THE STATE OF SOUTH CAROLINA
In The Supreme Court
Donald Allen Jones, Petitioner,
State of South Carolina, Respondent.
ON WRIT OF CERTIORARI
Appeal From Lancaster County
Honorable George F. Coleman, Circuit Court Judge
Honorable James M. Morris, Circuit Court Judge (Resentencing)
Honorable Paul E. Short, Jr., Post-Conviction Judge
Opinion No. 24832
Heard October 3, 1995 - Filed August 31, 1998
John H. Blume and Teresa L. Norris, both of Center for Capital
Litigation; and South Carolina Office of Appellate Defense, all
of Columbia, for petitioner.
Attorney General Charles Molony Condon and Assistant Deputy Attorney
General Donald J. Zelenka, of Columbia, for Respondent.
TOAL, A.J.: We granted a petition for writ of certiorari from Donald Allen Jones
to review the question of the denial of his right to effective assistance of counsel. We
affirm the circuit court's order of dismissal.
In October 1983, Donald Allen Jones broke into the residence of Ned and Geraldine
Plyler, while they were away. He stole some money from the house. When the Plylers
returned, Jones attacked them, killing Mr. Plyler and then raping Mrs. Plyler.
Jones was arrested and tried. He was convicted of murder, armed robbery, criminal
sexual conduct, housebreaking, grand larceny, and kidnapping, and was sentenced to
death. His convictions and sentence were affirmed by this Court in State v. Jones, 288
S.C. 1, 340 S. E. 2d 782 (1985). The United States Supreme Court vacated this judgmen
in Jones v. South Carolina, 476 U.S. 1102, 106 S. Ct. 1943, 90 L. Ed. 2d 353 (1986), in
light of Skipper v. South Carolina, 476 U.S. 1, 106 S. Ct. 1669, 90 L. Ed. 2d 1 (1986).
The case was remanded for a new sentencing proceeding in which Jones would be allowed
to present evidence of his future adaptability to life in prison. At the resentencing, Jones
was again sentenced to death. On direct appeal from his resentencing, Jones argued, inter
alia, the trial judge erred in refusing to submit as a statutory mitigating circumstance tha
the murder was committed while he was under the influence of mental or emotional
disturbance. See S.C. Code Ann. § 16-3-20 (C)(b)(2)(Supp. 1996). This Court found
there was no evidence presented which indicated, at the time of the murder, Jones was
under the influence of mental or emotional disturbance and, therefore, concluded the trial
judge properly refused to charge the statutory mitigating circumstance. State v. Jones, 298
S.C. 118, 378 S.E.2d 594 (1989), cert. denied, 494 U.S. 1060 (1990).
In 1990, Jones filed an application for Post-Conviction Relief ("PCR"). After an
evidentiary hearing, the circuit court issued an order of dismissal. Jones's Rule 59(e)
motion to alter or amend the final order was denied. He then filed a petition for writ of
certiorari, and this Court granted certiorari to review one question. This question is
divided into two parts:
1. Was Jones denied the right to effective assistance of counsel at his resentencing
proceeding as a result of trial counsel's failure to adequately investigate and presen
relevant mitigating evidence regarding his impoverishment, the neglect and abuse to which
he was subjected, his severe mental illness, and his neurological impairment?
2. Was Jones denied the right to effective assistance of counsel as a result of trial
counsel's introduction of evidence that Jones had previously been sentenced to death?
A. MITIGATING EVIDENCE: SOCIAL HISTORY AND MENTAL IMPAIRMEN
Jones argues that he was denied the right to effective assistance of counsel during
his resentencing proceeding because his attorneys failed to thoroughly investigate and
present mitigating evidence regarding his mental impairments. Specifically, Jones argues
resentencing counsel were ineffective because they failed to adequately investigate his
social history, obtain his mental records, and provide this information to his one exper
witness, Dr. Diane Follingstad. He further claims counsel were ineffective because they
did not obtain the neurological testing specifically recommended by Dr. Follingstad. Jones
maintains a complete picture of his mental condition would have established he was
suffering from a mental or emotional disturbance at the time he committed the murder and,
thereby, entitled him to a charge on the additional statutory mitigating circumstance. See
S.C. Code Ann. § 16-3-20 (C)(b)(2)(the murder was committed while the defendant was
under the influence of mental or emotional disturbance)
Under the test for ineffective assistance of counsel enunciated in Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the petitioner mus
establish that counsel's representation fell below an objective standard of reasonableness.
