¶1(dissenting):
¶2I respectfully dissent. I would find that the trial judge erred in failing to instruct the jury on the statutory mitigating circumstance that the appellant was “an accomplice in the murder committed by another and his participation was relatively minor,” pursuant to S.C. Code Ann. § 16-3-20(C)(b)(4) (1976). I would reverse and remand for a new sentencing proceeding.
¶3The trial judge has a duty to instruct the jury as to any statutory mitigating circumstances which may be supported by the evidence. S.C. Code Ann. § 16-3-20(0 (1976); State v. Bellamy, 293 S.C. 103, 359 S.E. (2d) 63 (1987). In deciding which statutory mitigating circumstances may be supported, the judge is to concern himself only with the existence of evidence and not its weight. Id.This principle was reaffirmed in State v. Caldwell, 300 S.C. 494, 388 S.E. (2d) 816 (1990). In Caldwell, this Court remanded for a new sentencing proceeding because evidence existed that the defendant was suffering from a mental disorder, but the judge failed to instruct the *138jury on this mitigating circumstance. Similarly, in the present case, evidence existed to support the inference that the appellant was an accomplice and that his participation was relatively minor.
¶4Connie Hess was arrested in connection with the murder of Trooper Smalls along with appellant and Curtis Harbert. Hess gave several statements to the police, including a statement introduced into evidence which indicated that Curtis Harbert, not Johnson, murdered Trooper Smalls. Clearly, Hess’ statement provides a basis for a jury instruction on the statutory mitigating circumstance at issue.
¶5The majority acknowledges that the statement indicated Johnson had no involvement with the murder. Nevertheless, the majority reasons that the evidence only indicated that either Johnson shot Smalls or that Johnson was not involved at all. I disagree.
¶6Clearly, the statement constituted evidence that Johnson was an accomplice, although his involvement may have been relatively minor. By disregarding evidence of the mitigating circumstance and determining that a jury instruction was not warranted, the majority obviously bases its determination upon the weight rather than existence of the evidence, as the law requires. State v. Caldwell, supra; see State v. Bellamy, supra; State v. Pierce, 289 S.C. 430, 346 S.E. (2d) 707 (1986).
¶7I would reverse and remand for a new sentencing proceeding.