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THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State, Respondent,

v.

Joseph Lee Ard, Appellant.

Appeal From Lexington County

Marc H. Westbrook, Judge

Opinion No. 24840

Heard May 27, 1998 - Filed September 14, 1998

AFFIRMED

Joseph L. Savitz, III, of South Carolina Office of

Appellate Defense, of Columbia, for appellant.

Attorney General Charles M. Condon, Chief Deputy

Attorney General John W. McIntosh, Assistant

Deputy Attorney General Donald J. Zelenka, all of

Columbia; and Solicitor Donald V. Myers, of

Lexington, for respondent.

BURNETT, A.J.: Appellant was convicted of the murder of

his girlfriend, Madalyn Coffey, and the murder of their unborn., but viable,

son. He was sentenced to death.

BACKGROUND

Ms. Coffey died from a single gunshot wound to her forehead.

p.25

Her unborn but viable child survived in utero for approximately six to

eight minutes before dying from a lack of oxygen.

During the guilt phase of trial, witnesses testified they heard

appellant threaten to kill Ms. Coffey prior to the shooting. A witness

testified she saw appellant assault Ms. Coffey during her pregnancy and

heard appellant state he wished Ms. Coffey and the unborn child were

dead.

On the evening of the shooting, a witness testified she heard

appellant and Ms. Coffey arguing in a motel bathroom. Appellant had a

gun. Shortly thereafter, appellant shot Ms. Coffey. He told a friend, "tell

them I did it and they will have to catch me." Appellant then left in his

automobile. There were no eyewitnesses to the shooting.

Appellant testified Ms. Coffey's death was an accident. He

claimed Ms. Coffey, who was 8 1/2 months pregnant with his child, was

upset and threatened to kill herself with the gun she was holding in her

hand. During appellant's attempt to take the gun away from his

girlfriend, the gun discharged. Appellant testified he thought his

girlfriend was dead. He "freaked out" and fled to Atlanta. A friend

informed appellant the police were looking for him. Three days later,

appellant returned to Columbia and met with an attorney. Appellant

testified he planned to surrender to the police but "blacked out" in the

attorney's office. When he awoke, he was in the hospital. Ultimately,

appellant was arrested for the two murders.

Appellant raises only sentencing issues on appeal.

ISSUES

I. Did the trial court err in holding the terms "person" and

"child" in S.C. Code Ann. § 16-3-20(C)(a)(Supp. 1997) include a

viable fetus?

II. Did the trial court err in admitting into evidence two

photographs of the unborn child?

III. Did the trial court err by excluding from evidence a prior

consistent statement made by appellant to his lawyer?

p.26

IV. Did the trial court err by instructing the jury not to

consider parole eligibility in reaching a decision as to the

proper sentence?

DISCUSSION

I.

Appellant argues the trial court erred in holding the terms

"person" and "child" as used in the statutory aggravating circumstances

found in § 16-3-20(C)(a)(9) & (10) include a viable fetus. Appellant

contends the murder of a viable fetus should not make a defendant eligible

for the death penalty. We disagree.

In State v. Horne, 282 S.C. 444, 319 S.E.2d 703 (1984), the

Court determined an unborn but viable fetus is a "person" within the

statutory definition of murder.1 The Court declared a murder conviction

may be obtained when the state can prove beyond a reasonable doubt "the

fetus involved was viable, i.e., able to live separate and apart from its

mother without the aid of artificial support." Id. S.C. at 447, S.E.2d at

704.

In 1986, the General Assembly amended § 16-3-20(C)(a) to

include subitems 9 and 10 as statutory aggravating circumstances. Act.

No. 462, 1986 S.C. Acts 2955. Subitem 9 provides: "Two or more persons

were murdered by the defendant by one act or pursuant to one scheme or

course of conduct." (emphasis added). Subitem 10 provides: "The murder

of a child eleven years of age or under." (emphasis added). Neither

"person" nor "child" are defined in the statute.

