State v. Torrence

Citation406 S.E.2d 315,305 S.C. 45
Decision Date01 May 1989
Docket NumberNo. 23403,23403
CourtUnited States State Supreme Court of South Carolina
PartiesThe STATE, Respondent, v. Michael R. TORRENCE, Appellant. . Heard

Chief Atty. David I. Bruck, and Deputy Chief Atty. Elizabeth C. Fullwood of South Carolina Office of Appellate Defense, Columbia, for appellant.

Attorney Gen. T. Travis Medlock, Asst. Attys. Gen. Harold M. Coombs, Jr., and William Edgar Salter, III, Columbia, and Sol. Donald V. Myers, Lexington, for respondent.

Charles M. Condon, Charleston, amicus curiae for South Carolina Solicitors Ass'n.

Morris D. Rosen, Charleston, amicus curiae for South Carolina Trial Lawyers Ass'n.

David I. Bruck, Columbia, amicus curiae for South Carolina Public Defenders Ass'n.

John H. Blume, Columbia, amicus curiae for South Carolina Death Penalty Resource Center, Inc.

FINNEY, Justice:

Appellant Michael R. Torrence was convicted of armed robbery, burglary and the murders of Charlie Bush and Dennis Lollis. He received a sentence of life imprisonment for the murder of Charlie Bush and a sentence of death for the murder of Dennis Lollis. This appeal combines appellant's direct appeal and this Court's mandatory review of death penalty cases pursuant to S.C.Code Ann. § 16-3-25 (1985). We affirm the convictions and sentence of life imprisonment, reverse the death sentence, and remand for a new sentencing proceeding.

At the time of trial, appellant had previously been convicted in Charleston County for the murder of Cynthia Williams and sentenced to life imprisonment.

Appellant contends the trial court erred during the penalty phase of trial. Questions presented for review include the following:

I. Did the court err by limiting testimony from appellant's mother?

II. Did the court err when it did not instruct the jury as to the voluntariness of appellant's statements?

III. Did the court err by refusing appellant's requested instruction regarding parole eligibility?


As part of appellant's case in mitigation his mother, Maria Torrence, was called as a witness. Mrs. Torrence testified that when the appellant was around twelve years old, she divorced appellant's father and was awarded custody of her four children. Mrs. Torrence further testified that she still loved her son and was sorry for what he had done. She went on to explain that appellant began to have emotional problems after the divorce.

Thereafter, the following exchange took place:

Q. Do you have a basis for asking this jury to spare your son's life?

MR. MYERS: Objection, Your Honor.

MR. MCWHIRTER: Your Honor, I have--

MR. MYERS: It's not proper, Your Honor. This is the defendant, not this poor lady here.

MR. MCWHIRTER: Your Honor, I have a case--

WITNESS: That's my son. I don't want him to die.

MR. MYERS: Your Honor, I interpose an objection.

THE COURT: Mr. McWhirter, you know what the purpose of this proceeding is.

MR. MCWHIRTER: Your Honor, I can get a case, if you will let me, that says the (sic) a mother can beg for the life of her son.

THE COURT: Well, I am going to instruct you now to tell this jury, or let this witness or any other witness tell the jury something about this young man which will help them assess him and not the mama who would naturally be terribly upset about her son being in this situation.

After the above exchange, Mrs. Torrence concluded her testimony by explaining that appellant has needed help with emotional problems for a number of years, but she was never able to afford it. When asked if she cared whether appellant ever got out of prison, Mrs. Torrence stated "I just want someone to help him."

Appellant contends the trial court erred by ruling that Mrs. Torrence could not appeal to the jury for mercy. The state, on the other hand, asserts that the line of questioning improperly went to the ultimate issue to be decided by the jury--whether to impose a life sentence or death. See State v. Adams, 277 S.C. 115, 283 S.E.2d 582 (1981).

In Childs v. State, 257 Ga. 243, 357 S.E.2d 48 (1987), the Supreme Court of Georgia illustrated the distinction between a plea for mercy and the ultimate question in the following terms:

[A]lthough a defendant may present witnesses who know and care for him and are willing on that basis to ask for mercy on his behalf, a defendant may not present witnesses to testify merely to their religious or philosophical attitudes about the death penalty.... Nor is a defendant entitled to present the opinion of a witness about what verdict the jury "ought" to reach.

Id. 357 S.E.2d at 60 (citation omitted). We find this distinction persuasive and herein adopt its reasoning.

