Petition — Gilbert v. South Carolina
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IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1982
NO: - 83-5092
PETITIONER,
STATE OF SOUTH CAROLINA,
RESPONDENT .
PETITION FOR WRIT OF CERTIORARI TO
COURT OF COMMON PLEAS OF LEXINGTON COUNTY
SOUTH CAROLINA
Robert L. Hallman
Attorney for Petitioner
1400 Laurel Street
Columbia, South Carolina 29201
(803) 252-7350
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 investi-
gation 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) Pailed to contact or interview individuals known to be poten-
tial witnesses at trial regarding Petitioner's confession and the
events of the alleged crimes; 5) Failed to present or argue
evidence of Petitioner's serious accident, rehabilitation and
subsequent related drug abuse; 6) Failed to present or argue
evidence of Petitioner's psychological problems; and 7) That
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 repres*ntation 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 judce'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 1980 re-sentencing trial was
required where the testimony of re-sentencine trial judge re-
vealed that the trial judge's failure to conduct sich 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.
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TABLE OF CONTENTS
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CONSTITUTIONAL PROVISIONS INVOLVED ............
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REASONS FOR GRANTING THE WRIT. .........e888-6
I. The decision below conflicts with the decision
of this court in Cuyler v. Sullivan and with
the decision of the Supreme Court of Georgia
Se MU i a
II. The decision below presents the quintessence
of the problems created by the variety of
12
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
Strickland v. Washington, No. 82-1554 and
United States v. Cronic, No. 82-660, which are
currently pending before this court ......
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . .
APPENDICES
APPENDIX A. Order of the Court of Common Pleas
for Lexington County denying post-conviction
relief (November 23, 1983).
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).
4q
a)
TABLE OF AUTHORITIES
Coles v. Peyton, 389 F.2d 224 (4th Cir. 1968) .
Cuyler v. Sullivan, 446 U.S. 335 (1980).
Dukes v. Warden, 406 ".S. 250 (1972).
Flanagan v. United States, No. 82-374, cert. re
U.S. __, 32 Crim L. 4145 (1/10/83) .
Pleming v. State, 246 Ga. 90, 270 S.E.2d 185 (1980) :
Glasser v. United States, 315 U.S. 60 (1942)
Holloway v. Arkansas, 435, U.S. 475 (1978)
Johnson v. Zerbst, 304 U.S. 458 (1938) .
Marzullo v. Maryland, 561 F.2d 540 (4th Cir. 1977)
McMann v. Richardson, 397 U.S. 759 (1970)
McQueen v. Swenson, 498 F.2d 207 (8th Cir. 1974)
State v. Gilbert, 273 S.C. 690, 258 S.E.2d 890 (1979)
State v. Gilbert, 277 S.C. 53, 283 S.E.2d 179 (1981)
Strickland v. Washington, No. 82-1554, cert. granted
U.S. , 31 LW 3871 (6/4/83)... > 2 6 ene
United States v. Cronic, No. 82-660, cert. ee
__U.S.__, Sl LW 3598 (2/22/83). ... °
United States v. Decoster, 624 F.2d 196 wan Cc. Cis.
1979) . . . . . . . . . . . . a . a . . . 7
United States ex rel. Green v. Rundle, 434 F.2d 1112
a ie ae alo 6d” Sow, Ok of 6s a. kee
United States ex rel. Johnson v. Johnson, 531] F.2d
Gan. een ee ee ela. oo es 6% ec. 6a etek a
United States v. Flanagan, 679 F.2d 1072 (3rd Cir.
1982) . * > * * * . . . >. . . . . * . . * . . > >
United States v. Frady, 456 U.S. 152 (1982). .
United States v. Ramsey, 661 F.2d 1013 (4th Cir.
1981) * . . . * >. . >. . . * * . . * * . . > . . *
Washington v. Strickland, 673 F.24879 (5th Cir.
Unit B 1982) > >. . > > * . al . . * * > > * > > > >
Washington v. Strickland, 693 F.2d 1243 (5th Cir.
Unit B 1983) . . *. . . * . . . . . . . . . . + * .
iii
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13, 14
14, 15
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Wood v. Georgia, 450 U.S. 261 (1981)
STATUTES
(28 U.S.C. Section 1257(3) .
8.C. Code Section 17-27-10 et seq.
Se
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM; 1982
NO.
J. D. GLEATON,
PETITIONER,
V.
STATE OF SOUTH CAROLINA,
RESPONDENT.
