THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
Jimmy Clifton Locklair, Appellant.
Appeal From Spartanburg County
J. Derham Cole, Circuit Court Judge
Opinion No. 25161
Heard April 4, 2000 - Filed June 26, 2000
Assistant Appellate Defender Robert M. Dudek, of
South Carolina Office of Appellate Defense, of
Columbia, and Andrew J. Johnston, of Spartanburg,
Attorney General Charles M. Condon, Chief Deputy
Attorney General John W. McIntosh, Assistant
Deputy Attorney General Donald J. Zelenka,
Assistant Attorney General G. Robert DeLoach, III,
all of Columbia, and Solicitor Holman C. Gossett, Jr.,
of Spartanburg, for respondent.
CHIEF JUSTICE TOAL: Jimmy Clifton Locklair ("Locklair") seeks a reversal of
his conviction and death sentence for the murder of Tammy Bridges
("Bridges"). We affirm Locklair's conviction and sentence.
This case involved a fatal love triangle between Locklair, Bridges, and
Bridges' estranged husband Christopher Jones ("Jones"). While Locklair and
Bridges were dating, Jones decided he wanted to reconcile with Bridges. His
attempt at reconciliation led to a fatal altercation between Locklair and Jones.
Locklair shot Jones three times in a church parking lot and was indicted for
Jones' murder on June 5,1995 and convicted on June 14,1995. Bridges decided
to move in with Locklair after he murdered her husband. While Locklair was
free on a $50,000 bond for Jones' death, he shot and killed Bridges after she
decided to move out of his home.
On April 16, 1995, the day of the fatal incident, Locklair's mother called
Allen Nichols ("Nichols"), a close friend of Locklair's, because she was concerned
that Locklair may attempt to kill himself. Locklair's mother warned Nichols to
keep Locklair away from guns. Despite these warnings, Nichols decided to go
target practicing with his .22 caliber rifle and his Beretta pistol with Locklair
later that afternoon. Nichols and Locklair drove to Woodruff, South Carolina
to shoot wild turkeys, but the flock got away.
As they were leaving Woodruff, Locklair asked Nichols to drive by
Bridges' parents' house so he could return Jones' death certificate and Bridges'
social security card to her. Nichols knew that Locklair had recently broken up
with Bridges and warned him not to argue with her. When they arrived at the
house, Locklair attempted to call Bridges on Nichols' cell phone but it would not
work. Locklair reached over and started honking the truck's horn to get
Bridges' attention. Bridges and her mother, Betty Williams ("Williams"),
walked out to Nichols' car. Bridges asked Locklair what was wrong and asked
why he had cut up her clothes. According to Nichols, Locklair told Bridges he
was sorry and pleaded with her to talk to him. Bridges refused to talk to
Locklair and said "no Jimmy, I'm not coming back to you." As Nichols shifted
gears to prepare to leave, Locklair reached into the glove compartment and
grabbed the Beretta pistol.
Nichols attempted to grab Locklair's shirt collar and Locklair pulled him
out of the truck. Bridges and Williams screamed and began to run away.
Nichols testified that he saw Locklair taking long strides towards Bridges and
he heard Locklair pulling the trigger of the pistol repeatedly, but the safety was
on. As Nichols attempted to make a running tackle, Locklair disengaged the
safety and shot Bridges in the back. Nichols said he tackled Locklair after the
first shot but Locklair fired two more times before they fell to the ground. The
gun then struck the asphalt and fired an additional round before.jamming.
Locklair then stood up and told Nichols, "leave me the f*** alone, I got to do
Locklair stood up after Nichols tackled him and stepped over the victim's
body before walking towards the William's home. Another witness, Robert
Williams, the victim's stepfather, testified that Locklair looked "like he was
hunting somebody." Locklair pointed the gun at the house and attempted to
fire, but the gun jammed. Nichols tackled Locklair again while he tried to fire
at the house. Meanwhile, Robert Williams left the car where he was observing
and ran toward Locklair and Nichols. Robert Williams grabbed the gun and
wrestled with Locklair over it. He eventually dislodged the gun and it fell on
the ground, discharging once. Locklair pushed Nichols aside and ran toward
a neighbor's house. Locklair went twenty or thirty feet, looked back once, then
ran down the street. Robert Williams attempted to shoot Locklair but the gun
jammed again and did not fire.
