Richard Bernard Moore v. Bryan P. Stirling

THE STATE OF SOUTH CAROLINA
In The Supreme Court

Richard Bernard Moore, Petitioner,

v.

Bryan P. Stirling, Commissioner, South Carolina
Department of Corrections, Respondent.

Appellate Case No. 2020-001519

PETITION FOR WRIT OF HABEAS CORPUS

Opinion No. 28088
Heard May 5, 2021 – Filed April 6, 2022

RELIEF DENIED

Lindsey Sterling Vann and Hannah L. Freeman, both of
Justice 360, of Columbia; Gerald Malloy, of Malloy Law
Firm, of Hartsville; John H. Blume, III, of Cornell Law
School, of Ithaca, NY; and Whitney Boykin Harrison, of
McGowan Hood & Felder, LLC, of Columbia; all for
Petitioner.

Attorney General Alan McCrory Wilson, Deputy Attorney
General Donald J. Zelenka, Senior Assistant Deputy
Attorney General Melody Jane Brown, and Senior
Assistant Attorney General W. Edgar Salter III, all of
Columbia, for Respondent.
 William Norman Nettles, of Law Office of Bill Nettles, of
Columbia, for Amicus Curiae NAACP Legal Defense and
Educational Fund, Inc.

CHIEF JUSTICE BEATTY: Richard Bernard Moore ("Moore") filed a
petition for a writ of habeas corpus challenging the proportionality of the death
sentence that was imposed for his murder conviction. The Court ordered briefing
and granted Moore's motion to argue against the precedent of State v. Copeland, 278
S.C. 572, 300 S.E.2d 63 (1982). In Copeland, the Court discussed the requirement
in S.C. Code Ann. § 16-3-25(C)(3) (2015) that this Court undertake a comparative
proportionality review of "similar cases" in death penalty matters. After review of
the record and applicable law and consideration of the parties' arguments, we clarify
Copeland and note the Court is not statutorily required to restrict its proportionality
review of "similar cases" to a comparison of only cases in which a sentence of death
was imposed. We conclude, however, that Moore has not established that he is
entitled to habeas relief.

I. FACTS

This case arises out of the armed robbery and shooting death of a convenience
store clerk, James Mahoney, at Nikki's Speedy Mart in Spartanburg County in the
early morning hours of September 16, 1999.

At Moore's trial in 2001, a witness who was a frequent customer at Nikki's
Speedy Mart testified that he saw Moore enter the store and walk over to a cooler
shortly after 3:00 a.m. The witness was seated at a gaming machine, playing video
poker. A few moments later, he heard Mahoney exclaim, "What the hell do you
think you are doing?" The witness swiveled his seat around and noticed Moore had
a gun and was holding both of Mahoney's hands with one hand. Moore told the
witness not to move and immediately shot at him. The witness was not struck, but
he dropped to the floor and played dead.

The witness then heard more gunshots before Moore fled the scene in a loud
pickup truck, taking a moneybag from behind the counter. The witness discovered
Moore had shot Mahoney in the chest, killing him. Mahoney had also suffered a
wound to his arm, which could have been caused by the same gunshot. A meat
cleaver of unknown origin was lying near the body.
 Moore was shot in his left arm during the incident. There was no evidence
that Moore entered the store with a gun. Rather, the forensic evidence established
Moore killed Mahoney with a gun that belonged to the store's owner. Witnesses
testified that Mahoney usually carried a gun on his person for protection when he
worked late at night, and the store's owner kept several guns on the premises, under
the counter.

The State asserted Moore's motive was to obtain money to purchase crack
cocaine. George Gibson testified Moore had tried to obtain crack cocaine from him
earlier in the evening, but he turned Moore down because he had no money. After
the shooting death of Mahoney, Moore went back to Gibson, informing him that he
had money but had done something bad and needed to turn himself in. Moore sought
drugs and assistance to get to the emergency room, as he was bleeding profusely
from his left arm, but Gibson declined Moore's requests. As Moore was backing out
of Gibson's yard to leave, he accidentally struck a telephone pole, which caught the
attention of a passing officer.

When the officer approached, Moore got out of his truck and laid down in the
road, stating, "I did it, I did it, I give up, I give up." On the front seat of Moore's
truck, the officer saw a blue moneybag belonging to Nikki's Speedy Mart that had
blood on it, as well as a pile of loose money that was covered in blood. The total
recovered was $1,408.00. A pocketknife was lying on the seat, under the money.

Moore did not testify at trial. The jury convicted Moore of murder, armed
robbery, possession of a firearm during the commission of a violent crime, and
assault with intent to kill. In the sentencing phase, the jury recommended the death
penalty after finding three of the aggravating circumstances set forth in S.C. Code
Ann. § 16-3-20(C)(a) (2015): Moore committed the murder during the commission
of a robbery while armed with a deadly weapon, he knowingly created a great risk
of death to more than one person in a public place by means of a weapon or device
that normally would be hazardous to the lives of more than one person, and he
committed the murder for the purpose of receiving money or a thing of monetary
value. The trial judge sentenced Moore to death.

On direct appeal, this Court affirmed Moore's convictions and death sentence.
State v. Moore, 357 S.C. 458, 593 S.E.2d 608 (2004). As part of the direct appeal,
this Court performed the comparative proportionality review required by S.C. Code
Ann. § 16-3-25(C)(3) (2015).
 Moore subsequently filed an application for post-conviction relief ("PCR"),
in which he raised numerous allegations of ineffective assistance of counsel. Moore
testified at his PCR hearing in 2011 and contradicted the evidence presented at trial.
He alleged Mahoney was the aggressor, that he took a gun away from Mahoney after
a struggle and fired "blindly" at him after seeking cover, and that he took the bag of
money only as an after-thought as he left the store.1 Moore further maintained that
he went to Gibson's home immediately after the shooting to get help for the injury
to his arm, not to obtain drugs. The PCR judge found Moore's claims of ineffective
assistance of counsel to be without merit and filed an order of dismissal on August
1, 2011. This Court denied Moore's petition for a writ of certiorari. The Supreme
Court of the United States also denied Moore's petition for review. Moore v. South
Carolina, 576 U.S. 1058 (2015).

Moore filed a federal habeas corpus petition in 2015. The United States
District Court for the District of South Carolina adopted the Magistrate's Report and
Recommendation and denied the petition. Moore v. Stirling, No. 4:14-04691-MGL,
2018 WL 1430959 (D.S.C. Mar. 21, 2018). The United States Court of Appeals for
the Fourth Circuit affirmed. Moore v. Stirling, 952 F.3d 174 (4th Cir. 2020). The
United States Supreme Court denied Moore's request for a writ of certiorari. Moore
v. Stirling, 141 S. Ct. 680 (2020).

Moore has now filed a habeas petition with this Court that alleges his death
sentence is disproportionate and challenges the Court's proportionality review
conducted at the time of his direct appeal. We ordered briefing and oral argument
on the following two questions:

(1) Was Petitioner's death sentence disproportionate to the
penalty imposed in similar cases?

1
Moore testified that he usually went to Nikki's Speedy Mart two or three times a
week, but had recently lost his job. Moore stated he was sure Mahoney recognized
him from their prior interactions. For example, Mahoney had helped him purchase
a lighter and filled it for him. Moore claimed that, on the night of Mahoney's death,
he was short of change and had asked Mahoney if he could use money from a
"change cup" on the counter, but Mahoney said "no" and the two had words. Moore
maintained Mahoney pulled out a gun when he refused to leave the store, and
Mahoney was shot when they struggled over the gun.
 (2) In determining the proportionality of the death
sentence, should similar cases in which the death penalty
was not imposed be considered?

II. DISCUSSION

This Court is statutorily required to undertake a comparative proportionality
review to determine if "the sentence of death is excessive or disproportionate to the
penalty imposed in similar cases, considering both the crime and the defendant."
S.C. Code Ann. § 16-3-25(C)(3) (2015) (emphasis added). Moore's contentions to
this Court focus on the meaning of "similar cases" as used in the statute. To provide
the full context, we note subsection 16-3-25(C) states in its entirety as follows:

(C) With regard to the sentence, the court shall determine:

(1) Whether the sentence of death was imposed
under the influence of passion, prejudice, or any
other arbitrary factor, and

(2) Whether the evidence supports the jury's or
judge's finding of a statutory aggravating
circumstance as enumerated in Section 16-3-20, and

(3) Whether the sentence of death is excessive or
disproportionate to the penalty imposed in similar
cases, considering both the crime and the defendant.

Id. § 16-3-25(C).

