Arnold v. State

• Citation: 420 S.E.2d 834,309 S.C. 157
• Decision Date: 22 October 1991
• Docket Number: No. 23610,23610
• Court: United States State Supreme Court of South Carolina
• Parties: John D. ARNOLD, Petitioner, v. STATE of South Carolina, Respondent. John H. PLATH, Petitioner, v. STATE of South Carolina, Respondent. . (Arnold)

Page 834

420 S.E.2d 834

309 S.C. 157

John D. ARNOLD, Petitioner, v. STATE of South Carolina, Respondent.

John H. PLATH, Petitioner, v. STATE of South Carolina, Respondent.

No. 23610.

Supreme Court of South Carolina.

(Arnold) Submitted Oct. 22, 1991.

(Plath) Submitted Nov. 21, 1991.

Refiled August 31, 1992.

Edmund H. Robinson, of Shimel, Ackerman, Theos, Spar & Robinson, Charleston, and South Carolina Office of Appellate Defense, Columbia, for petitioner John D. Arnold.

John H. Blume and Franklin W. Draper, both of South Carolina Death Penalty Resource Center, South Carolina Office of Appellate Defense, Columbia, and Kathy D. Lindsay, Beaufort, for petitioner John H. Plath.

Attorney General T. Travis Medlock and Chief Deputy Atty. Gen. Donald J. Zelenka, Columbia, for respondent in Arnold.

Attorney General T. Travis Medlock, Chief Deputy Atty. Gen. Donald J. Zelenka,

and Asst. Atty. Gen. Miller W. Shealy, Jr., Columbia, for respondent in Plath.

ORDER

The petition for rehearing is granted. We dispense with further briefing and withdraw the opinion in John D. Arnold & John H. Plath v. State of South Carolina, Op. No. 23610, (S.C.Sup.Ct. filed March 30, 1992) (Davis Adv.Sh. No. 9 at 26). The opinion which follows this order is hereby substituted. The following changes have been made in the original opinion:

1. Davis Advance Sheet Number 9, page 37, paragraph 2:

Thus, we assume that the jury listened to all of the evidence presented tending to prove or disprove malice.

Changed to:

Thus, we conclude that the jury listened to all of the evidence presented tending to prove or disprove malice.

2. Advance Sheet Number 9, page 37, paragraph 3:

Based upon all the evidence presented, no rational juror could have found malice based solely on the presumption.

Changed to:

Based upon all the evidence presented tending to prove or disprove malice, no rational juror could have failed to find malice.

IT IS SO ORDERED.

AS AMENDED ON REHEARING

TOAL, Justice:

These cases are appeals from the denial of Post-Conviction Relief by the circuit court. We affirm.

HISTORY OF THE CASE

On April 12, 1978, Betty Gardner hitchhiked a ride with John Arnold, John Plath, Cindy Sheets, and Carol Ulman. The foursome first took Betty Gardner to her brother's home. Betty asked if they would then take her to work. They drove to a dirt road in rural Beaufort County and let Betty out of the car. After some discussion, the foursome turned the car around and picked Betty up, ostensibly to take her to work. From there they went down a dirt road to a garbage dump where Betty Gardner was brutally murdered. On June 25, 1978, Cindy Sheets led the authorities to Betty Gardner's badly decomposed body.

John Arnold and John Plath were tried together for the murder of Betty Gardner. Cindy Sheets, Carol Ulman and John Plath testified at the trial. Cindy Sheets received immunity from prosecution provided she told the truth at the trial of John Arnold and John Plath. The record does not reveal the disposition of any charges against Carol Ulman. However, the record does reveal that Carol Ulman was eleven years old on April 12, 1978, the day of the murder, and twelve years old at the time of the trial.

Plath and Arnold stood trial together before The Honorable Clyde A. Eltzroth and a jury. The guilt phase of the trial commenced on January 22, 1979. On February 5, 1979, the jury found John Plath and John Arnold guilty of the murder of Betty Gardner. After a separate penalty phase proceeding, the same jury found the aggravating circumstance of kidnapping as to each defendant and returned verdicts of death on the 9th of February, 1979. Both John Plath and John Arnold appealed to this Court. This Court upheld their convictions on direct appeal, but reversed and remanded the penalty or sentencing phase of the trial. State v. Plath & Arnold, 277 S.C. 126, 284 S.E.2d 221 (1981). On remand, a second jury sentenced John Plath and John Arnold to death for the murder of Betty Gardner. In the second sentencing trial, the solicitor put forth assault with intent to ravish as well as kidnapping as aggravating circumstances. The sentencing jury found John Plath guilty of both kidnapping and assault with intent to ravish and John In separate petitions, both defendants sought Post-Conviction Relief. The PCR judge denied Arnold relief on December 14, 1985. This Court declined to grant certiorari. Arnold appealed to the United States Supreme Court. On January 19, 1988, on Petition for Writ of Certiorari to the Court of Common Pleas of South Carolina, Beaufort County, the United States Supreme Court remanded the case to the circuit court. The Supreme Court's remand order provides as follows:

                Arnold guilty of kidnapping.   Both defendants appealed the second death sentence.   This Court affirmed the second death sentence on direct appeal.  State v. Plath & Arnold, 281 S.C. 1, 313 S.E.2d 619, cert. denied, 467 U.S. 1265, 104 S.Ct. 3560, 82 L.Ed.2d 862, reh. den., 468 U.S. 1226, 105 S.Ct. 27, 82 L.Ed.2d 920 (1984)
                

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded for further consideration in the light of Yates v. Aiken, 484 U.S. 211, 108 S.Ct. 534, 98 L.Ed.2d 546 (1988).

Arnold v. South Carolina, 484 U.S. 1022, 108 S.Ct. 743, 98 L.Ed.2d 757 (1988); see also Plath v. South Carolina, 484 U.S. 1022, 108 S.Ct. 743, 98 L.Ed.2d 757 (1988) (identical language).

Yates v. Aiken, supra, ("Yates, II "), cited by the Supreme Court in its remand order, deals with malice charges given in the 1980 murder trial of Dale Yates. In Yates, the charges instructed the jury that malice could be presumed or inferred from the doing of an unlawful act and from the use of a deadly weapon. In Yates, II, these charges were held to constitute an unconstitutional shifting of the burden of proof from the State to the defendant. Thus, in Arnold, on remand from the United States Supreme Court, the PCR proceedings now focused on the malice charges given by the trial judge in the guilt phase of the first trial. Additional PCR hearings were held on May 18, 1988 and November 15, 1989. The PCR judge denied Arnold relief by his orders dated May 5, 1989 and March 5, 1990. Arnold now appeals the denial of PCR relief. We granted certiorari to review the decision of the PCR judge.

John Plath was denied post-conviction relief on May 12, 1986. This Court denied his petition of certiorari. Plath then petitioned the United States Supreme Court for certiorari. The United States Supreme Court granted Plath's petition and remanded the case to the South Carolina Circuit Court in language identical to the Arnold remand order. Plath v. South Carolina, 484 U.S. 1022, 108 S.Ct. 743, 98 L.Ed.2d 757 (1988). Now focusing on the malice charge issue, additional post-conviction relief hearings were held on May 18, 1988 and November 15, 1989. The circuit court denied Plath's application for post-conviction relief by orders dated May 5, 1989 and March 5, 1990. We granted certiorari to review the orders of the circuit court.

Because each petitioner presents the same questions of law and the same facts, we consolidate the two cases for the purpose of this opinion.

ISSUES

1. Did the circuit court err in holding that the malice charge given by the trial judge was not an unconstitutional shifting of the burden of proof to the defendant?

2. If the malice charge was error, did the circuit court err in holding that the error was harmless?

3. Did the circuit court err in holding that petitioner's motion to amend the post-conviction relief petition was untimely?

ANALYSIS

1. Did the circuit court err in holding that the malice charge given by the trial judge was not an unconstitutional shifting of the burden of proof to the defendant?

The PCR judge found that the malice charge was not an unconstitutional shifting of the burden of proof. We disagree. The malice charge given by the trial judge is similar to the malice charge given in Yates v. Evatt, 500 U.S. ----, 111 S.Ct. 1884, 114 L.Ed.2d 432 (1991). ¹ At trial in the instant case, the judge gave the following jury charge on malice:

What is malice? Malice is defined in the law of homicide as a term of art, that is a technical term importing or denoting wickedness and excluding just cause or excuse. It is something which springs from wickedness, from depravity, from a heart devoid of social duty and fatally bent upon mischief. The words, express and implied, do not mean different kinds of malice but merely the manner in which the only kind of malice known to the law may be shown to exist, that is, either expressly or inferred. Malice may be expressed as where one makes previous threats of vengeance or where one lies in wait or other circumstances which show directly that the intent to kill was really entertained. Malice may also be implied as where, even though no express intent to kill is proven by express or direct evidence, it is indirectly but necessarily inferred from the facts and circumstances of the case which are proven. Malice may be implied or presumed from the willful, deliberate and intentional doing of an unlawful act without just cause or excuse. In other words, in its general signification, malice means the doing of a wrongful act intentionally without justification or excuse. But even if facts proven are sufficient to raise a presumption of malice, such a presumption would be rebuttable and it is for you, the jury, to determine from all the evidence in this case whether malice has been established beyond a reasonable doubt. If one use a deadly weapon or employ a deadly weapon deliberately, intentionally, and without just cause or excuse should take the life of another, malice would be presumed or implied. And further, even in the absence of a specific fixed and deliberate intent to take the life of a particular person or that of any person, malice may be...