represent him at his second

sentencing trial did .not comply with the procedural

safeguards established for the death penalty in South

Carolina in § 16-3-26(B). Although Judge Grimball signed an

order appointing Mr. Mance in 1980, this Order was not

necessary. Mr. Mance had been retained and paid $8,500.00

in 1977 to represent Applicant and his co-defendant. He had

never been relieved by order of the Court and, therefore,

remained on the case as attorney of record from July, 1977,

through 1980. The allegation that he was an appointed

attorney lacks merit.

Applicant alleges that he was denied the right to

confront witnesses against him because his attorney did not

cross-examine his co-defendant on his behalf. This is

patently absurd. The State did not offer the co-defendant

as a witness against the Applicant. The cc-defendant took

the stand to testify for himself and for the Applicant.

Their stories were consistent. Clearly, he was not a

witness against Applicant at either trial and, therefore,

there was no right to cross-examine him on Applicant's

behalf.

The Applicant next alleges that he was denied a fair

trial and due process of law when one attorney represented

both he and his co-defendant. I have already found that no

1035

conflict of interest existed in the joint representation of

these two defendants. There was no actual conflict and they

were not denied due process of law or a fair trial.

Next, the Applicant claims that he was denied his right

to trial by a jury fairly selected from a representative

cross-section of the community by the systematic exclusion

of blacks from his jury at both trials. He contends that

the Solicitor used his peremptory challenges to exclude

blacks. The use of peremptory challenges to exclude blacks

from juries does not viclate an accused's constitutional

rights. Swain v. Alabama, 380 U.S. 202 (1965). However,

Solicitor Myers testified that his office does not have a

policy of using peremptory challenges to exclude blacks. I

find his testimony in this regard to be credible. As the

South Carolina Supreme Court recently stated on the issue of

peremptory strikes:

We do not presume the existence of

discrimination by officers of the State,

and we are not impressed by a showing

of “patterns” which does not even begin

rs account for the obvious variables

uror age, ag gt pms if

: dress, eee eee ury service etc. ]

State v. Truesdale, filed October i9, 1982.

His allegation is without merit for relief.

In his seventh allegation, the Applicant contends that

the exclusion of jurors at the first trial because of their

opposition to capital punishment produced a jury which was

less than neutral with respect to the Applicant's guilt.

Apparently, he seeks to raise in this post-conviction relief

setting the same issue of "conviction proneness" rejected by

1636

the South Carolina Supreme Court in State v. Truesdale,

supra. (October 19, 1982, p.7). Im light of the Supreme

Court's rejections of the Hovey v. Superior Court, 168 Cal.

Rptr. 128, 616 P.2d 1301 (1980) decision, the allegation is

without merit and must be dismissed.

The Applicant alleges that the exclusion from the jury

at the second sentencing trial of people opposed to the

death penalty violated his rights under the Sixth and

Fourteenth Amendments to a neutral and representative jury

on the question of punishment. Although the United States

Supreme Court has held in Witherspoon v. [llinois, 391 U.S.

510 (1968) that a sentence of death cannot be carried out if

the jury which imposed or recommended it was chosen by

excluding veniremen for cause simply because they voiced

general objections to the death penalty or expressed

conscientious or religious scruples against its infliction,

Respondents submit that that was not the situation in

Applicant's case. In Witherspoon, the Court also said that

nothing in their holding would bear upon the power of a

stats to execute a defendant sentenced to death by a jury

from w: ch the only veniremen who were in fact excluded for

cause were those who made unmistakably clear (1) that they

would automatically vote against the imposition of capital

punishment without regard to any evidence that might be

developed at the trial, or (2) that their attitude toward

the death penalty would prevent them from making an

1637

impartial decision as to the defendant's guilt. In State v.

Linder, ___— S.C. _____, 278 S.E.2d 335 (1981), the South

Carolina Supreme Court held that a trial judge may

disqualify prospective jurors from service on a jury panel

who are absolutely opposed to capital punishment under any

circumstances. Respondents submit that all potential jurors

excused for cause because of opposition to the death penalty

clearly indicated that they would automacically vote against

the imposition of the death penalty without regard to any

evidence that might be developed at trial. Therefore, the

allegation should be dismissed and denied. See: State v.

