Lowry v. State

• Decision Date: 11 February 2008
• Docket Number: No. 26436.,26436.
• Citation: 657 S.E.2d 760,376 S.C. 499
• Parties: Joseph LOWRY, Petitioner, v. STATE of South Carolina, Respondent.
• Court: South Carolina Supreme Court

657 S.E.2d 760

376 S.C. 499

Joseph LOWRY, Petitioner, v. STATE of South Carolina, Respondent.

No. 26436.

Supreme Court of South Carolina.

Submitted December 6, 2007.

Decided February 11, 2008.

Tara Shurling, of Columbia, for Petitioner.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Julie Thames, all of Columbia, for Respondent.

Chief Justice TOAL.

In this case, the PCR court found that a supplemental jury charge on felony murder did not violate Petitioner's due process rights, and therefore, that Petitioner's counsel was not ineffective in failing to object to the charge. This Court granted certiorari to review the PCR court's decision. Because we find that the charge unconstitutionally shifted the burden of proof for malice in Petitioner's murder conviction, we reverse.

FACTUAL/PROCEDURAL BACKGROUND

A grand jury indicted Petitioner Joseph Lowry ("Petitioner") for murder, possession of a firearm during the commission of a violent offense, armed robbery, and criminal conspiracy for his role in the September 1994 robbery and murder of a motel desk clerk in York County. At trial, the court instructed the jury on the elements of each of the charged offenses as well as the laws of accomplice liability and criminal intent. The murder charge specifically explained the finding of malice beyond a reasonable doubt and addressed inferences of malice which may be drawn from certain facts, such as the performance of an unlawful act, the use of a deadly weapon, and the commission of a felony (known as the felony murder doctrine). With respect to the felony murder doctrine, the trial court charged:

Additionally, the law says if one intentionally kills another during the commission of a felony, the inference of malice may arise. If facts are proven beyond a reasonable doubt sufficient to raise an inference of malice to your satisfaction, again I tell you this inference would be simply an evidentiary fact to be taken into consideration by you along with the other evidence in this case. I charge you that armed robbery with[,] which [Petitioner] is also charged[,] is under our state law a felony.

When the trial court directed the jury to begin deliberations, the solicitor told the court that he had not heard the court charge the felony murder doctrine. Although Petitioner's counsel and the trial court both claimed to have heard such an instruction, the trial court ultimately agreed to bring the jurors back in for a supplemental instruction on felony murder. In order to alleviate Petitioner's counsel's concern that such a supplemental instruction would highlight the theory of felony murder, the trial court stated that it would also incorporate aspects of accomplice liability into the charge.

Upon calling the jury back into the courtroom, the trial court gave the following charge:

Let me follow up with a very brief instruction regarding what is sometimes referred to as the felony murder doctrine.

The fact that I brought you back in is simply because I neglected to charge this. This particular charge is not to be given any other weight or highlighted in any way by you simply because I brought you in here and gave it to you separate from the other. It is my mistake; I left this out, it was called to my attention, and I must charge it to you. The fact that it is isolated, you are to give it no more consideration. You are to blend it in with the charge as I have given it to you.

... you will recall I went over and talked with you about accomplice liability, I meant to conclude that by telling you this in regard to what is called the felony murder doctrine. That is, if a person kills another in the doing or attempting to do an act which is considered a felony, the fact that this occurs while one is doing or attempting to commit a felony makes the killing murder. And, therefore, the killing by one of another in the commission or attempted commission of a felony makes that killing, by virtue of it occurring in that context[,] a murder.

Petitioner's counsel did not object to the supplemental charge.

The jury convicted Petitioner for murder, possession of a firearm during the commission of a violent offense, armed robbery, and criminal conspiracy. The trial court imposed a life sentence for the murder, concurrent five-year sentences for the firearm possession and conspiracy, and a concurrent thirty-year sentence for the armed robbery. Following review pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), this Court affirmed Petitioner's convictions and sentences. State v. Lowry, Op. No. 1998-MO-060 (S.C. Sup.Ct. filed July 20, 1998).

