# Opposition Brief — Ozmint, Director, South Carolina Department of Corrections v. Hall

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1195%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2005
- **Citation:** 544 U.S. 992

## Text

™.,

Supreme Court, U_s.

2 FILED
FEB 1 0 2005
04-808 OFFICE OF THE CLERK

IN THE SUPREME COURT OF THE UNITED STATES

JON A. OZMINT, Director, South Carolina Department of Corrections,
Petitioner and Cross-Respondent,

=

LARRY EUGENE HALL,
Respondent and Cross-Petitioner.

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

Respondent and Cross-Petitioner, Larry Eugene Hall, through the undersigned counsel, asks
leave to file the Brief in Opposition to the Petition for a Wnt of Certiorari and to proceed in forma

pauperis.

Hall was declared indigent prior to his trial in 1992. He has remained indigent and
represented by court-appointed counsel since that time. He was previously granted leave to proceed
in forma pauperis before this Court following affirmance of his convictions and death sentence by
the South Carolina Supreme Court. Hail v. South Carolina, 512 U.S. 1246 (1994). He was also
recently granted leave to file a Conditional Cross-Petition in forma pauperis.

Because of Hall’s poverty, he is unable to pay the costs of these proceedings or give security

therefor. An affidavit from Mr. Hall and an explanatory affidavit from the undersigned counsel are
attached. An affidavit from Mr. Hall’s appointed guardian, Desa A. Ballard, in support of this

motion was previously submitted.

TERESA L. NORRIS

Center for Capital Litigation
P.O. Box 11311

Columbia, SC 29211
(803)765-0650

COUNSEL FOR LARRY HALL.

February /6 , 2005.

04-808

IN THE SUPREME COURT OF THE UNITED STATES

JON A. OZMINT, Director, South Carolina Department of Corrections,
Petitioner and Cross-Respondent,

¥.

LARRY EUGENE HALL,
Respondent and Cross-Petitioner.

AFFIDAVIT OF TERESA L. NORRIS

I, Teresa L. Norris, being first duly sworn, depose and say that I am a member of this Court’s
bar. | have been court-appointed counsel for Larry Eugene Hall, the Respondent and Cross-Petitioner
in the above-entitled case, for the last 10 years.

On January 12, 2005, | submitted a conditional cross-petition for certiorari accompanied by
a motion to proceed in forma pauperis for the cross-petition and the brief in opposition to the State’s
petition. I also submitted an affidavit from Mr. Hall’s guardian reciting the facts necessary to
establish .4r. Hall’s indigence. On January 21, I was informed by Clayton Higgins of the Clerk’s
» 2 that I needed to obtain Mr. Hall’s signature on an affidavit. I explained to Mr. Higgins that I
Jo uot believe that Mr. Hall is mentally competent to understand the nature of these proceedings and
that is why his guardian was asked to submit the affidavit. I was informed that I still needed to obtain
an affidavit from Mr. Hall and that I should provide any explanation necessary in my own affidavit.
I was also informed that I should submit separate motions and affidavits for the cross-petition and
the bref in opposition.

With the assent of Mr. Hall’s guardian, Desa Ballard, Esq., | have obtained Mr. Hall’s
signature on the affidavit of indigence, which is attached.

I declare under penalty of perjury that the foregoing is true and correct.

Z fr,

TERESA L. NORRIS

SWORN to and subscribed before me
this \CX" dayorf lel. _, 2005.

Weckaatodh utd

Notary Publi iva
Gy Comalanin Expires: 6 U4 i oY

AFFIDAVIT OR DECLARATION
IN SUPPORT OF MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

1 Lacey Hall , am the petitioner in the above-entitled case. In support of
my motion to profed in forma pauperis, I state that because of my poverty I am unable to pay
the costs of this case or to give security therefor; and I believe I am entitled to redress.

