dissenting:
I respectfully dissent. I shall address those errors which I consider most egregious; not in the order of significance, but in the order of their occurrence in the majority’s opnion.
I. OPENING REMARKS
The majority candidly admits that the trial court’s remarks were imprudent and cautioned that such comments should be avoided in the future. It is my view that these remarks violate constitutionally protected rights and constitute error. A trial court may generally instruct jurors as to their obligation to set aside personal opinions, bias, and idiosyncrasies in the performance of their duty as triers of the fact. However, it is impermissible for the trial judge to use an illustration which improperly directs attention to a specifically protected constitutional right, and is particularly inexplicable in view of two prior rulings by this Court prohibiting similar remarks. State v. Pierce, 289 S. C. 430, 346 S. E. (2d) 707 (1986); State v. Gunter, 286 S. C. 556, 335 S. E. (2d) 542 (1985).
II. ADMISSIBILITY OF APPELLANT’S STATEMENT
The majority’s recital of the facts is, in my opinion, obscure. The appellant had already applied for the public defender’s services for a prior unrelated charge and was on a public defender “temporary” client file at the time of his arrest when they were trying to communicate with him on February 16, 1984. Despite repeated attempts by the Public Defender’s Office to contact appellant, the police did not *431permit them to interview appellant until after the bond hearing and after he had given a 28 page statement. A police official testified that, upon the advice of the Solicitor’s Office, a conscious decision was made to deny appellant access to the public defender until after a statement was obtained.
Detective Harris gave the following testimony concerning appellant’s waiver of the right to counsel:
Q. Did he say, “I do not want a lawyer,” period?
A. He didn’t say one way or the other, no, sir.
Q. All right. So in fact, insofar as any waivers, he may have said he didn’t want a public defender, but he didn’t say, “I don’t want a lawyer”?
A. And also he didn’t say he wanted one either.
The evidence is in conflict as to whether or not the appellant requested counsel at the bond hearing. It is clear, however, that prior to the bond hearing and before obtaining his statement, the police prevented the public defender from interviewing the appellant. It is, likewise, obvious that under the circumstances, the state did not establish a waiver of the right to counsel. Every reasonable presumption must be indulged against the waiver of fundamental constitutional rights. Johnson v. Zerbst, 304 U. S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938). The state has the burden of establishing the validity of a waiver, and all doubt must be resolved in favor of protecting the constitutional claim. Brewer v. Williams, 430 U. S. 387, 97 S. Ct. 1232, 51 L. Ed. (2d) 424 (1977). Because no waiver is established, it must be presumed that appellant requested counsel at the hearing. Therefore, under the rule of Michigan v. Jackson, 475 U. S. 625, 106 S. Ct. 1404, 89 L. Ed. (2d) 631 (1986), the subsequent waiver appellant signed before he gave his statement is invalid.
Alternatively, appellant contends that the police’s and solicitor’s willful refusal to permit the Public Defender’s Office to see him taints any ostensibly valid waiver of counsel.
In Moran v. Burbine, 475 U. S. 412, 106 S. Ct. 1135, 89 L. Ed. (2d) 410 (1986), the Supreme Court held the refusal of police to inform an accused that a public defender was attempting to reach him did not present a federal constitutional claim. Appellant argues, however, that Moran merely *432permits such conduct, and that this Court should prohibit it as a matter of state law.
Other state courts presented with this type of police or prosecutorial conduct have found it to be impermissible. See, e.g., People v. Houston, 42 Cal. (3d) 595, 724 P. (2d) 1166, 230 Cal. Rptr. 141 (1986); People v. Holland, 174 Ill. App. (2d) 323, 100 Ill. Dec. 868, 497 N. E. (2d) 1230 (1986); Elfadl v. Maryland, 61 Md. App. 132, 485 A. (2d) 275 (1985); cert. denied, 303 Md. 42, 491 A. (2d) 1197 (1985); Lewis v. State, 695 P. (2d) 528 (Ok. 1984); Commonwealth v. Sherman, 389 Mass. 287, 450 N. E. (2d) 566 (1983); Weber v. State, 457 A. (2d) 674 (Del. 1983); People v. Smith, 93 Ill. (2d) 179, 66 Ill. Dec. 412, 442 N. E. (2d) 1325 (1982); State v. Matthews, 408 So. (2d) 1274 (La. 1982); State v. Haynes, 288 Or. 59, 602 P. (2d) 272 (1979); cert. denied, 446 U. S. 945, 100 S. Ct. 2175, 64 L. Ed. (2d) 802 (1980); State v. Jones, 19 Wash. App. 850, 578 P. (2d) 71 (1978); Commonwealth v. Hilliard, 471 Pa. 318, 370 A. (2d) 322 (1977); Blanks v. State, 254 Ga. 420, 330 S. E. (2d) 575 (1985); State v. Beck, 687 S. W. (2d) 155, (Mo. 1985) (en banc); Haliburton v. Florida, 476 So. (2d) 192 (1985). It is my view that in order to preserve the efficacy of our system, South Carolina should adopt a rule prohibiting such conduct.
