Simmons v. State
Decision Date | 01 June 1998 |
Docket Number | No. 24795.,24795. |
Citation | 503 S.E.2d 164,331 S.C. 333 |
Court | South Carolina Supreme Court |
Parties | John Henry SIMMONS, Jr., Petitioner, v. STATE of South Carolina, Respondent. |
Assistant Appellate Defender Tara S. Taggart and Assistant Appellate Defender Lesley M. Coggiola, both of the South Carolina Office of Appellate Defense, Columbia, for petitioner.
Attorney General Charles Molony Condon, Deputy Attorney General John W. McIntosh, and Assistant Deputy Attorney General Teresa A. Knox, Columbia, for respondent.
This Court granted certiorari to review the denial of petitioner's application for post-conviction relief (PCR). We reverse.
Petitioner was convicted of first degree burglary and two counts of assault and battery of a high and aggravated nature (ABHAN). The jury did not recommend mercy on the burglary charge,1 and petitioner was sentenced to life imprisonment for the burglary and ten years imprisonment for each ABHAN. His convictions and sentences were affirmed on direct appeal. State v. Simmons, Op. No. 87-MO-276 (S.C.Sup.Ct. filed June 8, 1987).
Petitioner filed an application for PCR alleging ineffective assistance of counsel. At the PCR hearing, petitioner specifically claimed trial counsel was ineffective for failing to object to and move for a mistrial because of improper and inflammatory jury arguments by the solicitor and the solicitor's jury argument of matters outside the record.
The solicitor made the following comments during his closing argument:
Trial counsel failed to object to any of these statements. During the PCR hearing, trial counsel offered no reason for his failure to object, although trial counsel admitted he probably should have objected to some of the statements because the solicitor misstated the law.
The PCR judge found the statements, while perhaps improper, harmless when considered in the context of the whole trial because "there was enough evidence in the record to convict the [petitioner], thereby providing a reasonable probability that the jury verdict would not have been different absent the solicitor's statements." According to the PCR judge, the trial judge adequately cured any prejudice created by the solicitor's statement regarding a life sentence not being a full natural life by explaining to the jury that the trial judge was responsible for sentencing. Further, the PCR judge found the "real choice" argument and the "New York" argument, when read in context, were merely informational and not prejudicial. The PCR judge failed to rule on the statements concerning petitioner's intent to rape Mrs. Lewis which petitioner claimed was improper because no facts in the record supported this argument.
Did the PCR judge err in failing to find trial counsel ineffective for failing to object to portions of the solicitor's closing statement?
Petitioner contends the PCR judge erred in failing to find trial counsel was ineffective for failing to object to the portions of the solicitor's closing argument concerning the meaning of a life sentence and the "real choice" available to the jury. We agree.
The burden is on the applicant in a post-conviction proceeding to prove the allegations in his application. Butler v. State, 286 S.C. 441, 334 S.E.2d 813 (1985), cert. denied, 474 U.S. 1094, 106 S.Ct. 869, 88 L.Ed.2d 908 (1986). As to allegations of ineffective assistance of counsel, the applicant must show his counsel's performance fell below an objective standard of reasonableness, and but for counsel's errors, there is a reasonable probability the result at trial would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Johnson v. State, 325 S.C. 182, 480 S.E.2d 733 (1997). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Johnson v. State, supra.
cert. denied,___ U.S.___, 118 S.Ct. 146, 139 L.Ed.2d 92 (1997).
The solicitor misstated the law in his closing argument by improperly injecting parole considerations into the jury's sentencing decision and equating a finding of guilty with a recommendation of mercy with a much lighter sentence or an acquittal. See State v. Brooks, 271 S.C. 355, 247 S.E.2d 436 (1978)
(. ) In State v. Hinton, 210 S.C. 480, 488, 43 S.E.2d 360, 363 (1947), this Court stated:
In Hinton, the Court found the solicitor's improper argument probably affected the verdict. Further, the instructions given by the trial judge to the jury to disregard the solicitor's improper comments did not cure the prejudice caused by these remarks; therefore, the defendant was entitled to a new trial. Id. Compare with State v. Gilstrap, 205 S.C. 412, 32 S.E.2d 163 (1944) ( ).
Here, the trial judge's instructions to the jury did not correct the solicitor's misstatements concerning the consequences of the burglary conviction. The trial judge informed the jury that the sentencing responsibility was exclusively his, and he discussed the three forms of verdict available to the jury for the burglary charge. No explanation of the sentencing consequences for a verdict of guilty and for a verdict of guilty with a recommendation of mercy were provided to the jury. See State v. Plath, 277 S.C. 126, 284 S.E.2d 221 (1981),
appeal after remand, 281 S.C. 1, 313 S.E.2d 619, cert. denied by Arnold v. South Carolina, 467 U.S. 1265, 104 S.Ct. 3560, 82 L.Ed.2d 862 (1984), overruled on other grounds by State v. Collins, 329 S.C. 23, 495 S.E.2d 202 (1998) ( ); State v. McGee, 268 S.C. 618, 235 S.E.2d 715 (1977) ( ). Thus, no jury instructions cured the solicitor's improper argument.
The evidence of petitioner's guilt is overwhelming.2 However, because the issue is whether the solicitor's improper argument prevented the jury from fairly considering the guilty with a recommendation of mercy verdict, the overwhelming...
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