We conclude the legislature intended to include viable fetuses

as "persons" within the statutory aggravating circumstance of § 16-3-

20(C)(a)(9). At the time the General Assembly added subitem 9 to the list

of statutory aggravating circumstances it was aware of our holding in

either express or implied." S.C. Code Ann. § 16-3-10 (1985)(emphasis

added).

p.27

State v. Horne, that a viable fetus was a person for purposes of murder.2

Whitner v. State, 328 S.C. 1, 492 S.E.2d 777 (1997), cert. denied, 1998 WL

130868 (May 26, 1998)(there is a basic presumption the legislature has

knowledge of previous legislation as well as of judicial decisions construing

that legislation when later statutes are enacted concerning related

subjects); Berkebile v. Outen, 31 1 S.C. 50, 426 S.E.2d 760 (1993). We find

it would be inconsistent to conclude a viable fetus is a person for purposes

of murder, but not a person for purposes of a statutory aggravating

circumstance to murder. Similarly, it would be absurd to hold a viable

fetus is a "person" but not a "child." Consequently, we hold the legislature

intended "child" within § 16-3-20(C)(a)(10) to encompass a viable fetus.

The trial judge properly held the murder of a viable fetus could subject a

defendant to the death penalty.

II.

During the sentencing phase, the solicitor moved to introduce

two photographs of the unborn child into evidence. These photographs

show the unborn child dressed in clothes Ms. Coffey had intended for him

to wear home from the hospital.3 Appellant objected, arguing the

photographs "give the impression that it was a born existing person" and

the prejudice from the photographs outweighed any potential probative

value. The solicitor responded the photographs were relevant to the two

aggravating circumstances and relevant to establish the character of the

defendant. The trial judge overruled appellant's objection, noting the

photographs served to corroborate the pathologist's testimony on the

unborn child's physical development.

Fowler v. Woodward, 244 S.C. 608, 138 S.E.2d 42 (1964)(a viable fetus is a

person capable of maintaining a wrongful death action), and Hall v.

Murphy, 236 S.C. 257, 113 S.E.2d 790 (1960)(a viable fetus is a person

who, if injured in utero, may maintain an action for those injuries after

birth).

3Appellant does not claim the photographs are gruesome. He argues,

however, the photographs depict the child lying in a casket and are

nothing more than funeral mementos. We find the photographs do not

suggest the child is lying in a casket. Accordingly, we express no opinion

on the propriety of a photograph of a victim at his funeral.

p.28

On appeal, appellant asserts the photographs were not relevant

to any issue at trial because the viability of the unborn child was not in

dispute. We agree the viability of the unborn child was not an issue

during the sentencing phase of appellant's trial. During the guilt phase

instructions, the trial judge specifically charged the jury it must find the

unborn child was viable. Having found appellant guilty of the unborn

child's murder, the jury had already concluded the unborn child was

viable.

Nonetheless, we find the photographs were properly admitted.

A trial judge has considerable latitude in ruling on the admissibility of

evidence and his ruling will not be disturbed absent a showing of probable

prejudice. The determination of the relevancy, materiality, and

admissibility of a photograph is left to the sound discretion of the trial

judge. State v. Kornahrens, 290 S.C. 281, 350 S.E.2d 180 (1986), cert.

denied, 480 U.S. 940, 107 S.Ct. 1592, 94 L.Ed.2d 781 (1987). The trial

judge must balance the prejudicial effect of a photograph against its

probative value. State v. Williams, 321 S.C. 327, 468 S.E.2d 626, cert.

denied, 519 U.S.____, 117 S.Ct. 230, 136 L.Ed.2d 161 (1996).

The purpose of the sentencing phase in a capital trial is to

"direct the jury's attention to the specific circumstances of the crime and

the characteristics of the offender." State v. Matthews, 296 S.C. 379, 390,

373 S.E.2d 587, 594 (1988), cert. denied, 489 U.S. 1091, 109 S.Ct. 1559,

103 L.Ed.2d 861 (1989). Photographs of the victim's body may be

admitted to show the circumstances of the crime and the character of the

defendant. State v. Tucker, 324 S.C. 155, 478 S.E.2d 260 (1996), ____ U.S.

____, 117 S.Ct. 1561, 137 L.Ed.2d 798 (1997). Photographs may be offered

as evidence in extenuation, mitigation, or aggravation. State v.

Kornahrens, supra; see also State v. Franklin, 318 S.C. 47 456 S.E.2d

357, cert. denied, 516 U.S. 856, 116 S.Ct. 160, 133 L.Ed.2d 103 (1995).

