S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
v.
Joseph Lee Ard, Appellant.
Appeal From Lexington County
Marc H. Westbrook, Judge
Opinion No. 24840
Heard May 27, 1998 - Filed September 14, 1998
AFFIRMED
Joseph L. Savitz, III, of South Carolina Office of
Appellate Defense, of Columbia, for appellant.
Attorney General Charles M. Condon, Chief Deputy
Attorney General John W. McIntosh, Assistant
Deputy Attorney General Donald J. Zelenka, all of
Columbia; and Solicitor Donald V. Myers, of
Lexington, for respondent.
BURNETT, A.J.: Appellant was convicted of the murder of
his girlfriend, Madalyn Coffey, and the murder of their unborn., but viable,
son. He was sentenced to death.
BACKGROUND
Ms. Coffey died from a single gunshot wound to her forehead.
p.25
STATE v. ARD
Her unborn but viable child survived in utero for approximately six to
eight minutes before dying from a lack of oxygen.
During the guilt phase of trial, witnesses testified they heard
appellant threaten to kill Ms. Coffey prior to the shooting. A witness
testified she saw appellant assault Ms. Coffey during her pregnancy and
heard appellant state he wished Ms. Coffey and the unborn child were
dead.
On the evening of the shooting, a witness testified she heard
appellant and Ms. Coffey arguing in a motel bathroom. Appellant had a
gun. Shortly thereafter, appellant shot Ms. Coffey. He told a friend, "tell
them I did it and they will have to catch me." Appellant then left in his
automobile. There were no eyewitnesses to the shooting.
Appellant testified Ms. Coffey's death was an accident. He
claimed Ms. Coffey, who was 8 1/2 months pregnant with his child, was
upset and threatened to kill herself with the gun she was holding in her
hand. During appellant's attempt to take the gun away from his
girlfriend, the gun discharged. Appellant testified he thought his
girlfriend was dead. He "freaked out" and fled to Atlanta. A friend
informed appellant the police were looking for him. Three days later,
appellant returned to Columbia and met with an attorney. Appellant
testified he planned to surrender to the police but "blacked out" in the
attorney's office. When he awoke, he was in the hospital. Ultimately,
appellant was arrested for the two murders.
Appellant raises only sentencing issues on appeal.
ISSUES
I. Did the trial court err in holding the terms "person" and
"child" in S.C. Code Ann. 16-3-20(C)(a)(Supp. 1997) include a
viable fetus?
II. Did the trial court err in admitting into evidence two
photographs of the unborn child?
III. Did the trial court err by excluding from evidence a prior
consistent statement made by appellant to his lawyer?
p.26
STATE v. ARD
IV. Did the trial court err by instructing the jury not to
consider parole eligibility in reaching a decision as to the
proper sentence?
DISCUSSION
I.
Appellant argues the trial court erred in holding the terms
"person" and "child" as used in the statutory aggravating circumstances
found in 16-3-20(C)(a)(9) & (10) include a viable fetus. Appellant
contends the murder of a viable fetus should not make a defendant eligible
for the death penalty. We disagree.
In State v. Horne, 282 S.C. 444, 319 S.E.2d 703 (1984), the
Court determined an unborn but viable fetus is a "person" within the
statutory definition of murder.1 The Court declared a murder conviction
may be obtained when the state can prove beyond a reasonable doubt "the
fetus involved was viable, i.e., able to live separate and apart from its
mother without the aid of artificial support." Id. S.C. at 447, S.E.2d at
704.
In 1986, the General Assembly amended 16-3-20(C)(a) to
include subitems 9 and 10 as statutory aggravating circumstances. Act.
No. 462, 1986 S.C. Acts 2955. Subitem 9 provides: "Two or more persons
were murdered by the defendant by one act or pursuant to one scheme or
course of conduct." (emphasis added). Subitem 10 provides: "The murder
of a child eleven years of age or under." (emphasis added). Neither
"person" nor "child" are defined in the statute.