Then he must show that the deficient performance prejudiced the defense. When a
defendant challenges a death sentence, prejudice is established when "there is a reasonable
probability that, absent [counsel's] errors, the sentencer -- including an appellate court, to
the extent it independently reweighs the evidence -- would have concluded that the balance
of aggravating and mitigating circumstances did not warrant death." Id. at 695, 104 S. Ct.
at 2069, 80 L. Ed. 2d at 698. "A reasonable probability is a probability sufficient to
undermine confidence in the outcome." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d a
Even if we assume in the present case that counsel's representation fell below an
objective standard of reasonableness, Jones fails the prejudice prong of the Strickland test.
We find that there is not a reasonable probability that, absent the errors, the sentencer
would have concluded that the balance of aggravating and mitigating, circumstances did no
warrant death. In deciding whether Jones was prejudiced, we must bear in mind the
strength of the government's case and the aggravating factors the jury found, as well as
the mitigating factors that might have been presented if Jones had been provided effective
assistance of counsel. See Stafford v. Saffie, 34 F.3d 1557, 1564 (10th Cir. 1994), cert.
denied, 115 S. Ct. 1830 (1995). The bottom line is that we must determine whether or no
Jones has met his burden of showing that it is reasonably likely that the jury's death
sentence would have been different if counsel had presented additional information abou
Jones's mental condition. In making, this determination, we must consider the totality of
the evidence before the jury.1 See Strickland, 466 U.S. 688, 104 S. Ct. 2052, 80 L. Ed.
In this case, the jury was presented with overwhelming evidence of Jones's guilt and
of the aggravating circumstances surrounding the murder. During the resentencing
proceeding, testimony revealed how Jones, a former employee of the Plylers, broke into
their home on October 11, 1983. After entering onto the property, he stole some money
from the home and, while there, shot the Plylers' three dogs. When the Plylers eventually
returned, Jones was standing on the porch. He approached Mr. Plyler, demanded money,
and then from a few feet away, shot him with a shotgun. Mr. Plyler took a few steps and
slumped forward on his face. Jones demanded that Mrs. Plyler remove the money tha
was in her husband's pocket. When she failed, Jones removed the money himself.
Despite Mrs. Plyler's plea that he not shoot again, Jones shot Mr. Plyler in the head two
more times with a pistol.
He then grabbed Mrs. Plyler by the elbow, took her inside, and sexually assaulted
her at gunpoint in various rooms in the house for approximately two hours. At one point,
it abrogate, precedent that has held that a jury should not be instructed to "weigh" the
aggravating circumstances against the mitigating circumstances. See State v. Bellamy, 293
S.C. 103, 359 S.E.2d 63 (1987), overruled on other grounds by State v. Torrence, 305
S.C. 45, 406 S.E.2d 315 (1991). Our analysis here relates not to jury instructions, but to
determining, for purposes of post-conviction relief, ineffective assistance of counsel in
death penalty cases.
A review of case law reveals why juries are not instructed to weigh aggravating and
mitigating circumstances. In State v. Shaw, 273 S.C. 194, 205, 255 S.E.2d 799, 804
(1979), cert. denied, 444 U.S. 957 (1980), we rejected the defendants' contention that the
death penalty "statutory complex is constitutionally defective because it does not assign
numerical values to the aggravating and mitigating circumstances so that the sentencing
authority can determine when the mitigating circumstances outweigh the aggravating
circumstances." Based on this reasoning, State v. Plath, 281 S.C. 1, 19, 313 S.E.2d 619,
629, cert. denied, 467 U.S. 1265 (1984) declared that "Additional aggravating
circumstances do not, under our statute, contribute to the actual selection of the death
penalty because juries in this State are not instructed to 'weigh' circumstances of
aggravation against circumstances of mitigation." Thus, the type of "weighing" we have
disapproved of is that which requires a jury to determine life or death on the basis of the
numerical weight of the aggravating and mitigating circumstances. The "weighing" tha
is permissible is the considering of any mitigating and aggravating, circumstances. See
Bellamy, 293 S.C. at 107, 359 S.E.2d at 65.
he informed her he had killed her dogs and threatened to kill her son. Jones left Mrs.
