5.Penalty-Phase Charge Conference
53 linesRICK HUBBARD: Your Honor, we do have one objection just to put on the record about the very final bit. It's repeated often, but State vs. Dickerson on death penalty impact. I think it crosses the line. I didn't object again, but, Your Honor, I think it was absolutely improper under State V. Dickerson.
THE COURT: I'll try to -- I've given y'all my instructions. Are you asking for a curative instruction for a following of Dickerson or you want to leave it alone understanding what my instructions are going to be. I understand y'all are going to argue Dickerson, but I think my instructions kind of, as a whole, is touched to both of y'all's challenges y'all face.
RICK HUBBARD: I would suggest if we could just add a phrase in your instructions to the jury and handle it that way so you don't have to do it twice.
THE COURT: Okay.
BOYD YOUNG: We would object. That's not the holding in Dickerson. Dickerson said it wasn't. It was abusive discretion to limit one witness in talking about other deaths in their family. That is not what has happened in this case. That's not the evidence that's in this case.
THE COURT: I think the jury is going to consider what was presented in testimony and evidence, that's what they're going to consider. I mean, whether in violation of Dickerson or not, they heard it.
BOYD YOUNG: To add to the Court's instruction about you can't consider the impact that the execution may have on other people would be a comment on the facts.
THE COURT: When we've had both charge conferences, I've been asked to make certain suggestions or comments. And I declined, out of an abundance of caution, to comment on facts from both sides.
BOYD YOUNG: Yes, sir.
THE COURT: In the initial phase and in this phase. So I'm kind of inclined to leave my charge alone. All right. Just, in general, the charge itself that I emailed out, is that fairly consistent with the discussions we had?
BOYD YOUNG: I haven't gotten an email.
SUZANNE MAYES: Judge, we had someone print it out and slide it under the door, so we're looking over it now. But I'm sure Whitney made all the changes we discussed.
THE COURT: She did.
RICK HUBBARD: What I would suggest is that in sentencing, they consider the characteristics of -- both character of the Defendant and the characteristics of the crime. That that's what their focus is. It's not on placating anybody else.
THE COURT: We sent it when Mr. Secor started.
BOYD YOUNG: And I'm sorry, I don't have my computer up or anything. It hasn't come through my phone yet.
THE COURT: Whitney sent it to the same group email we've been using, so everybody should have gotten it.
BOYD YOUNG: Right, I know. It's probably just my phone doesn't get service in here.
THE COURT: Before the jury comes back in, I want to put the objections to what the Court did not add to the charge or take out of the charge. Start with the Defense and I'll come to the State.
BOYD YOUNG: Just a couple, Your Honor. On Page 7, we'd renew our objection to the language that describes statutory aggravating circumstance. And I'm looking at the middle of the page. It is something that is deemed by the law to increase the enormity of the crime, make it worse or add to its injurious consequences. We had requested that that just be changed to a factor that would make somebody eligible for consideration for the death penalty.
THE COURT: I understand your objection. It's noted.
BOYD YOUNG: All right. Page 10, the first full paragraph, the sentence reads, A mitigating circumstances are neither a justification nor excuse for the murder: it simply lessens the degree of one's guilt, that is makes the Defendant less blameworthy or less culpable. We would object to that language under Lockhead and Eddington, limiting mitigation. And we request instead of a colon, it just be a period and the rest of the sentence should be struck.
THE COURT: I understand. The objection is noted.
BOYD YOUNG: And then right before the final instruction on Page 15, we would request an instruction that the jury be reminded that no Juror should ever give up their conscientiously held belief merely for the sake of forming unanimity.
THE COURT: And my comment in-chambers was that I'm going to decline to put that here. But if an Allen charge comes around, then certainly that would be a portion of that, that jurors resolve their differences, listen openly and not abandon their moral belief if that's their choice. I'm not going to give it here.
BOYD YOUNG: I understand. And we had requested a couple of additional instructions, that were not included, which was an instruction regarding the ability of lay witnesses to give opinions under Rule 701. We had requested that nonstatutory mitigators be defined with the eight categories that we had passed up to the Court and the Court elected not to include in their instruction.