1. For both you and your spouse estimate the average amount of money received from each of
the following sources during the past 12 months. Adjust any amount that was received
weekly, biweekly, quarterly, semiannually, or annually to show the monthly rate. Use gross
amounts, that is, amounts before any deductions for taxes or otherwise.

income source Average monthly amount during Amount expected

the past 12 months i next month
You Spouse | You Spouse
Employment $ ala ¢$ al4 $ ala ¢ 2/4
Self-employment $ nh $¢ nla $ ala $ ALG

Income from real property $ ak $ nla $ ale $_4 (4
(such as rental income)

Interest and dividends s_ nly $__nla $_ala ¢_nla
Gifts $_39.00 § al ¢ 30.0% ¢ Ala
Alimony $__ala $_n(a $_ala ¢_ tla
Child Support $__ als $ 4/a $ 7/4 $ nla
Reticament (such as social $a $_4¢ § Ae $§_nla

security, pensions,
annuities, insurance)

Disability (such as social s_al4 $ Wc ¢$_ alg $__a/a
security, insurance payments)

Unemployment payments $_n/4 $ n/4 $ Nia $ HA
Public-assistance a $_nlq s_ nla $ nla
(such as welfare) ‘

Other (specify): $__n/a s_nh s_nia $¢ hla

Total monthly income: $3290 ¢ a/« $¢_ 30009 ¢ 2/4

2. List your employment history for the past two years, most recent first. (Gross monthly pay
is before taxes or other deductions.)

Employer Address nor of Gross monthly pay
nla $
$
$

3. List your spouse’s employment history for the past two years, most recent employer first.
(Gross monthly pay is before taxes or other deductions.)

Employer Address Dates of Gross monthly pay
Employment
ale $
$
$

4. How much cash do you and your spouse have? $
Below, state any money you or your spouse have in bank accounts or in any other financial
institution.

me" institution Type of account Amount you have Amount your spouse has
A $ $

$ -
$ S.

5. List the assets, and their values, which you own or your spouse owns. Do not list clothing
and ordinary household furnishings.

CJ Home C Other real estate
Value Value

C2 Motor Vehicle #1 C Motor Vehicle #2
Year, make & model Year, make & model
Value Value

wy Other assets
Description _ Praon Carteen
Value_@gprtoy $19 90

6. State every person, business, or organization owing you or your spouse money, and the
amount owed.

Person owing you or Amount owed to you Amount owed to your spouse
your spouse money
AIG $ $

¢
‘ °

7. State the persons who rely on you or your spouse for support:
Name Relationship Age
nla

8. Estimate the average monthly expenses of you and your family. Show separately the amounts
paid by your spouse. Adjust any payments that are made weekly, biweekly, quarterly, or
annually to show the monthly rate.

You Your spouse

Rent or home-mortgage payment / :
(include lot rented for mobile home) $_ 4/4 3 als

Are real estate taxes included? () Yes (J No

Is property insurance included? (Yes () No
Utilities (electricity, heating fuel,
water, sewer, and telephone) 3 nla $ nla
Home maintenance (repairs and upkeep) $_ nla $ ala
Food ¢ nla g nla
Clothing $__ fia s_a/4.
Laundry and dry-cleaning sal s_nl4

Medical and dental expenses $ nla $ nla

You Your spouse
Transportation (not including motor vehicle payments) $ nl4 & ala
Recreation, entertainment, newspapers, magazines, etc. $. no $_ fA fa,

Insurance (not deducted from wages or included in mortgage payments)

