Plyler v. State, 23739

• Citation: 309 S.C. 408,424 S.E.2d 477
• Decision Date: 16 November 1992
• Docket Number: No. 23739,23739
• Parties: James PLYLER, Petitioner, v. STATE of South Carolina, Respondent.
• Court: United States State Supreme Court of South Carolina

Page 477

424 S.E.2d 477

309 S.C. 408

James PLYLER, Petitioner, v. STATE of South Carolina, Respondent.

No. 23739.

Supreme Court of South Carolina.

Submitted Sept. 22, 1992.

Decided Nov. 16, 1992.

Asst. Appellate Defender Joseph L. Savitz, III, South Carolina Office of Appellate Defense, Columbia, for petitioner.

Atty. Gen. T. Travis Medlock, Chief Deputy Atty. Gen. Donald J. Zelenka, and Asst. Atty. Gen. Teresa Nesbitt Cosby, Columbia, for respondent.

CHANDLER, Justice:

We granted certiorari to review an Order denying Petitioner James Randall Plyler (Plyler) post-conviction relief (PCR). We affirm.

Plyler was convicted of murder and armed robbery and sentenced to consecutive terms of life imprisonment and twenty-five years. This Court affirmed the sentences on direct appeal. State v. Plyler, Op. No. 85-MO-164 (S.C.Sup.Ct. filed July 1, 1985).

At the PCR hearing, Plyler alleged that trial counsel was ineffective for: failing to closely examine the victim's gun; failing to object to the admission of dye-stained money; failing to have Plyler's psychiatrist testify at trial; failing to call various members of the community as witnesses; and failing to present evidence of an illicit affair between the victim and Plyler's mother. The PCR court found that the trial record, along with testimony at the PCR hearing, conclusively refuted these allegations. Accordingly, he dismissed that portion of the application charging ineffective assistance of counsel. ¹

On certiorari to this Court, Plyler raises the issue of whether trial counsel was ineffective for failing to object to an erroneous malice charge. Since this issue was neither raised at the PCR hearing nor ruled upon by the PCR court, it is procedurally barred. Hyman v. State, 278 S.C. 501, 299 S.E.2d 330 (1983).

As to the merits of this allegation, it is well settled that to establish ineffective assistance of counsel, the petitioner must satisfy a two-prong test; first, he must demonstrate that counsel's representation fell below an objective standard of reasonableness; second, he must prove there is a reasonable probability that, but for counsel's errors, the outcome of the trial court would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

We agree with Plyler that the trial judge's malice charge here impermissibly shifted the burden of proof from the State. The judge charged in part, that:

[M]alice is implied or presumed from the willful, deliberate, and intentional doing of an unlawful act without just cause or excuse. In other words, in it's [sic] general signification, malice means the doing of a wrongful act, intentionally, without justification or excuse. But even if facts proven are sufficient to raise a presumption of malice, such presumption would be rebuttable and it is for you, the jury, to determine from all of the evidence of the case whether or not it has been established beyond a reasonable doubt ... Malice may be implied or presumed from the willful, deliberate, and intentional doing of an unlawful act without just cause or excuse. If one man, using or imploring a deadly weapon, deliberately and intentionally and without just cause or excuse, takes the life of another, malice will be presumed or implied. And further, ladies and gentlemen, even in the absence of a specific deliberate intent to take the life of a particular person or that of any person, malice may be implied or presumed from the conduct of the defendant in the use of or handling a deadly weapon, a dangerous instrumentality such as a pistol, shotgun, rifle, knife, or axe ... [A]s I have told you, if the circumstances established by the evidence should be found sufficient to raise an implication or presumption of malice under any principle of law which has been stated to you, such presumption is rebuttable and it is always for the jury to say whether or not, under all of the evidence malice in fact has been established beyond a reasonable doubt.

Although certain portions of the malice charge are not incorrect, it is so diseased with burden-shifting presumptions that it violates Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). See also Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985). Counsel should have objected to the charge.

Given counsel's ineffective performance, we now address the question of whether Plyler was prejudiced by the erroneous charge. We hold he was not.

In Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the United States Supreme Court held that a harmless error analysis can be applied to constitutional deprivations; however, "... before a federal constitutional error can be held harmless, the Court must be able to declare a belief that it was harmless beyond a reasonable doubt." 386 U.S. at 24, 87 S.Ct. at 828, 17 L.Ed.2d at 710-711. Upon review of a Sandstrom violation, the Court must find that the erroneous malice instruction did not contribute to the verdict based upon all the evidence presented to the jury. Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986) (applying Chapman, supra, to a burden-shifting malice instruction).

To say that an error did not contribute to the verdict is ... to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record. Thus, to say that an instruction to apply an unconstitutional presumption did not contribute to the verdict is to make a judgment about the significance of the presumption to reasonable jurors, when measured against the other...