In The Supreme Court



State of South Carolina, Respondent,



v.



Wesley Aaron Shafer,



Jr., Appellant.



Appeal From Union County

John C. Hayes, III, Circuit Court Judge



Opinion No. 25120



Heard October 7, 1999- Filed May 8, 2000



AFFIRMED



David I. Bruck, of Columbia, for appellant.



Attorney General Charles M. Condon, Chief Deputy

Attorney General John W. McIntosh, Assistant

Deputy Attorney General Donald J. Zelenka,

Assistant Attorney General S. Creighton Waters, of

Columbia; and Solicitor Thomas E.Pope, of York, for

respondent.









BURNETT, A.J.: Appellant admitted he shot and killed Ray

Broome while attempting to rob the convenience store where Broome was



p.17


STATE v. SHAFER







working. Appellant maintained the killing was without malice.1 A jury

convicted appellant of murder, attempted armed robbery, and conspiracy.

He was sentenced to death for murder and consecutive terms of twenty

years' imprisonment and five years' imprisonment, respectively, for

attempted armed robbery and conspiracy.2 Appellant appeals.







FACTS



Around 11:30 p.m. on April 12, 1997, appellant and Justin Porter

drove to the Hot Spot, a convenience store, in Porter's truck. Appellant and

Porter entered the store. When they returned to the truck, Porter, the

driver, spun the back tires of the vehicle and appellant, using his father's

gun and bullets he purchased earlier, fired four or five shots from the

passenger window as they drove away.









At approximately 1:00 a.m., appellant, Porter, and Adam

Mullinax returned to the Hot Spot. Witnesses left the Hot Spot because they

suspected trouble.







Appellant, Porter, and Mullinax entered the Hot Spot. Mullinax

went into the bathroom then returned to the truck. Appellant and Porter

also went into the store, then stood outside the Hot Spot for a few minutes.

While Broome was away from the cash register, Porter entered the Hot Spot.

He tried to open the cash register but was unsuccessful. He returned

outside.







Porter and appellant entered the store again. Broome had

returned to the register booth. Appellant went to the checkout counter and

shot Broome from several feet away. Broome fell to the floor. Appellant

walked to another side of the register, fumbled with the gun, leaned over the




1During the penalty phase of trial, appellant's expert witness testified

appellant shot Broome in response to a lifetime of abuse and violence.



2The jury found the statutory aggravating circumstance of murder

while in the commission of an attempted armed robbery while armed with a

deadly weapon. S.C. Code Ann. §16-3-20(C)(a)(1)(d) (Supp. 1998).



p.18


STATE v. SHAFER







register counter, and shot Broome a second time.3Appellant and Porter's

attempt to open the cash register failed. Appellant and Porter left. There is

no evidence appellant or Porter asked Broome for money before the shooting.







Three young women arrived as appellant and Porter fled the Hot

Spot and jumped into the truck. One of the women ran into the store, found

Broome on the floor, and telephoned for emergency services. When the police

arrived, Broome was still breathing. He had been shot twice in the head.4

Broome died at the hospital.







Appellant wrapped Mullinax's shirt around the gun and initially

hid it in the woods. He hid his own shirt and Porter's shirt elsewhere.

Twelve hours after the shooting, appellant told an employee at another

convenience store he was going to the park to shoot basketball.







After his arrest, an investigator asked appellant had Broome

done anything to cause appellant to shoot. Appellant responded: "No. We

were sitting around in the woods talking about what we were going to do

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







ISSUES5



I. Did the trial court err by refusing to instruct the jury

appellant was parole ineligible?



II. Did the trial judge err by granting the State's motion to

prohibit both the prosecution and defense from referring to the

Bible or using religious references during closing argument?



III. Did the trial judge err by refusing to allow appellant to

reopen the record to present evidence on deterrence or,

alternatively, for a curative instruction after the solicitor argued




3Appellant waited eight seconds before firing the second shot.



4All the events inside the Hot Spot were recorded on the store's

security camera.



5All issues stem from the sentencing phase of appellant's trial.



p.19


STATE v. SHAFER







the general deterrent effect of the death penalty?







DISCUSSION



I.



Appellant argues, for various reasons, the trial court erred by

refusing to instruct the jury he was parole ineligible. We disagree.







