¶1(dissenting):
¶2I respectfully dissent. In my opinion, the admission of victim impact statements should have been precluded by South Carolina v. Gathers, the prevailing law of this state at the time of trial.
¶3With regard to in favorem vitae, I note with considerable interest the majority’s response to the first issue, which is limited to whether or not a defendant in a capital proceeding who is indicted before but tried after Torrence is entitled to an in favorem review.
¶4After making a statement clearly and concisely holding that a defendant indicted but tried after Torrence is not entitled to an in favorem review, the majority goes out of its way to justify the abolishment of 200 years of legal precedent. This is accomplished by raising the illusory spectacle of “sandbagging.” However, the record contains no evidence addressing this mysterious phenomenon.
¶5Concerning victim impact testimony, the United States Supreme Court held in Payne v. Tennessee that if a state chooses to permit the admission of victim impact evidence, the Eighth Amendment erects no per se bar. The majority correctly notes that this Court adopted Payne as the law of South Carolina in Lucas v. Evatt, supra. However, the majority ignores the fact that at the time of trial, neither State v. Johnson, the initial decision of this Court to cite Payne with approval, nor Lucas had been decided by the Court. This capital trial occurred on July 10-13, 1991, approximately three months before this Court rendered its decision in Johnson. Therefore, I am of the view that Gathers properly expressed this Court’s intention to preclude victim impact testimony at the time this trial was conducted.
¶6*29For the foregoing reasons, I would hold that the admission of the victim impact testimony was violative of the law of South Carolina at the time of trial. I would reverse and remand for resentencing.