Moore v. Stirling

• Decision Date: 06 April 2022
• Docket Number: Appellate Case No. 2020-001519,Opinion No. 28088
• Citation: 436 S.C. 207,871 S.E.2d 423
• Parties: Richard Bernard MOORE, Petitioner, v. Bryan P. STIRLING, Commissioner, South Carolina Department of Corrections, Respondent.
• Court: South Carolina Supreme Court

436 S.C. 207

871 S.E.2d 423

Richard Bernard MOORE, Petitioner,

v.Bryan P. STIRLING, Commissioner, South Carolina Department of Corrections, Respondent.

Appellate Case No. 2020-001519

Opinion No. 28088

Supreme Court of South Carolina.

Heard May 5, 2021

Filed April 6, 2022

Lindsey Sterling Vann and Hannah L. Freeman, both of Justice 360, of Columbia; Gerald Malloy, of Malloy Law Firm, of Hartsville; John H. Blume, III, of Cornell Law School, of Ithaca, NY; and Whitney Boykin Harrison, of McGowan Hood & Felder, LLC, of Columbia; all for Petitioner.

Attorney General Alan McCrory Wilson, Deputy Attorney General Donald J. Zelenka, Senior Assistant Deputy Attorney General Melody Jane Brown, and Senior Assistant Attorney General W. Edgar Salter III, all of Columbia, for Respondent.

William Norman Nettles, of Law Office of Bill Nettles, of Columbia, for Amicus Curiae NAACP Legal Defense and Educational Fund, Inc.

CHIEF JUSTICE BEATTY :

Richard Bernard Moore ("Moore") filed a petition for a writ of habeas corpus challenging the proportionality of the death sentence that was imposed for his murder conviction. The Court ordered briefing and granted Moore's motion to argue against the precedent of State v. Copeland , 278 S.C. 572, 300 S.E.2d 63 (1982). In Copeland , the Court discussed the requirement in S.C. Code Ann. § 16-3-25(C)(3) (2015) that this Court undertake a comparative proportionality review of "similar cases" in death penalty matters. After review of the record and applicable law and consideration of the parties’ arguments, we clarify Copeland and note the Court is not statutorily required to restrict its proportionality review of "similar cases" to a comparison of only cases in which a sentence of death was imposed. We conclude, however, that Moore has not established that he is entitled to habeas relief.

I. FACTS

This case arises out of the armed robbery and shooting death of a convenience store clerk, James Mahoney, at Nikki's Speedy Mart in Spartanburg County in the early morning hours of September 16, 1999.

At Moore's trial in 2001, a witness who was a frequent customer at Nikki's Speedy Mart testified that he saw Moore enter the store and walk over to a cooler shortly after 3:00 a.m. The witness was seated at a gaming machine, playing video poker. A few moments later, he heard Mahoney exclaim, "What the hell do you think you are doing?" The witness swiveled his seat around and noticed Moore had a gun and was holding both of Mahoney's hands with one hand. Moore told the witness not to move and immediately shot at him. The witness was not struck, but he dropped to the floor and played dead.

The witness then heard more gunshots before Moore fled the scene in a loud pickup truck, taking a moneybag from behind the counter. The witness discovered Moore had shot Mahoney in the chest, killing him. Mahoney had also suffered a wound to his arm, which could have been caused by the same gunshot. A meat cleaver of unknown origin was lying near the body.

Moore was shot in his left arm during the incident. There was no evidence that Moore entered the store with a gun. Rather, the forensic evidence established Moore killed Mahoney with a gun that belonged to the store's owner. Witnesses testified that Mahoney usually carried a gun on his person for protection when he worked late at night, and the store's owner kept several guns on the premises, under the counter.

The State asserted Moore's motive was to obtain money to purchase crack cocaine. George Gibson testified Moore had tried to obtain crack cocaine from him earlier in the evening, but he turned Moore down because he had no money. After the shooting death of Mahoney, Moore went back to Gibson, informing him that he had money but had done something bad and needed to turn himself in. Moore sought drugs and assistance to get to the emergency room, as he was bleeding profusely from his left arm, but Gibson declined Moore's requests. As Moore was backing out of Gibson's yard to leave, he accidentally struck a telephone pole, which caught the attention of a passing officer.

When the officer approached, Moore got out of his truck and laid down in the road, stating, "I did it, I did it, I give up, I give up." On the front seat of Moore's truck, the officer saw a blue moneybag belonging to Nikki's Speedy Mart that had blood on it, as well as a pile of loose money that was covered in blood. The total recovered was $1,408.00. A pocketknife was lying on the seat, under the money.

