# Opposition Brief — Shafer v. South Carolina

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2001
- **Citation:** 532 U.S. 36

## Text

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EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY
AT THE TIME OF FILMING. IF AND WHEN A
BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUED.

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SLRS

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FILED

AUG 21 2000
No. 00-5250

CLERK

October Term, 2000

IN THE SUPREME COURT OF THE UNITED STATES
WESLEY AARON SHAFER, JR.,

Petitioner,

THE STATE OF SOUTH CAROLINA,

Respondent.

BRIEF IN OPPOSITION TO THE
PETITION FOR WRIT OF CERTIORARI TO
THE SUPREME COURT OF SOUTH CAROLINA

CHARLES M. CONDON
‘ Attorney General

JOHN W. McINTOSH
Chief Deputy Attorney General

DONALD J. ZELENKA
Assistant Deputy Attorney General

S. CREIGHTON WATERS
Assistant Attorney General

South Carolina Attorney General's Office
Post Office Box 11549

Columbia, South Carolina 29211

(803) 734-3601

ATTORNEYS FOR RESPONDENT

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CAPITAL CASE
PETITIONER’S QUESTIONS PRESENTED

1.
Whether petitioner's due process rights under Simmons v. South Carolina, 512 U.S.
154 (1994), were violated by the trial court's refusal to instruct the sentencing jury that
“under South Carolina law, [petitioner] would be ineligible for parole if the jury were to vote
for a life sentence,” Ramdass v. Angelone, 120 S.Ct. 2113, 2119 (2000) (plurality opinion),
and by the South Carolina Supreme Court's holding that Simmons no longer applies to

South Carolina's capital sentencing scheme.

2.
Whether prosecutors’ capital sentencing arguments based on general deterrence

violate due process when state law immunizes them from evidentiary rebuttal.

Serre or Tess

TABLE OF CONTENTS

PETITIONER'S QUESTIONS PRESENTED

EE ene ee ee i
i oak eke ne ese aioe deseebecen si iv
Co EO CL TT ST Tee eee Tee ee ere ee Te ee 1
I re rr ee ere re rr ee 1
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED............... 1
RESPONDENT'S STATEMENT OF THE CASE ................. 2.00 c cece. 2
a a Fs A) rr rr ree 4
REASONS WHY CERTIORARI SHOULD BE DENIED ........................ 9

1. Since under South Carolina's sentencing scheme there was legally available to
Petitioner a definite term sentence as an alternative to death and life without
parole, the South Carolina Supreme Court properly ruled that Simmons v.
South Carolina was not triggered; in any event, the state did not rely on

Petitioner's future dangerousness. .......... 0... 6c eee eee 9
A. How the federal question was raised and decided below ......... g
EE Pr rT er re ee ee ee Te eee ree 9
2. The direct appeal to the South Carolina Supreme Court.... 11

B. Unlike the South Carolina’s old sentencing scheme addressed in

Simmons v. South Carolina, which provided for parole eligibility for
murderers sentenced to life, the sentencing scheme under which
Petitioner was tried provided for three options: death, life without
parole, and a mandatory minimum sentence of at least thirty years.

Si ohn NP eee. shennan eae ne e4e se he 15

C. This Court's recent decision inRamdass v.Angelone........... 17

D. Since no other statutory provision required that Petitioner be sentenced
to life without parole if not sentenced to death, then Petitioner could
have received as little as a definite term sentence of thirty years; thus,

life without parole was not the only available alternative sentence, and
Simmons was inapplicable. ............................ 19

E. The prosecution did not argue future dangerousness; thus, the rule in

Simmons was not triggered. ...............0..0..0000005. 29

ll. The exclusion of evidence on the deterrent effect of the death penalty does
not violate due process where both the state and the defense have equal

opportunity to argue their respective views on the issue. ........... 34
A. How the federal question was raised and decided below ......... 34
P. TED 6 0c 0s 0 sédseecnsensnelsaeaneeaeeee 34
eG 0 00:0:0.09.44600600004400004)00007 eee 35

B. Since Petitioner had as much an opportunity in argument to “deny or
explain” the general deterrent effect of the death penalty as the state
did to assert it, there was no violation of due process......... 35

CONCLUSION

EE

TABLE OF AUTHORITIES
FEDERAL CASES

Aliridge v. Scott, 41 F.3d 213 (Sth Cir.1994).. 6. eee, 12, 26
Brooks v. Kemp, 762 F.2d 1383 (11" Cir. 1985) ............ Mecetusseaeens 33
California v. Ramos, 463 U.S. 992 (1983) .. 6... ees 16
Coleman v. Brown, 802 F.2d 1227 (10" Cir. 1986) ................0.0000.... 33
Collins v. Francis, 728 F.2d 1322 (11" Cir.), cert. denied, 469 U.S. 963(1984) .... 37
Gardner v. Florida, 430 U.S. 349, 362 (1977). © 6 eennn, 36, 38
Gregg v. Georgia, 428 U.S. 153 (1976) ©. cnn 25, 36, 38
ee Oe, Dg ck nea ccccccssceneescccsecees 20

, 770 F.2d 918 (11" Cir. 1985), modified on other grounds, 781 F.2d
‘at Cir. 1986), cert. denied, 479 U.S. 909 (1986) ............... 2.000. 37
Ramdass v. Angelone, 120 S.Ct. 2113(2000).......... 17-21, 24, 25, 27-29, 31, 40
Ramdass v. Angelone, 187 F.3d 396 (4th Cir.1999), affd, 120 S.Ct. 2113(2000) .. 12
Simmons v. South Carolina, 512 U.S. 164 (1994) ............... 1, 9-16, 18-31, 33
Skipper v. South Carolina, 476 U.S. 1 (1986)... ens 13, 37-39
United States v. Battle, 979 F. Supp. 1442, 1464-66 (N.D. Ga. 1997)............ 40
United States v. Flores, 63 F 24 1342 (5" Cir. 1995), cert. denied, 519 U.S. 825 (1996)
ee ee. icc rece ee ensbeaCescerrccecensacateeses 12, 21-23, 27
United States v. Grayson, 438 U.S. 41 (1978) © cece 37
Williams v. New York, 337 U.S. 241 (1949) 00 ce 37

iv

STATE CASES
Commonwealth v. May, 710 A.2d 44, 47 (1998), cert. denied, 525 U.S. 1078 (1999) =
Fleming v. State, 458 S.E.2d 638 (Ga. 1995)... cece eee 36
People v. Simpson, 665 N.E.2d 1228 (lil. 1996), cert. denied, 519 U.S. 982 (1998) 12,
Smith v. State, 898 S.W.2d 838 (Tex. Crim. App. 1995) .............0 2.00, 19
State v. Byram, 326 S.C. 107, 485 S.E.2d 360 (1997)... 2.0... 19
State v. Chapman, 464 S.E.2d 661 (N.C. 1995)... eee eee 19
State v. George, 323 S.C. 496, 476 S.E.2d 903 (1996) .................... 35, 36
State v. Kornahrens, 290 S.C. 281, 350 S.E.2d 180 (1986), cert. denied, 480 U.S. 940
DUE icunundhccdisdhaknadnsecesandaaddie deed ieiuennenaaeneeeken 26
State v. McLaughlin, 341 N.C. 426, 462 S.E.2d 1 (N.C.1995), cert. denied, 516 U.S. 1133
SN icacuatds odkscunskhsathaguataasabouacunstectTeeamnnitrecs: 12
State v. Mitts, 690 N.E.2d 522 (Ohio 1998) cece cece 27
State v. Norris, 285 S.C. 86, 328 S.E.2d 339 (1985), overruled on other grounds, State v.
Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991)... 0... eee eee eee. 13, 24
State v. Rose, 451 S.E.2d 211 (N.C. 1994) ccc eee eee 33

State v. Shafer, Op. No. 25120, 2000 W.L. 576189 (S.C. filed May 8", 2000) . 1, 3, 11,
13, 14, 25, 28, 35, 36

eeeeeeeeeeweeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeneeeeeeeeeeeeee ee ®

State v. Smith, 298 S.C. 482, 381 S.E.2d 724 (1989), cert. denied, 494 U.S. 1060 =

State v. Southerland, 316 S.C.377,__, 447 S.E.2d 862, 868 (1994), cert. denied, 513 U.S.

1166 (1995), and overruled on other grounds by State v. Chapman, 317 S.C. 302, 524
EET... 5 co cad00nessahenkend Ganahoobeuh teuareaeesasiaaeel 30

as 2 o-

State v. Starnes, Op. No. 25119, 2000 W.L. 576191 (S.C. filed May 8”, 2000)... 1, 12,
14, 15, 21, 26

State v. Williams, 321 S.C. 327, 468 S.E.2d 626 (1996), cert. denied, 519 U.S. 891 (1996)
[Meee aeUAe VERN Ghbbhahs hab dashes s6eb bobs eeahetedeanceuedseeddcens 11, 19

State v. Williams, 468 S.E.2d 626, 321 S.C. 327 (1996)
State v. Young, 319 S.C. 33, 459 S.E.2d 84 (1994), cert. denied, 516 U.S. 1051 (1996)

PUURRUaU Tada adn icadek ba dad caeusauauatabadncdbateodere cde ics cs 30
STATUTES
REN Le a NR, OS ae Pe a ED 22
EEE ET A NLS, tial eee ene Ema 2 NERD Ad 1
S.C. Code Ann. § 16-3-20 (Supp. 1999) ........... 22. 9-11, 15-17, 26
S.C. Code Ann. § 17-25-45 (Supp. 1997) ...... 0.6... 17, 19, 27
S.C. Code Ann. § 24-21-640 (Supp. 1995) 6... ee. 15, 28
S.C. Code Ann. §§ 24-13-100 to -125 (Supp. 1995) .........2.. 2. 16

OTHER AUTHORITIES
John C. McAdams, “Wisconsin Should Adopt Death Penalty,” 79 Marq. L. Rev. 707 (1996

Respondent, State of South Carolina, hereby makes a Brief in Opposition to the
Petition for a Writ of Certiorari to the South Carolina Supreme Court filed by Wesley Aaron
Shater, Jr., who has been convicted in the South Carolina courts and sentenced to death.
Respondent would show this Court the following:

CITATION TO OPINION BELOW

The decision of the Supreme Court of South Carolina is as of the date of this Brief
not yet reported in the South Carolina or Southeastern Reporters. The opinion is reprinted
and attached to this Brief as Appendix A, and also is available on WESTLAW as State v.
Shafer, Op. No. 25120, 2000 W.L. 576189 (S.C. filed May 8”, 2000). Also reprinted in the
Appendix to this Brief is State v._ Starnes, Op. No. 25119, 2000 W.L. 576191 (S.C. filed
May 8”, 2000). Starnes is a companion case to Shafer which also decided the same issue
pursuant to Simmons v. South Carolina, 512 U.S. 154 (1994).

JURISDICTION

The decision of the Supreme Court of South Carolina was entered on May 8", 2000.
This Court's jurisdiction is apparently invoked pursuant to 28 U.S.C. § 1257, Petitioner
having asserted below, and asserting herein, deprivation of rights secured by the United

1. The Fourteenth Amendment to the United States Constitution, which forbids,

in pertinent part, the deprivation of “life, liberty, or property, without due process of law.” -

2. Section 16-3-20 of the Code of Laws of South Carolina, which is reprinted in

the Appendix to this Brief.
RESPONDENT'S STATEMENT OF THE CASE

Petitioner, Wesley Aaron Shafer, Jr., is presently confined in the Lieber Correctional
Institution of the South Carolina Department of Corrections pursuant to orders of
commitment of the Clerk of Court for Union County. In May 1997, the Union County Grand
Jury indicted Appellant Wesley Aaron Shafer for murder, attempted armed robbery and
conspiracy. Specifically, the murder indictment alleged that, on April 13, 1997, Appellant
shot Ray Broome in the head with malice aforethought. The state made notice of intent
to seek the death penalty, and served notice of evidence in aggravation.

Appellant was represented at trial by Public Defender William All, as well as
Attorneys Leon Banks and William Nettles. The state was represented at trial by Solicitor
Thomas E. Pope, Deputy Solicitor Kevin S. Brackett, and Assistant Solicitor Betty Miller.
Judge John C. Hayes conducted a jury trial in Union County beginning on January 12,
1998. On January 18, 1998, the trial jury convicted appellant of all charges.

The sentencing hearing began the next day. After presentation of the evidence, the
trial judge charged the following statutory aggravating factor:

A murder was committed while in the commission of an attempted armed
robbery while armed with a deadly weapon.

1. The defendant has no significant history of a prior criminal conviction
involving the use of violence against another person.

2. The murder was committed while the defendant was under the influence
of mental or emotional disturbance.

3. The capacity of the defendant to appreciate the criminality of his conduct,

or to conform his conduct to the requirement of the law was substantially
impaired.

4. The age and mentality of the defendant at the time of the crime.

The judge also instructed the jury that it could consider non-statutory mitigating
circumstances supported by the evidence.

On January 21, 1998, the jury found the aggravating circumstance and
recommended that Appeliant be sentenced to death for the murder. The trial judge
imposed the death sentence the same day, along with consecutive sentences of twenty
and five years for the attempted armed robbery and conspiracy charges respectively.

Appeiiant timely filed notice of appeal. In the direct appeal to the South Carolina
Supreme Court, Petitioner was represented by David |. Bruck, Esquire. Assistant Attorney
General S. Creighton Waters, Esquire, represented Respondent. Both parties filed briefs
in the appeal, and the following issues were presented by Petitioner:

I. The trial court's incomplete and misleading response to the jury’s question
about parole eligibility renders his death sentence fundamentally unfair.

ll. The trial court's refusal to allow Appeliant to present evidence to rebut the

prosecution's argument concerning the supposed general deterrent effect of

the death penalty, together with the denial of a curative instruction, denied

Appeliant due process of law.

lll. The trial court erred in granting the state’s request for a blanket

Prohibition of all religious or biblical references during defense counsel's

The South Carolina Supreme Court heard oral argument on October 7”, 1999, and
the court issued its opinion affirming Petitioner's conviction and sentence on May 8", 2000.
State v. Shafer, Op. No. 25120, 2000 W.L. 576189 (S.C. filed May 8", 2000). On May 24”,

2000, Attorney Bruck filed on behalf of Petitioner a “Consent Motion for Stay of Execution’.

4

The South Carolina Supreme Court on June 6", 2000 granted the motion for stay of
execution but denied Petitioner's motion to stay the Remittitur. The Remittitur was sent
down on June 6", 2000.

