Criminal Practice – Murder – Death Penalty – Closing Argument – Deadlock Consequences – Sentencing by Jury – Expert Testimony – Underlying Hearsay

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We now hold a party may not argue the consequences of a deadlock in his closing argument to the jury. The state has a legitimate interest in fostering the resolution of criminal trials by verdict. If the jury does not unanimously agree, then there is no verdict. Informing jurors that an individual juror can control the outcome of the trial by holding out their vote directly frustrates the goal of a unanimous jury verdict. Therefore, the trial court was correct to prohibit counsel from making the closing argument he requested.

We affirm defendant’s convictions of murder, attempted murder, and armed robbery and the sentence of death.

Even though the circuit court judge made an inaccurate statement of law when he told defendant that pleading guilty would mean the death penalty, this error was not preserved for our review, despite multiple opportunities for defense counsel to bring it to the judge’s attention. Moreover, the statement was made weeks before trial, during which time defense counsel must have discussed with defendant his options of (1) pleading not guilty and having a jury decide his sentence and (2) pleading guilty and having a judge decide his sentence.

Defendant cites Hurst v. Florida, 577 U.S. 92 (2016), which says, “The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.” However, Hurst is distinguishable. It dealt with a Florida statute under which the jury renders only an advisory sentence and the trial court enters a sentence of life imprisonment or death. We once more affirm the constitutionality of S.C. Code Ann. § 16-3-20(B)’s requirement that a capital defendant who pleads guilty to murder must be sentenced by the trial court.

During the sentencing phase of trial, defendant’s expert witness opined that defendant was under the influence of his partners in crime, James and McKinley Daniels. Her opinion was based, in part, on McKinley’s telling her that he had told defendant to kill a convenience-store clerk in a subsequent robbery-homicide that was not the subject of this case. The trial court refused to admit evidence of McKinley’s statement. Although McKinley’s statement was minimally prejudicial to the state—it supported the state’s evidence of a second armed robbery and murder defendant had committed—we cannot say the trial court’s decision to exclude the statement was an abuse of its discretion.

Evidence of defendant’s misconduct, particularly towards correctional officers, as a pretrial detainee was relevant to determine and evaluate his future dangerousness as an aggravating circumstance in the sentencing phase of trial. Defendant argues evidence of his pre-trial misconduct should have been excluded because it occurred while the state “unconstitutionally” held him for over three years pre-trial in maximum security prison and on death row. However, defendant does not point to any rule of evidence or other statutory or constitutional provision that excludes this type of evidence. He merely argues that it is unfair for the state to use his own conduct against him. We disagree and find the trial court did not abuse its discretion in admitting evidence of defendant’s pre-trial misconduct.

Upon review of both death penalty cases and other death-eligible cases for which a record was available, and based on (1) defendant’s admitted shooting at one convenience store clerk, shooting and killing another clerk, and robbing the store; (2) evidence of defendant’s future dangerousness; and (3) evidence that defendant committed two more armed robberies and a murder just weeks later, we hold that the death sentence was neither excessive nor disproportionate.

Affirmed.

State v. Jenkins (Lawyers Weekly No. 010-012-22, 26 pp.) (John Few, J.) Appealed from Horry County Circuit Court (Robert Hood, J.) Robert Michael Dudek, Kathrine Haggard Hudgins and Adam Sinclair Ruffin for appellant; Alan McCrory Wilson, Melody Jane Brown and William Edgar Salter for respondent. S.C. S. Ct.