FindLaw > Criminal Law Summaries > Shafer v. South Carolina

Death Penalty – Jury Instructions on Possibility of Parole

Case: Shafer v. South Carolina

Issue: [In Simmons v. South Carolina, 512 U.S. 154 (1994), the Supreme Court held that when a Defendant’s future dangerousness is at issue, and the only sentencing alternative to death available to the jury is life imprisonment without possibility of parole, due process entitles the Defendant to inform the jury of his parole ineligibility, either through a jury instruction or an argument by counsel.] 1) Does the rule in Simmons apply to South Carolina’s new sentencing scheme? [Under South Carolina’s new post-Simmons sentencing scheme, "South Carolina capital jurors face two questions at sentencing. They decide first whether the State has proved beyond a reasonable doubt the existence of any statutory aggravating circumstance. If the jury fails to agree unanimously on the presence of a statutory aggravator, ‘it shall not make a sentencing recommendation.’ . . . ‘[T]he trial judge,’ in that event, ‘shall sentence the defendant to either life imprisonment or a mandatory minimum term of imprisonment for thirty years.’ . . . If, on the other hand the jury unanimously finds a statutory aggravator, it then recommends one of two potential sentences -- death or life imprisonment without the possibility of parole . . . No sentencing option other than death or life without parole is available to the jury."] 2) Was the rule in Simmons violated when a South Carolina trial court instructed capital jurors that "life imprisonment means until death of the offender" and that "parole eligibility or ineligibility is not for your consideration," but refused to inform them that a life sentence carried no possibility of parole? 3) Was the rule in Simmons violated when a prosecutor presented evidence bearing on future dangerousness but did not literally argue the point before the jury?

Facts: Defendant Wesley Shafer shot and killed a convenience store cashier in April 1997, during the course of an attempted robbery. Shafer was charged with murder and the State informed him that it would seek the death penalty. Under South Carolina law, capital juries consider guilt and sentencing in separate proceedings. In the guilt phase, the jury found Shafer guilty of capital murder. In the sentencing proceeding, South Carolina law provides that "[T]he jury . . . shall hear additional evidence in extenuation, mitigation, or aggravation of the punishment. . . . The State, the defendant, and his counsel are permitted to present arguments for or against the sentence to be imposed."

At sentencing, South Carolina capital jurors first decide "whether the State has proved beyond a reasonable doubt the existence of any statutory aggravating circumstance. If the jury fails to agree unanimously on the presence of a statutory aggravator, ‘it shall not make a sentencing recommendation.’" Instead, the trial court sentences the defendant to "either life imprisonment or a mandatory minimum term of imprisonment for thirty years." If the jury unanimously finds that a statutory aggravating factor was committed, "it then recommends one of two potential sentences -- death or life imprisonment without the possibility of parole. . . . No sentencing option other than death or life without parole is available to the jury."

During Shafer’s sentencing proceeding, the State introduced evidence of his criminal record, aggressive conduct, probation violations and misbehavior in prison. "The State urged the statutory aggravating circumstance that Shafer had committed the murder in the course of an attempted robbery while armed with a deadly weapon." At the jury charge conference, defense counsel asked the judge to instruct the jury "that under South Carolina law a life sentence carries no possibility of parole." The State alleged that Shafer was not entitled to a Simmons instruction because "the State has not argued at any point . . . that he would be a danger to anybody in the future, nor will we argue [that] in our closing argument." The judge decided that parole ineligibility would not be charged. Shafer’s counsel next sought permission to read to the jury the portion of the South Carolina statute which stated "that a life sentence in South Carolina carries no possibility of parole." The judge denied this request. During the State’s closing argument, the prosecutor repeated the words of an alarmed witness at the crime scene that "[Shafer and his two accomplices] might come back, they might come back." After the State’s argument, defense counsel renewed his request for a "life without parole charge." The judge denied the request. In his closing argument, Shafer’s attorney told the jury that if Shafer’s life was spared, he would "die in prison [after] spend[ing] his natural life there."

