Simmons v. State

• Decision Date: 28 April 1975
• Docket Number: No. 20001,20001
• Citation: 215 S.E.2d 883,264 S.C. 417
• Court: South Carolina Supreme Court
• Parties: Paul SIMMONS, Appellant, v. STATE of South Carolina, Respondent.

Page 883

215 S.E.2d 883

264 S.C. 417

Paul SIMMONS, Appellant, v. STATE of South Carolina, Respondent.

No. 20001.

Supreme Court of South Carolina.

April 28, 1975.

Henry Hammer, Howard B. Hammer and Alvin J. Hammer, Columbia, for appellant.

Atty. Gen., Daniel R. McLeod, and Asst. Attys. Gen., Emmet H. Clair and Stephen T. Savitz, Columbia, for respondent.

LITTLEJOHN, Justice:

Paul Simmons, the appellant, was the driver of a motor vehicle which caused the death of two people. He was indicted and tried for murder, and found guilty in February of 1972, resulting in a sentence of life imprisonment which he is now serving.

This action was commenced on October 5, 1972, by the filing of an application for post-conviction relief under § 17--601 of the Code of Laws of South Carolina (Cum.Supp. 1973). On October 12, 1973, the State of South Carolina, respondent, filed its return and a motion to dismiss the action. On April 8, 1974, the circuit court issued its order denying the petition for relief and dismissing the appellant's application.

In this appeal the appellant alleges error in four particulars and asks this Court to reverse the ruling of the circuit judge. The questions involved, as copied from appellant's brief, are as follows:

'I. Whether the penalty of life imprisonment for conduct causing death by the reckless operation of a motor vehicle, as applied to Appellant, is 'cruel and unusual' punishment in violation of Article I, Section 19 of the South Carolina Constitution and the Eighth Amendment to the United States Constitution in view of the State's statutory scheme of penal laws under which different penalties, to wit, life imprisonment, five years imprisonment or three years imprisonment, are available as punishment for such conduct; and that, based upon the statute which can be selected as the controlling law in a criminal prosecution at the sole whim of the solicitor, the penalty of life imprisonment is rarely applied in contrast to the significantly less severe penalties of three years or five years imprisonment generally applied in the great majority of cases for such conduct?

'II. Whether the Trial Judge's rebuke of trial counsel constituted prejudicial error?

'III. Whether it was prejudicial error for the Trial Judge to permit comment by the solicitor on Appellant's failure to call his wife as a witness when she was unavailable?

'IV. Whether Appellant was deprived of his constitutional rights under the due process clause of the United States Constitution by reason of the insufficiency of the evidence to support the conviction of Appellant for murder?'

Question V was not argued and, accordingly, is treated as abandoned.

Appellant submits that he should be resentenced under § 16--55 (involuntary manslaughter) or § 46--341 (reckless homicide) of the Code, or that the judgment of conviction be set aside and a new trial granted.

The appellant alleges that a sentence of life imprisonment resulting from a wrongful killing caused by the use of an automobile is cruel and unusual punishment in violation of both the South Carolina Constitution and the Constitution of the United States. Our Court has upheld a similar verdict of murder resulting from the operation of a motor vehicle in State v. Mouzon, 231 S.C. 655, 99 S.E.2d 672 (1957).

Appellant relies upon the case of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and argues that South Carolina's statutory scheme of penal laws permits unevenhanded, selective, and arbitrary application of three statutes under which one who kills with an automobile may be prosecuted. Those statutes are: (1) for murder under § 16--52, wherein the penalty at the time of this offense was a sentence of life imprisonment, or (2) for involuntary manslaughter under § 16--55, wherein the penalty is not less than three months nor more than three years imprisonment, or (3) for reckless homicide under § 46--341, wherein the penalty is not more than five years imprisonment, or a fine, or both.

Appellant further argues that the infrequent infliction of a life imprisonment sentence for conduct causing death by reckless operation of a motor vehicle is evidence of and constitutes an arbitrary application of the state's penal laws, and thus amounts to cruel and unusual punishment in violation of the Eighth Amendment.

