THE STATE OF SOUTH CAROLINA

In The Supreme Court

John Henry Simmons, Jr., Petitioner,

v.

State of South Carolina, Respondent.

ON WRIT OF CERTIORARI

Appeal From Richland County

John H. Waller, Jr., Trial Judge

Paul E. Short, Jr., Post-Conviction Judge

Opinion No. 24795

Submitted April 22, 1998 - Filed June 1, 1998

REVERSED

Assistant Appellate Defender Tara S. Taggart and

Assistant Appellate Defender Lesley M. Coggiola,

both of the South Carolina Office of Appellate

Defense, of Columbia, for petitioner.

Attorney General Charles Molony Condon, Deputy

Attorney General John W. McIntosh, and Assistant

Deputy Attorney General Teresa A. Knox, all of

Columbia, for respondent.

BURNETT, A.J.: This Court granted certiorari to review the

denial of petitioner's application for post-conviction relief (PCR). We

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reverse.

FACTS

Petitioner was convicted of first degree burglary and two

counts of assault and battery of a high and aggravated nature (ABHAN).

The jury did not recommend mercy on the burglary charge,¹ and petitioner

was sentenced to life imprisonment for the burglary and ten years

imprisonment for each ABHAN. His convictions and sentences were

affirmed on direct appeal. State v. Simmons, Op. No. 87-MO-276 (S.C.

Sup. Ct. filed June 8, 1987).

Petitioner filed an application for PCR alleging ineffective

assistance of counsel. At the PCR hearing, petitioner specifically claimed

trial counsel was ineffective for failing to object to and move for a mistrial

because of improper and inflammatory jury arguments by the solicitor and

the solicitor's jury argument of matters outside the record.

The solicitor made the following comments during his closing

argument:

He might have had plans to case that house, get an idea

everything that was there and was going to take it on the way

out. He had something else in mind. He had something evil

on his mind. He went in, it was obvious the people were

upstairs. He knew exactly what he wanted. He saw Mrs.

Lewis sleeping in her bed in the darkness, exactly what he

wanted . . . .

That is the form of the verdict in a burglary case, everybody

knows, realize in a criminal case there is just two verdicts:

guilty or not guilty. In burglary, it is a little bit different.

There is what they call special verdicts. You have two forms

of guilty in a burglary case. One is guilty and the other is

burglary statute which eliminated the provision that absent a

recommendation of mercy by the jury, the sentence for burglary was a

mandatory term of life imprisonment. Compare S.C. Code Ann. § 16-11-

310 (1985) with S.C. Code Ann. § 16-11-311 (Supp. 1997).

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guilty with a recommendation for mercy. The difference

between the two is the basis for sentencing. They say that for

a guilty burglary without a recommendation for mercy, that

carries a life sentence. Why do they call it a life sentence,

when it is not the entire natural life of a person. Not that. It

is a heavier sentence than recommendation for mercy. That is

the basic difference. Guilty with mercy carries a lighter

sentence ....

The real choice in this case is going to be do we find him

guilty of burglary or do we recommend mercy? . . .

Which are you going to apply for our home, the New York

standard or the South Carolina standard? In New York, just a

burglary, so what, give him mercy. South Carolina the

standard should be clear.

Trial counsel failed to object to any of these statements.

During the PCR hearing, trial counsel offered no reason for his failure to

object, although trial counsel admitted he probably should have objected to

some of the statements because the solicitor misstated the law.

The PCR judge found the statements, while perhaps improper,

harmless when considered in the context of the whole trial because "there

was enough evidence in the record to convict the [petitioner], thereby

providing a reasonable probability that the jury verdict would not have

been different absent the solicitor's statements." According to the PCR

judge, the trial judge adequately cured any prejudice created by the

solicitor's statement regarding a life sentence not being a full natural life

by explaining to the jury that the trial judge was responsible for

sentencing. Further, the PCR judge found the "real choice" argument and

the "New York" argument, when read in context, were merely

informational and not prejudicial. The PCR judge failed to rule on the

statements concerning petitioner's intent to rape Mrs. Lewis which

petitioner claimed was improper because no facts in the record supported

this argument.

ISSUE

Did the PCR judge err in failing to find trial counsel ineffective

for failing to object to portions of the solicitor's closing

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statement?

DISCUSSION

Petitioner contends the PCR judge erred in failing to find trial

counsel was ineffective for failing to object to the portions of the solicitor's

closing argument concerning the meaning of a life sentence and the "real

choice" available to the jury. We agree.

