THE STATE OF SOUTH CAROLINA
In The Supreme Court
John Henry Simmons, Jr., Petitioner,
State of South Carolina, Respondent.
ON WRIT OF CERTIORARI
Appeal From Richland County
John H. Waller, Jr., Trial Judge
Paul E. Short, Jr., Post-Conviction Judge
Opinion No. 24795
Submitted April 22, 1998 - Filed June 1, 1998
Assistant Appellate Defender Tara S. Taggart and
Assistant Appellate Defender Lesley M. Coggiola,
both of the South Carolina Office of Appellate
Defense, of Columbia, for petitioner.
Attorney General Charles Molony Condon, Deputy
Attorney General John W. McIntosh, and Assistant
Deputy Attorney General Teresa A. Knox, all of
Columbia, for respondent.
BURNETT, A.J.: This Court granted certiorari to review the
denial of petitioner's application for post-conviction relief (PCR). We
Petitioner was convicted of first degree burglary and two
counts of assault and battery of a high and aggravated nature (ABHAN).
The jury did not recommend mercy on the burglary charge,1 and petitioner
was sentenced to life imprisonment for the burglary and ten years
imprisonment for each ABHAN. His convictions and sentences were
affirmed on direct appeal. State v. Simmons, Op. No. 87-MO-276 (S.C.
Sup. Ct. filed June 8, 1987).
Petitioner filed an application for PCR alleging ineffective
assistance of counsel. At the PCR hearing, petitioner specifically claimed
trial counsel was ineffective for failing to object to and move for a mistrial
because of improper and inflammatory jury arguments by the solicitor and
the solicitor's jury argument of matters outside the record.
The solicitor made the following comments during his closing
He might have had plans to case that house, get an idea
everything that was there and was going to take it on the way
out. He had something else in mind. He had something evil
on his mind. He went in, it was obvious the people were
upstairs. He knew exactly what he wanted. He saw Mrs.
Lewis sleeping in her bed in the darkness, exactly what he
wanted . . . .
That is the form of the verdict in a burglary case, everybody
knows, realize in a criminal case there is just two verdicts:
guilty or not guilty. In burglary, it is a little bit different.
There is what they call special verdicts. You have two forms
of guilty in a burglary case. One is guilty and the other is
burglary statute which eliminated the provision that absent a
recommendation of mercy by the jury, the sentence for burglary was a
mandatory term of life imprisonment. Compare S.C. Code Ann. § 16-11-
310 (1985) with S.C. Code Ann. § 16-11-311 (Supp. 1997).
guilty with a recommendation for mercy. The difference
between the two is the basis for sentencing. They say that for
a guilty burglary without a recommendation for mercy, that
carries a life sentence. Why do they call it a life sentence,
when it is not the entire natural life of a person. Not that. It
is a heavier sentence than recommendation for mercy. That is
the basic difference. Guilty with mercy carries a lighter
The real choice in this case is going to be do we find him
guilty of burglary or do we recommend mercy? . . .
Which are you going to apply for our home, the New York
standard or the South Carolina standard? In New York, just a
burglary, so what, give him mercy. South Carolina the
standard should be clear.
Trial counsel failed to object to any of these statements.
During the PCR hearing, trial counsel offered no reason for his failure to
object, although trial counsel admitted he probably should have objected to
some of the statements because the solicitor misstated the law.
The PCR judge found the statements, while perhaps improper,
harmless when considered in the context of the whole trial because "there
was enough evidence in the record to convict the [petitioner], thereby
providing a reasonable probability that the jury verdict would not have
been different absent the solicitor's statements." According to the PCR
judge, the trial judge adequately cured any prejudice created by the
solicitor's statement regarding a life sentence not being a full natural life
by explaining to the jury that the trial judge was responsible for
sentencing. Further, the PCR judge found the "real choice" argument and
the "New York" argument, when read in context, were merely
informational and not prejudicial. The PCR judge failed to rule on the
statements concerning petitioner's intent to rape Mrs. Lewis which
petitioner claimed was improper because no facts in the record supported
Did the PCR judge err in failing to find trial counsel ineffective
for failing to object to portions of the solicitor's closing
Petitioner contends the PCR judge erred in failing to find trial
counsel was ineffective for failing to object to the portions of the solicitor's
closing argument concerning the meaning of a life sentence and the "real
choice" available to the jury. We agree.