The Woodruff Police Department issued a bulletin from the Spartanburg
County Sheriffs office concerning Locklair. The search continued until 4:00
a.m. the following day, when Locklair was found at his parents'.home five miles
from the scene. At the police station, Locklair voluntarily waived his rights,
gave a tape recorded statement, and signed a hand written confession.
On the day before the murder, Bridges stayed the night with her sister,
Stacy Waddell ("Waddell"). Locklair came to Waddell's house early in the
morning to speak to Bridges. When Locklair went back to Bridges' bedroom he
was carrying an eight inch butcher knife. Waddell demanded the weapon and
Locklair gave her the knife. Waddell gave the knife to William Earl Jennings
("Jennings") who had come to take Locklair home. Jennings testified that
Locklair flung the knife out of the window as they drove home and said "you
can't do anything with a knife."
Later that day, Waddell took Bridges to Locklair's home to pick up some
of her clothes and personal items. Locklair had shredded all of Bridges' clothes
and pictures. Waddell also testified that some of Bridges' identification was
On the day of the fatal incident, Leslie Taylor ("Taylor"), a co-worker of
Bridges, testified that a man called to speak to Bridges and told Taylor that "if
something doesn't happen, someone is going to die." Taylor asked her
supervisor to speak to the caller. Her supervisor identified the caller as
Locklair. According to the supervisor, Locklair said if she did not let him speak
to Bridges "someone was going to be killed." The supervisor told Locklair that
Bridges was not there and he became angry and hung up the phone.
On May 18,1995, the Spartanburg County Grand Jury indicted Locklair
for murder and possession of a firearm during the commission of a violent
crime. The State served its notice of intent to seek the death penalty on
September 3,1996. The jury found Locklair guilty as charged on September 19,
1998. On September 20, 1998, the trial judge presented the following
aggravating circumstances for the jury's consideration at the conclusion of the
1. The Appellant had a previous conviction of murder.
2. The Appellant knowingly created a great risk of danger to
more than one person in a public place by means of a weapon
or device which would be hazardous to the lives of more than
3. The Appellant murdered two or more persons pursuant to
one act or one scheme or course of conduct.
On September 22, 1998, the jury found the existence of the first and
second aggravating circumstances beyond a reasonable doubt. The jury
recommended the death penalty and the trial judge sentenced Locklair to death.
Locklair appeals his death sentence and conviction, raising the following issues:
(1) Whether the trial judge erred by refusing to charge voluntary
manslaughter where there was evidence Locklair was involved in
a domestic dispute with the victim and the victim's mother threw
a cigarette case at him immediately before he shot the victim?
(2) Whether the trial judge erred by ordering Locklair to submit to a
psychiatric examination over his objection where he had already
been judged fit to stand trial, was not asserting insanity, and had
not given notice that he would plead guilty but mentally ill
(3) Whether the trial judge erred by instructing the jury on the
statutory aggravating circumstance contained in S.C. Code Ann. §
16-3-20(C)(a)(3) (1976), the "great risk of death" aggravator?
(4) Whether the trial judge erred by instructing the jury on the
statutory aggravating circumstance contained in S.C. Code Ann. §
16-3-20(C)(a)(2) (1976), the "prior murder conviction" aggravator,
where Locklair did not have a prior conviction for murder at the
time the murder was committed and his conviction for the other
murder came after the homicide in this case?
(5) Whether Locklair is entitled to a new sentencing hearing
even if one of the aggravating circumstances is held to have
been properly submitted?
I. Voluntary Manslaughter
Locklair argues that the trial judge erred by refusing to charge voluntary
manslaughter because: (1) there was evidence of a domestic dispute between
Locklair and Bridges; and (2) Bridges' mother threw a cigarette case at him
immediately before he shot Bridges. We disagree.