The burden is on the applicant in a post-conviction proceeding

to prove the allegations in his application. Butler v. State, 286 S.C. 441,

334 S.E.2d 813 (1985), cert. denied, 474 U.S. 1094, 106 S.Ct. 869, 88

L.Ed.2d 908 (1986). As to allegations of ineffective assistance of counsel,

the applicant must show his counsel's performance fell below an objective

standard of reasonableness, and but for counsel's errors, there is a

reasonable probability the result at trial would have been different.

Strickland v. Washington, 466 U.S. 668p 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984); Johnson v. State, 325 S.C. 182p 480 S.E.2d 733 (1997). A

reasonable probability is a probability sufficient to undermine confidence

in the outcome of the trial. Johnson v. State, supra.

A solicitor's closing argument must not appeal to the personal

biases of the jurors nor be calculated to arouse the jurors' passions or

prejudices, and its content should stay within the record and reasonable

inferences to it. State v. Copeland, 321 S.C. 318, 468 S.E.2d 620 (1996).

Improper comments do not automatically require reversal if they are not

prejudicial to the defendant. Johnson v. State, supra; 3 Wharton's

Criminal Procedure § 353 (13th ed. 1991) (question is whether comment

was sufficiently prejudicial or harmless). On appeal, the appellate court

will view the alleged impropriety of the solicitor's argument in the context

of the. entire record, including whether the trial judge's instructions

adequately cured the improper argument and whether there is

overwhelming evidence of the defendant's guilt. Johnson v. State, supra (a

solicitor's improper comments may be cured by the judge's instructions to

the jury); State v. Copeland, supra; United States v. Wilson, 135 F.3d 291

(4th Cir. 1998). The appellant has the burden of proving he did not

receive a fair trial because of the alleged improper argument. State v.

Johnson, supra; State v. Copeland, supra. The relevant question is

whether the solicitor's comments so infected the trial with unfairness as to

make the resulting conviction a denial of due process. Donnelly v.

DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974); State v.

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

146, 139 L.Ed.2d 92 (1997).

The solicitor misstated the law in his closing argument by

improperly injecting parole considerations into the jury's sentencing

decision and equating a finding of guilty with a recommendation of mercy

with a much lighter sentence or an acquittal. See State v. Brooks, 271

S.C. 355, 247 S.E.2d 436 (1978) (a jury should not be invited nor

permitted to speculate about the possible effects of parole upon a

conviction). In State v. Hinton, 210 S.C. 480, 4881, 43 S.E.2d 360, 363

(1947), this Court stated:

Nor can we find any justification for the argument that if the

defendants were found guilty of murder, but recommended to

life imprisonment, that this would not necessarily mean that

they would serve a life sentence.

It would appear that the only logical inference to be

drawn from such an argument is that, in a case like the one

before us, all elements of mercy and extenuating circumstances

should be put aside, even if present, because the only certainty

of adequate punishment would be a sentence of guilty without

recommendation to mercy. In other words, a verdict of murder

should be rendered because some other department of the state

government might shorten or commute a life sentence.

In Hinton, the Court found the solicitor's improper argument

probably affected the verdict. Further, the instructions given by the trial

judge to the jury to disregard the solicitor's improper comments did not

cure the prejudice caused by these remarks; therefore, the defendant was

entitled to a new trial. Id. Compare with State v. Gilstrap, 205 S.C. 412,

32 S.E.2d 163 (1944) (evidence of guilt was overwhelming and the

instruction was adequate to cure the improper argument; thus, the

defendant was not prejudiced).

Here, the trial judge's instructions to the jury did not correct

the solicitor's misstatements concerning the consequences of the burglary

conviction. The trial judge informed the jury that the sentencing

responsibility was exclusively his, and he discussed the three forms of

verdict available to the jury for the burglary charge. No explanation of

the sentencing consequences for a verdict of guilty and for a verdict of

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guilty with a recommendation of mercy were provided to the jury. See

State v. Plath, 277 S.C. 126, 284 S.E.2d 221 (1981), appeal after remand,

281 S.C. 1, 313 S.E.2d 619, cert. denied by Arnold v. South Carolina, 467

U.S. 1265, 104 S.Ct. 3560, 82 L.Ed.2d 862 (1984), overruled on other

grounds by State v. Collins, 329 S.C. 23, 495 S.E.2d 202 (1998) (any

prejudice from reference to parole in argument was cured by trial judge's

jury instruction); State v. McGee, 268 S.C. 618, 235 S.E.2d 715 (1977)

(where the right to fix the punishment or make a recommendation with

regard to punishment rests with the jury, the consequences of a conviction

should be provided to the jury). Thus, no jury instructions cured the

solicitor's improper argument.

