Petition for Writ of Certiorari — Ozmint, Director, South Carolina Department of Corrections v. Hall

Supreme Court, U.9.

FILED

04 85g DEC g 2004

No. 04- Or

In The

Supreme Court of the United States

October 2004 Term

*

JON E. OZMINT, Director, South Carolina Department of

Corrections,

Petitioner,

vs.

LARRY EUGENE HALL,

Respondents.

.

Petition For A Writ Of Certiorari

To The Supreme Court of South Carolina

+

HENRY D. McMASTER

- South Carolina Attorney General

JOHN W. McINTOSH

Chief Deputy Attorney General

DONALD J. ZELENKA*

Assistant Deputy Attorney General

Post Office Box 11549

Columbia, South Carolina 29211

(803) 734-3601

Attorneys for Petitioner

* Counsel of Record

CAPITAL CASE

QUESTIONS PRESENTED

I.

WHETHER THE SOUTH CAROLINA SUPREME COURT

MISAPPLIED STRICKLAND V. WASHINGTON AND

PAYNE V. TENNESSEE WHEN IT CONCLUDED THAT

TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO

OBJECT TO THE SOLICITOR’S PENALTY PHASE

ARGUMENT COMPARING THE WORTH OF THE

CONVICTED DEFENDANT WITH THE WORTH OF THE

LIVES OF THE MURDER VICTIMS?

Il.

WHETHER THE FOURTEENTH AMENDMENT DUE

PROCESS CLAUSE FORBIDS PROSECUTORIAL

ARGUMENT IN A CAPITAL CASE WHICH REFERENCES

THE WORTH OF A VICTIM AND THE WORTH OF A

DEFENDANT?

ili

TABLE OF CONTENTS

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RAE CE AUFERO EMED 6 oc ccc cscs dcecccccacccecs v

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF SOUTH CAROLINA ....1

CITATION TO OPINIONS BELOW ................4.. ]

PUTEEEEEE oacececcccecasececscewccessdeseecses |

CONSTITUTIONAL PROVISIONS INVOLVED ......... 2

STATEMENT OF THE CASE ................ tenes 2

A. PROCEDURAL HISTORY peveeeuwoevenen 2

B. PRIOR PROCEDURAL AND FACTUAL

PUES Wb eve edandsctesecasecvincue 5

REASONS WHY CERTIORARI SHOULD BE

co waunl 7

1. The South Carolina Supreme Court

incorrectly concluded that Payne v. Tennessee,

501 U.S. 808 (1991) and the federal constitution

forbids penalty phase prosecution argument

which compares the worth of a victim’s life with

that of a convicted murder defendant. ............. 7

iv

2. Trial Counsel in 1991 cannot be deemed deficient in

not anticipating this apparent 2004 change based upon

this misinterpretation of Payne. .................. 8

- 3. A Conflict Exists Among Jurisdictions On

Whether Victim-Defendant Comparisons or The

Worth of the Victim Can Be Argued Under

i Sv ccsuckacedebiaesasbacedes 19

CE Sewdcepcadsceaabonsaanbadencwnne 25

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APPENDIX I

A. Hall v. Catoe, 360 S.C. 353, 601 S.E.2d 335 (August 9,

BE Nac cdencscndsusdhdakduabesanneriesenebeen -A-

APPENDIX II

A. Hall v. Catoe, Order Denying Petition for Rehearing

CLEA: BEG, FO hen dd in en reSncdnn cece: -P-

Vv

TABLE OF AUTHORITIES

FEDERAL CASES

Bennett v. Angelone, 92 F.3d 1336 (4th Cir. 1996)....... oe

Blystone v. Pennsylvania, 494 U.S. 299 (1990) .......... 16

Burket v. Angelone, 208 F.3d 172 (4th Cir.2000) ......... 10

Clabourne v. Lewis, 64 F.3d 1373, 1383 (9th Cir. 1995) ...14

Darden v. Wainwright, 477 U.S. 168 (1986) .......... 13, 26

Foster v. Schomig, 215 F.3d 687, 693 (7th Cir. 2000) ..... 11

Grey v. Bowersox, 281 F.3d 749 (8th Cir. 2002) ......... 23

Hall v. South Carolina, 512 U.S. 1246 (1994) ............. 6

Humphries v. Ozmint, 366 F.3d 266 (4th Cir. 2004).... 17,19 ~

LaGrand v. Stewart, 133 F.3d 1253, 1271 (9th Cir. 1998) .. 11

Lilly v. Gilmore, 988 F.2d 783, 786 (7th Cir. 1993) ..... ive

Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994) ........ 11

Moore v. Deputy Commissioners, SCI-Huntington, 946 F.2d

aah, DAS, Ht. 6 GEC. TSG on it occ tivnseai een 11

Payne v.Tennessee, 501 U.S. 808 (1991)............ passim

Richardson v. Marsh, 481 U.S. 200, 211, (1987) ......... 4

Sherrill v. Hargett, 184 F.3d 1172 (10th Cir. 1999)........ 11

vi

Snyder v. Massachusetts, 291 U.S. 97, 122 (1934) ......... 9

Strickland v. Washington, 466 U.S. 668 (1984) ... 1,7, 10,11

U.S. v. McVeigh, 153 F.3d 1166 (10th Cir.1998) ......... 22

Wiley v. Puckett, 969 F.2d 86, 105 (Sth Cir.1992) ........ 22

STATE CASES

Curtis v. South Carolina, 305 S.C. 225, 226, 407 S.E.2d 643,

DNOTIOUER. ..... vis casccapacsceisueenee 10

Gilmore v. State, 314 S.C. 453, 445 S.E.2d 454 (1994) ....11

Humphries v. State, 351 S.C.362, 570 S.E.2d 160 (2002)... 11

Hyde v. State, 778 So.2d 199 (Ala.Cr.App.1998) ......... 22

Jackson v. State, 33 S.W.3d 828 (Tex.Crim.App.2000) . . . . 19

Price v. State, 725 So.2d 1003, 1034 (Ala.Cr.App.1997) ...23

Smith v. State, 797 So.2d 503 ( Ala.Cr.App. 2000) ....... 22

State v. Ard, 332 S.C. 370, 505 S.E.2d 328 (1998) ....... 14

State v. Durden, 264 S.C. 86, 212 S.E.2d 587 (1975) ...... 13

State v. Haselden, 577 S.E. 2d 594 (2003) .:............ 21

State v. Johnson, 306 S.C. 119, 410 S.E.2d 547 (1991) ....14

State v. Koskovich, 168 N.J. 448, 776 A.2d 144(2001) ...23

vii

State v. Hall, 312 S.C. 95, 439 S.E.2d 278 (1994) ......... 6

State v. McCray, 332 S.C. 536, 506 S.E.2d 301 (1998) .... 13

State v. Ringo, 30 S.W.3d 810 (Mo. banc 2000) .......... 22

State v. Roberts, 948 S.W.2d 577, 604 (Mo. banc 1997) ...22

State v. Southerland, 316 S.C. 377, 447 S.E.2d 862 (1994) . 12

State v. Storey, 901 S.W.2d 886 (Mo. 1995) .......... 16, 22

State v. Tucker, 324 S.C. 155, 478 S.E.2d 260 (1996) ..... 14

FEDERAL STATUTES

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STATE STATUTES

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|

Petitioner, Jon E. Ozmint, Director of the South

Carolina Department of Corrections, through the Attorney

General of South Carolina, hereby makes a Petition for a Writ

of Certiorari to the Supreme Court of South Carolina. The

South Carolina Supreme Court reversed the denial of state

post-conviction relief concluding that Larry Hall’s counsel was

ineffective for not objecting to the solicitor’s closing argument

which included references to the worth of the victims and the

worth of the capital defendant. The state court remanded the

matter for a new capital sentencing proceeding. -

Petitioner asserts that this decision misapplied the

precedent of this Court in Strickland v. Washington, 466 U.S.

668 (1984) and Payne v. Tennessee, 501 U.S. 808 (1991). In

addition, there is a conflict among similar jurisdictions on the

treatment of similar prosecutorial arguments in capital cases.

For the reasons set forth below, Petitioner requests that

certivrari be granted.

CITATION TO THE OPINIONS BELOW

The August 9, 2004 decision of the Supreme Court of

South Carolina reversing the denial of state post-conviction

relief and remanding the matter for a new capital sentencing

proceeding is published as Hall v. Catoe, 360 S.C. 353, 601

S.E.2d 335 (2004) and attached to the Petition as Appendix I.

The Order of the South Carolina Supreme Court denying the

petition for rehearing on September 9, 2004 is unpublished and

is set forth in appendix to this Petition as Appendix II.