After closing arguments, relying on Simmons v. South Carolina,

512 U.S. 154 (1994), appellant requested the trial court instruct the jury he

would be ineligible for parole. The trial court denied the request.







Thereafter, the trial judge instructed the jury "life imprisonment

means until the death of the defendant." He later stated: "[i]n deciding

whether to sentence the defendant to death or to life imprisonment, I remind

you that death means just what it says, death. Life imprisonment means

incarceration of the defendant until his death."









After three and one-half hours of deliberation, the jury returned

with the following questions:





1. Is there any remote chance for someone convicted of murder

to become eligible for parole?



2. Under what conditions would someone convicted for murder

be eligible?







Regarding Question 1, appellant agreed the trial court should

instruct the jury "life imprisonment means until the death of the offender"

and requested the court read the portion of §16-3-20(A) which explains no

person sentenced to life imprisonment is eligible for parole or any other form

of release or credits which would reduce a life sentence. Appellant stipulated

Question 2 could not be answered. After the trial judge informed the parties

of his intended response to the jury's questions, appellant requested the trial



p.20


STATE v. SHAFER







judge delete any reference to parole eligibility.6









The trial judge responded to the jury's questions as follows:



Your consideration is restricted to what sentence to recommend.

I will remind you that what you recommend is what I will impose

as trial judge. Section 16-3-20 of our Code of Laws as applies to

this case in the process we're in states that, 'for the purposes of

this section life imprisonment means until the death of the

offender.' Parole eligibility or ineligibility is not for your

consideration.







Appellant excepted stating, "we would renew our objection under

the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments of the State

and Federal Constitutions." The trial judge noted the exception.







A.



Appellant argues he was entitled to a charge on parole

ineligibility after the solicitor placed his future dangerousness in issue. He

contends Simmons mandates a parole ineligibility instruction and refusal to

give the charge violated his right to due process. We disagree.







When the State places the defendant's future dangerousness at

issue and the only available alternative sentence to the death penalty is life

imprisonment without parole, due process entitles the defendant to inform

the jury he is parole ineligible. Id.; State v. Williams, 321 S.C. 327, 468

S.E.2d 626 (1996). Due process is violated when the State "raise[s] the

specter of [the defendant's] future dangerousness generally, but then

thwart[s] all efforts by [the defendant] to demonstrate that, contrary to the

prosecutor's intimations, he never would be released on parole and thus, in




6The trial judge stated he would charge the jury as follows: "[y] our

consideration is restricted to what sentence to recommend. I will, as trial

judge, impose the sentence you recommend. Section 16-3-20 of the South

Carolina Code of Laws provides that for the purpose of this section life

imprisonment means until the death of the offender. Parole eligibility is not

for your consideration."



p.21


STATE v. SHAFER







his view, would not pose a future danger to society." Simmons , 512 U.S. at

165 (1994) (plurality opinion).







Appellant was tried under the new sentencing scheme which

became effective on January 1, 1996. S.C. Code Ann. §16-3-20 (Supp. 1998).

Under the new sentencing scheme, a defendant can be sentenced to 1) death,

2) life without the possibility of parole, or 3) a mandatory minimum thirty

year sentence. We recently held Simmons is inapplicable under the new

sentencing scheme because life without the possibility of parole is not the

only legally available sentence alternative to death. State v. Starnes, Op.

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

17).7 Accordingly, appellant's due process rights were not violated by the

trial judge's refusal to instruct the jury appellant was parole ineligible.







Appellant argues Simmons mandates a charge on parole

ineligibility when the State argues future dangerousness and the jury's

sentencing recommendation is limited to death or life without the possibility

of parole, even though some other sentence is available. We do not read

Simmons so narrowly. By its own terms, Simmons requires the trial judge

instruct the jury the defendant is parole ineligible only if no other sentence

than death, other than life without the possibility of parole, is legally

available to the defendant. Simmons, U.S. at 178 (O'Connor, J., concurring)

("[a]lthough the only alternative sentence to death under state law was life

imprisonment without the possibility of parole. . .".) (emphasis added). This

interpretation is supported by decisions from other jurisdictions. Ramdass v.

