395 S.C. 101 - State v. Dickerson

Justice PLEICONES.

¶1I concur in the decision to affirm this capital appeal and sentence, but write separately to address both the lesser-included issue and the majority’s suggestion in footnote 8 that we should consider altering our approach to proportionality review.

¶2I agree with the majority that appellant has no constitutional right to a charge on a lesser-related offense. Hopkins v. Reeves, 524 U.S. 88, 118 S.Ct. 1895, 141 L.Ed.2d 76 (1998). Rather, the question of a defendant’s right to such a charge is a matter of state law. Id.; see e.g., Sheffield v. State, 64 So.3d 529 (Miss.Ct.App.2011). In my opinion, State v. Gentry, 363 S.C. 93, 610 S.E.2d 494 (2005), fundamentally altered state law by converting an indictment, which theretofore had been a jurisdictional document, into a mere notice document. Id. at 102-103, 610 S.E.2d at 500. Since the notice is directed only to the defendant, in my opinion, it is within his sole prerogative to waive such notice.

¶3Unlike the majority, I find nothing in People v. Birks, 19 Cal.4th 108, 77 Cal.Rptr.2d 848, 960 P.2d 1073 (1998) which conflicts with my view that a court may authorize a criminal defendant to request a jury charge on a lesser-related offense. In Birks, the California Supreme Court held it had created a state constitutional problem by extending to the defendant alone the right to request such a charge on state due process grounds, and reversed its earlier decision. If the Court agrees with Birksthat it is a constitutional violation to give only one party in a criminal proceeding the right to request such a charge, then the problem can be remedied by overruling Gentiy.

¶4On the merits, I find no reversible error in the circuit court’s decision not to charge the jury on the lesser-related offense of accessory after the fact because such a charge was not supported by the evidence. See State v. Collins, 329 S.C. 23, 495 S.E.2d 202 (1998) (elements of accessory after the fact explained).

¶5 *127I believe that when S.C.Code Ann. § 16-3-25(0(3) (2003) requires us to determine whether the death sentence “is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant,” and to refer to the similar cases that we considered, we should confine our review to only those cases in which a death sentence was imposed.9State v. Copeland, 278 S.C. 572, 300 S.E.2d 63 (1982)(only review of appeals where death sentence was imposed satisfies both state statute and constitution). As Copelandexplains, to include in our review cases where a capital sentence was sought but not imposed requires us to speculate on, among other things, the solicitor’s decision-making process, the strength of the State’s case, and/or upon the jurors’ or trial judge’s decision to exercise mercy. Moreover, our reference for proportionality extends only to cases which are appealed, and thus is not truly representative of all cases where the death penalty was or could have been sought. Experience teaches that many of these cases where a lesser sentence is imposed are never appealed.

¶6On the merits, I agree that the death sentence imposed upon appellant is not disproportionate.

¶7For the reasons given above, I concur.

¶8. Like the majority, I have enormous respect for Justice Stevens. If we were to be true to his views on capital sentencing, however, we would join his minority view that imposition of the death sentence violates the Eighth Amendment's prohibition on cruel and unusual punishment. Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008) (decided the term before he issued his Walker v. Georgia statement). While perhaps Justice Stevens would find our practice of reviewing only other capital cases violative of the Eighth Amendment, the fact remains that proportionality review is a requirement only of state law, not the Constitution. Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984).