JURISDICTION

The Order of the Supreme Court of South Carolina

granting state post-conviction relief on the basis of a denial of

the Sixth Amendment was entered on August 9, 2004. A

2

petition for rehearing was denied on September 9, 2004. This

Court’s jurisdiction is invoked pursuant to 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISION INVOLVED

1. This matter involves the Sixth Amendment to

the United States Constitution, which provides in pertinent part

that “[{i]n all criminal prosecutions, the accused shall enjoy...

the right to have the assistance of counsel for his defense.”

° This case also involves the Fourteenth

Amendment to the United States Constitution which provides

in pertinent part that “no. . . State [may] deprive any person of

life , liberty, or property, without due process of law. .. .”

3. This case also involves the Eighth Amendment

to the United States Constitution which provides that

“excessive bails shall not be required , nor excessive fines

imposed, nor cruel and unusual punishment inflicted.”

STATEMENT OF THE CASE

A. Procedural History. n

This matter comes before this Court by an Application

for State Post-Conviction Relief by Souti: Carolina inmate

death row inmate Larry Eugene Hall, the Respondent herein.

Hall made an Application for Post-Conviction Relief dated

March 17, 1995. On June 2-3, 1997 an evidentiary hearing was

held in the matter before the Honorable Larry R. Patterson,

Presiding Judge. Hall was present and represented by John H.

Blume, Teresa L. Norris, and Hilary Sheard of the Center for

Capital Litigation. The State was represented by Donald J.

Zelenka of the Attorney General's Office. Subsequent to the

hearing, depositions were completed.

On March 6, 2000, Judge Patterson filed the Order of

Dismissal. App. 4033-4173. A timely notice of appeal was

filed on April 5, 2000. App. 4175.

The Petitioner made a petition for writ of certiorari

raising thirteen questions presented. Among the questions

presented was the following issue pertinent to this appeal:

Vill. WAS PETITIONER DENIED THE

EFFECTIVE ASSISTANCE OF

COUNSEL, IN VIOLATION OF

SOUTH CAROLINA LAW AND THE

SIXTH AND FOURTEENTH

AMENDMENTS, AS A RESULT OF

COUNSEL’S FAILURE TO

PRESERVE PETITIONER’S

PROCEDURAL RIGHTS DURING

TRIAL, OBJECT TO :

OBJECTIONABLE RULINGS, AND

ADEQUATELY PRESERVE THE

RECORD FOR APPEAL?

The Petitioners made a return on February 2, 2001. On January

24, 2002, The South Carolina Supreme Court granted certiorari

limited to three questions within the questions presented.

Among those issues was the following:

WHETHER COUNSEL WAS INEFFECTIVE

IN FAILING TO OBJECT TO THE

SOLICITOR’S ARGUMENT COMPARING

THE WORTH OF PETITIONER WITH THE

MURDER VICTIMS? (QUESTION VIII (A)

(5) ON CERTIORARI)

Briefing followed.

On August 9, 2004, the Supreme Court of South

Carolina entered its opinion. Hall v. Catoe, 360 S.C. 353, 601

S.E.2d 335 (2004) The state court held that Hall was denied his

constitutional right to effective assistance of counsel when his

trial counsel failed to object to the solicitor's comparison

between the worth of Hall's life and the lives of the victims.

The court concluded that the solicitor impermissibly compared

Hall's life to the victims' lives. It found that the solicitor's

comparison (1) was so emotionally inflammatory that it

became a material part of the jury's deliberation process; (2)

unquestionably directed the jurors to conduct an arbitrary

balancing of worth, which required that Hall be sentenced to

death if the jury found Hall's life was worth less than the lives

of his victims; (3) is totally unrelated to the circumstances of

the crime; and (4) is distinguishable from traditional impact

evidence in that it was not actually offered to show the impact

of the crime on the victims or the victims' family.

The State made a petition for rehearing on August 24,

2004. Rehearing was denied by the Supreme Court of South

Carolina on September 9, 2004. Appendix II. This petition

follows.

A. PRIOR PROCEDURAL AND FACTUAL HISTORY

1. The Crime

As summarized by the Supreme Court, Hall’s crime met

the statutory criteria for imposition of the death penalty in

South Carolina. In July 1991, Hall committed a series of crimes

in an Easley Wal-Mart parking lot. To begin, Hall robbed and

sexually assaulted his first victim at gunpoint. Hall then

ordered her to walk to the back parking lot with him. A Wal-

Mart employee noticed Hall's strange behavior and drove a

truck through Hall and the victim's path. Hall allowed her to

5

escape and then walked into the woods behind the store waving

his gun in the air.

A half hour later, Hall approached two teenage girls,

who were sisters, in the back parking lot. In front of numerous

witnesses and without provocation, Hall shot and killed the two

girls. When the police arrived and finally cornered Hall, he

challenged the police with a piece of wood and dared the police

to shoot him.

2. The Trial

Larry Eugene Hall, #4821, 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 Pickens County. Hall was indicted at

the November 1991 term of the Court of General Sessions for

Pickens County for two (2) counts of resisting arrest (91-GS-

39-1350)(Hall unlawfully resisted the efforts of Berry Seaborne

and Wendell Hunter in their attempts to arrest him and

assaulted both officers), armed robbery (91-GS-39-1348)(On or

about July 16, 1991, the Hall committed armed robbery against

Melinda Brackett), murder (91-GS-39-1341)(On or about July

16, 1991, Hall killed Lori Murphree by shooting her with a

handgun), kidnapping (91-GS-39-1351)(On or about July 16,

1991, Hall kidnapped Melinda Brackett), murder (91-GS-39-

1346)(On or about July 16, 1991 Hall killed Wendy Murphree

by shooting her with a handgun), and criminal sexual conduct

(91-GS-39-1340(Criminal sexual conduct, first degree)(On or

about July 16, 1991, Hall sexually assaulted Melinda Brackett).

He was represented by Christopher G. Olson, Esquire, and

Dallas D. Ball, Esquire.

The State gave notice of its intent to seek the death

penalty one each murder charge pursuant to S.C. Code Ann. §

16-3-26 (1976). The particular aggravating factors were: “two

6

or more persons were murdered by the defendant by one act or

pursuant to one scheme or course of conduct,”[ S.C. Code Ann.

§ 16-3-20(C)(a)(2)] “murder was committed while in the

commission of robbery while armed with a deadly

weapon”[S.C. Code Ann. § 16-3-20(C)(a)(1)(d)], “murder was

committed while in the commission of kidnapping” [ S.C.

Code Ann. § 16-3-20(C)(a)(1)(b)], and “murder was committed

while in the commission of criminal sexual conduct,”[ S.C.

Code Ann. § 16-3-20(C)(a)(1) pursuant to S.C. Code Ann. §

16-3-20(C)(a)(1)(a)].

A jury trial was held on January 16-28, 1992 at the

conclusion of which Hall was found guilty of the charges. After

a separate sentencing hearing, the jury found the existence of

all the statutory aggravating factors beyond a reasonable doubt.

The jury recommended a sentence of death. He was sentenced

by the Honorable C. Victor Pyle to confinement for twenty-five

(25) years for armed robbery, thirty (30) years for criminal

sexual conduct in the first degree, ten (10) years for resisting

arrést, thirty (30) years for kidnapping, and death for two (2)

counts of murder.

3. The Direct Appeal

Hall filed a timely Notice of Intent to Appeal. On

January 10, 1994, the South Carolina Supreme Court issued its

Opinion in this matter affirming the conviction and sentence.

See, State v. Eugene Hall, 312 S.C. 95, 439 S.E.2d 278

(1994). Hall filed a Petition for Rehearing with the South

Carolina Supreme Court dated on or about January 19, 1994.

The Petition for Rehearing was denied.

A Petition for Writ of Certiorari to the South Carolina

Supreme Court in the United States Supreme Court was filed

on May 4, 1994. On June 27, 1994 the United States Supreme

7

Court denied the Petition for Writ of Certiorari. Hall v. South

Carolina, 512 U.S. 1246 (1994).

REASONS WHY CERTIORARI SHOULD BE

GRANTED

1. The South Carolina Supreme Court incorrectly

concluded that Payne v. Tennessee, 501 U.S. 808 (1991)

and the federal constitution forbids penalty phase

prosecution argument which compares the worth of a

victim’s life with that of a convicted murder defendant.

The Petitioner asks this Court to grant a petition for writ

of certiorari based upon the failure of the Supreme Court of

South Carolina reasonably apply the precedent of this Court in

Strickland v. Washington, 466 U.S. 668 (1984) and misapplied

the constitutional holding of Payne v. Tennessee, 501 U.S. 808

(1991).