This Court performed a review of Moore's death sentence pursuant to
subsection 16-3-25(C) at the time of his direct appeal in 2004, at which time we
found Moore's death sentence was not the result of passion, prejudice, or any other
arbitrary factor, and the jury's finding of aggravating circumstances was supported
by the evidence. Moore, 357 S.C. at 465, 593 S.E.2d at 612. We further found the
death penalty was not excessive or disproportionate to the penalty imposed in similar
capital cases, referencing four cases relied upon for our comparison. Id. at 465–66,
593 S.E.2d at 612 (citing State v. Simpson, 325 S.C. 37, 479 S.E.2d 57, cert.
denied, 520 U.S. 1277 (1997); State v. George, 323 S.C. 496, 476 S.E.2d 903
(1996), cert. denied, 520 U.S. 1123 (1997); State v. Sims, 304 S.C. 409, 405 S.E.2d
377 (1991), cert. denied, 502 U.S. 1103 (1992); and State v. Patterson, 285 S.C. 5,
327 S.E.2d 650 (1984), cert. denied, 471 U.S. 1036 (1985)).

Moore contends his death sentence is disproportionate under any meaning of
the term "similar cases" and should, therefore, be vacated by this Court. We
previously interpreted "similar cases" in State v. Copeland, 278 S.C. 572, 300 S.E.2d
63 (1982). In Copeland, we observed that comparative proportionality review,
where it exists, has been left to state determination because the United States
Supreme Court has declined to impose any specific model of review upon the states.
Id. at 590, 300 S.E.2d at 74. As a result, we found subsection 16-3-25(C) "represents
an act of legislative grace by the [South Carolina] General Assembly which we are
required to interpret in accordance with sound rules of statutory construction." Id.
at 590–91, 300 S.E.2d at 74. We noted that, "[u]nder the statute, the task of defining
'similar cases' and with it the scope of any comparative analysis is plainly and
properly left to this Court." Id. at 587, 300 S.E.2d at 72.

We determined in Copeland that the Court should begin its comparison by
looking to other cases involving an actual conviction and sentence of death. Id. at
591, 300 S.E.2d at 74 ("In our view, the search for 'similar cases' can only begin with
an actual conviction and sentence of death rendered by a trier of fact in accordance
with § 16-3-20 of the Code. We consider such findings by the trial court to be a
threshold requirement for comparative study and indeed the only foundation of
'similarity' consonant with our role as an appellate court.").

Moore notes, however, that the current proportionality procedure was
previously called into question by this Court in State v. Dickerson, 395 S.C. 101,
716 S.E.2d 895 (2011). In Dickerson, the defendant asserted to the circuit court that
South Carolina's proportionality review was deficient because it failed to examine
cases where a sentence of death was not imposed. Id. at 125 n.8, 716 S.E.2d at 908
n.8. The defendant relied upon Justice Stevens's statement in Walker v. Georgia,
555 U.S. 979 (2008) (Stevens, J., statement respecting denial of certiorari), in which
Justice Stevens wrote that examining similar cases "assume[s] that the court would
consider whether there were 'similarly situated defendants' who had not been put to
the death because that inquiry is an essential part of any meaningful proportionality
review." Id. (alteration in original) (quoting Walker, 555 U.S. at 980). This Court
observed Justice Stevens had noted that this broader comparison "is 'judicious
because, quite obviously, a significant number of similar cases in which death was
not imposed might well provide the most relevant evidence of arbitrariness in the
sentence before the court.'" Id. (quoting Walker, 555 U.S. at 981). We recited the
following reasoning from Justice Stevens:

Had the Georgia Supreme Court looked outside the
universe of cases in which the jury imposed a death
sentence, it would have found numerous cases involving
offenses very similar to petitioner's in which the jury
imposed a sentence of life imprisonment. If the Georgia
Supreme Court had expanded its inquiry still further, it
would have discovered many similar cases in which the
State did not even seek death. Cases in both of these
categories are eminently relevant to the question of
whether a death sentence in a given case is proportionate
to the offense. The Georgia Supreme Court's failure to
acknowledge these or any other cases outside the limited
universe of cases in which the defendant was sentenced to
death creates an unacceptable risk that it will overlook a
sentence infected by impermissible considerations.

Id. (citations omitted in original) (quoting Walker, 555 U.S. at 982–83).

We ultimately concluded in Dickerson that any issue regarding the pool of
suitable cases for proportionality review was not then before us, but "we note[d] our
concern that restricting our statutorily-mandated proportionality review to only
similar cases where death was actually imposed is largely a self-fulfilling prophecy
as simply examining similar cases where the defendant was sentenced to death will
almost always lead to the conclusion that the death sentence under review is
proportional." Id.

Moore now contends to this Court that his sentence is disproportionate based
on current precedent regarding comparative proportionality review and based on an
extension of that precedent. Moore first argues that, under the existing precedent of
Copeland, in which a death sentence is compared to other cases resulting in a death
sentence, the proportionality review conducted at the time of his direct appeal in
2004 was insufficient due to the nature of the cases selected for comparison. In the
alternative, Moore contends this Court should expand its comparative
proportionality review to include a larger pool of cases, as a comparison to only
other cases in which the death penalty was imposed leads to an inherent bias towards
the imposition of the death penalty, as noted by Justice Stevens, see Walker, 555
U.S. at 982–83, and by this Court, see Dickerson, 395 S.C. at 125 n.8, 716 S.E.2d at
908 n.8. Moore asserts his death sentence is still disproportionate when compared
to any larger pool of cases, and he has submitted comparison cases for the Court's
consideration.

In response, the Commissioner of the South Carolina Department of
Corrections ("Commissioner") argues habeas corpus proceedings are limited to
constitutional issues and Moore's arguments concerning statutory comparative
proportionality review do not involve a constitutional claim, so his allegation is not
cognizable in a habeas proceeding. The Commissioner further asserts Moore
received a sufficient proportionality review at the time of his direct appeal and his
sentence is not disproportionate. Lastly, the Commissioner contends Copeland and
existing precedent properly restrict the pool of comparison cases to those in which a
sentence of death has been imposed.

We begin by examining the availability of habeas corpus relief in this state.
"Notwithstanding the exhaustion of appellate review, including all direct appeals
and PCR, habeas corpus relief remains available to prisoners in South Carolina."
Williams v. Ozmint, 380 S.C. 473, 477, 671 S.E.2d 600, 602 (2008) (citing S.C.
Const. art. I, § 18); see also Simpson v. State, 329 S.C. 43, 46 n.4, 495 S.E.2d 429,
431 n.4 (1998) (stating under our state constitution, this Court retains the ability to
entertain petitions seeking habeas relief in our original jurisdiction (citing S.C.
Const. art. V, § 5)).

We have repeatedly observed that a writ of habeas corpus is reserved for the
very gravest of constitutional violations, "which, in the setting, constitute[] a denial
of fundamental fairness shocking to the universal sense of justice." Butler v. State,
302 S.C. 466, 468, 397 S.E.2d 87, 88 (1990) (citation omitted); accord Ozmint, 380
S.C. at 477, 671 S.E.2d at 602; McWee v. State, 357 S.C. 403, 406, 593 S.E.2d 456,
457 (2004); Green v. Maynard, 349 S.C. 535, 538, 564 S.E.2d 83, 84 (2002). The
phrase "'in the setting' refers specifically to the totality of the facts and circumstances
in the defendant's case." Ozmint, 380 S.C. at 479 n.4, 671 S.E.2d at 603 n.4.

We have cautioned that not every constitutional error will justify issuance of
the writ. Butler, 302 S.C. at 468, 397 S.E.2d at 88. Rather, two components are
needed to meet the standard articulated in Butler and other cases. The petitioner
must prove (1) the existence of a constitutional violation; and (2) the denial of
fundamental fairness which, in the setting, is shocking to the universal sense of
justice. See Tucker v. Catoe, 346 S.C. 483, 494–95, 552 S.E.2d 712, 718 (2001)
(stating the finding of a constitutional violation "does not end our Butler inquiry, for
relief is appropriate only where the violation 'in the setting, constitutes a denial of
fundamental fairness shocking to the universal sense of justice'" (quoting Butler, 302
S.C. at 468, 397 S.E.2d at 88)).

A habeas petition must support the relief requested. Gibson v. State, 329 S.C.
37, 40, 495 S.E.2d 426, 427 (1998). While the allegations in the petition are treated
as true, the petition must set forth a prima facie case showing the petitioner is entitled
to relief. Id. In other words, it must allege that the petitioner has exhausted all other
remedies, and it must set out a constitutional claim that meets the standard delineated
in Butler. Id. at 40, 495 S.E.2d at 428. "Habeas relief is seldom used and acts as an
ultimate ensurer of fundamental constitutional rights." Ozmint, 380 S.C. at 477, 671
S.E.2d at 602. For these reasons, a defendant bears a much higher burden of proof
in a habeas proceeding. Id.

