S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Robert H. Southerland, Petitioner,
v.
The State of South
Carolina, Respondent.
Appeal From Lexington County
Marc H. Westbrook, Circuit Court Judge
Opinion No. 25034
Heard November 2, 1999 - Filed December 13, 1999
AFFIRMED IN PART; REVERSED IN PART
AND REMANDED
Wayne Floyd and William Y. Rast, of West Columbia,
and Diana L. Holt, of Columbia, for petitioner.
Attorney General Charles M. Condon, Chief Deputy
Attorney General John W. McIntosh, Assistant Deputy
Attorney General Donald J. Zelenka, and Senior
Assistant Attorney General William Edgar Salter, III, all
of Columbia, for respondent.
WALLER, A.J.: The Court granted a writ of certiorari to review the denial
of Post-Conviction Relief (PCR) to Petitioner, Robert H. "Bo" Southerland. We
affirm in part, reverse in part, and remand for re-sentencing.
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Southerland v. State
FACTS
This is a capital case. Southerland was convicted of murder, kidnapping,
armed robbery, and forgery. The facts are as follows:1
On the evening of October 5, 1989, Southerland, Tony
Cooper, David Burroughs, and Brenda McLaurin abducted Kim
Quinn from her home and drove her to an isolated pond. Cooper
and Southerland dragged Quinn from Cooper's car and raped her.
Southerland then shot Quinn in the neck, back, and head. Cooper
severed Quinn's hands and feet with an axe. Southerland and
Cooper then covered Quinn's body with gasoline and debris which
they set on fire. The remains of Quinn's body were discovered
three days later.
Southerland's convictions and sentences were affirmed. State v. Southerland,
316 S.C. 377, 447 S.E.2d 862 (1994). Thereafter, the circuit court denied
Southerland's application for PCR.
ISSUE 2
Was appellate counsel ineffective in failing to raise and brief the
1The facts are verbatim from the Court's opinion in State v. Southerland,
316 S.C. 377, 381, 447 S.E.2d 862, 865 (1994), cert. denied 513 U.S. 1166 (1995).
2Southerland's remaining issues are affirmed pursuant to Rule 220(b),
SCACR, and the following authorities: Issue 2- State v. Ford, 334 S.C. 59, 512
S.E.2d 500 (1999); Sumpter v. State, 312 S.C. 221, 439 S.E.2d 842 (1994),(trial
judge's findings regarding purposeful discrimination rest largely on evaluation
of demeanor and credibility, and reviewing court should give the findings great
deference on appeal); Issues 3 and 4- Drayton v. Evatt, 312 S.C. 4, 430 S.E.2d
517 (1993); Solomon v. State, 313 S.C. 526, 443 S.E.2d 540 (1994)(where
matters of credibility are involved, great deference is given to PCR judge's
findings); Grier v. State, 299 S.C. 321, 384 S.E.2d 722 (1989) (if there is any
evidence supporting PCR court's findings, this Court must affirm); Issue 5
McCray v. State, 317 S.C. 557, 455 S.E.2d 686 (1995) (issues not raised in
petition for writ of certiorari are not preserved for review).
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Southerland v. State
issue of the trial court's refusal to instruct the jury that the terms
"life" and "death" are to be understood in their plain and ordinary
meaning?
DISCUSSION
At trial, Southerland requested the trial court instruct the jury
concerning his ineligibility for parole. As an alternative, he requested the
court charge the jury was "to understand each of these sentences in their plain
and ordinary meaning." (Defendant's Request to Charge #7). When the trial
court indicated it would not give Southerland's Request # 7, counsel for
Southerland again asked, if the court refused to charge concerning his parole
ineligibility, whether the court planned to charge "that life imprisonment is to
be understood in its plain and present meaning." The court responded that it
would give a charge pursuant to State v. Norris, if and only if the jury inquired
about parole. Id. After the jury was charged, trial counsel renewed his
objection to the court's failure to give his Request # 7.3
Southerland asserts his appellate counsel was ineffective for failing to
argue on appeal that the trial judge erred in refusing to give a "plain and
ordinary meaning" instruction.4 We agree. Case law clearly holds, regardless
of capital defendant's parole eligibility, he or she is entitled to a plain meaning
charge upon request and that the refusal to give such a request is reversible
error.