In the present case, appellant sought only to have Mrs. Torrence make a general plea for mercy for the life of her son. He did not seek to elicit testimony about what verdict the witness thought should be imposed, as was the case in State v. Matthews, 296 S.C. 379, 373 S.E.2d 587 (1988). Thus, the line of questioning was not addressed to the ultimate issue. Despite the trial court's ruling which limited her testimony, Mrs. Torrence pleaded for mercy and appellant has shown no prejudice. See State v. Matthews, supra. Therefore, we conclude that the appellant has failed to demonstrate that he was prejudiced by the trial judge's ruling. This issue is addressed only to clarify the law should the question arise on retrial.


Appellant contends the trial court erred by failing to charge the jury at the close of the penalty phase that it must find that the appellant's confessions were voluntarily given and accompanied by a waiver of his constitutional rights. This issue was not preserved via a contemporaneous objection at trial. The state contends that this Court should not employ the in favorem vitae doctrine to reach this issue. In favorem vitae, which literally means "in favor of life," is a doctrine which has been adhered to by this Court for more than one hundred years. The state petitioned this Court to abolish or modify the doctrine so as to prohibit review of issues in capital cases which have not been preserved by contemporaneous objections, asserting:

1. That historical and legal developments have rendered in favorem vitae obsolete;

2. That the contemporaneous objection rule serves and promotes justice and judicial economy; and

3. That post-conviction remedies and improved procedures adequately and efficiently protect an accused from possible abuses or errors.

We find utilization of the doctrine of in favorem vitae unnecessary to a resolution of this case and decline to address its abolition or modification. However, we shall address the asserted error since it may recur during retrial.

This Court has never held that a jury must determine the voluntariness of a defendant's statement during the penalty phase of trial. However, in State v. Adams, supra, with regard to jury consideration of a defendant's disputed statement upon conclusion of the guilt phase, this Court stated: "[N]o confession may be considered by [the jury] unless found beyond reasonable doubt to have been given freely and voluntarily under the totality of the circumstances." Id., citing State v. Harris, 212 S.C. 124, 46 S.E.2d 682 (1948), rev'd on other grounds, 338 U.S. 68, 69 S.Ct. 1354, 93 L.Ed. 1815 (1949). In addition, when the defendant is in custody at the time of the alleged confession, the jury must be convinced that he received and understood his Fifth and Sixth Amendment rights. State v. Adams, supra. In our view, the same rule should apply when a capital defendant's disputed statement is introduced initially during the penalty phase. Thus, during sentencing proceedings held subsequent to filing of this opinion, the jury should be instructed to determine the voluntariness of a defendant's disputed statement when a jury has not previously made this determination. In such cases, the jury should be instructed that they must find beyond reasonable doubt that the statement was freely and voluntarily given under the totality of the circumstances before the statement may be considered. Additionally, the jury should be instructed that they must be convinced that the appellant received and understood his Fifth and Sixth Amendment rights if the alleged confession was given while the appellant was in custody.


Prior to penalty phase closing arguments, defense counsel requested a charge that because appellant was already serving a life sentence for a previous unrelated murder conviction, imposition of a life sentence in this case would require service of both the prior and subsequent sentences without possibility of parole as mandated by S.C.Code Ann. § 24-21-640 (1976 & Supp.1987). The Court declined to give this charge but told counsel that it would, upon request, charge the jury as to parole eligibility under S.C.Code Ann. § 16-3-20 (1976). Thus, defense counsel requested that section 16-3-20 be charged and the jury was instructed accordingly.

Jury instructions regarding parole eligibility based upon section 16-3-20 were authorized by this Court in State v. Atkins, 293 S.C. 294, 360 S.E.2d 302 (1987). Now, if requested by a capital defendant, the court may, in lieu of a charge that "life imprisonment is to be understood in its plain and ordinary meaning," charge the jury regarding possible sentences and parole eligibility as outlined in section 16-3-20.

The parole eligibility of a defendant convicted for murder is not solely governed by section 16-3-20. The General Assembly has imposed further restrictions on parole eligibility pursuant to S.C.Code Ann. §§ 24-21-610 to -650 (1976 and Supp.1987).

In the present case, defense counsel requested a charge based upon section 24-21-640. This section states:

The [Parole and Community Corrections Board] shall not grant parole nor is parole authorized to any prisoner serving a sentence for a...

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