Angelone, 187 F.3d 396 (4th Cir. 1999) (Simmons is inapplicable if, at time of

sentencing proceeding, defendant is parole eligible under state law; hence

where judgment had yet to be entered for defendant's third murder

conviction, defendant was parole eligible under "three strikes" law); United

States v. Flores, 63 F.3d 1342 (5th Cir. 1995), cert. denied, 519 U.S. 825

(1996) (because sentencing guidelines vest district court with discretion to

adjust life sentence downward, life sentence without possibility of parole is

not only legal sentence other than death which defendant might receive and,




7In Starnes, we suggested, under the terms of the statute, it is

arguable a defendant could be sentenced to more than thirty years and be

eligible for parole after service of thirty years. For purposes of this

discussion, we assume appellant was parole ineligible.



p.22


STATE v. SHAFER







therefore Simmons is inapplicable); Allridge v. Scott, 41 F.3d 213 (5th Cir.

1994); cert. denied, 514 U.S. 1108 (1995) (Simmons applies where capital

defendant is ineligible for parole as a matter of law; Simmons does not apply

even if it is unlikely defendant would be paroled); People v. Simpson, 665

N.E.2d 1228 (Ill.), cert. denied, 519 U.S. 982 (1996) (Simmons inapplicable

where capital defendant is statutorily eligible for a sentence less than

natural life imprisonment); State v. McLaughlin, 462 S.E.2d 1(N.C. 1995),

cert. denied, 516 U.S. 1133 (1996) (Simmons inapplicable where alternative

to death is not life imprisonment without possibility of parole). At the time

appellant's jury began its deliberations, three alternative sentences were

available. Since one of these alternatives to death was not life without the

possibility of parole, Simmons was inapplicable.8









B.



Appellant contends the failure to inform the jury he was parole

ineligible violated the Eighth Amendment prohibition against the arbitrary




8The dissent contends the cases cited herein are inapposite. Although

the sentencing alternatives under consideration in each case referenced

above may differ from those in South Carolina's new capital sentencing

statute, each of the cases support the conclusion due process requires the

jury be informed the capital defendant is parole ineligible where the only

sentencing alternatives are death or life without the possibility of parole and

the prosecution argues the defendant's future dangerousness. Excepting

Flores, in each of the cases cited above, the capital defendant was parole

eligible, therefore, due process did not mandate the jury be informed the

defendant was parole ineligible. In Flores, although parole ineligible, the

federal district judge could have departed from the sentencing guidelines

and imposed a sentence less than life imprisonment. Accordingly, due

process did not require the jury be informed Flores was parole ineligible. As

fully discussed in State v. Starnes, supra, because death and life without the

possibility of parole are not the only sentence alternatives under the new

sentencing statute, due process does not require the jury be informed the

defendant is parole ineligible.



p.23


STATE v. SHAFER









infliction of the death penalty.9 He specifically argues the failure to inform

the jury of his parole ineligibility prevented him from presenting mitigating

evidence in support of a sentence less than death and diminished the

reliability of the jury's sentencing decision. In light of the new sentencing

statute, he asks the Court to reconsider its policy prohibiting the trial judge

from informing the jury a capital defendant is parole ineligible.







Initially, we note this issue is not properly preserved for

appellate consideration. After the trial judge responded to the jury's

question, appellant stated he excepted "on the basis of the Eighth

Amendment." He offered no explanation or argument in support of the

exception. Appellant's objection to the supplemental instruction is simply

too vague for the Court to review. State v. Bailey, 253 S.C. 304, 170 S.E.2d

376 (1969) (general objection leaves nothing for Court to review). Clearly,

appellant never argued, as he does now, that the Eighth Amendment

requires a charge on parole ineligibility as mitigating evidence and to ensure

the reliability of the sentence imposed. McKissick v. J.F. Cleckley & Co., 325

S.C. 327, 479 S.E.2d 67 (Ct. App. 1996) (an objection should be sufficiently

specific to bring into focus the precise nature of the alleged error so that it

can be reasonably understood by the trial judge).







