Gore v. Leeke, 19704

• Decision Date: 12 October 1973
• Docket Number: No. 19704,19704
• Parties: Benjamin Kenneth GORE, Appellant, v. William D. LEEKE, Director, South Carolina Department of Corrections, Respondent.
• Court: South Carolina Supreme Court

Page 755

199 S.E.2d 755

261 S.C. 308

Benjamin Kenneth GORE, Appellant, v. William D. LEEKE, Director, South Carolina Department of

Corrections, Respondent.

No. 19704.

Supreme Court of South Carolina.

Oct. 12, 1973.

Laughlin McDonald, Columbia, for appellant.

Atty. Gen., Daniel R. McLeod and Asst. Attys. Gen. Emmet H. Clair and Robert M. Ariail, Columbia, for respondent.

BUSSEY, Justice:

At the January 1970 term of the Court of General Sessions for Beaufort County the appellant Gore, along with two co-defendants, Roper and Phillips, was convicted of the crime of murder and sentenced to life imprisonment. Motions for a directed verdict in his behalf, for an order setting aside the verdict and for a new trial were denied. Upon his trial he was represented by court appointed counsel who, following his conviction, filed a timely notice of appeal in his behalf. Gore then retained other counsel to represent him on appeal who, however, failed to timely perfect the same, a motion by such counsel to allow him to belatedly perfect such appeal being denied by this Court by order dated December 14, 1970.

Thereafter, Gore filed an application for post-conviction relief, such relief, however, being denied, after a full hearing, by an order of The Honorable W. L. Rhodes, dated April 22, 1972. At such hearing Gore was represented by retained counsel who prosecutes the present appeal. In a related case Gore's conviction of grand larceny was affirmed by this Court. State v. Gore, 257 S.C. 330, 185 S.E.2d 826.

The present appeal purports to be from the order of Judge Rhodes, but actually such is not the case. No one of the numerous exceptions imputes any error whatsoever to Judge Rhodes in denying post-conviction relief. With one exception, the appeal is actually from the original conviction and sentence and the contemporary orders of the court in connection therewith. The single exception is the contention that the failure of Gore's then retained counsel to timely perfect his appeal amounted to a denial of his constitutional right to effective assistance of counsel at a vital or critical stage of the proceedings against him. The record now before us reflects certain factual matters not brought fully to the attention of this Court when it, in December 1970, denied the motion by Gore's then retained counsel to be allowed to file a belated appeal. In view of this circumstance and to remove any question of infringement of Gore's constitutional rights by the failure of his counsel to perfect the original appeal, we have decided to review the entire record and pass upon all questions raised and argued just as if the original appeal had been timely perfected and filed.

On the 15th day of August, 1969, between 3 P.M. and 4 P.M. the residence of the Lawson family on Hugenin Street, in a residential area in Beaufort County, was broken into by two or more men who stole and conveyed therefrom various personal property of the value of approximately $5,000.00, including two pistols, two bags of money, a camera and a safe weighing some seven or eight hundred pounds, which contained a coin collection. Mrs. Lawson accompanied by two children returned to the residence while the crime was in progress. She saw Roper and Phillips in and about the premises but did not see Gore or any other third person. Mrs. Lawson, accompanied by the children, ran to the home of a neighbor, across the street, to call the police. The automobile used in the commission of the crime belonged to Gore's wife, and earlier in the day Gore and Phillips were seen together at the home of Gore's father-in-law in Beaufort County. Within a few minutes after Mrs. Lawson surprised the thieves, and within a few blocks of the Lawson home, three men were seen in the Gore automobile.

In response to Mrs. Lawson's call a deputy sheriff was dispatched but through an error in communication went to the wrong address. Nevertheless, in the general vicinity he encountered and almost had a collision with the Gore automobile. The deputy turned and gave chase. The deck lid of the Gore automobile flew up disclosing the Lawson safe therein. In response to a radio call from the deputy, one Woods, a highway patrolman, joined the pursuit of the Gore automobile, which ended when the pursued car collided with another at the entrance to the Marine Air Station on U.S. Highway 21, a point some five miles distant from the Lawson home. Phillips, Roper and Gore exited from the Gore automobile and gunfire ensued. Patrolman Woods was shot and killed by Phillips who commandeered the automobile of one Hollifield, the fatal shot being fired by Phillips as he was leaving the scene in the Hollifield car. Phillips thereafter drove the Hollifield car to a point about six miles from Charleston before letting Hollifield, his wife and child out of the car.