The issues Moore asserts concern the alleged insufficiency of the comparative
proportionality review conducted by this Court as part of his direct appeal. The
United States Supreme Court has held there is a difference between traditional
proportionality analysis and comparative proportionality review that is afforded by
statute. Pulley v. Harris, 465 U.S. 37, 43 (1984). In Pulley, the Supreme Court
explained, "Traditionally, 'proportionality' has been used with reference to an
abstract evaluation of the appropriateness of a sentence for a particular crime." Id.
at 42–43. It further noted, "Looking to the gravity of the offense and the severity of
the penalty, to sentences imposed for other crimes, and to sentencing practices in
other jurisdictions, this Court has occasionally struck down punishments as
inherently disproportionate, and therefore cruel and unusual, when imposed for a
particular crime or category of crime." Id. at 43.2

2
For example, the Supreme Court has determined that the Eighth Amendment's
prohibition on cruel and unusual punishment prevents the execution of minors and
persons with intellectual disabilities, persons whose role in a crime was minor, or
those who committed a non-homicide offense. See Roper v. Simmons, 543 U.S. 551
(2005) (minors); Atkins v. Virginia, 536 U.S. 304 (2002) (persons with intellectual
disabilities); Enmund v. Florida, 458 U.S. 782 (1982) (co-defendant had a minor
role and did not kill, attempt to kill, or contemplate that life would be taken); Coker
v. Georgia, 433 U.S. 584 (1977) (non-homicide). The Supreme Court has stated it
applies "the evolving standards of decency that mark the progress of a maturing
society" to determine which punishments are so disproportionate as to be cruel and
 In contrast, comparative proportionality review, which many states provide
by statute, "presumes that the death sentence is not disproportionate to the crime in
the traditional sense." Id. "It purports to inquire instead whether the penalty is
nonetheless unacceptable in a particular case because [it is] disproportionate to the
punishment imposed on others convicted of the same crime." Id. (emphasis added);
see also Bruce Gilbert, Comment, Comparative Proportionality Review: Will the
Ends, Will the Means, 18 Seattle U. L. Rev. 593, 623 n.189 (1995) (stating
"comparative proportionality review is a separate issue from anything that the jury
has been asked to decide, and should be treated as such by [an appellate court]").

In Pulley, the Supreme Court described comparative proportionality review
as "an additional safeguard against arbitrary or capricious sentencing" that arose in
many states in response to Furman v. Georgia, 408 U.S. 238 (1972). Pulley, 465
U.S. at 44–45. "In Furman, the Court concluded that capital punishment, as then
administered under statutes vesting unguided sentencing discretion in juries and trial
judges, had become unconstitutionally cruel and unusual punishment." Id. at 44.

The Supreme Court observed in Pulley that comparative proportionality
review is not a fixed constitutional requirement under the Eighth Amendment in
every capital case. Id. at 50–51 ("There is . . . no basis in our [Supreme Court] cases
for holding that comparative proportionality review by an appellate court is required
in every case in which the death penalty is imposed and the defendant requests it. . .
. We are not persuaded that the Eighth Amendment requires us to take that course.").

Since the Supreme Court has not defined its contours, states have varied in
their application of comparative proportionality review. See Copeland, 278 S.C. at
590, 300 S.E.2d at 74; see also Lawrence S. Lustberg & Lenora M. Lapidus, The
Importance of Saving the Universe: Keeping Proportionality Review Meaningful, 26
Seton Hall L. Rev. 1423, 1461 (1996) (observing "the exact role of proportionality
review varies from state to state in relation to the variations in the overall capital
sentencing scheme of the particular state"). Some states have even eliminated
comparative proportionality review after Pulley. See, e.g., Lawrence v. Florida, 308
So. 3d 544, 548–52 (Fla. 2020) (eliminating comparative proportionality review
from the state's scope of appellate review, noting it was not required by any state
statute, that the court was bound under the state constitution's conformity clause to
interpret the prohibition on cruel and unusual punishment in conformity with the

unusual in violation of the Eighth Amendment. Roper, 543 U.S. at 561 (citation
omitted).
Supreme Court's decisions on the subject, and "[t]he Supreme Court has held that
comparative proportionality review of death sentences is not required by the Eighth
Amendment" (citing Pulley, 465 U.S. at 50–51)).

However, the Supreme Court later clarified that Pulley does not stand for the
broad proposition that comparative proportionality review is never an essential
component of a constitutional death penalty scheme. See Walker, 555 U.S. at 983–
84 (commenting that, after the assertion in Pulley that the Eighth Amendment does
not require comparative proportionality review of every capital sentence, some
states, including Georgia, initially narrowed their scope of review, "[b]ut that
assertion was intended to convey our recognition of differences among the States'
capital schemes and the fact that we consider statutes as we find them []; it was not
meant to undermine our conclusion in Gregg [v. Georgia, 428 U.S. 153 (1976)]
and Zant [v. Stephens, 462 U.S. 862 (1983)] that such review is an important
component of the Georgia scheme").

In Gregg v. Georgia, referenced above, the Supreme Court concluded
Georgia's revised death penalty scheme (post-Furman) met constitutional standards.
The Supreme Court relied on several factors in giving its approval to the revision,
including the "important component" (per Walker, 555 U.S. at 984) of Georgia's
implementation of comparative proportionality review. As one legal commentator
has noted, all of the factors cited by the Supreme Court were essential to its
determination:

First, the Court [in Gregg] believed that the bifurcated
proceedings and enumerated aggravating circumstances
helped guide the jury, and hence, reduced the arbitrary
imposition of the death penalty. Second, comparative
proportionality review was deemed to provide a safeguard
against an "aberrant" jury. And finally, the statute
provided flexible and individualized procedures for
determining whether the death penalty was being imposed
in an arbitrary and capricious manner.

Gilbert, supra, at 599 (footnotes omitted).

Thus, when examined in detail, Pulley merely answered the question whether
comparative proportionality review was always a prerequisite to a constitutional
capital sentencing scheme under the Eighth Amendment. Id. While Pulley
concluded that no one review procedure was universally required because state
sentencing statutes and procedures varied throughout the country, the Supreme
Court nevertheless confirmed that all states must have "a means to promote the
evenhanded, rational, and consistent imposition of death sentences." Id. at 600
(quoting Pulley, 465 U.S. at 49). Thus, some form of meaningful appellate review
is likely still required to avoid the arbitrariness and inconsistencies deemed
unconstitutional in Furman. Id. Because the Supreme Court described the
implementation of comparative proportionality review as an "important component"
of its approval of Georgia's revised death penalty scheme, it is clear that this
procedure was essential to the statute passing constitutional muster in the absence of
another, comparable safeguard.

Moreover, while we have previously stated South Carolina's comparative
proportionality review under subsection 16-3-25(C)(3) "represents an act of
legislative grace by the General Assembly," Copeland, 278 S.C. at 590, 300 S.E.2d
at 74, this does not end our analysis in this regard. We, like the Supreme Court,
"consider statutes as we find them." Walker, 555 U.S. at 983. Our General
Assembly has specifically required comparative proportionality review as an
essential component of South Carolina's capital sentencing scheme to avoid the
arbitrariness discussed in Furman, Gregg, Pulley, and other cases. In fact, this Court
is statutorily required to provide a comparative proportionality review for a capital
case even in the absence of a direct appeal by the defendant. See S.C. Code Ann.
§ 16-3-25(F) (2015) ("The sentence review shall be in addition to direct appeal, if
taken, and the review and appeal shall be consolidated for consideration." (emphasis
added)); State v. Motts, 391 S.C. 635, 649, 707 S.E.2d 804, 811 (2011) (recognizing
a defendant can waive a direct appeal but "cannot waive this Court's statutorily-
imposed duty to review his capital sentence").

Having been statutorily directed to undertake comparative proportionality
review for all persons receiving a capital sentence, we hold an allegation concerning
the failure to adequately provide this mandated review for an individual defendant
to prevent the wrongful deprivation of life implicates that defendant's right to due
process and, therefore, presents a constitutional issue. See S.C. Const. art. I, § 3
(stating no "person [shall] be deprived of life, liberty, or property without due
process of law, nor shall any person be denied the equal protection of the laws"); see
also S.C. Ambulatory Surgery Ctr. Ass'n v. S.C. Workers' Comp. Comm'n, 389 S.C.
380, 392, 699 S.E.2d 146, 153 (2010) (observing an interest protected by due process
arises when there is a legitimate claim of entitlement that is created and defined by
independent sources and not just by a "unilateral expectation" (citation omitted)).
The discussion in Pulley as to the Eighth Amendment is not controlling of a
defendant's right to due process under our state constitution. As a result, we hold
Moore's petition alleging an inadequate comparative proportionality review of his
sentence presents a cognizable constitutional claim in the context of this state habeas
proceeding. See, e.g., Butler, 302 S.C. at 468, 397 S.E.2d at 88 (setting forth the
habeas framework, the first requirement of which is a constitutional claim).

Because Moore presents a cognizable claim, we turn now to the merits of his
contention that this Court's comparative proportionality review was inadequate.
Moore asserts the review was insufficient because, since the time of his direct appeal,
the death sentences in three of the four cases cited for comparison in the Court's
opinion were overturned. We find this point unavailing as none of the cases were
overturned for a reason that influenced any part of the Court's analysis under
subsection 16-3-25(C), including the proportionality review. The State's failure to
disclose exculpatory evidence during the sentencing phase in Simpson, the fact that
the defendant in George was categorically exempt from capital punishment due to
his mental status, and the failure to allow the defendant in Patterson to show
adaptability to prison are reasons or flaws in the trial procedure that do not alter the
underlying facts of the offenses committed and the existence of any aggravating
factors, nor do they alter our determination that Moore's capital sentence was not the
result of passion, prejudice, or any other arbitrary factors.