The fact that a prosecuting attorney may select which of several offenses with which an accused person may be charged is not constitutionally obnoxious. It is rather routine, and essential, for example, that the solicitor must decide whether one shall be charged with robbery on the one hand, or merely larceny on the other; or charged with housebreaking and larceny on the one hand, or merely larceny on the other. In like fashion, a solicitor must often decide whether a person will be charged with assault and battery of a high and aggravated nature, or assault and battery with intent to kill. A discretion must be exercised. An accused person's protection lies in the fact that he may not be convicted unless upon a fair trial he is found guilty beyond a reasonable doubt of all of the elements of the offense of which he stands charged.

Even as a solicitor has the duty to elect whether to proceed on a charge of murder, reckless homicide, or involuntary manslaughter when one is charged with killing with an automobile, he must in like fashion determine whether an accused person should be charged with murder, voluntary manslaughter, or involuntary manslaughter when one is charged with a wrongful death by the use of a pistol. And for that matter, he may elect to nolle prosequi any case and not try it at all.

It is difficult to conclude that the killing of a person with malice using an automobile is less obnoxious than killing one with malice by the use of a gun. In either case the victim is dead.

The contention that the sentence of life imprisonment is infrequently inflicted in cases involving a wrongful killing with a motor vehicle is unsupported by the record. Appellant submits that State v. Mouzon, supra, is the only case found in the South Carolina Supreme Court Reports; no figures are available of cases tried resulting in the same penalty which were never appealed. Assuming, however, that the sentence is rare, we do not think that such renders the application of the murder statute in an automobile killing case unconstitutional.

It would hardly be argued that a sentence of life imprisonment resulting from a malicious killing with an electric fan or a tennis racquet, though rare, would be violative of Furman v. Georgia, supra, and constitutionally impermissible.

We find no merit in the issue raised by appellant's first question.

The questions submitted hereinabove as numbers II, III, and IV are not proper for consideration upon an application for post-conviction relief. The statute itself provides that the Uniform Post-conviction Procedure Act 'shall not be construed to permit collateral attack on the ground that the evidence was insufficient to support a conviction.' Ashley v. State, 260 S.C. 436, 196 S.E.2d 501 (1973).

Questions II and III complain of matters proper for this Court's consideration upon an appeal. It is uniformly held that an application for post-conviction relief is not a substitute for an appeal.

'Generally, post-conviction hearing statutes do not afford relief in the case of alleged errors for which remedies were available before and during the original trial, or by review on motion for a new trial or on appeal. These statutes were not intended to afford a procedure to operate as a substitute for a motion for a new trial, or for an appeal or writ of error; and ordinarily a judgment of conviction may not be challenged on grounds which could have been raised by a direct appeal.' 24 C.J.S. Criminal Law § 1606(9) b.

'We adhere to our former decisions. Errors in a petitioner's trial which could have been reviewed on appeal may not be asserted for the first time, or reasserted, in post-conviction proceedings. See People v. Eastman, 33 Misc.2d 583, 228 N.Y.S.2d 156, affirmed, 18 A.D.2d 1102, 239 N.Y.S.2d 972; Ciucci v. People, 21 Ill.2d 81, 171 N.E.2d 34; cf. People v. Hamby, 32 Ill.2d 291, 205 N.E.2d 456; Collier v. Commonwealth, 387 S.W.2d 858 (Ky.Ct.App.).' State v. White, 274 N.C. 220, 162 S.E.2d 473 (1968).

The alleged prejudicial error resulting from the judge's admonition of counsel for the defendant, and from the solicitor's comment relative to appellant's failure to call his wife do not raise issues for consideration by this Court under the post-conviction procedures act.

The order of the lower court is

Affirmed.

MOSS, C.J., and LEWIS and BUSSEY, JJ., concur.

NESS, J., dissents.

NESS, Justice (dissenting):

In view of the fact that I strongly feel from my review of the entire original transcript that appellant's Due Process and other constitutional rights were violated by the trial court proceedings due to the matters hereinafter discussed, I respectfully dissent from the majority opinion.

The majority, examining the alleged errors separately but not in combination, dismissed without passing upon the merits all but one of the grounds asserted by appellant as not properly reviewable on an application for post-conviction relief. However, upon an examination of all of the alleged errors in combination and separately and a consideration of the whole course of the proceedings in accordance with the standard of review as required by Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), it is clear that the alleged errors here present issues of constitutional dimension properly reviewable under the Post-Conviction Procedures Act which is available to:

'(a) Any person who has been convicted of, or sentenced for, a crime and who claims:

'(1) That the conviction or the sentence was in violation of the Constitution of the United States or the Constitution or laws of this State;'. S.C. Code, §...