"Voluntary manslaughter is the unlawful killing of a human being in
sudden heat of passion upon sufficient legal provocation." State v. Johnson, 333
S.C. 62, 508 S.E.2d 29 (1998). Both heat of passion and sufficient legal
provocation must be present at the time of the killing to constitute voluntary
manslaughter. State v. Walker, 324 S.C. 257, 478 S.E.2d 280 (1996) (citations
omitted). Sudden heat of passion upon sufficient legal provocation that
mitigates a felonious killing to manslaughter must be such as would naturally
disturb the sway of reason, and render the mind of an ordinary person
incapable of cool reflection, and produce what, according to human experience,
may be called "an uncontrollable impulse to do violence." State v. Gardner, 219
S.C. 97, 64 S.E.2d 130 (1951) (citing State v. Davis, 50 S.C. 405, 27 S.E. 905
(1897)). Where death is caused by use of a deadly weapon, words alone,
however opprobrious, are not sufficient to constitute a legal provocation. Id. at
104, 64 S.E.2d at 134. Rather, when death is caused by the use of a deadly
weapon, the opprobrious words must be accompanied by the appearance of an
assault - by some overt, threatening act - which could have produced the heat
of passion. State v. Lowry, 315 S.C. 396, 434 S.E.2d 272 (1993) (citing State v.
Judge, 208 S.C. 497, 38 S.E.2d 715 (1946)).
It is proper for a trial judge to refuse to charge voluntary manslaughter
in a murder case where it very clearly appears there is no evidence whatsoever
tending to reduce the crime from murder to manslaughter. State v. Davis, 278
S.C. 544, 298 S.E.2d 778 (1983). This Court has held in several cases that it is
proper to charge voluntary manslaughter where the defendant and the victim
had been in a heated argument prior to the murder. See State v. Wiggins, 330
S.C. 538, 500 S.E.2d 489 (1998) (holding that evidence tended to show
defendant acted in sudden heat of passion where defendant was in a heated
argument with victim and feared for his life because victim threatened him);
State v. Lowry, 315 S.C. 396, 434 S.E.2d 272 (1993) (holding that a voluntary
manslaughter charge was necessary where the defendant and the victim were
in a heated argument and victim was about to initiate a physical encounter
when shooting occurred); State v. Davis, 278 S.C. 544, 298 S.E.2d 778 (1983)
(holding voluntary manslaughter charge was proper where a witness testified
that defendant and victim had been fighting). These cases are distinguishable
from the instant case because there is no evidence that Locklair and Bridges
were in a heated argument prior to the murder. According to Locklair's hand
Tammy got smart with me and I am suppose to be on Zoloft med.
but I lost my perscription [sic]. After she got smart with me &
started to walk off, I grabbed the gun. Her mom threw a cig. case
at me, her dad was trying to stop me and Allen also.
All Locklair claims is that Bridges "got smart" with him. However, words alone,
no matter how opprobrious, are not sufficient to prove legal provocation when
a deadly weapon is used. See Gardner, 219 S.C. at 104, 64 S.E.2d at 134. Also,
"getting smart" with someone would not naturally disturb the sway of reason
of an ordinary person and produce an uncontrollable impulse to do violence. Id.
There is no evidence in the record that indicates Bridges and Locklair
were fighting prior to the incident or that Bridges threatened Locklair in any
way. According to Nichols, Bridges calmly spoke to Locklair and never raised
her voice. When Nichols testified as to the conversation between Locklair and
Bridges, he did not note any insulting or threatening language. Nichols
described the incident in the following testimony:
Nichols: Tammy said what's wrong with you, Jimmy. He
said what, what. And she said what have you
done, and he said what are you talking about
Tammy. And he said, she said you didn't have to
do all those things. She started talking about he
cut up her clothes or cut up a check or put water
or something or something to that effect all in
there. And she was asking him you know why in
the world did you do that. You didn't have to do
all that. It wasn't necessary for you to do all that
stuff . . . .