In addition, evidence about the victim is relevant to the jury's

consideration of the sentence which should be imposed. Payne v.

Tennessee, 501 U.S. 808, III S.Ct. 2597, 115 L.Ed.2d 720 (1991).

Photographs may be offered as victim impact evidence "to show something

of the victim's life." "Victim impact evidence is clearly admissible because

it shows the victim's uniqueness as an individual so long as it does not

render the trial fundamentally unfair." State v. Tucker, supra, S.C. at

168, S.E.2d at 267.

p.29

The two photographs were properly admitted to portray the

individuality of the unborn child. Since the child was murdered before he

was born, there was no other way to vividly present his uniqueness to the

jury. Additionally, the photographs aided the jury in determining the

vulnerability of the infant victim and, therefore, were relevant in assessing

the circumstances of the crime and the character of the defendant.

Moreover, the photographs of the infant, dressed in clothes his

mother intended for him to wear home from the hospital, reveal Ms.

Coffey's aspirations about the birth of her child and were relevant to the

sentence for her murder. See State v. Rocheville, 310 S.C. 20, 425 S.E.2d

32, cert. denied, 508 U.S. 978, 113 S.Ct. 2978, 125 L.Ed.2d 675

(1993)(parents' testimony about their families' reliance on their murdered

sons was proper). Finally, the photographs support the statutory

aggravating circumstances that two persons were murdered by appellant

during one course of conduct4 and one of the victims was a child under the

age of eleven. See S.C. Code Ann. § 16-3-20(C)(a)(9) & (10). The trial

judge did not abuse his discretion in admitting the two photographs during

the sentencing phase of the trial.

III.

During the sentencing phase, Lance Black, an inmate at

McCormick Correctional Institute, testified as a hostile witness for the

State. Black testified while appellant was incarcerated at McCormick

before trial, appellant told him he had "planned" the accident defense.

According to Black, appellant told him he had killed Ms. Coffey because

she was going to turn him into the police, presumably for drug offenses.

To rebut Black's testimony, defense counsel called attorney

Jack Swerling.5 Swerling testified three days after the shooting, appellant

came to his office, intending to turn himself into the police. Swerling

testified there was a warrant for appellant's arrest. Appellant gave

Swerling a brief explanation of the shooting. The solicitor objected when

costume with no objection from appellant.

5Swerling was not appellant's trial attorney. During sentencing,

appellant waived his attorney-client privilege with Swerling.

p.30

defense counsel asked Swerling what appellant had said about the

shooting. The solicitor argued the testimony was inadmissible hearsay.

Defense counsel replied the testimony was admissible under two exceptions

to the rule against hearsay and admissible as evidence of a prior

inconsistent statement. The trial judge sustained the objection.

Defense counsel proffered Swerling's testimony. Swerling

testified appellant told him he shot his girlfriend and child by accident.

Swerling's notes state: "The defendant and girl had gun. Gun went off

accidentally."

Appellant now argues the trial judge erred in excluding his

prior consistent statement made to Swerling. Appellant contends,

pursuant to Rule 801(d)(1)(B), SCRE, the testimony was not hearsay and

exclusion of the testimony violated his due process. We disagree.

At trial, appellant argued Swerling's testimony regarding his

prior statement, albeit hearsay, was admissible as an exception to

hearsay.6 In addition, he argued the testimony was admissible as extrinsic

evidence of a prior inconsistent statement. Rule 613(b), SCRE. Appellant

did not argue his prior consistent statement was admissible under Rule

801(d)(1)(B). Accordingly, his current issue is not preserved for appellate

review. State v. Byram, 326 S.C. 107, 485 S.E.2d 360 (1997); State v.

Tucker, 319 S.C. 425, 462 S.E.2d 263 (1995), cert. denied, 516 U.S. 1080,

116 S.Ct. 789, 133 L.Ed.2d 739 (1996)(an issue is not preserved for

appellate review where a party argues one ground in support of relief at

trial and a different ground on appeal).

