State v. Patterson

• Decision Date: 17 April 1989
• Docket Number: No. 23060,23060
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Raymond PATTERSON, Jr., Appellant. . Heard

Page 699

384 S.E.2d 699

299 S.C. 280

The STATE, Respondent, v. Raymond PATTERSON, Jr., Appellant.

No. 23060.

Supreme Court of South Carolina.

Heard April 17, 1989.

Decided Aug. 14, 1989.

John D. Delgado, and S.C. Office of Appellate Defense, Columbia, for appellant.

Atty. Gen. T. Travis Medlock, Chief Deputy Atty. Gen. Donald J. Zelenka, Asst. Atty. Gen. Harold M. Coombs, Jr., Columbia, and Sol. Donald V. Myers, Lexington, for respondent.

GREGORY, Chief Justice:

Appellant was convicted of murder, armed robbery, and assault and battery of a high and aggravated nature in September 1985. He was sentenced to death. On appeal to this Court, the convictions were affirmed and the case remanded for a new sentencing proceeding. State v. Patterson, 290 S.C. 523, 351 S.E.2d 853 (1986). Appellant was again sentenced to death in November 1987. We affirm.

The facts of this case are fully set forth in our previous opinion. 290 S.C. at 524-525, 351 S.E.2d at 854.

Appellant contests the propriety of the solicitor's jury argument on several grounds. First, appellant complains of the following comment made by the solicitor:

'They [inmates] can come and go as they please.' 'They can come out for visits.' They have got a horrible requirement. They have got to report back to their cells for the evening meal. That's life imprisonment, folks.

Appellant claims this comment trivialized life imprisonment and violated State v. Reed, 293 S.C. 515, 362 S.E.2d 13 (1987), wherein this Court disapproved the solicitor's reference to "those bad life sentences."

In context, the thrust of the solicitor's comment is to distinguish life on death row, where appellant has been residing, from life in the general prison population where appellant would be placed if given a life sentence. The solicitor is directly quoting appellant's own witness and is clearly within the record as required. State v. Reed, supra. Nor does this comment undermine the requirement that life imprisonment be understood in its plain and ordinary meaning, State v. Norris, 285 S.C. 86, 328 S.E.2d 339 (1985), or that the defendant be allowed to present evidence in mitigation of death, Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), as appellant claims. We find no merit in appellant's argument.

Next, appellant contends the solicitor misstated the applicable law during the course of his opening and closing arguments. In each alleged instance, however, the trial judge properly charged the jury on the law, rendering harmless any misstatement of law by the solicitor. State v. Jones, 378 S.E.2d 594 (S.C.1989); State v. Patrick, 289 S.C. 301, 345 S.E.2d 481 (1986).

Appellant also contends the solicitor's closing argument improperly appealed to the jury's passion and prejudice by employing such phrases as "cop-out" and "guilt trip" in exhorting the jury to return a sentence of death. Appellant relies on State v. Reed, supra (error for solicitor to assert that any recommendation less than death would show jurors lacked courage and had "copped-out"), and State v. Cockerham, 294 S.C. 380, 365 S.E.2d 22 (1988) (error to refer to jury's "soft underbelly" and lack of courage and commitment).

The solicitor's contested comments are as follows:

That guilt trip. They want you to hop on that guilt trip. Don't let Mr. Delgado's tears spill onto you; don't let him get in that emotion to you on that guilt trip. Or if you want to go on a guilt trip, that's your decision. Us lawyers, we can't even express our opinions, are not supposed to. I can't. Mr. Delgado is not supposed to. But that's your decision, death penalty or life imprisonment.

....

And you have a difficult decision. All the juries that sit in death penalty cases have that difficult adult decision to make, to reach down inside. But that's the way it is. You know, when you become seventeen or eighteen years old, you no longer act in your childish ways and make a childish decision. You are responsible adults; you are responsible for your actions. Because by that time you have the right to vote, to be taken into the Army. You have got to make the responsible decisions. And I know you will do that. You know sometimes it is easy to take the easy way out, to be a little permissive, cop out. Just think we wouldn't be here today if our citizens had taken the easy way out, if there had been that submissive attitude, that copping out, we wouldn't have a United States; we wouldn't have a South Carolina; we wouldn't have a Lexington County. So I thank you for being responsible citizens.