This Court first enunciated a "plain meaning" charge in State v. Norris,
285 S.C. 86, 328 S.E.2d 339, 344 (1985). In Norris, the jury in a capital case
inquired whether the defendant would be eligible for parole if sentenced to life
imprisonment. The trial court responded by charging the jury that if the
defendant were sentenced to life, he would be eligible for parole in twenty years.
This Court ruled such a charge violated prior precedent that a jury should be
neither invited nor permitted to speculate upon the possible effects of parole
3 The state strenuously asserts Southerland's request for a "plain
meaning" charge is unpreserved., Given counsel's repeated requests for this
charge, we find the state's contention fatuous. The issue is patently preserved.
4 Appellate counsel failed to raise this issue on appeal, and waited until
one week before oral arguments to move to supplement his appellate brief to
raise this issue; this Court denied his request. App. 3124-25, 3134.
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Southerland v. State
upon a conviction. See State v. Brooks, 271 S.C. 355, 247 S.E.2d 436 (1978);
State v. Butler, 277 S.C. 543, 290 S.E.2d 420 (1982). The Court held that
"[w]hen the issue is raised, 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." 285 S.C. at 95, 328 S.E.2d at 344. Accordingly, Norris
established the law to be charged if the jury inquires about parole.
Thereafter, however, in State v. Atkins, 293 S.C. 294, 360 S.E.2d 302
(1987), this Court held, without regard to a jury inquiry concerning parole,
that, "[i]n all death penalty cases which proceed to trial after this opinion is
published, 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." 293 S.C. at 300, 360 S.E.2d at 305 (emphasis supplied). The
Atkins Court went further to hold that, in all subsequent cases decided
pursuant to the Omnibus Crime Control Act, where the defendant requested,
he was entitled, in lieu of a plain meaning charge, to a charge concerning 20 or
30 year parole eligibility, depending upon the jury's finding of a statutory
aggravating circumstance.
Four years later, a majority of this Court overruled State v. Atkins to the
extent it permitted juries to be informed concerning a capital defendant's parole
eligibility. State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991)(Chandler, A.J.
concurring). Justice Chandler's concurrence reiterated that a State v. Norris
(jury not to consider parole and are to understand life and death in their plain
and ordinary meaning) charge was the proper response to any inquiry
concerning parole eligibility. 305 S.C. at 57, 406 S.E.2d at 322.
Less than four months later, this Court clarified Torrence, stating "in
eliminating the consideration of parole, Torrence leaves intact the defendant's
right upon request for a plain meaning charge." State v. Davis, 306 S.C. 246,
251, 411 S.E.2d 220, 222 (1991). The argument in Davis was that, since the
jury's consideration of parole was eliminated by Torrence, there was no longer
any requirement of a "plain meaning" charge. The Davis Court disagreed,
noting that the parole eligibility charge was an alternative to a plain meaning
charge. The Court stated, "[s]ince State v. Atkins, 293 S.C. 294, 360 S.E.2d 302
(1987), this Court has held that where a capital defendant requests it, a
charge must be given at the sentencing phase that the term life
imprisonment is to be understood in its ordinary and plain meaning.
It is reversible error to refuse such a request." 306 S.C. at 251, 411
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Southerland v. State
S.E.2d at 222 (emphasis supplied). This holding has been repeatedly reaffirmed
by this Court, most recently in State v. Ard, 332 S.C. 370, 505 S.E.2d 328
(1998). See also State v. Simmons,5310 S.C. 439, 427 S.E.2d 175
(1993)(defendant still entitled, upon request, to a plain meaning charge under
State v. Atkins); State v. Williams, 321 S.C. 327, 468 S.E.2d 626 (1996)(if
capital defendant requests it, charge must be given at sentencing phase that life
imprisonment means imprisonment for life); State v. Young, 319 S.C. 33, 459
S.E.2d 84 (1995)(court properly refused defendant's request to charge 30 year
parole eligibility in favor of plain meaning charge).