The evidence of petitioner's guilt is overwhelming.² However,

because the issue is whether the solicitor's improper argument prevented

the jury from fairly considering the guilty with a recommendation of mercy

verdict, the overwhelming evidence of petitioner's guilt does not eliminate

the reasonable probability that the result of the trial would have been

different had trial counsel objected to portions of the solicitor's closing

argument. See. State v. McGee, 268 S.C. 618, 235 S.E.2d 715 (1977)

(where this Court found the trial judge erred by refusing to instruct the

jury as to the penalty for the crime of burglary and by preventing the jury

from determining, as the statute requires, whether to recommend mercy,

and further finding this type of error could not be considered harmless

because the recommendation of the jury is an important part of the verdict

and without proper instructions, the probability of prejudice is great); see

also State v. White, 246 S.C. 502, 144 S.E.2d 481 (1965) (finding where

the jury had absolute discretion with regard to the issue of mercy, it was

impossible to determine whether the solicitor's improper argument actually

complete description to the police. Mrs. Lewis positively identified

petitioner as the intruder at a subsequent photographic lineup and again

at trial. Mr. Lewis was able to stab the intruder in the chest prior to the

intruder's escape. Police were notified that someone had called for an

ambulance from 4106 Glendon Street in Richland County, but later

canceled the request. A police officer investigated the call by going to the

address. The police officer found petitioner at that address and he had a

fresh wound to the center of his chest. Bloody clothing was found at the

address. Further, a shoe tassel matching the one found at the victims'

residence belonged to petitioner.

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prejudiced defendant; however, the probability of prejudice was great, and

defendant was entitled to a new trial).

The solicitor's improper comments prevented petitioner from

having the jury fairly consider the possible sentencing alternatives.

Further, the jury instructions failed to cure the prejudice caused by these

comments. Thus, because the probability for prejudice is great, we grant

petitioner a new trial on the burglary charge. See Chubb v. State, 303

S.C. 395, 401 S.E.2d 159 (1991) (holding because determination of guilt

and whether mercy should be recommended should be made in one

proceeding by the same jury, petitioner is entitled to a new trial on the

burglary charge).

As to the portion of the closing argument concerning

petitioner's intent to rape Mrs. Lewis, which petitioner claims was

improper because no facts in the record supported this argument, the

failure of trial counsel to object was not ruled on by the PCR judge and,

accordingly, is not preserved for review.³Plyler v. State, 309 S.C. 408,

outside the record by inferring the crime petitioner intended to commit

was rape. State v. Huggins, 325 S.C. 103, 481 S.E.2d 114 (1997)

(arguments must be confined to evidence in the record and reasonable

inferences therefrom, although a failure to do so will not automatically

result in reversal); State v. Tucker, 324 S.C. 155, 478 S.E.2d 260 (1996),

cert. denied, ___ U.S. ___, 117 S.Ct. 1561, 137 L.Ed.2d 708 (1997) (closing

arguments must be confined to the evidence in the record and its

reasonable inferences). However, even if the remarks were improper, they

did not prejudice petitioner's right to a fair trial because the evidence

against petitioner on the burglary charge was overwhelming. State v.

Huggins, supra (a new trial will not be granted unless the prosecutor's

comments so infected the trial with unfairness as to make the resulting

conviction a denial of due process); see also Darden v. Wainwright. 477

U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986); State v. Tucker, supra

(the burden of proof is on appellant to show prejudice as a result of the

solicitor's improper comments); State v. Copeland, supra (a reviewing court

will view the alleged improper remark in the context of the entire record).

Thus, in our opinion, these comments did not affect the outcome of the

trial. Compare with United States v. Wilson, 135 F.3d 291 (4th Cir. 1998)

(prosecutor's improper argument that defendant murdered someone

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424 S.E.2d 477 (1992).

As to the "New York" comments, we find, within the context of

the whole record, they were not improper.

REVERSED.

FINNEY, C.J., TOAL and MOORE, JJ., concur. WALLER, A.J., not

participating.

defendant was on trial for drug offenses and not for the murder, and the

murder argument was emphasized in prosecutor's comments).

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