In any event, Rule 801(d)(1)(B), SCRE, provides, in relevant

part, as follows:

Statements which are not hearsay. A statement is not hearsay if--

Prior statement by witness. The declarant testifies at the

trial or hearing and is subject to cross-examination concerning

the statement, and the statement is . . . (B) consistent with the

sense impression and excited utterance exceptions to the rule against

hearsay. Rule 803(l) & (2), SCRE.

p.31

declarant's testimony and is offered to rebut an express or

implied charge against the declarant of recent fabrication or

improper motive; provided, however, the statement must have

been made before the alleged fabrication, or before the alleged

improper influence or motive arose, . . . .

According to the commentator's note, except for the proviso,

Rule 801(d)(1)(B), SCRE, is consistent with the Federal Rules of Evidence.

The proviso was added to reflect the United States Supreme Court's

interpretation of the federal rule in Tome v. United States, 513 U.S. 150,

____, 115 S.Ct. 696, 705, 130 L.Ed.2d 574, 588 (1995)(Rule 801(d)(1)(b)

"permits the introduction of a declarant's consistent out-of-court statements

to rebut a charge of recent fabrication or improper influence or motive

only when those statements were made before the charged recent

fabrication or improper influence or motive."). The modification is similar

to the pre-rules case law in this state holding the prior consistent

statement must have been made before the declarant's "relation to the

cause." Jolly v. State, 314 S.C. 17, 443 S.E.2d 566 (1994); Burns v.

Clayton, 237 S.C. 316, 117 S.E.2d 300 (1960).

Appellant's prior consistent statement to Swerling was not

admissible under Rule 801(d)(1)(B), SCRE. First, although appellant did

testify during the guilt phase of trial, he was not subject to cross-

examination concerning his statement to Swerling, as the evidentiary rule

requires. In fact, appellant could not have been cross-examined about his

statement to Swerling without violation of appellant's attorney-client

privilege.

Second, although his statement to Swerling was made prior to

the time Black alleged appellant had fabricated his accident defense (while

appellant was in jail awaiting trial), the statement was not made before

appellant had a motive to fabricate a defense. At the time appellant made

the statement to Swerling, he was planning to turn himself into the police

for shooting Ms. Coffey. Appellant had a motive to fabricate a defense or

to diminish his responsibility for the shooting when he stated to Swerling

the shooting was an accident. See United States v. Forrester, 60 F.3d 52

(2nd Cir. 1995)(motive to fabricate arose when witness was arrested);

United States v. Frederick, 78 F.3d 1370 (9th Cir. 1996)(child victim's

statement to police after her relatives had reported molestation and police

had begun formal investigation was inadmissible under Rule 801(d)(1)(B),

FRE); United States v. Moreno. 94 F.3d 1453 (10th Cir. 1996)(witness had

p.32

motive to concoct story as soon as he was arrested); United States v.

Albers, 93 F.3d 1469 (10th Cir. 1996)(where witness admitted he did not

agree to talk with law enforcement until he had become afraid others

involved in the conspiracy would testify against him, his statement to

officer came after witness had motive to falsify); see also People v.

Edwards, 819 P.2d 436 (Cal. 1991)(where defendant's statement was made

nine days after shooting, defendant had a compelling motive to deceive

and seek to exonerate himself, therefore statement did not carry

probability of trustworthiness). Appellant's prior consistent statement was

not admissible under Rule 801(d)(1)(B), SCRE.

Finally, appellant contends exclusion of his prior consistent

statement violated his due process rights because he was unable to refute

Black's testimony. See Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197,

51 L.Ed.2d 393 (1977)(a death sentence may not be imposed on the basis

of information which the defendant had no opportunity to explain or deny).

We disagree.

First, appellant's due process argument in support of

Swerling's testimony was raised to the trial court on the day following

Swerling's proffered testimony and the trial judge's denial of the admission

of the testimony. Accordingly, the argument was untimely. See State v.

Patterson, 324 S.C. 5, 482 S.E.2d 760, cert. denied, ___ U.S. ___, 118 S.Ct.

146, 139 L.Ed.2d 92 (1997)(a party must make a contemporaneous

objection to preserve an issue on appeal).

Second, appellant had the opportunity to cross-examine Black.

Additionally, in response to Black's testimony, appellant could have

testified he told Swerling the shooting was an accident. Instead, appellant

chose not to testify at sentencing. Appellant had sufficient opportunity to

explain or deny Black's allegation he had fabricated an accident defense.