In its opinion, the South Carolina Supreme Court found

that Hall’s trial counsel was ineffective for failing to object to

the Solicitor’s penalty phase closing argument. The state court

found that the State had improperly made a comparative

inquiry as to the worth of the victim as compared to that of

Hall. The court found that an objection should have been made

in 1991 to the following comment by the prosecutor:

I am talking about values, because a jury verdict

is a statement of values. And I am not talking

about dollars and cents as far as what the life of

Wendy Murphree and Lori Murphree was worth,

but nevertheless it is a question of values. What

are the lives of these two girls worth? Are they

worth at least the life of this man, the

psychopath, this killer who stabs and stabs and

kills, and rapes and kidnaps.

CC

8

App. p 1568, (R.1537.) The state court concluded that this

portion of the Solicitor’s argument “asked the jury to compare

the worth of Hall’s life with that of his victims.” Hall v.

Catoe, (emphasis in original). Implicitly, the state court

concluded the argument violated this Court’s mandates in

Payne because the solicitor impermissibly compared Hall’s life

with that of his victims. He contends that it violated his right to

due process whereby the solicitor developed an arbitrary

formula that if the jury finds Hall’s life worth less than his

victims’, then the jury could reach no other conclusion than

that the death penalty is justified. 360 S.C. 353, 364, 601

S.E.2d We submit that this was clear error in the state court’s

constitutional analysis under the Sixth, Eighth and Fourteenth

Amendments.

Hall and implicitly now the Supreme Court of South

Carolina essentially resolve that the prosecution penalty phase

argument was bad under Payne, particularly identifying at trial

the following head note 8 in Payne v. Tennessee, supra:

Victim impact evidence is not generally offered

to encourage comparative judgments that a

capital defendant whose victims was an asset

to the community is more deserving of

punishment than a defendant whose victim is-

perceived to be less worthy, but is designed

instead to show each victim's uniqueness as an

individual human being, whatever, the jury

might think of the loss to the community

resulting from the death. U.S.CA. Const.

Amend. 8.

111 S.Ct. at 2598, 2607.

In Payne, the U.S. Supreme Court concluded:

9

For the reasons discussed above, we now reject

the view-expressed in Gathers - that a state may

not permit the prosecutor to similarly argue to

the jury the human cost of the crime of which

the defendant stands convicted. We re-affirm

the view expressed by Justice Cardozo in

Snyder v. Massachusetts, 291 U.S. 97, 122

(1934):

"justice, though due to the

accused, is due to the accuser

also. The concept of fairness

must not be strained till it is

narrowed to a filament. We are

to keep the balance true.

Payne, 111 S.Ct. at 2609.

"There is nothing unfair about allowing the jury to bear

in mind the harm [victim impact evidence that the child missed

his sister and mother] at the same time as it considers the

mitigating evidence introduced by the defendant." Payne, 111

S.Ct. at 2609. The Court in Payne held that if the State chooses

to permit the admission of victim impact evidence and

prosecutorial argument on that subject, “the Eighth

Amendment erects no per se bar." 111 S.Ct. at 2609. As

authorized in Payne, supra, the prosecutor's argument was

acceptable argument that kept "the balance true.” Payne, supra,

Snyder v. Massachusetts, supra. Because the state court

erroneously concluded that the Constitution erects a bar to

prosecutorial comment on the existence of the worth of a

victim’s life, certiorari is warranted.

2. Trial Counsel in 1991 cannot be deemed

deficient in not anticipating this apparent

10

2004 change based upon this

misinterpretation of Payne.

Until this instant decision in Hall, neither the South

Carolina Supreme Court nor the United States Supreme Court

has ever held that victim-defendant comparisons are improper.

In fact, the state court wholly misapprehended the standard of

review under Strickland v. Washington, 466 U.S. 668 (1984) as

applied in its precedent of a two-step process in evaluating

defense counsel conduct at the time of the trial and not

retrospectively.’ A fundamental tenet in the evaluation of

"Under the first prong, a criminal defendant must establish that

counsel's performance "fell below an objective standard of

reasonableness." Strickland v. Washington, 466 U.S. 668, 688,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In reviewing counsel's

performance, "a strong presumption [exists] that counsel's

conduct falls within the wide range of reasonable professional

assistance," Id. at 689, and that counsel "made all significant

decisions in the exercise of reasonable professional judgment." Id.

at 690. Judicial scrutiny of counsel's performance is highly

deferential and not subject to the distorting effects of hindsight,

and counsel may reasonably choose from a wide range of

acceptable strategies. Strickland, 466 U.S. at 689; Burket v.

Angelone, 208 F.3d 172 (4th Cir.2000).

The benchmark for judging any claim of ineffectiveness

is whether counsel's conduct so undermined the proper

functioning of the adversarial process that the trial cannot be

relied on as having produced a just result. Strickland, supra. The

purpose of the effective assistance guarantee is simply to ensure

that criminal defendants receive a fair trial. Id. "In PCR

proceedings, the burden of proof is upon petitioner to prove the

allegation of his application." Curtis v. South Carolina, 305 S.C.

225, 226, 407 S.E.2d 643, 644 (1991).

11

ineffective counsel claims is that of so-called contemporary

assessment: counsel's acts are to be judged as of the time

counsel was required to act. The principle stems from

Strickland v. Washington, 466 U.S. 668, 690 (1984) which

recites that counsel's performance is to be viewed as of the time

of counsel's conduct. Simply put, how would reasonable

counsel in 1991 have acted when presented with the

prosecution’s closing argument in 1991, not 2004. Since this

was presented to the state court in a Sixth Amendment format,

it is implicit to recognize that trial counsel in 1991 could not

have anticipated this apparent 2004 change in the law that the

state court is now seeking to retroactively apply. See, Gilmore

v. State, 314 S.C. 453, 445 S.E.2d 454 (1994) (Court does not

require attorney to be clairvoyant or anticipate changes in the

law which were not in existence at the time of trial). A counsel

is not ineffective in failing to forecast changes or advances in

the law. Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994)

(counsel can't be expected to anticipate later decisions);

LaGrand v. Stewart, 133 F.3d 1253, 1271 (9th Cir. 1998)

(judge at time required to ac:); Foster v. Schomig, 215 F.3d

687, 693 (7th Cir. 2000) (same). Sherrill v. Hargett, 184 F.3d

1172 (10th Cir. 1999); Lilly v. Gilmore, 988 F.2d 783, 786 (7th

Cir. 1993); Moore v. Deputy Commissioners, SCl-Huntington,

946 F.2d 236, 245, fn. 6 (3rd Cir. 1991). In fact, Strickland

mandates that this assessment be made from counsel’s

perspective at the time of the trial, not 20/20 hindsight.

The Supreme Court of South Carolina as recently as

2002 affirmed an argument which did not directly compare the

worth of the victim and defendant, but did present the jury with

various characteristics of both in making their determination of

sentence in Humphries v. State, 351 S.C.362, 570 S.E.2d 160

(2002). Important to this analysis in Hall as to why this is an

obvious change in the law that could not have been anticipated

by defense counsel in 1991 and thus not deficient, the 2002

Humphries Court stated:

12

We agree with the PCR court's finding that the

solicitor’s argument does not suggest that the

Smith's life is worth more than the Petitioner's

life. We do recognize, however, that the

solicitor compared the lives of Smith and the

Petitioner based on the evidence presented. We

now consider whether or not such a comparison

is proper. Petitioner asserts this Court has

answered this question already in State v.

Southerland, 316 S.C. 377, 447 S.E.2d 862

(1994). We disagree, and believe Petitioner has

misconstrued our decision in Southerland. In

Southerland, the State did not offer any victim

impact evidence, but the defendant wanted to

introduce evidence of the victim's bad character.

This Court held that "Payne prohibits this use of

comparative character analysis.” Id. at 385, 447

S.E.2d at 867. The Court recognized, "[wJhile

evidence of harm caused by the defendant may

include evidence of the victim's character, it is

not offered to encourage comparative character

analysis." Id. Upon examination of Payne, and

other post-Payne precedent, we are

convinced the Court was referring to

comparative character analysis between the

victim and other members of the community,

not comparisons between the defendant and

the victim. [FN9}

Humphries, at 166-167 (emphasis added). If the state court in

2002 was of the opinion that there was no constitutional error

in victim-defendant comparisons, based upon its reasonable

review of “Payne and post-Payne precedent,” it is implicit that

13

1991, counsel was reasonable in making the same assessment

in 1991! ?