We conclude the legislature intended to include viable fetuses
as "persons" within the statutory aggravating circumstance of 16-3-
20(C)(a)(9). At the time the General Assembly added subitem 9 to the list
of statutory aggravating circumstances it was aware of our holding in
1"'Murder' is the killing of any person with malice aforethought,
either express or implied." S.C. Code Ann. 16-3-10 (1985)(emphasis
added).
p.27
STATE v. ARD
State v. Horne, that a viable fetus was a person for purposes of murder.2
Whitner v. State, 328 S.C. 1, 492 S.E.2d 777 (1997), cert. denied, 1998 WL
130868 (May 26, 1998)(there is a basic presumption the legislature has
knowledge of previous legislation as well as of judicial decisions construing
that legislation when later statutes are enacted concerning related
subjects); Berkebile v. Outen, 31 1 S.C. 50, 426 S.E.2d 760 (1993). We find
it would be inconsistent to conclude a viable fetus is a person for purposes
of murder, but not a person for purposes of a statutory aggravating
circumstance to murder. Similarly, it would be absurd to hold a viable
fetus is a "person" but not a "child." Consequently, we hold the legislature
intended "child" within 16-3-20(C)(a)(10) to encompass a viable fetus.
The trial judge properly held the murder of a viable fetus could subject a
defendant to the death penalty.
II.
During the sentencing phase, the solicitor moved to introduce
two photographs of the unborn child into evidence. These photographs
show the unborn child dressed in clothes Ms. Coffey had intended for him
to wear home from the hospital.3 Appellant objected, arguing the
photographs "give the impression that it was a born existing person" and
the prejudice from the photographs outweighed any potential probative
value. The solicitor responded the photographs were relevant to the two
aggravating circumstances and relevant to establish the character of the
defendant. The trial judge overruled appellant's objection, noting the
photographs served to corroborate the pathologist's testimony on the
unborn child's physical development.
2Moreover, the General Assembly was aware of our holdings in
Fowler v. Woodward, 244 S.C. 608, 138 S.E.2d 42 (1964)(a viable fetus is a
person capable of maintaining a wrongful death action), and Hall v.
Murphy, 236 S.C. 257, 113 S.E.2d 790 (1960)(a viable fetus is a person
who, if injured in utero, may maintain an action for those injuries after
birth).
3Appellant does not claim the photographs are gruesome. He argues,
however, the photographs depict the child lying in a casket and are
nothing more than funeral mementos. We find the photographs do not
suggest the child is lying in a casket. Accordingly, we express no opinion
on the propriety of a photograph of a victim at his funeral.
p.28
STATE v. ARD
On appeal, appellant asserts the photographs were not relevant
to any issue at trial because the viability of the unborn child was not in
dispute. We agree the viability of the unborn child was not an issue
during the sentencing phase of appellant's trial. During the guilt phase
instructions, the trial judge specifically charged the jury it must find the
unborn child was viable. Having found appellant guilty of the unborn
child's murder, the jury had already concluded the unborn child was
viable.
Nonetheless, we find the photographs were properly admitted.
A trial judge has considerable latitude in ruling on the admissibility of
evidence and his ruling will not be disturbed absent a showing of probable
prejudice. The determination of the relevancy, materiality, and
admissibility of a photograph is left to the sound discretion of the trial
judge. State v. Kornahrens, 290 S.C. 281, 350 S.E.2d 180 (1986), cert.
denied, 480 U.S. 940, 107 S.Ct. 1592, 94 L.Ed.2d 781 (1987). The trial
judge must balance the prejudicial effect of a photograph against its
probative value. State v. Williams, 321 S.C. 327, 468 S.E.2d 626, cert.
denied, 519 U.S.____, 117 S.Ct. 230, 136 L.Ed.2d 161 (1996).