Plyler blindfolded, gagged, and tied to a bed. She heard him start her pickup truck, then
immediately turn it off. Jones returned to the house; he told Mrs. Plyler he was checking
to see if she was attempting to escape. Jones then drove away in the truck. Mrs. Plyler
testified she untied herself and escaped from her home. For twenty minutes she worked
her way in the dark over a barbed wire fence and through a pasture, towards a neighbor's
home. Mrs. Plyler saw Jones return in the pickup truck; he appeared to enter the Plylers'
home. He then left the home and drove the pickup truck back and forth, apparently in
search of Mrs. Plyler. At one point, Jones stopped the vehicle and turned off its lights
within fifteen feet of where Mrs. Plyler was hiding. Eventually, Jones drove off, and Mrs.
Plyler was able to reach a neighbor's home. She reported the events to police. Jones was
soon thereafter arrested. He was identified by Mrs. Plyler, who knew him prior to these
incidents. Moreover, physical evidence linked him to the crime. His palm prints were
found inside the Plylers' residence.
In mitigation, Jones presented six witnesses who were familiar with his background.
These included a school teacher, four family members, and a psychologist. Jones's third
grade teacher stated that Jones had difficulty retaining skills and that he was in special
education classes. Jones's aunt also testified on his behalf about his childhood and stated
that Donald smiled inappropriately, although his behavior generally was not unusual. In
his later years, he would wear shorts in the winter and a coat during the summer. While
in jail, he would respond to letters from family members by rewriting and returning the
correspondence he had received.
Jones's mother testified to other unusual behavior by Jones. On two occasions, he
engaged in "tearing [his mother's] house up." He would sometimes take a bath using big
buckets. He would sit on the side of the bridge and "look like he was just in a deep
wonder." He began doing these things after his sister's death. Another of Jones's aunts
testified that he was a happy and obedient child. While in prison, Jones also answered her
letters by sending the same letter back. Moreover, Jones's uncle testified on his behalf.
Thus, extensive evidence was presented at the resentencing hearing about Jones's
family and social background through his teacher, mother, two aunts, and uncle. They
highlighted the changes that occurred in him after the death of his sister and pointed ou
his unusual behavior.
In addition, counsel presented Dr. Diane Follingstad, a clinical psychologist, who
had tested Jones. Dr. Follingstad had administered tests that screen for brain damage. She
testified that Jones had "some mental deficiency." Further, she indicated that she had
administered the Wechsler Adult Intelligence Scale ("WAIS") test on Jones. On the
WAIS, he scored a 74 as to verbal I.Q., a 63 on the performance I.Q., achieving an
overall I. Q. of 67, which is in the "mentally retarded range." She testified that with an
I.Q. of 67, Jones "would have only one and a half percent of the Population lower than
him."2 She also gave him the Bender Gestalt test and Trails test, which screen for organic
brain damage. On these tests, Jones scored "within a brain damaged range," which
suggested "he does have some problem with the actual functioning of his brain." She
further stated that Jones
does act impulsively, that he doesn't this things through, that he does have
very poor judgment, extremely poor judgment, that he doesn't seem to have
the ability to really be able to stop and consider a variety of options. He also
doesn't have a lot of information about the world to use, and he also doesn'
have many options to get society's rewards in a more legitimate way, . . .
but that he just -- he doesn't see many options for himself.
She did not specifically diagnose Jones as being mentally ill at the time of the murder.
Against the recommendation of defense counsel, Jones testified during resentencing.
He admitted planning to steal money from the Plylers several days before he actually
committed the crimes. Jones explained he stole a shotgun and shells. He hid the shotgun
before going to rob the Plylers. He testified he planned to have Mrs. Plyler write a check
and then hold her hostage until the bank opened. Once he cashed the check, he planned
to kill Mrs. Plyler.