Question: Okay, now how was she talking to him there?
Nichols: Just in a, a monotone. She was just wondering
you know just, you know like you know why, why
would you do something like that. Just about
the same tone I am .... There was never any
yelling or anything of that nature.
Question: Okay. And what happens after, as, as that's
going on or, or after that?
Nichols: . . . And Jimmy asked Tammy, she kept saying
no, and he said let me just talk to you for a
minute. Come here. Just let me talk to you for
a minute by yourself. Please just; just listen to
me, hear me out, and you know that type of
thing. And she said no, Jimmy, no .... She said
no, Jimmy, I'm not coming back to you. If I'm
not mistaken, that was her last words. And I
pushed the clutch in, and he, he paused for just
a second, and then he, he reached for the dash.
He opened up my dash, And when he reached for
the dash, I immediately, I grabbed hold of him.
Therefore, since Bridges did not take any overt physical actions against
Locklair, even the most liberal construction of her words do not reduce the
crime to manslaughter. 1
(1977) is persuasive. In Kahan, the trial judge instructed the jury on
voluntary manslaughter when there was evidence that the couple had been
arguing at a Christmas party several hours before the shooting and there
were no witnesses to the shooting. This Court ruled the voluntary
Provocation necessary to support a voluntary manslaughter charge must
come from some act of or related to the victim in order to constitute sufficient
legal provocation. State v. Tucker, 324 S.C. 155, 478 S.E.2d 260 (1996). "The
provocation of the deceased must be such as naturally and instantly produces
in the mind of a person ordinarily constituted the highest degree of
exasperation; rage, anger, sudden resentment, or terror, rendering the mind
incapable of cool reflection." State v. Franklin, 310 S.C. 122, 125, 425 S.E.2d
758 (Ct. App. 1993), overruled on other grounds by Brightman v. State, 336 S.C.
348, 520 S.E.2d 614 (1999) (emphasis added). Locklair argues that the jury
could find voluntary manslaughter in this case because Williams, Bridges'
mother, threw a cigarette case at Locklair prior to the shootings. First, the
evidence shows that Williams threw the cigarette case at Locklair after he
grabbed the gun to kill Bridges. According to Locklair's written statement:
"After she got smart with me & started to walk off, I grabbed the gun. Her mom
threw a cig. case at me, her dad was trying to stop me & Allen also." Second,
this overt act was made by a third party, not the deceased, and South Carolina
has not recognized sufficient legal provocation from a third party that can be
transferred to the victim. 2 Finally, throwing a cigarette case would not
wife's death was a suicide and the jury was required to decide whether he
murdered his wife. The evidence they argued earlier that evening was
circumstantial evidence that he killed her in sudden heat of passion. Kahan
does not hold that words alone constitute sufficient legal provocation.
2 Locklair cites the Texas case, Sattiewhite v. Texas, 786 S.W.2d 271
(Tex. Crim. App. 1989), for the proposition that provocation on the part of the
deceased or a third party acting in concert with the deceased will support a
manslaughter verdict. However, a Texas statute specifically defines sudden
passion as "passion directly caused by and arising out of provocation by the
individual killer or another acting with the person killed which passion arises
at the time of the offense and is not solely the result of former provocation."
Id. at 287 (citing Tex. Code Ann. § 1904(b)) (emphasis added). South
Carolina does not have a comparable statute.
Locklair also relies on the South Carolina case, State v. Wyatt, 317 S.C.
370, 453 S.E.2d 890 (1995) for the proposition that provocation by a third
party would support a voluntary manslaughter verdict. In Wyatt, the
appellant hit his wife at a race track and then was confronted by an angry
naturally render the mind of an ordinary person incapable of cool reflection and
produce an uncontrollable impulse to do violence. Gardner, supra.
II. Psychiatric Examination.
Locklair argues the trial judge abridged his Fifth Amendment rights by
ordering him to submit to a psychiatric examination where he did not assert an
insanity defense and did not give notice that he would plead guilty but mentally
ill ("GBMI"). We disagree.