The purpose of the sentencing phase in a capital trial is to
"direct the jury's attention to the specific circumstances of the crime and
the characteristics of the offender." State v. Matthews, 296 S.C. 379, 390,
373 S.E.2d 587, 594 (1988), cert. denied, 489 U.S. 1091, 109 S.Ct. 1559,
103 L.Ed.2d 861 (1989). Photographs of the victim's body may be
admitted to show the circumstances of the crime and the character of the
defendant. State v. Tucker, 324 S.C. 155, 478 S.E.2d 260 (1996), ____ U.S.
____, 117 S.Ct. 1561, 137 L.Ed.2d 798 (1997). Photographs may be offered
as evidence in extenuation, mitigation, or aggravation. State v.
Kornahrens, supra; see also State v. Franklin, 318 S.C. 47 456 S.E.2d
357, cert. denied, 516 U.S. 856, 116 S.Ct. 160, 133 L.Ed.2d 103 (1995).
In addition, evidence about the victim is relevant to the jury's
consideration of the sentence which should be imposed. Payne v.
Tennessee, 501 U.S. 808, III S.Ct. 2597, 115 L.Ed.2d 720 (1991).
Photographs may be offered as victim impact evidence "to show something
of the victim's life." "Victim impact evidence is clearly admissible because
it shows the victim's uniqueness as an individual so long as it does not
render the trial fundamentally unfair." State v. Tucker, supra, S.C. at
168, S.E.2d at 267.
p.29
STATE v. ARD
The two photographs were properly admitted to portray the
individuality of the unborn child. Since the child was murdered before he
was born, there was no other way to vividly present his uniqueness to the
jury. Additionally, the photographs aided the jury in determining the
vulnerability of the infant victim and, therefore, were relevant in assessing
the circumstances of the crime and the character of the defendant.
Moreover, the photographs of the infant, dressed in clothes his
mother intended for him to wear home from the hospital, reveal Ms.
Coffey's aspirations about the birth of her child and were relevant to the
sentence for her murder. See State v. Rocheville, 310 S.C. 20, 425 S.E.2d
32, cert. denied, 508 U.S. 978, 113 S.Ct. 2978, 125 L.Ed.2d 675
(1993)(parents' testimony about their families' reliance on their murdered
sons was proper). Finally, the photographs support the statutory
aggravating circumstances that two persons were murdered by appellant
during one course of conduct4 and one of the victims was a child under the
age of eleven. See S.C. Code Ann. 16-3-20(C)(a)(9) & (10). The trial
judge did not abuse his discretion in admitting the two photographs during
the sentencing phase of the trial.
III.
During the sentencing phase, Lance Black, an inmate at
McCormick Correctional Institute, testified as a hostile witness for the
State. Black testified while appellant was incarcerated at McCormick
before trial, appellant told him he had "planned" the accident defense.
According to Black, appellant told him he had killed Ms. Coffey because
she was going to turn him into the police, presumably for drug offenses.
To rebut Black's testimony, defense counsel called attorney
Jack Swerling.5 Swerling testified three days after the shooting, appellant
came to his office, intending to turn himself into the police. Swerling
testified there was a warrant for appellant's arrest. Appellant gave
Swerling a brief explanation of the shooting. The solicitor objected when
4The State admitted a photograph of Ms. Coffey wearing a modeling
costume with no objection from appellant.
5Swerling was not appellant's trial attorney. During sentencing,
appellant waived his attorney-client privilege with Swerling.
p.30
STATE v. ARD
defense counsel asked Swerling what appellant had said about the
shooting. The solicitor argued the testimony was inadmissible hearsay.
Defense counsel replied the testimony was admissible under two exceptions
to the rule against hearsay and admissible as evidence of a prior
inconsistent statement. The trial judge sustained the objection.
Defense counsel proffered Swerling's testimony. Swerling
testified appellant told him he shot his girlfriend and child by accident.
Swerling's notes state: "The defendant and girl had gun. Gun went off
accidentally."
