# Petition — Gilbert v. South Carolina

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1984
- **Citation:** 467 U.S. 1220

## Text

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
14

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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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: are, . » ee ‘ ae :
— an ” a i eee a ¥ 2» a, 4 - ;
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1634%3A1. Public record. Not legal advice.