State v. Shafer

• Decision Date: 25 November 2002
• Docket Number: No. 25562.,25562.
• Citation: 352 S.C. 191,573 S.E.2d 796
• Parties: The STATE, Respondent, v. Wesley Aaron SHAFER, Jr., Appellant.
• Court: South Carolina Supreme Court

352 S.C. 191

573 S.E.2d 796

The STATE, Respondent, v. Wesley Aaron SHAFER, Jr., Appellant.

No. 25562.

Supreme Court of South Carolina.

Heard October 8, 2002.

Decided November 25, 2002.

David I. Bruck, Robert E. Lominack, and William Norman Nettles, of Columbia, for appellant.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, Assistant Attorney General S. Creighton Waters, of Columbia; and Thomas E. Pope, of York, for respondent.

Justice MOORE:

This case is before us upon remand from the United States Supreme Court. Previously, in State v. Shafer, 340 S.C. 291, 531 S.E.2d 524 (2000), we held appellant, a capital defendant, was not entitled to a jury instruction that he was parole ineligible because Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994)¹ was inapplicable under the state's new sentencing scheme.²

The United States Supreme Court reversed, finding Simmons was applicable to the state's new sentencing scheme. Shafer v. South Carolina, 532 U.S. 36, 121 S.Ct. 1263, 149 L.Ed.2d 178 (2001). The Court held that whenever future dangerousness is at issue in a capital sentencing proceeding under South Carolina's new scheme, due process requires that the jury be informed that a life sentence carries no possibility of parole. Shafer, 532 U.S. at 51,121 S.Ct. at 1273. However, the Court remanded the case for us to determine whether the prosecutor's evidentiary submissions or closing argument in fact placed appellant's future dangerousness at issue. Id. at 54-55, 121 S.Ct. at 1274-1275.

FACTS

Appellant was charged with murder, attempted armed robbery, and conspiracy for his involvement in the shooting of a convenience store clerk. After the jury found appellant guilty as charged, his trial entered the penalty phase.

During the penalty phase, the State introduced evidence of appellant's criminal record, probation violations, and misbehavior in prison. The State introduced the following evidence:

(1) appellant was convicted of burglary and criminal sexual conduct (CSC) at age seventeen, after he and others confessed to taking two twelve-year-old girls to an empty house and having sexual intercourse and fellatio with them;

(2) after receiving a probationary sentence for his burglary and CSC convictions, appellant violated probation by being rearrested for burglary and driving under suspension, by twice testing positive for marijuana, and by failing to report both to his probation officer and to court-ordered sex offender counseling;

(3) on the night of his arrest for murder, appellant asked a jailer whether his father would get his pistol back after it had been seized as the murder weapon;

(4) while awaiting trial on the murder charge, appellant was charged with assaulting a female staff member at the Detention Center after he became enraged and verbally abusive because she turned off the telephones;

(5) while in jail, appellant was charged with possession of contraband for illegally possessing and smoking cigarettes; and (6) when discussing the murder with a fellow jail inmate shortly after his arrest, appellant acted as if the murder didn't even bother him.

During an in camera hearing on jury instructions, the State argued that it had not made future dangerousness an issue in the case nor would it be arguing future dangerousness in closing argument and therefore appellant was not entitled to a charge on parole ineligibility. Defense counsel protested on the ground the State should not be allowed to introduce evidence of future dangerousness, and then say they were not going to argue it and thereby avoid a charge on the law. The State countered that the evidence was introduced to show appellant's character and to show his adaptability to prison, not future dangerousness.

The trial judge ruled that parole ineligibility would not be charged unless the State argued future dangerousness.

Defense counsel then sought permission to read in his closing argument to the jury lines from the controlling statute, S.C.Code Ann. § 16-3-20(A), stating plainly that a life sentence in South Carolina carries no possibility of parole. Section 16-3-20(A) provides:

If the State seeks the death penalty and a statutory aggravating circumstance is found beyond a reasonable doubt pursuant to subsections (B) and (C), and a recommendation of death is not made, the trial judge must impose a sentence of life imprisonment. For purposes of this section, life imprisonment means until death of the offender. No person sentenced to life imprisonment pursuant to this section is eligible for parole, community supervision, or any early release program, nor is the person eligible to receive any work credits, education credits, good conduct credits, or any other credits that would reduce the mandatory life imprisonment required by this section.