In addition, Moore opines that the cases relied on by the Court appear to have
been selected based solely on having a similar aggravating circumstance of armed
robbery. He asserts the circumstances of those cases are more severe than his own
and, therefore, do not support a finding of proportionality. In particular, Moore
contends the Court's factual recitation in its opinion on direct appeal does not even
mention the fact that he did not bring a gun into Nikki's Speedy Mart. He argues
this is a significant fact that fundamentally distinguishes his situation from the
comparison cases, which he states involved planned robberies.

We disagree with Moore's characterization, as his own offenses were similarly
egregious and appropriate for comparison with the selected cases. Whether Moore
entered the store with a weapon or whether he armed himself once inside is not
determinative of either his intent or the egregiousness of the offenses he ultimately
committed. The significant fact is that Moore became armed at some point during
the commission of the offenses. See generally State v. Keith, 283 S.C. 597, 598–99,
325 S.E.2d 325, 326 (1985) (holding a defendant is guilty of armed robbery if he
becomes armed with a deadly weapon at any point while the robbery is being
perpetrated and need not be armed at all times during the offense).

After hearing the evidence at trial, a jury found Moore intentionally shot and
killed the store employee during an armed robbery and he endangered the life of a
bystander for the obvious purpose of eliminating the only eyewitness to the murder.
The robbery in this case could have resulted in two deaths but for the astute actions
of the eyewitness, who "played dead" when Moore shot at him. The jury considered
all of the attendant facts in determining there were statutory aggravating
circumstances that qualified this as a capital case. Looking at the aggravating
circumstances present in other cases is an obvious point for comparison when
analyzing whether a defendant's capital sentence is the result of a jury's arbitrariness
or is disproportionate to the sentences of other offenders.

Moore alternatively argues this Court should expand the relevant pool of cases
to be reviewed beyond those in which a death sentence was imposed, as is currently
done in accordance with the precedent of Copeland. Moore contends this expansion
is necessary to adequately fulfill the statutory requirement of reviewing "similar
cases," and he asserts his death sentence is disproportionate based on an expanded
comparison of cases. We granted Moore's motion to argue against precedent, and
we agree that our comparative proportionality review statute should not be so
narrowly construed.

Determining the universe of cases to be considered is primarily a matter of
statutory interpretation, as indicated in Copeland. The General Assembly's statutory
directive requires the Court to determine "[w]hether the sentence of death is
excessive or disproportionate to the penalty imposed in similar cases, considering
both the crime and the defendant." S.C. Code Ann. § 16-3-25(C)(3). Because the
plain language of the statute directs the Court to compare the death sentence under
review "to the penalty imposed in similar cases," this clearly requires that the
comparison cases be matters that have resulted in a conviction and "penalty," i.e., a
sentence. See id. (emphasis added). This conclusion is also apparent from the
Supreme Court's observation in Pulley that comparative proportionality review
typically is intended to compare the particular sentence of one defendant "to the
punishment imposed on others convicted of the same crime." Pulley, 465 U.S. at 43
(emphasis added). Consequently, we decline to adopt Moore's proposal to expand
the pool of cases to incidents or charges that have not resulted in a conviction and
sentence.
 We agree with Moore, however, that the language of South Carolina's
proportionality statute does not expressly limit the pool of cases to only those in
which the death penalty was actually imposed. For convictions of murder, therefore,
a review can ostensibly encompass a comparison of death-eligible cases for which a
record is available for our review. This can include, for example, cases where a
defendant's conduct was eligible for a capital sentence, but the State elected to seek
only a life or lesser sentence, as well as cases where a jury considered but ultimately
declined to impose a death sentence. The comparison cases must have a record
because the General Assembly indicates in subsection 16-3-25(E) that this Court
must include references in its opinion to the cases considered and transmit the
records of those cases to the circuit court in the event resentencing is ordered. See
S.C. Code Ann. § 16-3-25(E) (2015) ("The court shall include in its decision a
reference to those similar cases which it took into consideration."); id. § 16-3-
25(E)(2) ("The records of those similar cases referred to by the Supreme Court of
South Carolina in its decision, and the extracts prepared as hereinafter provided for,
shall be provided to the resentencing judge for his consideration."). Accordingly,
we clarify Copeland and hold subsection 16-3-25(C)(3) does not limit the pool of
comparison cases to only those in which the defendant actually received a sentence
of death.

Life sentences traditionally were not included in the pool of comparison cases
in most states because, as a general rule, life sentences are not appealed, so there is
no appellate record. See generally Cynthia M. Bruce, Proportionality Review: Still
Inadequate, But Still Necessary, 14 Cap. Def. J. 265, 267 (2002) (noting life
sentences are rarely the subject of an appeal disputing the sentence imposed).3
However, cases resulting in life sentences are more often being included in the pool
of comparison cases in states that conduct comparative proportionality reviews. See
Lustberg & Lapidus, supra, at 1462 (stating "the vast majority of states that conduct
proportionality review use a broader universe" of comparison cases than just those
in which the death penalty was imposed). Because only the records of cases in which

3
The category of cases resulting in a life sentence can encompass a number of
potential cases in some jurisdictions. See Bruce, supra, at 269 (enumerating
"(1) bench trials resulting in life sentences; (2) guilty pleas resulting in a life sentence
not pursuant to a plea bargain on charge or sentence; (3) cases in which the judge
sentences to life over the jury's death verdict; (4) jury trials in which a life sentence
was imposed and not appealed; and (5) jury trials in which a life sentence was
imposed and later appealed on trial error").
there has been an appeal are readily accessible by this Court, if a defendant seeks the
Court's consideration of a case that has not resulted in an appeal, the defendant shall
submit to the Court an official record of the conviction and sentence, including a
trial transcript, for consideration in the Court's review.

In his submissions to this Court, Moore has highlighted additional cases as
part of an expanded pool of comparison cases for the Court's consideration. Due to
our clarification of Copeland, we have considered those cases that would have been
available at the time of Moore's direct appeal and comparative proportionality
review in 2004. We find, however, that the additional cases he now advances do not
alter our determination that his sentence is not disproportionate to the penalties given
in other similar cases.

Moore argues his capital sentence is disproportionate based, in large part, on
his contention that, unlike some cases he references, he did not enter the premises
with a gun and therefore had no intent to commit the robbery and murder of which
he stands convicted. As previously discussed, this premise is flawed because the
relevant fact is whether Moore became armed at some point during the commission
of the offenses, so his argument in this regard does not affect the outcome of our
proportionality analysis. Moreover, a jury considered the evidence at trial and found
Moore intentionally robbed and murdered the store employee and knowingly
endangered the life of another person. The jury specifically found the State had
proven, beyond a reasonable doubt, three of the aggravating circumstances set forth
in subsection 16-3-20(C)(a): Moore committed the murder during the commission
of a robbery while armed with a deadly weapon, he knowingly created a great risk
of death to more than one person in a public place by means of a weapon or device
that normally would be hazardous to the lives of more than one person, and he
committed the murder for the purpose of receiving money or a thing of monetary
value. See S.C. Code Ann. § 16-3-20(C)(a)(1)(e), -(a)(3), -(a)(4) (2015). Any one
of these aggravating circumstances qualified Moore for a capital sentence. See id. §
16-3-20(C) ("Unless at least one of the statutory aggravating circumstances
enumerated in this section is found, the death penalty must not be imposed.").

Moore also maintains his case is distinguishable from those in which a
defendant received a death sentence for a crime involving more than one murder
victim. A sizable number of the defendants receiving a capital sentence in this state
have engaged in crimes that involved only one murder victim. The murder of two
or more persons is just one aggravating circumstance out of a dozen that statutorily
qualifies a defendant for a capital sentence, see id. § 16-3-20(C)(a)(9), and the fact
that Moore did not kill more than one person does not negate the presence of the
three other aggravating circumstances found by the jury. Further, the jury obviously
considered the fact that Moore attempted to eliminate the only eyewitness to the
armed robbery and murder of the store clerk, who narrowly avoided being a second
victim. Accordingly, we are not persuaded that the lack of a second murder victim
renders Moore's capital sentence disproportionate.

Lastly, Moore contends his sentence is disproportionate when compared to
similar armed robbery cases that did not ultimately result in a death sentence. Moore
notes that in some cases, the solicitor did not seek a death sentence. In addition,
Moore generally asserts there have been cases in which a life sentence was given by
a jury, or which resulted in a life sentence because the defendant was allowed to
plead guilty in exchange for a life sentence after an appeal or was resentenced in
cases in which a death sentence was overturned. He argues his case is qualitatively
less egregious and that his situation is unique compared to any other defendant
because there was no evidence that he planned to commit a robbery or murder the
day he went to Nikki's Speedy Mart, and he reiterates that there was no evidence that
he carried a gun with him into the store.