Copeland, Op. No. 21808, filed November 10, 1982, p. 6.

Furthermore, this issue is not properly before this Court in

a. post-conviction relief proceeding. Simmons v. State,

supra.

The Applicant's remaining allegations deal with the

constitutionality of the South Carolina death penalty act

and its application. He contends that it is applied in an

arbitrary and capricious manner, lacks adequate procedural

safeguards and has resulted in a pattern of racially

discriminatory imposition of the death penalty. He

additionally claims that the imposition of the death penalty

where the only aggravating circumstances are robbery or

larceny is unconstitutional because it is excessive and

disproportionate to the crime. The Applicant is essentially

asking this Court in a post-conviction relief setting to

re-open closed questions with respect to the South Carolina

1638

death penalty statute § 16-3-20, et seq., Code of Laws (1976)

and to this particular case in which the Court specifically

found “the death penalty is proportionate to a crime of this

nature and to the crime and defendants in this case." State

v. Gilbert, 283 S.E.2d 179, at 182 (1981).

In addition, the South Carolina Supreme Court in dis-

cussing the overall topic of proportionality specifically

dealt with five (5) cases involving the application of the

death penalty in South Carolina and stated as follows:

It is of no consequence that the South Carolina

“universe” has consisted of only five cases to this

date. State v. Shaw, supra, presented the first

occasion for proportionsitey 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” con-

sidering the crime and the defendants. Indeed, a

comparable crime involving multiple murder by two or

more accomplices, in the course of armed robbery,

kidnapping 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 succeedi three cases of

State v. H , supra, State v. Gilbert, Ta, and

State v. ompson, supra, proved "similar only

the most superficial manmer--that 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 significant differences between them.

William Gibbs Hyman conspired with four other

persons to rob two elderly brothers. The conspirators

made their way at nightfall to the victims’ home where

stealth and deception were initially employed. Fail-

ing in their first foray, the conspirators applied

violence. Ome 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

1039

appears that everyone at the scene was intoxicated,

but the defendant was sufficiently sober to continue

demanding money while he beat the surviving brother

with one of the two weapons involved. Mit ae

testimony was offered by a clergyman as well as

family members who related personal frustrations

and tensions suffered by the defendant at some time

before 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 excessive nor dis-

. proportionate with respect to the crime and the

defendant and notwithstanding the lack of any truly

“similar” case to that point in time.

Larry Gilbert and J. D. Gleaton, brothers of

whom Gleaton is the elder, robbed and murdered the

operator of a filling station shortly after noon fol-

lowing a morning spent cruising in their automobile

in search of (and possibly = drugs. In the

course of the robbery, the victim was savagely stabbed

seven times as he struggled with Gleaton and was 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 t from a clergyman and the defendants’ mother.

Gilbert and Gleaton in turn took the stand to state

that they had acted on impulse and had intended no

harm to the victim. The jury recommended death sen-

tences, and we affirmed. The cases of State v. Shaw,

supra, and State v. Hyman, ta, 7ffered no assistance

y way of comparison, particularly since the latter

case had involved an elaborate, mye < yenire scheme to

rob and the use of weapons by the robbery victims.

In the crime of Gilbert and Gleaton, the deceased was

unarmed and could only use his hands to ward off the

repeated thrusts of the knife. 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 pro-

prietor 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, Gilbert and Gleaton.

