(dissenting):
I respectfully dissent. In my view, the doctrine of retroactivity should not prevent this court from reviewing constitutional issues or court decisions affecting the truth-finding process when raised in collateral proceedings.
The majority opinion concludes that Shea v. Louisiana, 470 U. S. 51, 105 S. Ct. 1065, 84 L. Ed. (2d) 38 (1985) and McClary v. State, 287 S. C. 160, 337 S. E. (2d) 218 (1985), support the concept of a limitation on the doctrine of retro-activity in the application of the principles enunciated in State v. Elmore, 279 S. C. 417, 308 S. E. (2d) 781 (1983), to those cases pending on direct appeal. The majority’s attempt to distinguish between direct and collateral challenges in the application of the doctrine of retroactivity is, in my opinion, misplaced in cases where the alleged error affects the truth-finding function and particularly in those cases where the state seeks the ultimate punishment.
The majority justifies its distinction on the need to draw “the curtain of finality,” citing McClary v. State, supra, and *238Shea v. Louisiana, supra. I would respectfully point out that neither McClary nor Shea was a death penalty case; and under South Carolina law in death penalty situations, we are required to conduct in favorem vitae review. The majority apparently overlooks or minimizes the finality of its decision in this case — death — where there is a strong possibility that the conviction was constitutionally infirm. The concern for finality that might otherwise dictate non-retroactive review of constitutional decisions on collateral attack should not override constitutional considerations in the instant case.
In State v. Elmore, supra, this court held that a presumption of malice from the use of a deadly weapon erroneously constituted a mandatory presumption rather than a permissive inference. In State v. Woods, 282 S. C. 18, 316 S. E. (2d) 673 (1984), this court found that such mandatory presumption is prejudicial and constitutes reversible error. These two decisions are in line with the decision of the Supreme Court of the United States, holding that erroneous instructions- regarding a necessary element of an offense such as malice substantially impairs the truth-finding function of the jury. Francis v. Franklin, 471 U. S. 307, 105 S. Ct. 1965, 85 L. Ed. (2d) 344 (1985).
In McClary v. State, supra, the Supreme Court of South Carolina held that retroactive application of State v. Elmore, will be limited to those cases pending on direct appeal and will not apply to collateral attacks on criminal convictions. Prior to McClary, the Court allowed review of Elmore-type errors retroactively in State v. Woods, supra, State v. Jennings, 280 S. C. 62, 309 S. E. (2d) 759 (1983), and State v. Llewellyn, 281 S. C. 199, 314 S. E. (2d) 326 (1984). A reading of McClary shows that this court based its decision upon its understanding of Shea v. Louisiana, supra, whose reasoning the court adopted and presumably accepted as binding precedent. I would point out that the Supreme Court of the United States, in Shea, was concerned with a non-truth-finding error, whereas the error complained of in this case is clearly a truth-finding error.
The principles of retroactivity set forth in United States v. Johnson, 457 U. S. 537, 102 S. Ct. 2579, 73 L. Ed. (2d) 202 (1982); and Solem v. Stumes, 465 U. S. 638, 104 S. Ct. 1338, 79 *239L. Ed. (2d) 579 (1984), provide a rational framework for applying new constitutional decisions retroactively. These decisions recognize that complete retroactive effect should be given, even when raised by collateral proceedings, to new constitutional rules whose major purpose is to overcome an aspect of the criminal trial that substantially impairs the truth-finding function and raises serious questions about the validity of guilty verdicts. This pronouncement of retro-activity is made particularly clear in Williams v. United States, 401 U. S. 646, 653, 91 S. Ct. 1148, 28 L. Ed. (2d) 388 (1971), wherein the United States Supreme Court held:
Where the major purpose of a new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule has been given complete retroactive effect.
See also United States v. Johnson, supra, and Reed v. Ross, 468 U. S. 1, 104 S. Ct. 2901, 82 L. Ed. (2d) 1 (1984).
The doctrine against burden shifting presumptions set out in Francis v. Franklin, supra, is not a clear break with prior law. The United States Supreme Court in Sandstrom v. Montana, 442 U. S. 510, 99 S. Ct. 2450, 61 L. Ed. (2d) 39 (1979), decided prior to Yates, held that conclusive presumptions or instructions which shift-the burden of persuasion violate the Fourteenth Amendment’s requirement that in every criminal trial the state is required to prove each element of the criminal offense beyond a reasonable doubt. The Court went on to hold, concerning Elmore-type errors, that conclusive presumptions conflict with the presumption of innocence with which the law endows the accused. These presumptions, likewise, extend to every element of the crime and invade the truth-finding function which, in a criminal case, the law assigns solely to the jury.
I also dissent because the majority, sua sponte, addresses the question of the propriety of Yates’ death sentence in light of Enmund v. Florida, 458 U. S. 782, 102 S. Ct. 3368, 73 L. Ed. (2d) 1140 (1982); and without the benefit of briefs, oral arguments or consideration of any differences between Florida arid South Carolina law dealing with the responsibility *240of persons who did not actually inflict the mortal wound, concludes that the death sentence was appropriate, relying upon Cabana v. Bullock, _ U. S. _, 106 S. Ct. 689, 88 L. Ed. (2d) 704 (1986), and State v. Patterson, 285 S. C. 5, 327 S. E. (2d) 650 (1984), both of which are easily distinguishable.
I would reconsider and remand this case to the trial court for a new trial.