In any event, the Eighth Amendment requires that a death

sentence not be imposed arbitrarily. Jones v. United States, 527 U.S. 373

(1999). It prohibits the State from limiting the sentencer's consideration of

"any relevant mitigating evidence" which could cause the jury to decline to

impose the death penalty. Pane v. Tennessee, 501 U.S. 808, 822 (1991),

citing Eddings v. Oklahoma, 455 U.S. 104, 114 (1982). The United States

Supreme Court has "deferred to the State's choice of substantive factors

relevant to the penalty determination." California v. Ramos, 463 U.S. 992,

1001(1983). Whether parole eligibility is relevant to the sentencing

determination is a matter of state law. Id.; see Simmons v. South Carolina,

512 U.S. 154, 176 (O'Connor, J., concurring) ("[t]he decision whether or not

to inform the jury of the possibility of early release is generally left to the




9U.S. Const. amend. VIII.



p.24


STATE v. SHAFER







States.").10







In South Carolina, parole eligibility is not relevant to a jury's

sentencing considerations. State v. Young, 319 S.C. 33, 459 S.E.2d 84 (1995)

(defendant who was parole eligible after service of thirty years not entitled to

charge on parole eligibility). The refusal to inform the jury of the capital

defendant's parole eligibility does not violate the Eighth Amendment. Id.







Although we have never explicitly ruled whether the Eighth

Amendment entitles a capital defendant to a charge informing the jury he is

parole ineligible, precedent suggests no such instruction is required.11 In

State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991) (Chandler, J.,

concurring), the Court held the defendant who was parole ineligible due to a

prior conviction for a violent crime was not entitled to a charge informing the

jury of his parole ineligibility. In State v. Southerland, 316 S.C. 377, 447

S.E.2d 862 (1994), cert. denied 513 U.S. 1166 (1995), overruled on other

grounds State v. Chapman, 317 S.C. 302, 454 S.E.2d 317 (1995), we

concluded there was no Eighth Amendment violation where the trial judge

did not instruct the jury the defendant was parole ineligible but defense

counsel argued "life imprisonment" means the defendant will never be

released from prison. In Simmons v. South Carolina, 512 U.S. 154 (1994),

the United States Supreme Court declined to hold the Eighth Amendment

requires the jury to be informed a capital defendant is parole ineligible.







Relying on Skipper v. South Carolina, 476 U.S. 1 (1986),

appellant asserts parole ineligibility is a mitigating circumstance of which

the jury should have been informed. We disagree.









As noted above, the Eighth Amendment prohibits the State from

limiting the sentencer's consideration of "any relevant mitigating evidence."




10O'Dell v. Netherland, 521 U.S. 151, 165 (1997) ("[i]n Simmons, the

Court carved out an exception to the general rule described in Ramos by, for

the first time ever, requiring that a defendant be allowed to inform the jury

of the postsentencing legal eventualities.").



11Appellant agrees there has been a blanket prohibition against any

instruction on parole eligibility or ineligibility.



p.25


STATE v. SHAFER







Payne v. Tennessee, 501 U.S. 808, 822 (1991). For purposes of the Eighth

Amendment, mitigating evidence is "any aspect of a defendant's character or

record and any of the circumstances of the offense that the defendant

proffers as a basis for a sentence less than death." Skipper v. South

Carolina, 476 U.S. 1, 4, citing Eddings v. Oklahoma, 455 U.S. 104, 110

(1982); see State v. George, 323 S.C. 496, 476 S.E.2d 903 (1996) (mitigating

circumstances are details specific to the character of the defendant on trial

and/or the circumstances of the crime he committed which are considered in

order to reduce the degree of his moral culpability or guilt). In Skipper, the

Supreme Court held evidence of the defendant's good behavior while in jail

awaiting trial was potentially mitigating because it indicated he would not

pose a danger in the future. Accordingly, excluding evidence of the

defendant's future adaptability violated the Eighth Amendment.







Unlike a defendant's behavior in prison, parole ineligibility is not

an aspect of a defendant's character or record. Parole eligibility or

ineligibility is a legislative determination; it is not mitigating evidence. See

State v. Patterson, 299 S.C. 280, 384 S.E.2d 699 (1989), vacated on other

grounds 493 U.S. 1013 (1990) (information regarding requirements for parole

eligibility is not mitigating evidence); State v. Matthews, 296 S.C. 379, 373

S.E.2d 587 (1988), cert. denied, 489 U.S. 1091(1989) (punishment for a crime

cannot serve as a mitigating sentencing consideration); see also State v.

George, 323 S.C. 496, 476 S.E.2d 903 (1996) (the general effect of capital

punishment as a deterrent to crime is not a mitigating circumstance). The

Eighth Amendment is not violated by refusing to inform the jury a capital

defendant is parole ineligible.