Homeowner’s or renter’s $ nla $ ala ' °
~~~ $s nla $_ ala
Health — — $__alh $__al4
Motor Vehicle $__ Na $_ Ala’
Other: s_ wa s__ Alan
Taxes (not deducted from wages or included in mortgage payments) |
(specify): s__ Na s_ nla
Installment payments
Motor Vehicle $s nla 3 nla
Credit card(s) $a $__ala
Department store(s) $s nla s_ nla
Other. ¢ ala ¢ nla
Alimony, maintenance, and support paid to others $_ Nila $ ala
Regular expenses for operation of business, profession, re
or farm (attach detailed statement) $__alu $__mitA
Other (specify): (asmiches $_ 30.90 & eS
Total monthly expenses: $_ 39.99 $_ fla

9. Do you expect any major changes to your monthly income or expenses or in your assets or
liabilities during the next 12 months?

O Yes (No If yes, describe on an attached sheet.

10. Have you paid — or will you be paying - Oe Oe ee ee :
with this case, including the completion of this form? O Yes [Y¥'No

If yes, how much?

If yes, state the attorney’s name, address, and telephone number:

11. Have you paid—or will you be paying—anyone other than an attorney (such as a paralegal or
a typist) any money for services in connection with this case, including the completion of this

form?
Sa,
0 Yes of No

If yes, how much?

If yes, state the person’s name, address, and telephone number.

12. Provide any other information that will help explain why you cannot pay the costs of this case.
Ll hawe been on deth pas ence /99/

I declare under penalty of perjury that the foregoing is true and correct.

Executed on: Tanah S.. mee

aoe

No. 04-808

IN THE
SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2004

JON E. OZMINT, Director, South Carolina Department of Corrections,
Petitioner,

LARRY EUGENE HALL,
Respondent.

BRIEF IN OPPOSITION

TO PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF SOUTH CAROLINA

CAPITAL CASE

TERESA L. NORRIS

Center for Capital Litigation
P.O. Box 11311

Columbia, South Carolina 29211
(803) 765-0650

CAPITAL CASE

QUESTION PRESENTED

Whether the Supreme Court of South Carolina erred in ordering resentencing in a capital case
in which, seven months after this Court decided Payne v. Tennessee, defense counsel failed
to object to a prosecutor’s closing argument that the state supreme court found, on the facts
of the particular case, was objectionable beveuse —in Payne ’s plain terms — it was so unduly

prejudicial as to offend Due Process.

INTERESTED PARTIES

The following parties in addition to chose named in the caption have an interest in the
proceeding:

Desa A. Ballard, Esq.

226 State Street

West Columbia, SC 29169
phone: (803) 796-9299
fax: (803) 796-1066

(By order of the South Carolina Supreme Court dated August 4, 2004, attorney Ballard was
appoit..*d guardian for Larry Hall in his successor post-conviction relief action pending
before the Court of Common Pleas of Pickens County, pursuant to Rule 1.14(b) of the Rules
of Professional Conduct, Rule 407, SCACR.)

The State of South Carolina

li

TABLE OF CONTENTS
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iii

TABLE OF AUTHORITIES

FEDERAL CASES
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aie e. TR, STG Te SED sess inchoedi cccccssantincepntcceeaninnianiniente 8
Humphries v. Ozmint, 2005 *V.L. 26794 (4th Cir. Feb. 4, 2005) (en banc) .........:ccecceee 6
PE EFI, Fer Ree saa ena elaieennteernivcnninieeeniatenncmieeleetonins ie Se
Soe Catia v. Gar, SI OD. Be CEG D seisscsintcctnmnsisnantenarctqrcaniniuniennncetaeetoon l
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STATE CASES
Hall v: Cato, 360: S.C. S55, COU SEZ S55 GOOD eiccsncessnesnsntisonancacaniincanibinernane aya t
Humphries v. State. SO TG See oe eee Fe CED Shits pedeaicinrdcniicnseincdeaniens 6
Shase v. Soles: 306 SC. TED, SIO BO S67 ED ehietaisciccditctdsremricecettedninien 2,8
State v. Southerland, 316 S.C. 377, 447 S.E.2d 862 (1994) uu... ee ccsccesecesessseeerseseees 6
sete v.. Feater, 24 SA. 155, SFE Dae OO LOD dep ctciciccsipwisscetieksncssactstichsssemsinitaans 7

BRIEF IN OPPOSITION TO WRIT OF CERTIORARI

Petitioner Ozmint (hereafter “the State”)' has filed this petition for certiorari seeking
review of a decision of the Supreme Court of South Carolina ordering a new capital
sentencing hearing for Respondent, Larry Eugene Hall (hereafter “Hall”).

The Supreme Court of South Carolina held that the prosecutor’s use of victim impact
evidence during closir.* argument was unduly prejudicial and that Hali’s lawyer rendered
ineffective assistance of counsel in failing to object to it. In an effort to make the case appear
cert.-worthy, the State’s petition attributes to the state court rulings that the court never made
and indeed explicitly rejected. The actual basis for the decision below is a fact-bound, case-