1640

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 was an accident. Thompson's crime differed

from se 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 killed

their struggling victims in the presence of others

or one another. The jury could reasonably have

concluded that Thompson acted alone in committing

a senseless murder without even a pretext of justi-

fication. The jury recommended a sentence of death

and, notwithstanding the lack of a truly "similar"

case for guidance, this Court found the sentence

neither excessive nor disproportionate with respect

to the crime and the defendant. In the course of

proportionality review, this Court examines the record

through the eyes of the sentencing authority. In the

case of Thompson, however, this Court could not avoid

noting that we had previously affirmed his conviction

for an armed robbery occurring subsequent to this

murder, one in which the defendant had again held a

to the head of the robbery victin. tate v.

ompson, 276 S.C. 616, 281 S.E.2d 216 (1981). At

trial the State had no mE Py Pe to offer this con-

viction in evidence, yet it clearly would have rebutted

mitigating arguments under § 16-3-20(C)(b)(1) of che

Code. We do not consider it amiss to recognize such

information regarding an appellant in the course of

our final proportionality review.

The remaining case of State v. Horace Butler,

supra, involved the abduction, rape and murder of an

eighteen-year-old nly as she left her place of employ-

ment after dark. e defendant offered his poor record

in school, his youth, and the fact that he had a small

child as mitigating evidence. We affirmed the conclu-

sion of the jury that a sentence of death was neither

excessive nor disproportionate in light of the

defendant's character and his wanton crime. No truly

“similar” case existed for comparison, and by the same

token State v. Butler, supra, offers no guidance in the

review of the instant appeal.

Unlike previous cases involving murder and armed

robbery, this appeal arises from two separate atroci-

ties occurring in a single night. Unlike Hyman,

Gilbert, Gleaton and Thompson, appellants Copeland and

1641

Roberts were not content to terrorize and slay their

victims where they found them but instead transported

them to backroads execution sites. Two of the victims

were brought down by gunfire as they s t to escape.

Thus , 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

inflicted.

Mitigating evidence for appellant Copeland was

limited to the testimony of his former wife who vouched

for the promptness of his alimony and child support

payments. She also stated that she had never seen him

do Ss cruel. More extensive mitigating testimony

was offered on behalf of appellant Roberts. Family

members as well as a trained psychologist revealed chat

Roberts had suffered an unhappy childhood, problems in

school, the recent traumatic slaying of a brother, drug

abuse and injuries in fights and car accidents. Roberts

was characterized as an lsive personalit

and being easily led by others. By way of the tria

court's charge to the jury, Roberts received the full

benefit of the relevant statut mitigating circum-

stances. In the end it is probable that the j

relied on the psychologist's own statement that Roberts’

prognosis for “straightening up" was poor.

It is our conclusion that no "similar" case exists

that would permit ron ge 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 appropri-

ate 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 Carolina is first 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, we can imagine that the "universe" of

similar cases will gradually expand in the fullness

of time. At present, South Carolina has found the

death penalty to be neither excessive nor dispropor-

tionate in six distinct cases: (1) where one or more

defendants rob, abduct, rape and murder one or more

victims in circumstances ch 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

28

1042

the deceased; (3) where two or more defendants, on

impulse or even while intoxicated rob and murder an

unarmed st ling victim in his place of business;

(4) where a single defendant, alone with an unarmed

and umresisting victim, 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 muitiple

offenses by robbing, kidnapp and murdering one or

more victims in each separate incident. As comparable

cases arise, tiey will be reviewed against this back-

ground. As dissimilar circumstances may lead to

affirmed sentences of death, new "classes" or es

of capital cases will be added to the existing pool.”

State v. Copeland, Opinion No. 21808, Filed

Novesbe 10-1982, pp. 13-15.

The issues raised in allegations nine and ten contend

that the death penalty statute is unconstitutional because

it lacks adequate procedural safeguards. The constitutionality

of the statute has been resolved by the Supreme Court. State

v. Copeland (S.C. 1982), supra; State v. L nder, 276 S.C.

304, 278 S.E.2d 335 (1981), State v. Goolsby, 275 S.C. 110,

268 S.E.2d 31 (1980). His present allegations are without

merit. Furthermore, these issues are direct appeal issues

and not properly before this Court in a post-conviction

relief setting. Simmons v. State, supra.