Appellant asserts since all capital defendants are now parole

ineligible, the Court should permit juries to be informed of parole

ineligibility. He claims providing juries with accurate information on parole

ineligibility will eliminate prejudicial misinformation juries hold concerning

parole eligibility and produce more reliable sentencing determinations. We

disagree.









Traditionally, in South Carolina it is the jury's duty and

responsibility in the sentencing phase of a capital trial to impose a

punishment authorized by law in consideration of the circumstances of the

crime and the characteristics of the individual defendant. The jury is not

authorized to legislate a plan of punishment. State v. Plath, 281 S.C. 1, 313



p.26


STATE v. SHAFER







S.E.2d 619, cert. denied 467 U.S. 1265 (1984); see State v. Atkinson, 253 S.C.

531, 172 S.E.2d 111(1970), citing State v. White, 142 A.2d 65, 76 (N.J. 1958)

("the Legislature committed to the jury the responsibility to determine in the

first instance whether punishment should be life or death. It charged

another agency with the responsibility of deciding how a life sentence shall

be executed. The jurors perform their task completely when they decide the

matter assigned to them upon the evidence before them. What happens

thereafter is no concern of theirs."), overruled on other grounds State v.

Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991). The jury's duty is the same

under the new sentencing statute. While a defendant's parole ineligibility

could affect the jury's decision, it nonetheless remains an irrelevant factor

which the jury should not consider. Affirmatively mentioning an irrelevant

factor would undermine the jury's decisionmaking process and result in a

decision which is less, rather than more, reliable. As a matter of policy, we

maintain it is inappropriate to inform the jury the capital defendant is parole

ineligible. The Eighth Amendment does not compel a different result. Jones

v. United States, 527 U.S. 373,__, 119 S.Ct. 2090, 2099 (1999) (a death

sentence is not arbitrary within the meaning of the Eighth Amendment "if

the jury is not given any bit of information that might possibly influence the

individual juror's voting behavior.").







C.



Appellant argues the trial judge's supplemental instruction was

erroneous. He contends 1) in responding to the jury's questions, the trial

judge should have informed the jury he was parole ineligible, 2) the trial

judge's admonition, "parole eligibility or ineligibility is not for your

consideration," incorrectly suggested he was parole eligible, and 3) the trial

judge erred by refusing to read that portion of the sentencing statute which

referred to parole ineligibility. We disagree.







1.



As noted above, parole eligibility or ineligibility is not relevant to

a capital jury's sentencing considerations and the issue of parole should not

be injected into the jury's deliberations. State v. Ard, 332 S.C. 370, 505

S.E.2d 328 (1998); State v. Torrence, 305 S.C. 45, 406 S.E.2d. 315 (1991).

When a jury inquires about parole, the trial court should instruct the jury it

shall not consider parole eligibility in reaching its decision and the terms



p.27


STATE v. SHAFER







"life imprisonment" and "death penalty" should be understood in their

ordinary and plain meaning. State v. Norris, 285 S.C. 86, 328 S.E.2d 339

(1985), overruled on other grounds State v. Torrence, 305 S.C. 45, 406 S.E.2d

315 (1991).12







In keeping with Norris, the trial judge's supplemental

instruction properly told the jury not to consider parole eligibility or

ineligibility. Although Norris was decided prior to the new sentencing

statute, we find no reason to require a different response when the jury

inquires about parole.







Moreover, as noted above, three potential sentences were

available: 1) death, 2) life imprisonment, or 3) a mandatory minimum thirty

year sentence. Appellant was not eligible for parole under any of these

sentences.13Nonetheless, as suggested by appellant, by asking for

information on parole, the jury was attempting to ascertain the length of

time appellant would realistically spend in prison if sentenced to life

imprisonment. Informing the jury appellant was parole ineligible when,

unbeknownst to the jury, he faced a possible sentence of thirty years

imprisonment after which he would be unconditionally released would not

have fairly responded to the jury's inquiry.







2.