Jones stated that on the day of the crimes, he shot the Plylers' dogs, broke a
window on the side of their home where no one would notice, and waited in the Plylers'
home for them to return. Since he only had a few shotgun shells, Jones testified he loaded
the shotgun with some of Mr. Plylers' own shells and test-fired the shotgun against a wall
of the home. While waiting, Jones cut the ropes he used to bind Mrs. Plyler and located
Mr. Plyler's pistol.
Jones testified that when the Plylers returned home, he did not ask Mr. Plyler to
give him his money, but immediately shot him with the shotgun. Jones admitted he knew
Mr. Plyler was still alive, so Jones shot him twice with Mr. Plyler's own pistol. Jones
acknowledged the Plylers, for whom he had worked, had been good to him, and he had
nothing against them.
Based on the evidence presented in the resentencing phase, the jury considered five
statutory aggravating circumstances: (1) robbery while armed with a deadly weapon; (2)
Jones at the PCR hearing.
larceny with the use of a deadly weapon; (3) housebreaking; (4) criminal sexual conduct
in the first degree; and (5) kidnapping. Moreover, the following statutory mitigating
circumstances were considered: (1) the defendant has no significant history of prior
criminal conviction involving the use of violence against another person; (2) the capacity
of the defendant to appreciate the criminality of his conduct or to conform his conduct to
the requirements of law was substantially impaired; (3) the age or mentality of the
defendant at the time of the crime; and (4) other mitigating circumstance or circumstances
otherwise authorized by law.
After deliberating, the jury found beyond a reasonable doubt the existence of all five
aggravating circumstances listed above and recommended that Jones be sentenced to death
for the murder of Ned Plyler. The resentencing judge then found as an affirmative fac
that the evidence of the case warranted the imposition of the death penalty and that its
imposition was not the result of prejudice, passion, or any other arbitrary factor.
At the PCR hearing, Jones presented the testimony of four experts. Patricia
Feigley, a clinical social worker, testified about the importance of conducting a family and
social history. Testifying at length about Jones's upbringing and poor physical and social
environment, she indicated that he was mentally retarded and suffered from a speech
defect. Dr. James Evans, a clinical psychologist, testified that he had tested Jones and had
concluded that Jones had an I.Q. of 69, within the range of mental retardation. Jones had
a poor memory and exhibited signs of neuropsychological dysfunction and organic brain
A neurologist Dr. Nancy Earl stated that Jones showed signs "consistent with the
diagnosis of mental retardation and organic brain dysfunction or syndrome, " and he had
difficulty thinking in abstractions. Jones's language was within the range of normality, bu
his speech was not normal. He could understand and relate fairly well with concrete
concepts, but had considerable difficulty with more abstract concepts.
The diagnostic impressions of Dr. Billy Royal, a psychiatrist, were that Jones
suffered from mild mental retardation, organic mental syndrome, and psychotic disorder.
Although Royal admitted that a 1983 neurological examination of Jones had not revealed
organic brain damage, he stated that a neuropsychological test may have been necessary
to detect it.
In summary, these experts testified that Jones was mentally retarded, had brain
damage, and suffered from mental illness. The witnesses concluded Jones had each of
these disorders at the time the crimes were committed. The experts maintained Dr.
Follingstad did not have an adequate social history, complete mental records, and sufficien
testing, such as a neurological examination, by which to evaluate Jones and, accordingly,
she could not have diagnosed Jones as suffering from mental illness.
With regard to Jones's mental condition, even if counsel had fully explored the
mitigating circumstance of his mental incapacity, all that would have occurred at the
resentencing was that the jury would have heard a more elaborate version of Dr.
Follingstad's testimony. Follingstad did discuss that Jones was in the range for organic
brain damage, that he fell within the "mentally retarded range," and that his I. Q. ranked
in the lowest one and one-half percent in the population. Mental retardation and organic
brain dysfunction were the same ailments discovered by Drs. Earl, Evans, and Royal, the
experts Jones presented at the PCR hearing. We find that additional evidence abou
Jones's mental impairment would not have revealed anything significantly different than
that which the jury was presented.