The state court misapprehended the law in that it

erroneously held that Hall had received ineffective assistance

of counsel because the Solicitor’s argument was not improper

in 1991.’ In reviewing prosecution closing arguments, the state

court had held that in making closing arguments, a prosecution

argument must not appeal to the personal biases of the jurors,

not be calculated to arouse the jurors passions and prejudices,

and attorneys should stay within the record and its reasonable

inferences.

In reviewing prosecution arguments, a reviewing court

must consider the argument in its entirety to determine if the

references so infected the trial with unfairness so as to deprive

the defendant of due process, Darden v. Wainwright, 477 U.S.

168 (1986). See, State v. Durden, 264 S.C. 86, 212 S.E.2d 587

(1975); see also State v. McCray, 332 S.C. 536, 506 S.E.2d 301

(1998) (demonstrating appellate review of a trial judge's denial

of defendant's mistrial motion is governed by abuse of

discretion standard). In Bennett v. Angelone, 92 F.3d 1336,

1349-50 (4th Cir. 1996), the Court found that desiring not to

Similarly, it goes hand in hand with this analysis that the

prosecutor in 1991 was acting reasonably and zealously in making

this argument without restraint from a reasonable analysis of

“Payne and post-Payne precedent.” Humphries, supra.

> During the post-conviction relief hearing, the defense counsel

had reviewed the record and could not locate any reference "to the

comparative worth of the victims contrasting that with the

defendant." PCR Tr. p. 504, Il. 21-23. App. p. 2856. No specific

reference had been referred to in any of Hall’s pleadings prior to

or during the time of the post-conviction relief hearing.

14

antagonize the jury and appear as the "good guys" justified a

failure to object to the prosecution's religiously loaded penalty

phase statements. Accord, Clabourne v. Lewis, 64 F.3d 1373,

1383 (9th Cir. 1995)(no error - counsel may have had many

reasons for not objecting or interrupting during closing). The

state court below, though, takes the prosecutor's argument out

of context.

In South Carolina, evidence of victim impact of a

murder is a legitimate consideration for a jury. State v.

Johnson, 306 S.C. 119, 410 S.E.2d 547 (1991); Payne v.

Tennessee, 501 U.S. 808 (1991). In State v. Ard, 332 S.C. 370,

505 S.E.2d 328 (1998), the Court held that photographs of a

deceased "unborn child" were properly admitted under Payne.

"Photographs may be offered as victim impact evidence to

show something of the victim's life." "Victim impact evidence

is clearly admissible because it slows the victim's uniqueness as

an individual so long as it does not render the trial unfair."

State v. Tucker, 324 S.C. 155, 478 S.E.2d 260

(1996)(photographs showing the victim at different places on

vacation, Christmas decorations in her yard, holding her

grandchild, and fishing were admissible to show her

uniqueness as an individual). "Victim impact evidence is

clearly admissible because it slows the victim's uniqueness as

an individual so long as it does not render the trial unfair."

State v. Tucker, 324 S.C. 155, 478 S.E.2d 260 :

(1996)(photographs showing the victim at different places on _

vacation, Christmas decorations in her yard, holding her

grandchild, and fishing were admissible to show her

uniqueness as an individual).

Juries are presumed to follow the trial court's

instructions. See, e.g., Richardson v. Marsh, 481 U.S. 200, 211,

(1987). The state court ignored this fundamental concept in its

assessment. In addition to the closing arguments by the

prosecution and defense, the jury in Hall’s penalty phase was

i Eee

ee

15

directed to consider not only of the evidence in aggravation, but

evidence in mitigation that the jury was sworn to consider prior

to its decision. App.p. 1599-1609.‘ In addition, the trial judge

directed the jury that “before you decide on the imposition of a

life sentence, it is not necessary for you to find an existence of

an alleged statutory mitigating circumstance or for that matter

any mitigating circumstance, and the defendant has no burden

of proving the existence of any one or more mitigating factors.

App.p. 1605-06. Further, the trial judge advised the jury about

the statutory mitigating circumstances that the jury was to

consider including: the defendant was under a mental or

emotional disturbance when the crime was committed, the

capacity of Hall to appreciate the criminality of his conduct was

substantially impaired, and the age and mentality of the

defendant. App.p. 1606. In addition to being advised not to take

passion or prejudice into their considerations, the jury was

directed that “both the state and the defendant have the right to

expect that each of you will carefully and impartially consider

all the evidence in this case and that you will follow the law as

I have given it to you in determining your verdict.” App.p.

1607, ll. 2-9.

There was probative evidence to support the state PCR

Judge’s findings and conclusion that there was no "deficient

performance" or "prejudice" under Strickland. App. pp. 4129-

31. The PCR Court found that neither the intent of the

prosecution comment nor the effect of it would have caused the

jury, to a reasonable likelihood, to have avoided consideration

of the evidence and instruction and to have based their decision

solely upon a balancing of comparative worths. Both his

“You may consider as a mitigating factor any aspect of the

defendant’s character or record and any circumstances of the

offenses which the defendant proffers as a basis for his sentence

other than death.” App.p. 1600, Il. 18-24.

16

counsel’s argument and the instructions insured that the jury

consider a wide array of evidence and circumstances, both

aggravating and mitigating, as well as the impact of the crime

on the victims and their survivors. Accord Blystone v.

Pennsylvania, 494 U.S. 299 (1990)(sentencing scheme is

constitutional so long as jury is able to consider and give effect

to all relevant mitigating circumstances).

Under the state supreme court’s reasoning, the

prosecutor's passing reference on whether the lives of the two

Murphree sisters were worth at least the life of Hall, would

have caused the jury to make an allegedly impermissible

comparative worth analysis and ignore the trial judge's

instructions. Neither the intent of the prosecution comment nor

the effect of it would have caused the jury, to a reasonable

likelihood, to have avoided consideration of the evidence and

instruction and to have based their decision solely upon a

balancing of comparative worths. Both his counsel’s argument

and the instructions insured that the jury consider a wide array

of evidence and circumstances, both aggravating and

mitigating, as well as the impact of the crime on the victims

and their survivors. Accord, Blystone v. Pennsylvania, 494

U.S. 299 (1990)(sentencing scheme is constitutional so long as

jury is able to consider and give effect to all relevant mitigating

circumstances).

Hall may continue to rely upon State v. Storey, 901

S.W.2d 886 (Mo. 1995). This reliance is misplaced. In Storey,

the prosecutor stated the entire issue "comes down to one basic

thing. Whose life is more important to you. Wheose tife has

more value." Id. at 902. No such simplistic argument was

made here. The prosecution argument directed the jury's

attention to the law - not to abandon it. The characterization to

the contrary must be rejected.

17

The state court may have overlooked that its

interpretation of the closing argument takes the entirety of the

prosecutor's argument out of context. See Humphries v.

Ozmint, 366 F.3d 266, 288 (4 Cir. 2004) (Hamilton, J.

concurring in part and dissenting in part), (petition for

rehearing en banc granted, oral argument en banc held Oct.

2004). As discussed by the dissent in Humphries v. Ozmint,

however, “[t]he fatal flaw in [this Court’s] analysis is that a

victim-to-defendant comparative worth argument is not

prohibited by Supreme Court precedent, let alone ‘clearly

established’ precedent. For good reason, in fact, even the

majority today recognizes that victim-to-defendant

comparisons are ‘inescapable in light of the Payne decision.’

Ante at 277.” Id. |

Further, the dissent in Humphries proper reasoning in a

similar context is applicable here:

One of the reasons proffered by the

Supreme Court supporting its decision in Payne

was that the states have a legitimate interest in

introducing evidence of a victim's personal

characteristics and evidence of the harm caused

to the victim's family and society by the

defendant's actions to counteract the mitigating

evidence presented by a defendant. 501 U.S. at

825, 111 S.Ct. 2597. Whether the victim-impact

evidence counteracts the defendant's mitigating

evidence is a question, asking the jury to make a

comparison between the victim-impact evidence

and the defendant's mitigating evidence. In this

case, in determining the appropriate sentence,

the jury was asked to consider Dickie Smith's

personal characteristics, the harm caused to his

family and society by Humphries's actions, and

Humphries's mitigating evidence, which

18

included evidence of Humphries's personal

characteristics, both good and bad. Thus, the

solicitor's year-by-year chronology comments

were within the boundaries of a question the

jury was required to consider--the

blameworthiness of Humphries.

Of course, allowing the introduction of

victim-impact evidence does not, and should

not, open the door to evidence/argument

ultimately allowing the jury to make a

comparative inquiry between the victim and

other victims in society, as the Court in Payne

apparently recognized. Id. at 827, 111 S.Ct.

