Hughey v. State ( 2015 )

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Supreme Court
John Kennedy Hughey, Respondent/Petitioner,
v.
State of South Carolina, Petitioner/Respondent.
Appellate Case No. 2010-170387
Appeal From Abbeville County
The Honorable Alexander S. Macaulay, Circuit Court
Judge
Memorandum Opinion No. 2015-MO-029
Heard January 15, 2015 – Filed May 13, 2015
DISMISSED AS IMPROVIDENTLY GRANTED
Attorney General Alan McCrory Wilson, Chief Deputy
Attorney General John W. McIntosh, and Senior
Assistant Deputy Attorney General Donald J. Zelenka, all
of Columbia, for Petitioner/Respondent.
E. Charles Grose, of Greenwood, and Tara Schulz
Waters, of Summerville, for Respondent/Petitioner.
J. Christopher Mills, for Amicus Curiae, South Carolina
Religious Leaders and Scholars.
PER CURIAM: After careful review of the record, appendix, and briefs, the writs
of certiorari are dismissed as improvidently granted.
DISMISSED AS IMPROVIDENTLY GRANTED.
PLEICONES, BEATTY and HEARN, JJ., concur. KITTREDGE, J.,
concurring in part and dissenting in part in a separate opinion in which
TOAL, C.J., concurs.
JUSTICE KITTREDGE: I concur in part and dissent in part. I concur as to the
dismissal of John Kennedy Hughey's certiorari petition. I dissent with respect to
the dismissal of the State's certiorari petition, which, in effect, upholds the post-
conviction relief court's grant of a new sentencing hearing based on the erroneous
mercy charge. I would reverse the post-conviction relief court and reinstate
Hughey's death sentence. I incorporate the well-reasoned opinion of Chief Justice
Toal in Evans v. State, Op. No. 2015-MO-027 (S.C. Sup. Ct. filed May 13, 2015)
(Toal, C.J., dissenting).
I add the following comments. In 2009, I authored this court's unanimous opinion
in Rosemond v. Catoe, 383 S.C. 320, 680 S.E.2d 5 (2009). Rosemond was granted
a new sentencing hearing based on trial counsel's failure to present any mental
health mitigation evidence. Rosemond, 383 S.C. at 329, 680 S.E.2d at 10.
Rosemond also asserted the mercy charge—"you may recommend a sentence of
life imprisonment for any reason or for no reason at all other than as an act of
mercy"—as a basis for post-conviction relief. Id. We did not grant PCR based on
the mercy charge, but clarified in dictum that the "other than as an act of mercy"
language not be charged. Id. at 330, 680 S.E.2d at 10–11. I view the challenged
instruction, in isolation, as potentially confusing, for it is susceptible to more than
one interpretation.
This court never addressed the challenged mercy instruction in Rosemond in the
context of the Strickland v. Washington1 test. Id. at 329–30, 680 S.E.2d at 10–11.
Given that the charge in this case was affirmed on direct review fifteen years ago, I
cannot fathom how it is proper for this Court to uphold the post-conviction relief
court's finding of deficient representation. See State v. Hughey, 339 S.C. 439, 459,
529 S.E.2d 721, 732 (2000) (reviewing the charge on mitigating circumstances,
including the mercy charge, and concluding "a reasonable juror would understand
that either a statutory or a non-statutory jury circumstance could reduce the
sentence to life imprisonment"). The finding of deficient representation is clear
legal error. In any event, even were I to indulge in the fiction of deficient
representation, Hughey cannot satisfy the prejudice prong of Strickland. The trial
court's instruction in Hughey was as follows:
Now as I indicated to you, you'll also have a form which is a
recommendation of a life sentence. Now that particular form just
simply states and sets forth that you twelve jurors have determined
that a life sentence has been recommended in this case. And as I've
1
466 U.S. 668 (1984).
said, you will have two separate forms. One relating to county [sic]
one of the indictment, one relating to county [sic] two of the
indictment.
By that recommendation-of-sentence form, you twelve jurors may
recommend that the defendant be sentenced to life imprisonment.
Please note that while a recommendation of a life imprisonment
sentence must also be a unanimous decision by the jury, only the
foreman is required to sign his name to that recommendation-of-
sentence form.
In arriving at your decision as to what the appropriate sentence would
be in this cases [sic], you are instructed that you must also consider
any statutory mitigating circumstances. Therefore, what is a statutory
mitigating circumstance?
It is a fact, an incident, a detail, or an occurrence which the state
legislature has declared by statute to be a circumstance which may
make less or reduce the severity of the crime of murder. It is a
circumstance which may be considered as mitigating or extenuating
the degree of moral culpability for the commission of the offense of
murder.
