Gill v. State

• Decision Date: 20 August 2001
• Docket Number: No. 25344.,25344.
• Citation: 346 S.C. 209,552 S.E.2d 26
• Court: South Carolina Supreme Court
• Parties: Eric GILL, Petitioner, v. STATE of South Carolina, Respondent.

346 S.C. 209

552 S.E.2d 26

Eric GILL, Petitioner, v. STATE of South Carolina, Respondent.

No. 25344.

Supreme Court of South Carolina.

Submitted February 28, 2001.

Decided August 20, 2001.

Senior Assistant Appellate Defender Wanda H. Haile, of South Carolina Office of Appellate Defense, of Columbia, for petitioner.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General G. Robert DeLoach, III and Assistant Attorney General David Spencer, all of Columbia, for respondent.

TOAL, Chief Justice:

Eric Gill ("Gill") appeals the circuit court judge's order denying post-conviction relief ("PCR"). We affirm.

FACTUAL/PROCEDURAL BACKGROUND

On October 6, 1977, Isabelle Mills ("Mills") was cooking hamburgers at Bert's Grill along with several co-workers. At approximately 11:00 a.m., she heard a "bang" and saw Gill comirg towards her with a gun. Gill fired the gun, killing Mills' co-worker, Bert Long ("Long"), with a gunshot wound to the head. Mills ran to the ladies room. Gill followed her and fired the gun inside the bathroom. He then entered the bathroom and fired the gun at Mills. As the two struggled over the gun, the gun fired. Mills was struck by bullets a total of three times. Kathie Faile ("Faile"), another employee of Bert's Grill who was present during the shooting, testified Gill also shot at her and one bullet hit her in the right shoulder and another hit her in the back. Despite being shot, Faile managed to get to a phone in an attempt to call for help. While Faile was making the call, Gill yanked the receiver from her hand and fled. Mills and Faile saw Gill and another man drive away from the scene.

In October 1979, Gill was found guilty of murder, grand larceny of a vehicle, armed robbery, and two counts of assault and battery with intent to kill ("ABIK"). During the penalty phase, the jury deadlocked on the question of aggravating circumstances and the judge declared a mistrial. Thereafter, the trial judge sentenced Gill to life imprisonment on the murder conviction, eight years on the grand larceny conviction, twenty years on the armed robbery conviction, twenty years for ABIK, and eighteen years for the second conviction of ABIK.¹ Gill appealed his convictions and sentences, but later withdrew his appeal. This Court ordered the appeal dismissed on February 15, 1980.

On June 2, 1993, and July 17, 1995, Gill filed an application for PCR and an amended application for PCR, respectively. At the PCR hearing on June 3, 1997, Gill argued his appeal was involuntarily withdrawn because he was advised by counsel he could face the death penalty if he prevailed on direct appeal. On July 16, 1997, the PCR judge issued an order of dismissal denying Gill's application for PCR on the ground Gill did not sustain his burden of proving trial counsel rendered ineffective legal representation. Gill appealed the PCR judge's order and filed a petition for writ of certiorari. On March 9, 2000, this Court granted certiorari. The following issues are before this Court on certiorari:

I. Did Gill knowingly, intelligently, and voluntarily waive his right to direct appeal when counsel advised him that if he appealed and his convictions and sentences were overturned, he could receive the death penalty upon retrial?

II. Did the trial court err in denying Gill's request for a jury charge on diminished capacity?

III. Did the trial court err in denying Gill's motion for mistrial after the solicitor commented during closing argument on Gill's failure to present a defense?

LAW/ANALYSIS

I. Waiver of Right to Direct Appeal

Gill argues the PCR judge erred by denying his PCR application because his attorney mistakenly advised him he could face the death penalty if he prevailed on appeal and was retried. According to Gill, this advice caused him to involuntarily withdraw his appeal. We disagree.

A. The PCR Proceeding

In a PCR proceeding, the burden of proof is on the applicant to prove the allegations in his application. Brown v. State, 340 S.C. 590, 533 S.E.2d 308 (2000); Rule 71.1(e), SCRCP. For an applicant to be granted PCR as a result of ineffective assistance of counsel, he must demonstrate: (1) his counsel failed to render reasonably effective assistance under prevailing professional norms; and (2) he was prejudiced by his counsel's ineffectiveness. Id. (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). In order to prove prejudice, an applicant must demonstrate that but for counsel's errors, there is a reasonable probability the result of the trial would have been different. Johnson v. State, 325 S.C. 182, 480 S.E.2d 733 (1997). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id.

