Whitner v. State, 24468

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtTOAL; FINNEY, C.J., and MOORE; FINNEY; MOORE
Citation492 S.E.2d 777,328 S.C. 1
PartiesCornelia WHITNER, Respondent, v. STATE of South Carolina, Petitioner. . Heard
Docket NumberNo. 24468,24468
Decision Date31 May 1995

Page 777

492 S.E.2d 777
328 S.C. 1
Cornelia WHITNER, Respondent,
STATE of South Carolina, Petitioner.
No. 24468.
Supreme Court of South Carolina.
Heard May 31, 1995.
Filed July 15, 1997.
Amended and Refiled on Grant of Rehearing Oct. 27, 1997.
Rehearing Denied Nov. 19, 1997.

Page 778

[328 S.C. 3] Attorney General Charles Molony Condon, Deputy Attorney General John W. McIntosh, Assistant Attorney General Teresa Nesbitt Cosby, Staff Attorney David K. Avant, Columbia, for Petitioner.

C. Rauch Wise, of Wise & Tunstall, Greenwood; Lynn M. Paltrow and Lisa S. Tankoos, both of The Center for Reproductive Law & Policy, New York, for Respondent.

Stephen P. Williams, Columbia, for Amici Curiae South Carolina Medical Association; American Medical Association & American College of Obstetricians & Gynecologists.

Robert H. Hood and Joseph C. Wilson, IV, both of Hood Law Firm, Charleston, for Amici Curiae City of Charleston, South Carolina; Board of Trustees and various employees of the MUSC; Reuben Greenberg, Chief of Charleston Police Department; Charles Molony Condon, former Ninth Circuit Solicitor; and David Schwacke, current Ninth Circuit Solicitor.

[328 S.C. 4] Susan Dunn, Charleston; Carol E. Tracy and Susan Frietsche, Philadelphia, PA, for Amici Curiae The American Public Health Association; American Medical Women's Association; American Nurses Association; Coalition on Addiction, Pregnancy and Parenting; Drug Policy Foundation; National Council on Alcoholism and Drug Dependence; National Perinatal Association; Planned Parenthood of Central South Carolina; National Women's Health Network; NOW Legal Defense and Education Fund; South Carolina Chapter of The National Organization for Women; South Carolina Nurses Association; and The Women's Law Project and Operation PAR.

John D. (Jay) Elliott, Columbia, for Amicus Curiae The Alliance for South Carolina's Children.

TOAL, Justice.

This case concerns the scope of the child abuse and endangerment statute in the South Carolina Children's Code (the Code), S.C.Code Ann. § 20-7-50 (1985). 1 We hold the word "child" as used in that statute includes viable fetuses.


On April 20, 1992, Cornelia Whitner (Whitner) pled guilty to criminal child neglect, S.C.Code Ann. § 20-7-50 (1985), for causing her baby to be born with cocaine metabolites in its system by reason of Whitner's ingestion

Page 779

of crack cocaine during the third trimester of her pregnancy. The circuit court judge sentenced Whitner to eight years in prison. Whitner did not appeal her conviction.

Thereafter, Whitner filed a petition for Post Conviction Relief (PCR), pleading the circuit court's lack of subject matter jurisdiction to accept her guilty plea as well as ineffective[328 S.C. 5] assistance of counsel. Her claim of ineffective assistance of counsel was based upon her lawyer's failure to advise her the statute under which she was being prosecuted might not apply to prenatal drug use. The petition was granted on both grounds. The State appeals.


A. Subject Matter Jurisdiction

The State first argues the PCR court erred in finding the sentencing circuit court lacked subject matter jurisdiction to accept Whitner's guilty plea. We agree.

Under South Carolina law, a circuit court lacks subject matter jurisdiction to accept a guilty plea to a nonexistent offense. See Williams v. State, 306 S.C. 89, 410 S.E.2d 563 (1991). For the sentencing court to have had subject matter jurisdiction to accept Whitner's plea, criminal child neglect under section 20-7-50 would have to include an expectant mother's use of crack cocaine after the fetus is viable. 2 All other issues are ancillary to this jurisdictional issue.

S.C.Code Ann. § 20-7-50 (1985) provides:

Any person having the legal custody of any child or helpless person, who shall, without lawful excuse, refuse or neglect to provide, as defined in § 20-7-490, the proper care and attention for such child or helpless person, so that the life, health or comfort of such child or helpless person is endangered or is likely to be endangered, shall be guilty of a misdemeanor and shall be punished within the discretion of the circuit court. (emphasis added).

[328 S.C. 6] The State contends this section encompasses maternal acts endangering or likely to endanger the life, comfort, or health of a viable fetus.

Under the Children's Code, "child" means a "person under the age of eighteen." S.C.Code Ann. § 20-7-30(1) (1985). The question for this Court, therefore, is whether a viable fetus is a "person" for purposes of the Children's Code.