In allegation twelve, the Applicant asserts that the

imposition of the death penalty is excessive and dispro-

portionate when the only aggravating circumstances are rob-

bery or larceny. This Court needs to look no further than

the findings of the Supreme Court in State v. Gilbert cited

above as denying this allegation. As has been previously

stated post-conviction relief is not a substitute for an

appeal and the Applicant may not reassert issues already

resolved adversely to the Applicant by the direct appeal

1043

29

in the post-conviction forum. Simmons, supra. The allegation

must be dismissed.

The sole remaining allegacion concerns allegations that

the death penalty as applied, has resulted in a pattern of

racially discriminatory imposition. Specifically, he alleges

that the actual application of South Carolina's death penalty

statute has been so arbitrary and so influenced by the play

of such impermissible factors as the race of the offender

and victim as to violate the Eighth Amendment. Further, he

alleges that the application of these statutes violates the

Equal Protection Clause because they have an adverse impact

on black offenders, and on those convicted of the murders

of white victims.

In support of these allegations, the Applicant offered

a survey and analysis of all alleged homicide cases reported

to S.L.E.D. from June 8, 1977, until December 31, 1981.

The results of this analysis are contained in a series of

statistical tables offered with the post-hearing deposition

of Assistant Professor Raymond Paternoster of the College

of Criminal Justice, University of South Carolina. Dr.

Paternoster has attempted to show that racial factors,

particularly the race of the homicide victim in each case,

has a significant role in the determination of which murder

defendants are subjected to prosecution under the death

penalty act and in the decision as to which defendants shall

be sentenced to death.

1044

30

The South Carolina Supreme Court recently addressed a

similar challenge in St1se v. Hyman, 281 S.£.2d 209, at 213

(1981). . In Hyman, the Court made the following statement:

(10) Appellant asserts the South

Carolina Death Penalty Statute, § 16-3-20

is unconstitutional because is is dispropor-

tionately imposed on individuals who kil

white persons. The constitutionality of our

death penalty statute was upheld in State

Shaw, 273 S.C. 194, 255 S.E.2d 799 (T9739)

"TPyurposeful discrimination may not be

assumed or merely asserted ... It must be

proven ..., and the burden is on the one

sree eo Ge. 202, 205, Swain v. State of

Alabama 0 U.S. 2 209, 35 5.Ct.

574, B77, 829, 13 L. Ed.2d 759 (1965); ..."

Maxwell v. nite phene. 348 F.2d 325 (8th Cir.

s made no showing of

dtsproportionality. Williams, et al. v.

Borden Inc., 274 S.C. 275, 262 S. E724

SST OGL Apodaca v. Oregon, 406 U.S. 404,

413, 92 S. Ce 1675, T632, 3 L.Ed.2d 184

(1972); Duren v. Missouri, 439 U.S. 357, 99

§.Ct. 668, 58 L.Ed. 2d 379. (1979); State v.

Moultrie, 273 S.C. $32, 257 S.E.2d 730

TI979). Hyman, 281 $.£.2d at 213.

The Applicant is now apparently trying to make the

"proportionality" showing in this forum.

This Court is constrained to reject the findings of

Dr. Paternoster. A court of law must at the threshold

establish to a legal certainty the integrity of the data

upon which the survey was based. cf. State v. Truesdale,

supra. In this survey, Dr. Paternoster relied on a computer

printout which contained glaring inaccuracies. Of paramount

importance, the data, as revealed by Dr. Paternoster on

cross-examination, inaccurately reported the homicide for

which Gilbert and Gleaton received the death penalty which

indicated a single victim and single offender rather than

1045

31

the accurate single victim-multiple offender. (Deposition

Tr. p. 72). Dr. Paternoster also used data that did not

accurately reveal the presence of accomplices in the Albert

"Bo" Thompson case which had the same inaccuracy i. that

Mr. Thompson had at least one accomplice. See, State v.

Copeland. The data and survev did not take into account

numerous factors including the criminal characteristics of

the offender and prior record, the presence of aggravating

or mitigating circumstances, differences in the

circumstances of the crimes, and the presence or lack of

evidence. In his academic survey, Dr. Paternoster had

failed to show to this Court the threshold reliability

necessary to accomplish his goal of showing improrer

application of our statutes.