specific ruling that presents no issue warranting this Court’s consideration on certiorari.

STATEMENT OF THE CASE

On June 27, 1991, this Court decided Payne v. Tennessee, 501 U.S. 808. That
decision overruled the Court’s earlier holdings in Booth v. Maryland, 482 U.S. 496 (1987)
and South Carolina v. Gathers, 490 U.S. 805 (1989) that the Eighth and Fourteenth
Amendments erected a categorical bar against “the admission of victim impact evidence and
prosecutorial argument on that subject.” Payne, 501 U.S. at 827. The Court in Payne said:

“In the majority of cases ... victim impact evidence serves entirely legitimate

purposes. [n the event that evidence is introduced that is so unduly prejudicial

that it renders the trial fundamentally unfair, the Due Process Clause of the
Fourteenth Amendment provides a mechanism for relief.”

‘Since Ozmint is the Director of the South Carolina Department of Corrections appearing
in his official capacity and represented by the State Attorney General, it will be clearer to refer to
the Petitioner simply as “the State.”

Payne, 501 U.S. at 825. The Payne opinion carefully explained the legitimate purposes for

victim impact evidence in responding to the

“concern voiced in Booth’s case that the admission of victim impact evidence
permits 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. Booth, ... 482 U.S., at 506, n. 8. As 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. It is designed to show instead each victim’s ‘uniqueness as an individual
human being, whatever the jury might think the loss to the community
resulting from his death might be.”

Payne, 501 U.S. at 823.

On October 7. 1991. the Supreme Court of South Carolina filed its opinion in State

v. Johnson, 306 S.C. 119.410 S.E.2d 547, spelling out the relevance of Payne to future South

Carolina capital sentencing hearings.

“Recently. in Payne v. Tennessee, ... the United States Supreme Court restated
the law regarding evidence and arguments as to the impact of the crime on the
victim and the victim's family. In that opinion, the High Court for the first
ume held that in a capital sentencing proceeding such evidence is not per se
inadmissible pursuant to the eighth amendment. The Court noted that ‘the true
measure of crimes is the injury done to society.”

Johnson, 306 §.C. at 132, 410 S.E.2d at 555. The state court announced that victum impact

evidence would be admissible under South Carolina criminal law, quoting Payne as follows:

“We thus hold 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. 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
other relevant evidence is treated.”

Id.

On January 24, 1992, the penalty phase of Hali’s capital murder tial began. During
closing argument, the solicitor argued that:

“Every time a jury sits something special happens, and I am not talking about

duty. I am talking about values, because a jury verdict is a statement of

values.”
App. 1568. He then proceeded to describe the “values” that the jury should declare through
its verdict:

“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 kiils

and rapes and kidnaps? The defense will say, well, taking his life will not

bring these girls back. That is not what I am talking about folks. [ am simply

saying how profane, how profane to give this man a gift of life of twenty years

or thirty years, however long it would be before he got out...”
Apo. 1568-1569. Defense counsel at this point objected to the mention of twenty or thirty
years, the trial judge acknowledged that he would charge the law, and the solicitor proceeded
with his closing argument uninterrupted. App. 1568-69.

REASONS FOR DENYING THE WRIT

Tie State’s entire argument for certiorari depends on reading the South Carolina

Supreme Court decision as expanding Payne v. Tennessee, 501 U.S. 808 (1991), and

revoactively finding ineffective assistance of counsel under Strickland v. Washington, 466

U.5. 668 (1984), based on this expansion. Both of these readings are manifestly wrong.

What the South Carolina Supreme Court below held — and so explicitly as to make
any other reading a plain distortion of both text and law — was that the prosecutor’s closing
argument was sufficiently prejudicial as to have violated Hall’s right to due process, Hall v.
Catoe, 360 S.C. 353, 364, 601 S.E.2d 335, 341 (2004), a ground of objection identified in
the Payne opinion seven months before Hall’s sentencing trial. Hall’s lawyer was held
ineffective for failing to make this objection despite the unfairly prejudicial nature of the
argument. The State’s efforts to strain this narrow finding into a broad rule of law that would