The burden is on the applicant in a post-conviction proceeding
to prove the allegations in his application. Butler v. State, 286 S.C. 441,
334 S.E.2d 813 (1985), cert. denied, 474 U.S. 1094, 106 S.Ct. 869, 88
L.Ed.2d 908 (1986). As to allegations of ineffective assistance of counsel,
the applicant must show his counsel's performance fell below an objective
standard of reasonableness, and but for counsel's errors, there is a
reasonable probability the result at trial would have been different.
Strickland v. Washington, 466 U.S. 668p 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984); Johnson v. State, 325 S.C. 182p 480 S.E.2d 733 (1997). A
reasonable probability is a probability sufficient to undermine confidence
in the outcome of the trial. Johnson v. State, supra.
A solicitor's closing argument must not appeal to the personal
biases of the jurors nor be calculated to arouse the jurors' passions or
prejudices, and its content should stay within the record and reasonable
inferences to it. State v. Copeland, 321 S.C. 318, 468 S.E.2d 620 (1996).
Improper comments do not automatically require reversal if they are not
prejudicial to the defendant. Johnson v. State, supra; 3 Wharton's
Criminal Procedure § 353 (13th ed. 1991) (question is whether comment
was sufficiently prejudicial or harmless). On appeal, the appellate court
will view the alleged impropriety of the solicitor's argument in the context
of the. entire record, including whether the trial judge's instructions
adequately cured the improper argument and whether there is
overwhelming evidence of the defendant's guilt. Johnson v. State, supra (a
solicitor's improper comments may be cured by the judge's instructions to
the jury); State v. Copeland, supra; United States v. Wilson, 135 F.3d 291
(4th Cir. 1998). The appellant has the burden of proving he did not
receive a fair trial because of the alleged improper argument. State v.
Johnson, supra; State v. Copeland, supra. The relevant question is
whether the solicitor's comments so infected the trial with unfairness as to
make the resulting conviction a denial of due process. Donnelly v.
DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974); State v.
Patterson, 324 S.C. 5, 482 S.E.2d 760, cert. denied, ___ U.S. ___, 118 S.Ct.
146, 139 L.Ed.2d 92 (1997).
The solicitor misstated the law in his closing argument by
improperly injecting parole considerations into the jury's sentencing
decision and equating a finding of guilty with a recommendation of mercy
with a much lighter sentence or an acquittal. See State v. Brooks, 271
S.C. 355, 247 S.E.2d 436 (1978) (a jury should not be invited nor
permitted to speculate about the possible effects of parole upon a
conviction). In State v. Hinton, 210 S.C. 480, 4881, 43 S.E.2d 360, 363
(1947), this Court stated:
Nor can we find any justification for the argument that if the
defendants were found guilty of murder, but recommended to
life imprisonment, that this would not necessarily mean that
they would serve a life sentence.
It would appear that the only logical inference to be
drawn from such an argument is that, in a case like the one
before us, all elements of mercy and extenuating circumstances
should be put aside, even if present, because the only certainty
of adequate punishment would be a sentence of guilty without
recommendation to mercy. In other words, a verdict of murder
should be rendered because some other department of the state
government might shorten or commute a life sentence.
In Hinton, the Court found the solicitor's improper argument
probably affected the verdict. Further, the instructions given by the trial
judge to the jury to disregard the solicitor's improper comments did not
cure the prejudice caused by these remarks; therefore, the defendant was
entitled to a new trial. Id. Compare with State v. Gilstrap, 205 S.C. 412,
32 S.E.2d 163 (1944) (evidence of guilt was overwhelming and the
instruction was adequate to cure the improper argument; thus, the
defendant was not prejudiced).
Here, the trial judge's instructions to the jury did not correct
the solicitor's misstatements concerning the consequences of the burglary
conviction. The trial judge informed the jury that the sentencing
responsibility was exclusively his, and he discussed the three forms of
verdict available to the jury for the burglary charge. No explanation of
the sentencing consequences for a verdict of guilty and for a verdict of
guilty with a recommendation of mercy were provided to the jury. See
State v. Plath, 277 S.C. 126, 284 S.E.2d 221 (1981), appeal after remand,
281 S.C. 1, 313 S.E.2d 619, cert. denied by Arnold v. South Carolina, 467
U.S. 1265, 104 S.Ct. 3560, 82 L.Ed.2d 862 (1984), overruled on other
grounds by State v. Collins, 329 S.C. 23, 495 S.E.2d 202 (1998) (any
prejudice from reference to parole in argument was cured by trial judge's
jury instruction); State v. McGee, 268 S.C. 618, 235 S.E.2d 715 (1977)
(where the right to fix the punishment or make a recommendation with
regard to punishment rests with the jury, the consequences of a conviction
should be provided to the jury). Thus, no jury instructions cured the
solicitor's improper argument.