Appellant now argues the trial judge erred in excluding his
prior consistent statement made to Swerling. Appellant contends,
pursuant to Rule 801(d)(1)(B), SCRE, the testimony was not hearsay and
exclusion of the testimony violated his due process. We disagree.
At trial, appellant argued Swerling's testimony regarding his
prior statement, albeit hearsay, was admissible as an exception to
hearsay.6 In addition, he argued the testimony was admissible as extrinsic
evidence of a prior inconsistent statement. Rule 613(b), SCRE. Appellant
did not argue his prior consistent statement was admissible under Rule
801(d)(1)(B). Accordingly, his current issue is not preserved for appellate
review. State v. Byram, 326 S.C. 107, 485 S.E.2d 360 (1997); State v.
Tucker, 319 S.C. 425, 462 S.E.2d 263 (1995), cert. denied, 516 U.S. 1080,
116 S.Ct. 789, 133 L.Ed.2d 739 (1996)(an issue is not preserved for
appellate review where a party argues one ground in support of relief at
trial and a different ground on appeal).
In any event, Rule 801(d)(1)(B), SCRE, provides, in relevant
part, as follows:
Statements which are not hearsay. A statement is not hearsay if--
Prior statement by witness. The declarant testifies at the
trial or hearing and is subject to cross-examination concerning
the statement, and the statement is . . . (B) consistent with the
6Appellant argued the testimony was admissible under the present
sense impression and excited utterance exceptions to the rule against
hearsay. Rule 803(l) & (2), SCRE.
p.31
STATE v. ARD
declarant's testimony and is offered to rebut an express or
implied charge against the declarant of recent fabrication or
improper motive; provided, however, the statement must have
been made before the alleged fabrication, or before the alleged
improper influence or motive arose, . . . .
According to the commentator's note, except for the proviso,
Rule 801(d)(1)(B), SCRE, is consistent with the Federal Rules of Evidence.
The proviso was added to reflect the United States Supreme Court's
interpretation of the federal rule in Tome v. United States, 513 U.S. 150,
____, 115 S.Ct. 696, 705, 130 L.Ed.2d 574, 588 (1995)(Rule 801(d)(1)(b)
"permits the introduction of a declarant's consistent out-of-court statements
to rebut a charge of recent fabrication or improper influence or motive
only when those statements were made before the charged recent
fabrication or improper influence or motive."). The modification is similar
to the pre-rules case law in this state holding the prior consistent
statement must have been made before the declarant's "relation to the
cause." Jolly v. State, 314 S.C. 17, 443 S.E.2d 566 (1994); Burns v.
Clayton, 237 S.C. 316, 117 S.E.2d 300 (1960).
Appellant's prior consistent statement to Swerling was not
admissible under Rule 801(d)(1)(B), SCRE. First, although appellant did
testify during the guilt phase of trial, he was not subject to cross-
examination concerning his statement to Swerling, as the evidentiary rule
requires. In fact, appellant could not have been cross-examined about his
statement to Swerling without violation of appellant's attorney-client
privilege.
Second, although his statement to Swerling was made prior to
the time Black alleged appellant had fabricated his accident defense (while
appellant was in jail awaiting trial), the statement was not made before
appellant had a motive to fabricate a defense. At the time appellant made
the statement to Swerling, he was planning to turn himself into the police
for shooting Ms. Coffey. Appellant had a motive to fabricate a defense or
to diminish his responsibility for the shooting when he stated to Swerling
the shooting was an accident. See United States v. Forrester, 60 F.3d 52
(2nd Cir. 1995)(motive to fabricate arose when witness was arrested);
United States v. Frederick, 78 F.3d 1370 (9th Cir. 1996)(child victim's
statement to police after her relatives had reported molestation and police
had begun formal investigation was inadmissible under Rule 801(d)(1)(B),
FRE); United States v. Moreno. 94 F.3d 1453 (10th Cir. 1996)(witness had
p.32
STATE v. ARD
motive to concoct story as soon as he was arrested); United States v.