expand the protections afforded future South Carolina defendants under Payne are
disingenuous.

The state court began its analysis by recapitulating the relevant, uncontroversial law
regarding ineffective ass .ance of counsel.

“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 tral

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 (1984).”

360 S.C. at 361, 601 S.E.2d at 339. Under this standard it concluded that trial counsel’s
failure to object to a prosecutorial argument which was so prejudicial that it should have
alerted counsel to an objection spelied out in those precise terms on the face of the Payne

opinion itself denied Hall his constitutional right to effective assistance of counsel. /d.

To explain why the prosecutor’s argument came within the Due Process prohibition

recognized in Payne, the state court identified four impermissible characteristics of the

7m

prosecutor’s appeal to “values” in asking the jury to base a death sentence on a comparison
between the worth of Hall’s life and that of his victims:
“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; afd (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.”
360 S.C. at 364, 601 S.E.2d at 341. The impermissibility of each of these characteristics
derives directly from this Court’s explication of the permissible uses of victim impact
evidence in Payne.’
In assessing trial counsel’s failure to object, the Supreme Court of South Carolina did
not “deem|[]” “Trial Counsel in 1991 ... deficient in not anticipating ... [a] 2004 change
... [in the law of] Payne” (Petition for Certiorari, pp. 9-10) (emphasis in original). The

court did not base its finding on any law established subsequent to Payne itself. Nor, indeed,

2 Each facet of Hall’s holding quoted immediately above tracks this Court’s language in
Payne: (1) “In the event that evidence is introduced that is so unduly prejudicial that it renders the
trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a
mechanism for relief.” Payne, 501 U.S. at 825; (2) “As a general matter, however, victim impact
evidence is not offered to encourage comparative judgments ... [but] to show instead each victim’s
‘uniqueness as an individual human being.” Payne, 501 U.S. at 823; (3) “Victim impact evidence
is simply another form or method of informing the sentencing authority about the specific harm
caused by the crime in question, evidence of a general type long considered by sentencing
authorities.” Payne, 501 U.S. at 825; (4) “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.” Payne, 501 U.S. at 827.

has there been any change in the South Carolina Supreme Court’s interpretation of Payne.’
The State’s reliance on Humphries v. State, 351 S.C. 362, 570 S.E.2d 160 (2002), to
demonstrate a change is particularly misplaced because the holding in Humphries that Payne
does not prohibit comparisons between the defendant and the victim as such was explicitly
reaffirmed in Hail and found consistent with the Hail decision. 360 S.C. at 363 n.4, 601
S.E.2d at 340 n.4. The South Carolina Supreme Court ruled that “the solicitor’s argument
in Hall’s trial is distinguishable from the solicitor’s argument in Humphries” (360 S.C. at
363, 601 S.E.2d at 341) and that the particular argument made in Hall was unduly
prejudicial.*

The State simply misdescribes the Hail decision that it asks this Court to review. In
its petition for certiorari, the State describes the Hail case as aberrant and as holding “that
victim-defendant comparisons are improper.” This is not the holding of Hall. The South
Carolina Supreme Court in Hail states unequivocally that it is holding the prosecutor’s
closing argument improper not because it compared victim with defendant, but because it did

so in a way that was impermissible and prejudicial.’ The State itself recognizes this

* Indeed, in 1994, the South Carolina Supreme Court explicitly held that “a court may admit
evidence of the specific harm done by a defendant so that a jury may meaningfully consider the
defendant's blameworthiness at the sentencing phase of trial.” but specified that such material should
not be used “to encourage comparative character analysis.” State v. Southerland, 316 S.C. 377, 385,
447 S.E.2d 862, 867 (1994).

* This was also the reading of the South Carolina Supreme Court’s Hall and Humphries
decisions by the Fourth Circuit en banc, denying Humphries federal habeas relief in Humphries v.
Ozmint, 2005 W.L. 26794 *15-16 (4th Cir. Feb. 4, 2005) (en banc)).

*“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

6

distinction under Payne through its repeated citation of State v. Tucker: “Victim impact
evidence is clearly admissible because it slows [sic] the victim’s uniqueness as an individual