This Court agrees with the Supreme Court's analysis

that any comparative study based upon arrests (in this case

mere "“incidents") would entail this Court to engage in

"intolerable speculation." Copeland. In Copeland, the

Supreme Court set out a proper model for proportionality

teview in this State. The well-reasoned opinion reflects

the defects in the approach taken by the Applicant in this

case, as forecasted by the Respondent's cross-examination.

Assuming that the data was reliable, the reasoning of

the United States Court of Appeals for the Fifth Circuit is

well-founded. In Spinkellink v. Wainwright, 578 F.2d 582

(Sth Cir. 1978), the Court held that where a state has in

operation a sentencing review system which is constitutional

1046

32

on its face, a federal habeas corpus court should not look

behind the individual defendant's sentence and weigh

evidence calculated to show that the system is being

discriminatorily applied, unless the circumstances of the

petitioner's case are such that the petitioner is "so

clearly undeserving of capital punishment that to impose it

would be patently unjust and would shock the conscience,"

Spinkellink, at 606 n. 28, or where “petitioner can show

some specific act evidencing intentional or purposeful

racial discrimination.” Spinkellink, at 614 n. 40. accord;

McCorquodale _v. Balkom, 525 F.Supp. 431 (N.D.Ga. 1981);

Pierre v. Morris, 607 P.2d 812 (Utah 1980); Fitzpatrick v.

State of Montana, 638 P.2d 1002, 1010 (Montana 1981). In

this case, as reflected in our Supreme Court's findings, the

penalty is proportionate to the crimes and there has been no

evidentiary showing of any act evidencing intentional or

purposeful discrimination on the basis of race.

Finally, the statistical evidence presented falls short

of establishing an equal protection violation. Smith v.

Balkcom, 671 F.2d 858 (Sth Cir. 1982). In this case, as in

Smith, the Applicant's statistician sought to determine the

total number of homicides in South Carolina through use of

Supplemental Homicide Reports (SHR's) submitted by law

enforcement agencies. The study then compares these

reported incidents with death penalties ultimately requested

and imposed, after trial, in the state. No data is offered

as to whether or not charges or indictments grew out of

1047

33

reported incidents or as to whether charges were for murder

with statutory aggravating circumstances, murder in which no

aggravating circumstances were alleged, voluntary

manslaughter, involuntary manslaughter or other offenses.

The data is not refined to select incidents in which

mitigating circumstances were advanced or found on those

cases in which evidence of aggravating circumstances was

sufficient to warrant submission of the death penalty to a

finder of fact. No incidents resulting in a not guilty

verdict were removed from the data. The unsupported

assumption is that all such variables were equally

distributed racially, sexually, offender and victin,

throughout the incident reports and SHR's. While such a

survey is of academic interest, no conclusions of

evidentiary value can be predicated upon such unsupported

assumptions. The raw data selected for the statistical

study bear no more than a highly attenuated relationship to

capital cases in South Carolina actually presented for

trial. The leap from that data to the conclusion of

discriminatory intent or purpose leaves untouched countless

racially neutral variables brought out on cross-examination.

In this case, the proffered evidence is not of sufficient

probative value to have required any further response or

evidence from the Respondents or require any further

evidentiary hearing. Smith v. Balkcom, supra. The

allegations are denied and dismissed.

1048

34

Based on the foregoing reasons, this Court finds that

the Applicant was afforded all of his constitutional rights.

This Court finds that the Applicant has not met his burden

of showing that his Application has any meritorious ground

for post conviction relief under the Uniform Post Conviction

Procedure Act, Section 17-27-70, et seq., Code of Laws of

South Caroina (1976).

IT IS THEREFORE ORDERED:

(1) That the Applicant be remanded to the custody

of the Respondents pending resolution of the

Stay of Execution; and

(2) That the Application for Post-Conviction Relief,

as amended, be dismissed and denied with

prejudice.

Presiding Judg

» South Carolina.