At the sentencing hearing, the mentality of Jones was the focus of his mitigation
case. His counsel's strategy was not to portray Jones as being under active mental and
emotional disturbance, but rather to emphasize his mental retardation, as evidenced by his
upbringing.3 This strategy obviously did not succeed. Just because it was unsuccessful
does not mean that Jones can now recharacterize the evidence and claim that counsel did
not adequately present mitigation evidence. The "new" evidence is the same as the "old"
evidence. At best, it is a fancier mitigation case. If the evidence was not persuasive in
the first case, the defendant does not get a second chance. Otherwise, there would never
be an end to litigation.
Nevertheless, for purposes of the Strickland analysis, let us assume that if Jones's
PCR experts had been presented at the resentencing hearing, Jones would have been
entitled to an instruction on the additional mitigating circumstance found in section 16-3-
20(C)(b)(2). Even if counsel's representation was not objectively reasonable, Jones has
not met his burden of establishing prejudice under Strickland. From the testimony
presented, the jurors were aware that Jones was mentally retarded, that he had brain
damage, and that he often behaved in a bizarre manner. They were given several
mitigating factors through which to consider the mental condition of Jones. They were
also presented with overwhelming evidence of Jones's guilt and the callous and heinous
.way in which Jones calculated and executed the murder. They also considered the other
instructed us to 'indulge a strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance.' Thus we ask not whether, with the benefi
of hindsight, we would have conducted the defense differently. . . . Rather we must place
ourselves in the shoes of [defendant's] attorneys and ask only whether their choices were
objectively unreasonable. ")(Internal citation omitted).
aggravating factors surrounding the murder. Under these circumstances, there is no
reasonable probability the sentencer would have concluded the balance of aggravating and
mitigating circumstances did not warrant death, even if it had knowledge that, at the time
of the murder, Jones was under the influence of a mental disturbance. Accordingly, Jones
fails to establish ineffective assistance of counsel under Strickland.
The dissent posits that Strickland's standard (whether there is a reasonable
probability that, absent the errors, the sentencer would have concluded the balance of
aggravating and mitigating circumstances did not warrant death) is a specific application
under the Florida statutory sentencing scheme, and does not have applicability here
because South Carolina has a different statutory scheme. A perusal of Strickland itself,
as well as other cases, will reveal that Strickland is not so limited. In relation to its
prejudice prong, Strickland declared:
When a defendant challenges a conviction, the question is whether there is
a reasonable probability that, absent the errors, the factfinder would have
had a reasonable doubt respecting guilt. When a defendant challenges a
death sentence such as the one at issue in this case, the question is whether
there is a reasonable probability that, absent the errors, the sentencer --
including an appellate court, to the extent it independently reweighs the
evidence -- would have concluded that the balance of aggravating and
mitigating circumstances did not warrant death.
Strickland, 466 U.S. at 695, 104 S. Ct. at 2068-69, 80 L. Ed. 2d at 698. The United
States Supreme Court set forth the above standard for determining prejudice for all
ineffective assistance of counsel cases challenging death sentences. It did not restrict the
above test to cases arising under statutory sentencing schemes such as that utilized in
This was confirmed by Plath v. Moore, 130 F.3d 595 (4th Cir. 1997). In Plath,
the Fourth Circuit considered an ineffective assistance of counsel claim by John Plath, who
had been sentenced to death in South Carolina. In affirming the denial of a petition for
writ of habeas corpus, the Court stated:
[W]hen considered against the sheer magnitude of the aggravating, evidence
against Plath, it is difficult to see the allegedly unreasonable omission of this
mitigating evidence as prejudicial. As in Strickland, "[g]iven the
overwhelming, aggravating, factors, there is no reasonable probability that the
omitted evidence would have changed the conclusion that the aggravating
circumstances outweighed the mitigating circumstances and, hence, the
sentence imposed." Thus, in weighing the omitted evidence against tha
actually used to convict and sentence Plath, the mitigating evidence seems
insufficient to shift the balance in Plath's favor.
Plath, 130 F. 3d at 602; see also Waldrop v. Jones, 77 F. 3d 1308, 1312 (11th Cir.)("When
challenging a death sentence, a petitioner must show that 'there is a reasonable probability
that, absent the errors, the sentencer . . .would have concluded that the balance of
aggravating and mitigating circumstances did not warrant death."'), cert. denied, 117 S.