Petitioner filed his Petition for Writ of Certiorari with the United States Supreme
Court on July 14”, 2000, and this Petition was docketed on July 20", 2000.

RESPONDENT'S STATEMENT OF FACTS

Although the defense did argue against the presence of malice at trial, it is
undisputed that Petitioner Wesley Shafer killed Ray Broome by shooting him twice in the
head. The issues in this appeal only challenge the sentencing phase. The following briefly
describes the evidence presented at trial.

Adam Mullinax, Shafer’s cousin and a co-defendant, spent most of Saturday, April
12”, 1997, with Shafer and Justin Porter. {R. 1161 Il. 18-63; 1154 |. 1 - 1159 |. 11}.
Mullinax testified that Shafer, who was wearing a Duke University jacket, showed off a
pistol he kept in the jacket’s outside pocket. {R. 1159 |. 21 - 1161 |. 23}. At about 7 p.m.,
Mullinax left Porter and Shafer and went to watch boxing. {R. 1159 Il. 11-20; 1162 |. 17 -
1163 |. 12}.

Later that Saturday night, a number of teenagers and young adults were “cruising”
in the parking lot at the Hot Spot convenience store, a popular late-night hangout in
Lockhart, South Carolina. {R. 990 Il. 1 - 25; 1017 |. 18 - 1018 1. 12; 1024 |. 14 - 1025 |.
2}. Ray Broome, the victim, was the third shift clerk at the Hot Spot. {R. 941 II. 13-20}.
Around 11:30 p.m., two men in a brown late-70's Ford pickup attracted attention by
spinning the truck's wheels at the gas pumps. Jamie Gibson, who was hanging out at the

Hot Spot, recognized Justin Porter as the driver. The passenger, who Gibson did not
know, was wearing a Duke University hooded jacket. After Porter and his passenger went
in the store, those hanging out at the Hot Spot saw the two men again spin the truck's
wheels while leaving. As the truck pulled away from the store, the passenger held his arm
out of the window and fired several shots into the air with a handgun. {R. 962 Il. 2-10; 990
1.17 - 996 1.10; 1011 I. 6 - 1013 1. 19; 1020 II. 1-24; 1025 I. 3 - 1026 I. 11; 1039 I. 2 - 1040
1. 20; 1045 Il. 1-17; 1047 |. 7 - 1048 i. 11}

At about midnight, Mullinax again met up with Porter and Shafer, and after the three
drank a few beers, they decided to go to the Hot Spot for cigarettes. Upon arrival, Mullinax
used the restroom in the store and returned outside to the Ford pickup. Shafer then pulled
the hood on his head, and he and Porter entered the store around at about 1:00 a.m. {R.
996 |. 22 - 1000 I. 10; 1013 Il. 10-19; 1162 I. 23 - 1168 I. 13}.

What happened next was entirely captured on a video recorders hooked to the Hot
Spot's security cameras. The videotape introduced at trial reflects Shafer walk in and
shoot Broome in the head with a startling lack of warning. Eight seconds later, Shafer
strolled over to the counter, leaned over it, and put another bullet into Broome's head as
he lay on the floor. After attempting and failing to open the cash register, Shafer and
Porter ran out the door. {R. 963 |. 5 - 965 |. 11; 1168 I. 15 - 1170 |. 8}.

Once back at the truck, Shafer jumped in the middle of the seat and ducked his
head down on Mullinax’s lap. While standing at the truck’s door, Porter pulled a hat onto
his head, fumbled around looking for the keys, and then started the truck and drove away.
{R. 1028 |. 4 - 1031 |. 3; 1041 I. 9 - 1043 1. 23; 1048 Il. 12-23; 1170 I. 9 - 1171 I. 11}.

Meanwhile, Jamie Palmer, Monica Inman, and Jennifer Martin had pulled into the
Hot Spot parking lot in time to watch Shafer and Porter run to the truck and escape.
Although her friends were apprehensive, Palmer went inside the Hot Spot and found
Broome lying on the floor behind the counter. She promptly dialed 911. While she was
on the phone, her friends came inside and begged her to leave, saying, “They might come
back, they might come back.” {R. 965 1.10; 1028 I. 4 - 1032 1. 20}. Although Broome was
still breathing when law enforcement and EMS arrived, emergency room personnel could
not save him. {R. 941 |. 21 - 943 I. 1; 975 |. 13 - 976 I. 16; 1503 |. 1 - 1506 I. 9; 1507 I.
12 - 1508 |. 9; 1511 I. 21-25}. ;

After escaping from the Hot Spot, Shafer, Porter, and Mullinax returned to Porter's
house. While Shafer was confident they would not be caught, he stated they need to get
rid of their clothes. Shafer and Porter wrapped the murder weapon, which belonged to
Shafer’s father, in Mullinax’s shirt and hid it under the seat in an old car behind the barn.
The two then weighted Shafer’s Duke University jacket with a rock, and put it into a nearby
creek with their shirts and hats stuffed in the pockets. {R. 11711. 5- 11741. 4; 1108 I. 12 -
1110 |. 18; 1130 I. 15 - 1136 I. 2}.

The girlfriend of one of the responding deputies was the cousin of Porter, and she
and Jamie Palmer had a conversation the night of the incident. {R. 977 |. 11 - 979 I. 9}.
As a result of this conversation, the police drove Palmer and Inman by Porter's house
Sunday morning. The young women identified the Ford pickup parked in Porter's yard as

the one involved in the incident. {R. 979 |. 13 - 980 I. 25; 984 1. 13 - 987 I. 14; 1033 I. 20 -

1037 |. 14; 1053 |. 4 - 1059 I. 1}.

The trail inevitably led to Shafer, and he was arrested that day. {R. 1059 I. 2 - 1073
1. 1; 1079 1. 2 - 1102 |. 13}. After initially denying knowledge of the gun’s whereabouts,
Shafer ultimately told officers where it was hidden. He also directed them to the location
of the hidden jacket and a box of bullets. {R. 1104 1. 3 - 1105 1. 1; 1108 I. 12 - 1110 I. 18;
1118 ll. 4-23; 1121 Il. 15-20; 1124 1. 7 - 1125 |. 9; }. When asked by law enforcement why
he shot Broome, Shafer replied that he had the gun and “just snapped.” {R. 1120 Il. 7-25;
1122 Il. 1-24; 1125 i. 23 - 1126 I. 7}.

During the sentencing phase, the state introduced evidence that on October 9”,
1995, Shafer pled guilty to criminal sexual conduct with a minor 2” and burglary 2”.
Shafer was part of a group of guys who broke into an empty mobile home and pressured,
but did not force, two 12-year old girls to engage in sexual activity with them. Shafer did
pet atone comply with the terms and conditions of his probation and home detention from
that incident. {R. 1446 |. 3 - 1455 |. 6}. During that time he tested positive for marijuana,
had another burglary 2 charge, and was charged with driving under suspension and
operating an uninsured vehicle. {R. 1482 |. 1 - 1484 |. 14; 1488 Il. 5-17}.

While in jail awaiting trial, prison staff caught Shafer with contraband, including a
green leafy substance as well as cigarettes and a lighter. {R. 1460 |. 3 - 1464 |. 22; 1478
|. 7 - 1480 |. 15}. Shafer also was charged with simple assault after he angrily confronted
a prison guard who turned off the outside phones at the end of recreation period. {R. 1466
1. 12 - 1471 I. 17}.

Robert Newton, who was in county jail with Shafer, testified that when Shafer told

him about shooting Broome he did not seem bothered by it. According to Newton, Shafer

Said that when Broome saw Shafer pointing the gun at him, he just looked back down at
a Clipboard. Shafer took this as a “smart comment’, and fired the pistol. {R. 1490 |. 5 -
1493 |. 13}.

The state also presented testimony from various emergency personnel about the
unsuccessful efforts to save Broome and the gut-wrenching ordeal of informing his family.
{R. 1502 |. 17 - 1514 |. 20}. Broome’s wife and son also testified about their loss. {R.
1551 |. 9 - 1576 |. 24}.

In mitigation, Shafer presented relatives and neighbors who generally testified about
mental and physical abuse Shafer and his sister suffered at the hands of their father,
Ricky. {R. 1577 |. 19 - 1609 |. 25; 1650 |. 1 - 1680 I. 13; 1789 I. 1 - 1808 I. 10; 1850 1. 16 -
1861 |. 25}. Dr. Patrick Goldsmith, a psychologist, testified about Shafer’s alleged abuse,
substance use, and resulting impulse control problems. He diagnosed Shafer with
depression, and felt there was a “probability” he suffered post traumatic stress disorder in
early childhood. {R. 1615 |. 17 - 1644 |. 10}. |

Also testifying for Shafer was Lt. Col. David Grossman, who has a master's degree
in psychology and who is the self-anointed founder of the discipline of “killology”.
Grossman theorized that years of abuse, watching violent movies, and playing violent video
games had conditioned Shafer much in the “stimulus-response” manner which the military
uses to train soldiers to kill the enemy. Thus, he generally asserted that Shafer had a
“conditioned response” where if a target such as Broome presented himself, it would be

“extraordinarily difficult” for Shafer not to shoot. {R. 1681 |. 23 - 1786 I. 19}.

In reply, the state presented testimony about one of the video games played by

Shafer and discussed by Grossman. The witness stated that although a player got points
by shooting bad guys, the player lost a life if he shot the “innocent townsfolk.” {R. 1865 I.
6 - 18701. 20}. ©

R | N Y Tl
I. Since under South Carolina’s sentencing scheme there was legally available to

Petitioner a definite term sentence as an alternative to death and life without parole,

the South Carolina Supreme Court properly ruled that Simmons v. South Carolina
was not triggered; in any event, the state did not rely on Petitioner’s future
dangerousness.

| The statutory possibility that Appellant could have received a 30-year mandatory

minimum sentence precludes the claim that the trial judge should have charged the
sentencing jury that Appellant would get life without parole [“LWOP”] if the jury did not
recommend death. In the alternative, the rule in Simmons v. South Carolina was not
triggered because the prosecution did not rely on Petitioner's future dangerousness.

A. How the federal question was raised and decided below

1. Events at trial

At trial, the state sought an in liminie motion that parole ineligibility could not be
mentioned under Simmons v. South Carolina because the state had not made future
dangerousness at issue. Defense counsel first argued that the state could not use
evidence of Appellant's character without using it for future dangerousness. The court
found that as of yet, future dangerousness had not been argued, so he granted the state's
motion. {R. 1817 |. 17 - 1821 I. 9}.

After the court indicated that it was charging what it thought was applicable from the

murder statute, the defense made a motion to read from section 16-3-20. The court

denied this motion. The court granted the defense’s request to charge life in prison means
“until death of the offender.” See S.C. Code Ann. § 16-3-20 (Supp. 1998). {R. 1836 I. 14 -
1843 |. 15}.

After the solicitor's sentencing phase closing argument, the defense argued that
under Simmons future dangerousness was raised when the solicitor echoed the statement
of one of those who found the victim, that “they might come back, they might come back.”
The solicitor stated he was merely arguing general deterrence, and the court agreed. {R.
1893 |. 23 - 1894 |. 10}.

The trial court then charged the jury as follows:

THE COURT: | tell you that life imprisonment means until death of the
defendant.

** *

In deciding whether to sentence the defendant to death or life
imprisonment, | remind you that death means just what it says, death. Life
imprisonment means incarceration of the defendant until his death.

{R. 1919 il. 15-16; 1926 Il. 12-15}.
Finally, during deliberation the jury sent a note asking the following two questions:

(1) Is there any remote chance for someone convicted of murder to become
eligible for parole?

(2) Under what conditions would someone convicted for murder be eligible?
The state argued that under the Simmons v. South Carolina and its progeny, parole
ineligibility does not need to be charged even if someone is parole ineligible, unless future
dangerousness is argued. In response, defense counsel admitted that the “until death of
the offender” language was an appropriate “baseline,” and stipulated that the second
question could not be answered. The defense further contended that since section 16-3-

20 explained life imprisonment beyond “until death of the offender,” then it should be

10

charged to the jury. Asserting that under the present 16-3-20 there are three clear options
for the jury, the defense stated that it thought the jury should be charged that if they find
an aggravator, Appellant would receive life without parole. Finally, Appellant argued that
the judge should not include “parole eligibility is not for your consideration” in its response
to the jury's question. The trial court ultimately charged the following:

Section 16-3-20 of our Code of Laws as applies to this case in the
process we're in, states that, quote, for the purposes of this section life
imprisonment means until the death of the offender, end quote.

Parole eligibility or ineligibility is not for your consideration.

{R. 1937 |. 22 - 1954 |. 13}.

2. The direct appeal to the South Carolina Supreme Court

In State v. Shafer, the South Carolina Supreme Court addressed the due process

claim for a parole ineligibility charge as follows:

Appellant argues he was entitled to a charge on parole ineligibility
after the solicitor placed his future dangerousness in issue. He contends
Simmons mandates a parole ineligibility instruction and refusal to give the
charge violated his right to due process. We disagree.

Whent. :ate places the defendant's future dangerousness at issue
and the only available alternative sentence to the death penalty is life
imprisonment without parole, due process entitles the defendant to inform
the jury he is parole ineligible. [Simmons v. South Carolina]; State v.
Williams, 321 S.C. 327, 468 S.E.2d 626 (1996). Due process is violated
when the State "raise[s] the specter of [the defendant's] future
dangerousness generally, but then thwart{[s] all efforts by [the defendant] to
demonstrate that, contrary to the prosecutor's intimations, he never would be
released on parole and thus, in his view, would not pose a future danger to
society." Simmons, 512 U.S. at 165 (1994) (plurality opinion).

Appellant was tried under the new sentencing scheme which became
effective on January 1, 1996. S.C. Code Ann. § 16-3-20 (Supp. 1998). Under
the new sentencing scheme, a defendant can be sentenced to (1) death, (2)
life without the possibility of parole, or (3) a mandatory minimum thirty year

sentence. We recently held Simmons is inapplicable under the new
sentencing scheme because life without the possibility of parole is not the
only legally available sentence alternative to death. State v. Starnes, Op. No.

25119 (S.C.Sup.Ct. filed May 8, 2000) (Shearouse Adv.Sh. No. 18 at 17).
[FN7]

[FN7] In Starnes, we suggested, under the terms of the statute,
it is arguable that a defendant could be sentenced to more
than thirty years and be eligible for parole after service of thirty
years. For purposes of this discussion, we assume appellant
was parole ineligible.