2597. A victim-to-victim comparison is

certainly more pernicious than a

victim-to-defendant comparison because, not

only does it invite a commentary on collateral

evidence not properly before the jury (the

worthiness of other members (victims) of

society), it does not counteract the defendant's

mitigating evidence, which was one of the main

goals of Payne.

Put simply, clearly established Supreme

Court precedent does not prohibit

victim-to-defendant comparisons; they are

inevitable in any capital case in which the jury

is asked to assess the persuasive force of the

defendant's mitigating evidence and the

victim-impact evidence. A consequence of

Payne is that a defendant can be put to death for

the murder of a person more “unique" than

another, even though the defendant is, in fact,

unaware of the victim's uniqueness. This does

give some pause for concern, as does the notion

ap ita

19

that, under Payne, a sentence of death can turn

on the severity of the harm caused to the

victim's family and society, even though the

defendant did not know the victim or the

victim's family. However, these are inevitable

consequences of the Payne framework; a

framework that we, as judges of an inferior

court, are without liberty to change.

Because Humphries cannot show that the

solicitor's comments were improper, my analysis

could end right here, However, even if we need

to get to the issue of prejudice, it is evident that

Humphries was not prejudiced by the solicitor’s

year-by-year chronology.

Id. at 288-89 (Hamilton, J. dissenting) (emphasis added).

Certiorari is warranted to resolve that counsel was not

ineffective when they failed to object to a constitutional

appropriate argument.

3. A Conflict Exists Among Jurisdictions On

Whether Victim-Defendant Comparisons or The

Worth of the Victim Can Be Argued Under Payne v.

Tennessee.

The Petitioner recognizes that there may be a conflict

within the lower court jurisdictions that it may be appropriate

for this Court to resolve.’ However, there is a weight of

authority which allows similar arguments as was done in the

instant case. In Jackson v. State, 33 S.W.3d 828

‘The Petitioner is aware that the decision in Humphries v.

Oxmint, 366 F.3d 266 (4" Cir. 2004) is presently abrogated due

the granting of the petition for rehearing en banc.

20

(Tex.Crim.App.2000), the Texas court addressed a similar

issue. The appellant argued the Texas trial court erroneously

overruled his objection to the prosecutor's jury argument at

punishment that compared the value of appellant's life to the

lives of the victims. The prosecution argued: |

"No reason to give this person a life in the

penitentiary sentence because he has worked

hard in this incident to earn the verdict you're

going to give, the verdict the law demands, the

verdict the facts demand and the verdict you will

always be comfortable with whenever you rise,

whenever you set, whenever you go about your

business you will be comfortable that you made

the right decision to give this man a life

sentence to say there are mitigating factors there

or to say he is not a continuing threat is to mean

that his life is more important than Sharon

Jackson's, than Ericka or Sonny's. [Sic]."

The trial court overruled appellant's objection that this

argument was "asking the jury to make a comparative

judgment based on value of life on victim versus the

defendant."

Relying on Payne, appellant argued that a prosecutor

may not compare the worth of a victim to a defendant's worth.

The Texas court also found this to be an incorrect reading

because Payne discourages "measuring the worth of the victim

compared to other members of society." See Payne, 111 S.Ct.

at 2607 (victim impact evidence should not encourage "a jury

to find that defendants whose victims were assets to their

community are more deserving of punishment than those

whose victims are perceived to be less worthy"). The Texas

court found that the prosecution's argument did not do this. It

21

did not use the victim impact evidence for a purpose prohibited

by Payne.

The North Carolina Supreme Court recently addressed

Payne evidence and argument in State v. Haselden, 577 S.E. 2d

594 (2003) in finding a prosecutor's closing argument at

penalty phase of capital murder trial, that "If you let this

murderer walk out of this courtroom with his life then you are

saying that his life is worth more than [the victim's] life," was a

natural and proper extension of prosecutor's earlier, and proper,

_ argument concerning victim impact evidence. The court found

no error in a prosecution closing argument where the

prosecutor first compared the age of defendant to the age of the

victim and the age of the victim's daughter. The prosecutor next

contrasted the mitigating circumstance that defendant was

considerate and loving to his mother by referencing the victim's

mother in the courtroom. All of these factors, the victim's age,

the age of the victim's daughter, and the effect of the murder on

the victim's mother and found all “were relevant considerations

for the jury, ” according to the court. The prosecutor in this

case properly offered victim-impact evidence for the jury's

consideration. Victim-impact evidence is one way for the

prosecution to counteract the defendant's mitigating evidence.

See Payne, 501 U.S. at 821-24, 111 S.Ct. at 2607-08, 115

L.Ed.2d at 734. In the present case, defendant requested, and

the trial court submitted, numerous mitigating circumstances

concerning defendant's life. Among these mitigating

circumstances were: (1) defendant is considerate and loving to

his mother; and (2) as a child, defendant was sweet, loving, and

obedient. The prosecutorial argument at issue here simply

reminded the jury that in addition to considering defendant's

life, the jury should also consider the life of the victim. See id.

at 821-24, 111 S.Ct. at 2607-08, 115 L.Ed.2d at 734. The

prosecution argument was seen as a “natural and proper

extension of the prosecutor's earlier argument concerning

victim impact evidence.”

22

In State v. Ringo, 30 S.W.3d 810 (Mo. banc 2000) the

court found that the rationale of permitting this victim impact

and character evidence is to illustrate that "the victims are

individuals whose deaths represent a unique loss to society and

their family and that the victims are not simply ‘faceless

strangers, ' "citing State v. Roberts, 948 S.W.2d 577, 604 (Mo.

banc 1997) (quoting Payne v. Tennessee, 501 U.S. 808, 825,

111 S.Ct. 2597, 115 L.Ed.2d 720 (1991)). The Missouri court

therein found that the record revealed the state explained the

hardships suffered by the victims' families as compared to

those borne by defendant. The prosecutor argued from

permissible victim impact evidence and did not, as defendant

complains, attempt to weigh the relative values of defendant's

life compared to others. The court found no abuse of discretion.

Compare, State v. Storey, 901 S.W.2d 886 (Mo. 1995)error

found).

In U.S. v. McVeigh, 153 F.3d 1166, 1176-1179 (10th

Cir.1998), the court found that numerous witnesses testified

about the professional and personal histories of victims who

perished in the bombing, including reflections on the admirable

qualities of the deceased. The 10" Circuit held that victim

histories revealed the unique qualities of a murdered individual

and his or her life accomplishments which constitute the core

impact evidence describing a victim's "uniqueness as an

individual human being" allowed by Payne. Payne, 501 U.S. at

823, 111 S.Ct. 2597; and cited Wiley v. Puckett, 969 F.2d 86,

105 (Sth Cir.1992) (victim's wife properly testified about places

she and her husband had lived and her husband's character).

In Smith v. State, 797 So.2d 503 ( Ala.Cr.App. 2000)

the court held that "a prosecutor may present and argue

evidence relating to the victim and the impact of the victim's

death on the victim's family in the penalty phase of a capital

trial."citing Hyde v. State, 778 So.2d 199 (Ala.Cr.App. 1998).

The Alabama court further held that the prosecutor may also

23

properly refer to the victim's characteristics at the sentencing

stage of a capital case. Payne, 501 U.S. at 824-25 [, 111 S.Ct.

2597]. The court determined that the holding in Payne v.

Tennessee, "was based in large measure on the premise that

this type of evidence related to the harm done by the defendant

and, consequently, was a valid consideration in determining

punishment to be imposed." ' Price v. State, 725 So.2d 1003,

1034 (Ala.Cr.App.1997), aff'd, 725 So.2d 1063 (Ala. 1998),

cert. denied, 526 U.S. 1133, 119 S.Ct. 1809, 143 L.Ed.2d 1012

(1999). The Court stated that it had reviewed the prosecutor's

allegedly improper remarks about [the victim] and concluded

that those comments were proper comments about her

characteristics. ' "The State has a legitimate interest in

counteracting the mitigating evidence which the defendant is

entitled to put in, by reminding the sentencer that just as the

murderer should be considered an individual, so too the victim

is an individual whose death represents a unique loss to society

and, in particular, [to the victim's] family." Moreover, the trial

court in this case instructed the jury that comments of counsel

were not evidence. See also Grey v. Bowersox, 281 F.3d 749

(8" Cir. 2002) (admission of evidence of victim’s political

activities and reference to it in closing not an Eighth

Amendment violation).