III. ROBBERY AS A LESSER INCLUDED OFFENSE
The majority concludes that the trial court did not err in refusing to charge the jury on the lesser included offense of robbery. A trial judge is required to charge the jury on a lesser included offense if there is evidence that an accused committed the lesser, rather than the greater offense. State v. Mathis, 287 S. C. 589, 340 S. E. (2d) 538 (1986). Robbery is a lesser included offense of armed robbery. State v. Scipio, 283 S. C. 124, 322 S. E. (2d) 15 (1984). In this case, the trial judge charged the jury on grand larceny and armed robbery. Compare, S. C. Code Ann. § 16-13-20 (1976) with, S. C. Code Ann. § 16-11-330 (1976). It is irreconcilable that the more removed offense of grand larceny was charged in this instance as a lesser included offense of armed robbery, while robbery was not. Certainly, pristine reasoning leads to the inescapable conclusion that error was committed.
*433IV. MITIGATING CIRCUMSTANCES
Appellant contends there was sufficient evidence to require a charge on statutory mitigating circumstances. The majority ignores its recent precedent and holds that there is no evidence of voluntary intoxication to warrant a statutory mitigating circumstance charge. The Court disregards the concept of stare decisis and denies appellant the constitutional right to a fair trial. Recently in State v. Pierce, supra, this Court held that S. C. Code Ann. § 16-3-20(C) requires a trial court to instruct a jury regarding statutory mitigating circumstances which may be supported by the evidence.
Evidence of voluntary intoxication is a proper matter for a jury’s consideration in mitigation of punishment. State v. Pierce, supra; State v. Woomer, 278 S. C. 468, 299 S. E. (2d) 317 (1982), cert. denied, 463 U. S. 1229, 103 S. Ct. 3572, 77 L. Ed. (2d) 1413 (1983). When an accused offers proof of á mitigating circumstance, the trial court must instruct the jury to consider the statutory mitigating circumstances which may be supported by the evidence. See, S. C. Code Ann. § 16-3-20(C)(b)(2), (6) and (7) (Law Co-Op. 1986). Once such evidence is proffered, the trial court is not to be concerned with the weight of the evidence, but rather with the existence of such evidence. State v. Butler, 277 S. C. 452, 290 S. E. (2d) 1 (1982).
Appellant admitted that he consumed liquor and beer at a birthday party he attended from eight-thirty until midnight on February 10, 1984, and that while he was at the Kayo Station, he drank several 16 ounce beers. Despite appellant’s claim, the majority concludes there was no evidence that he was intoxicated at the time of the murder. This conclusion circumvents the statute’s plain meaning and ignores legal precedent by fashioning a restrictive interpretation of Section 16-3-20(C). In my view, the evidence concerning the quantity and the period of time during which the appellant consumed alcoholic beverages is more than sufficient to require the submission of this issue to the triers of fact. Whether appellant was intoxicated at the time of the murder, as a matter of law, is not for the trial court’s determination but the jury’s. State v. Pierce, supra.
A fair reading of the majority opinion would either place the burden of proving voluntary intoxication upon an ac*434cused or create some “bright line” test of determining “credible” quantitative evidence of voluntary intoxication before submitting a statutory mitigating circumstance charge to a jury. Such a burden or test, in my opinion, is contrary to Section 16-3-20(C), Pierce, and the due process guarantees under the United States and South Carolina Constitutions. A charge of a statutory mitigating circumstance to a jury only requires an accused to offer evidence supporting such a charge and no more.
Accordingly, I would reverse and remand this case for a new trial.