Furthermore, contrary to appellant's argument, the trial judge's

admonition, "parole eligibility or ineligibility is not for your consideration,"

did not suggest appellant was parole eligible. Unlike the admonitions in

Simmons v. South Carolina, 512 U.S. 154 (1994), "you are not to consider

parole" and parole "is not a proper issue for your consideration," the

instruction here specifically informed the jury not to consider either parole

eligibility or ineligibility and, therefore, did not imply appellant was parole




12In Ard we held the trial judge's erroneous mention of parole was

harmless. To the extent Ard suggests the trial judge should charge the jury

on parole eligibility if requested by the defendant, it is overruled. We note

Ard was decided eight months after the present case was tried.



13 But see footnote 7.



p.28


STATE v. SHAFER







eligible.







3.



Finally, in response to the jury's questions, appellant requested

the trial judge read that portion of the sentencing statute highlighted below:



A person who is convicted of or pleads guilty to murder must be

punished by death, imprisonment for life, or by a mandatory

minimum term of imprisonment for thirty years. If the State

seeks the death penalty and a statutory aggravating

circumstance is found beyond a reasonable doubt

pursuant to subsections (B) and (C), and a

recommendation of death is not made, the trial judge

must impose a sentence of life imprisonment. For

purposes of this section, `life imprisonment' means until

the death of the offender. No person sentenced to life

imprisonment pursuant to this section is eligible for

parole, community supervision, or any early release

program, nor is the person eligible to receive any work

credits, education credits, good conduct credits, or any

other credits that would reduce the mandatory life

imprisonment required by this section. No person

sentenced to a mandatory minimum term of imprisonment for

thirty years pursuant to this section is eligible for parole or any

early release program, nor is the person eligible to receive any

work credits, education credits, good conduct credits, or any

other credits that would reduce the mandatory minimum term of

imprisonment for thirty years required by this section.



Section 16-3-20(A) (Supp. 1998).







We find no error or prejudice from the trial judge's refusal to

read the highlighted portion of the statute. Again, neither parole eligibility

nor parole ineligibility are proper considerations for the jury. State v. Ard,

332 S.C. 370, 505 S.E.2d 328 (1998); State v. Torrence, 305 S.C. 45, 406

S.E.2d 315 (1991). Furthermore, appellant's suggestion that providing the

jury with the highlighted language would promote "truth-in-sentencing" is



p.29


STATE v. SHAFER







tenuous. The highlighted text provides the jury with only those portions of

the sentencing statute which appellant deems favorable but excludes any

reference to other less favorable sentencing options.







We conclude the supplemental instruction was appropriate.









II.



Appellant argues he was deprived of his right to make religious

arguments to the jury. We disagree.







Over appellant's objection, the trial judge granted the State's

motion to prohibit. references to the Bible or religion during closing argument

by both the prosecution and defense. Appellant proffered several religious

arguments he had considered including in his closing argument.







In his closing argument, appellant stated:



There's a story about a woman who broke the law a long, long,

long time ago. Before we had electricity, before we had lethal

injection, we still had the death penalty. There was a time that

she had been caught, she was caught for breaking the law, and

the people in her community gathered around her, and they were

going to kill her for what she had done. They had the objects

they were going to use to kill her in their hands, and she stood

before them. Somebody walked in and said 'I'm not denying that

what she did was wrong, this isn't about what she did was

wrong, this is about what statement are you going to make about

being confronted with this.'







The story that I referenced, a very great man discussed with

them about not killing the woman, and they didn't.







We find no error in the trial judge's ruling. Previously, we have

held there is no fundamental unfairness when the trial judge precludes the

solicitor and the defense from arguing about God or religion. State v.

Patterson, 324 S.C. 5, 482 S.E.2d 760, cert. denied 522 U.S.__ , 118 S.Ct.

146 (1997). In any event, the. record clearly demonstrates appellant was not

prejudiced by the trial judge's ruling. Although he was not permitted to



p.30


STATE v. SHAFER







make all of his religious arguments, appellant conveyed the Biblical story of

Jesus and the adulterous woman. State v. Bennett, 328 S.C. 251, 493 S.E.2d

845 (1997) (capital defendant was not prejudiced by sustained objection to

his religious argument where record indicated he made the argument

nonetheless). The trial judge did not abuse his discretion in granting the

State's motion to prohibit references to the Bible or religion during both the

prosecution and defense closing arguments. See State v. Patrick, 289 S.C.