Moore did not testify at trial. The jury convicted Moore of murder, armed robbery, possession of a firearm during the commission of a violent crime, and assault with intent to kill. In the sentencing phase, the jury recommended the death penalty after finding three of the aggravating circumstances set forth in S.C. Code Ann. § 16-3-20(C)(a) (2015): Moore committed the murder during the commission of a robbery while armed with a deadly weapon, he knowingly created a great risk of death to more than one person in a public place by means of a weapon or device that normally would be hazardous to the lives of more than one person, and he committed the murder for the purpose of receiving money or a thing of monetary value. The trial judge sentenced Moore to death.

On direct appeal, this Court affirmed Moore's convictions and death sentence. State v. Moore , 357 S.C. 458, 593 S.E.2d 608 (2004). As part of the direct appeal, this Court performed the comparative proportionality review required by S.C. Code Ann. § 16-3-25(C)(3) (2015).

Moore subsequently filed an application for post-conviction relief ("PCR"), in which he raised numerous allegations of ineffective assistance of counsel. Moore testified at his PCR hearing in 2011 and contradicted the evidence presented at trial. He alleged Mahoney was the aggressor, that he took a gun away from Mahoney after a struggle and fired "blindly" at him after seeking cover, and that he took the bag of money only as an after-thought as he left the store.¹ Moore further maintained that he went to Gibson's home immediately after the shooting to get help for the injury to his arm, not to obtain drugs. The PCR judge found Moore's claims of ineffective assistance of counsel to be without merit and filed an order of dismissal on August 1, 2011. This Court denied Moore's petition for a writ of certiorari. The Supreme Court of the United States also denied Moore's petition for review. Moore v. South Carolina , 576 U.S. 1058, 135 S.Ct. 2892, 192 L.Ed.2d 930 (2015).

Moore filed a federal habeas corpus petition in 2015. The United States District Court for the District of South Carolina adopted the Magistrate's Report and Recommendation and denied the petition. Moore v. Stirling , No. 4:14-04691-MGL, 2018 WL 1430959 (D.S.C. Mar. 21, 2018). The United States Court of Appeals for the Fourth Circuit affirmed. Moore v. Stirling , 952 F.3d 174 (4th Cir. 2020). The United States Supreme Court denied Moore's request for a writ of certiorari. Moore v. Stirling , ––– U.S. ––––, 141 S. Ct. 680, 208 L.Ed.2d 285 (2020).

Moore has now filed a habeas petition with this Court that alleges his death sentence is disproportionate and challenges the Court's proportionality review conducted at the time of his direct appeal. We ordered briefing and oral argument on the following two questions:

(1) Was Petitioner's death sentence disproportionate to the penalty imposed in similar cases?

(2) In determining the proportionality of the death sentence, should similar cases in which the death penalty was not imposed be considered?

II. DISCUSSION

This Court is statutorily required to undertake a comparative proportionality review to determine if "the sentence of death is excessive or disproportionate to the penalty imposed in similar cases , considering both the crime and the defendant." S.C. Code Ann. § 16-3-25(C)(3) (2015) (emphasis added). Moore's contentions to this Court focus on the meaning of "similar cases" as used in the statute. To provide the full context, we note subsection 16-3-25(C) states in its entirety as follows:

(C) With regard to the sentence, the court shall determine:

(1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor, and

(2) Whether the evidence supports the jury's or judge's finding of a statutory aggravating circumstance as enumerated in Section 16-3-20, and

(3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.

Id. § 16-3-25(C).

This Court performed a review of Moore's death sentence pursuant to subsection 16-3-25(C) at the time of his direct appeal in 2004, at which time we found Moore's death sentence was not the result of passion, prejudice, or any other arbitrary factor, and the jury's finding of aggravating circumstances was supported by the evidence. Moore , 357 S.C. at 465, 593 S.E.2d at 612. We further found the death penalty was not excessive or disproportionate to the penalty imposed in similar capital cases, referencing four cases relied upon for our comparison. Id. at 465–66, 593 S.E.2d at 612 (citing State v. Simpson, 325 S.C. 37, 479 S.E.2d 57, cert. denied, 520 U.S. 1277, 117 S.Ct. 2460, 138 L.Ed.2d 217 (1997) ; State v. George, 323 S.C. 496, 476 S.E.2d 903 (1996), cert. denied, 520 U.S. 1123, 117 S.Ct. 1261, 137 L.Ed.2d 340 (1997) ; State v. Sims, 304 S.C. 409, 405 S.E.2d 377 (1991), cert. denied, 502 U.S. 1103, 112 S.Ct. 1193, 117 L.Ed.2d 434 (1992) ; and State v. Patterson, 285 S.C. 5, 327 S.E.2d 650 (1984), cert. denied, 471 U.S. 1036, 105 S.Ct. 2056, 85 L.Ed.2d 329 (1985) ).

Moore contends his death sentence is disproportionate under any meaning of the term "similar cases" and should, therefore, be vacated by this Court. We previously interpreted "similar cases" in State v. Copeland , 278 S.C. 572, 300 S.E.2d 63 (1982). In Copeland , we observed that comparative proportionality review, where it exists, has been left to...