Albers, 93 F.3d 1469 (10th Cir. 1996)(where witness admitted he did not
agree to talk with law enforcement until he had become afraid others
involved in the conspiracy would testify against him, his statement to
officer came after witness had motive to falsify); see also People v.
Edwards, 819 P.2d 436 (Cal. 1991)(where defendant's statement was made
nine days after shooting, defendant had a compelling motive to deceive
and seek to exonerate himself, therefore statement did not carry
probability of trustworthiness). Appellant's prior consistent statement was
not admissible under Rule 801(d)(1)(B), SCRE.
Finally, appellant contends exclusion of his prior consistent
statement violated his due process rights because he was unable to refute
Black's testimony. See Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197,
51 L.Ed.2d 393 (1977)(a death sentence may not be imposed on the basis
of information which the defendant had no opportunity to explain or deny).
We disagree.
First, appellant's due process argument in support of
Swerling's testimony was raised to the trial court on the day following
Swerling's proffered testimony and the trial judge's denial of the admission
of the testimony. Accordingly, the argument was untimely. See State v.
Patterson, 324 S.C. 5, 482 S.E.2d 760, cert. denied, ___ U.S. ___, 118 S.Ct.
146, 139 L.Ed.2d 92 (1997)(a party must make a contemporaneous
objection to preserve an issue on appeal).
Second, appellant had the opportunity to cross-examine Black.
Additionally, in response to Black's testimony, appellant could have
testified he told Swerling the shooting was an accident. Instead, appellant
chose not to testify at sentencing. Appellant had sufficient opportunity to
explain or deny Black's allegation he had fabricated an accident defense.
The exclusion of Swerling's testimony regarding appellant's statement did
not violate appellant's right to due process.7
7Appellant also refers to Green v. Georgia, 442 U.S. 9'0, 99 S.Ct.
2150, 60 L.Ed.2d 738 (1979), where the United States Supreme Court held
to prevent a defendant from being deprived of a fair trial, the due process
clause requires admission of the exculpatory confession of a third party
offered through hearsay, even if state evidentiary rules prohibit its
admission, where the evidence is reliable (a statement against penal
p.33
STATE v. ARD
IV.
Appellant contends the trial judge erred by instructing the
jury, "You must not consider parole eligibility in reaching a decision, and
you must assume that the terms 'life imprisomnent' and 'death sentence'
should be understood in their ordinary and plain meaning." Appellant
contends the charge improperly injected the issue of parole into the jury's
deliberations.
While discussing final summations, the trial judge instructed
counsel not to refer to parole. Defense counsel stated: "We will request a
Norris8 charge." The solicitor agreed the charge was appropriate.
Thereafter, defense counsel stated: "Judge, just to be clear, we can argue
life means life . . .". The following morning, during the charge
conference, defense counsel and the State confirmed the use of a Norris
charge. The trial judge stated:
. . . when I tell [the jury] the two verdicts or when I tell [the
jury] that at that point that they may consider the death
penalty and life imprisonment, I will then give them the Norris
charge, that they are to consider those in their ordinary, plain
meaning.
Thereafter, the trial judge instructed the jury:
You must not consider parole eligibility in reaching a decision,
interests) and highly relevant to a critical issue in the case. Here, because
appellant had a motive to reduce his responsibility for the shooting, his
statement to Swerling is not inherently reliable. See Huffington v. Nuth,
1998 WL 142317 (4th Cir. 1998)(where hearsay statement was not reliable,
it is not error to disallow its admission); Cunningham v. Peters, 941 F.2d
535 (7th Cir. 1991)(where third party's statement is unreliable, no error to
deny its admission); LeGrand v. Stewart, 133 F.3d 1253 (9th Cir.
1998)(where co-defendant's confession was not sufficiently reliable, no error
in excluding its admission).
8State v. Norris, 280 S.C. 86, 328 S.E.2d 339 (1985), overruled in
part on other grounds, State v. Torrence, 305 S.C. 45, 406 S.E.2d 315
(1991).
p.34
STATE v. ARD
and you must assume that the terms life imprisonment and
death sentence should be understood in their ordinary and
plain meaning.
