The South Carolina Supreme Court has never struck down a death sentence for being disproportionate, a record that remains intact after the court denied habeas relief to a man who was sentenced to death for robbing and killing a store clerk. But the court has, for the first time, agreed to treat cases that didn’t result in a death penalty sentence as “similar cases” during its required proportionality review, perhaps making it easier for future defendants to bring a successful challenge.
Richard Moore argued that his 2001 death sentence was disproportionate, that the proportionality review the Supreme Court conducted in 2004 was insufficient because it considered only other death penalty cases, and that the court should expand its comparative proportionality review to include a larger pool of cases in which the death penalty wasn’t imposed.
The court declined to find Moore’s sentence disproportionate to his crime, but it agreed that proportionality reviews are typically intended to compare the sentence of one defendant to the sentence imposed on others who were convicted of the same offense—but not necessarily sentenced the same way.
Writing for the court in the April 6 opinion, Chief Justice Donald Beatty noted that while the court determined in its 1982 decision in State v. Copeland that it should begin its comparison by looking to other cases involving a conviction and sentence of death, it ultimately noted in 2011 in State v. Dickerson its concern that “restricting our statutorily mandated proportionality review to only similar cases where death was actually imposed is largely a self-fulfilling prophecy as simply examining similar cases … will almost always lead to the conclusion that the death sentence under review is proportional.”
Intent at the time
In 1999, Moore shot and killed a convenience store clerk during an armed robbery and shot at a store patron. The patron, who played dead despite not being hit by a bullet, testified at Moore’s trial that he saw Moore, gun in hand, struggling with the clerk before hearing gunshots. After Moore fled the store with a bag of money, the witness discovered the clerk’s body.
Moore did not enter the store armed, but he killed the clerk with a gun belonging to the store’s owner. The clerk usually carried a firearm for his protection while working nights, witnesses testified, and the owner kept several firearms under the counter.
According to prosecutors, Moore committed the robbery to get money for drugs. He was convicted of murder, robbery, possession of a firearm during the commission of a violent crime, and assault with intent to kill. The jury recommended the death penalty after finding three aggravating circumstances: the murder was committed during the commission of a robbery and while armed with a deadly weapon, Moore created a great risk of death to more than one person in a public place and by means of a weapon or device that normally would be hazardous to the lives of more than one person, and the murder was committed for the purpose of receiving money or a thing of value.
But what about the others?
Moore argued that his sentence wasn’t proportionate, and the high court had found otherwise by relying on cases selected solely for the similar aggravating circumstance of armed robbery. More argued that the circumstances of those cases were more severe than his own, including the fact that he didn’t enter the premises with a weapon.
The court disagreed, finding Moore’s offenses similarly egregious and stating that whether he entered the store with a weapon or armed himself once inside didn’t determine his intent or the egregiousness of his crimes.
While the court recognized that the severity and brutality of crimes vary and acknowledged Moore’s assertion that others have received life sentences after committing “far worse” crimes, it noted that the jury found that Moore intentionally robbed and murdered the clerk and knowingly endangered the life of another person, and that the state had proven, beyond a reasonable doubt, three aggravating circumstances.
“Whether this Court would impose a death sentence under the same circumstances is not within the permitted scope of this Court’s appellate review,” Beatty wrote. “Rather, the Court’s task in comparative proportionality review aims to ensure that a jury’s decision was not the result of arbitrariness.
Something beyond death
In 2004, the court determined on direct appeal that Moore’s death sentence wasn’t the result of passion, prejudice, or any other arbitrary factor and that it was not excessive or disproportionate to the penalty imposed in similar capital cases.
But regarding the scope of what the court considers when conducting that analysis, Beatty wrote that the Copeland court observed that comparative proportionality review has been left to state determination because the U.S. Supreme Court has declined to impose any specific model of review upon the states.
Moore argued that that the reviewable case pool should be expanded beyond those in which death was imposed—and even beyond actual convictions—asserting that his death sentence is disproportionate based on an expanded comparison of these “similar cases.”
While the court declined to adopt Moore’s proposal to expand the pool of cases to incidents or charges that haven’t resulted in a conviction and sentence (both state and case law mention convictions, punishment, and penalty), it agreed that the state’s proportionality statute doesn’t expressly limit the pool of cases to only those in which the death penalty was imposed.
As such, the review could include a comparison of death-eligible cases where there is a record available for review.
“This can include, for example, cases where a defendant’s conduct was eligible for a capital sentence, but the state elected to seek only a life or lesser sentence, as well as cases where a jury considered but ultimately declined to impose a death sentence,” Beatty wrote.
The court added that life sentences traditionally were not included in the pool of comparison cases in most states because life sentences are generally not appealed, so there is no appellate record.
‘Our system is broken’
Justice Kaye Hearn dissented from the ruling.
“This Court has never found a single death sentence disproportionate dating back to 1977, the first time comparative proportionality review was required by the General Assembly,” Hearn wrote. “Our system is broken.”
Hearn wrote that the majority erred by rejecting the significance of Moore’s unarmed status, focusing more on the jury’s decision than whether the sentence is excessive compared to similar cases.
“By improperly focusing on whether the crime committed by petitioner meets the legal definition of armed robbery, the majority completely loses sight of the vast difference between a ‘robbery gone bad’ and a planned premeditated murder,” Hearn wrote.
Hearn said that the death sentence is a “relic of a bygone era” (Moore being convicted by a jury of 11 white people and one Hispanic) and that while general patterns of racial discrimination are not enough to prove arbitrariness, it is disingenuous to discount the factor race plays.
Lindsey Vann and Hannah Freeman of Justice 360 in Columbia, Gerald Malloy of Hartsville, Whitney Boykin of McGowan Hood & Felder in Columbia, and John Blume of Ithaca, New York, represented Moore. Deputy Attorney General Donald Zelenka, Senior Assistant Deputy Attorney General Melody Brown, and Senior Assistant Attorney General W. Edgar Salter III of Columbia represented Stirling.
The 33-page decision is Moore v. Stirling (Lawyers Weekly No. 010-011-22). The full text of the opinion is available online at sclawyersweekly.com.