INTRODUCTION
The petitioner, J. D. Gleaton, 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 “ederal
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.__, 51 LW 3598 (2/22/83), and Strickland
v. Washington, No. 82-1554, cert. granted, U.S. , 51 LW
3871 (6/4/83).
OPINION BELOW
The order of the Court of Common Pieas for Lexington
County, South Carolina is unreported and appears as App ndix 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. Section 1257 (3).
CONSTITUTIONAL PROVISIONS INVOLVED
United States Constitutional Amendment Iv:
"In all criminal prosecutions, the accused
shall enjoy the right. . . to have the
assistance of counsel for his defense."
United States Constitutional Amendment xIVv:
"nor shall any state deprive any person
of life, liberty, or rte pt without
due process of law. ,.
STATEMENT OF THE CASE
In 1977 the petitioner, and his codefendant,
Larry Gilbert, 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 uphe)d by
the South Carolina Supreme Court in State v. Gilbert, 77
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 seg. 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
inguiry 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, denving 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 Larry Gilbert 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,
Cs
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. Petitioner entered the station and asked for
cigarettes. He then informed Mr. Stoudemire that it was a
robbery. The codefendant remained outside. A struggle occurred
between the petitioner 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 codefendant 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 partolman
in Aiken County, acting on information concerning the car
involved 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 charces
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.
In July 14, 1977, petitioner and codefendant were
taken to the Richland County Sheriff's Department and given poly-
graph examinations. During that day petitioner was questioned by
Charles Jones and James Harris, black investigators with the
Lexington Sheriff's Department. Prior to that time petitioner
1
For purposes of uniformity and simplicit
y PCR will be u
designate the transcript of the post-conviction relief Senrian
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-
had talked to only white investigators. Shortly after talking
with Jones and Harris, codefendant gave an oral confession
which was later reduced to writing. Codefendant then accompanied
deputies on a search for the weapons involved in the incident.
Upon being informed that codefendant had confessed, petitioner
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 on 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 state-
ments 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 trial in October of that year trial
counsel met with petitioner and codefendants 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 tor 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 hovr and a half,
Counsel had them write out what happened from the time of their
arrests to their confessions. During this meeting counsel talked
with each of them alone for a few minutes about calling them as
witnesses, but did not review their testimony or 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
peitioner 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. The third was
between the guilt and sentencing phases 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 hin 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 arqued
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 written 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 Gleaton
be sent to the State Hospital for a psychological evaluation.
(A. 768). The report of that evaluation done at the Stoney
Building indicated that Gleaton was diagnosed as being in the
borderline mental retardate range, and that his low level of
intellectual functioning was the result of diseases and
conditions due to unknown prenatal influences. (PCR. 494).
Counsel did not have an independent psychological or psychiatric
evaluation performed on Gleaton. (PCR. 782, 294, 358). No
psychological evidence or testimony concerning Gleaton was presented
to the jury in either the 1977 trial or the 1980 re-sentencing trial.
Additional psychological testimony beneficial to
Gleaton could have been obtained for use in mitigation at both
trials. At the hearing on this Application Diane Follingstad,
Ph. D., a clinical psychologist, testified that an evaluation of
Gleaton which she conducted revealed that: The screening tests
which she administered indicated he may have some type of brain
damage and that a thorough neuropsychological assessment was
needed (r. 491); his intellectual level is in the low 80's (R. 492);
he has a borderline personality disorder (r. 497); he experiences
mood changes which are not related to what is happening in the
world (R. 497); he could drift into a psychotic state under stress-
ful conditions (R. 498); this kind of personality disorder is likely
to use drugs or alcohol (R. 499); he does not form relationships
easily because of a lack of trust and understanding of people
(R. 503); tests indicate he is not an habitual criminal type
person (R. 505); that a borderline personality falls under the
category of emotional disturbance, (R. 508); drug abuse by a
borderline personality would possibly cause a serious break-
down in his judgment (R. 510); court terminology would be
difficult for him to comprehend and he would need a lot of
explanation (R. 516); and if same tests had been given in 1977
the same results would have been expected (R. 520). Supplemental
psychological testimony could have been utilized to substantiate
two of the enumerated statutory mitigating circumstances.
Trial counsel knew tnat petitioner and codefendant
were on drugs at the time 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 cave no consideration to obtaining an
expert in pharmacology (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 maximum
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 maximum therapeutic dose.
On a functional basis it was actually several times greater than
that because he was injecting the drug intravenously.
