Simmons v. State, No. 24795.

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtBURNETT, Justice
Citation503 S.E.2d 164,331 S.C. 333
PartiesJohn Henry SIMMONS, Jr., Petitioner, v. STATE of South Carolina, Respondent.
Decision Date01 June 1998
Docket NumberNo. 24795.

331 S.C. 333
503 S.E.2d 164

John Henry SIMMONS, Jr., Petitioner,
v.
STATE of South Carolina, Respondent

No. 24795.

Supreme Court of South Carolina.

Submitted April 22, 1998.

Decided June 1, 1998.


331 S.C. 335
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.

BURNETT, Justice:

This Court granted certiorari to review the denial of petitioner's application for post-conviction relief (PCR). We reverse.

FACTS

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

331 S.C. 336
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:

He might have had plans to case that house, get an idea everything that was there and was going to take it on the way out. He had something else in mind. He had something evil on his mind. He went in, it was obvious the people were upstairs. He knew exactly what he wanted. He saw Mrs. Lewis sleeping in her bed in the darkness, exactly what he wanted....
That is the form of the verdict in a burglary case, everybody knows, realize in a criminal case there is just two verdicts: guilty or not guilty. In burglary, it is a little bit different. There is what they call special verdicts. You have two forms of guilty in a burglary case. One is guilty and the other is guilty with a recommendation for mercy. The difference between the two is the basis for sentencing. They say that for a guilty burglary without a recommendation for mercy, that carries a life sentence. Why do they call it a life sentence, when it is not the entire natural life of a person. Not that. It is a heavier sentence than recommendation for mercy. That is the basic difference. Guilty with mercy carries a lighter sentence.... The real choice in this case is going to be do we find him guilty of burglary or do we recommend mercy? ...
331 S.C. 337
Which are you going to apply for our home, the New York standard or the South Carolina standard? In New York, just a burglary, so what, give him mercy. South Carolina the standard should be clear.

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.

ISSUE

Did the PCR judge err in failing to find trial counsel ineffective for failing to object to portions of the solicitor's closing statement?

DISCUSSION

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

331 S.C. 338
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.

A solicitor's closing argument must not appeal to the personal biases of the jurors...

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40 practice notes
  • State v. Hamilton, No. 3317.
    • United States
    • Court of Appeals of South Carolina
    • March 12, 2001
    ...arouse the jurors' passions or prejudices and its content should stay within the record and its reasonable inferences. Simmons v. State, 331 S.C. 333, 503 S.E.2d 164 (1998). Moreover, the State cannot, through evidence or argument, comment upon a defendant's exercise of a constitutional rig......
  • State v. Rice, No. 4300.
    • United States
    • Court of Appeals of South Carolina
    • October 5, 2007
    ...to arouse the jurors' passions or prejudices. Humphries v. State, 351 S.C. 362, 373, 570 S.E.2d 160, 166 (2002); Simmons v. State, 331 S.C. 333, 338, 503 S.E.2d 164, 166 (1998) (citing State v. Copeland, 321 S.C. 318, 324, 468 S.E.2d 620, 624 (1996)). The prosecution's closing argument shou......
  • State v. Reese, No. 3790.
    • United States
    • Court of Appeals of South Carolina
    • May 3, 2004
    ...record and reasonable inferences to it." Humphries v. State, 351 S.C. 362, 373, 570 S.E.2d 160, 166 (2002); accord Simmons v. State, 331 S.C. 333, 338, 503 S.E.2d 164, 166 (1998); see also State v. Cooper, 334 S.C. 540, 553, 514 S.E.2d 584, 591 (1999) ("A solicitor's closing argum......
  • Smalls v. State, Appellate Case No. 2016-001079
    • United States
    • United States State Supreme Court of South Carolina
    • February 7, 2018
    ...the existence of "overwhelming evidence" does not automatically preclude a finding of prejudice. In Simmons v. State , 331 S.C. 333, 503 S.E.2d 164 (1998), for example, we found counsel was deficient for not objecting when the State in closing "improperly inject[ed] parole co......
  • Request a trial to view additional results
41 cases
  • Smalls v. State, Appellate Case No. 2016-001079
    • United States
    • United States State Supreme Court of South Carolina
    • February 7, 2018
    ...Ordinarily, the existence of "overwhelming evidence" does not automatically preclude a finding of prejudice. In Simmons v. State , 331 S.C. 333, 503 S.E.2d 164 (1998), for example, we found counsel was deficient for not objecting when the State in closing "improperly inject[ed] parole consi......
  • State v. Rice, No. 4300.
    • United States
    • Court of Appeals of South Carolina
    • October 5, 2007
    ...to arouse the jurors' passions or prejudices. Humphries v. State, 351 S.C. 362, 373, 570 S.E.2d 160, 166 (2002); Simmons v. State, 331 S.C. 333, 338, 503 S.E.2d 164, 166 (1998) (citing State v. Copeland, 321 S.C. 318, 324, 468 S.E.2d 620, 624 (1996)). The prosecution's closing argument shou......
  • State v. Reese, No. 3790.
    • United States
    • Court of Appeals of South Carolina
    • May 3, 2004
    ...the record and reasonable inferences to it." Humphries v. State, 351 S.C. 362, 373, 570 S.E.2d 160, 166 (2002); accord Simmons v. State, 331 S.C. 333, 338, 503 S.E.2d 164, 166 (1998); see also State v. Cooper, 334 S.C. 540, 553, 514 S.E.2d 584, 591 (1999) ("A solicitor's closing argument mu......
  • State v. Hamilton, No. 3317.
    • United States
    • Court of Appeals of South Carolina
    • March 12, 2001
    ...arouse the jurors' passions or prejudices and its content should stay within the record and its reasonable inferences. Simmons v. State, 331 S.C. 333, 503 S.E.2d 164 (1998). Moreover, the State cannot, through evidence or argument, comment upon a defendant's exercise of a constitutional rig......
  • Request a trial to view additional results

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