The above outlined cases clearly hold a defendant is entitled, upon
request, to a plain meaning charge as an alternative to parole information.
Although related to the idea of parole eligibility, a plain meaning charge is
simply not synonymous. On the contrary, the cases uniformly recognize it is
reversible error to refuse a plain meaning charge when requested by the
defendant, without regard to the defendant's parole eligibility or ineligibility.
Accordingly, we find appellate counsel was ineffective in failing to raise this
issue on direct appeal and that Southerland was prejudiced thereby.
A defendant is constitutionally entitled to the effective assistance of
appellate counsel. Evitts v. Lucev, 469 U.S. 387,105 S.Ct. 830, 83 L.Ed.2d 821
(1985) (to be effective appellate counsel must give assistance of such quality as
to make appellate proceedings fair); Thrift v. State,, 302 S.C. 535, 397 S.E.2d
523 (1990)(appellate counsel must provide effective assistance but need not
raise every nonfrivolous issue presented by the record). In deciding a claim of
ineffective assistance of counsel, the focus is on "the fundamental fairness of the
proceeding whose result is being challenged." Strickland v. Washington, 466
U.S. 668, 685, 696,104 S.Ct. 2052, 2063, 2069, 80 L.Ed.2d 674, 692, 699(1984).
First, the burden of proof is upon petitioner to show that counsel's performance
was deficient as measured by the standard of reasonableness under prevailing
professional norms. Second, the petitioner must prove that he or she was
prejudiced by such deficiency to the extent of there being a reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. Strickland v. Washington, supra.
Accord Smith v. State, 309 S.C. 413, 424 S.E.2d 480 (1992).
5Simmons was reversed on other grounds by the United States Supreme
Court in Simmons v. South Carolina, 512 U.S. 154,114 S.C.. 2187,129 L.Ed.2d
133 (1994).
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Southerland v. State
Here, the first element of Strickland is clearly met as the case law of this
state is to the effect that an Atkins plain meaning charge is mandatory, if
requested, and that the failure to give such a charge is reversible error.
Accordingly, counsel was deficient in failing to raise this issue. The PCR court
held, however, that Southerland failed to demonstrate prejudice. We disagree.
The standard established by Strickland is that the defendant must
establish by a reasonable probability that the result of the proceeding would
have been different. Strickland, supra; Evitts v. Lucey, supra; State v. Smith,
309 S.C. 413, 424 S.E.2d 480, 481 (1992) (petitioner must prove there is "a
reasonable probability that, but for counsel's unprofessional errors, the result
of the proceeding would have been different"). See also People v. Griffin, 687
N.E.2d 820 (Ill. 1997) (defendant who contends appellate counsel rendered
ineffective assistance, e.g., by failing to argue issue, must show that failure to
raise issue was objectively unreasonable and that, but for this failure,
defendant's conviction or sentence would have reversed).6
Given that each of this Court's cases have held it is reversible error to fail
to give an Atkins charge if requested, it is patent that if counsel had raised the
issue on direct appeal, Southerland would have been entitled to a reversal of the
sentencing phase of his conviction. Accordingly, Southerland has met his
burden of demonstrating both that appellate counsel's performance was
deficient and that; but for the deficient performance, the result of his appeal
would have been different. The sentencing phase of his trial is reversed.
CONCLUSION
The sentencing portion of Southerland's trial is reversed and the matter
remanded for a new sentencing proceeding. The remainder of the circuit court's
order is affirmed.
AFFIRMED IN PART; REVERSED IN PART, AND REMANDED.
MOORE, A.C.J., BURNETT, A.J., Acting Associate Justices
James W. Johnson, Jr., and William T. Howell, concur.
6This is analogous to determining ineffective assistance regarding a
guilty plea, i.e., the defendant must show that counsel's ineffective performance
affected the outcome of the plea process. Alexander v. State, 303 S.C. 539, 402
S.E.2d 484 (1991). See also Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88
L.Ed.2d 203 (1985).
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