McWee v. State, No. 25780.

CourtUnited States State Supreme Court of South Carolina
Citation357 S.C. 403,593 S.E.2d 456
Docket NumberNo. 25780.
Decision Date27 January 2004
PartiesJerry B. McWEE, Petitioner, v. The STATE of South Carolina, Respondent.

357 S.C. 403
593 S.E.2d 456

Jerry B. McWEE, Petitioner,
v.
The STATE of South Carolina, Respondent

No. 25780.

Supreme Court of South Carolina.

Heard September 23, 2003.

Decided January 27, 2004.

Rehearing Denied March 18, 2004.


357 S.C. 404
John F. Hardaway and Melissa Jane Reed Kimbrough, both of Columbia, for Petitioner

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, and Assistant Deputy Attorney General Donald J. Zelenka, all of Columbia, for Respondent.

Justice BURNETT:

Petitioner, a death row inmate who has exhausted his state remedies, seeks a writ of habeas corpus contending the denial of his request for a parole eligibility charge at trial was "a violation, which, in the setting, constitutes a denial of fundamental fairness shocking to the universal sense of justice." Butler v. State, 302 S.C. 466, 468, 397 S.E.2d 87, 88 (1990) (emphasis in original) (internal citation omitted). We deny the writ.

FACTS

Petitioner was convicted of murder and armed robbery and was sentenced to death. His direct appeal was affirmed. State v. McWee, 322 S.C. 387, 472 S.E.2d 235 (1996), cert. denied 519 U.S. 1061, 117 S.Ct. 695, 136 L.Ed.2d 618 (1997). His application for post-conviction relief was denied and this Court declined to issue a writ of certiorari to review that decision. Petitioner received no relief from the federal courts, see McWee v. Weldon, 283 F.3d 179 (4th Cir.), cert. denied 537 U.S. 893, 123 S.Ct. 162, 154 L.Ed.2d 158 (2002), and has now

357 S.C. 405
filed this petition for a writ of habeas corpus in this Court's original jurisdiction. See Butler v. State, supra.

Petitioner's habeas petition involves the trial court's refusal to give a parole eligibility charge during the penalty phase of petitioner's capital trial. Prior to jury voir dire, petitioner's attorneys inquired whether the trial judge would instruct the jury that petitioner would be parole eligible after service of thirty years. The trial judge indicated he would give such a charge. At the beginning of the penalty phase, however, the trial judge stated he would not instruct the jury on petitioner's parole eligibility. Accordingly, during his initial charge in the penalty phase, the trial judge told the jury that the terms "life imprisonment" and "death penalty" were to be given their plain and ordinary meanings. After some deliberation, the jurors inquired whether a defendant who received a life sentence was required to serve a minimum number of years before becoming eligible for parole. The trial judge reiterated the "plain and ordinary meaning" charge. Petitioner again requested the jury be instructed as to his parole eligibility; the judge again denied the request.

On direct appeal, petitioner argued the trial judge's refusal to give the parole eligibility charge was a violation of his due process and Eighth Amendment rights. The Court held the issue was not properly preserved for review since petitioner failed to assert any constitutional basis for the charge at trial. State v. McWee, supra. Nevertheless, the Court addressed the merits of petitioner's claims, ruling that because petitioner was eligible for parole, his due process rights were not infringed.1 In addition, the Court held petitioner's Eighth Amendment protections were not violated. Finally, the Court found that petitioner failed to demonstrate any fundamental unfairness as the result of the trial judge's ultimate decision not to give a parole eligibility charge.

357 S.C. 406
ISSUE
Does the denial of petitioner's request for a parole eligibility charge warrant the grant of a petition for a writ of habeas corpus?

ANALYSIS

Habeas relief will be granted only for a constitutional claim rising to the level of "a violation, which in the setting, constitutes a denial of fundamental fairness shocking to the universal sense of justice." Green v. Maynard, 349 S.C. 535, 538, 564 S.E.2d 83, 84 (2002), quoting Butler v. State, supra. "[N]ot every intervening decision, nor every constitutional error at trial will justify issuance of the writ." Id. A writ of habeas corpus will only be granted under "unique and compelling circumstances." Id. Habeas corpus is available only when other remedies are inadequate or unavailable. Gibson v. State, 329 S.C. 37, 495 S.E.2d 426 (1998).