In interpreting a statute, this Court's primary function is to ascertain the intent of the legislature. E.g., State v. Ramsey, 311 S.C. 555, 430 S.E.2d 511 (1993). Of course, where a statute is complete, plain, and unambiguous, legislative intent must be determined from the language of the statute itself. E.g., State v. Blackmon, 304 S.C. 270, 403 S.E.2d 660 (1991). We should consider, however, not merely the language of the particular clause being construed, but the word and its meaning in conjunction with the purpose of the whole statute and the policy of the law. E.g., South Carolina Coastal Council v. South Carolina State Ethics Comm'n, 306 S.C. 41, 410 S.E.2d 245 (1991). Finally, there is a basic presumption that the legislature has knowledge of previous legislation as well as of judicial decisions construing that legislation when later statutes are enacted concerning related subjects. See Berkebile v. Outen, 311 S.C. 50, 426 S.E.2d 760 (1993); 82 C.J.S. Statutes § 316, at 541-42 (1953).

South Carolina law has long recognized that viable fetuses are persons holding certain legal rights and privileges. In 1960, this Court decided Hall v. Murphy, 236 S.C. 257, 113 S.E.2d 790 (1960). That case concerned the application of South Carolina's wrongful death statute to an infant who died

Page 780

four hours after her birth as a result of injuries sustained prenatally during viability. The Appellants argued that a viable fetus was not a person within the purview of the wrongful death statute, because, inter alia, a fetus is thought to have no separate being apart from the mother.

We found such a reason for exclusion from recovery "unsound, illogical and unjust," and concluded there was "no medical or other basis" for the "assumed identity" of mother and viable unborn child. Id. at 262, 113 S.E.2d at 793. In light of that conclusion, this Court unanimously held: "We have no difficulty in concluding that a fetus having reached [328 S.C. 7] that period of prenatal maturity where it is capable of independent life apart from its mother is a person." Id. at 263, 113 S.E.2d at 793 (emphasis added).

Four years later, in Fowler v. Woodward, 244 S.C. 608, 138 S.E.2d 42 (1964), we interpreted Hall as supporting a finding that a viable fetus injured while still in the womb need not be born alive for another to maintain an action for the wrongful death of the fetus.

Since a viable child is a person before separation from the body of its mother and since prenatal injuries tortiously inflicted on such a child are actionable, it is apparent that the complaint alleges such an 'act, neglect or default' by the defendant, to the injury of the child....

* * * * * *

Once the concept of the unborn, viable child as a person is accepted, we have no difficulty in holding that a cause of action for tortious injury to such a child arises immediately upon the infliction of the injury.

Id. at 613, 138 S.E.2d at 44 (emphasis added). Fowler makes particularly clear that Hall rested on the concept of the viable fetus as a person vested with legal rights.

More recently, we held the word "person" as used in a criminal statute includes viable fetuses. State v. Horne, 282 S.C. 444, 319 S.E.2d 703 (1984), concerned South Carolina's murder statute, S.C.Code Ann. § 16-3-10 (1976). The defendant in that case stabbed his wife, who was nine months' pregnant, in the neck, arms, and abdomen. Although doctors performed an emergency caesarean section to deliver the child, the child died while still in the womb. The defendant was convicted of voluntary manslaughter and appealed his conviction on the ground South Carolina did not recognize the crime of feticide.

This Court disagreed. In a unanimous decision, we held it would be "grossly inconsistent ... to construe a viable fetus as a 'person' for the purposes of imposing civil liability while refusing to give it a similar classification in the criminal context." Id. at 447, 319 S.E.2d at 704 (citing Fowler v. Woodward, supra ). Accordingly, the Court recognized the crime of feticide with respect to viable fetuses.

[328 S.C. 8] Similarly, we do not see any rational basis for finding a viable fetus is not a "person" in the present context. Indeed, it would be absurd to recognize the viable fetus as a person for purposes of homicide laws and wrongful death statutes but not for purposes of statutes proscribing child abuse. Our holding in Hall that a viable fetus is a person rested primarily on the plain meaning of the word "person" in light of existing medical knowledge concerning fetal development. We do not believe that the plain and ordinary meaning of the word "person" has changed in any way that would now deny viable fetuses status as persons.

The policies enunciated in the Children's Code also support our plain meaning reading of "person." S.C.Code Ann. § 20-7-20(C) (1985), which describes South Carolina's policy concerning children, expressly states: "It shall be the policy of this State to concentrate on the prevention of children's problems as the most important strategy which can be planned and implemented on behalf of children and their families." (emphasis added). The abuse or neglect of a child at any time during childhood can exact a profound toll on the child herself as well as on society as a whole. However, the consequences of abuse or neglect which takes place after birth...

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