(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 in 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 chizoprenia. (PCR. 546). Any or all of
these responses could have occurred in the petitioner. (PCR. 546).
This information would have been available in 1977. (PCR. 549).
After the:1977 trial petitioner did not see trial
counsel until eight months later when he came to have him sign
some papers. (PCR. 435). The next time trial counsel saw
petitioner was after the decision on the first appeal. This
meeting which lasted thirty minutes was in response to a phone
call from codefendant who learned of the decision from
television. Counsel gave no real explanation of what would
happen at the re-sentencing tria). (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.
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 Gilbert's minister. Mrs. Gilbert testified that Mance did
not talk with her about her testimony until shortly before she
took the stand. (A. 293). Gilbert's minister was not really a |
witness for Gleaton since he had not had much contact with him.
(TR-1I-1408) . | |
At the hearing on this Applicaticn the testimony or
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affidavits of eleven (11) witnesses who would have been available
in 1980 and could have testified in mitigation for Gleaton were
presented. They included Charlie Gilbert, a half brother
(A. 252-284), Mark Woodward, a supervisor at the Central
Correctional Institute (A. 235); Barbara A. Thomas, a friend for
six (6) years in Florida (A. 668-669); Doris L. Smith, a friend
for over five (5) years in Florida (A. 670); Willie Howard
Gibbes, who knew Gleaton about ten (10) years in Florida
(A. 671); Wendel R. Carder, a friend from Florida (A. 673-674);
Dorothy Carder Moore, ~ friend from Florida (A. 674-675); Joyce
Wilcox, wife of Gleaton and mother of his only child (A. 675-676);
Charlie Culver, a friend from Florida (A. 676-677); aud Luvada
Culver, friend from Florida (A. 677-678). Out of all of these
witnesses only Gleaton's half brother, Charlie Gilbert, was
contacted. All of these witnesses would have been available for
testimony in 1977 and 1980.
Due to the fact that petitioner had lived in Florida
for many years preceding this incident, most of his friends, wife
and children were located there.. Trial counsel made no contacts
in Florida nor was petitioner's wife or children requested to
attend either the trial or re-sentencing.
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 petitioner was more culpable
because the stab wound was the cause of death. (PCR. 827.)
-10-
No other differences in mitigation between petitioner and co-
defendant were discussed. (PCR. 827, 829-830). Trial counsel
did not discuss the degrees of culpability in terms of the
importance of petitioner having 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 trial 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 in September, 1982. (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 GEORGIA 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
of 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.
Soth petitioner and codefendant testified that they
were seriously abusing drugs on the day of the crime. It appears
from the record that petitioner had gotten back on drugs after his
involvement in a serious automobile accident in which he received
a broken neck and two (2) broken ankles (PCR. 331-338). While it
is obvious that Mance did not fully develop this situation at
either trial, it is apparent that he have an actual conflict of
interest in doing so. By presenting a reason for why petitioner
had been involved with drugs to mitigate his drug abuse, it would
have been glaringly apparent that codefendant did not have a
mitigating reason, and this would certainly be a conflict.
Another conflict developed in the guilt phase in 1977. Both
defendants testified, however, counsel was unable to cross-examine
his own clients, thereby leaving many issues of variance between
their statements unexplored. Due to the decision to have the
defendants take the Fifth Amendment on all questions relating to
the crime, petitioner was further deprived of having the jurv
know that he never intended to commit a robbery at the time the
victim was killed. While the record of trial reveals a poorly
planned and executed defense on behalf of petitioner and a
practically non-existent case in mitigaticn for him, it is apparent
that counsel's representation of petitioner was even further
; hampered by conflicts between his clients.
Unlike in United States v. Ramsey, 661 F.2d 1013
(4th Cir. 1981), where the Court found that rather than a conflict,
an advantage resulted from joint representation, in this case
counsel was forced to choose between the interest of his two
~12«
eur.
was interesting but did not indicate a conflict of interest.
clients in adopting a strategy. The above choices were resolved
in a fashion which benefited 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.
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). In 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 reason~
ably should know of the particular conflict. There can be no
doubt that under this standard an inguiry 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 and
from the significant differences existing in their mitigation
cases.
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
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
=-}3-
(1972), failed in his attempt because he did not identify an
actual lapse in representation. By contrast, relief was granted
in Glasser v. Usited 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
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
aid not meet his burden evidences 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 significart 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.
-14-
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. 2
This Court should grant certiorari and consider
this case in conjunction with Flanagan v. United States.