Accordingly, appellant's due process rights were not violated by the trial
judge's refusal to instruct the jury appellant was parole ineligible.

Appellant argues Simmons mandates a charge on parole ineligibility
when the State argues future dangerousness and the jury's sentencing
recommendation is limited to death or life without the possibility of parole,
even though some other sentence is available. We do not read Simmons so
narrowly. By its own terms, Simmons requires the trial judge instruct the jury
the defendant is parole ineligible only if no other sentence than death, other
than life without the possibility of parole, is legally available to the defendant.
Simmons, U.S. at 178 (O'Connor, J., concurring) (“[a}ithough the only
alternative sentence to death under state law was life imprisonment without
the possibility of parole...".) (emphasis added). This interpretation is
supported by decisions from other jurisdictions. Ramdass v. Angelone, 187
F.3d 396 (4th Cir.1999) (Simmons is inapplicable if, at time of sentencing
proceeding, defendant is parole eligible under state law, hence where
judgment had yet to be entered for defendant's third murder conviction,
defendant was parole eligible under “three strikes” law); United Siates v.
Flores, 63 F.3d 1342 (5th Cir.1995), cert. denied, 519 U.S. 825, 117 S.Ct.
87, 136 L.Ed.2d 43 (1996) (because sentencing guidelines vest district court
with discretion to adjust life sentence downward, life sentence without
possibility of parole is not only legal sentence other than death which
defendant might receive and, therefore Simmons is inapplicable); Aliridge v.
Scott, 41 F.3d 213 (Sth Cir.1994), cert. denied, 514 U.S. 1108, 115 S.Ct.
1959, 131 L.Ed.2d 851 (1995) (Simmons applies where capital defendant is
ineligible for parole as a matter of law; Simmons does not apply even if it is
unlikely defendant would be paroled); People v. Simpson, 172 lll.2d 117, 216
ili.Dec. 671, 665 N.E.2d 1228 (lll.), cert. denied, 519 U.S. 982, 117 S.Ct.
436, 136 L.Ed.2d 334 (1996) (Simmons inapplicable where capital defendant
is statutorily eligible for a sentence less than natural life imprisonment); State
v. McLaughlin, 341 N.C. 426, 462 S.E.2d 1 (N.C.1995), cert. denied, 516
U.S. 1133, 116 S.Ct. 956, 133 L.Ed.2d 879 (1996) (Simmons inapplicable
where alternative to death is not life imprisonment without possibility of

12

parole). At the time appeliant's jury began its deliberations, three alternative

sentences were available. Since one of these alternatives to death was not

life without the possibility of parole, Simmons was inapplicable.

State v. Shafer, Op. No. 25120, 2000 W.L. 576189, *4-*5 (S.C. filed May 8”, 2000).
The Shafer court next ruled that Petitioner's Eighth Amendment claim for a parole
ineligibility charge was not preserved for appeal. In the alternative, Shafer found a parole
ineligibility charge was not required “mitigating evidence" under Skipper v. South Carolina,
476 U.S. 1(1986), and, as a matter of state law, parole ineligibility “remain{ed] an irrelevant
factor which the jury should not consider”. State v. Shafer, Op. No. 25120, 2000 W.L.
576189, *5-*6 (S.C. filed May 8”, 2000).

Shafer also addressed Petitioner's state law bases for his claim that after the jury's
question the trial court should have charged Petitioner was parole ineligible. Shafer first
noted that absent a Simmons issue, a jury's inquiry about parole should be handled iri

accordance with State v. Norris, 285 S.C. 86, 328 S.E.2d 339 (1985), which requires: (1)
| a charge that death and life imprisonment should be understood in their plain and ordinary
meaning, and (2) a charge that parole eligibility should not be considered. State v. Shafer,
Op. No. 25120, 2000 W.L. 576189, *6 (S.C. filed May 8”, 2000). The court reiterated that
Petitioner could possibly receive one of three possible sentences at the time of sentencing,
and recognized that the jury's question meant it “was attempting to ascertain the length of
time appellant would realistically spend in prison if sentenced to life imprisonment”. Id. at
*6. Thus, the court concluded:

Informing the jury that appellant was parole ineligible when, unbeknownst to
the jury, he faced a possible sentence of thirty years imprisonment after
which he would be unconditionally released would not have fairly responded
to the jury's inquiry.

13

Next, Shafer rejected Petitioner's claim that parole eligibility was suggested by the
judge's charge, “parole eligibility or ineligibility is not for your consideration”. The court
noted that unlike the charges in Simmons, this instruction “specifically informed the jury not
to consider either parole eligibility or ineligibility and, therefore, did not imply appellant was
parole eligible”. State v. Shafer, Op. No. 25120, 2000 W.L. 576189, *6 (S.C. filed May 8”.
2000).

Finally, Shafer disagreed with Petitioner's contention that portions of the sentencing
statute highlighted below be read to the jury to define life imprisonment, because: (1) the
Court had determined parole eligibility or ineligibility were not proper considerations for the
jury, and (2) “the highlighted text provides the jury with only those portions Petitioner
deems favorable but excludes any reference to other less favorable sentencing options”.
State v. Shafer, Op. No. 25120, 2000 W.L. 576189, *6 (S.C. filed May 8”, 2000). :

In State v. Starnes, the companion case to Shafer, the court discussed with more
detail its rejection of a similar Simmons claim. State v. Starnes, Op. No. 25119, 2000 W.L.
576191 (S.C. filed May 8", 2000). Starnes concluded that “the rationale for Simmons
simply does not exist when there is a potential mandatory minimum thirty year sentence”,
because unlike a sentence of LWOP, “a mandatory minimum thirty year sentence does not
rebut the State’s argument regarding the defendant's threat to society”. Starnes, Op. No.
25119, 2000 W.L. 576191, *9.

Finally, Starnes rejected the claim that the jury, after just convicting the defendant
of two murders, therefore necessarily was going to find the aggravating factor that “two or
more persons were murdered by the defendant by one act or pursuant to one scheme or

14

course of conduct”. The court found it “inappropriate to assume the jury would find an
aggravating circumstance” beyond a reasonable doubt, and thus concluded that “a
potential mandatory minimum thirty year sentence existed” precluding the need for a parole
ineligibility charge. Id. at *9.

B. Unlike the South Carolina’s old sentencing scheme addressed in

Simmons v. South Carolina, which provided for parole eligibility for

murderers sentenced to life, the sentencing scheme under which

Petitioner was tried provided for three options: death, life without

parole, and a mandatory minimum sentence of at least thirty years.

The statutory possibility that Petitioner could have received a 30-year mandatory
minimum sentence preciudes the claim that the trial judge should have charged the
sentencing jury that Appeliant would get life without parele [“LVW/OP”] if the jury did not
recommend death.

Previously, Simmons issues arose in the context of the old South Carolina penalty

scheme for capital murder cases. Under the old law, if the jury found no aggravating

factors in the penalty phase, the defendant received life in prison with a 20-year parole
eligibility. If the jury found aggravating circumstances but did not recommend the death
penalty, the defendant received life with a 30-year parole eligibility. See S.C. Code Ann.
§ 16-3-20 (Supp. 1995).

in Simmons itself, the defendant pied guilty to a number of violent crimes prior to
his death penalty trial. Therefore, regardless of whether the jury found aggravating
circumstances, Simmons was ineligible for parole under South Carolina's section 24-21-
640, because that section preciudes parole for those with a second conviction for a violent
crime. See 512 U.S. at 156. The trial court prevented Simmons from mentioning parole

15

during voir dire, and denied the defense's request for a LWOP charge. 512 U.S. 159-61.
During closing, the solicitor argued future dangerousness as a justification for imposition
of the death penalty on Simmons. 512 U.S. at 157, 176. After the jury inquired of the
judge whether a life sentence carried the possibility of parole, the judge gave a charge that
(1) death and life imprisonment should be considered in their plain and ordinary meaning,
and (2) parole eligibility was not for the jury's consideration. The jury then returned a death
sentence. 512 U.S. at 160.

Both the plurality and concurring opinions in Simmons first recognized that states
still retain discretion in determining whether parole eligibility is an appropriate consideration
for the sentencing jury. 512 U.S. at 168, 176 (both opinions citing California v. Ramos, 463
U.S. 992 (1983)). However, Simmons held that due process prevented the state from
creating “a false dilemma by advancing generalized arguments regarding the defendant's
future dangerousness while, at the same time, preventing the jury from learning that the
defendant will never be released on parole.” 512 U.S. at 171. Simmons has thus been
read to establish a two-part test for triggering of its mandate:

- (1) the state must the defendant's future dangerousness at issue in the trial, and

(2) “the only available alternative sentence to the death penalty is [LWOP].”

See Simmons, 512 U.S. at 169 (plurality opinion); 512 U.S. at 177 (concurring opinion).

The present penalty scheme for capital murder is different from the one at issue
when Simmons was decided. Under the present South Carolina Code section 16-2-30, if
the jury in a capital case fails to find any aggravating circumstances, the trial court has
discretion to sentence the defendant to either a mandatory minimum term of 30 years, or

LWOP. Pursuant to sections 24-13-100 and -125, no part of the finite term sentence can
16

be reduced by parole. If the murder defendant had at least one prior conviction of a “most
Serious offense," then the defendant must be sefitenced to life without parole. S.C. Code
Ann. § 17-25-45 (Supp. 1997). !f the defendant has at least two prior convictions of a
“serious offense,” then solicitors in their discretion could seek a LWOP sentence. S.C.
Code Ann. § 17-25-45 (Supp. 1997).'

If, on the other hand, the jury finds aggravating circumstances but does not
recommend a death sentence, then the trial court must sentence the defendant to LWOP.

Of course, the jury can recommend a death sentence only if it finds aggravating factors.
S.C. Code Ann. § 16-3-20 (Supp. 1997).

_ C. This Court's recent decision in Ramdass v. Angelone.

Brief review of this Court's decision in Ramdass v. Angelone is necessary to
address the issues raised by Petitioner. In Ramdass, this Court reviewed in federal
habeas corpus a capital murder defendant's claim that he was entitled to a parole
ineligibility charge because of his ineligibility under the state's “three-strikes” law. At the
time of his capital sentencing proceeding, Ramdass had been convicted of a qualifying
prior crime, but the judge had not entered a final judgment of conviction as required by
State law. During the capital sentencing proceeding, the jurors inquired about the
availability of parole, but the trial court told them they “are not to concern [them]selves with
what may happen afterwards”. 120 S.Ct. 2113, 2117-20 (2000).

The Ramdass plurality made a number of points in rejecting the claim for a

" A murder defendant sentenced to LWOP under section 17-25-45 could still get
a pardon for geriatric, health, or other extraordinary reasons. S.C. Code Ann. § 17-25-
45(E) (Supp. 1997).

17

—-

Simmons parole ineligibility charge:

(1) “States have some discretion in determining the extent to which a
sentencing jury should be advised of probable future custody and parole
Status in a future dangerousness case, subject to the rule of Simmons.”
Ramdass, 120 S.Ct. at 2119, 2121.

(2) Simmons has not been “extended to cases where parole ineligibility has
not been established as a matter of state law af the time of the jury's future
dangerousness deliberations in a capital case.” Ramdass, 120 S.Ct. at 2119
(emphasis added).

(3) A Simmons instruction is not required unless it is legally accurate, and in
Simmons, the defendant had “conclusively established” his parole eligibility
at the time of sentencing. Ramdass, 120 S.Ct. at 2120 (emphasis added).

(4) A “functional approach”, under which the court would attempt to “evaluate

the probability of future events”, is “neither necessary nor workable” under

Simmons. Ramdass, 120 S.Ct. at 2121.

(5S) A parole ineligibility charge is of “uncertain materiality’, and can be

overcome if a jury concludes the defendant may escape, be pardoned,

benefit from a change in state laws, or be dangerous to society in prison.

Thus, the Virginia state courts had “good reason not to extend Simmons

beyond the circumstances of that case”. Ramdass, 120 S.Ct. at 2122.

The plurality rejected Ramdass's claim because his parole ineligibility was not conclusively
established under state law. It refused to engage in a “functional approach” and predict
that Ramdass would inevitably become parole ineligible, and found that entry of judgment
was not a mere ministerial act, in part because of the availability of post-trial motions. 120
S.Ct. at 2119-26.

Justice O'Connor concurred with the Ramdass plurality. After noting the more
restrictive federal habeas corpus scope of review, she concluded: (1) the Court looks to
State law to determine parole eligibility, (2) while the defendant in Simmons “conclusively
established” his parole ineligibility, Ramdass had not, (3) the entry of judgment requirement
under state law was not ministerial, or inevitable foreordained under state law, and (4)

18

Simmons does not require state courts to estimate the likelihood of future contingencies.
Thus, Justice O'Connor reasoned that LWOP was not the “only available alternative” to
death, and Simmons was inapplicable. Ramdass, 120 S.Ct. at 2126-28.

D. Since no other statutory provision required that Petitioner be

sentenced to life without parole if not sentenced to death, then

Petitioner could have received as little as a definite term sentence of

thirty years; thus, life without parole was not the only available

alternative sentence, and Simmons was inapplicable.

Since there was legally available to Petitioner a potential alternative sentence to
death other than LWOP, that prong of Simmons is not met. The LWOP provisions in
section 17-25-45 were not triggered in this case. {R. 1940 Il. 21-25; 1949 Il. 15-21}. Thus,
depending on the findings of the jury on the sentencing phase, Appellant faced three
possible sentencing alternatives: 30 years, LWOP, or death.

South Carolina and other jurisdictions in interpreting Simmons have held that it does
not apply, even if the solicitor argues future dangerousness, unless the only other
altemative to a death sentence is life without the possibility of parole. See, e.g. State v.
Byram, 326 S.C. 107, 485 S.E.2d 360 (1997); State v. Williams, 321 S.C. 327, 337, 468
S.E.2d 626, 632 (1996). See also State v. Simpson, 325 S.C. 37, 479 S.E.2d 57 (1996),
cert. denied, 520 U.S. 1277 (1997). These cases were decided under the old South

Carolina scheme, where a life sentence had various terms before parole eligibility uniess

the defendant had a LWOP-qualifying prior record. See also People v. Simpson, 665

N.E.2d 1228 (Ill. 1996); State v. Chapman, 464 S.E.2d 661 (N.C. 1995); Smith v. State,
898 S.W.2d 838 (Tex. Crim. App. 1995). While this case involves different circumstances,

the fact remains that Appellant had a sentencing alternative other than death or LWOP.