According to S.C. Code Ann. § 44-23-410 (Supp.1998), circuit court judges
have the inherent duty to order a competency examination if there is reason to
believe that the person charged with the criminal offense is not fit to stand trial.
Section 44-23-410 states:
Whenever a judge of the Circuit Court or Family Court has reason
to believe that a person on trial before him, charged with the
commission of a criminal offense or civil contempt, is not fit to stand
trial because the person lacks the capacity to understand the
proceedings against him or to assist in his own defense as a result
of a lack of mental capacity, the judge shall:
(1) order examination of the person by two examiners designated
by the Department of Mental Health...; or
(2) order the person committed for examination and observation
to an appropriate facility of the Department of Mental Health
or the Department of Disability and Special Needs . . . .
S.C. Code Ann. § 44-23-410 (Supp. 1998) (emphasis added). Despite the
mandatory language of the statute requiring a judge to order a competency
examination if there is reason to believe that a person charged with a criminal
offense is not fit to stand trial, ordering a competency examination is within the
discretion of the trial judge and a refusal to grant an examination will not be
disturbed on appeal absent a clear showing of an abuse of discretion. State v.
Singleton, 322 S.C. 480, 472 S.E.2d 640 (Ct. App. 1996). Where insanity is
crowd as he tried to leave. The appellant shot two men who tried to prevent
him from leaving. The appellant's theory in Wyatt was self-defense.
Therefore, under the facts in Wyatt, the provocation derived from the victims'
actions, not his wife's, who was merely a third party to the incident.
interposed as a defense in a criminal prosecution, compulsory examination of
the accused by experts for the purpose of determining his mental condition does
not violate either the constitutional protection against self-incrimination or the
constitutional guaranty of due process of law. State v. Myers, 220 S.C. 309, 67
S.E.2d 506 (1951). Locklair argues that while a trial judge may order a
psychiatric examination where insanity is asserted as a defense, there is no
authority that indicates a trial judge has the authority to order an examination
when a defendant provides no notice that he will plead GBMI, and GBMI is
never pled. We disagree.
The trial judge in this case has the inherent, discretionary authority to
order an independent psychiatric evaluation of Locklair if he believed Locklair
was not fit to stand trial or if he believed that Locklair's mental competency
would be an issue at trial. The mental competency of the defendant to stand
trial is a baseline inquiry by the court. In order to protect the legal process 'and
preserve the integrity of the trial, a trial judge has the authority to order a
psychiatric evaluation of the defendant when his or her competency may be in
The trial judge was under the impression that Locklair's mental condition
may be made an issue at trial. At the May 29, 1998 hearing, the trial judge
heard the State's motion for an independent mental examination. Defense
counsel provided a copy of their expert's report on Locklair's mental condition.
Defense counsel agreed with the trial judge's summary of their expert's
The Court: And in that report, it indicates that the
defendant suffers or did suffer from some
type of mental illness that would cause
him to lack capacity to confirm [sic] his
conduct to the requirements of the law at
examination when he or she raises issues of mental competency. See
generally State v. Jackson, 335 S.E.2d 903 (N.C. App. 1985) (holding that
when defendant asserts insanity as a defense, court has authority to require
defendant to submit to a mental examination by a court-appointed
psychiatrist); State v. Myers, 570 A.2d 1260 (N.J. Super. 1990) (holding that
defendant who asserts the battered women's syndrome defense must submit
to examination by appropriate experts selected by the State).
the time of the alleged offense?
Defense Counsel: Yes, sir.
The Court: And the defendant intends to offer such
evidence at trial of the case either in the
guilt phase and or the penalty phase?
Defense Counsel: That is correct sir.
The Court: And because of that, the State wishes to
have an independent examination
conducted to either rebut that evidence or
to confirm that evidence I would assume?
Solicitor: That's correct, Your Honor. (emphasis
By stating that Locklair may offer evidence of his mental illness at trial, defense
counsel opened the door to the issue of Locklair's mental health.
Furthermore, Locklair has shown no conceivable prejudice from the
psychiatric examination. "Error without prejudice does not warrant reversal."