The exclusion of Swerling's testimony regarding appellant's statement did

not violate appellant's right to due process.7

2150, 60 L.Ed.2d 738 (1979), where the United States Supreme Court held

to prevent a defendant from being deprived of a fair trial, the due process

clause requires admission of the exculpatory confession of a third party

offered through hearsay, even if state evidentiary rules prohibit its

admission, where the evidence is reliable (a statement against penal

p.33

IV.

Appellant contends the trial judge erred by instructing the

jury, "You must not consider parole eligibility in reaching a decision, and

you must assume that the terms 'life imprisomnent' and 'death sentence'

should be understood in their ordinary and plain meaning." Appellant

contends the charge improperly injected the issue of parole into the jury's

deliberations.

While discussing final summations, the trial judge instructed

counsel not to refer to parole. Defense counsel stated: "We will request a

Norris8 charge." The solicitor agreed the charge was appropriate.

Thereafter, defense counsel stated: "Judge, just to be clear, we can argue

life means life . . .". The following morning, during the charge

conference, defense counsel and the State confirmed the use of a Norris

charge. The trial judge stated:

. . . when I tell [the jury] the two verdicts or when I tell [the

jury] that at that point that they may consider the death

penalty and life imprisonment, I will then give them the Norris

charge, that they are to consider those in their ordinary, plain

meaning.

Thereafter, the trial judge instructed the jury:

You must not consider parole eligibility in reaching a decision,

appellant had a motive to reduce his responsibility for the shooting, his

statement to Swerling is not inherently reliable. See Huffington v. Nuth,

1998 WL 142317 (4th Cir. 1998)(where hearsay statement was not reliable,

it is not error to disallow its admission); Cunningham v. Peters, 941 F.2d

535 (7th Cir. 1991)(where third party's statement is unreliable, no error to

deny its admission); LeGrand v. Stewart, 133 F.3d 1253 (9th Cir.

1998)(where co-defendant's confession was not sufficiently reliable, no error

in excluding its admission).

8State v. Norris, 280 S.C. 86, 328 S.E.2d 339 (1985), overruled in

part on other grounds, State v. Torrence, 305 S.C. 45, 406 S.E.2d 315

(1991).

p.34

and you must assume that the terms life imprisonment and

death sentence should be understood in their ordinary and

plain meaning.

Appellant excepted to that portion of the Court's Norris charge

which referred to parole eligibility. The trial judge overruled the

exception, noting the language in the instruction was included in Norris.

Parole eligibility is a legislative determination. State v. Plath,

281 S.C. 1, 313 S.E.2d 619, cert. denied, 467 U.S. 1265, 104 S.Ct. 3560, 82

L.Ed.2d 862 (1984). It is not relevant to a jury's sentencing

considerations. State v. Young, 319 S.C. 33, 459 S.E.2d 84 (1995), cert.

denied, 516 U.S. 1051, 116 S.Ct. 718, 133 L.Ed.2d 671 (1996).

Traditionally, any reference to parole eligibility was prohibited.

"[A] jury charged with the responsibility of assessing the penalty to be

suffered by an accused should not be invited, by instruction or argument,

to speculate on the possible effect of pardon or parole upon the execution

of the sentence imposed." State v. Atkinson, 253 S.C. 531, 534, 172 S.E.2d

111, 112 (1970), vacated in part, 408 U.S. 936, 92 S.Ct. 2859, 33 L.Ed.2d

752 (1972), overruled in part on other grounds, State v. Torrence, supra.

In the absence of an inquiry from the jury, a defendant was not entitled to

a charge allowing the jury to consider parole eligibility, State v. Matthews,

296 S.C. 379, 373 S.E.2d 587 (1988), or prohibiting the jury from

considering parole eligibility. State v. Butler, 277 S.C. 543, 290 S.E.2d 420

(1982), overruled in part on other grounds, State v. Torrence, supra; State

v. Copeland, 278 S.C. 572, 300 S.E.2d 63 (1982), cert. denied, 460 U.S.

1103, 103 S.Ct. 1802, 76 L.Ed.2d 367 (1983). Additionally, the trial judge

was prohibited from referring to parole eligibility sua sponte. State v.