A mitigating circumstance is neither a justification nor an excuse for
the crime of murder. It is simply something which may lessen the
degree of the defendant's guilt or make the defendant less
blameworthy or less culpable.
In making your determination as to whether or not to recommend a
sentence of death or a sentence of life imprisonment, you should
consider the following statutory mitigating circumstances. The
following statutory mitigating circumstances are set forth on your
statutory instruction form. They are the same as to each of the counts
of the indictment.
Those statutory mitigating circumstances are: The defendant has no
significant history of prior criminal conviction involving the use of
violence against another person, two, the murder was committed
while the defendant was under the influence of a mental or an
emotional disturbance, and three, the age or mentality of the defendant
at the time of the offense.
Now you are also permitted under the law to consider, anesthesia [sic]
you should consider, any non-statutory mitigating circumstances
which have been shown to exist by the evidence in the case.
A non-statutory mitigating circumstance is one which is not provided
for by statute, but is one which the defendant contends serves the
same purpose. That is to lessen or reduce the degree of the
defendant's guilt in the commission of the crime of murder.
Those that the defense contends should be considered are: any prior
good acts of the defendant, the defendant's level of intellectual
functioning whether as a natural consequence of his birth or as a result
of physical and/or emotional trauma suffered as a child or as an adult,
and any other evidence relating to a mitigating circumstance which
you find to be appropriate and which you find to have been
established by the evidence in the case.
Now while there must be some evidence which supports a finding by
you of the existence of one or more statutory or non-statutory
mitigating circumstances, it is not necessary that you find the
existence of such of a circumstance or circumstances beyond a
reasonable doubt. And you may recommend a sentence of life
imprisonment and [sic] whether or not you find the existence of a
statutory or non-statutory mitigating circumstance.
In making your determination as to which sentence to recommend in
these cases, you should consider the statutory aggravating
circumstances, the statutory mitigating circumstances, and any non-
statutory mitigating circumstances in arriving at your decision.
While you must find the existence of at least one statutory aggravating
circumstance beyond a reasonable doubt before you may consider
recommending a sentence of death, once such a finding is made you
are permitted to recommend the sentence of death even though you
may also find the existence of one or more statutory or non-statutory
mitigating circumstances.
The existence of any statutory or non-statutory mitigating
circumstance is not a bar to the recommendation of a death sentence
so long as you have found the existence of at least one statutory
aggravating circumstance beyond a reasonable doubt.
Conversely, you may also recommend a sentence of life imprisonment
even though you find at least one statutory aggravating circumstance
beyond a reasonable doubt, and find no mitigating circumstances do
existence [sic]. Simply stated, you may recommend a sentence of life
imprisonment for any reason or for no reason at all other than as an
act of mercy.2
In my judgment, the analysis here is no different than Chief Justice Toal articulated
in Evans:
[T]he ultimate test to determine the propriety of the trial judge's
charge is "what a reasonable juror would have understood the charge
to mean" in the context of the entire jury instruction. State v. Bell,
305 S.C. 11, 16, 406 S.E.2d 165, 168 (1991); see also, e.g., State v.
Hicks, 330 S.C. 207, 218, 499 S.E.2d 209, 215 (1998) ("A jury
instruction must be viewed in the context of the overall charge.").
Here, Evans contests one sentence of a lengthy charge that instructed
the jury to consider all statutory and non-statutory mitigating factors
in arriving at their verdict. In my opinion, the rest of the instruction,
the emphasis placed on mercy by both the State and the defense, the
trial judge's general opening explanation of mitigation and
aggravation to the jury, and the unremarkable position of the
condemned instruction in the context of the overall charge, all
combine to preclude a finding of prejudice. Under these facts, a
reasonable juror unquestionably would have been aware that he or she
could recommend life as an act of mercy. Thus, it is my opinion that
Evans has not proven that he was prejudiced by the defective
instruction; consequently, his Strickland argument must fail.
2
Unlike the transcript in Binney v. State, Op. No. 2015-MO-028 (S.C. Sup. Ct.
filed May 13, 2015), the transcript here contains no comma between the word "all"
and the word "other." The absence of a comma, and the assumed absence of a
pause in the reading of the sentence to the jury, does not change my view that the
jury charge, when considered in its entirety, conveyed to the jury that it could
recommend a life sentence merely as an act of mercy. Although we commonly
find typographical errors in transcripts, an appellate court must accept the
transcript as presented. I observe that the Hughey transcript contains far more
errors than the Binney transcript. It would be regrettable, indeed, if an otherwise
error-free death penalty verdict is set aside due to sloppy transcription.
Evans v. State, Supra (Toal, C.J., dissenting).
I agree with Chief Justice Toal's dissenting opinion in Evans, and I would reverse
the grant of post-conviction relief to Hughey.
TOAL, C.J., concurs.