so long as it does not render the trial unfair.” Petition for Certiorari, p. 14 (emphasis
added) (citing State v. Tucker, 324 S.C. 155, 478 S.E.2d 260 (1996)).

The Supreme Court of South Carolina carefully observes this distinction and twice
explains in Hall how its decisions in Hall and Humphries are consistent. First, it reiterates
that its decision in Hall does not announce any general prohibition of victim-to-defendant
comparisons. 360 S.C. at 363, 601 S.E.2d at 340. Second, it points to the facts of Humphries
to explicate by contrast the prejudicial nature of the solicitor’s argument in Hall. Id at 363-
364, 601 S.E.2d at 340-341. It ultimately concludes:

“(W]e disagree that the victim-defendant comparison found in our account of

Humphries is as prejudicial as the comparison in [Hall]. We continue to

distinguish the facts of Humphries with that of the present case and maintain

a factual differences yield a different interpretation as a matter of
360 S.C. at 363 n.4, 601 S.E.2d at 340 n.4. Yet, despite this unambiguous declaration, the
State asks this Court to review Hall on the theory that Hall changes the law that Humphries

declared “as recently as 2002.” Petition for Certiorari, p. 11.”

victims’, then the jury could reach no other conclusion than that the death penalty is justified.” 360
S.C. at 364, 601 S.E.2d at 340.

° The State goes so far as to claim that the sentence in Hail would have been affirmed by the
South Carolina Supreme Court “based on its own analysis as recognized in Humphries” (Petition
for Certiorari, p. 25) despite the repeated assertions of that very court that the two cases are
consistent.

The State is obviously right that the performance of Hall’s trial counsel cannot be
judged by hindsight from 2004, but it is altogether wrong in claiming that this is what the
South Carolina Supreme Court did. Rather, a correct understanding of the history of Payne’s
reception into South Carolina jurisprudence — as opposed to the State’s revisionist history —
weighs heavily in support of the state court’s finding of ineffectiveness.

Hall was tried a mere seven months after this Court decided Payne. As the State’s
brief indicates, the Supreme Court of South Carolina in this interim approved the use of
victim impact evidence in Johnson. 306 S.C. at 132, 410 S.E.2d at 555. In light of these
developments, any adequate defense counsel facing a capital prosecution for the murder of
two young girls would have read the Payne opinion. The face of this opinion — and, for good
measure, even the sy//abus — articulates not only the ground for, but also the name of the
objection that Hall's attorney failed ‘“ make. Its reminder that evidence “is admissible so
long as it is not so unduly prejudicial that it renders the trial fundamentally unfair,” Payne,
501 U.S. at 825, was no mysterious clue requiring prescience to unravel. Payne itself quoted
this familiar rule from Darden v. Wainwright, 477 U.S. 168, 179-183 (1986).

In the wake of Payne’s explicit reference to Darden, any competent defense attorney
trying a capital case in 1991 and confronted with a prosecutor’s argument urging the jury to
render through its verdict a “statement of values” and to assess whether the lives of the
victims were “worth” that of defendant Hall would have been alerted to object. That is all

the South Carolina Supreme Court below held, and its ruling to this effect presents no case

for certiorari.

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

Respectfully submitted,

ic

TERESA L. NORRIS

Center for Capital Litigation
P.O. Box 11311

Columbia, South Carolina 29211
(803) 765-0650

Counsel for Respondent/Cross-Petitioner
Larry Eugene Hall

February /o. , 2005.

04-808

IN THE SUPREME COURT OF THE UNITED STATES

JON A. OZMINT, Director, South Carolina Department of Corrections,
Petitioner and Cross-Respondent,

v.

on

LARRY EUGENE HALL,
Respondent and Cross-Petitioner.

CERTIFICATE OF SERVICE

I certify that I have served upon the attorney for the Petitioner a copy of the Brief in
Opposition to the Petition for Writ of Certiorari and a copy of the Motion for Leave to Proceed In
Forma Pauperis in this action. Service was made by U.S. mail, first class, postage prepaid, to Donald
J. Zelenka, Esq.. Assistant Deputy Attorney General of South Carolina, Office of the Attorney
General, P.O. Box 11549, Columbia, South Carolina 29211. This the 10" day of February, 2005,

in Columbia. South Carolina.

TERESA L. NORRIS

Center for Capital Litigation
P.O. Box 11311

Columbia, SC 29211

(803) 765-0650

COUNSEL FOR RESPONDENT.

February 10, 2005.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1195%3A2. Public record. Not legal advice.