The Petitioner recognizes that there may be a conflict

within the lower court jurisdictions that it may be appropriate

for this Court to resolve. In the lower court, Hall contended that

the weight of other state court decisions is against the South

Carolina position. He relied upon some language from the

New Jersey Supreme Court opinion in State v. Koskovich, 168

N.J. 448, 776 A.2d 144, 183 (2001). The setting of the

language in Koskovich must be taken into account because the

jury was given an instruction to determine in a “weighing” state

that directed the jurors to weigh the victim impact evidence

against the characteristics of the defendant. Particularly

significant to the case, the New Jersey court noted that it had

24

earlier emphasized the limited role of victim impact evidence

to assist the jury in the catch mitigating factor and not as a

means a means “of weighing the worth of the defendant against

the worth of the victim.” Applying those tenets, the court

addressed the defendant's argument that the trial court

impermissibly instructed the jury to "balance" defendant's

background against that of the victim, Jeremy Giordano.” It

concluded that the instructions were in error because, in fact it

caused the evidence to be used for a different purpose in

weighing the existence of the statutory factors in violation of its

precedent. In addition, unlike Koskovich, the trial judge in Hall

also instructed the jury not to allow passion prejudice, bias, or

other arbitrary factor to affect their judgment. App.p.1575-76.

In the state court, Hall noted the relative scarcity of

cases concerning with “comparative worth” arguments being

raised as Payne violations. He suggested that this indicates that

prosecutors generally recognize that these arguments are

unacceptable and must be avoided. As with any layman

statistical evidence no such suggestion can be made. The same

assertion could be that prosecutors, defense counsel and courts

recognize that Payne allowed for evidence of the victim’s

unique characteristics to be presented to a capital jury, even

when the defendant’s own unique characteristics were also

presented to the jury. Second, these parties, as noted in the

Texas case in Jackson, that Payne declared “victim impact

evidence is not generally offered to encourage comparative

judgments that a capital defendant whose victims was an asset

to the community is more deserving of punishment than a

defendant whose victim is perceived to be less worthy, but is

designed instead to show each victim's uniqueness as an

individual human being, whatever, the jury might think of the

loss to the community resulting from the death.” This also did

not declare that it was constitutional improper to evaluate the

life of the victim and the life of the defendant. In fact, Payne

recognized that such information was constitutionally relevant.

a>

4. SUMMARY.

In summary, certiorari is warranted because the

Supreme Court of South Carolina misapprehended and

misapplied the precedent of this Court in the following

respects:

1. Misapplied Strickland in assessing counsel

performance in 1991 to require him to anticipate

the change in the law, a change not determined

until the instant decision as recognized by the

South Carolina Supreme Court’s own 2002

opinion as not existing at that time based upon

its review in 2002 of the Court’s own and U.S.

Supreme Court precedent.

2. Misapplied Payne v. Tennessee, in

apparently making a new constitutional standard

for closing arguments which forbid victim-

defendant comparisons when “clearly

established Supreme Court precedent does not

prohibit victim-to-defendant comparisons; they

are inevitable in any capital case in which the

jury is asked to assess the persuasive force of

the defendant's mitigating evidence and the

victim-impact evidence.”

3. Misapplied Strickland in its prejudice prong

analysis wherein it ignores the fact that had an

objection been made in 1991 and overruled by

then 1991 trial court under existing precedent, it

would have affirmed the sentence based upon its

own analysis as recognized in Humphries.

26

4. Since the argument was not constitutional

error, it could not be prejudicial under

Strickland.

5. A conflict exists among the jurisdictions on

whether victim-defendant comparisons are

prohibited under the Sixth, Eighth or Fourteenth

Amendments.

6. Even if error, the South Carolina Supreme

Court ignored that the brief comment was not

the focus of the argument, which involved

Hall’s resisting arrest, multiple crimes against

the victim and his own criminal history and

record. It is clear that in reviewing prosecution

arguments, a reviewing court must consider the

argument in its entirety to determine if the

references so infected the trial with unfairness

so as to deprive the defendant of due process,

Darden v. Wainwright, 477 U.S. 168 (1986).

The lower court’s narrow focus on these

comments alone did not review the argument in

its entirety.

27

CONCLUSION

For all the foregoing reasons, the petition for writ of

certiorari should be granted to review the judgement of the

Supreme Court of South Carolina.

December 8, 2004

Respectfully submitted,

HENRY D. McMASTER

Attorney General of South Carolina

JOHN W. McINTOSH

- Chief Deputy Attorney General

*DONALD J. ZELENKA

Assistant Deputy Attorney General

Columbia, South Carolina 29211

(803) 734-3601

(803) 734-3601

es

APPENDIX I

360 S.C. 353, 601 S.E.2d 335

Supreme Court of South Carolina.

Larry Eugene HALL, Petitioner,

Vv.

William D. CATOE, Director, South Carolina Department

of Corrections,

Respondent.

Ne. 25850.

Subriiuiea march 17, 2004.

Decided Aug. 9, 2004.

Rehearing Denied Sept. 9, 2004.

**336 *355 Teresa L. Norris and Jerome H. Nickerson, of the

Center of Capital Litigation, both of Columbia, for Petitioner.

Attorney General Henry Dargan McMaster, Chief Deputy

Attorney General John W. Mclntosh, Assistant Deputy

Attorney General Donald J. Zelenka, all of Columbia, for

Respondent.

*356 Chief Justice TOAL:

We granted certiorari to determine whether the post-

conviction relief (PCR) court erred by denying inmate Larry

Hall ("Hall") relief on the death sentence he received as a result

of a murder conviction. We remand Hall's case for a new

sentencing proceeding.

**337 FACTUAL/PROCEDURAL BACKGROUND

In July 1991, Hall committed a series of crimes in an

Easley Wal-Mart parking lot. To begin, Hall robbed and

sexually assaulted his first victim at gunpoint. Hall then

ordered her to walk to the back parking lot with him. A Wal-

Mart employee noticed Hall's strange behavior and drove a

truck through Hall and the victim's path. Hall allowed her to

escape and then walked into the woods behind the store waving

his gun in the air:

A half hour later, Hall approached two teenage girls,

who were sisters, in the back parking lot. In front of numerous

witnesses and without provocation, Hall shot and killed the two

girls. When the police arrived and finally cornered Hall, he

challenged the police with a piece of wood and dared the police

to shoot him.

Hall has both mental and physical disabilities. He

currently takes, and was taking during trial, Dilantin and

Phenobarbital to prevent epileptic seizures. Dilantin has a

sedative effect similar to the effects of alcohol. At the time of

his arraignment, Hall had twice the amount of Dilantin in his

bloodstream than the normal therapeutic amount. [FN1] Hall's

sister, mother, and former employer all testified that Hall's

seizures and medications make it very difficult for him to

complete simple everyday tasks and that he is often in a "daze"

or "in the fog." Hall has a "grossly abnormal" EEG, [FN2] as

the result of his having epilepsv.

FN1. Dr. James Brice, Hall's family physician, saw Hall

shortly after the court hearing. Dr. Brice ordered blood

tests, which revealed that Hall's Dilantin level was 39.

The normal therapeutic range is 10-20.

-C-

FN2. An EEG (electroencephalograph) monitors the

electric impulses of the brain, allowing doctors to detect

and diagnose brain dysfunction.

*357 Hall has been diagnosed with "sensory

dysfunction," deficient language abilities, and deficient

organizational abilities. He suffers from both organic

personality disorder--which may cause uncontrollable mood

shifts and outbursts of aggression--and schizoid personality,

which makes Hall indifferent to praise or punishment. Hall is

also borderline mentally retarded, having an IQ of 72.

In August 1991, six months before Hall's trial, a group

of doctors at the Hall Institute in Columbia evaluated Hall and

found him competent to stand trial. One doctor, however,

testified that Hall's competency was "borderline" and a "touch

and go" issue. Hall was not evaluated again before his trial.

During closing argument, the solicitor directed the jury

to weigh the worth of Hall's life against the lives of Hall's

victims: "[w]hat are the lives of these two girls worth? Are

they worth at least the life of a man, the psychopath, this killer

who stabs and stabs and kills and rapes and kidnaps?" Hall was

then convicted of murder, kidnapping, first-degree criminal

sexual conduct, armed robbery, and resisting arrest and was

sentenced to death.

Hall subsequently applied for PCR, and the PCR judge

denied relief directing the state to draft an order, which the trial

judge adopted in full, without alterations. This Court granted

certiorari to review the following issues:

I. Did the PCR judge err in applying a heightened burden of

proof to determine whether Hall was competent to stand trial?