301, 345 S.E.2d 481 (1986)14(trial judge is vested with broad discretion in

dealing with the range and propriety of closing arguments and ordinarily his

rulings on such matters will riot be disturbed).







III.



In the penalty phase closing argument, the solicitor argued the

death penalty deters others from committing murder. Thereafter, appellant

requested the trial judge either reopen the case to allow him to present

statistical evidence the death penalty does not deter murder or,

alternatively, to instruct the jury to disregard the solicitor's comments

regarding general deterrence. The trial judge denied both requests.

Appellant argues this was error. We disagree.







In South Carolina, our case law is abundantly clear: while both

the prosecution and defense may argue their respective opinions regarding

the general deterrent effect of the death penalty, neither may present

evidence supporting their views. State v. George, 323 S.C. 496, 476 S.E.2d

903 (1996).15Accordingly, the trial judge did not err by refusing appellant's

request to reopen the record for the purpose of presenting evidence on the

deterrent effect of the death penalty.









Furthermore, we have never directly held it is reversible error to

refuse to give such a curative instruction where the solicitor argues general




14Overruled on other grounds Brightman v. State, 336 S.C. 348, 520

S.E.2d 614 (1999); State v. Casey, 305 S.C. 445, 409 S.E.2d 391(1991).



15Because the General Assembly has approved the propriety of capital

punishment, evidence attempting to establish its effectiveness or

ineffectiveness as an instrument of deterrence is irrelevant.



p.31


STATE v. SHAFER







deterrence. See State v. McWee, 322 S.C. 387, 472 S.E.2d 235 (1996), cert.

denied 519 U.S.__ , 117 S.Ct. 695 (1997) (where solicitor argued specific

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

v. Longworth, 313 S.C. 360, 438 S.E.2d 219 (1993), cert. denied 513 U.S. 831

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

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

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

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

charge general deterrence is properly refused as function of jury is to

determine appropriate penalty for present charge). In fact, our cases have

repeatedly allowed the solicitor to argue his opinion regarding the deterrent

effect of capital punishment. State v. Truesdale, 301 S.C. 546, 393 S.E.2d

168, cert. denied 498 U.S. 1074 (1990); State v. Jones, 298 S.C. 118, 378

S.E.2d 594 (1989); State v. Yates, 280 S.C. 29, 310 S.E.2d 805 (1982), cert.

denied 462 U.S. 1124 (1983), overruled on other grounds State v. Torrence,

305 S.C. 45, 406 S.E.2d 315 (1991). Since argument on general deterrence is

permitted, it would be illogical to instruct the jury it may not consider the

effect of its sentence on others.







Finally, in light of his freedom to argue capital punishment does

not discourage others from committing murder, appellant's due process was

not violated by the trial judge's denial of his request to present evidence on

general deterrence or charge the jury not to consider the deterrent effect of

the death penalty.







PROPORTIONALITY REVIEW



After reviewing the entire record, we conclude the death sentence

was not the result of passion, prejudice, or any other arbitrary factor, and the

jury's finding of a statutory aggravating circumstance is supported by the

evidence. See S.C. Code Ann.§16-3-25 (1985). Further, we hold the death

penalty is neither excessive nor disproportionate to that imposed in similar

cases. See State v. Hughes, 328 S.C. 146, 493 S.E.2d. 821(1997), cert.

denied, 523 U.S.__ , 118 S.Ct. 1674 (1998); State v. Patterson, 324 S.C. 5,

482 S.E.2d 760, cert. denied, 522 U.S.__ , 118 S.Ct. 146 (1997); State v.

Simpson, 325 S.C. 37, 479 S.E.2d 57, cert. denied, 520 U.S.__ , 117 S.Ct.

2460 (1996); State v. Humphries, 325 S.C. 28, 479 S.E.2d 52, cert. denied,

520 U.S.__ , 117 S.Ct. 2441 (1996); State v. MeWee, 322 S.C. 387, 472

S.E.2d 235 (1996), cert. denied, 519 U.S.__, 117 S.Ct: 695 (1997); State v.



p.32


STATE v. SHAFER







Sims, 304 S.C. 409, 405 S.E.2d 377 (1991), cert. denied, 502 U.S. 1103 (1992).



AFFIRMED.