In its charge, the court twice instructed the jury that "life imprisonment means until the death of the defendant." The court also told the jury that "the sentence you send to me by way of a recommendation will in fact be the sentence that the court imposes on the defendant." The court, however, consistent with its prior rulings, did not instruct that a life sentence would be without parole.

After deliberating for more than three hours, the jury sent a note to the trial judge containing two questions:

"1) Is there any remote chance for someone convicted of murder to become eligible for parole?"

"2) Under what conditions would someone convicted for murder be eligible?"

Shafer’s counsel asked the court to read to the jury the following portion of the relevant South Carolina statute: "For purposes of this section, ‘life imprisonment’ means until death of the offender. No person sentenced to life imprisonment pursuant to this section is eligible for parole, community supervision, or any early release program, nor is the person eligible to receive any work credits, education credits, good conduct credits, or any other credits that would reduce the mandatory life imprisonment required by this section." Instead the court instructed the jury that:

"Section 16-3-20 of our Code of Laws as applies to this case in the process we’re in, states that, quote, for the purposes of this section life imprisonment means until the death of the offender, end quote.

"Parole eligibility or ineligibility is not for your consideration."

The Court’s instruction on parole eligibility was given over the explicit objection of Shafer’s counsel.

Eighty minutes later, the jury returned. It unanimously found beyond reasonable doubt that Shafer had committed the aggravating factor of murder while attempting armed robbery. It also recommended the death penalty.

Shafer appealed the death sentence to the South Carolina Supreme Court. The South Carolina Supreme Court did not consider whether the prosecutor’s evidentiary submissions or closing argument placed Shafer’s future dangerousness at issue. Instead, the court held that Simmons was not applicable to South Carolina’s new sentencing scheme. The court acknowledged that under Simmons "when the State places the defendant’s future dangerousness at issue and the only available alternative sentence to the death penalty is life imprisonment without parole, due process entitles the defendant to inform the jury he is parole ineligible." Nevertheless, the court held that under the new South Carolina sentencing scheme, "life without the possibility of parole and death are not the only authorized sentences." The court noted that there was a third potential sentence, "a mandatory minimum 30-year sentence." According to the South Carolina Supreme Court, "Simmons requires a trial judge [to] instruct the jury the defendant is parole ineligible only if no other sentence than death, other than life without the possibility of parole, is legally available to the defendant." Since there were three alternative sentences available when the jury began its deliberations, and "one of these alternatives to death was not life without the possibility of parole," the court found Simmons inapplicable.

Holding: Judgment reversed. 1) The South Carolina Supreme Court misinterpreted Simmons. Simmons applies where "as a legal matter, there is no possibility of parole if the jury decides the appropriate sentence is life in prison." Therefore, "whenever future dangerousness is at issue in a capital sentencing proceeding under South Carolina’s new scheme, due process requires that the jury be informed that a life sentence carries no possibility of parole." 2) The jury was not properly informed of the law on parole ineligibility by the trial court’s instructions and by defense counsel’s argument. 3) The State’s contention that no parole ineligibility instruction was required under Simmons, because the prosecutor never argued that Shafer would pose a future danger to society, is not ripe for consideration, since it was not discussed by the South Carolina Supreme Court. "Because the South Carolina Supreme Court did not home in on the question whether the prosecutor’s evidentiary submissions or closing argument in fact placed Shafer’s future dangerousness at issue, we leave that question open for the state court’s attention and disposition."