19

Petitioner asserts that the South Carolina Supreme Court took the “only available
alternative to death” language out of context in Justice O'Connor's concurring opinion and
mistook it for the holding of Simmons. Petition for Certiorari p. 16. Petitioner is incorrect.
Both the plurality in Simmons and Ramdass used or recognized the “alternative sentence”
language. Simmons, 512 U.S. at 169 (plurality uses “alternative sentence to death is
[LWOP]” language in its staternent of the holding): 512 U.S. at 177 (concurring opinion
uses “only available alternative sentence to death” language). See also Ramdass, 120
S.Ct. at 2120 (plurality cites with approval Justice O'Connor's “only available alternative
sentence” language); 120 S.Ct. at 2126 (Justice O'Connor reiterates her “only available
alternative sentence” language in the concurring opinion). Indeed, even the Ramdass
dissent used Justice O'Connor's “only available alternative sentence” language in its
statement of the Simmons rule, 120 S.Ct. at 2135, and Justice O’Connor stated:

In Simmons v. South Carolina . . ., a majority of the Court held that “where
the State puts the defendant's future dangerousness at issue, and the only

available alternative sentence to death is life imprisonment without the
possibility of parole, due process entitles the defendant to inform the capital
sentencing jury . . . that he is parole ineligible’.

Ramdass, 120 S.Ct. at 2126 (emphasis).? See also Keel v. French, 162 F.2d 263 (4" Cir.

2 It is Petitioner, however, that takes statements in Ramdass out of context when
he quotes the plurality’s explanation of the holding of Simmons. See Brief of Petitioner p.
18 (stating: “Later, Justice Kennedy elaborated on this point, observing that under
Simmons, a “parole-ineligibility instruction is required only when, assuming the jury fixes
the sentence at life, the defendant is ineligible for parole under state law."). Justice
Kennedy was merely describing Simmons's applicability to a scheme where a life sentence
carried the possibility of parole unless the defendant's prior record precluded parole. A
similar scheme existed under Virginia law in Ramdass. Justice Kennedy was not
addressing a scheme like the one present in this case, where a mandatory minimum
definite term sentence was a third option to LWOP and death. As such, Justice Kennedy's
statements cannot be read in isolation to preclude the state's argument here.

20

1998) (recognizing Justice O’Connor’s concurring opinion in Simmons as a statement of

-______the case's holding).

Of course, resolution of a Simmens claim in this case depends on making an
~ analogy between a life sentence with the possibility of parole under the old South Carolina
scheme (which was present in Simmons), and a definite mandatory minimum sentence
under the new penalty scheme (which is present in this case). Such an analogy is
appropriate. The concern in Simmons was that the solicitor had created a “false dilemma
by advancing generalized arguments regarding the defendant's future dangerousness
while, at the same time, preventing the jury from learning that the defendant will never be
released on parole.” 512 U.S. at 171. As held in United States v. Flores, 63 F.3d 1342 (5"
Cir. 1995), it does not matter whether the “false dilemma” is avoided by the presence of
a life sentence with parole, or whether it is avoided because the defendant could potentially
receive a sentence of a definite term. The fact remains that another legally available
option existed besides death and LWOP. The mechanism by which Petitioner could be
released, either parole or expiration of a definite term, is irrelevant because release is
inherent in either type of sentence, and the “false dilemma” of a future dangerousness
argument only exists where the defendant will never be released. See Ramdass v.
Angelone, 120 S.Ct. 2113, 2135 (2000) (“If the State argues that the defendant will be a
future danger to society, it quite plainly rebuts that argument to point out that the defendant

. will never be part of society again.” (Stevens, J., dissenting) (emphasis added);

Starnes, Op. No. 25119, 2000 W.L. 576191, *9 (unlike a sentence of LWOP, “a mandatory

> Cf. Flores, 63 F.3d at 1366-68 (discussing a Simmons claim in the context of
whether a definite term sentence existed as an alternative to LWOP).

21

ae
i

minimum thirty year sentence does not rebut the State’s argument regarding the
defendant's threat to society”).“

Other cases have ruled Simmons inapplicable under penalty schemes and
situations similar to this one. In United States v. Flores, 63 F.3d 1342 (5" Cir. 1995), co-
defendant Juan Garza faced a capital trial in federal court for a number of murders related
to drug trafficking. The evidence against Garza showed that he either contracted for or
participated in the murders of three men. 63 F.3d at 1351-52. Garza requested the jury
be instructed that LWOP was the only alternative sentence, but the trial court instead told
the jury that, if the jury did not recommend death, the court could impose either LWOP or
another sentence. 63 F.3d at 1367. Under 21 U.S.C. § 848(e), the court could sentence
the defendant to “any term of imprisonment” from 20 years to LWOP, assuming the jury
did not recommend death. In addition to some mitigators, Garza’s jury found first-tier
aggravators, second-tier aggravators, and non-statutory aggravators, including that Garza
premeditated and planned the killings, that he participated in a contract killing, and that he
was also responsible for five more killings. Flores, 63 F.3d at 1366-67.

In challenging his death sentence, Garza argued that if the jury did not return a
death sentence, the trial court would have had no choice but to impose LWOP. According
to Garza, a comment in the Federal Sentencing Guidelines necessarily and expressly

prevented the trial court from imposing a lower sentence than LWOP, because the jury

* Similarly, this Court in Simmons noted that the “false dilemma” was not created
when the prosecution was merely arguing that the defendant was be dangerous in the
future to other inmates and prison staff, because obviously whether the defendant will get
out of prison is irrelevant to such a future dangerousness argument. See Simmons, 512
U.S. at 165 n.5 (plurality opinion); 512 U.S. at 177(O’Connor, J., concurring).

22

found as an aggravator that he intentionally killed his victims. Garza also argued that
certain enumerated factors authorizing lower sentences in the Federal Sentencing
Guidelines, were not present in his case. Thus, Garza asserted Simmons was triggered
because the trial judge would have to give a LWOP sentence if the jury did not recommend
death. Flores, 63 F.3d at 1367-68.

In rejecting this argument, the Flores decision stated:

However, assuming without deciding that the jury's findings of
intentional killing would be binding on the sentencing judge and therefore
prevent a downward departure, the court could not predict before the jury
begins its [sentencing phase] deliberation whether it is going to find the
necessary intent. Thus, when the attorneys make their final arguments in the
penalty phase and when the court gives its penalty instructions, no one

would know whether life imprisonment would be the only permissible
sentence.

63 F.3d at 1368 (emphasis added). Moreover, the court also conciuded that the general
discretionary mitigator in the Sentencing Guidelines at least remotely left open the
possibility of a lesser sentence. Thus, Flores rejected the Simmons claim because LWOP
was not the only alternative sentence legally available. Flores, 63 F.3d at 1368.°

Like Garza, Petitioner also had a sentencing alternative other than death. At the
time the attorneys gave their penalty phase eupenesta and the judge gave his penalty

phase charge, no one could have conclusively predicted whether the jury would find a

> In People v. Simpson, 665 N.E.2d 1228 (Ill. 1996), the court also rejected a similar
argument. The defendant on appeal claimed the trial judge erred by only instructing the
jury that the court would impose some other sentence on the defendant if the jury did not
return a death sentence. The Simpson court noted that an LWOP instruction would be
required in a multiple murder situation where under statutory law LWOP would be the only
alternative sentence. Thus, the court held Simmons inapplicable because the defendant,
who only killed one person, was statutorily eligible for a sentence other than LWOP. 665
N.E.2d at 1244-45.

23

necessary aggravator. Therefore, it was impossible to know whether LWOP would be the
only possible alternative sentence until after the jury's penalty phase verdict. !f the jury had
not found an aggravator, then Appellant could have received a sentence as low as 30
years. Accordingly, he had a /egally available sentence besides death and LWOP, and
thus Simmons is inapplicable.

This Court similarly rejected a “functional” approach to Simmons in Ramdass. Both
the plurality and concurring opinions found it neither “necessary [njor workable” for trial
courts to “evaluate the probability of future events” in order to determine Simmons's
applicability. Ramdass, 120 S.Ct. at 2121, 2127-28. Similarly, in this case a trial court
would have to evaluate the future likelihood that the jury would find an aggravator beyond
a reasonable doubt. Unlike the Ramdass plurality, concurrence, and dissent'’s
disagreement over the effect of entry of judgment under Virginia law, a jury's duty to make
factual findings beyond a reasonable doubt can hardly be termed to be “ministerial” or
“inevitable and foreordained”. Ramdass, 120 S.Ct. at 2123, 2127. As such, Simmons is
inapplicable.

Appellant dismisses the argument that another sentence was available by noting the
jury only decides between life and death, and the jury makes no sentencing
recommendation if it fails to find an aggravator. It is generally true that the sentencing jury
makes an either/or selection. Cf. State v. Norris, 285 S.C. 86, 95, 328 S.E.2d 339, 344
(1985). Again, it does not matter whether the Simmons “false dilemma’ is avoided by the
presence of a life sentence with parole, or whether it is avoided because the defendant
could potentially receive a sentence of a definite term.

Further, the test for other available alternative sentences to death other than LWOP

24

is at the time of sentencing. Ramdass, 120 S.Ct. at 2119 (Simmons has not been
“extended to cases where parole ineligibility has not been established as a matter of state
law at the time of the jury's future dangerousness deliberations in a capital case.”) (plurality
opinion, emphasis added). It cannot be challenged that at the time of Petitioner's
sentencing, a lesser definite term sentence was legally available to Petitioner under South
Carolina state law.

Indeed, Appellant seeks to create within the jurors a sort of reverse-Simmons “false
sense of security,” that if they fail to return a death sentence, LWOP will be imposed. This
is inaccurate, unfair to the state, and not constitutionally required. See Ramdass v.
Angelone, 120 S.Ct. 2113, 2120 (2000) (“In this case, a Simmons instruction would not
have been accurate under the law.”); Simmons 512 U.S. at 161-62 (“grievous
misperception [about LWOP] was encouraged by the trial court's refusal to provide
accurate information regarding petitioner's parole eligibility) (emphasis added); Gregg v.
Georgia, 428 U.S. 153, 190 (1976) (Eighth Amendment requires provision of “accurate”
sentencing information); State v. Shafer, Op. No. 25120, 2000 W.L. 576189, *6 (S.C. filed
May 8", 2000) (“Informing the jury that appellant was parole ineligible when, unbeknownst
to the jury, he faced a possible sentence of thirty years imprisonment after which he would
be unconditionally released would not have fairly responded to the jury's inquiry.”).

Moreover, even though the jury only chooses between LWOP or death if it finds an
aggravator, the jury's findings still ultimately drive which one of the three sentencing

options is available to the defendant, as only if the jury fails to return an aggravator does

® Further, defense counsel conceded at trial that “juries from May 30", 1996 have
three options in the state of South Carolina.” {R. 1949 Il. 15-21}.

25

the mandatory minimum thirty year sentence become a possibility. In South Carolina,
when the murder defendant seeks a jury trial, the jurors decide whether aggravating factors
are present. State v. Smith, 298 S.C. 482, 381 S.E.2d 724 (1989) (“In determining whether
to submit an aggravating circumstance to the jury, the trial court is concerned only with the
existence of evidence, not its weight.”), cert. denied, 494 U.S. 1060 (1990); State v.
Kornahrens, 290 S.C. 281, 350 S.E.2d 180 (1986) (“The trial judge must submit to the jury
those aggravating circumstances are supported by the evidence.”), cert. denied, 480 US.
940 (1987).’ Petitioner asked for and got his jury trial; it is speculative and would make the
jury's role in determining aggravating factors irrelevant to contend that at the time of the
charge only death and LWOP were available. See State v. Starnes, Op. No. 25119, 2000
W.L. 576191 (S.C. filed May 8”, 2000) (“inappropriate” to assume jury will necessarily find
existence of an aggravator beyond a reasonable doubt). Moreover, Simmons is not
triggered when the defendant's entitlement to a third sentencing alternative depends on
resolution of a matter of fact.*

” See also S.C. Code Ann. § 16-3-20(B) (Supp. 1997) (“The [sentencing]
proceeding must be conducted by the trial judge before the trial jury... . If trial by jury has
been waived by the defendant and the State, or if the defendant pleaded guilty, the
sentencing proceeding must be conducted before the judge.”).

® in Allridge v. Scott, 41 F.3d 213 (5" Cir. 1994), cert. denied, 489 U.S. 1040 (1989)
the court rejected a Simmons claim from a defendant who was technically eligible for
parole. The defendant claimed error in (1) the failure of the trial court to admit expert
testimony that a Texas parole board “almost certainly” would consider the defendant
ineligible for parole, and (2) the judge's failure to so charge the jury. Scott noted that
Simmons requires that the defendant's parole ineligibility turn on a matter of law, NOT a
matter of fact. Thus, the court concluded:

A capital defendant's parole ineligibility must be a matter of law because
evidence of such ineligibility is inherently “truthful”... . Butif a defendant's
parole ineligibility is a matter of fact, i.e. the defendant probably will not

26

Admittedly, Petitioner's counsel did argue to the jury that “you're going to find a
statutory aggravator.” {R. 1915 Il. 9-14}. However, Appellant did NOT concede the
aggravator as a matter of law. Instead, the jury was instructed of its duty to find an
aggravator beyond a reasonable doubt and that it should stop further deliberation if it failed
to so find. {R. 1920 il. 8-10; 1923 Il. 13-16; 1927 Il. 18-21; 1928 |. 23 - 1929 |. 5}. Thus,
like Flores, at the time the judge charged the jury, the definite term sentence was still a
possibility, and LWOP was not the only legally available alternative sentence to death. Cf.
also State v. Mitts, 690 N.E.2d 522, 528-29 (Ohio 1998) (rejecting Simmons argument that
trial judge erred in failing to answer jury's question whether two life sentences would be
served consecutively, and noting, “[defense] counsel's argument that it was unrealistic to
think that the trial judge would impose concurrent sentences here is speculative.”). As
such, and like Ramdass, Petitioner has not “conclusively established” that LWOP was the
only available alternative sentence to death at the time of sentencing. Ramdass, 120 S.Ct.
at 2120. Simmons is not triggered.