Ct. 247 (1996),
B. EVIDENCE OF PREVIOUS DEATH SENTENCE
Jones next argues that he was denied the right to effective assistance of counsel
because of counsel's introduction of evidence that Jones had previously been sentenced to
death. We disagree.
At the resentencing hearing, Jones's attorney called Sylvester Williams to testify.
In the course of his testimony, Williams recounted an incident between Jones and himself:
The officer let me out my cell to get a haircut, and on my way back to the
cell Donald Jones was around my side, and he was supposed to be on death
row, and inmates on lock-up and death row don't suppose to mingle
together, so he was down there with no handcuffs on, and I was handcuffed
in the front, and me and him had had a few words about a week ago, and the
correction officer had told me -- . . . .
It really wasn't no conflict. It was words, you know, and death row inmates
is up on the third -- like a two story house. It's a three story house. . . .
Jones argues that as a result of these references to "death row," the reliability of the jury's
verdict and sentence was diminished by the knowledge that another jury had sentenced
Jones to die for the same offenses that were under consideration at the resentencing
In Romano v. Oklahoma,, 512 U.S. 1, 114 S. Ct. 2004, 129 L. Ed. 2d 1 (1994), the
United States Supreme Court held that evidence of a defendant's prior death sentence did
not deprive him of a fair sentencing, proceeding. Jones argues Romano is distinguishable
because in that case, the jury was made aware that the defendant had been sentenced to die
for another offense.
Jones's ineffectiveness argument lacks merit for several reasons. In the presen
case, there was no formal introduction of evidence of his previous death sentence. There
was only a passing reference to "death row" from which the jury may have inferred tha
Jones had been sentenced to death before. Second, the statement did not state that he was
on death row for committing the crimes against the Plylers. It may have been construed
by the jury as a death sentence for a previous crime.
Most importantly, however, Jones cannot escape the underlying rationale of
Romano: "We do not believe that the admission of evidence regarding petitioner's prior
death sentence affirmatively misled the jury regarding its role in the sentencing process so
as to diminish its sense of responsibility." Id. at 10, 1 14 S. Ct. at 2010, 129 L. Ed. 2d
at 11; see also State v. Bell, 302 S.C. 18, 24, 393 S.E.2d 364, 368 ("[W]e also rejec
Bell's argument that the jurors' knowledge of the previous death sentence diminished their
sense of responsibility in deciding what sentence to impose."), cert. denied, 498 U.S. 881
(1990). Jones has not established how this passing reference to "death row" has misled
the jury regarding its role in the sentencing process or diminished its sense of
responsibility. Because Jones clearly fails to meet Strickland's prejudice prong, we need
not address the first prong of the test.
For the foregoing reasons, the PCR court's order is AFFIRMED.
MOORE, WALLER and BURNETT, JJ., concur. FINNEY, C.J., dissenting
in separate opinion.
Finney, C.J.: I respectfully dissent and would grant petitioner a new
On direct appeal from his resentencing proceeding, petitioner
contended the trial judge committed reversible error in denying petitioner's
request to charge the jury on the statutory mitigating circumstance tha
the murder was committed under the influence of mental or emotional
disturbance. S.C. Code Ann. §16-3-20(C)(b)(2)(Supp. 1995). The majority
of the Court affirmed the refusal to charge, holding, "There was no
evidence at trial that, at the time of the murder, Jones was under the
influence of a mental or emotional disturbance." State v. Jones, 298 S.C.
118, 123, 378 S.E.2d 594, 597 (1989), cert. denied, 494 U.S. 1060 (1990). I
alone dissented, finding evidence in the record to support the requested
charge. Id. at 126, 378 S.E.2d at 598 (Finney, A.J., dissenting). In ligh
of the majority opinion in petitioner's direct appeal, it is res judicata tha
there was no evidence presented at the resentencing proceeding tha
petitioner was suffering from any mental or emotional disturbance at the
time he killed Mr. Plyler and assaulted Mrs. Plyler. State v. Gilbert, 277
S.C. 53, 283 S.E.2d 179 (1981)(subsequent history omitted) (issues decided
in first appeal are res judicata in later proceedings).
