Vasquez v. State

Chief Justice TOAL.

I respectfully dissent. In my view, the PCR judge properly concluded Petitioner was not denied effective assistance of counsel, and I would affirm the PCR judge’s denial of relief.

I. Guilt Phase

In my opinion, the majority arrived at the correct result regarding the guilt phase of the trial. While I agree Petitioner is not entitled to a new trial, I do not agree with the majority that trial counsel was deficient or Petitioner was prejudiced by trial counsel’s failure to object to the solicitor’s “domestic terrorist” comment. However, even assuming those prongs are satisfied, I would find the overwhelming evidence of guilt established at trial precludes relief. See Rosemond v. Catoe, 383 S.C. 320, 325, 680 S.E.2d 5, 8 (2009) (holding PCR applicant not prejudiced by trial counsel’s performance because evidence of guilt was overwhelming).

II. Sentencing Phase

As to the sentencing phase, I disagree with the majority that trial counsel was deficient or Petitioner was prejudiced by the solicitor’s comments regarding September 11, 2001.

In my view, the solicitor’s statement regarding September 11, 2001 simply was reference to an historical event, not an attempt to inflame the passions and prejudices of the jury. The PCR judge found the statement an acceptable introduction to the victim impact evidence. I agree with the PCR judge. During his speech, the solicitor mentioned September 11, 2001 as a tragic, life-changing historical event. The solicitor’s remark, despite the majority’s characterization, was not *466religious in nature or directed at Petitioner’s Muslim faith.8 He did not call attention to any racial or religious aspect of that event, and he did not liken Petitioner to the attackers. The solicitor focused on the before-and-after effects on an individual who suffers a sudden, tragic loss of a loved one. Therefore, in my opinion, the solicitor’s comments were not improper, and I would hold counsel was not deficient for failing to object.

Even assuming trial counsel were deficient for failing to object to the solicitor’s closing argument, I do not believe the solicitor’s comments so infected the proceedings with unfairness that Petitioner was denied due process. A solicitor’s statements must be viewed in the context of the entire record. Smith v. State, 375 S.C. 507, 523, 654 S.E.2d 523, 532 (2007). Appellant has the burden of proving he did not receive a fair trial because of the alleged inappropriate comments. Simmons v. State, 331 S.C. 333, 338, 503 S.E.2d 164, 166 (1998). The relevant question is whether those comments so infected the proceedings with unfairness so as to make the result a denial of due process. Id. Improper comments do not require reversal if they are not prejudicial. Id.

The majority first finds that counsel was deficient, and then discusses the egregiousness of the solicitor’s comments. From there, the majority presumes prejudice from the comments regarding September 11, 2001, stating they are “so egregious” there is no possibility they did not affect the jury’s sentence of death.9 This approach creates a per se rule of prejudice and ignores the well-established analytical framework for PCR cases. Our PCR jurisprudence is clear that the *467PCR applicant must prove the allegations in his petition. Butler v. State, 286 S.C. 441, 442, 334 S.E.2d 813, 814 (1985). To establish prejudice, Petitioner must show a reasonable probability the result of the proceeding would have been different but for trial counsel’s deficiency. Cherry v. State, 300 S.C. 115, 117-18, 386 S.E.2d 624, 625 (1989). Therefore, to demonstrate prejudice in this case, Petitioner must prove a reasonable probability exists that a jury would not have sentenced him to death if trial counsel had objected to the solicitor’s comments. In my view, Petitioner has not met his burden of proving prejudice.

In Arnold v. State/Plath v. State, 309 S.C. 157, 420 S.E.2d 834 (1992), a combined death penalty PCR appeal, this Court said that to find harmless error, a court must find that error “unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.” That case concerned a constitutionally improper burden-shifting jury charge. This Court evaluated all the evidence and found beyond a reasonable doubt that the improper jury charge could not have affected the verdict; thus the improper charge was harmless error.

Similarly, in the instant case, I would find any alleged error is unimportant in relation to everything else the jury considered. First, overwhelming evidence of Petitioner’s guilt was established during the guilt phase of the trial. Second, three statutory aggravating factors were established during the sentencing phase: (1) the murder was committed while in the commission of a kidnapping; (2) the murder was committed while in the commission of a robbery while armed with a deadly weapon; and (3) two or more persons were murdered by Petitioner by one act or pursuant to one scheme or course of conduct. Third, there are no relevant statutory mitigating factors.10 Thus, following this Court’s earlier decision in *468Arnold v. State/Plath v. State, I would find the weight of evidence against Petitioner and the utter lack of mitigating circumstances demonstrate there is no reasonable probability the solicitor’s comments influenced the jury’s sentence of death.

Therefore, in my opinion, in light of the overwhelming evidence of guilt established at trial and the statutory aggravating factors, there is no reasonable probability that the jury would not have recommended the death penalty but for the solicitor’s comments, and I would affirm the PCR judge’s denial of relief.

III. Golden Rule Argument

The majority does not address Petitioner’s Golden Rule argument because it reverses the PCR court’s denial of relief on other grounds. Because I would affirm the PCR court on those grounds, I address Petitioner’s remaining argument.

Petitioner argues the solicitor made an improper Golden Rule argument in his closing of the sentencing phase by asking the jurors if they could imagine the terror and horror the victims experienced in their final moments of life. I disagree, and would find the solicitor’s statements were appropriate references to victim impact statements. The references did not encourage the jury to depart from neutrality and decide the case on personal interest or bias rather than the evidence presented. See State v. Reese, 370 S.C. 31, 633 S.E.2d 898 (2006) (finding improper Golden Rule argument when solicitor asked the jury to speak for the victim through its verdict); Von Dohlen v. State, 360 S.C. 598, 602 S.E.2d 738 (2004) (finding solicitor’s comments asking jurors to put themselves in victim’s shoes was an improper Golden Rule argument). Furthermore, even if the solicitor did make an improper Golden Rule argument, I would find the error harmless in light of the enormity of the evidence against Petitioner, the *469presence of three statutory aggravating factors, and the absence of any factors in mitigation.

HEARN, J., concurs.

. The majority indicates the solicitor's comments are so egregiously prejudicial because they "intentionally and unnecessarily injected religious prejudice into Petitioner’s trial.” However, as the majority details, Petitioner repeatedly raised the issue of his religious faith at various stages of the trial, making his religion a theme throughout the trial. The solicitor did not invoke Petitioner’s religion at any point during either phase of the trial. Thus, in my view, the majority's assertion that the solicitor introduced any supposed religious prejudice with his comments is unfounded.

. The majority appears to find that the solicitor's reference to September 11, 2001 is not per se prejudicial by itself, but rather the prejudice results when the comments are coupled with the fact Petitioner is Muslim.

. Petitioner did present evidence of two mitigating factors: (1) no significant prior criminal history involving violence; and (2) Petitioner was an accomplice whose participation was relatively minor. However, the facts of the crime do not support these mitigating factors. After having been fired for using obscenities at a customer, Petitioner recruited his cousin, armed himself, and returned that evening to the restaurant. At gun-point, Petitioner kidnapped and imprisoned two employees in the restaurant's cooler. Those employees escaped. Petitioner *468then brought the store manager and another employee into the cooler, where he repeatedly shot each victim “execution style” in the back of the head. He then left with over one thousand dollars from the cash register and went directly to a nearby strip club. I would find the sheer cold brutality of this crime outweighs Petitioner's lack of prior criminal violence. Further, the second mitigating factor simply cannot be proven in light of the guilty verdict.