We recognize that the severity and brutality of crimes may vary, and Moore
questions why a jury did not impose a life sentence in his case. Moore argues others
have done far "worse," and the death penalty should be reserved for only the most
"atrocious" cases. As written, South Carolina's capital sentencing scheme designates
the aggravating circumstances that qualify a defendant for a capital sentence. The
selection of those circumstances is a decision that is solely within the purview of the
General Assembly, which enacted South Carolina's statutory capital sentencing
scheme. Whether that statutory threshold has been met is a determination for the
jury, which must then decide whether to recommend a death sentence or a life
sentence. Likewise, this Court has no control over the actions of a solicitor in
electing to pursue the highest penalty in a case that statutorily qualifies for a capital
sentence.

Whether this Court would impose a death sentence under the same
circumstances is not within the permitted scope of this Court's appellate review.
Rather, the Court's task in comparative proportionality review aims to ensure that a
jury's decision was not the result of arbitrariness. In comparative cases where a
defendant's death sentence was overturned on appeal, if the sentence was vitiated
due to factors that did not relate to the underlying facts and circumstances of the
case, it does not present a sufficient justification for finding Moore's sentence is
disproportionate. See, e.g., Roper v. Simmons, 543 U.S. 551 (2005) (finding minors
categorically may not be sentenced to death for murder). To the extent Moore urges
the Court to find his sentence disproportionate because he did not bring a weapon to
the scene and had no intent to commit the offenses for which he was convicted, we
hold, as we must, that this assertion does not negate the jury's findings as to his
intent, and a jury has found against him in that regard. This Court's scope of review
does not allow it to disregard the factual findings in the case and pronounce an
alternative sentence in these circumstances. For all the foregoing reasons, we hold
Moore has not established that his capital sentence is disproportionate.

III. CONCLUSION

We conclude Moore has not established grounds for awarding habeas relief.
However, as a point of law, we clarify our holding in Copeland and hold this Court
is not statutorily required to limit the pool of "similar cases" for comparative
proportionality review to only those cases in which the death penalty was imposed.

HABEAS RELIEF DENIED.

FEW and JAMES, JJ., concur. KITTREDGE, J., concurring in result
only. HEARN, J., concurring in part and dissenting in part in a separate
opinion.
JUSTICE HEARN: This Court has never found a single death sentence
disproportionate dating back to 1977, the first time comparative proportionality
review was required by the General Assembly. This includes the forty-three
individuals who have been executed by the State of South Carolina during this
modern era of capital punishment, and all of the thirty-five inmates currently housed
on death row who have exhausted their direct appeal. The State characterizes these
statistics—currently, approximately zero for seventy-seven4—as proof that our
capital sentencing scheme functions as it should. I write separately to express my
view that our system is broken and to disagree with that part of the majority opinion
which finds Petitioner Richard Moore's sentence proportionate to his crime.

Moore was duly convicted under the laws of our state for the murder of James
Mahoney during the commission of an armed robbery, assault with intent to kill, and
possession of a firearm during the commission of a violent crime. My disagreement
with the majority has nothing to do with the reliability of Moore's convictions.
Unquestionably, Moore is guilty.5 But that is not the end of the inquiry; rather, it is
only the beginning, as a death sentence demands the highest protections afforded by
law due to its obvious severity and finality. See Lockett v. Ohio, 438 U.S. 586, 605
(1978) (noting "that the imposition of death by public authority is so profoundly
different from all other penalties . . . ."); Gregg v. Georgia, 428 U.S. 153, 187 (1976)
("When a defendant's life is at stake, the Court has been particularly sensitive to
insure that every safeguard is observed."). While this Court affirmed his conviction
and sentence on direct appeal—and other courts have done the same throughout
Moore's more than twenty years navigating through our criminal justice system—
that also is not dispositive. I wholeheartedly agree with the majority that Moore
presents a constitutional claim opening the door to habeas review. Yet, I find the
majority's conclusion that Moore's sentence is not disproportionate when compared
to similar cases utterly unpersuasive. Consequently, Richard Moore will be put to
death for a sentence that I do not believe is legal under our law. Nothing could be
more "shocking to the universal sense of justice," Butler v. State, 302 S.C. 466, 468,
397 S.E.2d 87, 88 (1990), and thus, habeas relief is warranted.

4
In particular, the direct appeal for Timothy Ray Jones is currently ongoing, thus
precluding his case from this number.
5
Indeed, Moore's counsel candidly acknowledged Moore's guilt during oral
argument.
 I begin by reiterating that I agree with the majority's conclusion that Moore
presents a cognizable claim for habeas review. As the majority thoroughly discusses,
notwithstanding the statutory origins of comparative proportionality review, the
result of the State executing a person whose death sentence is disproportionate
undoubtedly raises serious due process concerns and would be arbitrary. While the
form of our review is not constitutionally mandated, its substance reaches to the core
of the constitutional enshrinement against the infliction of arbitrary capital
punishment. See State v. Graham, 172 N.E.3d 841, 890 (Ohio 2020) (Donnelly, J.,
concurring) ("[T]he form [of proportionality review] is not constitutionally required,
but the substance is. And in Ohio we have it backwards: we have the form but lack
the substance."). Whether by virtue of the Eighth Amendment's ban on cruel and
unusual punishment or the Fourteenth Amendment's protections of substantive due
process, the underlying interests at stake invoke more than merely an issue of state
law. There can be no debate that a death sentence that is arbitrary and capricious is
unconstitutional.6 See Godfrey v. Georgia, 446 U.S. 420, 428 (1980) ("[I]f a State
wishes to authorize capital punishment it has a constitutional responsibility to tailor
and apply its law in a manner that avoids the arbitrary and capricious infliction of
the death penalty.").

I also agree that our review of the "pool of similar cases" must not be as
narrowly construed as the standard enunciated in Copeland. Accordingly, I join the
majority's decision to revisit Copeland and overrule it to the extent it requires only
a comparison of cases resulting in death. However, I respectfully part company with
the conclusion that Moore's sentence is not disproportionate to the penalty imposed
in similar cases.

Turning to the framework established by the General Assembly, this Court,

6
We have implicitly elevated our statutorily required review of death sentences
above even certain constitutional rights, as an individual cannot waive our duty to
review his death sentence under section 16-3-25(C) but can waive his direct appeal.
State v. Motts, 391 S.C. 635, 649, 707 S.E.2d 804, 811 (2011) ("Although Motts is
entitled to waive his personal right to a direct appeal, we hold that he cannot waive
this Court's statutorily-imposed duty to review his capital sentence."). Adopting the
State's position that this matter does not qualify for habeas relief would lead to the
perplexing result that habeas is not available in a challenge to this mandatory review
yet constitutional errors that otherwise may qualify for relief are waivable.
 [S]hall determine:

(1) Whether the sentence of death was imposed under the
influence of passion, prejudice, or any other arbitrary factor, and

(2) Whether the evidence supports the jury's or judge's finding of
a statutory aggravating circumstance as enumerated in Section
16-3-20, and

(3) Whether the sentence of death is excessive or
disproportionate to the penalty imposed in similar cases,
considering both the crime and the defendant.

S.C. Code Ann. § 16-3-25(C) (2015). Immediately apparent from the text is that our
review involves more than determining whether the jury reached its decision
arbitrarily or whether evidence supports the jury's conclusion as to the existence of
aggravating circumstances. Admittedly, those two considerations are set forth in
subsections (C)(1) and (C)(2), but the General Assembly goes further in (C)(3) by
requiring the Court review each death sentence to ensure it is not excessive or
disproportionate. Significantly, Moore does not argue the Court erred in its direct
appeal determination pertaining to subsections (C)(1) and (2), counsel for Moore
specifically disclaimed any challenge to the facts supporting the jury's verdict during
oral argument, and his entire dispute concerns only this Court's legal requirement to
engage in comparative proportionality review under subsection (C)(3). This is
because the Court's order directing briefing and setting oral argument focused on
two questions, both of which turned solely on section 16-3-25(C)(3). Accordingly,
we are not limited to analyzing whether evidence supports the jury's decision
because statutorily, our role is much broader.

Following this framework, I would find Moore's death sentence invalid
because it is disproportionate. There is no dispute that when Moore entered Niki's
convenience store during the early morning hours of September 16, 1999, he did so
unarmed. Of course, the majority is correct that an armed robbery occurs the moment
a defendant arms himself during the commission of a robbery. Thus, I have no
quarrel with the majority's conclusion that the record clearly demonstrates Moore
committed armed robbery, meaning there was sufficient proof of the presence of an
aggravating factor to qualify him for the death penalty. See S.C. Code Ann. § 16-3-
25(C)(2). While I do not discount that our comparative proportionality review would
include reviewing cases with similar aggravating circumstances—an "obvious point
for comparison" as the majority notes—it cannot represent both the beginning and
end of our inquiry because the General Assembly has specifically accounted for that
in the preceding subsection. Accordingly, our analysis must be more meaningful,
and cannot simply default to determining whether evidence supported the jury's
verdict. Stated differently, by discounting Moore's unarmed status upon entering the
store, we risk conflating our independent proportionality review with the more
traditional appellate role of determining whether any evidence supports the jury's
conclusion that certain aggravating circumstances exist.