Appellant excepted to that portion of the Court's Norris charge
which referred to parole eligibility. The trial judge overruled the
exception, noting the language in the instruction was included in Norris.
Parole eligibility is a legislative determination. State v. Plath,
281 S.C. 1, 313 S.E.2d 619, cert. denied, 467 U.S. 1265, 104 S.Ct. 3560, 82
L.Ed.2d 862 (1984). It is not relevant to a jury's sentencing
considerations. State v. Young, 319 S.C. 33, 459 S.E.2d 84 (1995), cert.
denied, 516 U.S. 1051, 116 S.Ct. 718, 133 L.Ed.2d 671 (1996).
Traditionally, any reference to parole eligibility was prohibited.
"[A] jury charged with the responsibility of assessing the penalty to be
suffered by an accused should not be invited, by instruction or argument,
to speculate on the possible effect of pardon or parole upon the execution
of the sentence imposed." State v. Atkinson, 253 S.C. 531, 534, 172 S.E.2d
111, 112 (1970), vacated in part, 408 U.S. 936, 92 S.Ct. 2859, 33 L.Ed.2d
752 (1972), overruled in part on other grounds, State v. Torrence, supra.
In the absence of an inquiry from the jury, a defendant was not entitled to
a charge allowing the jury to consider parole eligibility, State v. Matthews,
296 S.C. 379, 373 S.E.2d 587 (1988), or prohibiting the jury from
considering parole eligibility. State v. Butler, 277 S.C. 543, 290 S.E.2d 420
(1982), overruled in part on other grounds, State v. Torrence, supra; State
v. Copeland, 278 S.C. 572, 300 S.E.2d 63 (1982), cert. denied, 460 U.S.
1103, 103 S.Ct. 1802, 76 L.Ed.2d 367 (1983). Additionally, the trial judge
was prohibited from referring to parole eligibility sua sponte. State v.
Goolsby, 275 S.C. 110, 268 S.E.2d 31 (1980), cert. denied, 449 U.S. 1037,
101 S.Ct. 616, 66 L.Ed.2d 500 (1980), overruled in part on other grounds,
State v. Torrence, supra.
In State v. Norris, supra, the Court set out the proper
response when a jury inquires about parole:
When the issue [of parole] is raised [by the jury], the Court
should instruct the jury that it shall not consider parole
eligibility in reaching its decision, and that the terms 'life
imprisonment' and 'death sentence' should be understood in
their ordinary and plain meaning.
p.35
STATE v. ARD
S.C. at 95, S.E.2d at 344. A complete Norris charge includes two
elements: 1) the jury should not consider parole eligibility in reaching its
decision (the "no concern" charge) and 2) "the terms life imprisonment and
death sentence are to be understood in their ordinary and plain meanings"
charge. In response to a jury's inquiry about parole eligibility, it is
reversible error to omit the "ordinary and plain meaning of life and death,"
even if the "no concern" charge is given. State v. Plemmons, 296 S.C. 76,
370 S.E.2d 971 (1988); State v. Johnson. 293 S.C. 321) 360 S.E.2d 317
(1987). However, in response to a jury's inquiry about parole eligibility, it
is not reversible error to charge "the term life imprisonment is to be
understood in its ordinary and plain meaning" without instructing on "no
concern." "[A] 'life imprisonment in its ordinary and plain meaning'
charge necessarily precludes jury consideration of parole eligibility." State
v. Smith, 298 S.C. 482, 487, 381 S.E.2d 724, 727 (1989), cert. denied, 494
U.S. 1060, 110 S.Ct. 1536, 108 L.Ed.2d 775 (1990).