2unlike the defendants in Flanagan who were thoroughly informed
by both the court and counsel of 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 ranmifi-
cations 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.
~15$~
II.
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 SUCii IT
INVOLVES AN ISSUE OF SUBSTANTIAL IMPORTANCE AND SHOULD BE
CONSIDERED IN CONJUNCTION WITH STRICKLAND v. WASHINGTON, NO.
82-1554 AND UNITED STATES v. CRONIC, NO. 82-660, WHICH KRE CURRENTLY
PENDING BEFORE THIS COURT.
The importance of this issue is without question.
As noted in the amici briefs 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 investigage the effects of drugs
on Petitioner at the time of the crime; 4) Failed to contact or
interview individuals knownto be potential witnesses at trial
regarding Petitioner's confession and the events of the alleged
crimes; 5) Failed to present or argue evidence of Petitioner's
serious accident, rehabilitation and subsequent related drug
abuse; 6) Failed to present or argue evidence of Petitioner's
psychvlogical problems; and 7) That the resentencing trial judge
"
characterized trial counsel's performance as “deficient,
"poor,” and “cavalier.”
-16-
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 announcing that the proper test was whether counsel
had acted "within the range of competence demanded of attorneys
in criminal 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 (5th 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
F2d 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.2a at 1258 (5th Cir. Unit B 1982), citing United States
v. Frady, 456 U.S. 152, 170 (1982).
In direct contrast to the bifurated approach re-
quired by Washington v. Strickland, 693 F.2a4 1243, 1258 (Sth Cir.
Unit B 1983), the lower court findings indicate that the questions
of ineffectiveness and prejudice were considered in “axed fashion.
This method of review created a hodgepodge in which some of
the alleged shortcorings 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
-l17-
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,
-
ROBERT L. HALLMAN
1400 Laurel Street
Columbia, South Carolina 29201
(803) 252-7350
Counsel for Petitioner
Columbia, South Carolina
July 19, 1983
-18-
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM; 1982
NO.
J. D. GLEATON,
PETITIONER,
-vs-
STATE OF SOUTH CAROLINA,
RESPONDENT.
APPENDIX A
—
Applicant,
-vs-
James Aiken, Warden, CCI;
(atiagton Couey Setectton
Respondents.
ee ee ee ee ee ee ee ee ee 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 attorney,
Robert L. Hallman, Esquire, of the Richland County Bar. The
Respondents 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, Larry Gilbert, who had also filed an
Application for Post-Conviction Relief. This was done by
agreement cf all parties beceuse their allegations were
similar and for convenience of the witnesses. During the
hearing, the following witnesses testified: Steve Boozer,
12
Elijah Dunbar, Earl Shirey, Detective Richard Byars, Officer
Charles Jones, Dr. Irvin Shaw, Officer James Harris, William
anderson, Officer John Dauth, Coroner Harry Harmon, Officer
Rerlew, 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 a Safekeeper
pursuant to orders of commitment of the Clerk of Court for
Lexington County, South Carolina. The Applicant and his
co-defendant, Larry Gilbert, were indicted at the September,
1977 term of the Court of General Sessions for Lexington
County for armed robbery and murder. They were represented
eS
by Robert W. Mance, Esquire. The Circuit Solicitor served
timely notice upon the Applicant that the State intended to
eeck the desth 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. On 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 Appel because
they were involuntary having resulted
coercion.
(3) That there was insufficient evidence to
support the verdict of guilty. |
ap
3. 14
a.
On October 2, 1979, the South Carolina Supreme Court,
in a full written «pinion, affirmed the Applicant's
convictions, but vacated the Applicant's death sentence and
remanded the case for a re-sentencing hearing. State v.
Gilbert, et al., Opinion No. 21060, Filed October 2,
1979.7
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 fail 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 orale Gittins aaa Larry Gilbert, raised the same
allegations; Court created the appeals jointly.
Supreme Court also effirmed the conviction of the
co-appellant and remanded his case for a re-sentencing.
4
er ee
(3) Phot the coust gesed Sp sthouing we tion
(4) That state's exhibit 19 was ruled inadmissible by
the court on objection of counsel because it had
no relevance 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 ros, | a 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., ss 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 the
Applicant was scheduled for November 6, 1981. This Order of
the Clerk was entered pursuant to the Order of the South
PS ee el
Carolina Supreme Court to the Clerk to send the remittitur
and proceed with the execution.