=

-D-

II. Was Hall's trial counsel ineffective for failing to object to

the solicitor's closing argument, which compared the worth of

Hall's life to the victims' lives?

Ill. Did the PCR judge err in adopting the state's proposed

order in its entirety?

LAW/ANALYSIS

Standard of Review

[1] This Court must determine whether any probative

evidence exists to support the denial of post-conviction relief.

Cherry v. State, 300 S.C. 115, 119, 386 S.E.2d 624, 626 (1989).

*358 If any probative evidence exists, the PCR judge's ruling

should be upheld. Jd.

**338 I. COMPETENCY TO STAND TRIAL

A. Burden of Proof

[2] Hall argues that the PCR judge applied the wrong

standard of proof in deciding whether Hall was competent to

stand trial. We disagree.

[3][4] A defendant must prove that he is incompetent to

stand trial by a "preponderance of the evidence." State v. Reed,

332 S.C. 35, 39, 503 S.E.2d 747, 749 (1998). Holding a

criminal defendant to a "clear and convincing" burden to prove

incompetence is a violation of due process. Cooper v.

Oklahoma, 517 U.S. 348, 350, 116 S.Ct. 1373, 1375, 134

L.Ed.2d 498 (1996).

In his order, the PCR judge stated that Hall failed to

establish "with credible and convincing evidence" that he was

incompetent to stand trial. Hall argues that “credible and

convincing" evidence is synonymous with "clear and

-E-

convincing" evidence, which is not the appropriate standard of

proof for determining a defendant's competency to stand trial.

However, after reviewing the order in its entirety, we find that

the trial judge used the correct burden of proof--a

preponderance of the evidence. In fact, the PCR judge noted

several times that Hall must prove his incompetence by a

"preponderance of the evidence."

First, in his order, the PCR judge stated that "[i]n a state

post-conviction relief hearing, the Applicant also bears the

burden of proof and he is required to show by a preponderance

of the evidence that he is entitled to relief. Rule 71.1(e),

SCRCP. This Court finds that he has failed this burden."

Second, in finding that Hall was not prejudiced by

ineffective assistance of counsel, the PCR judge stated, "Hall

has a burden of proof at trial to show by a preponderance of the

evidence that he was incompetent. This Court finds, to a

reasonable probability, he has failed in his burden."

We note that the PCR judge's order should have been

amended to exclude the "credible and convincing" language,

alleviating any doubt concerning which standard the PCR *359

judge applied. Nevertheless, after reviewing the order in its

entirety, we find that the judge applied the proper standard--

preponderance of the evidence--to determine whether os was

competent to stand trial.

B. Evidence of Petitioner's Competency to Stand Trial

[5] On July 16, 1991, three days after Hall's arrest, the

trial court ordered Hall to be evaluated for his competency to

stand trial. A group of doctors at the Hall Institute found Hall

to be competent to stand trial, with one doctor reporting that

-F-

Hall's mental state was a "close call" and a "touch and go" issue.

Since the 1991 evaluations, the parties have accumulated a

mass of evidence and engaged in a "battle of the experts" as to

Hall's competency to stand trial. Hall argues that, although he

was found competent in August 1991, he was not competent

during his trial, which took place in January 1992. We find a

sufficient amount of evidence supporting the PCR judge's

conclusion that Hall was competent to stand trial.

[6] Conviction of a criminal defendant who is not

competent to stand trial violates the due process clause of the

fourteenth amendment. Pate v. Robinson, 383 U.S. 375, 86

S.Ct. 836, 15 L.Ed.2d 815 (1966). This Court has held that to

be competent to stand trial or continue trial, a defendant must

have "a rational, as well as factual, understanding of the

proceedings against him" and the "ability to consult with his

lawyer with a reasonable degree of rational understanding."

State v. Bell, 293 S.C. 391, 395-96, 360 S.E.2d 706, 708 (1987)

(citing Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788,

4 L.Ed.2d 824 (1960)).

[7] If there is "any evidence of probative value to

support the post conviction judge's factual findings," we must

affirm. Cherry, 300 S.C. at 119, 386 S.E.2d at 626.

Nevertheless, if the PCR judge makes an error of law, then this

Court must reverse. Pierce v. State, 338 S.C. 139, 145, 526

S.E.2d 222, 225 (2000). In addition, the PCR judge has the

duty to weigh the credibility of the doctors who have testified as

to Hall's competency to stand trial. If the testimony supports

the PCR judge's findings, then the findings should be upheld.

Solomon v. State, 313 S.C. 526, 443 S.E.2d 540 (1994); Wade

v. **339 State, 308 S.C. 552, 419 S.E.2d 781 (1992) (a finding

that testimony in *360 support of allegations was unconvincing,

without credibility, and untruthful will be upheld on appeal).

ie ‘

This Court has held that the PCR judge erred in granting

relief on the basis that the defendant was not competent to stand

trial when (1) counsel testified at the PCR hearing that he had

no trouble communicating with the defendant; (2) the trial

transcript showed that the defendant clearly understood the

questions asked and responded in an appropriate manner; and

(3) a forensic psychiatrist evaluated the defendant prior to trial

and found the defendant's medical conditions did not affect his

mental state. McLaughlin v. State, 352 S.C. 476, 575 S.E.2d

841 (2003).

Hall presents several arguments that he was incompetent

to stand trial: (1) he has been diagnosed with an antisocial

disorder; (2) his trial counsel testified that he believed that Hall

was not competent during trial; (3) Hall suffered from a seizure

the night before sentencing, indicating that he could have

experienced periods of incompetency; (4) during trial, he had

taken abnormal doses of Dilantin causing him to be groggy and

sedated; and (5) his low IQ indicates he has the intelligence of

an average eleven-year-old.

Conversely, the state presents a sufficient amount of

probative evidence that Hall was competent to stand trial: (1)

in August 1991, several psychologists conducted an extensive

evaluation of Hall and found him to be competent to stand trial;

(2) Dr. McKee, who evaluated Hall from July 23, 1991 to

August 8, 1991, found that "his answers to his questions were

well associated, goal directed and relevant; there was no

evidence of delusional thinking" and that he was capable of

"understanding and participating in his defense and is capable

of understanding the charges against him"; (3) one of Hall's

defense counsel, Dallas Ball, testified in a May 29, 1997

deposition that "[{iJn the discussions with Mr. Hall throughout

the case ... [Hall] understood what he was facing, and he

. 3

listened to the testimony each day as to what was said against

him, and he understood what was going on"; (4) during the

PCR hearing, defense counsel, Christopher Olson (Olson),

testified that Hall told him that he shot the other girl because

she was an eyewitness to the first shooting, indicating that Hall

knew the consequences of his actions; and (5) Olson also *361

testified that none of the doctors indicated any need to

reevaluate Hall before trial.

We find that a sufficient amount of probative evidence

exists to support the PCR judge's ruling that Hall was

competent to stand trial. Moreover, given that the PCR applied

the correct burden of proof, we hold that the PCR judge

correctly determined that Hall was competent to stand trial.

II. CLOSING ARGUMENT

[8] Hall argues that trial counsel was ineffective because

counsel failed to object when the solicitor made the following

statement in his closing argument:

I am talking about values, because a jury verdict is a

statement of values. And I am not talking about dollars and

cents as far as what the [lives of the two girls were] worth, but

nevertheless it is a question of values. What are the lives of

these two girls worth? Are they worth the life of this man, the

psychopath, this killer who stabs and stabs and kills, and

rapes and kidnaps.

Hall argues that his trial counsel's failure to object

allowed the solicitor to charge the jury with an arbitrary,

misconceived sentencing analysis, violating Hall's right to due

process. We agree.

is

[9}[{10] A criminal defendant is constitutionally entitled

to effective representation. Rogers v. State, 261 S.C. 288, 199

S.E.2d 761 (1973). In order to find trial counsel ineffective,

this Court must find that counsel's conduct was deficient and

that the deficiency prejudiced the outcome of the trial.

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984).

In the past, the United States Supreme Court (USSC)

did not explicitly recognize the state's right to offer victim

impact evidence in a criminal trial. In Booth v. Maryland, the

USSC "left open the possibility that the kind of information

contained in victim impact statements could be admissible if it

‘related directly to the circumstances of the **340 crime.'" 482

U.S. 496, 507, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987)).

Additionally, in South Carolina v. Gathers, the USSC affirmed

this Court's ruling that "victim impact statements in capital

sentencing proceeds violate [the] principle that a sentence of

death must *362 be related to the moral culpability of the

defendant." 490 U.S. 805, 810, 109 S.Ct. 2207, 104 L.Ed.2d

876 (1989).