Of course, the practical effect of such a rule is that solicitors may argue future
dangerousness without the necessity of an LWOP charge, unless the 1 WOP-qualifying
“serious offenses” or “most serious offenses” trigger South Carolina Code section 17-25-
45. Petitioner contends that the South Carolina Supreme Court has ruled Simmons

be eligible for parole, then the evidence is purely speculative (maybe
even inherently “untruthful”) and therefore cannot positively deny future
dangerousness.

Scott, 41 F.3d at 21-22 (emphasis added). Just like Scott, whether Petitioner was eligible
for a mandatory minimum 30-year sentence depended on his jury's resolution of a matter
of fact.

27

ee

bownte*

inapplicable to its sentencing scheme. However, the state court's result is no different than
what existed under the old South Carolina scheme, as even under the statutory scheme
in Simmons itself solicitors could argue future dangerousness without an LWOP charge,
unless the defendant had a prior “violent crime” making him ineligible for parole under
South Carolina Code section 24-21-640. In this case, Simmons is inapplicable unless the
defendant's prior record qualifies him for LWOP under section 17-25-45. In both the
Simmons situation and the present situation, it is the defendant's prior record that controls
the applicability of Simmons, and there is no material difference between the situations.

In its brief to the South Carolina Supreme Court in this case, the state raised a
number of practical problems if the court extended Simmons to Petitioner's case. Brief of
Respondent pp. 36-38. Similarly, the plurality in Ramdass noted that a parole ineligibility
charge is of “uncertain materiality”, and can be overcome if a jury concludes the defendant
may escape, be pardoned, benefit from a change in state laws, or be dangerous to society
in prison. It noted that the possibility of peripheral litigation on LWOP issues could
legitimately lead a state to conclude the jury may be distracted. Thus, the Ramdass
plurality concluded that Virginia state courts had “good reason not to extend Simmons
beyond the circumstances of that case”, Ramdass, 120 S.Ct. at 2121-22, and stated that
“States have some discretion in determining the extent to which a sentencing jury should
be advised of probable future custody and parole status in a future dangerousness case,
subject to the rule of Simmons.” Ramdass, 120 S.Ct. at 2119, 2121.

The South Carolina Supreme Court ruled that “neither parole eligibility nor parole
ineligibility are proper considerations for the jury”. State v. Shafer, Op. No. 25120, 2000
W.L. 576189, *7 (S.C. filed May 8", 2000). Because evidence of parole ineligibility is of

28

—_

“uncertain materiality”, and because of the potential of practical problems and collateral

litigation in charging a jury under the new sentencing scheme, South Carolina similarly had
good reason not to extend Simmons beyond the circumstances of that case.

E. The prosecution did not argue future dangerousness; thus, the rule
in Simmons was not triggered.

As noted before, the Simmons test requires that both prange be present for its rule
to attach. Thus, if the solicitor did not argue future dangerousness, o Siemens cans is
not necessary. The trial judge repeatedly found that future dangerousness was not an
issue in this case. {R. 1820 |. 24 - 1821 |. 6; 1893 |. 23 - 1894 |. 10; 1896 Il. 18-22}.

As an initial matter, Petitioner seems to challenge the premise that future
dangerousness argument by the prosecution, or at least some express reliance on future
dangerousness by the prosecution, is necessary to satisfy first prong of the Simmons test.
Such a view is as odds with this Court's expression of the Simmons rule. See Ramdass,
120 S.Ct. at 2117 (plurality opinion) (state submitted to the jury a future dangerousness
aggravating circumstance); 120 S.Ct. at 2126 (concurring opinion) (noting that the state
must seek “to demonstrate that the defendant poses a future danger to society”); 120 S.Ct.
at 2135 (dissenting opinion) (stating: “If the State argues that the defendant will be a future
danger to society, it quite plainly rebuts that argument to point out that the defendant .. .
will never be part of society again.”). See also Simmons, 512 U.S. at 162 (“grievous
misperception” encouraged by “state's repeated suggestion that petitioner would pose a
future danger to society); 512 U.S. at 163 (prosecutors in South Carolina often emphasize
a defendant's future dangerousness in their evidence and argument, and they urge the jury
to sentence the defendant to death so he will not be a danger to the public if released), 512

29

U.S. at 168-69 (“If the State rests its case for imposing the death penalty at least in part
on the premise that the defendant will be dangerous in the future . . .”).

If Petitioner is correct that the state raises future dangerousness by merely
introducing evidence in the sentencing phase about a murder defendant's past criminal
conduct and bad acts, then the first prong of Simmons would be superfluous and Simmons
would apply to every capital case where the only alternative sentence to death was LWOP.
Justice O'Connor flatly rejected such a view in Simmons: |

Likewise, if the prosecution does not argue future dangerousness, the State

may appropriately decide that parole is not a proper issue for the jury's

consideration even if the only alternative sentence to death” is LWOP.

512 U.S. at 175 (O'Connor, J., concurring). Similarly, the Simmons plurality also implied
that character, prior criminal history, and background are not the same thing as future
dangerousness. 512 U.S. at 164 (“The defendant's character, prior criminal history, mental
capacity, background, and age are just a few of the many factors, in addition to future
dangerousness, that a jury may consider in fixing punishment.” (Emphasis added)). See
also State v. Southerland, 316 S.C. 377, 387, 447 S.E.2d 862, 868 (1994) (rejecting a
Simmons claim by noting that the “solicitor specifically agreed not to argue [the
defendant's] future dangerousness”), cert. denied, 513 U.S. 1166 (1995), and overruled
on other grounds by State v. Chapman, 317 S.C. 302, 524 S.E.2d 833 (1999); State v.
Young, 319 S.C. 33, 459 S.E.2d 84 (1994) (evidence of prior record and character relevant
in the sentencing phase without regard to future dangerousness, where no contention that
defendant should be sentenced to death because of future dangerousness); State v.
Williams, 468 S.E.2d 626, 321 S.C. 327 (1996). Along with South Carolina, Pennsylvania

has also noted the distinction that evidence of prior criminal conduct does not necessarily
30

raise future dangerousness. See, e.g. Commonwealth v. May, 710 A.2d 44, 47 (1998),
cert. denied, 525 U.S. 1078 (1999). :

Further, both the Simmons plurality and Justice O'Connor in concurrence
recognized that the state could legitimately argue that the defendant words be a future
danger to other inmates and prison staff, without triggering the rule in Simmons. 512 U.S.
at 165 n. 5; 512 U.S. at 177. Clearly, it is the use to which the prosecution puts the
evidence which triggers the rule in Simmons.

In this case, unlike Ramdass, future dangerousness was not submitted to the jury
as a Statutory aggravator. Unlike Simmons, the prosecution did call any mental health
experts to testify that Petitioner would likely be dangerous in the future. Despite this,
Petitioner points to a number of factors from which he asserts the state raised the issue
of future dangerousness.

First, Petitioner argues that the boilerplate language in the state’s Notice of
Evidence in Aggravation of the Punishment raises future dangerousness. Even if true, it
is irrelevant; no “false dilemma’ in violation of Simmons can arise from assertions in a
document which is never before the jury. Cf. Simmons, 512 U.S. at 171.

Next, Petitioner argues that the evidence that he had been involved in an incident
where some guys engaged in sex with two 12-year-old girls, as well as evidence that
Petitioner got into an altercation with a jail employee, raised the issue of future
dangerousness. In this case, the state did introduce evidence about Petitioner's past
conduct and prior criminal record. While the solicitor generically referred once to the jury's
right to consider Petitioner's character {R. 1885 Il. 6-7}, he never once referred to any of

31

Petitioner's past conduct or criminal record during his argument. As noted before, the state
was entitled to produce evidence of Petitioner's past criminal conduct and bad acts without

triggering Simmons, where it never expressly raised to the jury that Petitioner should be
sentenced to death because he might be a danger in the future.

Petitioner contends the solicitor did in fact argue future dangerousness when he

Stated:

Ladies and Gentlemen, one of the scariest things, certainly the crime,
certainly the video, but one of the scariest things | think about that second
video, the video where we saw the cash tape, the horror and all of the sound,
do you remember the girls that came in and when Jamie Palmer was saying
“Oh, God; Oh, God; Ray, Ray” and the girls were running in and out, we've
got to go, we've got to go, and | tell you what, I've listened to it. you've
listened to it, and you will have a chance again, but what is really etched in
my mind is Monica Inman. Remember Jamie picks up that phone and she's
calling 911, and Monica Inman says “Come on, Jamie. they might come
back, they might come back”.

Ladies and Gentlemen, you are the conscience of this community,

and your verdict does send a message to Union County, to the State. So

that the next time somebody with a pistol thinks about loading up, coming

across that river to Lockhart, over to Jonesville or out to Buffalo or anywhere

in this county, and they might come back, they might come back, they will

remember this day, and they will remember this jury, and they will remember

this verdict.
{R. 1891 |. 7 - 1892 |. 1}. Petitioner contends the reference to “they might come back"
raises future dangerousness. The first time the solicitor referred to the phrase, he was
describing the evidence. The second time is clearly part of a general deterrence argument,
not a future dangerousness argument. The “they” in the second paragraph obviously
refers to “the next time somebody thinks about loading up” and coming to Union County,
not Petitioner specifically.

It is elementary that a future dangerousness argument is a specific deterrence

32

argument. See, e.g. Coleman v. Brown, 802 F.2d 1227 (10" Cir. 1986) (future
dangerousness is relevant to specific deterrence); Brooks v. Kemp, 762 F.2d 1383 (11"

Cir. 1985) (future dangerousness is relevant to specific deterrence); State v. Rose, 451
S.E.2d 211 (N.C. 1994) (future dangerousness is a specific deterrence argument). There
is a distinction between specific deterrence and general deterrence arguments. State v.
Simmons, 310 S.C. 439, 445, 427 S.E.2d 175, 179 (1993), rev'd on other grounds, 512
U.S. 154 (1994). Thus, a general deterrence argument does not raise future
dangerousness.

Moreover, the arguments Appellant points to in Simmons which were held to raise
future dangerousness also only sought specific deterrence against the particular
defendant. In Simmons, the prosecutor told the jury its role was to decide “what to do with
[petitioner] now that he is in our midst”. The prosecutor also stated: “Your verdict should
be a response of society to someone who is a threat. Your verdict will be an act of self-
defense.” 512 U.S. at 176. The “someone” in Simmons was that particular defendant, not
some hypothetical future defendant as argued in this case.

The state was entitled to introduce Appellant's past conduct and prior record without
raising future dangerousness. Since the solicitor only argued general deterrence, and
never in fact referred to any of Appeliant’s prior record, the state never put future
dangerousness into issue. Accordingly, Simmons is not triggered, and certiorari should be
denied.

33

ll. The exclusion of evidence on the deterrent effect of the death penalty does not
violate due process where both the state and the defense have equal opportunity to
argue their respective views on the issue.

A. How the federal question was raised and decided below

1. Events at trial

At trial, the solicitor made the following argument during the sentencing phase:
Ladies and Gentlemen, you are the conscience of this community,
and your verdict does send a message to Union County, to the State. So
that the next time somebody with a pistol thinks about loading up, coming
across that river to Lockhart, over to Jonesville or out to Buffalo or anywhere

in this county, and they might come back, they might come back, they will

remember this day, and they will remember this jury, and they will remember
this verdict.

{R. 1891 |. 19 - 1892 |. 1}. After reminding the jury that the frightened witness who found
the victim stayed with him until help arrived, the prosecutor asked for similar courage from

the jury. The prosecutor then concluded:

Let everyone know this day in Union County justice was done in this case

that will send a message of how Union County handles a crime of this
nature.

{R. 1892 |. 2 - 1893 |. 6}.

Prior to defense closing argument, the defense moved to reopen the record to
present “issues of statistics and witnesses’ as to the death penalty’s deterrent value. The
defense = ‘cren that the solicitor had brought deterrence into issue, and it asked “for
time to present evidence to rebut that”. In the alternative, the defense requested an
instruction that the jury was to disregard the solicitor's references to “danger to the

community”. {R. 1894 Il. 11-23}.

After the solicitor pointed out South Carolina case law that allowed general

34

deterrence argument without the need for such evidence, the trial court ruled that “you
can't introduce [general deterrence] evidence, but you can argue it.” {R. 1895 Il. 18-21}.

2. Appeal

The South Carolina Supreme Court rejected this issue as follows:

in the penalty phase closing argument, the solicitor argued the death
penalty deters others from committing murder. Thereafter, appellant
requested the trial judge either reopen the case to allow him to present
statistical evidence the death penalty does not deter murder or, alternatively,
to instruct the jury to disregard the solicitor's comments regarding general
deterrence. The trial judge denied both requests. Appellant argues this was
error. We disagree.

in South Carolina, our case law is abundantly clear: while both the
prosecution and defense may argue their respective opinions regarding the
general deterrent effect of the death penalty, neither may present evidence
supporting their views. State v. George, 323 S.C. 496, 476 S.E.2d 903
(1996). Accordingly, the trial judge did not err by refusing appellant's request
to reopen the record for the purpose of presenting evidence on the deterrent
effect of the death penalty.

** *

Finally, in light of his freedom to argue capital punishment does not
discourage others from committing murder, appellant's due process was not
violated by the trial judge's denial of his request to present evidence on
general deterrence or charge the jury not to consider the deterrent effect of
the death penalty.
State v. Shafer, Op. No. 25120, 2000 W.L. 576189 (S.C. filed May 8", 2000).

B. Since Petitioner had as much an opportunity in argument to “deny

or explain” the general deterrent effect of the death penalty as the state

did to assert it, there was no violation of due process.

According to Petitioner, he is only raising the “narrow” claim that due process
requires evidence about the death penalty’s deterrent effect if the prosecutor argues
general deterrence. He relies on the general due process rule that a defendant may not

be sentenced to death “on the basis of information which he had no opportunity to deny

35

or explain”. Gardner v. Florida, 430 U.S. 349, 362 (1977). However, the even playing field
at Petitioner's trial precludes a successful due process claim.

South Carolina law is clear that either side may argue general deterrence, but no
side may introduce evidence on the issue. For example, State v. George, 323 S.C. 496,
476 S.E.2d 903 (1996), a unanimous court affirmed the trial judge’s rejection of a defense
witness called to testify about the deterrent effect of the death penalty. George reasoned
that since the propriety of capital punishment was for the legislature, and constitutionality
was for the courts, evidence regarding the deterrent effect of the death penalty was
irrelevant. More importantly, the court also stated:

However, counsel for both sides may argue their respective opinions

concerning the deterrent effect of capital punishment, but cannot introduce

specific data to corroborate their views.
George, 323 S.C. at 514, 476 S.E.2d at 914. See also State v. Shafer, Op. No. 25120,
2000 W.L. 576189 (S.C. filed May 8”, 2000).