17- 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 18, 1982, the
Applicant makes the following allegations:
(1) That he was denied the effective assistance
of counsel at both the guilt and sentencing
phases in violation of the Sixth and
ie anne he alleges that
(a) failed to investigate and interview
witnesses;
(b) failed to examize physical evidence;
(c) failed to obtain a psychiatric
evaluation of Applicant;
17
_ %
af
(d)
(e)
(£)
(g)
(h)
(i)
(j)
(k)
(1)
(m)
(n)
(o}
(p)
failed to adequately prepare a change
of venue motion before the second
trial;
— to do research on questions of
aw;
failed to conduct an adequate voir dire
inquiry
failed to mary 4 the attorney-client
relationship with the Applicant;
failed to interview or prepare witnesses
who would give favorable character testimony
for Applicant;
failed to present evidence in mitigation
concerning the Applicant's mental state;
had a conflict of interest in pep peg
both the Applicant and his 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;
failed to identify and argue the issue of
the solicitor's improper argument, the
issue of the trial tee neh erroneous grant
of fifth amendment ity 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 judge from
the courtroom during the drawing of the
jury;
failed to object to the omission of an
instruction on the Miranda warnings from
the instructions ee to the jury for
consideration in determining voluntariness
of Applicant's confession;
failed to impeach Gerald Stoudemire by
. that his test at the second
pomtnn Bo trial was ral Ble with the
testimony he gave at the first trial;
failed to object to exclusion of Applicant
a@ portion of the voir dire at the
second sentencing crisly?
: 18
(q)
(r)
(s)
(t)
(u)
(v)
(2) That
(a)
(b)
(c)
failed to object at the first trial to the
charge that tion of the Fifth Amendment
raises no pre tion of guilt as being
an insufficient truction and to request
an instruction that the Fifth
Amendment right against self-incrimination
is no evidence whatsoever of guilt and should
not be considered by the jury;
failed to object to the opening instruction
at the first trial defining reasonable doubt
as a substantial 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 Gilbert'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 (E) 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
ury at the second sentenc trial that "the
d 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
art of the instructions given to the
pa for their consideration in determining
the voluntariness of Appellant's confession;
The trial court failed sua te to make
the requisite ry into potential for
conflict the joint representation,
thereby | Sete pe 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;
iia
(3)
(4)
_ witnesses against him at both phases of trial
(5)
(6)
(d) The trial j e excluded licant, trial
counsel, and himself from t oo of
the jury at the second sentencing trial;
(e) The trial judge excluded Applicant's testimony
sacerning the inconsistencies in the
<estimony 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 proof;
(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 Gilbert
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
poreses ation of a particular defendant may
e considered in mitigation.
The appointment of only one attorney to represent
soe lsenne at his second trial did not comp Ean
the procedural safeguards established for t
ante Pty 3d cases in South Carolina in
- - ( e
That the Applicant was denied the-right to confront
because counsel made no attempt to cross-examine
the co-defendant on Applicant's behalf.
That the licant was denied a fair trial and due
process of law when one attorney represented both
Applicant and his co-defendant.
That the licant was denied his right to trial
by jury fairly selected from a representative
9
~~ 20
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 which was less than
‘ neutral with respect to Applicant's guilt or
innocence.
(8) That the exclusion from the jury at the second
trial of rie sed to the death penalty
violated iD i 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
— in violation of the Eighth and Fourteenth
nts.
(10) That the South Carolina death pemetty 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 lty 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 or against Applicant, their abilities and
opportunities to observe and their displays of expertise. I
now set forth the relevant findings of fact and conclusions
10
21
of law, as required, pursuant to § 17-27-80, Code of Laws of
South Carolina (1976).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
ENE enn eT,
‘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 ea 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 wa: 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 appointed promptly. Counsel should
be afforded a reasonable ttunity to
prepare to defend an accused. Counsel
wust confer with his client without undue
delay and as often as necessary, to advise
of his rights and to elicit matters of
defense or to ascertain that potential
defenses are unavailable. Counsel must
conduct appropriate investigations, both
factual and legal, to determine if matters
11 . 22
Rinse? enough time for reflection eat
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 builet, 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.
12 23
He said that he talked with Solicitor Myers and Assistant
Solicitor Littlejohn and also briefly with Officer Jones who
informed him thet 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, and mother. At the post-conviction
hearing, the Applicant testified that he would have liked to
have called as character witnesses various people from
Florida, including his common law wife and daughter, people
at Morrison's Cafeteria, and officers from C.C.I. and the
Alston Wilkes Society. Counsel did not recall any requests
to have anyone from Florida to testify in either trial.