In State v. Atkins, 293 S.C. 294, 360 S.E.2d 302 (1987),
overruled in part on other grounds, State v. Torrence, supra, this Court
held the lower court properly refused the defendant's request for
instructions on parole eligibility. The Court concluded, however, in the
future, "if requested by the defendant,, the trial judge shall charge the
jury, that the term 'life imprisonment' is to be understood in its ordinary
and plain meaning." Id., S.C. at 300, S.E.2d at 305. As an alternative to
this charge, a defendant may request the trial judge instruct the jury
regarding possible sentences and parole eligibility as stated in 16-3-20
(Supp. 1997)(effect of jury finding or not finding statutory aggravating
circumstance on parole eligibility). Id. Additional information regarding a
defendant's parole eligibility may be requested and charged if it is
necessary to accurately state the defendant's parole eligibility. State v.
Torrence, supra. It is reversible error to refuse an Atkins' request. State
v. Davis, 306 S.C. 246, 411 S.E.2d 220 (1991).
Although appellant requested a "Norris charge" without further
explanation, it appears he desired the court to charge only that component
of Norris which refers to life and death should be understood in their
plain and ordinary meanings. The trial judge confirmed his understanding
of the requested charge by informing counsel he would charge the terms
'death sentence' and 'life imprisonment' should be considered in their
ordinary and plain meanings. He did not indicate he would refer to parole
eligibility. During the instruction, however, the trial court referred to
parole eligibility, even though the jury had not inquired about parole and
p.36
STATE v. ARD
appellant had not requested a charge on parole eligibility.
Since it is improper to refer to parole unless specifically
requested by the defendant or an inquiry is made by the jury, the trial
judge erred in mentioning parole eligibility during the charge.9 State v.
Copeland, 278 S.C. 572, 300 S.E.2d 63 (1982), cert. denied, 460 U.S. 1103,
103 S.Ct. 1802, 76 L.Ed.2d 367 (1983)(trial judge should not speculate that
parole eligibility might be considered by jury and instruct them
accordingly; to do so may, in fact, inject consideration of parole into their
deliberations where it may not have been before). Nonetheless, since the
trial judge instructed the jury not to consider parole eligibility, it is
presumed the jury did not in fact consider parole. State v. Pierce, 289
S.C. 430, 346 S.E.2d 707 (1986), overruled in part on other grounds, State
v. Torrence, supra (jurors are presumed to follow the law as instructed).
Moreover, the trial judge charged the jury "life imprisonment" and "death
sentence" are to be understood in their ordinary and plain meanings. This
instruction "necessarily precludes jury consideration of parole eligibility."
State v. Smith, supra, S.C. at 487, S.E.2d at 727. Therefore, any error in
referring to parole was harmless. See State v. Goolsby, supra (any error
in instruction referring to parole was cured when trial judge later
withdrew that portion of charge and affirmatively instructed jury to
consider the alternative sentences of the death penalty or life
imprisonment without regard to parole).10
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 statutory aggravating circumstances is
9In his brief, appellant argues for the first time the trial judge's
instruction to "assume" life imprisonment and death sentence should be
understood in their ordinary and plain meanings was error. Since there
was no objection to this instruction below, the issue is not preserved for
appellate review. State v. Johnson, 315 S.C. 485, 445 S.E.2d 637
(1994)(failure to object to jury charge constitutes a waiver of the right to
raise the issue on appeal).
10We caution attorneys to clearly state the specific language of a
requested charge rather than relying on a term of art.
p.37
STATE v. ARD
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. Simpson,
325 S.C. 37, 479 S.E.2d 57, cert. denied, ____U.S. ____ , ____ S.Ct.____, 138
L.Ed.2d 217 (1996); State v. Humphries, 325 S.C. 28, 479 S.E.2d 52, cert.
denied,____ U.S.____, ____ S.Ct.____, 138 L.Ed.2d 201 (1996); State v. Von
Dohlen, 322 S.C. 234, 471 S.E.2d 689, cert. denied, 519 U.S. ____, 117 S.Ct.
