Sheppard v. State

• Citation: 594 S.E.2d 462,357 S.C. 646
• Decision Date: 22 March 2004
• Docket Number: No. 25796.,25796.
• Parties: Joseph R. SHEPPARD, Petitioner, v. STATE of South Carolina, Respondent.
• Court: United States State Supreme Court of South Carolina

357 S.C. 646

594 S.E.2d 462

Joseph R. SHEPPARD, Petitioner, v. STATE of South Carolina, Respondent.

No. 25796.

Supreme Court of South Carolina.

Submitted January 22, 2004.

Decided March 22, 2004.

Senior Assistant Appellate Defender Wanda H. Haile, of Columbia, for petitioner.

Attorney General Henry D. McMaster, Chief Deputy Attorney General John W. McIntosh, Chief Capital and Collateral Litigation Donald J. Zelenka, Assistant Deputy Attorney General Allen Bullard, and Assistant Attorney General Christopher L. Newton, all of Columbia, for respondent. Justice MOORE:

We granted this writ of certiorari to determine whether the post-conviction relief (PCR) court erred by denying petitioner's request for a belated appeal. We reverse the PCR court and, after a review of petitioner's direct appeal issues, we affirm his convictions for murder and possession of a firearm during the commission of a violent crime.

PROCEDURAL FACTS

Petitioner was convicted of murder and possession of a firearm during the commission of a violent crime and received consecutive sentences of life imprisonment for murder and five years on the firearm charge. No direct appeal was taken. Thereafter, petitioner filed a PCR application seeking a belated review of his direct appeal issues pursuant to White v. State, 263 S.C. 110, 208 S.E.2d 35 (1974). Following the White hearing, the PCR court issued an order finding petitioner was not entitled to a belated review of his direct appeal issues.

Post-Conviction Relief Issue

Did the PCR court err by failing to grant petitioner a belated review of his direct appeal issues?

DISCUSSION

Petitioner contends the PCR court erred by finding he voluntarily waived his right to a direct appeal because trial counsel misadvised him that if his convictions were reversed on appeal, the State could again seek the death penalty.

To waive a direct appeal, a defendant must make a knowing and intelligent decision not to pursue the appeal. Davis v. State, 288 S.C. 290, 342 S.E.2d 60 (1986). The Court will reverse a PCR court's decision when it is controlled by an error of law. Pierce v. State, 338 S.C. 139, 526 S.E.2d 222 (2000).

Petitioner was convicted of murdering a Greenville city police officer. During the sentencing hearing, the State introduced evidence of only one aggravating circumstance, that the victim was a law enforcement officer killed during the performance of his duties. See S.C.Code Ann. § 16-3-20(C)(a)(7) (2003). The jury found the aggravating circumstance was present, but recommended life imprisonment instead of death.

At the White hearing, petitioner testified he called trial counsel's office the day after his trial and told counsel to appeal his case. Counsel met with petitioner and told him it would be unreasonable to file an appeal because the State could seek the death penalty again if he was granted a new trial. Based on counsel's advice, petitioner did not file a direct appeal. Trial counsel confirmed the facts as stated by petitioner. Counsel testified, however, that he believed, and continues to so believe, the State would do everything to execute petitioner, including attempting to have a pertinent United States Supreme Court case overturned.

The general rule in capital punishment cases is that when a defendant's conviction is reversed on appeal, the original conviction is nullified and the slate is wiped clean. Gill v. State, 346 S.C. 209, 552 S.E.2d 26 (2001). If the defendant is convicted again on retrial, the death penalty may be validly imposed. This doctrine is known as the clean slate rule and was enunciated by the United States Supreme Court (USSC) in United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896), and North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).

In Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981), the USSC recognized a limited exception to the clean slate rule—when a jury or appellate court finds the prosecution has failed to "prove its case" for the death penalty, and a life sentence is imposed, the clean slate rule does not apply, and the State cannot seek a harsher sentence upon retrial. Id. The USSC held that where the first jury returns a unanimous verdict of life imprisonment, the Double Jeopardy Clause of the Fifth Amendment bars the imposition of the death penalty on retrial. The first jury, by choosing life, impliedly decides the prosecution has not proved its case for death, and impliedly acquits the defendant of the death penalty. According to Bullington, the clean slate rule is inapplicable whenever a jury agrees or an appellate court decides the prosecution has not proved its case.

