Vasquez v. State Of South Carolina

Decision Date09 August 2010
Docket NumberNo. 26852.,26852.
Citation698 S.E.2d 561,388 S.C. 447
PartiesAngle Joe Perrie VASQUEZ, a/k/a/ Angle Joe Perrie Vazquez, Petitioner,v.STATE of South Carolina, Respondent.
CourtSouth Carolina Supreme Court

Senior Appellate Defender Joseph L. Savitz, III, and Appellate Defender Elizabeth A. Franklin-Best, of South Carolina Commission on Indigent Defense, of Columbia, for Petitioner.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh and Assistant Deputy Attorney General Donald J. Zelenka, of Columbia, for Respondent.

Justice BEATTY:

In this post-conviction relief (PCR) case, Angle Joe Perrie Vazquez (Petitioner) petitioned this Court for a writ of certiorari to review the PCR judge's denial of his request for relief from his convictions and capital sentence. We granted the writ of certiorari to review whether trial counsel was ineffective in failing to object to comments made by the solicitor in which he: (1) referred to Petitioner, a Muslim, as a “domestic terrorist” and drew a correlation between Petitioner's indicted conduct and the events of September 11, 2001; and (2) urged jurors to imagine the fear and terror of one of the murder victims. We reverse and remand for a new sentencing hearing.

I. FACTUAL/PROCEDURAL HISTORY
A.

The charges for which Petitioner was indicted arose out of the following facts established during the guilt phase of his trial. On March 26, 2002, Joey Williams, the manager of a Burger King in Myrtle Beach, fired Petitioner for using profanity in front of a patron toward fellow employee Reginald Atkins. Petitioner left the restaurant after being fired. Employee Robbie Robertson was called in to complete Petitioner's shift. In addition, Kuma Walker was on duty at the restaurant.

Atkins and Robertson testified that Petitioner and his cousin, Michael Keith Howard, returned to the restaurant as they were preparing to close for the evening. Petitioner then pulled out a gun and ordered them to get into the restaurant's freezer. Petitioner locked the two in the freezer. After about five minutes, Atkins and Robertson forced their way out of the freezer and fled through the back door.

Concerned about Williams and Walker, Atkins returned to the Burger King and discovered that they had been shot and killed. When investigating the scene, the police discovered that $737 had been stolen from the restaurant. The police also found nine-millimeter shell casings and live nine-millimeter ammunition. Ballistic analysis revealed that the bullets that killed Williams and Walker were fired from a nine-millimeter pistol that was linked to Petitioner.

At the conclusion of the trial, the jury convicted Petitioner of two counts of murder, four counts of kidnapping, one count of armed robbery, and one count of criminal conspiracy.

B.

In the penalty phase, the State sought to establish the following statutory aggravating factors before the jury: (1) the murder was committed while in the commission of a kidnapping; (2) the murder was committed while in the commission of a robbery while armed with a deadly weapon; and (3) two or more persons were murdered by the Petitioner by one act or pursuant to one scheme or course of conduct.1

After outlining Petitioner's prior record, the State presented the testimony of SLED Agent Stephen Derrick, an expert witness who reviewed the crime scene reconstruction material, crime scene photographs, and autopsy photographs. Based on this information, Agent Derrick opined that Kuma Walker was shot first and then Joey Williams. He further testified that the shots were not random given both victims were shot in the head.

In response, Petitioner's trial counsel offered evidence as to the following mitigating circumstances: (1) Petitioner had no significant history of prior criminal convictions involving the use of violence against another person; and (2) Petitioner was an accomplice in the murder committed by another person and his participation was relatively minor.2

In addition to presenting evidence of Petitioner's background, trial counsel called Rasheed Kaleem Solom Mohammed to provide testimony regarding Petitioner's Muslim faith. Rasheed, an imam 3 for all Muslims incarcerated in South Carolina, testified he met Petitioner, a Sunni Muslim, and ultimately “appointed him as imam” at the J. Reuben Long Correctional Facility where he teaches other Muslim inmates. In discussing his and Petitioner's faith, Rasheed stated, “Ever since September the 11th we as Muslims have had it very, very, extremely hard.”

During their closing arguments, the solicitor and trial counsel elaborated on this witness's testimony. The solicitor, who characterized Petitioner as a “domestic terrorist” during his opening guilt phase statements, drew a correlation between the events of September 11th and those for which Petitioner was charged. In response, trial counsel referenced the solicitor's use of the term “domestic terrorism” and attempted to counter the implications of this term.