The Court has previously reviewed and denied petitioner's present claim. In his direct appeal, the Court determined petitioner's failure to receive a parole eligibility charge was neither a violation of due process nor the Eighth Amendment. State v. McWee, supra. The Fourth Circuit Court of Appeals concurred in its denial of petitioner's federal habeas application. McWee v. Weldon, supra. No controlling constitutional law has since been created holding otherwise. See Shafer v. South Carolina, 532 U.S. 36, 121 S.Ct. 1263, 149 L.Ed.2d 178 (2001) (whenever future dangerousness is at issue in capital sentencing proceeding under South Carolina's sentencing scheme, due process requires jury be informed that life sentence carries no possibility of parole). There is simply no constitutional requirement that a parole eligible defendant receive a parole eligibility instruction.

The current case is both factually and legally distinguishable from Butler v. State, supra, where habeas relief was granted. After Butler was tried, his direct appeal affirmed, and his application for post-conviction relief denied, the Court issued several decisions stating a defendant's Fifth Amendment rights are violated if the trial judge pressures a defendant into testifying. See State v. Cooper, 291 S.C. 332, 353 S.E.2d 441 (1986); State v. Pierce, 289 S.C. 430, 346 S.E.2d

357 S.C. 407
707 (1986); State v. Gunter, 286 S.C. 556, 335 S.E.2d 542 (1985)

Subsequently, Butler filed a habeas petition on the basis the trial judge had coerced him into testifying.2 The Court noted Butler "seeks to take advantage of constitutional principles recognized after his trial, appeal, and exhaustion of state post-conviction relief proceedings." Butler, 302 S.C. at 468, 397 S.E.2d at 88. The Court stated:

We caution that not every intervening decision, nor every constitutional error at trial will justify issuance of the writ. Rather, the writ will issue only under circumstances where there has been a "violation, which, in the setting, constitutes a denial of fundamental fairness shocking to the universal sense of justice." Although we do not condone the delay in calling this grave constitutional error to our attention, under the unique and compelling circumstances of this case we grant petitioner relief.

Id. (italic in original) (internal citation omitted).

The Court granted Butler extraordinary relief. It emphasized the trial judge was unaware Butler was mentally retarded and it expressed concern that Butler may not have understood the trial proceedings.

Furthermore, this case is dissimilar to Tucker v. Catoe, 346 S.C. 483, 552 S.E.2d 712 (2001), in which the Court granted habeas relief to an applicant after concluding his due process rights were violated by an unduly coercive Allen3 charge. The Court found it was the combination of the constitutional violation and other circumstances which compelled it to conclude the applicant had been denied fundamental fairness shocking to the universal sense of justice.

Petitioner notes that, despite the trial judge's "plain and ordinary meaning" charge during the initial penalty phase instructions, the jury returned with a parole eligibility question. Petitioner suggests that, after his appeal was decided, we created new law holding it is misconduct for a jury to fail to "rely solely upon the court's instructions for the law." State v. Harris, 340 S.C. 59, 63, 530 S.E.2d 626, 627 (2000).

357 S.C. 408
It has always been the law that the jury must confine its consideration to the law as given by the trial judge. S.C. Const. art. V, § 21 (the judge shall declare the law).4 On direct appeal, petitioner could have readily challenged the jury's misconduct in considering matters contrary to the trial judge's instruction, but he did not do so. Accordingly, the misconduct by petitioner's jury does not "in the setting"— petitioner's trial and its reviews—constitute a violation shocking to the universal sense of justice

Put simply, failure to charge the jury that petitioner was parole eligible is not shocking to the universal sense of justice. Clearly, petitioner's constitutional rights were not violated by the trial judge's refusal to give a parole eligibility charge; moreover, there have been no intervening circumstances by way of new law, after-discovered evidence, or any other alleged fact, which, in the setting, warrants the issuance of a writ of habeas corpus.5 We deny the petition.

WRIT DENIED.

TOAL, C.J., and WALLER, J., concur. PLEICONES, J., dissenting in a separate opinion in which Acting Justice G. THOMAS COOPER, JR., concurs.