Petitioner cites to cases from other jurisdictions which have taken a different tack
on the issue, and barred general deterrence argument. However, there are also a number
of cases that have arrived at results analogous to South Carolina's rule. In Fleming v.
State, 458 S.E.2d 638 (Ga. 1995), the court cited a plethora of cases supporting the
propriety of closing argument on general deterrence. Id. (citing Gregg v. Georgia, 428 U.S.
153 (1976)). Reasoning that both the prosecution and defense were equally precluded
from deterrence evidence but allowed deterrence argument, the court also rejected the
claim that the exclusion of expert testimony of the non-deterrent effect of the death penalty

meant that the defendant was sentenced on the basis of information he had “no

opportunity to deny or explain”. Fleming, 458 S.E.2d at 640.
36

The Eleventh Circuit also held that general deterrence was an appropriate
consideration for a sentencing jury. See Martin v. Wainwright, 770 F.2d 918 (11" Cir.
1985), Modified on other grounds, 781 F.2d 185 (11™ Cir. 1986), cert. denied, 479 U.S. 909
(1986). Martin further reasoned that the Constitution allows general deterrence argument
even if general deterrence evidence is excluded. 770 F.2d at 937.

The Eleventh Circuit earlier addressed these issues in Collins v. Francis, 728 F.2d
1322 (11" Cir.), cert. denied, 469 U.S. 963 (1984). Collins found support from two
decisions of this Court for the premise that generai deterrence was a permissible
sentencing consideration. Collins, 728 F.2d at 1339-40 (discussing Williams v. New York,

337 U.S. 241 (1949) (approving general deterrence as one factor appropriately considered

by a judge in imposing sentence), and United States v. Grayson, 438 U.S. 41 (1978)

)
(indicating no “qualms” about a district judge's general deterrence comments in

sentencing)). Collins also rejected the notion that the prosecution had to “prove” with
empirical evidence the deterrent effect of the death penalty before it could make general
deterrence argument, because: (1) criminal sanctions have “historically” been justified in
part on theories of general deterrence, and (2) empirical evidence would be “difficult, if not
impossible” to produce with any “significant particularity” to guide the sentencing body. 728
F.2d at 1340.

Thus, Petitioner is incorrect that general deterrence in an inappropriate
consideration for sentencing a particular defendant to death. See also Skipper v. South
Carolina, 476 U.S. 1, 12 (1986) (Powell, J., concurring) (“We have recognized that society
has important and legitimate interests in retribution and deterrence, and that these

interests provide the necessary justification for the death penalty.”). Indeed, members of
37

this Court have noted that the death penalty is “undoubtedly” a deterrent for some

murderers. Gregg v. Georgia, 428 U.S. 153, 185 (1976).

Since general deterrence argument is proper, the question thus becomes whether

exclusion of evidence on general deterrence violates the due process rule in Gardner v.
Florida. In this case, the trial court's ruling was evenly applicable to both sides. And like
the state, Appeliant did in fact make his own general deterrence argument. Defense

counsel argued:

The solicitor asked you to deliberate. | ask you, what do you teach
your little children? You teach them ... love and affection. Do you teach

them as Wesley Schafer was taught, having you clothes set on fire, being
beat, being thrown out of the house?

Martin Luther King . . . told all of his followers not to respond in
violence when you face violence, that will not solve the problem. And it won't
solve the problems in our context here.

{R. 1906 |. 16 - 1907 |. 1}. Counsel continued:

You know, what do we teach our children if we resort to violence, if we
have the state of South Carolina, citizens of Union County execute Wesley

Shafer? Will that violence teach us anything? Will it teach the children
anything that's right?

{R. 1908 Il. 4-8}. Deterrence argument in Appellant's trial was made on a tair and level
playing field which provides no basis for challenging the sentencing result.

Similarly, Appellant misses the mark with his assertion that the lack of general
deterrence evidence violates “the due process requirement that a defendant not be
sentenced to death on the basis of information which he had no Opportunity to deny or

explain.” Skipper v. South Carolina, 476 U.S. 1, 51.1 (1986) (citing Garner v. Florida, 430

U.S. 349 (1977)). Of course, Skipper and Garner dealt with evidence, not argument, and

38

as the trial judge charged the jury in this case, argument is not evidence. {R. 902 1.15 -
903 I. 25; 1356 Il. 11-18; 1437 Il. 11-16}. Since both sides not only had even opportunity
but in fact did argue general deterrence, Appellant had as much an opportunity to “deny
or explain” general deterrence as the state did to assert it. For this reason coupled with
the judge's charges, any error was harmless. Cf. generally Skipper, 476 U.S. at 8.

Petitioner challenges this rationale by arguing that the elected solicitor’s opinion on
general deterrence unfairly carries more weight with the jury than the argument of defense
counsel. Of course, such an issue could be raised with regard to any aspect of closing
argument, such as conflicting arguments as to the inferences to be drawn from
circumstantial evidence. Moreover, there are undoubtedly many capital defense attorneys
who are far more in the public eye than their public servant counterparts, and it is
speculative to assume that Petitioner's jury naturally accorded more weight to the solicitor's
argument.

Further, it is not inconsistent to allow argument but deny evidence on general
deterrence. Prosecution arguments about general deterrence such as the one in this case
are uSually part of an argument urging fearless administration of justice. On the other
hand, defense arguments on general deterrence, such as the one in this case that violence
doesn't solve violence, are usually are part of an argument for mercy. Both of these types
of argument, which merely seek to impress upon the jury its responsibility in sentencing,
are a far cry from the jury actually listening to battles of experts and statistics and
essentially making factual findings about whether the death penalty is a deterrent. The

State can legitimately conclude to avoid such collateral litigation in a sentencing

_ er PEs eee

——-

proceeding.” See, e.g. Ramdass, 120 S.Ct. 2121-22
CONCLUSION

For the foregoing reasons, the petition for writ of certiorari should be denied.
Respectfully submitted,

CHARLES M. CONDON
Attorney General

JOHN W. McINTOSH
Chief Deputy Attorney General

DONALD J. ZELENKA
Assistant Deputy Attorney General

S. CREIGHTON WATERS
Assistant Attorney General

. /
ATTORNEYS FOR RESPONDENT

4

y ty -
By: / +i «6 k —

i
-

‘

August 21", 2000

j

~

* Appeliant cites statistics in his brief which were not proffered at trial, and are not
properly considered. See Ramdass, 120 S.Ct. at 2123-24. In any event, similar statistics
and argument support the existence of a deterrent effect. See John C. McAdams,
“Wisconsin Should Adopt Death Penalty,” 79 Marq. L. Rev. 707, 710-13 & nn. 10-23
(1996). Prison guards have testified that inmates given life without parole become very
dangerous because they know nothing further can be done to them without a death
penalty. See United States v. Battle, 979 F. Supp. 1442, 1464-66 (N.D. Ga. 1997).

40

CERTIFICATE OF SERVICE
|, Donald J. Zelenka, hereby certify that Respondent's Brief in Opposition to
the Petition for a Writ of Certiorari to the Supreme Court of South Carolina in the
foregoing action has been served on opposing counsel by depositing two (2) copies in
the United States mail postage prepaid to the following:

David |. Bruck
P.O. Box 11744

Columbia, SC 29211 \ Appendix

This 21" day of August, 2000. / WA
(fs (. Y iff :

DONALE d te NKA

THE STATE OF SOUTH CAROLINA
In The Supreme Court

State of South Carolina, Respondent,
v.

Wesley Aaron Shafer,

Jr.. Appellant.

Appeal From Union County
John C. Hayes, III, Circuit Court Judge

Opinicn No. 25120

Heard Octccer 7, 1399- Filed May 3, sv-~

David I. Bruck. of Columbia, for appeliant.

Attorney General Charles M. Condon, Chiet Deputy
Attorney General John W. McIntosh. Assistant
Deputy Attorney General Donald J. Zeienka,
Assistant Attorney General S. Creighton Waters. ot
Columbia; and Solicitor Thomas E. Pooe. of York. tor
respondent.

BURNETT, A.J.: Appellant admitted he shot and killed Ray
Broome while attempting to rob the convenience store where Broome was

STATE v. SHAFER

working. Appellant maintained the killing was without malice.’ A jury
convicted appellant of murder, attempted armed robbery, and conspiracy.
He was sentenced to death for murder and consecutive terms of twenty
years’ imprisonment and five years’ imprisonment, respectively. for
attempted armed robbery and conspiracy.” Appellant appeals.

FACTS

Around 11:30 p.m. on April 12, 1997, appellant and Justin Porter
drove to the Hot Spot, a convenience store, in Porter's truck. Appellant and
Porter entered the store. When they returned to the truck, Porter, the
driver, spun the back tires of the vehicle and appellant. using his father s
gun and bullets he purchased earlier, fired four or five shots from the
passenger window as they drove away.

At approximately 1:00 a.m., appellant, Porter, and Adam
Mullinax returned to the Hot Spot. Witnesses left the Hot Spot because they
suspected trouble.

Appellant, Porter, and Mullinax entered the Hot Spot. Musinax
went into the bathroom then returned to the truck. Appellant and Porter
also went into the store, then stood outside the Hot Spot for a few minutes.
While Broome was away from the cash register, Porter entered the Hot Spex.
He tried to open the cash register but was unsuccessfu!. He returned
outside.

Porter and appellant entered the store again. Broome hac
returned to the register booth. Appellant went to the checkout counter an¢
shot Broome from several feet away. Broome fe!! te the floor. Appesan:
walked to another side of the register, fumbled with the gun. leaned over the

_—

‘During the penalty phase of trial, appelian::
appellant shot Broome in response to a lifetime of aduse and vio:ence. ~

. _*
cers Oe scs FSS°* °* 53:
° ews ~~~ 408 =

77% ~~?
CAets &

‘The jury found the statutory aggravating circumstance of Murcer
while in the commission of an attempted armed rodbery while armed with 3
deadly weapon. S.C. Code Ann. § 16-3-20'C'a«lsc: Supp. 1995 .

A-2

STATE v. SHAFER

register counter, and shot Broome a second time.’ Appellant and Porter's |
attempt to open the cash register failed. Appellant and Porter left. There is
no evidence appellant or Porter asked Broome for money before the shooting.

Three young women arrived as appellant and Porter fled the Hot
Spot and jumped into the truck. One of the women ran into the store, found
Broome on the floor, and telephoned for emergency services. When the police
arrived, Broome was still breathing. He had been shot twice in the head.”

Broome died at the hospital.

Appellant wrapped Mullinax’s shirt around the gun and initially
hid it in the woods. He hid his own shirt and Porter's shirt elsewhere.
Twelve hours after the shooting, appellant told an employee at another
convenience store he was going to the park to shoot basketball.

After his arrest, an investigator asked appellant had Broome
done anything to cause appellant to shoot. Appellant responded: “No. We
were sitting around in the woods talking about what we were going to do

-_* =

with him. and I'm the one that had the gun, and I guess I just snapped.”
ISSUES’

1. Did the trial court err by refusing to instruct the jury
appellant was parole ineligible?

Il. Did the trial judge err by granting the States motion t
pronibi: both the prosecution and defense from referring to tn - oe * e ~ ro > ‘ -; Accordingly, the trial judge did not err by refusing appellan:'s
request to reopen the record for the purpose of presenting evidence on the
deterrent effect of the death penalty.

Furthermore. we have never directly held i: is reversible error:

refuse to give such a curative instruction where the sciicitor argues gen

“Over iled on other grounds Brightman v. State. 336 $.C. 345. 320
S EF 9d §14:1909): Stare vy. Casey. 305 S.C. 445. 409 S.E.2 1. i.

‘Because the General Assembly has approved the propriety ef capita.

punishment. evidence attempting to establish its effectivenes: or
ineffectiveness as an instrument of deterrence is irrelevant.

A-15

deterrence, requested charge on general deterrence was not required); State

v. Longworth, 313 S.C. 360, 438 S.E.2d 219 (1993), cert. denied 513 U.S. $31

(1994) (where solicitor did not argue general deterrence, refusal to charge

STATE v. SHAFER

deterrence. See State v. McWee, 322 S.C. 387, 472 S.E.2d 235 (1996), cert.
denied 519 U.S. ___, 117 S.Ct. 695 (1997) (where solicitor argued specific

general deterrence need not be considered); State v. Patterson. 285 S.C. 5,

327 S.E.2d 650 (1984), cert. denied 471 U.S. 1036 (1985), overruled on other

grounds State v. Torrence. 305 S.C. 45, 406 S.E.2d 315 (1991) (refusal to

charge general deterrence is properly refused as function of jury is to
determine appropriate penalty for present charge). In fact, our cases have

repeatedly allowed the solicitor to argue his opinion regarding the deterrern:

effect of capital punishment. State v. Truesdale, 301 S.C. 546. 393 S.E.2d
168. cert. denied 498 U.S. 1074 (1990); State v. Jones, 298 S.C. 115
S.E.2d 594 (1989); State v. Yates, 280 S.C. 29, 310 S.E.2d 805 (198:
denied 462 U.S. 1124 (1983), overruled on other grounds State v. Torrence.
305 S.C. 45, 406 S.E.2d 315 (1991). Since argument on general deterrence !:
permitted, it would be illogical to instruct the jury it may not consider the
effec: of its sentence on others.

Finally, in light of his freedom to argue capital punishmen: cces
not discourage others from committing murder, appellant's due process ‘as
not violated by the trial judge’s denial of his request to present ev iene on

_3is

2), cert.

ger.eral deterrence or charge the jury not to consider the Geterrent ef:
the ceath penalty.

was not the reault of passion, prejudice. or any other arbitrary factor.

jury's finding of a statutory aggravating circumstance is supported

N

“er reviewing the entire record. we conclude the Cearn sence

> PREVIEW

evidence. ‘Sees $.c. Code Aan. $ 16- $25: parvo rarer. We Avid 2:

“ages.

He

2440 1996. State v. Humpnries, 325 S.C. 25,479 $.E.24

520US

—
s.E
~- .

oA
owt ~~"

ty,

.)