1049

35

rote “

IX B

Che Supreme Court of South Carolina

FRANCES 4. Smith

c.ee Apri ] 6, 1983 COLuMm eta, S.C. 20a"

Vance L. Cowden, Esquire

Clinical Law Office

U.S.C. School of Law

Columbia, South Carolina 29208

Re: Larry Gilbert v. James Aiken, Warden, C.C.I., et al.

Dear Mr. Cowden:

The Court has this day denied your Petition for Certiorari

in the following order:

"Petition denied.

s/ J. Woodrow Lewis, C.J.

For the Court

April 6, 1983."

If you would like to have the extra copy of the record in

this case, Please advise this office within ten days.

Very truly yours,

Las dhe Irina?

. Deputy Clerk

RDM/wh

cc: Ms. Sally M. Rentiers

APPENDIX C

Pry

.

Che Supreme Court of South Carolina

FRANCES . SmITH *.0.80" “330

pone April 20, 1983 COLUM ea, S.C. 202"

Vance L. Cowden, Esquire

Clinical Law Office

U.S.C. School of Law

Columbia, South Carolina 29208

W. Lewis Burke, Esquire

Clinical Law Office

U.S.C. School of Law

Columbia, South Carolina 29208

Re: Larry Gilbert v. James Aiken, Warden, et al.

Gentlemen:

Your Petition for Rehearing and Stay of Remittitur of Denial of Writ

of Certiorari in the above matter has today been denied in the following

order:

"Petition denied.

s/ J. Woodrow Lewis C.J.

For the Court

April 20, 1983."

Your application for Stay of Execution of Sentence of Death has today

been denied in the following order:

"Petition denied.

s/ J. Woodrow Lewis C.J.

For the Court

April 20, 1983."

Very truly yours,

Pa i. Sot

CLERK

FHS/wh

cc: Ms. Sally M. Rentiers

IN THE

SUPREME COURT OF THE UNITED STATLS

OCTOBER TERM, 1982

». 88 5088

LARRY GILBERT,

PETITIONER,

v.

STATE OF SOUTH CAROLINA,

RESPONDENT.

MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

Petitioner, Larry Gilbert, 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,

e

William Lewis Burke, Jr.

School of Law

University of South Carolina

Columbia, South Carolina 29208

Counsel for Petitioner

Taly Wid , 1983

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

NO.

LARRY GILBERT,

PETITIONER,

v.

STATE OF SOUTH CAROLINA,

RESPONDENT.

AFFIDAVIT OF LARRY GILBERT

IN SUPPORT OF MOTION TO PROCEED IN

FORMA PAUPERIS

I, Larry Gilbert 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

prepay 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; and 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 of

your last employment and the amount of

the salary and wages per month which

you received. "Last day of employment

was July 13, 1977, and I earned approximately

$480 a month."

2. Have you 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? "Yes."'

a. If the answer is yes, describe each source

of income, and state the amount received

from each during the past twelve months.

"Prior to my imprisonment I purchased a

home through a Farmers Home Administration

mortgage for my sister, Carolyn Cleaton

of Route 1, Box 38-F, Salley, South Carolina.

She made all'of the payments on the house.

After my imprisonment, the Farmers Home

Administration agreed to transfer the title

and mortgage to my sister. I received seventy

($70.00) dollars from Farmers Home Administration

in this transfer in the early part of 1981."

3. Do you own any cash or checking or savings account?

2."

a. If the answer is yes, state the total value

of the items owned. "I have approximately

eighty-five ($85.00) dollars in my prison

account.

4. Do you own any real estate, stocks, bonds, notes,

automobiles, or other valuable property (excluding ordinary

household furnishings and clothing)? "No."

5. List the persons who are dependent upon you for

support and state your relationship to those persons. "None."

I understand that a false statement or answer to any

questions in this affidavit will subject me to penalties for

perjury.

arry ert

this in day of | yaaen , 1983.

J

/

f VV oP Aited)

Notary Public for South) Carolina

ty Commission Expires: 1p a QI