This Court must affirm the PCR court's decision when its findings are supported by any evidence of probative value. Cherry v. State, 300 S.C. 115, 386 S.E.2d 624 (1989). Likewise, a PCR judge's findings should not be upheld if there is no probative evidence to support them. Holland v. State, 322 S.C. 111, 470 S.E.2d 378 (1996).

At the June 3, 1997, PCR hearing, Gill argued he received ineffective assistance of counsel because his attorney advised him to withdraw his appeal. Specifically, Gill claims his attorney advised him the State could seek the death penalty if he was retried. The PCR judge found Gill's allegation "meritless." According to the PCR judge, Gill's testimony was not credible, and Gill did not demonstrate ineffective assistance of counsel or prejudice.

Defense counsel testified at the PCR hearing he could not recall discussing the appeals process with Gill and could not recall whether an appeal was filed, but he had a vague recollection co-counsel filed a notice of appeal "just to do it." While he did not recall specifically, defense counsel testified it was "highly likely" he informed Gill that if his conviction was overturned on appeal, he may face the death penalty again. This advice was a correct statement of the law as discussed infra.

B. The Clean Slate Rule

This Court has never addressed whether a mistrial during the sentencing phase of a capital trial precludes the State from seeking the death penalty in the event of a new trial. As a general rule, a court cannot retry a defendant for an offense greater than and including the offense for which he was previously convicted. Conviction for a lesser included offense is an implied acquittal of any greater charges. Therefore, a prosecution on retrial for a greater offense than that for which the defendant was first convicted would constitute a violation of the Double Jeopardy Clause. Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970); see also Bozeman v. State, 307 S.C. 172, 414 S.E.2d 144 (1992)

(finding trial counsel ineffective for falsely informing defendant he could be convicted of murder on retrial if he appealed and succeeded in vacating his manslaughter conviction). However, in certain circumstances, the sentence imposed at the first trial does not prevent the State from seeking a greater sentence upon retrial.

For example, the general rule in capital punishment cases is that when a defendant's conviction is reversed on appeal, the original conviction is nullified and the slate is wiped clean.² If the defendant is convicted again on retrial, the death penalty may be validly imposed. This doctrine is known as the clean slate rule and was enunciated by the United States Supreme Court in United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896) and North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).

In Ball, the United States Supreme Court held the constitutional guarantee against double jeopardy imposes no limitations upon the power to retry a defendant who has succeeded in getting his first conviction set aside. In Pearce, the question arose as to whether that same constitutional guarantee precluded the imposition of a harsher sentence after conviction upon retrial. The United States Supreme Court held, because the original conviction was nullified at the defendant's request, the slate was wiped clean and the sentencing court could impose any legally authorized sentence, whether or not it was greater than the sentence imposed following the first trial.

In Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981), the United States Supreme Court recognized a limited exception to the clean slate rule—when a jury or appellate court finds the prosecution has failed to "prove its case" for the death penalty, and a life sentence is imposed, the clean slate rule does not apply, and the State cannot seek a harsher sentence upon retrial. In Bullington, the jury found the petitioner guilty of murder. The trial court then conducted a sentencing hearing before the same jury, and the parties presented additional evidence in aggravation or mitigation of the punishment. The jury returned a unanimous verdict of life imprisonment. When the petitioner was granted a new trial on appeal, the State notified him of its intention to seek the death penalty. The petitioner appealed to the United States Supreme Court, and they granted certiorari to review the Double Jeopardy issue.

The United States Supreme Court held that, where the first jury returns a unanimous verdict of life imprisonment, the Double Jeopardy Clause of the Fifth Amendment bars the imposition of the death penalty on retrial. The first jury, by choosing life, impliedly decides the prosecution has not proved its case for death, and impliedly acquits the defendant of the death penalty. According to the United States Supreme Court, the clean slate rule is inapplicable whenever a jury agrees or an appellate court decides the prosecution has not proved its case. Id. at 443-445, 101 S.Ct. at 1860-61; see also Arizona v. Rumsey, 467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984)

(holding that...