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
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
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).
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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
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.
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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
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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
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."
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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,
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
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
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.
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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
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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."
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.
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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
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
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"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
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.
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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
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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
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
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.
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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
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
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
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
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
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