Following his direct appeal, Petitioner filed an application for PCR alleging, among other things, that trial counsel was ineffective for failing to object to the supplemental charge on felony murder. Specifically, Petitioner argued that the supplemental instruction was burden-shifting in nature and violated his due process rights under the federal and state constitutions by presuming the malice element of murder.¹ The PCR court found that the supplemental charge, when considered in context with the initial jury charge, was fair, and therefore, that counsel was not ineffective in failing to object. The PCR court further concluded that the charge was not prejudicial given the "overwhelming evidence" of Petitioner's guilt produced at trial. The PCR court subsequently denied Petitioner's application.

This Court granted certiorari to review Petitioner's belated appeal from the PCR court's decision pursuant to Austin v. State, 305 S.C. 453, 409 S.E.2d 395 (1991) (holding that an applicant has a right to appellate counsel's assistance in seeking review of the denial of PCR), and Petitioner raises the following issue for review:

Was counsel ineffective in failing to object to the trial court's supplemental jury instruction on felony murder because it shifted the burden of proof for malice from the State to the Petitioner and deprived Petitioner of due process of law?

STANDARD OF REVIEW

In reviewing the PCR court's decision, an appellate court is concerned only with whether any evidence of probative value exists to support that decision. Smith v. State, 369 S.C. 135, 138, 631 S.E.2d 260, 261 (2006). If no probative evidence exists to support the PCR court's findings, this Court will reverse. Pierce v. State, 338 S.C. 139, 145, 526 S.E.2d 222, 225 (2000).

LAW/ANALYSIS

Petitioner argues that trial counsel was ineffective for failing to object to the court's supplemental instruction on felony murder. Specifically, Petitioner argues that the supplemental charge created a mandatory presumption of malice that shifted the burden of proof from the prosecution to the defendant, thereby depriving Petitioner of due process of law. We agree.

In order to establish a claim of ineffective assistance of counsel, Petitioner must prove that (1) counsel failed to render reasonably effective assistance under prevailing professional norms, and (2) counsel's deficient performance prejudiced Petitioner's case. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Butler v. State, 286 S.C. 441, 442, 334 S.E.2d 813, 814 (1985). A deficient performance by counsel is prejudicial when there is a reasonable probability that, but for the counsel's errors, the outcome of the trial would have been different. Hill v. State, 350 S.C. 465, 567 S.E.2d 847 (2002) (quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052).

Petitioner's claim arises out of the Due Process Clauses of the Fifth and Fourteenth Amendments, which protect an accused against conviction unless the State supplies proof beyond a reasonable doubt of each element necessary to constitute the crime with which the accused is charged.² In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). This principle prohibits the use of evidentiary presumptions in a jury charge that have the effect of relieving the State of its burden of proof beyond a reasonable doubt as to every essential element of the crime. Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).

The relevant inquiry for the Court in this matter is whether there is a reasonable likelihood that the jury applied the challenged instruction in a way that violates the Constitution. Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991); Todd v. State, 355 S.C. 396, 403, 585 S.E.2d 305, 309 (2003). In order to make this determination, the challenged instruction must be examined in the context of the trial court's entire charge to the jury and not in isolation. Francis v. Franklin, 471 U.S. 307, 315, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985); Todd, 355 S.C. at 402, 585 S.E.2d at 308. A jury instruction violates due process if it is reasonably likely that the jury understood the charge to create a mandatory presumption requiring it to infer an element of the offense if the State proved certain predicate facts, thereby relieving the State's burden of proof on an element of the offense. Francis, 471 U.S. at 314, 105 S.Ct. 1965; Sandstrom, 442 U.S. at 521, 99 S.Ct. 2450. The ultimate question for the Court to determine is "whether the ailing instruction ... so infected the entire trial that the resulting conviction violates due process." Middleton v. McNeil, 541 U.S. 433, 437, 124 S.Ct. 1830, 158 L.Ed.2d 701 (2004) (quoting Estelle, 502 U.S. at 72, 112 S.Ct. 475).

We find that the trial court's supplemental instruction on felony murder unquestionably shifted the burden of proof for the malice element of murder from the State to Petitioner.³ Viewed in its entirety, the supplemental jury charge contained no permissive language indicating that the jury may infer malice from Petitioner's participation in the armed robbery. Instead, the charge simply provided that if the jury first...