In this post-conviction relief (PCR) proceeding, petitioner
alleged resentencing counsel were ineffective in failing to present evidence
of his mental and emotional state so as to entitle him to a charge on the
"mental/emotional disturbance" mitigating circumstance. The PCR judge
denied relief. Rather than review the actual issue before this Court today,
the majority opinion restates the question, and concludes that the evidence
presented at the PCR hearing regarding petitioner's mental and emotional
condition was merely cumulative to that presented at the original
resentencing proceeding, and thus petitioner cannot meet his burden of
It appears that the Court today has recognized that my
position in 1989 was correct, and that the evidence presented at the
resentencing entitled petitioner to a mitigating charge. We were therefore
in error in failing to reverse that resentencing on direct appeal. In my
view, it is patently unfair and disingenuous to use our 1989 error as the
reason we must also deny petitioner relief in 1997. The procedural
posture of this case is that no evidence was presented at the resentencing
proceeding that petitioner suffered from any mental or emotional
disturbance at the time he committed this crime. State v. Jones, supra.
The new evidence presented at the PCR hearing, as documented by the
majority opinion, clearly would have entitled petitioner to a mitigating
charge on mental/emotional disturbance. Counsel's failure to present this
evidence was deficient.
The majority concludes petitioner failed to meet the prejudice prong
of Strickland because "there is no reasonable probability the sentencer
would have concluded the balance of aggravating and mitigating
circumstances did not warrant death." This standard is a specific
application of the oft-cited general rule of Strickland that to establish
prejudice the defendant must show there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the proceeding would
have been different. 466 U.S. at 694. This specific application of the rule
is premised in Strickland on the United States Supreme Court's repeated
recognition in that case that a capital penalty proceeding under Florida
law requires the sentencer to weigh aggravating and mitigating
circumstances. See Fla. Stat. § 921.141 (1997) (advisory jury must make
finding whether mitigating circumstances outweigh aggravating
circumstances; sentencing judge must find mitigating circumstances do no
outweigh aggravating to impose death).
As noted by the majority, South Carolina, unlike Florida, does no
require a weighing of aggravating and mitigating circumstances. Although
a finding of an aggravating circumstance is necessary to support a death
sentence, life may be imposed irrespective of such a finding and even in
the absence of any mitigating circumstances. See State v. Green, 301 S.C.
347) 392 S.E.2d 157 (1990); S.C. Code Ann. § 16-3-20 (Supp. 1997). The
sentencer always retains the discretion to impose a life sentence.
Consequently, this Court has repeatedly held the failure to submit to the
sentencing jury a mitigating circumstance supported by the evidence is
reversible error with no requirement that actual prejudice be shown. See
State v. Young, 305 S.C. 380, 409 S.E.2d 352 (1991); State v. Caldwell,
300 S.C. 494, 388 S.E.2d 816 (1990); State v. Pierce, 289 S.C. 430, 346
S.E.2d 707 (1986).
Because South Carolina's capital sentencing procedure is unlike
Florida's, the specific application in Strickland of the prejudice prong is
not controlling here. We cannot determine prejudice by weighing the
aggravating and mitigating circumstances since there is no objective
standard by which to revisit the impact of aggravating and mitigating
circumstances on the sentencer's decision. In my opinion, this Court mus
look instead to Strickland's general rule that prejudice is shown by
demonstrating a reasonable probability that the result of the proceeding
would have been different. "A reasonable probability is a probability
sufficient to undermine confidence in the outcome." 466 U.S. at 694.1d
Here, petitioner was sentenced to death without the benefit of
having the trial judge submit to the jury a mitigating circumstance to
which he was entitled, and which could have swayed the jury, or even one
juror, to impose life despite the aggravating circumstances in this case.
See § 16-3-20(C)(jury shall not recommend death unless unanimous). This
defect in petitioner's sentencing proceeding cannot help but undermine our
confidence in the outcome. To conclude otherwise is to deny Strickland's
stated purpose--"to ensure a fair trial." 466 U.S. at 686. 1 would reverse
and remand for a new sentencing proceeding.
than not altered the outcome in the case." 466 U.S. at 693.