_*
et ‘eS 6% oo

oCe-

- s-

aas es

ee Hee

“*«

aii: Siathen 32s SC. 146, partys (1997. cert.
; rc tS. ~115 S.Ct. 1674 :.1998); State v. Patterson. 3.4
452 SE. 2d 760. cert, denied, 522 U.S
Simpson. 325 S.C. 37, 479 S.E.2d 57. cert. denied, $30 1 S.

.117 S.Ct. 244111996; Stare v. McWee. —

35 5 1996: cert. denied. 519 U.S. __

A-16

118 S.Ct. 146.

£117 $.Ct. 56

-¢

u

1aqQ— “"

oo

‘Given the regularity with which capita! juries inquire abeut pare.
‘ve cannot deny its role in sentencing.

‘See Bowers, Vandiver & Dugan, A New Look ct Public Op:nion On
Cepital Punishment: Wrat Citizens and Legislators Prefer. 22 Am. J.Crim.L.
71! 1994°.

A-19

eae ¢

THE STATE OF SOUTH CAROLINA
In The Supreme Court

The State, Respondent.
v.
Norman E. Starnes, Appellant
Appeal From Lexington County
Mare H. Westbrook, Circuit Court Judze¢
~-oinies No. 25113
S2ars sasctemoer
+e) « 4
in

Appelian:. Weidorn. and Champlin test tne restaurant.

Appellant testified Well born asked if appellant was arrais to des and

commented adout the 340. Dh three men wenti: a car. Anvehant testi

Welborn was “still acting real antsy.” "pacing the 2° tari.” rhe theugh+
. . . ote . . “+ . cain | "a.

Welborn was coming ¢ down offora high." Apoenant iiseriiheai Champon

“aersy, kind of wired, same as “Weiborn! was acting. Jat mot as cade
opellant stated walle ne Was in tm}= cats: set Sites Eat

"Mothors came up behind Aim. grabbed nim arc. : ‘

oie Rutad WIT A Mica, OCS WANN Ae snk ae SEE a ee

Grice takiedt tubsoe. Welborn asked again about the faim stat

: ) ats : ima oa oh ac eee { oe

A-23

-
*.

STATE v. STARNES

Appellant left the bar with Welborn and Champlin.’ He testified
Welborn and Champlin asked him to get them some drugs. Appellant left
Welborn and Champlin at his home and went to Fogle’s home. He testified
he did not take Welborn and Champlin with him because Fogle had
previously told him he did not want any customers at his home.

Appellant picked up Fogle and drove him to his 'apoellant’s’
home in order for Fogle to provide Welborn and Champlin with drugs.
Appellant testified when he and Fogle entered his house. Welborn was on
the telephone. Welborn hung up. put his arm arounc appellant's neck, and

asked if they were going to “score.” Appellant heard some noise. Champlin
Was cursing and pointing a gun ai Fogle. Appellant testified he thought
Champlin was going to shoot Fogle. He stated he had no idea why Champlin

pulled a gun on Fogle.

Appellant stated he was scared and ran inte! nis bedroom to ‘get
away." He realized there was no exit. obtained his pistu:. piaced it in ies
back pocket. and returned to the living room in order ta we ve througa the
tront door. He was openi ng the front door when Weiborz. velled ‘Whoa.
Where the F are you going?” Appellant turned around: " elbor mwas
pointing a gun at him. Appellant testified he though: Welburn was going 5

shoot him. When he heard a ‘click." appellant puiled ais revolver and sno:
Welborn multiple times. Welburn cid not fire anv shots.

Appellant testified he i immediately thereaster savt Crhamaiin.
although he agreed he was not pay’ ng attention to Champiin and Fowte
while he was in the becroom and while he was reacting 2: “elbern. Fi:

testified he shot Cnampiin because “I thought he was roing te sheet me.) fi:

admit ed Champlin never pointed a gun at him. Aone an: testi
not know Champiin had given tis sun to Welborn ani Caampiin was x
longer armed pon conciuced he snot Weiser am Coniumnin

“p'ecause [ thought Iwas going te get shor.”

-
A waitress testified as appellant and Welbers ,
' e
_- . . aw *, _*- - i ~. ubstanc. ' . eee $° “*eeee® 4 . .° .%6

instructions Were imeciuded tn mis charze.

A-26

ee =

STATE v. STARNES

the rignt to act on appearances, and under the circumstances as
thev appeared to him, he believed he was in such danger and a
reasonable prudent man of ordinary firmness and courage would
have entertained the same belief.

State v Fuller, supra S.C. at 443-444, wan 08 S08: see also State v.
Gandy, 113 §.C. 147. 148. 101 SE. 644°1919«"A man may act. however.
trom appearance, and if it turns out. if the appearances are such that a man
of ordinary courage. firmness. and prudence would have been justified in
coming to the conclusion that the necessity did then and there exist to strixe
to save himself from serious bodily harm or death that would be sufficient.
although it turned out afterwards that es was no actual danger present
and that the necessity to strike did not exist."

Appellant was not entitled to an appearance charge in regard te

ce ¢
the Welborn shooting. pear eed to appellant. he was sin actual danger when

i a |

We:dorn pointed a gun a: him. cursed him. and guest: ned him as :.
he was going. Appellant 3 claim to self-defense dic net arise from 2
perceived, but rather an actual threat. Since there «vas no evidenee
apne" lant was acting on appearances. he was not entitied to an appearance
harge. See State v. Lewis. 328 S.C. 273, 494 $.E.24 115-1997 «defendan:
not entitled to insanity charge where no evidence suprorted the charse .

é The State nt 0 appellant was mot eniitie¢ 19 an angearanc-
p with respect 2 Champlin shooting becaus. 2+ did mot testis n-
is i= Champlin's hand at the time -fthe shooting.

ch leer,

7 =

2 “a
ay
vu
the
}

taougs

piers & Sct OR Appearances ig £52 Ss027 3 22 MMe ¥icuas. A

where the Gefendant testifies he mistaken iy thousat. Sv $4 a Wearer. 2
, yy . .. .

. . * , *
vigtim’s hand. Walle an appearance charge ts ane ots er.
Getendast ersronensiv pelieves he sees the vietim witt i weanen. it is
7 ° 4 ~ b | = e ’ =
Nae et A, Si f So9 SA. B11. 431 25 See oe iit :
. . * e , . . . . . o e
$322 testified Re sat a shiny .jeet is Vietiss $ fai Sette gt
Sin. Be Was IMUtietd char soon aDMearanees : Siote se. 2

. * .
-_ = -- |

; A ast © ©. 203685 , os ’
where defendant testitied Re saw two Victims open th trERK at taeis ve.

7)
se.

M41 CNOUMAL Ae sav a ain; HOMct in One *" tim. ¢ Bans. Res Was 22%:%. °

A-27

STATE v. STARNES

been applied elsewhere. In Stare v. Jackson, supra. the defendant testifiec
he shot the victim after being awakened in his home by an intruder and
blinded by a flashlight. The defendant did not testi:v he saw what agocered
to be a weapon in the victim’s hand. In fact. the defendant testified he cou!d
not see anything. The Court held the defendant was entitled to a charge on
self-defense. including language on appearances.

Appellant was entitled to an appearance charge in regard to tne
Champlin shooting. Immediately prior to the shooting. ap poellant t observed
Champlin hoid a gun to Fogle’s head and threaten to sacut nim, apparent.
because the intended drug deal. which appellant hac arranged. had gure
awry. Welborn then pointed a gun at appellant and threatened to kil! nim a-
he attempted to leave. Unaware Champlin had passed his weapon te
Welborn when appellant was in the bedroom. appe!:ant erroneous! reading
Champlin was armed and intended to kill him. The triai judge snoulc
charged the jury appellant had the right to act or. appearances.’ State
Gourdine, 322 S.C. 395. 472 $.E.2d 241 1906 the inv toe charges 3s
determined from the evidence presented at trial. Retusal ‘to give 2

= =-2 *. ~~ T ----> hs ~—— °- ~~ oo "3
request ed instruction on => igen mecessitates Te OTsu:. Sosect tee:
~
supra; Stare v. Fuller, supra
a3 “nar e-49 =e ii: “ut iefise. ine o_O Wisnee = aaa ~—e ~ - _*. “er = * - =

nd cireumstanees of the case in orGer tou fasion an anger uriate snares
a = SeREo. ‘Once th the right to fire in fe.2-teieNse ATises. 2

sotsivad tp wait ustil his adversaries cm era: corms cr
PH bos Sh ~F ** =e eee ote > we\e~ ~~ + ~ Ss. - “_* = * = %ee ~s *.
- - .

Charge ON Aovearances .

wD iy eet ae pe ee th och og0d . ARE « P a
in P.*°2t 6 wt Fk ees's 8 Ses Sete s 2 dete Se se o- + o mee +s - .
. . . *-* . .
o« -_ = --. -_ ~ = Bee . i* . - -“~ >
: ar 7 rf os Ges be OTS? Cseaks o ~ «
. » . “. “. . . 7 .*_.s & o - . ** ed - .
~s -,.* a L—_ =f-+3° . Pp he | ‘ ~ = . -= ° a 4
Hs peebe es | FM Kenteem es et * a Pt 4 od —_ eye LU . . 2+) an o* . . -~_ +* * een is ; ° ° 2 M4 - = . «
rete on pe ng a sate efense. a — ben rn oh, | defense to question an inmate concerning allegations the prosecution had
Su > - . s ee * . - .
» Hupta attempted to procure false testimony. We disagree.
requested charge he did not have to wait before acting in self-defense and the P P
. -law ins seli-detense. $a! to give the Te p ee ee en
trial pon " nindeonnapmens eres truction on seli-defense. refusa. to 2: Appellant testified in his own defense. On cross-examination.
eaves narge was " 2. ; ‘ _ ; , —— - ‘.
a appellant denied while awaiting trial he told four inmates he annes to
murder Welborn and Champlin, pre-dug their graves. and wanted to hire
HL someone to kill Gwen Ortt.? Thereafter, appellant called Chris Kopei as 2
Appell d a defense witness. Kovel testified for several months he was appellants
P Pn c triat judge erred 0; reusing to -astrect t $. one is a ¢ eeb c's’ 6 6} a ee be seeses - : a y =
she or . . P involvement in the shuetings in Mav 1995.
ear | o 6
,

A-29 ca? | A-30

STATE v. STARNES

Evidence is relevant if it has "any tendency to make the
existence of any fact that is of consequence to the determination of the action

more or less probable than it would be without the evidence." Rule 401,
SCRE.

Kopel’s testimony was irrelevant to anv issue at trial. His
testimony neither established the prosecution actually presented perjured
testimony at appellant's trial nor impeached the testimony of the four
inmates who testified in reply as he did not state the prosecution had
attempted to procure false testimony from them. Moreover, the allegation
the assistant solicitor attempted to procure false testimony is not relevant to
the issues in appellant's trial. The trial judge did not abuse his discretion ir.
ruling Kopel’s testimony inadmissible. State v. Lewis, 293 S.C. 107, 359
S.E.2d 66 (1987) admission or rejection of proffered testimony is within the
sound discretion of the trial judge; absent an abuse of discretion. the ruling
will not be disturbed on appeal’.

IV.

Appellant argues the trial court erred by refusing to allow the
defense to impeach Dawn Brudos ov establishing she had a romantic
relationship with Welborn. We agree.

~*

Brudos was the first witness offered at trial. Sire testified she
nad known Welborn since 1993 and worked for his skydiving Dus ainese Site

oe . oe

estified Welborn, Champlin. and Champlin’s girlitiend nad teen Livins in

her home since mid-December 1995. Brudos testized tre nights berire n+

shootings Welborn was upset appeliant had not ret urned.3-10 to rim.

x

n cross-exXamMination, defense counsel asked if Brudes nai a
romantic relationship with Welborn at the time of nis death. She answer

affirmatively. The eatieitur objected. Defense counsel! argued the question
x ee ant ty establisn Brudos vias. Atter an in ho wt aoe ae ba he
te “ie sustained the odiection and instructed the iurv to disr-carid the
iudstion and answer... -- age
,
* ALegations of !mproper concuct by tne So:isjtors Otiiee coud

raised at a hearing on prosecutorial misconduct.

A-31

. ~~ me 1%

ae

bias, or partiality’ of the \ witness.

STATE v. STARNES

The Sixth Amendment guarantees a criminal defendant the mght
to meaningful cross-examination of adverse witnesses. “{A] criminal
defendant states a violation of the Confrontation Clause by showing that he
was prohibited trom engaging in otherwise appropriaée cross-examination
designed to show a prototypical form of bias on the part of the witness, and
thereby ‘to expose the jury to the facts from which jurors . . . could
appropriately draw inferences relating to reliability of the witness.”
Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S.Ct. 1431. 1456, 59 L.Ed.2¢d
674, 684 ‘1986 “emphasis added’. quoting Davis v. Alaska. 415 U.S. 308. 3
94 5.Ct. 105, 111, 39 L.Ed.2d 347, 355 (1974). Atrial judge. however, may
impose limits on defense counsel from inquiry into the potential bias of a
prosecution witness to prevent harassment, prejudice, confusion of the
issues, repetitive or marginally relative examination. Id.

—_
h

Rule 608:c). SCRE. also permits a party to impeach a witness
establisning bias or prejudice either through examination or r otherw' ise.
cross-examination, any fact may be elicited which tends to sieve interest.

s. " State v. Brewington. 267 S.C. 97.192, 225
SF 24 249, 2501976: quoting 98 C.JLS. Witnesses $ 559a 1957. A witness
romantic relationship with a party is a source of potential! bias of whicn tne
iury should be aware in order to fully evaluate the w iiness) testimony.
Melmustes - State, 934 P.2d 770 Alaska App. 1997 : Orgin ©: :
m1 Inc, v. McIntosh. 452 S.E.22 159'Ga. App. 1994 : State Erov. 255
22 86°N.C. App. 1982).

o 2

Caser buth the Sixth Amendment and Rule 30s 6. SU Ac.
apceiant was entitled to inquire i? Brudos Aad a romantic roars

* ee
4

Welborn. Certain!y, an intimate relationship between Brucos ana We.com
cou:d affect Brudos credioility. the oe 2e Orr SY HO RAY
apdellant trom senting this inquiry

. . . .
er ores Fly adh Nort. vee ™" a > " oeeees acd aor _o bg © "pe
pe eeuse’. «!- ~ Bet ee eee ee ee -“e- . “s*** *.