3 RS
Even assuming arguendo that the various witnesses were
willing to testify in his favor, this Court cannot say that
counsel's performance, evaluated from the perspective of
counsel, taking into account the circumstances known to him
at the time was not reasonably effective.
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 constitutionally necessary for the judge or
jury to know either at the guilt or sentencing stage.
Applicaut has attempted to show that this type cf 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
we ee
to indicate to the attorney that an evaluation was
necessary. The failure to have an evaluation done was not
ineffective assistance of counsel.
The Applicant next alleges that his attorney failed to
adequately prepare a change of venue motion before the
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 doctrine and,
having reviewed the entire record each time, including the
voir dire of the juries, they obviously have found no flaw
se
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
3 find that Mr. Mance did an inadequate job on voir dire.
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-brother, 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, and mother 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 |
16 27
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
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
hie lawyer's performance, tte eras Ween
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
17 28
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
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 a
single attorney allowed them to present 4 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 botn represented by Mr. Mance. 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
18 29
at the time of the trial. Additionally, all of these things
were brought out to the jury at trial. 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 that 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 issucs 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
certain instructions, lack of instructions and decisions
19 . 30
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
objettions. 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 Conviction 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 alleged trial court
errors; consequently, these allegations must be dismissed
20 31
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 M.. 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 co-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
conflict of interest existed in the joint representation of
a
21 : 32
these two defendants. There was no actual conflict and they
were not denied due process of law or a fair trial. There
was no showing that counsel failed to perform any acc
because of the dual representation.
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 violate an accused's constitutional
tights. Swain v. Alabama, 380 U.S. 202 (1965). However,
Solicitor Myers testified that his offic= 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,
of “patterns” whith does nat eves betin
(geror‘ags, ‘sberntiny seeatin
State ¥. temsedile’ filed ocesces 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
22
33
setting the same issue of “conviction proneness" rejected by
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. Illinois, 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
state to execute a defendant sentenced to death by a jury
from which 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
' 23 34
impartial decision as to the defendant's guilt. In State v.
Linder, s.c. , 278 S.£.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 automatically 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,
gupta.
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
24 . 35
hae
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 case to this
date. State v. Shaw, supra, presented the first
occasion for puepoctianstity review under our current
statute. We noted then that no similar cases existed,
but the sentence imposed was none the less appropri-
ate and neither "excessive" nor “disproportionate”
considering the crime and the defendants. Indeed, a
comparable crime involving multiple murder 4 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 — manner, sais succee a — cases ood
State v. , Supra, State v. rt, ra, an
State v. son, supra, proved “gimi lar” E only
the most superficial manner--that is, the aggravat-
ing circumstance in each instance was armed robbery.
The transcripts of these cases are public records,
as pointed out in Thompson, ra, and when inspected
reveal significant differences between then.
William Gibbs conspired with four other
persons to rob two elderly brothers. The conspira-
tors made their way at nightfall to the victims’ home
where stealth and deception were initially employed.
Failing in their first oy & the conspirators
applied violence. One of the victims was able to
fire a shot from within before the home was stormed.
From the testimony, a jury could have concluded that
the decedent was killed by a shot-gun blast fired by
Hyman at close range while the victim stood disarmed.
ie
ee
bel
It ears that everyone at the scene was intoxicated,
but the defendant was sufficiently sober to continue
demanding money while he beat the survi brother
with one of the two weapons involved. Mit rs
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. 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 disproportionate with
respect to the crime and the defendant and notwith-
standing the lack of any truly "similar" case to that
point in time.