Goolsby, 275 S.C. 110, 268 S.E.2d 31 (1980), cert. denied, 449 U.S. 1037,

101 S.Ct. 616, 66 L.Ed.2d 500 (1980), overruled in part on other grounds,

State v. Torrence, supra.

In State v. Norris, supra, the Court set out the proper

response when a jury inquires about parole:

When the issue [of parole] is raised [by the jury], the Court

should instruct the jury that it shall not consider parole

eligibility in reaching its decision, and that the terms 'life

imprisonment' and 'death sentence' should be understood in

their ordinary and plain meaning.

p.35

S.C. at 95, S.E.2d at 344. A complete Norris charge includes two

elements: 1) the jury should not consider parole eligibility in reaching its

decision (the "no concern" charge) and 2) "the terms life imprisonment and

death sentence are to be understood in their ordinary and plain meanings"

charge. In response to a jury's inquiry about parole eligibility, it is

reversible error to omit the "ordinary and plain meaning of life and death,"

even if the "no concern" charge is given. State v. Plemmons, 296 S.C. 76,

370 S.E.2d 971 (1988); State v. Johnson. 293 S.C. 321) 360 S.E.2d 317

(1987). However, in response to a jury's inquiry about parole eligibility, it

is not reversible error to charge "the term life imprisonment is to be

understood in its ordinary and plain meaning" without instructing on "no

concern." "[A] 'life imprisonment in its ordinary and plain meaning'

charge necessarily precludes jury consideration of parole eligibility." State

v. Smith, 298 S.C. 482, 487, 381 S.E.2d 724, 727 (1989), cert. denied, 494

U.S. 1060, 110 S.Ct. 1536, 108 L.Ed.2d 775 (1990).

In State v. Atkins, 293 S.C. 294, 360 S.E.2d 302 (1987),

overruled in part on other grounds, State v. Torrence, supra, this Court

held the lower court properly refused the defendant's request for

instructions on parole eligibility. The Court concluded, however, in the

future, "if requested by the defendant,, the trial judge shall charge the

jury, that the term 'life imprisonment' is to be understood in its ordinary

and plain meaning." Id., S.C. at 300, S.E.2d at 305. As an alternative to

this charge, a defendant may request the trial judge instruct the jury

regarding possible sentences and parole eligibility as stated in § 16-3-20

(Supp. 1997)(effect of jury finding or not finding statutory aggravating

circumstance on parole eligibility). Id. Additional information regarding a

defendant's parole eligibility may be requested and charged if it is

necessary to accurately state the defendant's parole eligibility. State v.

Torrence, supra. It is reversible error to refuse an Atkins' request. State

v. Davis, 306 S.C. 246, 411 S.E.2d 220 (1991).

Although appellant requested a "Norris charge" without further

explanation, it appears he desired the court to charge only that component

of Norris which refers to life and death should be understood in their

plain and ordinary meanings. The trial judge confirmed his understanding

of the requested charge by informing counsel he would charge the terms

'death sentence' and 'life imprisonment' should be considered in their

ordinary and plain meanings. He did not indicate he would refer to parole

eligibility. During the instruction, however, the trial court referred to

parole eligibility, even though the jury had not inquired about parole and

p.36

appellant had not requested a charge on parole eligibility.

Since it is improper to refer to parole unless specifically

requested by the defendant or an inquiry is made by the jury, the trial

judge erred in mentioning parole eligibility during the charge.9 State v.

Copeland, 278 S.C. 572, 300 S.E.2d 63 (1982), cert. denied, 460 U.S. 1103,

103 S.Ct. 1802, 76 L.Ed.2d 367 (1983)(trial judge should not speculate that

parole eligibility might be considered by jury and instruct them

accordingly; to do so may, in fact, inject consideration of parole into their

deliberations where it may not have been before). Nonetheless, since the

trial judge instructed the jury not to consider parole eligibility, it is

presumed the jury did not in fact consider parole. State v. Pierce, 289

S.C. 430, 346 S.E.2d 707 (1986), overruled in part on other grounds, State

v. Torrence, supra (jurors are presumed to follow the law as instructed).

Moreover, the trial judge charged the jury "life imprisonment" and "death

sentence" are to be understood in their ordinary and plain meanings. This

instruction "necessarily precludes jury consideration of parole eligibility."