*
ni. ; . . j o te a “—-- © rretrye er ae ee tel 2 512 U.S. 154
_ community supervision, 0 v $ 9) tor is th
1994; State v. Williams, 321 S.C. 327, 468 $.E.2d $26 :1996!. Due process P r any early release program. nor .

person eligible to receive any work credits, ao credits.
good conduct credits, or any other credits that wou!d reduce tne
mandatory life imprisonment reauired by this section. No person
sentenced to a mandatory minimum term of imprisonment ior
thirty vears pursuant to this section is eligible for parole or an:
early release program, nor is the person eligible to receive any
work credits, education credits, good conduct credits. or ans»
other credits that would reduce the mandatory minimum term or
imprisonment for thirty vears required by this section. ...

is violated when the State "raises{s] the specter of {the defendants: future

dangerousness generally, but then thwart[s! all efforts by {the defendant. to
demonstrate that, contrary to the prosecutor's intimations. he never vvouilc
be released on parole and thus, in his view, would not pose a future danger
to society. $v , supra, U.S. at 165 -pluracity
opinion :.

sentencing scheme provided if the jury did not find a statutory ageravainé
circumstance. a death-eligible defendant was sentenced to tife imorisenamont
and eligible for parole in twenty years. If the jury found a statutery
aggravating circumstance and did net recommend death. the defendant vas
sentenced to lire imprisonment and eligible for parole in tnirty years.

-B. When the State seeks the death penalty. upon conviction or
adjudication of guilt of a defendant of murder. the court saa.
: conduct a separate sentencing proceeding. In the proveuding. ra
statutory aggravating circumstance is found, the derendant must

=)

oce Ann. § 19-3-20'A“Supo. 1993: However, if the defends ae dare atric: |
Code As PE «ign copay be sentenced to either death er life imprisenmer:. Lino
eanvietion fer certain violent crimes. he was ineligible tor par S.C io rue

| 7 circumstance is found, the deren” mus"

2 be sentenced [9 either iite imprisonment or 3 bil $n @, one
> minimum term of imprisonment for thirty years.
“US, Const. amend. XIV, _ Appellant dues aut allege an Eugnis | SEEN cea
naatnane violation. Emphasis added .
Ais Giscussion, We AassuMe Ine s °.99 "Ri 2

For purposes oft
nt

= future danzerousness in issue. ten ;

Simmons was parole ineligible pursuant te } o4-L beats

A-34

STATE v. STARNES

Under the new sentencing scheme, if the jury does not find a
statutory aggravating circumstance, a death-eligible defendant may be
sentenced to either life imprisonment or a mandatory minimum thirty vear
sentence at the discretion of the trial judge. Under either sentence, the
defendant is ineligible for parole or any form of credit which wou!d reduce
the length of the sentence. However, if sentenced to the mandatory
minimum sentence, the defendant would be unconditionally released trom
prison at the completion of thirty vears.

Simmons is inapplicable under the new sentencing scheme. By
its own terms, Simmons requires the jurv be informed the defendant is
parole ineligible only if no other sentence than death. other than life without

the possibility of parole, is legally available to the defendant. Id.. U.S. at 178

‘O'Connor, J.. concurring)"[ajlthough the only alternative sentence to death

under state law was life imprisonment without the possibility of parole. .

“emphasis added).** This interpretation is supported by decisions from
other jurisdictions. Ramdas: v. Angelone. 187 F.3d 396 :4* Cir.

1999 Simmons is inapplicable if. at time of sentencing tle

defendant is parole eligible under state law; hence where judgment hac ve

to be entered for defendant's third murder conviction, defendant was sa role

eligible under “three strikes" law): United States v. Flores, 63 F.3d 1342 5%

Cir. 1995), cert. denied, 519 U.S. 825 ( 1996 because sentencing 79g
Vest-Gistrict court With discretion to adjust Life sentence Cownward. Ul:
sentence without possibility of parole is not only lezal sentence other than
Geath which defendant? might receive and, therefore Simmons is
inapplicable’: Allridge «Scott, 41 F.3d 213 (5" Cir. 1964 . cert, denied. F14
U.S. 1108 :1995"Sfmmons appiies where capital defendant is ineiigid.e for
parole as a matter of law: Simmons does not apolv ev = 4 t on
defendani would be paroled : Pesple v. Simpson. 665 203258 3
sane. 519 U.S. 982 : 1996 ‘Simmons inapplicabdie where one defenian:
8 30 tutoriiy eligible for a sentence less than natura: life imprisonment :

iS S.E.36 i ‘N.C. 1008 . cere, gon’? 6282 US. te
1695 ‘Simmons inapplicable «where alternative to death 77 mor lite

Keely Preaek. is2 F.3¢ 263. 270-4" Cir. ig@s recognising tnat
ustice O'Conner s cone mee actualiy represents the midiagzin

A-35

STATE v. STARNES,

imprisonment without possibility of parole). Under the new statute. a
sentence other than life without the possibility of parole is an available
alternative to the death penalty.

Moreover, the rationale for Simmons simply does not exist when
there is a potential mandatory minimum thirty year sentence. Contrary to a
sentence of lite imprisonment withou: the possibility of parole. a mandatorv
minimum thirty year sentence does not rebut the State's argument
regarding the defendant’s threat to society. For this same reason the Court
has repeatedly declined to apply Simmons when the defendant is parole
eligible. State v. Hill, 331 S.C. 94, 501 S.E.2d 122, cert. denied, 525US.___
119 S.Ct. 597 (1998); aoate.x. Rrra. 326 S.C. 107, 485 S.E.2d 360 (1997);
State v. Simpson, 325 S.C. 3 S.E.2d 57, cert. denied, 520 U.S. 1277
(1996°; State v. McWee, 322 S. c. i 472 S.E.2d 235 ' 1996), cert. denied,
519 U.S. 1061 (1997). Accordingly, because a mandatory minimum thirty
year sentence was a legallv available sentence, appellant’s due process was
not violated w hen the trial judge refused to instruct the jury appellant was
Paroie ineligible.*

Additionally, appellant argues because the jury had already
convicted him of two murders, it was bound to find the statutory aggravating
circumstance of “two or more persons murdered by the defendant by one act
or pursuant to one scheme or course of conduct" and. therefore. the only
available sentence alternative to death was life without the possidility of

parole. We find it inappropriate to assume the jury wi!l ind a stazutory
saurer ating circumstance. Appellant’s jury could have concluded that while
appellant murdered Welborn and Champlin. the two murders were not

“The dissent contends the cases cited herein are inapposite. As

explained in State“ shaier, Op. ie 25120 $.C. Sup. Ct. filed Ma; 23. 2000
Sheareuse Adv. Sh. No. 18 at 35. each of the referenced eases fully suspert
the conclusiun due process did not require the trial jucge to instruct the Jur.

anpeliant was parole ineligible.

* Further. we note the sentencing st atute prov iGes wr a mandate:
me op thirty year sentence. Bused on the nenege M the statute. itis
- e - $s Tr oa! -
+4 ite mae to more than thirty vears is eligicle tor

—
-

adle a defendant sen
t

wa
he roie aiter serie of thirts: vears.

A-36

STATE v. STARNES

pursuant to one scheme or course of conduct beyond a reasonable doubt.
Because the jury could have failed to find the existence of a statutory
aggravating circumstance, a potential mandatory minimum thirty year
sentence existed and appellant was not entitled to a charge on parole
ineligibility. United States v. Flores, supra (district court did not violate the
principles of Simmons by refusing to inform the jury the defendant would be
sentenced to life imprisonment without possibility of parole because a lesser

sentence, dependent on the jurv’s findings, was available).
REVERSED.

TOAL, MOORE, JJ., and Acting Justice William T. Howell,
concur. FINNEY, C.J., dissenting in a separate opinion.

A-37

STATE v. STARNES

FINNEY, C.J.: I respectfully dissent from the majority's opinion insofar as
it holds appellant was not entitled to a jury charge that he was parole
ineligible pursuant to Si sv. lina, 512 U.S. 154, 114S.Ct.
2178, 129 L.Ed.2d 13311994). As I explained in my dissent in State v.
Shafer, Op. No. 25120, (S.C. Sup. Ct. filed May 8, 2000) all capital
defendants are now parole ineligible under the 1996 amendments to S.C.
Code Ann. § 16-3-20 ‘Supp. 1999). Appellant thus meets the two
prerequisites for a Simmons charge: (1) parole ineligibility and (2) argument
regarding future dangerousness. All the state cases cited by the majority as
supporting its decision not to apply Simmons are distinguishable because in
each the defendant faced a potentially parolable sentencing option under
state law. The decision in United States v. Flores, 63 F.3d 1342 (5™ Cir.
1995) is simplv unhelpful since parole has been abolished in the federal
system. For these reasons, and the reasons given in my Shafer dissent, I
would reverse the denial of appellant’s request for a Simmons charge.

A-38

d hime! n
gag and that
d giving re
ughter in
Burriss 15.

defined as ¢!-
out malice
p enzayed :n
j act not
railv tend-
harm. or ,2
we and unin-
bwfuily with
@hers. dale

$13 5.£.2c

tute suf-
ery charge
com panied
be sutfic:enc
C. 62, 508

was enuced
ughter,
mdant and
q@gaged in

v. John-
$E.2d 20

Se a + me ge

OFFENSES AGAINST THE PERSON

sre See abet a Wal t .mpe s.4

» = te] c 2
Ss 16—3-20. Punishment for murder: separate sentencing proceeding to

determine whether sentence should be death or life imprisonment.

\ A person wae is convicted ofor pieads guilty to murder must be DUNISieG OV
ei. OF MIDroonment tor ite. or by a mandatory minimum term of imovrisonment
cr curt vears. [ the Seaare seeks the dearh penalty ane a stacucors avzravaunz

istance is icund bevond a reasonable doubt pursuani to sudsectiens :3: and

Inc a recommendation of death tis net made. the trial jucze Must impose a

elience Of Wie imprmsonment. For purdoses of this section. “lire imprsonment—
Means UNG Geath of the offender. No person sentenced tw life imprisonment
uysuant tO this section is eligivie tor parole. communin supervision. or anv early
ease program. mor ts (he person eligible to receive anv work credits. education
reals, JoOG concuct credits. or anv other credits that would reduce the mandatory
We imorisonment required bv this section. No Derson sentenced to a mandator:.
aunminium term of imprisonment for thirtv vears pursuant to chis section is eligible
or parole or any early release program. nor is the person eligible to receive anv
vors credits, education credits. good conduct credits. or anv other credits that
voulc reduce the mandatory minimum term of imprisonment tor thirty vears
reguired by this section. Under no circumstances mav a female who is pregnant be
*NecuteG so long as she is pregnant or for a period of at least nine months after she
$ NO conger pregnant Vhen the Governor commutes a sentence of death to life
mprisonment under the provisions of Section 14 of Article [V of the Constitution of
south Carolina. 1895. the commutee is not eligible for parole, community supervi-
sion, or any early release program. nor is the person eligibie to receive anv work
recits, good conduct credits. education credits. or anv other credits that would
ecuce the mandatory imprisonment required bv this subsection

(B ‘hen the Scate seeks the death penalty. upon conviction or acjucication of
rut of a defendant of murder. the court shall conduct a separate sentencing
oreceecing. In the proceeding, if a statutory aggravating circumstance is found,
fe Cezencant must be sentenced to either death or life imprisonment. If no
statutcry aggravating circumstance is found. the defendant must de sentenced to
ether ice imprisonment or a mandatory minimum term of imprisonment for thirty
ears. the proceeding must de conducted by the trial judge before the trial jury as
ON 43 Eracucadie ater the lapse of twenty-four hours unless waived ov the
serencant. If crial bv jurv has been waived bv the defendant ane the Saute. or if
se Serencant pleacec guilty. the sentencing proceeding must be conducted defore
ne sucge. in the sentencing proceeding, the jury or judge shail hear additional
MGence on ekienuaton, muugaGon. or aggravation of the punishment. Oni such

wenes im aygravaGen as the Sate aas informed the cevendant in writing >etore
-¢ Pike 3 acaussitie. This section must not be construed tw authorize the
Gucuon of any evicence secured in vielation of the Constitution of the United
ates OF tae State of South Carolina or the applicable laws of either. The State. the
*steneant, ang als counsel are permitted to present arguments for or ayainst the

entence iO ce impesec. The defendant anc his counse! shall nave the closing

aT SaMent regarcing the sentence to be imposed
- .o¢ ‘ig? shail consicer. or he shall include in his instructions to che jury for
(fr. Tun gaany circumstances otherwise authorized or ailowed dv iaw and
For assistance call 1|-400-323—i880 49

er

§ 16-3-20 CRIMES AND OFFENSES
the foll wing Statutory aggravating and mtigatunyz rcumstances ‘ } ‘

supported bv the evidence
a) SMatutory aggravating circumstances

l The murder was mmittea while i (ne INMISssiofr t tne f

crimes or acts
a) criminal sexual conduct in any degree
b) kidnapping
c) burglary in anv degree
d) robbery while armed with a deadlv weapo:
e¢) larceny with use of a deadls weapor
ft) killing by poison

(g) drug trafficking as defined in Section 44-33-370e). 4433-3 B
44+—-53-440, or 44-53-445

(h) phvsical torture: or

i) dismemberment of a person

(2) The murder was committed by a person with a prior nvicuon for
murder

(3) The offender by his act of murder knowingly created a great risk of
death to more than one person im a public Diace DV means of a weapon r
device which normally would be hazardous to the lives of more than one

;

person

(4) The offender committed the murder for himself or another for the
purpose of receiving monev or a thing of monetarv value

(5) The murder of a judicial officer, former judicial officer, solicitor, former
solicitor, or other officer of the court during or because of the exercise of his
official dutv

(6) The offender caused or directed another to commit murder or commit
ted murder as an agent or emplovee of another person

(7) The murder of a federal, state, or local law enforcement officer peace
officer or former peace officer, corrections emplovee or former corrections
employee, or fireman or former fireman during or because of the performance
of his official duues

(8) The murder of a family member of an official listed in subitems (3) and
(7) above with the intent to impede or retaliate against the official. “Family
member” means a spouse, parent, brother, sister. child, or person to whom the

official stands in the place of a parent or a person living in the official's
household and related to him bv blood or marrage

(9) Two or more persons were murdered by the defendant bv one act or
pursuant to one scheme or course of conduct

(10) The murder of a child eleven years of age or under

(Ll) The murder of a witness or potential witness committed at anv time
during the criminal process for the purpose of impeding or deterr

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0474%3A03. Public record. Not legal advice.