Larry Gilbert and J. D. Gleaton, brothers of whom
Gleaton is the elder, robbed and murdered the operator
of a filling station ay age after noon following a
morning spent cruising in their automobile in search
of (and possibly using) drugs. In the course of the
robbery, the victim was savagely stabbed seven times
as he st led with Gleaton and was shot once by
Gilbert. rom 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 lse 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, supra, offered no assistance
by ney comparison, particularly since the latter
case involved an elaborate, multiparty 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 ee
of a small store in the course of a robbery. act
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 t
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
2 © «37
offered, unlike the cases of Hyman, Gilbert and
Gleaton. The juty was asked only to consider the
defendant's age as well as a brief wnsworn statement
by him in the course of which he wept and asserted
that the killing was an accident. ompson's crime
differed from those of Hyman, Gilbert and Gleaton in
other respects, too. The latter defendants all
offered some evidence of acting under the influence
of alcohol or drugs, while Thompson inferably acted
with a clear mind and cool deliberation. Thompson
fired the fatal shots, it appears, after his accomplice
left the store, whereas Hyman, Gilbert and Gleaton
killed their yon ates victims in the presence of
others or one anot . The jury could reasonably
have concluded that Thompson acted alone in committing
a senseless murder without even a pretext of justifi-
cation. 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 proportion-
ality review, this Court examines the recorc 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 gun to the
head of the robbery victim. State v. Thompson, 276
S.C. 616, 281 S.E.2d 216 (1981). At trial the State
had no opportunity to offer this conviction in evidence,
yet it clearly would have rebutted ge sg my arguments
under § 16-3-20(C)(b)(1) of the Code. do not con-
sider it amiss to recognize such information regarding
ee 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 girl as she left her place of
employment after dark. The defendant offered his .
oor record in school, his youth, and the fact that
had a small child as mitigating evidence. We
affirmed the conclusion 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 ra >
and by the same token State v. Butler, ra, 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,
27 38
eel —--
Gilbert, Gleaton and Thompson, appellants Copeland
and 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 gunfire “as they
sought to escape. Thus wounded, y were subse-
os riddled with bullets as they lay on the ground.
the body of one, a series of post-mortem stab
wounds was also inflicted.
Mitigating evidence for appellant C eland was
limited to the testimony of his former wife who vouched
for the promptness of his alimony and child support
payments. e also stated that she had never seen him
do — cruel. More extensive mitigating testimony
was offered on behalf of appellant Roberts. Family
members as well as a trained psychologist revealed that
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 yay
and being easily led by others. y way of the trial
court's charge to the jury, Roberts received the full
benefit of the relevant statutory mitigating circum-
stances. In the end it is probable that the jury relied
on the eg nets pode own statement that Roberts prog-
nosis for "straightening up” was poor.
It is our conclusion that no “similar” case exists
that would permit meaningful comparative review of these
death sentences. In view of the facts set forth above,
however, we are satisfied that the sentence of death
imposed on each of these appellants was appr riate and
neither excessive nor disproportionate in t 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 «
prediction, we can imagine that the "universe" of similar
cases will gradually expand in the fullness of time. At
pene. South Carolina has found the death panasey to
neither excessive nor pep eo erg in six distinct
cases: (1) where one or more de ts rob, abduct, rape
and murder one or more victims in circumstances
starkly reveal the malignant character of the
or defendants; (2) where a vi , armed and defending
himself, is slain by an defendant who is hin-
self armed (and possibly intoxicated) while engaged in
28 39
robbing the deceased; (3) where two or more defendants,
on impulse or even while intoxicated rob and murder an
unarmed s ling victim in his place of business;
(4) where a single defendant, alone witlf an unarmed
more victims in each separate incident. As comparable
cases arise, they will be reviewrd against this back-
ground. As dissimilar circumstances may lead to
affirmed sentences of death, new "classes" or types
of capital cases will be added to the existing “pool.”
ence ope tas Opinion No. 21808, filed
er 10, » pp. 13-15.
The issues raised in allegations nine and ten contend
that the death penalty statute is unconstitutional because
it lacks adequate procedural safeguar 3. The constitutionality
of the statute has been resolved by the Supreme Court. State
v. Copeland (S.C. 1982), supra; State v. Linder, 276 S.C.
304, 278 S.£.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 dispropor-
tionate when the only aggravating circumstances are robbery
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
a 40
to the Applicant by the direct appeal in the post-conviction
forum. Simmons, supra. The allegation must be dismissed.
| The sole remaining allegation 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 cf 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.
ae
ieee
The South Carolina Supreme Court recently addressed a
similar challenge in State v. Hyman, 281 S.E.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 oa tt al
tionately imposed on individuals who kil
white persons. The constitutionality of our
death lty statute was upheld in State
Shaw, 273 S.C. 194, 255 S.E.2d 799 (I979).
urposeful discrimination may not be
assumed or merely asserted ... It must be
proven ..., and the burden is on-the one
asserting discrimination. Swain v. State of
Alabama, 380 U.S. 202, 205 Ct.
, 827, 829, 13 L.Ed.2d 759 (1965); ..."
Maxwell v. Stephens, 348 F.2d 325 (8th Cir.
1965). —Appeltant fae made no showing of
disproport “pga Williams, et al. v.