But in 1991, the USSC overruled Gathers and Booth,

holding:

if the State chooses to permit the admission of victim impact

evidence and prosecutorial argument on that subject, the

Eighth Amendment erects no per se bar. A state may

legitimately conclude that evidence about the victim and

about the impact of the murder on the victim's family is

relevant to the jury's decision as to whether or not the death

penalty should be imposed. There is no reason to treat such

evidence differently than any other relevant evidence is

treated.

ide

Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115

L.Ed.2d 720 (1991).

[11] In other words, "[v]ictim impact evidence, as any

other relevant evidence, is admissible so long as it is not so

unduly prejudicial that it renders the trial fundamentally unfair."

Id. However, "[a]s a general matter, victim impact evidence is

not offered to encourage comparative judgments of this kind--

for instance, that the killer of a hardworking, devoted parent

deserves the death penalty, but that the murderer of a reprobate

does not." Jd. at 823, 111 S.Ct. at 2607 (emphasis added).

Under a similar line of reasoning, this Court held that a criminal

defendants reprehensibility was not mitigated by the fact that

the victim was a murderer himself. State v. Gaskins, 284 S.C.

105, 326 S.E.2d 132 (1985).

At first glance, our decision in Humphries v. State

appears to allow a solicitor to compare the lives of a criminal

defendant with that of the defendant's victim. 351 S.C. 362,

376, 570 S.E.2d 160, 168 (2002). Nonetheless, we do not

extend Humphries to permit the state to encourage the jury to

compare the worth of a defendant's life with that of his victims.

In Humphries, we upheld Humphries's death sentence and held

that the solicitor's comparison of the lives of Humphries and his

victim was within the realm of permissible victim impact

evidence. In Humphries, defense counsel, attempting to

mitigate the effects of the state's evidence concerning the

brutality *363 of the murder, elicited testimony that Humphries

was a victim of parental abuse, substance abuse, and poverty as

a child. [FN3]

FN3. Humphries presented thirteen witnesses who

testified as to his cruel childhood.

-K-

In his closing argument, the solicitor responded by

comparing the lives of Humphries and his victim. Although

both Humphries and his victim were reared in impoverished

conditions, Humphries was in and out of jail while the victim

maintained an ordinary, crime-free life. We held that the

solicitor's argument was permissible victim impact evidence.

[FN4]

FN4. We recognize that the Fourth Circuit recently

granted Humphries federal habeas corpus, finding that

the state (1) compared the worth of Humphries's life

with that of his victim and (2) did so for the primary

purpose of "exhort[ing] the jury to return a death

sentence on the basis of the [defendant's] relative lack of

worth." Humphries v. Ozmint, 366 F.3d 266, 271 (4th

Cir.2004). We also take notice that the Fourth Circuit

granted the state's petition for rehearing en banc and

will rehear the case in October 2004. Nevertheless, we

disagree that the victim-defendant comparison found in

our account of Humphries is as prejudicial as the

comparison in the present case. We continue to

distinguish the facts of Humphries with that of the

present case and maintain that these factual differences

yield a different result as a matter of law. Our

interpretation of the law coincides most congruently

with Senior Judge Hamilton's dissent in the Fourth

Circuit's recent account of Humphries:

[A]llowing the introduction of victim-impact evidence

does not, and should not, open the door to

evidence/argument ultimately allowing the jury to make

a comparative inquiry between the victim and other

victims in society, as the court in Payne apparently

recognized.

Ee

. Put simply, clearly established Supreme Court

precedent does not prohibit victim-to-defendant

comparisons; they are inevitable in any capital case in

which the jury is asked to assess the persuasive force of

the defendant's mitigating evidence and the victim-

impact evidence.

Id. at 288.

We recognize that those victim-to-defendant

comparisons that render a trial fundamentally unfair and

those victim-to-defendant comparisons that are

permissible are not always clearly distinguishable. A

comparison that constitutes permissible victim-impact

evidence is not as prejudicial to a defendant as a

comparison that imposes, what in effect is, an arbitrary,

unfounded jury charge.

**341 Again, the solicitor's argument in Hall's trial is

distinguishable from the solicitor's argument in Humphries.

In Humphries we recognized that it is more prejudicial

for the state to compare the worth of the life of the defendant

*364 with that of his victim than it is to compare their lives

based on the evidence presented. /d. at 374, 570 S.E.2d at 167-

168. In the present case, the solicitor not only suggested that

Hall's life was worth less than his victims’, he developed an

arbitrary formula whereby if the jury finds Hall's life worth less

than his victims’, then the jury could reach no other conclusion

than that the death penalty is justified.

Further, while the solicitor in Humphries compared the

histories of Humphries's and his victim's lives, the solicitor in

Hall asked the jury to compare the worth of Hall's life with that

of his victims’.

-M-

We hold that the solicitor impermissibly compared

Hall's life to the victims' lives. We find that the solicitor's

comparison (1) was so emotionally inflammatory that it became

a material part of the jury's deliberation process; (2)

unquestionably directed the jurors to conduct an arbitrary

balancing of worth, which required that Hall be sentenced to

death if the jury found Hall's life was worth less than the lives

of his victims; (3) is totally unrelated to the circumstances of

the crime; and (4) is distinguishable from traditional impact

evidence in that it was not actually offered to show the impact

of the crime on tie victims or the victims’ family.

For these reasons, we hold that Hall was denied his

constitutional right to effective assistance of counsel when his

trial counsel failed to object to the solicitor’s comparison

between the worth of Hall's life and the lives of the victims.

Ill. ADOPTION OF THE STATE'S PROPOSED ORDER IN

FULL

[12] Hall argues that the PCR judge erred in adopting

the state's proposed order because the order did not resolve

issues of fact, indicating that the judge did not render an

independent judicial judgment. We disagree.

The commentary to South Carolina Appellate Court

Rule 501, Canon 3 B(7)(e) provides that "[a] judge may request

a party to submit proposed findings of fact and conclusions of

law, so long as the other parties are apprised of the request and

are given an opportunity to respond to the proposed findings

and conclusions." Further, in Pruitt v. State, this Court directed

that:

-N-

*365 [c]Jounsel preparing a proposed order should be

meticulous in doing so, opposing counsel should call any

omissions to the attention of the PCR judge prior to issuance

of the order, and the PCR judge should carefully review the

order prior to signing it. Moreover, after an order is filed,

counsel has an obligation to review the order and file a Rule

59(e), SCRCP, motion to alter or amend if the order fails to

set forth the findings and the reasons. for those findings as

required by § 17-27-80 and Rule 52(a), SCRCP....

310 S.C. 254, 256, 423 S.E.2d 127, 128 (1992).

On November 12, 1999, after receiving a request from

the PCR judge to do so, the state submitted a proposed order to

both the judge and opposing counsel. On November 14, 1999,

the PCR judge told the parties that he would "carefully review

the proposed order and insure that the facts and conclusions of

law are as I find them to be." |

[13] Although we strongly encourage PCR judges to

draft their own findings of fact and conclusions of law in death

penalty cases, we also acknowledge that in all other cases, it is

common practice for judges to ask a party to draft a proposed

order for the sake of efficiency. In the present case, the

evidence sufficiently indicates that the PCR judge spent an

adequate amount of time reviewing the order before adopting it.

Further, Hall waived his right to make this challenge when he

failed to file a motion to alter or amend the order. Jd.

**342 CONCLUSION

We REVERSE the PCR court on the basis that Hall's

counsel was ineffective for not objecting to the solicitor's

closing argument, which included an instruction to the jury to

-O-

compare the worth of Hall's life with the lives of his victims.

Accordingly, we REMAND for a new sentencing proceeding.

Finally, we affirm the PCR judge's ruling on the remaining

issues.

MOORE, WALLER, BURNETT and PLEICONES, JJ.,

concur.

-P-

APPENDIX II

LETTER ORDER DENYING PETITION FOR REHEARING -

September 9, 2004

The Supreme Court of South Carolina

Daniel E. Shearouse

Clerk of Court

September 9, 2004

Assistant Deputy Attorney General Donald J. Zelenka

Office of the Attorney General

P.O. Box 11549

Columbia, South Carolina 29211

Re: Hall, Larry Eugene v. Catoe, William

Dear Counsel:

The Court Issued the following Order on your Petition for

Rehearing in the above matter:

“Petition for Rehearing is denied.

s/ Jean Toal C.J

s/ James E. Moore J.

s/ John H. Waller Jr. a

s/ E. C. Burnett, I J.

s/ Costa M. Pleicones J.

September 9, 2004"

The remittitur is today being forwarded to the lower court.