The record indicates these comments are in response to defense counsel's opening argument appealing to the jury "for compassion, not justice, for mercy," and asking "for nothing more than the love of God, for Christian compassion for this man." In context, the solicitor's comments urge a fearless administration of the law in the face of counsel's emotional appeal for mercy. State v. Durden, 264 S.C. 86, 212 S.E.2d 587 (1975); see also State v. Singleton, 284 S.C. 388, 326 S.E.2d 153 (1985) (no error for solicitor to respond in kind to defense counsel's argument). While we do not commend the solicitor's use of such phrases, we do not find the jury argument in this case of the same caliber as that condemned in Reed and Cockerham. We conclude the solicitor's remarks did not deprive appellant of a fair trial. See Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986).

Next, appellant contends the trial judge violated Turner v. Murray, 476 U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986), by not allowing adequate voir dire of prospective jurors regarding racial bias. Turner v. Murray holds that "a capital defendant accused of an interracial crime is entitled to have prospective jurors informed of the race of the victim and questioned on the issue of race." 106 S.Ct. at 1688. The rule is minimally intrusive and the trial judge retains discretion as to the form and number of questions on the subject. Id.

In Turner v. Murray, the defendant's death sentence was reversed because the trial judge refused to ask a single question regarding racial prejudice. 106 S.Ct. at 1685. In this case, the trial judge allowed extensive questioning on racial bias. For instance:

Q. The defendant in this case is black. The deceased, I understand, is white. Does the fact that the defendant is black or of another race, would that prevent you from giving him a fair trial?

A. No.

Q. Would the fact that he was black in anyway influence your thinking, one way or the other?

A. No.

Q. Could you give him the same trial, whether he is black or whether he's white? Would it make any difference?

A. No, sir. None.

Q. Do you have any feelings based on your--have you worked with black people?

A. Yes, sir. I do.

Q. Do you have any problems working with blacks?

A. None, whatsoever.

Q. Do you have any friends that are black?

A. Yes. I do.

Q. Are you aware or conscious of being biased or prejudiced based on race?

A. No, sir. I don't.

Q. In your opinion, does race have anything to do with what your verdict would be in this case?

A. No.

Q. Are you aware in the past of any racial prejudice, either on your own part or on the part of other white people toward blacks, in your community or in your work?

A. Of course, you know there is prejudice everywhere you go but I am not really prejudiced one way or the other.

Q. All right. Do you participate in any organizations, clubs or volunteer organizations, church, what have you, where black people also participate on a social basis?

A. No, sir.

Q. All right. If you were selected as a juror in this case, Mr. O'Neal, can you assure the Court and the parties that you would set aside or work at setting aside any possible racial attitudes or biases that you might have to insure that the decision as to life or death was not influenced by those factors?

A. Yes. I would.

Appellant complains he was not allowed to ask such questions as: "How would you feel about your son/daughter dating a black person?" "Do your children go to private school? If yes, why?"

The right to voir dire in a death case is not a license to forage at will over the private lives of jurors. State v. Smart, 278 S.C. 515, 523, 299 S.E.2d 686, 691 (1982). We hold the trial judge did not abuse his discretion under Turner v. Murray in limiting the number and form of questions during voir dire on the issue of racial bias.

Next, appellant contests the trial judge's refusal to give a requested charge that if he was sentenced to life imprisonment, he would not be eligible for parole for twenty years. Because appellant was tried and convicted prior to enactment of the Omnibus Criminal Justice Improvements Act, he is not entitled to this charge as provided in State v. Atkins, 293 S.C. 294, 360 S.E.2d 302 (1987). Appellant contends, however, the trial judge's refusal to give the requested charge violates Skipper v. South Carolina, supra, as an exclusion of mitigating evidence.

We find this argument without merit. First, information regarding requirements for parole eligibility is not mitigating evidence and is irrelevant to a defendant's adaptability to prison life. Moreover, whether a jury is given information regarding reduction of a death sentence by commutation, pardon, or parole is a matter of state law. California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983). We refuse to extend our ruling in Atkins to cases tried before enactment of the Omnibus Criminal Justice Improvements Act.

Next, appellant complains of the trial judge's charge regarding mitigating circumstances. The trial judge properly instructed the jury that in order to find an aggravating circumstance, it must do so by unanimous agreement. He also properly charged that the jury's verdict, whether for life or death, must be unanimous. Appellant contends that the trial judge's failure to specify that a finding of a mitigating circumstance need not...