State v. McWee, 322 S.C. 387, 393, 472 S.E.2d 235, 239 (1996). Locklair claims
the State used evidence from his examination with Dr. Lewis to successfully
urge that he be sentenced to death. Dr. Lewis conducted the examination for
the court and found that Locklair had a normal family life and childhood.
Specifically, Locklair takes issue with the following argument by the solicitor:
They told you or it was told to you that he had a normal childhood,
his grades were normal, he finished high school, he had a good job,
he was never abused by anybody. In spite of his education, in spite
of all this background, this is where he ends up. That's what he's
done with that start in life. He had better than many other people
I submit to you.
However, Locklair's own social worker provided an independent basis for this
information. The State did not have to rely on Dr. Lewis' report because
Locklair's social worker testified that Locklair had a simple life, lived a quiet
existence, was an average student, and had consistent employment.
III. Statutory Aggravating Circumstance - S.C. Code Ann. § 16-3
Locklair argues that the trial judge erred by refusing to direct a verdict
on the "great risk of danger" aggravator. This statutory aggravating
circumstance states that the jury can consider whether "the offender by his act
of murder knowingly created a great risk of danger to more than one person in
a public place by means of a weapon or device which would normally be
hazardous to the lives of more than one person" when deciding the appropriate
punishment for murder. S.C. Code Ann. § 16-3-20 (C)(a) (3) (1976). We
"In determining whether to submit an aggravating circumstance to the
jury, the trial court is concerned with the existence of the evidence, not its
weight." State v. Smith, 298 S.C. 482, 485, 381 S.E.2d 724, 726 (1989). The
trial judge should submit the aggravator to the jury if "supported by any
evidence direct or circumstantial." Id. The "great risk of danger" aggravator
was properly submitted to the jury because there was ample evidence that
suggested Locklair put the lives of more than one person in danger in a public
place by means of a weapon or device which would normally be hazardous to the
lives of more than one person.
In construing statutes, words must be given their plain and ordinary
meaning without resort to subtle or forced construction in attempt to expand
the statute. State v. Sims, 304 S.C. 409, 405 S.E.2d 377 (1991). Here, the
statute mandates that the offender create a great risk of danger to more than
one person in a "public place." This incident took place in a public place because
it occurred on a public street and in William's front yard in a small mill village.
There were many people in the general vicinity of the incident and there were
several children playing on the public street when the incident occurred.
Locklair argues that a firearm is not a "weapon or device which would
normally be hazardous to the lives of more than one person." Locklair claims
that the statute contemplates the use of a bomb or other explosive device. We
disagree and find that a gun is the type of weapon contemplated by the statute.
The statutory aggravator only requires that the weapon used be "normally
hazardous to the lives of more than one person." Requiring the use of a bomb
or other explosive device would be a forced construction of the statute adding
terms not intended by the legislature. 4
Locklair argues that this was a simple case of a victim being shot at close
range, not the type of incident contemplated by the statute. However, the trial
testimony does not support this assertion. According to Nichols' testimony,
Locklair put more than one person at great risk of danger because he attempted
to fire the gun several times, but the safety was on. After he shot Bridges,
Locklair pointed the gun at Williams' home where there were children inside.
Nichols was forced to tackle Locklair to stop him and Robert Williams, the
victim's stepfather, had to struggle with Locklair to retrieve the gun.
According to the trial testimony, the gun was dropped several times during the
struggle with shots being fired in different directions. Also, at the very least,
Nichols and Robert Williams, were placed in great danger as they attempted to
stop Locklair from firing and retrieve the gun. Finally, Locklair put many
people at great risk of danger. Nichols, Robert William, Betty Williams, Dewey
Morgan, and several children playing in the street were all within firing range
when the shooting occurred.
IV. Statutory Aggravating Circumstance - S.C. Code Ann. § 16-3
20(C) (a) (2)
Locklair argues that the trial judge erred by instructing the jury on the
statutory circumstance contained in S.C. Code Ann. § 16-3-20(C)(a)(2) (1976)
since Locklair did not have a prior conviction for murder at the time the
shooting occurred in this case. We disagree.