Reasoning: Justice Ginsburg, writing for the 7-2 majority, conceded that when the jury began its sentencing deliberations, there were two alternatives to the death penalty available for its consideration. This distinction, however, was not significant, because "in any case in which the jury does not unanimously find the statutory aggravator, death is not a permissible sentence and Simmons has no relevance. In such a case, the judge alone becomes the sentencer. . . . Only if the jury finds an aggravating circumstance does it decide on the sentence. . . . And when it makes that decision, as was the case in Simmons, only two sentences are legally available under South Carolina law: death or life without the possibility of parole." Moreover, in making its initial determination regarding the aggravating factor, the jury acts strictly as a fact finder without expressing any sentencing discretion or moral judgment. "It is only when the jury endeavors the moral judgment whether to impose the death penalty that parole eligibility may become critical. Correspondingly, it is only at that stage that Simmons comes into play, a stage at which South Carolina law provides no third choice, no 30-year mandatory minimum, just death or life without parole."

Nor did the judge’s instructions coupled with defense counsel’s arguments effectively inform the jury that a life sentence meant a life sentence without parole. The jury’s note to the court unequivocally showed that it was confused about parole and thought there was a possibility of parole even with a life sentence. Rather than clearing this confusion up, the trial court’s further instruction that parole was not a question for the jury to consider only compounded the initial mistake.

Since the South Carolina Supreme Court "apparently assumed arguendo," that future dangerousness was established at Shafer’s sentencing hearing, it did not squarely address the issue of whether the State must formally argue future dangerousness for future dangerousness to be at issue. Accordingly, the Court left that question open for the South Carolina Supreme Court’s attention. The Court noted, however, the trial court’s acknowledgement that the prosecutor "had come close to crossing the line," and cited case law establishing that future dangerousness is an issue when it is "a logical inference from the evidence" or was "injected into the case through the State’s closing argument." The Court seemed to be sending a signal to South Carolina that future dangerousness had obviously been put in issue by the State.

Other Opinions: Justice Scalia dissented. He conceded that the opinion was a logical extension of Simmons. He argued, however, that he was "more attached to the logic of the Constitution, whose Due Process Clause was understood as an embodiment of common law tradition, rather than as authority for federal courts to promulgate wise national rules of criminal procedure." According to Scalia, "that common law tradition does not contain special jury instruction requirements for capital cases."

Justice Thomas also dissented. Thomas conceded that "the majority’s decision in this case is a logical next step after Simmons." He believed, however, that the trial court’s instructions and the arguments of Shafer’s counsel sufficiently informed the jury of what life imprisonment meant for Shafer. Not only did the judge repeatedly tell the jurors that "life imprisonment means until the death of the defendant," but Shafer’s defense counsel told them that "the question is will the State execute him or will he just die in prison," and that "you can put him someplace until he is dead." These explanations left no room for speculation by the jury. Accordingly, Thomas could "only infer that the jury’s questions regarding parole referred not to Shafer’s parole eligibility in the event the jury sentenced Shafer to life, but rather to his parole eligibility in the event it did not sentence him at all." While the majority may well be able to develop a better jury instruction than that given by the trial court, "it is not this Court’s role to micromanage state sentencing proceedings or to develop model jury instructions."

Comment: There is evidently something about death penalty cases that makes otherwise rational prosecutors and trial judges commit obvious blunders. Granting Justice Scalia’s premise that Simmons was incorrectly decided, it was nevertheless the law at the time of Shafer’s trial. Simmons itself was a South Carolina case, and the trial court and prosecutor were unequivocally aware of it. Even a moment’s reflection on the logic behind Simmons should have convinced the court and the prosecutor not to fight Shafer’s requested instruction. The State through its evidentiary presentation strongly implied to the jury that future dangerousness was an issue. It then sought to prevent Shafer from telling the jurors the simple truth that if they sentenced him to life imprisonment he would not be eligible for parole and hence would pose no future danger to society at large. The prosecutor’s lust for the total victory of execution blinded him to the inevitability of reversal. The failure of the trial judge to exert some control is equally mystifying. To any seasoned litigator, the jury’s note was a clear signal of its continuing uncertainty regarding parole eligibility. The mind simply boggles at the trial court’s missed opportunity to correct its previous mistake. What a tremendous waste of prosecutorial and judicial resources.