As the culprits alighted from the Gore automobile at the scene of the fatality, Roper had a gun in his hand which was somehow dropped unfired, Roper running for the woods and being shot by a party upon the scene who picked up Patrolman Woods' gun after Woods was fatally shot, and used it to wound Roper in flight. Gore also ran from the scene toward the woods and was wounded by the deputy sheriff. One witness testified that Gore had a gun in his hand, but there was no evidence that Gore fired a shot, and the gun he allegedly had was never recovered or identified. Gore was unarmed when apprehended the following day.

The pistol with which Phillips fired the fatal shot was never recovered and it may or may not have been the .38 caliber pistol taken from the Lawson home, which was likewise never recovered. Aside from the pistols taken from the Lawson home, the evidence disclosed the culprits were armed with a shotgun, in the hands of Roper in the course of the housebreaking and larceny; the pistol dropped by Roper after getting out of the Gore automobile at the scene of the homicide; the pistol seen by one witness in the hand of Gore but not recovered; and the pistol used by Phillips to fire the faltal shot, if, perchance, it was other than the one taken from the Lawson home. All property stolen from the Lawson home, other than the .38 caliber pistol, was still in the Gore automobile after the fatal shooting.

Since Gore did not fire the fatal shot he was, of course, convicted under what has become called the 'felony-murder rule', in connection with which the trial judge charged the jury as follows:

'Now, ladies and gentlemen of the jury, if several persons agree or conspire to commit a felony such as grand larceny or robbery or burglary, each of those persons is criminally responsible for the acts of his associates or confederates which are done in furtherance or in prosecution of the common purpose for which they combined. The common purpose, ladies and gentlemen, may have not included or may not have been involved in the killing and the murder of anyone but if in executing this common design and purpose and if it were unlawful as, for instance, breaking in and stealing, and in the execution of this common purpose a homicide is committed by one of the confederates or one of the associates and you, the jury, determine from the proof beyond a reasonable doubt that the homicide was a probable or natural consequence of the acts which were done in pursuance of this common design then, ladies and gentlemen, all who are present, either actually or constructively, and participating in the unlawful, common design are as guilty as the slayer himself.'

Gore's principal contention appears to be that his conviction as a result of the application of the felony-murder rule was in violation of the due process clauses of both the State and Federal Constitutions. In this connection he first argues that the due process clauses require all elements of a criminal charge to be proven beyond a reasonable doubt and that the unconstitutional vice of the felony-murder rule is that its conclusive presumption of malice allows a defendant to be convicted of murder without the State's proving the element of malice beyond a reasonable doubt. He cites no in point authority for this contention and we know of none. What he refers to as a conclusive presumption is a rule of substantive law rather than a rule appertaining to the offer or burden of proof. Wigmore on Evidence, Sec. 2492. The law itself implies the malice from proof of the felony. While a number of jurisdictions, including Congress, (Title 18, Sec. 1111, U.S.C.A.), have enacted felony-murder statutes, South Carolina has not done so, having instead consistently followed the common law rule. One of the early cases in which the rule was applied is State v. Smith, 2 Strob. 77. In State v. Levelle, 34 S.C. 120, 13 S.E. 319, in applying the rule the Court quoted from 1 Russ. Crimes (3d Am.Ed.) 424, the following,

'Whenever an unlawful act, an act malum in se, is done in prosecution of a felonious intention, and death ensues, it will be murder.'

The Court went on to point out that the act out of which the homicide allegedly arose was an unlawful act, malum in se, and a felony. Among other decisions of this Court applying the felony-murder rule are: State v. Cannon, 49 S.C. 550, 27 S.E. 526; State v. Johnson, 156 S.C. 63, 152 S.E. 825; State v. Williams, 189 S.C. 19, 199 S.E. 906; State v. Woods, 189 S.C. 281, 1 S.E.2d 190; State v. Ciesiellski, 213 S.C. 513, 50 S.E.2d 194.

Gore argues that even if it be assumed that the felony-murder rule is not unconstitutional per se, its application to him under the facts of this case is constitutionally impermissible. In support of this contention he cites decisions of the United...