Cooper v. Moore, 25512.

• Decision Date: 12 August 2002
• Docket Number: No. 25512.,25512.
• Citation: 569 S.E.2d 330,351 S.C. 207
• Court: South Carolina Supreme Court
• Parties: Gene Tony COOPER, Jr., Respondent, v. Michael MOORE, Commissioner, South Carolina Department of Corrections, Petitioner.

351 S.C. 207

569 S.E.2d 330

Gene Tony COOPER, Jr., Respondent, v. Michael MOORE, Commissioner, South Carolina Department of Corrections, Petitioner.

No. 25512.

Supreme Court of South Carolina.

Heard June 13, 2002.

Decided August 12, 2002.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, Senior Assistant Attorney General William Edgar Salter, III, all of Columbia, for petitioner.

David I. Bruck, of Columbia; and Stuart M. Andrews, Jr., of Nelson Mullins Riley & Scarborough, L.L.P., of Columbia, for respondent.

Acting Chief Justice MOORE.

We granted this petition for a writ of certiorari to determine whether the post-conviction relief (PCR) court erred by finding S.C.Code Ann. § 16-3-28 (1985 & Supp.2001), applies to non-capital crimes and whether the court erred by finding respondent was prejudiced by counsel's alleged deficient performance. We affirm.

FACTS

In the early morning of October 6, 1989, Kimberly Quinn (the victim) was discovered missing from her home. Her empty wallet was found in the yard of the home. At 9:17 a.m., the victim's forged welfare check was cashed at a bank.

The remains of the victim were discovered two days later. She had suffered shotgun wounds to the head, neck, and back. After her murder, the victim's hands and feet were severed with an ax and her body was set on fire with gasoline. The hands and feet were subsequently discovered in a nearby creek, along with an ax owned by respondent.¹ Respondent was convicted of murder, kidnapping, armed robbery, and conspiracy to commit armed robbery. He was acquitted of forgery. He was sentenced to death. He was also sentenced to imprisonment terms of twenty-five years for armed robbery and five years for conspiracy to commit armed robbery. On direct appeal, we affirmed his convictions for armed robbery and conspiracy, reversed his murder conviction and death sentence, and remanded to the trial court. State v. Cooper, 312 S.C. 90, 439 S.E.2d 276 (1994).² The Court concluded, after conducting an in favorem vitae review, that respondent's contention that the failure to obtain an on-therecord waiver of his right to personally address the jury mandated reversal of the murder conviction and death sentence. We denied respondent's petition for rehearing which stated all his convictions should have been vacated.³

Respondent's PCR application, raising issues concerning his right to make a guilt phase closing argument regarding his non-murder convictions, was granted by the PCR court.

ISSUES

I. Did the PCR court err by finding S.C.Code Ann. § 16-3-28 (1985 & Supp.2001), applies to non-capital crimes?

II. Did the PCR court err by finding respondent was prejudiced by counsel's alleged deficient performance?

DISCUSSION

I

Respondent argued at his PCR hearing that he was entitled to a new trial on his non-capital convictions because he did not knowingly and intelligently waive his right to personally address the jury in the guilt phase of his trial. The PCR court granted him relief.

The State argues that because respondent's murder conviction was reversed on direct appeal, the PCR court erred in granting relief on respondent's other convictions because he did not have the right to personally address the jury on those convictions.⁴

Section 16-3-28 provides that "in any criminal trial where the maximum penalty is death or in a separate sentencing proceeding following such trial, the defendant and his counsel shall have the right to make the last argument." S.C.Code Ann. § 16-3-28 (1985 & Supp.2001) (emphasis added).

In respondent's direct appeal, State v. Cooper, 312 S.C. at 91, 439 S.E.2d at 277, n. 2,⁵ and in the case of State v. Charping, 313 S.C. 147, 150, 437 S.E.2d 88, 90 (1993),⁶ the defendants' murder convictions were reversed for the lack of a waiver of the statutory right to make a personal statement. The other convictions were deemed unaffected by trial errors raised for the first time on appeal, and were thus affirmed.

