2.Closing-Argument Objection and In-Chambers Motion
40 linesTHE COURT: Before we break, Mr. Graham, you wanted to -- you had a motion regarding closing. Let's hear it before Mr. Secor's got to start his argument.
SHAWN GRAHAM: You want to do this here, Your Honor, or back in chambers?
THE COURT: I think, perhaps, chambers may be better. Can you do that, Joy?
COURT REPORTER: Yes.
THE COURT: All right. Let's do that.
CASEY SECOR: Can I put my objection on the record then, Your Honor?
THE COURT: Oh yes, you may.
CASEY SECOR: It's in reference to Solicitor Hubbard discussing with the jury what they might think is the appropriate punishment. And, specifically, when he was discussing with them whether they think the life without parole is an appropriate punishment in this case. He then began to say that the sentence of life without parole -- or the argument was, essentially, that a sentence of life without parole could mean that other children will be killed because it won't send the message that, in cases like this, the death penalty is the appropriate punishment. And I think that the argument, essentially, can be boiled down to the fact that if the jury -- or that the jury needs to kill Tim in order to save other innocent children to deter people who would harm their children. And I would argue that that deprives Tim's right to due process to a fair trial, impartial jury and the right to be free from cruel and unusual punishment pursuant to the Fifth and Fourteenth Amendments of the United States Constitution as well as the Sixth and Eighth Amendments to the United States Constitution and Article 1, Section 3 and 14 of the South Carolina Constitution as well as --
THE COURT: All that's on there. We can get all that. Your objection was noted. I heard your objection. I said noted. Solicitor Hubbard moved on from there.
RICK HUBBARD: And I rely on State v. Allen. But, also, Your Honor, the objection was made on words I didn't say. They put in evidence a purpose, that's what I responded to. And it was after their verdict was made, not that they have to be driven by anything else. I've made it clear the whole time it's the evidence, evidence, evidence. So that's what my argument was based on.
CASEY SECOR: I just want to put two cases on the record, if I may?
THE COURT: You may.
CASEY SECOR: State v. Shuler, S-H-U-L-E-R, 353 S.C. 176, as well as State v. Northco. Thank you.
THE COURT: Okay. All right, let's go to chambers. Joy can bring whatever she needs to bring to put it on the record. We'll discuss the in-limine motion.
(WHEREUPON, motions were held in-chambers.)
THE COURT: What's your motion in-limine?
SHAWN GRAHAM: Judge, I'm hesitant to do this, but an attorney in our office went through the Earnest Daise case ending up with a verdict, unanimous verdict, I believe. Mr. Secor delivered the closing arguments in that. And when we reviewed -- when we reviewed that closing argument, it became apparent to us, in our opinion, that Mr. Secor is a very zealous advocate for his client. And I respect him for doing that. But there are multiple areas where he uses phrase of words and arguments in Daise that I think are objectionable and inappropriate. And if they're repeated here and not dealt with beforehand, the Solicitor has no choice but to continually object, which looks terrible in front of a jury, or to let it pass. The first thing that was noticed in closing argument he uses the word, kill, for what the jury is being asked to do. Don't kill the Defendant. Don't kill -- in this case, it would be don't kill Tim. You don't have to kill Tim. Just various, multiple combinations on that. That was objected to by the State and Judge Mullen allowed it and they stopped objecting. It's our opinion and belief that in characterizing -- I mean, it's not the language used in the statute. I believe in the statute, during voir dire, we never asked are you able to kill. It's are you able to give a sentence of death. Their decision will be carried out, but they're not the ones killing. The law allows for a death sentence. And I think it's an improper use of the word solely as an attempt to place guilt on the action of the jurors.
THE COURT: All right. Mr. Secor, you plan on doing that?