S.C. Code Ann. § 16-3-20(C)(a)(2) states that the trial judge may include
in his instruction the following statutory aggravator if supported by evidence:
"Murder was committed by a person with a prior record of conviction of
murder." Locklair shot and killed Bridges on April 26, 1995. At the time of her
murder, Locklair had not been indicted or convicted of Christopher Jones'
murder. On June 5, 1995, Locklair was indicted for the Jones' murder, and on
June 14,1995, Locklair was convicted and sentenced to life imprisonment. The
trial in this case did not commence until September 20, 1996. Therefore,
Locklair did not have a prior murder conviction until the date of Bridges'
persons satisfies the statutory aggravator. See e.g., North Carolina v. Moose,
313 S.E.2d 507 (N.C. 1984); Jones v. Georgia, 256 S.E.2d 907 (Ga. 1979);
Moran v. Nevada, 734 P.2d 712 (Nev. 1987).
murder trial. Locklair argues that the prior murder conviction must have
occurred prior to the date of Bridges' murder in order for the judge to charge the
aggravating circumstance. We disagree.
In State v. Sims, 304 S.C. 409, 405 S.E.2d 377 (1991), this Court
interpreted the language of S.C. Code Ann. § 16-3-20(C)(b)(1) (Supp. 1989)
which contained the following statutory mitigating circumstance: the defendant
"had no significant history of prior criminal convictions involving the use of
violence against another person." The Court interpreted the word "prior" to
mean prior to trial, rather than prior to the time of the crime. At the time Sims
committed the crime in South Carolina, he had no history of prior criminal
convictions because he was not convicted of his California crimes until after he
committed the crimes in South Carolina. Id. This Court focused on the plain
language of the statute in Sims and determined that if the legislature wanted
the prior convictions to occur at the time of the crime, they would have specified
it in the statute, as they did in several other statutory mitigating
circumstances. Id. at 423, 405 S.E.2d at 385 (citing section 16-3-20(C)(b)(7) and
section 16-3-20(C)(b)(9) as examples where the legislature specified that the
mitigating circumstance had to occur at the time of the crime). Similarly, the
legislature did not specify in section 16-3-20(C)(a)(2) that the defendant must
have a prior murder conviction at the time of the crime in order to receive an
instruction on the aggravating circumstance.
South Carolina's death penalty statute was "patterned after the death
penalty statutes of our sister state Georgia." State v. Roach, 273 S.C. 194, 255
S.E.2d 799 (1979), overruled on other grounds by State v. Torrence,, 305 S.C. 45,
406 S.E.2d 315 (1991). In Stephens v. Hopper, 247 S.E.2d 92 (Ga. 1978), the
Georgia Supreme Court interpreted a statutory aggravating circumstance
which provided in part that "the offense of murder, rape, armed robbery, or
kidnapping was committed by a person with a prior record of conviction for a
capital felony." The Georgia Supreme Court concluded that the jury should
consider the record as of the time of the sentencing proceeding, and not at the
time of the crime. Id. at 96. "To conclude otherwise would produce the
intolerable result that an offender with no prior record could commit numerous
separate murders one after the other before being apprehended, and then, at
the trials for those murders, could never receive death under this aggravating
circumstance even though convicted of each and ever one of the murders." Id
Other jurisdictions support the above proposition. North Carolina,
Mississippi, and Nevada authorize the death penalty where the defendant was
"previously convicted" of another qualifying crime before trial. These
jurisdictions have held that the "previous conviction" can occur before the trial.