The trial judge denied the request.

In closing argument, the State discussed a video that portrayed the aftermath of the victim's murder, where some girls discovered the victim's body. The State argued the following:

... do you remember the girls that came in and when Jamie Palmer was saying, Oh God; oh, God; Ray, Ray and the girls were running in and out, we've got to go, we've got to go, ... but what is really etched in my mind is Monica Inman. Remember Jamie picks up the phone and she's calling 911, and Monica Inman says come on, Jamie, they might come back, they might come back.

... So that the next time somebody with a pistol thinks about loading up, coming across that river to Lockhart, over to Jonesville or out to Buffalo or anywhere in this county, and they might come back, they might come back, they will remember this day, and they will remember this jury, and they will remember this verdict.

(Emphasis added).

At the conclusion of the argument, defense counsel renewed the request for a life without parole charge on the grounds that the State again raised future dangerousness by discussing Jamie's fear that they might come back, they might come back. The trial court ruled, Well, I listened very carefully because I have to admit I had some concern when that argument was entered into as to whether we had crossed the line.... I find that it comes close, but did not; so, I deny [appellant's] motion.

Instructing the jury, the judge explained:

If you do not unanimously find the existence of the aggravating circumstance as set forth on the form [murder during the commission of an attempted armed robbery], you do not need to go any further.

If you find unanimously the existence of a statutory aggravating circumstance ... you will go further and continue your deliberations.

Once you have unanimously found and signed as to the presence of an aggravated circumstance, you then further deliberate, and determine whether or not Wesley Aaron Shafer should be sentence[d] to life imprisonment or death.

The judge told the jury twice that life imprisonment means until the death of the defendant. After the judge instructed the jury, the defense again renewed its objection that the statutory language on parole ineligibility was not charged. The objection was overruled.

After about three and a half hours into sentencing deliberations, the jury sent a note to the trial judge containing two questions: (1) Is there any remote chance for someone convicted of murder to become eligible for parole?; and (2) Under what conditions would someone convicted for murder be eligible?³

Defense counsel again urged the court to read to the jury the previously requested portion of § 16-3-20(A). Counsel argued the judge's charge, which partially quoted from § 16-3-20 (life imprisonment means until death of the offender), omitted the portion of the statute that explained what until death of the offender means.

The trial judge decided not to charge the jury about parole ineligibility, and instructed the jury:

Section 16-3-20 of our Code of Laws as applies to this case in the process we're in, states that, quote, for the purposes of this section life imprisonment means until the death of the offender. Parole eligibility or ineligibility is not for your consideration.

The jury returned one hour and twenty minutes later. The jury unanimously found beyond a reasonable doubt the aggravating factor of murder while attempting armed robbery, and recommended the death penalty. After the jury was polled as to their assent to the aggravating circumstance finding and to the death penalty recommendation, defense counsel requested the jury be polled on the specific question as to whether parole eligibility, their belief therein, gave rise to the verdict. The judge denied the request and imposed the death sentence.

ISSUES

I. Whether future dangerousness was an issue in appellant's case such that he was entitled to a parole ineligibility instruction?

II. Whether the Court should follow the rule of Yarbrough v. Commonwealth, 258 Va. 347, 519 S.E.2d 602 (1999), to require that sentencing juries be instructed on parole eligibility in all cases?

III. Whether the sentencing jury should be informed that a life without parole sentence does not necessarily mean the defendant will never be released from prison?

I

Following appellant's trial and his appeal, the United States Supreme Court expanded the law governing whether the evidence submitted by or the argument of the prosecution raises future dangerousness. Kelly v. South Carolina, 534 U.S. 246, 122 S.Ct. 726, 151 L.Ed.2d 670 (2002). In Kelly, the Court found that evidence of violent behavior in prison can raise a strong implication of generalized future dangerousness.⁴ The Kelly Court stated [a] jury hearing evidence of a defendant's demonstrated propensity for violence reasonably will conclude that he presents a risk of violent behavior, whether locked up or free, and whether free as a fugitive or as a parolee. 534 U.S. at ___, 122 S.Ct. at 731.

The Court stated that evidence...