CASEY SECOR: Yes, sir. I would just point out that in voir dire, the State did refer to sentence of death as being a death warrant when they were trying to impress upon the jury the fact that their sentence will be carried out and the Defendant will be killed. And I find in these cases that they want to hard sell it in voir dire to try to get rid of jurors who would hesitate to do so. And then when it gets to closing, they want to try to force me to soft sell the death verdict to make it more palpable and easier for people to sign the death verdict. And I think that that -- and I mean no disrespect, but I think it's intellectually dishonest for them to try to hard sell it in voir dire and then want me to soft sell it for them in closing argument. It would -- I also think the jury is certainly entitled to understand the magnitude of the decision they have to make pursuant to Caldwell versus Mississippi --
THE COURT: Well, how does sentence to death not impactful to understand their duty, kill versus sentence to death. I mean, why is that -- it's different words, the result is the same, you are not living anymore.
BOYD YOUNG: Before we go through and address each one of these issues, I think it's outlandish and outrageous that the State gets to object or preemptively object to a Defense closing prior to it being made. The Defense is not limited in the same way in which the State is making their closing argument. You're allowed to argue whatever you want to to impress upon the jury all of the reasons that they should give a life sentence. And to allow the State to come in and say well, this is the word you can use, you can't use this other word. They've had their opportunity with the jury. They've made their argument. The Defense is entitled to do the same without interference or interruption from the State and they shouldn't even be allowed to make this motion.
THE COURT: The State can't object?
BOYD YOUNG: Sure, they can object. If something is improper, they can object. When something improper happens, then Your Honor can make the ruling on it, just like we did. But to allow the State to say well, these are the words I'm going to allow you to use and these are the words I'm not going to allow you to use, that's improper. And this whole thing is improper and Your Honor shouldn't even entertain this motion.
SHAWN GRAHAM: Your Honor, I think they made motions -- they filed, at least, two of them trying to attempt to limit what --
BOYD YOUNG: We filed a number of motions about what are categories of improper arguments that have been made by the State in the past. We didn't say here's an argument from Rick Hubbard and he can't use this word, this word, this word. We said these are arguments that the South Carolina Supreme Court has said you guys stay away from and we're putting you on notice. They made one of those arguments that they were on notice for.
THE COURT: Y'all have been put on notice.
BOYD YOUNG: This is not -- this is not putting on notice about categories of argument. This is like you can't use the word, kill, in a death penalty.
THE COURT: Well, you're on notice that the State will object to it. How about that?
BOYD YOUNG: That's fine.
THE COURT: Well, that's what you get.
BOYD YOUNG: Okay.
THE COURT: Do it that way. I'd rather it go smoothly for the jury's sake. If you don't want it to, then the Solicitor will just have to make -- they'll have to make their judgment call on when to object. If he's going to go pushing the envelope out there like they're suggesting.
BOYD YOUNG: Nobody's saying they can't object. They can do what they want to do.
RICK HUBBARD: Since you've chimed in, I will. It is I have to object. I don't want to break up Casey's flow. I think it's disrespectful to him, but to say that is disrespectful of the jury. It's a moral judgment on their choice of a death sentence. Kill, somehow that equates it to the act of the Defendant. And yes, we have to bring it up. We're on notice about it. This is the time to address it, not in the courtroom when Casey's speaking.
THE COURT: Y'all both have, I think, politely said heads up. Here's what we find objectionable, can we address it ahead of time? And I would appreciate that if I were a lawyer arguing. Either way, either side. Y'all are both passionate about this, I mean, no question. Here is what we will do. The State's filed its motion kind of letting you know if you go in these areas, they're going to note an objection. I'll rule on it. So if you don't, then, you know, it goes on further. So just beware, they're telling you they think that would be objectionable. Is that okay?
BOYD YOUNG: Of course.
THE COURT: Okay. So the State has made its motion. I'll consider objections made -- if there are any objections made, I'll rule on them and we'll go from there.
CASEY SECOR: May I just have some time -- I just want to add a couple things --
THE COURT: No, you've had enough time. Go ahead. I'm ready to keep rolling. You always ask -- you're the only one that's asked for extra time every time.
(WHEREUPON, in-chambers motion concluded.)