THE COURT: And my comment to that was, I thought it was commenting on facts, so I didn't want to do that.
BOYD YOUNG: Yes, sir. And we had requested an instruction with regard to victim impact evidence as not being aggravation, which the Court elected not to include as well.
THE COURT: And, again, commenting on types of evidence, to me, is commenting on the facts also. They heard all the evidence. Whether it be direct, circumstantial, character, aggravating, you don't have to define all of them for the jury to consider all of them. So, respectfully, I decline your recommendations and changes.
BOYD YOUNG: Thank you, Your Honor.
THE COURT: Mr. Graham?
SHAWN GRAHAM: One that we talked about during the brief recess, Page 3 at the end of your jury charge, the credibility of the witnesses, we asked for Your Honor to include at the end, you must weigh the evidence using your good judgment and commonsense. We would like the language added in, your consideration of the character of the Defendant and the circumstances of the crime that was presented to you. And that's in response to the language -- or the testimony that came in from the family members about the effects on themselves. That's inappropriate under Dickerson. We objected to it. It came in. And that was a large part of the Defense argument. In addition, Your Honor, I didn't have a chance to tell Your Honor, up there on Page 10, this is going to be for the same -- the exact same reason. This language comes out of the jury charge from Judge Couch, I believe, in State v. Cantrell, I think it's in Blackwell as well. We would ask that in the first full sentence on Page 10, it is a circumstance recognized under the law of South Carolina, is one which in fairness and mercy on behalf of the Defendant that may be considered. We asked for the inclusion of on behalf of the Defendant, to limit the words, mercy, is to be shown. In addition, on the bottom of Page 12 --
THE COURT: Wait, wait, one more time. Go back to 10. The last sentence is --
SHAWN GRAHAM: The last sentence is --
THE COURT: We okay with that or not?
SHAWN GRAHAM: I was at the top of Page 10 in the first paragraph that continues over.
THE COURT: Okay.
SHAWN GRAHAM: Is a circumstance recognized under the laws of South Carolina as one which in fairness and mercy, we would ask that you add on behalf of the Defendant, in describing mercy. If the jury wants to consider -- and I don't think it limits the improper Dickerson evidence that came in. The jury can consider that as a mitigating factor, the effect on the family. We objected to it coming in, but it came in. But mercy is for the Defendant and we'd like that clarified in your instructions.
THE COURT: So you want to say in fairness and mercy to the Defendant or it may be considered?
SHAWN GRAHAM: We would like to add --
THE COURT: -- reference in the phrase.
SHAWN GRAHAM: -- the Defendant's mercy. And we'd ask that you add on behalf of the Defendant, in describing what mercy is.
THE COURT: Do y'all object to that?
BOYD YOUNG: Yes.
THE COURT: That wasn't discussed at the table?
BOYD YOUNG: It wasn't, and we would object to it. Nothing improper came in and that's not what Dickerson says.
THE COURT: I'm kind of inclined to leave it alone because -- I understand the State's suggestion to it and their concern over Dickerson testimony. I'm kind of inclined to leave it alone. Leave it like it is.
BOYD YOUNG: The holding in Dickerson was, it was not an abuse of discretion to limit this particular question. There's no holding about what's proper and what's improper.
THE COURT: I'm going to leave my instruction like I got it.
SHAWN GRAHAM: I understand Your Honor's ruling. I would ask -- I understand you ruled against it, but the same language on behalf of the Defendant being put into the description of mercy on the bottom of Page 12.
THE COURT: I think reading that sentence as a whole, the act of mercy is only to the Defendant. I mean, that's what it suggest. So I'm going to leave it like that. The objection is noted, the suggestions are noted. I'm going to leave it like I got it. All right. We ready?
BOYD YOUNG: Yes, sir.
THE COURT: All right. Bring in the jury. (Whereupon, the jury came into open court at approximately 12:00 p.m.)