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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2005
- **Citation:** 544 U.S. 992

## Text

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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peo ee Pr ee Pert rr rr er er rere ili
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
GE 00606 cukSe sdb dade eends weeaasdahaaan 27
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

Be ln OP EE 0 4.0 ccceckencendudsennessesenuanes l
Cae SESS ova ncchdonbadosdesecesasaan 8
STATE STATUTES

BL. Cafe Aan. 6 1G DI6 CID oo ccncccdccesscetccss 5

|

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1195%3A1. Public record. Not legal advice.