Following the solicitor's and his trial counsel's closing arguments, Petitioner made a statement to the jury in which he reiterated the evidence of his troubled background. He then specifically denied his guilt and explained to the jury his Muslim faith and attempted to discount the State's references to him as a terrorist and events of September 11th.

Ultimately, the jury found three aggravating factors and recommended the death penalty. The trial judge denied all of Petitioner's post-trial motions and ordered that Petitioner be put to death as a result of the conviction. Petitioner appealed his convictions and sentences to this Court.

This Court vacated the two life sentences for kidnapping with regard to the murder victims, but affirmed Petitioner's convictions and remaining sentences. State v. Vazquez, 364 S.C. 293, 613 S.E.2d 359 (2005) abrogated in part by State v. Evans, 371 S.C. 27, 637 S.E.2d 313 (2006) (recognizing error preservation requirements after State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991) for challenging mitigation jury charges during a capital sentencing proceeding).

C.

Subsequently, Petitioner filed a PCR application in which he raised thirty-six allegations of counsel's ineffectiveness. In an amended application, Petitioner's PCR counsel requested Petitioner be granted a new sentencing hearing on the grounds trial counsel was ineffective in two respects: (1) failing to object to the solicitor's improper “Golden Rule” argument wherein he appealed to the jury's bias by asking them to imagine themselves in the place of the victims; and (2) failing to object when the solicitor referred to the tragic events of September 11th during his closing in the penalty phase at trial, implying that Petitioner deserved the death penalty because he was a fanatic terrorist and a practicing Muslim who inspired fear across the country.

At the hearing, one of Petitioner's trial attorneys admitted he should have objected to the solicitor's “domestic terrorist” comment during his opening statement of the guilt phase. He believed his failure to object was “double prejudice” because Petitioner's September trial occurred during the second anniversary of September 11th and Petitioner was a Muslim. He further explained, [A]t [this] time ... the whole country was sort of upset with Muslims;” they didn't have good Muslims and bad Muslims,” most people thought “all Muslims were bad” based on the events of September 11th. He testified the jurors knew Petitioner was a Muslim because he wore a traditional Muslim prayer cap throughout the trial. Although he could not definitively testify that the solicitor's comments affected the jurors, he felt “the atmosphere at the time was charged with ... Muslim hatred.”

Petitioner's other trial attorney conceded that he should have objected to the solicitor's reference to the events of September 11th during closing argument in the sentencing phase. He believed in retrospect that the argument could be perceived as inappropriate given the solicitor initially called Petitioner a “domestic terrorist” and the jury clearly knew Petitioner was a Muslim based on his attire and his choice of mitigation witnesses.

PCR counsel also called Dr. Nick DePhillips, an expert in clinical and neuropsychology, who testified regarding his research on psychological issues after September 11th. According to Dr. DePhillips, a study revealed that when the term “terrorist” is used in a conversation about Muslims, the people interviewed “have more negative views of Muslims.” Dr. DePhillips opined the solicitor's use of the word “domestic terrorist” would have inferred to the jury that “this is a person who ... had a plan to ... hurt society in the same way as the people who ... planned and took out the 9/11 attacks.” He believed that once the solicitor used the term “terrorist,” the negative connotations associated with that term could not be removed.

To explain the comments in the context of the trial, PCR counsel called the solicitor who prosecuted Petitioner. He testified he intentionally used the term “domestic terrorist,” referenced the events of September 11th, and asked the jury to imagine the final moments of Williams' life. In terms of the “domestic terrorist” comment and the September 11th reference, he admitted that he knew Petitioner was Muslim, but nevertheless, believed these comments were a “fair characterization” of Petitioner's actions during the crimes. He believed the jury could have interpreted the term “terrorist” in the general sense that Petitioner “struck fear in the hearts of innocent people.” He further explained that the September 11th reference “made a very valid point” and was “sort of the introductory story for the victim impact testimony.” He acknowledged that his request for the jury to imagine the final moments of Williams' life could be construed as “objectionable.” He, however, testified his...

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    ...due process. Simmons v. State , 331 S.C. 333, 338, 503 S.E.2d 164, 166-67 (1998) (citations omitted); see also Vasquez v. State , 388 S.C. 447, 458, 698 S.E.2d 561, 566 (2010) ("The relevant question is whether the solicitor's comments [in closing argument] so infected the trial with unfair......
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    ...argument must stay contained to the evidence within the record or any reasonable inferences that can be drawn therefrom. Vasquez v. State, 388 S.C. 447, 458, 698 S.E.2d 561, 566 (2010). "A solicitor's closing argument must not appeal to the personal biases of the jurors nor be calculated to......
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