Consequently, I believe the majority errs in repeatedly rejecting the
significance of Moore's unarmed status upon entering the store. For example, the
majority states this fact is "not determinative," that it represents a "flawed premise,"
and that it "does not negate the jury's findings as to his intent, and a jury has found
against him in that regard." In isolation, I agree with the truth of those statements.
However, I fail to see how they impact the discrete issue before the Court. By
focusing on the jury's decision rather than on whether this death sentence is
excessive or disproportionate compared to other similar cases, the majority
substantially undermines this Court's responsibility under section 16-3-25(C)(3).
Only this Court—not a jury—can determine whether a sentence is disproportionate.
With all due respect for the jury's verdict here, it should not be our main focus at this
latent stage of the proceedings.

Our comparative proportionality review under section 16-3-25(C)(3) does not
turn on whether there is evidence of an armed robbery. That consideration is part of
the preceding subsection, which does take into account the jury's decision. By
improperly focusing on whether the crime committed by Moore meets the legal
definition of armed robbery, the majority completely loses sight of the vast
difference between a "robbery gone bad" and a planned and premeditated murder.
In fact, numerous other state appellate courts have found this distinction significant,
if not dispositive in their comparative proportionality review. For example, the
Florida Supreme Court determined a death sentence was disproportionate where
multiple individuals planned a robbery of a coin laundry, armed themselves
beforehand, pistol-whipped a witness once inside the store, and fired one fatal shot
at the owner after being informed he had no money. In undergoing its proportionality
review, the court noted it must "discretely analyze the nature and weight of the
underlying facts; we do not engage in a 'mere tabulation' of the aggravating and
mitigating factors." Scott v. State, 66 So. 3d 923, 935 (Fla. 2011) (quoting Terry v.
State, 668 So. 2d 954, 965 (Fla. 1996)).7 In doing so, the court commented,

Although not precisely like the "robbery gone bad" cases where we
have reduced the sentence of death to life, see, e.g., Jones v. State, 963
So. 2d 180, 188–89 (Fla. 2007); Terry, 668 So. 2d at 965–66, there is
no evidence in this case that Scott planned to shoot any of the
individuals inside the coin laundry prior to doing so, and therefore this
murder could be viewed as a reactive action in response to the victim's
resistance to the robbery.

Id. at 937.

In a case closer to a true "robbery gone bad," the Florida Supreme Court
concluded a death sentence was disproportionate where an individual walked into a
convenience store armed, pocketed the weapon upon nearing the cashier, took
money from the register, and began to walk towards the front door. However, after
the clerk made a sudden movement, the robber pulled his weapon and fired two
shots, killing the clerk. The court reversed the death sentence, noting "[t]here was
no indication that murdering [the clerk] was part of Yacob's original robbery plan."
Yacob v. State, 136 So. 3d 539, 550 (Fla. 2014), abrogated by Lawrence v. State,
308 So. 3d 544 (Fla. 2020). In an inexplicable contrast to South Carolina, Florida
has reversed a death sentence based on comparative proportionality review at least
a dozen times. See Johnson v. State, 720 So. 2d 232, 238 (Fla. 1998) (vacating a
death sentence where the defendant murdered a victim during a burglary); Terry v.
State, 668 So. 2d 954, 965 (Fla. 1996) (vacating the death sentence despite little
mitigation and because evidence suggested it was a "robbery gone bad" case);
Thompson v. State, 647 So. 2d 824, 827 (Fla. 1994) (finding a death sentence
disproportionate where the defendant entered a Subway store, spoke to the clerk,

7
Against a vigorous dissent, the Florida Supreme Court recently abandoned
comparative proportionality review because a majority determined that since its
responsibility to ensure that a sentence is not disproportionate stemmed from case
law—as opposed to a creature of statute like ours—it was bound to follow the United
States Supreme Court's jurisprudence that did not require this type of review.
Lawrence v. State, 308 So. 3d 544 (Fla. 2020). Regardless, prior Florida cases
analyzing comparative proportionality review are still persuasive as they
demonstrate the distinction between cold and calculated murders versus "reactive"
ones that ordinarily result in a life sentence.
fired one fatal shot, stole $108, and fled the scene); Sinclair v. State, 657 So. 2d
1138, 1143 (Fla. 1995) (vacating death sentence where the defendant entered a taxi
cab with a weapon and murdered the driver rather than pay the cab fare); Clark v.
State, 609 So. 2d 513, 515 (Fla. 1992) (vacating a death sentence where the
defendant fatally shot an individual and took the victim's money and boots
afterwards, which the court characterized as "incidental to the killing, not a primary
motive for it"); McKinney v. State, 579 So. 2d 80 (Fla. 1991); Lloyd v. State, 524 So.
2d 396 (Fla. 1988); Proffitt v. State, 510 So. 2d 896 (Fla. 1987); Caruthers v.
State, 465 So. 2d 496 (Fla. 1985); Rembert v. State, 445 So. 2d 337 (Fla. 1984).
While there are certainly differences between these cases, all of them are more
egregious than Moore's in one important respect: every perpetrator began the
robbery or burglary armed at the inception—unlike Moore—yet still their death
sentences were determined to be disproportionate. In my view, entering a
convenience store unarmed falls well short of engaging in a cold, calculated, and
premeditated murder. While tragic and heinous to the victim and his family, Moore's
crime does not represent the "worst of the worst" in terms of those murders reserved
for the death penalty. Glossip v. Gross, 576 U.S. 863, 920–21 (2015) (Breyer, J.,
dissenting) ("Every murder is tragic, but unless we return to the
mandatory death penalty struck down in Woodson . . . the constitutionality of capital
punishment rests on its limited application to the worst of the worst . . . ."); Roper v.
Simmons, 543 U.S. 551, 568 (2005) ("Capital punishment must be limited to those
offenders who commit 'a narrow category of the most serious crimes' and whose
extreme culpability makes them 'the most deserving of execution.'") (quoting Atkins
v. Virginia, 536 U.S. 304, 319 (2002))).

Florida is not alone in vacating multiple death sentences through its
comparative proportionality review. Unlike the path taken by this Court over the
years, the North Carolina Supreme Court has found at least eight death sentences
disproportionate during the modern era.8 See State v. Roache, 595 S.E.2d 381, 435

8
A recent study by a professor at Appalachian State University noted that upwards
of 23.5% of death sentences in North Carolina could be considered disproportionate.
See Matthew Robinson, The Death Penalty in North Carolina, 2021, APP. STATE
UNIV. (June 2021), https://gjs.appstate.edu/sites/
default/files/asu_profile_files/nc_death_penalty_2021_by_dr_matthew_robinson_f
inal.pdf. While many people, including judges, may disagree over whether a
sentence is proportionate, thus rendering it nearly impossible to settle on a specific
(N.C. 2004) (listing the eight cases where a death sentence was determined to be
disproportionate); see also State v. Benson, 372 S.E.2d 517, 523 (N.C. 1988)
(vacating a death sentence after noting the vast majority of robbery-murders end
with life sentences and of those that end with death sentences, the vast majority
involve multiple victims), abrogated on other grounds by State v. Hooper, 591
S.E.2d 514 (N.C. 2004). Moreover, state supreme courts in Georgia, Louisiana,
Mississippi, Missouri, New Mexico, Tennessee, and Utah have all vacated at least
one death sentence pursuant to comparative proportionality review.9

In the nearly thirteen years I have served on this Court, I have voted to affirm
eleven death sentences on direct appeal and have never dissented. Starting with those
cases that involved armed robbery, it is readily apparent this case is an outlier. For
example, in State v. Starnes, 388 S.C. 590, 594, 698 S.E.2d 604, 606 (2010), the
defendant fatally shot two of his friends, removed items from their pockets,
transported their bodies in the trunk of his car to another location, and later kicked
and urinated on their corpses. Id. at 594, 698 S.E.2d at 606-07. In finding the death
sentence proportional, the Court cited two armed robbery cases resulting in multiple
murders, and a single murder armed robbery case committed in the course of
kidnapping and burglary. Id. at 603, 698 S.E.2d at 611. In State v. Torres, 390 S.C.
618, 621-22, 703 S.E.2d 226, 227-28 (2010), police conducted a welfare check after
discovering a single vehicle accident involving a van. Once law enforcement arrived
at the house of the van's owner, they discovered a husband and wife murdered. The