The evidence of petitioner's guilt is overwhelming.2 However,
because the issue is whether the solicitor's improper argument prevented
the jury from fairly considering the guilty with a recommendation of mercy
verdict, the overwhelming evidence of petitioner's guilt does not eliminate
the reasonable probability that the result of the trial would have been
different had trial counsel objected to portions of the solicitor's closing
argument. See. State v. McGee, 268 S.C. 618, 235 S.E.2d 715 (1977)
(where this Court found the trial judge erred by refusing to instruct the
jury as to the penalty for the crime of burglary and by preventing the jury
from determining, as the statute requires, whether to recommend mercy,
and further finding this type of error could not be considered harmless
because the recommendation of the jury is an important part of the verdict
and without proper instructions, the probability of prejudice is great); see
also State v. White, 246 S.C. 502, 144 S.E.2d 481 (1965) (finding where
the jury had absolute discretion with regard to the issue of mercy, it was
impossible to determine whether the solicitor's improper argument actually
complete description to the police. Mrs. Lewis positively identified
petitioner as the intruder at a subsequent photographic lineup and again
at trial. Mr. Lewis was able to stab the intruder in the chest prior to the
intruder's escape. Police were notified that someone had called for an
ambulance from 4106 Glendon Street in Richland County, but later
canceled the request. A police officer investigated the call by going to the
address. The police officer found petitioner at that address and he had a
fresh wound to the center of his chest. Bloody clothing was found at the
address. Further, a shoe tassel matching the one found at the victims'
residence belonged to petitioner.
prejudiced defendant; however, the probability of prejudice was great, and
defendant was entitled to a new trial).
The solicitor's improper comments prevented petitioner from
having the jury fairly consider the possible sentencing alternatives.
Further, the jury instructions failed to cure the prejudice caused by these
comments. Thus, because the probability for prejudice is great, we grant
petitioner a new trial on the burglary charge. See Chubb v. State, 303
S.C. 395, 401 S.E.2d 159 (1991) (holding because determination of guilt
and whether mercy should be recommended should be made in one
proceeding by the same jury, petitioner is entitled to a new trial on the
As to the portion of the closing argument concerning
petitioner's intent to rape Mrs. Lewis, which petitioner claims was
improper because no facts in the record supported this argument, the
failure of trial counsel to object was not ruled on by the PCR judge and,
accordingly, is not preserved for review.3Plyler v. State, 309 S.C. 408,
outside the record by inferring the crime petitioner intended to commit
was rape. State v. Huggins, 325 S.C. 103, 481 S.E.2d 114 (1997)
(arguments must be confined to evidence in the record and reasonable
inferences therefrom, although a failure to do so will not automatically
result in reversal); State v. Tucker, 324 S.C. 155, 478 S.E.2d 260 (1996),
cert. denied, ___ U.S. ___, 117 S.Ct. 1561, 137 L.Ed.2d 708 (1997) (closing
arguments must be confined to the evidence in the record and its
reasonable inferences). However, even if the remarks were improper, they
did not prejudice petitioner's right to a fair trial because the evidence
against petitioner on the burglary charge was overwhelming. State v.
Huggins, supra (a new trial will not be granted unless the prosecutor's
comments so infected the trial with unfairness as to make the resulting
conviction a denial of due process); see also Darden v. Wainwright. 477
U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986); State v. Tucker, supra
(the burden of proof is on appellant to show prejudice as a result of the
solicitor's improper comments); State v. Copeland, supra (a reviewing court
will view the alleged improper remark in the context of the entire record).
Thus, in our opinion, these comments did not affect the outcome of the
trial. Compare with United States v. Wilson, 135 F.3d 291 (4th Cir. 1998)
(prosecutor's improper argument that defendant murdered someone
424 S.E.2d 477 (1992).
As to the "New York" comments, we find, within the context of
the whole record, they were not improper.
FINNEY, C.J., TOAL and MOORE, JJ., concur. WALLER, A.J., not
defendant was on trial for drug offenses and not for the murder, and the
murder argument was emphasized in prosecutor's comments).