Justice PLEICONES:

I respectfully dissent. In my opinion, the denial of petitioner's request for a parole eligibility charge at his capital trial

357 S.C. 409
was "a violation, which, in, the setting, constitutes a denial of fundamental...

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10 practice notes
  • Moore v. Stirling, 28088
    • United States
    • United States State Supreme Court of South Carolina
    • April 6, 2022
    ...State, 302 S.C. 466, 468, 397 S.E.2d 87, 88 (1990) (citation omitted); accord Ozmint, 380 S.C. at 477, 671 S.E.2d at 602; McWee v. State, 357 S.C. 403, 406, 593 S.E.2d 456, 457 (2004); Green v. Maynard, 349 S.C. 535, 538, 564 S.E.2d 83, 84 (2002). The phrase "'in the setting' refers specifi......
  • Moore v. Stirling, Appellate Case No. 2020-001519
    • United States
    • United States State Supreme Court of South Carolina
    • April 6, 2022
    ..., 302 S.C. 466, 468, 397 S.E.2d 87, 88 (1990) (citation omitted); accord Ozmint , 380 S.C. at 477, 671 S.E.2d at 602 ; McWee v. State , 357 S.C. 403, 406, 593 S.E.2d 456, 457 (2004) ; Green v. Maynard, 349 S.C. 535, 538, 564 S.E.2d 83, 84 (2002). The phrase " ‘in the setting’ refers specifi......
  • Robertson v. State, Appellate Case No. 2012-205909
    • United States
    • United States State Supreme Court of South Carolina
    • December 14, 2016
    ...Butler v. State, 302 S.C. 466, 468, 397 S.E.2d 87, 88 (1990) (internal quotation marks omitted) (citation omitted); McWee v. State, 357 S.C. 403, 414, 593 S.E.2d 456, 461 (2004) (Pleicones, J., dissenting) (explaining a Butler petition provides the Court with "a final opportunity to review ......
  • Robertson v. State, Appellate Case No. 2012-205909
    • United States
    • United States State Supreme Court of South Carolina
    • December 14, 2016
    ...Butler v. State, 302 S.C. 466, 468, 397 S.E.2d 87, 88 (1990) (internal quotation marks omitted) (citation omitted); McWee v. State, 357 S.C. 403, 414, 593 S.E.2d 456, 461 (2004) (Pleicones, J., dissenting) (explaining a Butler petition provides the Court with "a final opportunity to review ......
  • Request a trial to view additional results
10 cases
  • Moore v. Stirling, 28088
    • United States
    • United States State Supreme Court of South Carolina
    • April 6, 2022
    ...State, 302 S.C. 466, 468, 397 S.E.2d 87, 88 (1990) (citation omitted); accord Ozmint, 380 S.C. at 477, 671 S.E.2d at 602; McWee v. State, 357 S.C. 403, 406, 593 S.E.2d 456, 457 (2004); Green v. Maynard, 349 S.C. 535, 538, 564 S.E.2d 83, 84 (2002). The phrase "'in the setting' refers specifi......
  • Moore v. Stirling, Appellate Case No. 2020-001519
    • United States
    • United States State Supreme Court of South Carolina
    • April 6, 2022
    ..., 302 S.C. 466, 468, 397 S.E.2d 87, 88 (1990) (citation omitted); accord Ozmint , 380 S.C. at 477, 671 S.E.2d at 602 ; McWee v. State , 357 S.C. 403, 406, 593 S.E.2d 456, 457 (2004) ; Green v. Maynard, 349 S.C. 535, 538, 564 S.E.2d 83, 84 (2002). The phrase " ‘in the setting’ refers specifi......
  • Robertson v. State, Appellate Case No. 2012-205909
    • United States
    • United States State Supreme Court of South Carolina
    • December 14, 2016
    ...Butler v. State, 302 S.C. 466, 468, 397 S.E.2d 87, 88 (1990) (internal quotation marks omitted) (citation omitted); McWee v. State, 357 S.C. 403, 414, 593 S.E.2d 456, 461 (2004) (Pleicones, J., dissenting) (explaining a Butler petition provides the Court with "a final opportunity to review ......
  • Robertson v. State, Appellate Case No. 2012-205909
    • United States
    • United States State Supreme Court of South Carolina
    • December 14, 2016
    ...Butler v. State, 302 S.C. 466, 468, 397 S.E.2d 87, 88 (1990) (internal quotation marks omitted) (citation omitted); McWee v. State, 357 S.C. 403, 414, 593 S.E.2d 456, 461 (2004) (Pleicones, J., dissenting) (explaining a Butler petition provides the Court with "a final opportunity to review ......
  • Request a trial to view additional results

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