See, e.g., State v. Warren, 499 S.E.2d 431 (N.C. 1998) (holding that the
"previously convicted" aggravating circumstance includes convictions which
occur after the event, provided the conviction occurs before sentencing); Jones
v. State, 381 So.2d 983 (Miss. 1980) (holding the word "previously," used in a
statute providing for the use of prior convictions, relates to the time of trial and,
thus, defendant's armed robbery conviction, which was entered after he
committed murder, could be considered during the sentencing phase of his
murder trial). In Calambro v. State, 952 P.2d 946 (Nev. 1998), the Nevada
Supreme Court makes a persuasive policy argument for why the "prior
conviction" aggravator should be considered at the time of sentencing:
The statute was never intended to operate on the vagaries of
conviction sequences. Instead, the focal point is the time of
sentencing. The sentencing panel is entitled to consider all
relevant aspects of the defendant's criminal background prior to
rendering sentence. The fact that Gallego murdered two victims
after killing the two victims in the instant case is not relevant to
the dictates of the statute. The clear language of the statute
required only that Gallego stood convicted of the California
murders at the time of the introduction of the evidence in the
penalty phase of the present, proceeding. It would be both absurd
and counterproductive for this court to construe the plain language
of the statute so as to exclude convictions of murders or crimes of
violence occurring after the primary offense but before the penalty
phase of a defendant's trial. This we refuse to do.
Id. at 947 (citing Gallego v. State, 711 P.2d 856, 863-864 (1985)).
Because the South Carolina General Assembly did not specify that the
prior convictions had to occur before the commission of the crime, we find that
for purposes of section 16-3-20(C)(a)(2), prior convictions have to occur by the
time of the sentencing proceeding. The emphasis in the sentencing phase of a
capital trial is on the character of the defendant. The purpose of the sentencing
phase in a capital trial is to direct the jury's attention to the specific
circumstances of the crime and the characteristics of the offender. State v. Ard
332 S.C. 370, 505 S.E.2d 328 (1998). According to this Court in State v. Tucker,
324 S.C. 155, 478 S.E.2d 260, 270 (1996), "cases in South Carolina and around
the country have consistently found a defendant's prior criminal record to be
highly relevant in sentencing; any limitations have been directed to admitting
only felonies or violent crimes." See, e.g., Woodson v. North Carolina, 428 U.S.
280, 304, 96 S. Ct. 2978, 2991, 49 L.Ed.2d 944, 961 (1976) ("[W]e believe that
in capital cases . . . the Eighth Amendment . . .requires consideration of the
record of the individual offender . . . as a constitutionally indispensable part of
the process of inflicting the penalty of death); State v. Stewart, 283 S.C. 104, 320
S.E.2d 447 (1984) (" [I]nformation concerning prior criminal convictions shall be
admissible as additional evidence during the sentencing or representing [sic]
phase of a capital trial."); State v. Jackson, 608 So.2d 949, 954 (La. 1992)
("Evidence of convictions of serious unrelated crimes is extremely probative of
and relevant to the character and propensities of the defendant and may be
useful for the jury to evaluate in performing its awesome task of deciding
whether or not to recommend execution."). Therefore, Locklair's prior murder
conviction was relevant character evidence that was properly presented in the
sentencing phase of the trial.
V. New Sentencing Hearing
Locklair argues that he is entitled to a new sentencing hearing even if
this Court holds one of the two aggravating circumstances found by the jury
was properly submitted for its consideration. According to Locklair, Tuggle v.
Netherland, 516 U.S. 10, 116 S.Ct. 283, 133 L.Ed.2d 235 (1995) mandates
reversal under these circumstances. Because we find that both statutory
aggravating circumstances were properly submitted to the jury, it is not
necessary to address the Tuggle issue.
After reviewing the entire record, we conclude the death sentence was not
the result of passion, prejudice, or any other arbitrary factor, and that the jury's
finding of aggravating circumstances is supported by the evidence. Further, the
death penalty is neither excessive nor disproportionate to that imposed in
similar cases. See State v. Rosemond, 335 S.C. 593, 518 S.E.2d 588 (1999); State
v. Humpheries, 325 S.C. 28, 479 S.E.2d 52 (1996); State v. Williams, 321 S.C.
327, 468 S.E.2d 626 (1996). Therefore, the conviction and sentence are
MOORE, WALLER, BURNETT, and PLEICONES, JJ., concur.