MOORE, WALLER, JJ., and Acting Justice Thomas C. Huff,

concur. FINNEY, C.J., dissenting in a separate opinion.



p.33


STATE v. SHAFER







FINNEY, C.J.: I respectfully dissent, and would reverse and

remand for a new sentencing proceeding.







Under the 1996 amendments to S.C. Code Ann. §16-3-20, all capital

defendants face one of three sentences:



(1) death; or



(2) life in prison until death; or



(3) unconditional release after service of

a minimum term of thirty years, with no

possibility of parole.1d







Appellant contends that since he was parole ineligible as a matter of state

law, the jury was entitled to be charged this fact when they inquired. I

agree.







The majority deems the holding in Simmons v. South Carolina,

512 U.S. 154, 114 S.Ct. 2178, 129 L.Ed.2d 133 (1994), inapplicable because

appellant's sentencing options were not limited to death or life without




1d In this opinion and in State v. Starnes, Op. No. 25119 (S.C. Sup. Ct.

filed May 8, 2000), the Court has avoided directly deciding the parole

eligibility status of a. capital defendant who receives a term of years

sentence. In my opinion, we must decide this question today in order to

address the jury charge issues raised by appellant. The murder statute is

clear as to certain defendants: "No person sentenced to a mandatory

minimum term of imprisonment for thirty years pursuant to this section is

eligible for parole... or any other credits which would reduce the mandatory

minimum term of imprisonment for thirty years required by this section." §

16-3-20(A) (Supp. 1999). Since the murder statute is silent as to the parole

eligibility of defendants receiving a sentence in excess of the mandatory

minimum, the general rule controls. Under §16-1-10(d)(Supp. 1999),

murder is exempt from the classification system, and under § 24-13-100

(Supp. 1999), persons convicted of exempt offenses are ineligible for parole.

Thus, although a capital defendant may receive a sentence of a term of

years, he is ineligible for parole whatever the duration of that term.



p.34


STATE v. SHAFER







possibility of parole, and cites a number of cases in support of this

proposition: In all the cited cases except one, however, the defendant's

sentencing possibilities included one in which he would be parole eligible.

The only case in which the defendant did not face a potential parolable

sentence was United States v. Flores, 63 F.3d 1342 (5th Cir. 1995). Flores

involves a federal conviction, and parole has been abolished in the federal

system. It is inapposite to the present South Carolina sentencing scheme, as

are all .the other cases cited. While I concede that Simmons does not directly

control this case 2d, the overriding principle to be drawn from that decision is

that due process is violated when a jury's speculative misunderstanding

about a capital defendant's parole eligibility is allowed to go uncorrected.

Here, the jury's inquiry prompted a misleading response which suggested

parole was a possibility. In my opinion, due process mandates reversal.







Further, if the decision whether to inform juries which inquire

about parole eligibility is simply one of policy, as the majority suggests in

Part I C, then why not adopt a policy which gives the jurors the simply truth:

no parole. The majority acknowledges, as it must,3dthat parole

considerations "could" affect a jury's sentencing decision,4d but then deems it

"irrelevant" and denigrates its importance as "[a] bit of information that

might possibly influence the individual juror's voting behavior." The specter

of parole haunts every capital sentencing proceeding in this State, and I

cannot understand why, given the simplicity of our new sentencing scheme

in which no capital defendant is ever parole eligible, we would make a policy

decision prohibiting the dissemination of the truth.







Of course, I would not stop with a charge that the defendant was




2dWe are not concerned with whether a Simmons charge was warranted

at the initial charge to the jury since future dangerousness was not an issue,

but rather with the procedure to be followed when a capital jury inquires

about parole.







3dGiven the regularity with which capital juries inquire about parole,

we cannot deny its role in sentencing.







4dSee Bowers, Vandiver & Dugan, A New Look at Public Opinion On

Capital Punishment: What Citizens and Legislators Prefer, 22 Am. J.Crim.L.

77 (1994).



p.35


STATE v. SHAFER







not parole eligible, for that is only half the truth. I would tell the jury that if

no aggravating circumstance is found, the defendant faces a minimum of

thirty years without possibility of early release, but that if aggravating

circumstances are found, then the alternatives are death or life in prison

until death.







For these reasons, and with instructions that henceforth juries

which inquire shall be charged the truth about sentencing, I would reverse

and remand for a new sentencing proceeding in this matter.



p.36

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