percentage of cases, the fact that this Court has never found a single case
disproportionate when many other courts have is stunning.
9
See Ward v. State, 236 S.E.2d 365, 368 (Ga. 1977); State v. Holliday, __ So. 3d __,
2020 WL 500475 (La. 2020) (noting only one time has a death sentence been vacated
as disproportionate in Louisiana); Coleman v. State, 378 So. 2d 640, 650 (Miss.
1979); State v. McIlvoy, 629 S.W.2d 333, 342 (Mo. 1982) (vacating a death sentence
as disproportionate notwithstanding the fact that the jury's decision was not the result
of passion, prejudice, or any other arbitrary factor, and evidence supported the
aggravating factors charged to the jury); Fry v. Lopez, 447 P.3d 1086, 1111 (N.M.
2019); State v. Godsey, 60 S.W.3d 759, 793 (Tenn. 2001) (invalidating a death
sentence based on disproportionality where "the circumstances . . . are substantially
less egregious, overall, than the circumstances of similar cases in which a sentence
less than death has been imposed"); State v. Gardner, 789 P.2d 273, 279 (Utah
1989).
jury found the defendant guilty of two counts of armed robbery; two counts of
murder; one count of burglary of a dwelling, first degree; one count of attempt to
burn; and one count of criminal sexual conduct, first degree, resulting in a sentence
of death. See also State v. Justus, 392 S.C. 416, 417, 709 S.E.2d 668, 669 (2011)
(upholding a death sentence as proportional where the defendant, who was serving
two life sentences for murdering two convenience store clerks during separate armed
robberies, stabbed another inmate eleven times, including a fatal wound to the heart);
State v. Stanko, 402 S.C. 252, 288, 741 S.E.2d 708, 727 (2013) (affirming appellant's
murder and armed robbery convictions and death sentence), overruled on other
grounds by State v. Burdette, 427 S.C. 490, 832 S.E.2d 575 (2019).

In State v. Bryant, 390 S.C. 638, 639, 704 S.E.2d 344, 344 (2011), one need
look no further than the opening paragraph of the facts section to realize the death
penalty was justified, as Justice Pleicones noted:

Appellant began a crime spree with a first degree burglary on October
5, 2004. By the time the spree ended eight days later, appellant had
committed three murders, assault and battery with intent to kill (ABIK),
two more burglaries, and arson. While incarcerated awaiting trial,
appellant threatened a correctional officer and subsequently attacked
and seriously injured another.

Id. The three murders were particularly heinous. Bryant killed his first victim,
leaving him on a rural road. Id. at 640, 704 S.E.2d at 345. After stealing from the
victim's trailer, Bryant set it on fire. Id. A couple days later, Bryant killed his second
victim, shooting him nine times and looting his house. Id. Bryant even answered
several calls from the victim's wife and daughter, informing both of them he had
killed their loved one. Id. Bryant burned that victim with a cigarette butt and left two
notes indicating he planned to kill again. Id. Two days later, Bryant shot and killed
his third victim, who was discovered by a hunter along a rural road. Id.

Coincidently, the first capital case reviewed under our modern statutory
scheme involved the aggravating circumstance of armed robbery, but the facts paint
a significantly more gruesome picture. State v. Shaw, 273 S.C. 194, 197, 255 S.E.2d
799, 800 (1979), overruled on other grounds by State v. Torrence, 305 S.C. 45, 406
S.E.2d 315 (1991). There, the defendant, joined by two friends, spent an afternoon
consuming drugs and alcohol before deciding "to see if we could find a girl to rape."
Id. at 197, 255 S.E.2d at 801 (quoting one of the perpetrators). After locating a
teenage couple in a car, the three friends stole the male's wallet, shot and killed him,
and ordered the female into their vehicle. Id. at 197-98, 255 S.E.2d at 801. The group
drove to another location, raped the victim at least four times, and shot and killed
her. Id. at 198, 255 S.E.2d at 801. They returned to where they shot the male to verify
that he was dead, and the defendant later went back to where he killed the female
victim and subsequently mutilated her body. Id.

And today, I voted to affirm the death sentence of Jerome Jenkins, who
brutally murdered a store clerk during an armed robbery. State v. Jenkins, Op. No.
28089 (S.C. Sup. Ct. filed April 6, 2022) (Howard Adv. Sh. No. 12 at 46, 71). Unlike
Moore, Jenkins and two others collectively scouted a convenience store,
subsequently entered it wearing masks, and armed themselves with pistols before
Jenkins shot and killed the clerk. Id. at 48. During sentencing, the State introduced
evidence that three weeks after the armed robbery, Jenkins carried out two more
robberies within hours of each other using the same modus operandi, which left
another clerk dead. Id. at 47,48.

Other cases before the Court during my tenure are also more appreciably
heinous. See State v. Dickerson, 395 S.C. 101, 108, 716 S.E.2d 895, 899 (2011)
(affirming a death sentence where the defendant tortured his former friend to death
for a period of eighteen to twenty-four hours, including "choking, being tied up and
placed in a closet, being sodomized with a gun and a broomstick, having his scrotum
burned, being hit with a heavy vase and a mirror, and generalized beating and
cutting," all resulting in over 200 wounds to his body); State v. Inman, 395 S.C. 539,
544, 720 S.E.2d 31, 34 (2011) (finding a death sentence proportional where the
defendant pled guilty to murder, first-degree burglary, first-degree criminal sexual
conduct, and kidnapping of a Clemson University student who he strangled with a
bathing suit); State v. Motts, 391 S.C. 635, 640, 707 S.E.2d 804, 806 (2011) (holding
a death sentence was proportionate where the defendant, who was serving a life
sentence for the murders of his great-aunt and great-uncle committed during an
armed robbery, murdered his cell mate); State v. Blackwell, 420 S.C. 127, 134-35,
801 S.E.2d 713, 716-17 (2017) (upholding a death sentence as proportional where
the defendant kidnapped and killed the daughter of his ex-wife's boyfriend); State v.
Cottrell, 421 S.C. 622, 646, 809 S.E.2d 423, 436 (2017) (finding a death sentence
proportional where the defendant murdered a police officer). Admittedly, these cases
are outside the context of an armed robbery, but they involve truly gruesome crimes
warranting capital punishment.
 Moreover, on Moore's direct appeal, the cases this Court relied on are
significantly more egregious than the facts here.10 Unlike Moore, all of the
defendants were armed at the inception and committed planned, premediated armed
robberies that resulted in the death of at least one individual. While there have been
individuals executed based on killing a single victim during the commission of an
armed robbery, that alone is not dispositive. Even accepting the premise that such a
case qualifies for capital punishment—which I do—I have not found any other case
involving a defendant receiving the death penalty where he entered the place of
business unarmed. Indeed, the State specifically conceded at oral argument that it
could not cite to any case in our state with this distinguishing fact. This striking
concession, which I believe supports my position that Moore's death sentence is
disproportionate, is ignored by the majority and in my view, seriously undermines
the suggestion that Moore's sentence is sufficiently similar to other cases to warrant
capital punishment. See generally Godfrey, 446 U.S. at 433 ("There is no principled
way to distinguish this case, in which the death penalty was imposed, from the many
cases in which it was not.").

Respectfully, the majority's decision to dwell on the fact that Moore's crime
meets the legal definition of armed robbery and that evidence supports the jury's
findings of aggravating circumstances, while ignoring the State's stunning admission
and the precedent elsewhere, is wrong. In my view, the majority's analysis belongs
in Moore's direct appeal, not in this petition for habeas directed at proportionality
review. In concluding that evidence supported the jury's determination that an armed
robbery had occurred and the presence of aggravating circumstances, we shirk our
statutory responsibility to conduct an in-depth comparative proportionality review
and serially affirming death sentences becomes a self-fulfilling prophecy. See

10
I do not believe this Court's finding on direct appeal is automatically dispositive
in this habeas proceeding, as fundamental tenets of justice must transcend principles
of finality when capital punishment is involved. See Sanders v. United States, 373
U.S. 1, 8 (1963) ("Conventional notions of finality of litigation have no place where
life or liberty is at stake and infringement of constitutional rights is alleged . . . . The
inapplicability of res judicata to habeas, then, is inherent in the very role and function
of the writ."); Clark v. Tansy, 882 P.2d 527, 532 (N.M. 1994) ("We hold that when
a habeas petitioner can show that there has been an intervening change of law or
fact, or that the ends of justice would otherwise be served, principles of finality do
not bar relitigation of an issue adversely decided on direct appeal.").
Dickerson, 395 S.C. at 125 n.8, 716 S.E.2d at 908 n.8 (noting the "self-fulfilling
prophecy" that comparative proportionality review has the risk to become);
Thomason v. State, 486 S.E.2d 861, 874 (Ga. 1997) (Benham, J., concurring in part
and dissenting in part) ("Exacerbating the risk of a faulty proportionality analysis is
the doctrine of stare decisis: if we lower the standard in a single case, that case
becomes precedent for easier and easier imposition of the most extreme punishment
available in criminal jurisprudence.").