402, 136 L.Ed.2d 316 (1996); State v. Williams, supra; State v. Hudgins,
319 S.C. 233, 460 S.E.2d 388 (1995), cert. denied, 516 U.S.____, 116 S.Ct.
821, 133 L.Ed.2d 764 (1996); State v. Rocheville, supra; State v. Sims, 304
S.C. 409, 405 S.E.2d 377 (1991), cert. denied, 502 U.S. 1103Y 112 S.Ct.
1193, 117 L.Ed.2d 434 (1992); State v. Green, 301 S.C. 347, 392 S.E.2d
157, cert. denied, 498 U.S. 881, 111 S.Ct. 229, 112 L.Ed.2d 183 (1990);
State v. Cain, 297 S.C. 497, 377 S.E.2d 556 (1988), cert. denied, 497 U.S.
101, 110 S.Ct. 3254, 111 L.Ed.2d 764 (1990).
AFFIRMED.
TOAL, A.C.J. and WALLER, A.J., concur. Acting
Associate Justice George T. Gregory, Jr., concurs in majority
opinion in result only. MOORE, A.J., concurs in result only in
separate opinion.
p.38
STATE v. ARD
MOORE, A.J.: Because I disagree that the statutory aggravating
circumstance set forth in S.C. Code Ann. 16-3-20(C)(a)(10) (Supp. 1997)
was properly submitted to the jury, I concur in result only.
The majority concludes a viable fetus qualifies as "a child eleven
years of age or under" for purposes of the aggravating circumstance in
16-3-20(C)(a)(10). Contrary to the majority's analysis, it is my view that
whether a viable fetus is a "person" for purposes of murder does not
determine the issue of its qualification as a person of a certain age under
this aggravating circumstance. See State v. Horne, 282 S.C. 444, 319,
S.E.2d 703 (1984) (recognizing a viable fetus is a "person" within the
statutory definition of murder).
All murders involve the killing of a person but, under our statutory
scheme, not all murders are capital offenses. In particular circumstances,
the victim's status as a member of a certain class of persons elevates
murder to a capital offense, for instance, murder of a judicial officer, law
enforcement officer, solicitor, fireman, or witness. 16-3-20(C)(a)(5), (7),
and (11). The murder of a child eleven years or younger is one of these
"status" aggravating circumstances. Because of the increased penalty
determined by these aggravating circumstances, the language defining the
class of victim must be strictly construed against the State and in favor of
the defendant. See State v. Blackmon, 304 S.C. 270, 403 S.E.2d 660
(1991) (penal statute strictly construed).
I would hold a viable fetus is not included within a class of persons
statutorily defined simply by age. The age of a person is invariably
calculated from birth and not conception. When strictly construed, this
age-defined class necessarily includes only those persons already born.
Under the majority's holding, will we now calculate age from the time of
viability to determine if a victim falls within this class?
Consistent with my dissent in Whitner v. State, 328 S.C. 1, 492
S.E.2d 777 (1997), 1 find the statutory language here evinces no legislative
intent to include a viable fetus in this class of victim. Not until the
majority's 1997 decision in Whitner did any decision of this Court hold a
viable fetus was included in a statutorily age-defined class. The
legislature clearly could not have been aware of this new rule at the time
the statutory aggravating circumstance in question here was enacted in
1990. See 1990 S.C. Act No. 604, 15.
p.39
STATE v. ARD
Moreover, in light of the State's position at oral argument that a
woman who aborts a viable fetus could be sentenced to death under the
rule adopted by the majority in this case, we must exercise extreme
caution not to exceed the legislative intent as expressed in the statutory
language. Allowing the imposition of death in such a case is a matter
that must be tested by full legislative debate and deliberation; it is not for
this Court to determine.
Because I believe this aggravating circumstance should not have
been submitted to the jury under the facts of this case, I concur in result
only. See State v. Elkins, 312 S.C. 541, 436 S.E.2d 178 (1993) (failure of
one aggravating circumstance does not require reversal where there
remains another valid aggravating circumstance upon which the sentence
of death is based).
p.40