# Petition — Gilbert v. South Carolina > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1633%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 467 U.S. 1220 ## Text PS ' FILED af - 508° , SH 19 We3 —_ Iu THE jn. — 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 « 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1633%3A1. Public record. Not legal advice.