My focus on the majority's recitation of the jury's findings in no way should
be read as disparaging the verdict of the jury. I fully acknowledge the jury's role in
our judicial system is sacrosanct. Nevertheless, our responsibility, as established by
the General Assembly, is to review the death sentence to ensure it is not "excessive
or disproportionate to the penalty imposed in similar cases . . . ." S.C. Code Ann. §
16-3-25(C)(3). I believe this requires us to do more than simply recite the evidence
supporting the jury's sentence. Indeed, the Supreme Court of Tennessee has
characterized comparative proportionality review as "whether this case, taken as a
whole, is plainly lacking in circumstances consistent with those in cases where the
death penalty has been imposed," and specifically rejected the state's contention that
it is designed to determine "whether, viewing the entire record, the decision of the
jury was based in reason as opposed to whim or prejudice." State v. Godsey, 60
S.W.3d 759, 787 (Tenn. 2001). Stated differently, the court noted "that reviewing
the record in each case in isolation, as the State suggests, is not the appropriate
analysis when conducting comparative proportionality review." Id. (emphasis in
original).

This case also highlights the unsettling constitutional waters which surround
the death penalty. The majority appropriately identifies the General Assembly's role
in setting forth the list of aggravating circumstances that qualify an individual for
capital punishment, and the solicitor's role in electing to pursue the death penalty in
an eligible case. Where I part company with the majority is in its view that the Court
has no role in those two arenas. While on the surface that is correct, it is equally true
that in order for a punishment to pass constitutional muster, it must not be imposed
arbitrarily. Accordingly, I believe this Court has a responsibility to illuminate how
our capital punishment scheme is actually functioning in practice.11 Unfortunately,

11
Indeed, at oral argument, one Justice noted the various factors at play in whether
a solicitor pursues the death penalty, including the resources available, the historical
likelihood of obtaining a death sentence from the jury, the number of other crimes
but not surprisingly, Moore's case highlights many of the pitfalls endemic to the
death penalty, beginning with the role race plays.

Moore's death sentence is a relic of a bygone era, where he was convicted by
a jury comprised of eleven Caucasians and one Hispanic. No African Americans
served on the jury, despite several being included in the jury pool. Alarming statistics
also surface when reviewing the race of the victim. From 1985 to 2001, there were
twenty-one cases in Spartanburg County where a death notice was filed, and in all
but one the victim was white.12 As Moore highlights in his petition for habeas relief,
during the first eight years of that timeframe, the solicitor's office sought the death
penalty in 43% of death eligible cases involving a white victim but not once in a case
with a black victim. See Simpson v. Moore, No. 98-CP-42-1911, PCR Tr. (Dec. 10,

that requires prosecuting, the county where the crime occurred, and other similar
considerations. Significantly, one state supreme court recently declared its capital
punishment scheme unconstitutional precisely due in part to these same variables,
as well as race, which lead to an unconstitutionally acceptable rate of arbitrariness.
See State v. Gregory, 427 P.3d 621, 627 (Wash. 2018) ("[T]he use of the death
penalty is unequally applied—sometimes by where the crime took place, or the
county of residence, or the available budgetary resources at any given point in time,
or the race of the defendant."). Moreover, at least one member on the United States
Supreme Court believes these variables seriously undermine the constitutionality of
capital punishment. See Glossip, 576 U.S. at 918 (Breyer, J., dissenting) ("Such
studies indicate that the factors that most clearly ought to affect application of
the death penalty—namely, comparative egregiousness of the crime—often do not.
Other studies show that circumstances that ought not to affect application of
the death penalty, such as race, gender, or geography, often do.") (emphasis in
original).
12
Shockingly, in the one capital case involving black victims, the solicitor admitted
considering potential backlash from the African American community if the office
did not pursue the death penalty in that case due to the decision to pursue a death
sentence in a similar case with white victims. That defendant subsequently was
granted post-conviction relief due in part to the evidence demonstrating race played
a role in pursuing the death penalty. Order Granting Relief, Kelly v. State, No. 99-
CP-42-1174 (Ct. Common Pleas, Oct. 6, 2003).
2001). According to one law professor and statistician, the statistical likelihood of
race not contributing to this disparity is six in ten thousand. Id.

South Carolina is not unique in this as similar findings persist across our
nation, with studies demonstrating the death penalty is disproportionately sought in
cases involving white victims. See generally Steven F. Shatz and Terry
Dalton, Challenging the Death Penalty with Statistics: Furman, McCleskey, and A
Single County Case Study, 34 CARDOZO L. REV. 1227, 1246 (2013) ("Since
McCleskey, there have been numerous empirical studies focused on racial disparities
in death-charging and death-sentencing, and virtually all found significant racial
disparities in death-charging, death-sentencing, or both."). Further, as the amicus
brief starkly notes, "From 1930 until 1972, approximately half of the people
sentenced to death and executed for homicide in the United States were Black.
During this same period, 455 men were executed for rape across the United States—
405, or 89.1%, of them were Black, and they were virtually all convicted of raping
white women." Brief of NAACP Legal Defense and Educational Fund, Inc. as
Amicus Curiae 7. South Carolina's statistics are equally troubling dating back to
1912 when official records began. Of the 282 people that have been executed since
then, 208, or 74% were black and 74, or 26% were white. Death Row/Capital
Punishment, S.C. DEP'T. OF CORRECTIONS (last visited March 31, 2021),
http://www.doc.sc.gov/news/deathrow.html#execution. While our state has
substantially reduced the level of bias in the modern era,13 the foundation of our
capital punishment scheme is deeply rooted in racial disparity. I fully acknowledge
the Supreme Court has held that general patterns of racial discrimination are not
enough to prove an arbitrary sentence, see McCleskey v. Kemp, 481 U.S. 279, 317-
19 (1987), but it is disingenuous to discount the factor race plays.

Race is not the only factor that leads to bona fide questions as to whether our
capital sentencing scheme is capable of being conducted in a constitutionally

13
In South Carolina, executions in the modern death penalty era resumed in 1985,
and since then, forty-three people have been executed. Of those, twenty-seven, or
63% were white while sixteen, or 37% were black, which more closely approximates
the racial makeup in our state. Execution Database, DEATH PENALTY INFO. CTR.,
(last visited March 31, 2021), https://deathpenaltyinfo.org/executions/execution-
database?filters%5Bstate%5D=South%20Carolina. See also QuickFacts, U.S.
CENSUS BUREAU (July 1, 2019), https://www.census.gov/quickfacts/SC (estimating
64% of our state's population is white and 27% is black).
permissible manner. Gender—of both the defendant and the victim—plays a
substantial role as well. See Shatz & Dalton, supra, at 1251 (noting gender
disparities are present in both the gender of the defendant and of the victim, and
recounting that "although women constitute 10% of those arrested for murder, they
constitute only 2% of those sentenced to death at trial, and only 1% of those actually
executed"). Additionally, the geography or location of where the criminal offense
occurs significantly affects whether similar offenses are treated in a likewise manner.
Id. at 1253-54 (noting that one South Carolina study on the role of geography in
death penalty charging revealed "tremendous variation in death-charging rates that,
applying a regression model, could not be explained by any of the legitimate or
illegitimate variables"). Further, at the outset of a decision to seek the death penalty,
budgetary restrictions and other considerations may influence whether a death-
eligible case proceeds accordingly. After sentencing, the lengthy period an inmate
spends on death row is staggering. Of the thirty-five inmates currently on death row,
three were sentenced to death in the 1980s, eight during the 1990s, and twenty-four
during the 2000s. Death Row Roster, S.C. DEP'T. OF CORRECTIONS (March 31, 2021),
http://www.doc.sc.gov/news/death-row-report.pdf. Thus, almost one-third of the
individuals have spent over twenty years on death row, and some more than thirty-
five years. Because our state has not carried out an execution in over a decade, nearly
92% of inmates have been confined to death row for at least a dozen years. It could
be persuasively argued—and indeed has been argued by the participants in the
system, most especially the victims and their families—that our system of capital
punishment is broken. Perhaps Justice Marshall was correct over forty years ago
when he stated that "[t]he task of eliminating arbitrariness in the infliction of capital
punishment is proving to be one which our criminal justice system—and perhaps
any criminal justice system—is unable to perform." Godfrey, 446 U.S. at 440
(Marshall, J., concurring).

In conclusion, I completely support the majority's decision to expand the pool
of cases relevant to our comparative proportionality review. I share the sentiments
of Justice Labarga on the Florida Supreme Court, who noted,

As a Court, and as individual Justices, we are called upon to either
affirm or reverse the most severe penalty that can ever be imposed on
a human being. That is a responsibility that must be carried out in a
manner that gives the Court, as a whole, and each Justice individually,
moral and legal certainty that the defendant is deserving of the ultimate
penalty when the facts of the crime, the aggravating circumstances,
 and the mitigating circumstances are carefully considered. This, in my
view, is necessary to ensure that the penalty is imposed fairly and
consistently throughout the State.

Yacob, 136 So. 3d at 557 (Fla. 2014) (Labarga, J., concurring), abrogated by
Lawrence v. State, 308 So. 3d 544 (Fla. 2020). However, I believe that review
should begin with this case and that Moore's sentence of death should be held
disproportionate to the facts surrounding his crime. The death penalty should be
reserved for those who commit the most heinous crimes in our society, and I do not
believe Moore's crimes rise to that level. Because I believe Moore's death sentence
is disproportionate, I would grant habeas relief and vacate it. Accordingly, I concur
in part and dissent in part.