Under South Carolina's sentencing scheme, there are three possible outcomes following the jury's determination that a statutory aggravating circumstance is present: (1) the jury recommends death and the trial judge imposes death; (2) the jury fails to recommend death and the trial judge imposes life without parole; or (3) the jury is deadlocked as to whether death should be imposed and the trial judge imposes a sentence of life imprisonment. S.C.Code Ann. § 16-3-20 (2003).

In the instant case, the sentencing jury found the presence of a statutory aggravating circumstance and failed to recommend death. Therefore, counsel's advice that petitioner would face the death penalty was erroneous given the jury's actions constituted an acquittal of the death penalty under Bullington, supra.

Although counsel testified he believed the State would attempt to overturn Bullington, counsel's speculation about what the State would argue is not a sufficient justification for his failure to correctly explain the law or effectively convey to petitioner that his advice was based on speculation about the State's strategy, rather than the law. Further, petitioner desired to file an appeal, but chose not to after counsel informed him he could face the death penalty if he was retried. Accordingly, the PCR court erred by finding petitioner voluntarily waived his right to a direct appeal.

Direct Appeal

FACTS

On the day of the crime, Officer James Russell Sorrow attempted to arrest petitioner pursuant to a felony warrant. The officer eventually chased petitioner into the home of petitioner's aunt, Nancy Workman. The officer cornered petitioner and attempted to place handcuffs on him. Petitioner was able to escape from the officer and another chase ensued. Subsequently, petitioner shot the officer two times in the face, four times in the back of his head, and once in the buttocks. The officer died as a result of his wounds. Petitioner was captured a few days later at a local motel. He was charged with murder and possession of a firearm during the commission of a violent crime. After a trial, the jury convicted petitioner of both charges.

ISSUE I

Did the trial court err by denying petitioner's motion for a change of venue due to pretrial publicity?

DISCUSSION

Petitioner argues his motion to change venue should have been granted due to the nature of the crime, i.e. a "cop killing," and due to the large percentage of potential jurors that were aware of the media coverage. He argues this established inherent prejudice because the case was easily remembered.

During voir dire, the trial court asked eighty-seven prospective jurors whether they had been exposed to pretrial publicity. Out of eighty-seven potential jurors, all but five had been exposed to pretrial publicity. The trial court then asked these prospective jurors whether they had formed an opinion about the case and whether they could put aside what they had heard and base their verdict on the evidence presented at trial. Fourteen of the prospective jurors indicated they had formed an opinion that petitioner was guilty. Out of those fourteen, eight prospective jurors stated they could not set it aside. Of the eight who said they could not set it aside, only one of these was qualified to be in the pool from which the jury would be empanelled.¹ This person was not seated on the jury.²

The trial court denied petitioner's motion for a change of venue based on excessive pretrial publicity. The court stated pervasive pretrial publicity alone was not sufficient to relocate the trial. The court concluded the jury pool, after being subjected to extensive voir dire, was fair and impartial.

A motion to change venue is addressed to the sound discretion of the trial judge and will not be disturbed on appeal absent an abuse of discretion. State v. Manning, 329 S.C. 1, 495 S.E.2d 191 (1997) (finding trial court abused discretion by granting State's motion to change venue based on pretrial publicity because no evidentiary facts supported finding of actual juror prejudice toward State). When a trial judge bases the denial of a motion for a change of venue because of pretrial publicity upon an adequate voir dire examination of the jurors, his decision will not be disturbed absent extraordinary circumstances. State v. Caldwell, 300 S.C. 494, 388 S.E.2d 816 (1990). When jurors have been exposed to pretrial publicity, a denial of a change of venue is not error when the jurors are found to have the ability to set aside any impressions or opinions and render a verdict based on the evidence presented at trial. State v. Manning, supra.

Therefore, mere exposure to pretrial publicity does not automatically disqualify a prospective juror. Id. Instead, the relevant question is not whether the community remembered the case, but whether the jurors had such fixed opinions that they could not judge impartially the guilt of the defendant. Id. It is the defendant's burden to demonstrate actual juror prejudice as a result of such publicity. State v. Caldwell, supra.

The trial court properly denied petitioner's motion for a change of venue because petitioner did not show extraordinary circumstances why this decision should be disturbed given the adequacy of the voir dire examination of...