Yates v. Aiken, 22614

• Decision Date: 26 March 1986
• Docket Number: No. 22614,22614
• Citation: 290 S.C. 231,349 S.E.2d 84
• Parties: Dale Robert YATES, Petitioner, v. James AIKEN, Warden, CCI, and the Attorney General, South Carolina, Respondents. . Heard
• Court: South Carolina Supreme Court

Page 84

349 S.E.2d 84

290 S.C. 231

Dale Robert YATES, Petitioner, v. James AIKEN, Warden, CCI, and the Attorney General, South Carolina, Respondents.

No. 22614.

Supreme Court of South Carolina.

Heard March 26, 1986.

Decided Sept. 29, 1986.

David I. Bruck, and S.C. Office of Appellate Defense, Columbia, for petitioner.

Atty. Gen. T. Travis Medlock, and Chief Deputy Atty. Gen. Donald J. Zelenka, Columbia, for respondents.

NESS, Chief Justice:

This case is before us on remand from the United States Supreme Court for reconsideration of Yates' petition for writ of habeas corpus. The petition is denied.

Yates was convicted of murder and armed robbery in 1981 and was sentenced to death upon recommendation of a jury. This Court affirmed the conviction and sentence. State v. Yates, 280 S.C. 29, 310 S.E.2d 805 (1982), cert. den., 462 U.S. 1124, 103 S.Ct. 3098, 77 L.Ed.2d 1356 (1983). Yates' application for post conviction relief was denied, and he sought a writ of certiorari from this Court to review the decision of the circuit court. Yates also filed a petition for writ of habeas corpus in the original jurisdiction of this Court alleging, for the first time, constitutional error in the jury instructions at trial. The petitions were consolidated and both were denied by summary order. The United States Supreme Court vacated the denial of the petition for writ of habeas corpus and remanded for reconsideration in light of its decision in Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985). Yates v. Aiken, --- U.S. ----, 106 S.Ct. 218, 88 L.Ed.2d 218 (1985).

At Yates' trial the jury was instructed that malice is presumed from the use of a deadly weapon. No objection to the charge was made, and the issue was not raised on direct appeal. Approximately one year after Yates' conviction was affirmed, this Court found error in a similar malice charge. State v. Elmore, 279 S.C. 417, 308 S.E.2d 781 (1983). The jury instruction at Yates' trial suffered from the same infirmities present in Elmore and addressed in Francis v. Franklin, supra.

The question we must resolve is whether Elmore may be applied retroactively to invalidate a conviction which was final at the time Elmore was decided. We have expressly stated that Elmore's retroactive effect is limited to cases pending on direct appeal at the time that case was decided and will not apply to collateral attacks on criminal convictions. McClary v. State, 287 S.C. 160, 337 S.E.2d 218 (1985). In light of the remand of this case, however, we take this opportunity to re-evaluate and expand on our holding in McClary.

Decisions from the United States Supreme Court regarding retroactive application of new rules of criminal law are a mass of confusion. Indeed, that Court has noted that the development of the law of retroactivity is "almost as difficult to follow as the tracks made by a beast of prey in search of its intended victim." United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 2584, 73 L.Ed.2d 202 (1982), citing Mackey v. United States, 401 U.S. 667, 91 S.Ct. 1160, 1172, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring). In applying those precedents at the state level to determine the retroactive effect of a prior state decision, one factor is controlling. "Retroactive application is not compelled, constitutionally or otherwise." Solem v. Stumes, 465 U.S. 638, 104 S.Ct. 1338, 1341, 79 L.Ed.2d 579 (1984). See also, United States v. Johnson, 102 S.Ct. at 2583, citing Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 1737, 14 L.Ed.2d 601 (1965); [" 'The Constitution neither prohibits nor requires ... retrospective effect' be given to any 'new' constitutional rule."]; and citing Great Northern R. Company v. Sunburst Oil & Refining Company, 287 U.S. 358, 53 S.Ct. 145, 148, 77 L.Ed. 360 (1932) [" 'the federal constitution has no voice upon the subject' of retrospectivity."] In the absence of constitutional mandate, this Court is free to determine our own standards regarding retroactivity of state decisions.

While not binding on us, several of these decisions are instructive on the issue of retroactivity.