Because Cooper and Charping were decided under in favorem vitae review, we considered only the murder conviction. Issues raised regarding the non-capital convictions could not be raised for the first time on appeal. Although the end result in Charping and Cooper was that only the murder conviction was reversed, we did not hold that non-capital convictions could not be reversed in a situation such as respondent's where a capital defendant, who is also charged with non-capital crimes, is denied his right to make a guilt phase closing statement.

In any event, from the plain language of § 16-3-28, it is clear the General Assembly never intended to limit that section to only those charges that carry a possible death penalty, but instead intended for the capital defendant to have the right to address the jury regarding all of his charges in a capital trial, whether all of the charges carry the death penalty or not.

The primary rule of statutory construction is that the Court must ascertain the intention of the legislature. Kerr v. State, 345 S.C. 183, 547 S.E.2d 494 (2001). Where the terms of the statute are clear, the court must apply those terms according to their literal meaning, without resort to subtle or forced construction to limit or expand the statute's operation. Id.

Section 16-3-28 gives a defendant the right to address the jury "in any criminal trial where the maximum penalty is death." The plain language of the statute makes it clear that a defendant's right to address the jury during the guilt phase of his trial applies only if the defendant is facing a charge that carries the death penalty. However, section 16-3-28 does not limit the defendant's argument to only those charges that carry a possible death penalty but simply states "in any criminal trial where the maximum penalty is death," meaning that the capital defendant has the right to address the jury regarding all of his charges, whether they carry the death penalty or not. From the plain language of § 16-3-28, we hold respondent had the right to make a guilt phase closing argument concerning not only the murder charge, but the non-capital charges as well.

Accordingly, the PCR court did not err by finding that § 16-3-28 applies to non-capital charges.

II

The State argues the PCR court erred by finding respondent was prejudiced by counsel's alleged deficient performance.

Before respondent's trial commenced, the judge informed the jury venire in respondent's presence that "[w]hen all of the evidence has been received by the court, counsel for the state and counsel for the defendant and the defendant himself, if he elects to do so, will state for the jury their respective positions in a summation or a final argument." (Emphasis added). Moments later, the trial judge reiterated to the jury venire that respondent himself had the right to make a final closing argument.

At the close of all the evidence, the trial judge explained to the jury that the next thing they would hear would be "arguments by the attorneys," without stating respondent had a right to make an argument as well.

After the jury found respondent guilty, the trial entered the sentencing phase. During this phase, the judge asked respondent if he understood he had the right to argue to the jury along with his attorneys. Respondent stated he understood that he had that right. The judge also ensured that respondent's decision not to address the jury at this stage was his decision alone.

In his PCR application, respondent alleged he was denied the effective assistance of counsel because he was not advised of his statutory right to make a guilt phase closing argument to the jury.

At the PCR hearing, trial counsel, Jack Duncan, testified he did not discuss the right with respondent because he did not know of the right. Duncan stated if respondent had known about his right to address the jury during the guilt phase, respondent would have made a statement. He stated respondent did not testify at trial because of his prior criminal record and that respondent did not make a penalty phase statement because, at that point, he had lost interest in the trial after being found guilty of a crime he claimed he did not commit.

H. Patterson McWhirter, respondent's other counsel, testified that, although he was aware of the right to personally address the jury during the guilt phase, he did not remember whether respondent was informed of the right. McWhirter acknowledged respondent was capable of addressing the jury and that he would have made some good, logical arguments about the evidence.

Respondent testified he did not know and neither counsel nor the trial judge informed him he had the right to make a guilt phase statement. As for the trial judge's comments to the jury venire, respondent stated if the judge said anything about the right it did not register with him because the judge did not address him directly and discuss the right with him. He stated that, had he known of the right, he would have addressed the jury. Specifically, respondent stated he would have defended himself by discussing all the evidence the solicitor had presented in court. He testified he would have mentioned every charge and allegation and let the jury know he was not guilty of the crimes of which he was charged. He also wanted the jury to see he was not a "crazy person." Respondent indicated, while he knew of the right to make a statement during the penalty phase, he chose not to make a statement because he felt there was nothing to say after he had been convicted of a crime he did not commit.

The PCR court found respondent was denied the effective assistance of counsel when he was not advised of and was denied his statutory right to make a guilt phase closing argument. Further, the PCR court found respondent was not required to show he was prejudiced in order to get relief;⁷ however, the PCR court found, in any event, that r...