Borden's, Inc., 274 $.C. 275, 567 SLE. 7d
daca v. Oregon, 406 U.S. 404,
413, 92 $. et 8
; .Ed.2d 184
(1972); Duren v. Missouri, 439 U.S. 357, 99
Ale "273 S.C. 532 25) 8 8 sere
trie, \. EB.
TI9T9y.-
- Hyman, 281 8.£.24 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
314
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 in that
Mr. Thompson had at least one accomplice. See, State v.
Copeland. The data and survey 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 improper
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 engege in
“intolerable speculation." Copeland. In Copeland, the
Supreme Court set out a proper model for proportionality
review 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
32 43
. 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). Im 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
33 44
_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 victim, .
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.
34 45
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.
AND IT IS SO ORDERED
1982.
Presiding Judge
, South Carolina.
- 46
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM; 1982
NO.
J. D. GLEATON,
PETITIONER,
-vs-
STATE OF SOUTH CAROLINA,
RESPONDENT.
APPENDIX B
Che Supreme Court of South Carolina
FRANCES * SMITH
pene April 6, 1983 wieaen e
COLunmeia, 8 C 282"
Robert L. Hallman, Esquire
1400 Laure? Street
Columbia, South Carolina 2920)
Re: J. D. Gleaton v. James Aiken, Warden, C.C.I., et al.
Dear Mr. Hallman:
The Court has this day denied your Petition for Certiorari
in the following order:
“Petition for Writ of Certiorari
in this case is denied.
s/ J. Woodrow Lewis, C.J.
For the court
April 6, 1983."
Very truly yours,
Deputy Clerk
RDM/wh
cc: Ms. Sally M. Rentiers
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM; 1982
NO.
J. D. GLEATON,
PETITIONER,
-vs-
STATE OF SOUTH CAROLINA,
RESPONDENT.
APPENDIX C
> ee: 24
Che Supreme Court of South Carolina
FRANCES * SmITH * 3.80% "330
C.ces April 20, 1983 COL mera, B.C. BOR
Robert L. Hallman, Esquire
1400 Laurel Street
Columbia, South Carolina 29201
Re: J. D. Gleaton v. James Aiken, Warden, et al.
Dear Mr. Hallman:
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,
CLERK
FHS /wh
cc: Ms. Sally M. Rentiers
Oftice Supreme Court. &
Fel |. ED
JUL 18 1965
ALEXANDER L STEV..
CUERK
(83-5092
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM; 1982
NO.
J. D. GLEATON,
PETITIONER,
-vs-
STATE OF SOUTH CAROLINA,
RESPONDENT.
MOTION FOR LEAVE TO PROCEED
IN FORMA PAUPERIS
The Petitioner, J. D. Gleaton, through his court
appointed counsel hereby move this Court for leave to proceed with
a Petition For Writ of Certiorari in Forma Pauperis pursuant
\
to\the provisions of Title 28 USC Section 1915 and Rule 46 of |
this ‘Court. Affidavit of Petitioner is herewith attached.
Petitioner herewith presents to this Court for
consideration his Petition for Writ of Certiorari.
Respectfully submitted,
rt ose “
Rag 2 ae
‘
. HA , Esquire
Attorney for Petitioner
Cclumbia, South Carolina
July.19, 1983 , con
IN THE
Z SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1982
NO.
J. D. GLEATON,
PETITIONER,
Vv.
STATE OF SOUTH CAROLINA,
RESPONDENT.
AFFIDAVIT OF J. D. GLEATON
IN SUPPORT OF MOTION TO
PROCEED IN FORMA PAUPERIS
I, J. D. Gleaton 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; 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.
fe. 24 NE Sy Ci ee o, ee LO a OE
ee Ce EU ee Bee
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.
Summer 1976; approximately $460 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? "No."
a. If the answer is yes, describe each source of
income, and state and amount received from
each during the past twelve months.
3. Do you own any cash or checking or savings
account? "No."
a. If the answer is yes, state the total value
of the items owned.
4. Do you own any real estate, stocks, bonds, notes,
automobiles, or other valuable property (excluding ordinary
household furnishings and clothing)? "No."
a. If the answer is yes, describe the property
and state its approximate value.
5. List the persons who are dependent upon you for
support and state your relationship to those persons. “Wone."’
I understand that a false statement or answer to any
questions in this affidavit will subject me to penalties for
perjury.
SWORN TO and subscribed before me
this [ ‘te day of , 1983.
< ¢ |
tary c for Sou olina
My Commission Expires: fof2) a4
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.