Prospective application should be afforded a new rule of criminal procedure which is a "clear break" from earlier precedent. United States v. Johnson, 102 S.Ct. at 2587, citing Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 1033, 22 L.Ed.2d 248 (1969). See, e.g., Batson v. Kentucky, --- U.S. ----, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (White, J., and O'Connor, J., concurring in separate opinions; Burger, C.J., and Rehnquist, J., dissenting). See also, State v. Hawkins, South Carolina Supreme Court Order dated June 6, 1986 [applying Batson v. Kentucky prospectively from the date of the decision.] Full retroactivity, even by collateral attack, should be permitted when a ruling establishes that the trial court's action is void ab initio or that defendant's conduct was not subject to criminal punishment. United States v. Johnson, 102 S.Ct. at 2587, and cases cited therein. The gray area between these two bright line rules has resulted in the majority of litigation on this issue.

We are persuaded by Justice Harlan's view that a new rule of criminal law which does not fall into one of the categories discussed above should be applied retroactively to all cases pending on direct review at the time the new decision is issued. See, Desist v. United States, supra (Harlan, J., dissenting); Mackey v. United States, supra, (Harlan, J., concurring) [adopted in United States v. Johnson, supra, as to new decisions arising under the Fourth Amendment.] See also, Shea v. Louisiana, 470 U.S. 51, 105 S.Ct. 1065, 1069, 84 L.Ed.2d 38, citing United States v. Johnson, 102 S.Ct. at 2594. This rule is, of course, subject to traditional standards of waiver and harmless error. ¹ Shea v. Louisiana, 470 U.S. 51, 105 S.Ct. 1065, 1070, 84 L.Ed.2d 38 (1985) at footnote 4; Reed v. Ross, 468 U.S. 1, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984).

Justice Harlan's view has several advantages. Retroactive effect of a new rule is appropriate when the purpose of the new rule is to "enhance the accuracy of criminal trials." Solem v. Stumes, 104 S.Ct. at 1342. On one hand, the Harlan approach avoids the problem of the Court becoming a "super-legislature," picking one case at random in which to announce a new rule, "then letting all other similarly situated persons be passed by unaffected and unprotected by the new rule." Shea v. Louisiana, 105 S.Ct. at 1069. On the other hand, it prevents the illogical result of reversing, on collateral review, a decision on the basis of a rule of law which did not exist at the time the case was finally decided. Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977) (Powell, J., concurring).

Accordingly, we adhere to our decision in McClary that the retroactive application of Elmore is limited to cases pending on direct appeal at the time Elmore was decided. Collateral attack of a criminal conviction on the basis of legal precedent that developed after the conviction became final must be reserved for those cases in which the trial court's action was without jurisdiction or is void because the defendant's conduct is not subject to criminal sanction.

We realize that many factors affect the progress of a case through the judicial system, and the speed of appellate review will necessarily differ from case to case. Even under our view of the scope of retroactivity, it may be inevitable that some similarly situated defendants will be treated differently. United States v. Johnson, 102 S.Ct. at 2591, footnote 17. However, we believe our approach is less likely to result in inequitable treatment among similarly situated individuals than is the approach applied by the federal courts. "The distinction ... properly rests on considerations of finality in the judicial process. The one litigant already has taken his case through the primary system. The other has not. For the latter, the curtain of finality has not been drawn. Somewhere, the closing must come." Shea v. Louisiana, 105 S.Ct. at 1070.

While we affirm Yates' conviction, we raise, sua sponte, the propriety of Yates' death sentence in light of the United States Supreme Court's decision in Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). In that case, the Supreme Court held the Eighth Amendment forbids the imposition of the death penalty on "one who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force ... be employed." Id. at 3376. See, State v. Peterson & Stubbs, 287 S.C. 244, 335 S.E.2d 800 (1985). Rather than remanding this case for a new sentencing proceeding, this Court may make its own review of the record to determine the factual questions raised by Enmund. Cabana v. Bullock, --- U.S. ----, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986). See also State v. Patterson, 285 S.C. 5, 327 S.E.2d 650 (1984).

Yates and his compatriot Henry Davis spent two days driving around the Greenville area looking for a store to rob. The two finally agreed upon a rural store operated by Willie Wood, and entered the store.

Yates, armed with a gun, and Davis, brandishing a knife, confronted Wood, who was standing behind the store counter. Yates demanded money. Wood hesitated, and Davis repeated the demand. Wood gave Davis approximately $3,000 in cash from the cash register. Davis then ordered Wood to lie across the counter. When Wood refused, Yates pointed his gun at Wood. Wood stepped back and raised his hands in a defensive posture. Yates fired. The bullet passed completely through Wood's hand and tore the flesh on Wood's chest.

Alerted by the noise, Wood's mother, Helen Wood, entered the store from a door leading to the adjoining post office. Wood started from behind the counter with his own gun. Davis lunged at Mrs. Wood with his knife. The...