State v. Smith, supra, S.C. at 487, S.E.2d at 727. Therefore, any error in

referring to parole was harmless. See State v. Goolsby, supra (any error

in instruction referring to parole was cured when trial judge later

withdrew that portion of charge and affirmatively instructed jury to

consider the alternative sentences of the death penalty or life

imprisonment without regard to parole).10

PROPORTIONALITY REVIEW

After reviewing the entire record, we conclude the death

sentence was not the result of passion, prejudice, or any other arbitrary

factor, and the jury's finding of statutory aggravating circumstances is

instruction to "assume" life imprisonment and death sentence should be

understood in their ordinary and plain meanings was error. Since there

was no objection to this instruction below, the issue is not preserved for

appellate review. State v. Johnson, 315 S.C. 485, 445 S.E.2d 637

(1994)(failure to object to jury charge constitutes a waiver of the right to

raise the issue on appeal).

10We caution attorneys to clearly state the specific language of a

requested charge rather than relying on a term of art.

p.37

supported by the evidence. See S.C. Code Ann. § 16-3-25 (1985).

Further, we hold the death penalty is neither excessive nor

disproportionate to that imposed in similar cases. See State v. Simpson,

325 S.C. 37, 479 S.E.2d 57, cert. denied, ____U.S. ____ , ____ S.Ct.____, 138

L.Ed.2d 217 (1996); State v. Humphries, 325 S.C. 28, 479 S.E.2d 52, cert.

denied,____ U.S.____, ____ S.Ct.____, 138 L.Ed.2d 201 (1996); State v. Von

Dohlen, 322 S.C. 234, 471 S.E.2d 689, cert. denied, 519 U.S. ____, 117 S.Ct.

402, 136 L.Ed.2d 316 (1996); State v. Williams, supra; State v. Hudgins,

319 S.C. 233, 460 S.E.2d 388 (1995), cert. denied, 516 U.S.____, 116 S.Ct.

821, 133 L.Ed.2d 764 (1996); State v. Rocheville, supra; State v. Sims, 304

S.C. 409, 405 S.E.2d 377 (1991), cert. denied, 502 U.S. 1103Y 112 S.Ct.

1193, 117 L.Ed.2d 434 (1992); State v. Green, 301 S.C. 347, 392 S.E.2d

157, cert. denied, 498 U.S. 881, 111 S.Ct. 229, 112 L.Ed.2d 183 (1990);

State v. Cain, 297 S.C. 497, 377 S.E.2d 556 (1988), cert. denied, 497 U.S.

101, 110 S.Ct. 3254, 111 L.Ed.2d 764 (1990).

AFFIRMED.

TOAL, A.C.J. and WALLER, A.J., concur. Acting

Associate Justice George T. Gregory, Jr., concurs in majority

opinion in result only. MOORE, A.J., concurs in result only in

separate opinion.

p.38

MOORE, A.J.: Because I disagree that the statutory aggravating

circumstance set forth in S.C. Code Ann. § 16-3-20(C)(a)(10) (Supp. 1997)

was properly submitted to the jury, I concur in result only.

The majority concludes a viable fetus qualifies as "a child eleven

years of age or under" for purposes of the aggravating circumstance in

§ 16-3-20(C)(a)(10). Contrary to the majority's analysis, it is my view that

whether a viable fetus is a "person" for purposes of murder does not

determine the issue of its qualification as a person of a certain age under

this aggravating circumstance. See State v. Horne, 282 S.C. 444, 319,

S.E.2d 703 (1984) (recognizing a viable fetus is a "person" within the

statutory definition of murder).

All murders involve the killing of a person but, under our statutory

scheme, not all murders are capital offenses. In particular circumstances,

the victim's status as a member of a certain class of persons elevates

murder to a capital offense, for instance, murder of a judicial officer, law

enforcement officer, solicitor, fireman, or witness. § 16-3-20(C)(a)(5), (7),

and (11). The murder of a child eleven years or younger is one of these

"status" aggravating circumstances. Because of the increased penalty

determined by these aggravating circumstances, the language defining the

class of victim must be strictly construed against the State and in favor of

the defendant. See State v. Blackmon, 304 S.C. 270, 403 S.E.2d 660

(1991) (penal statute strictly construed).

I would hold a viable fetus is not included within a class of persons

statutorily defined simply by age. The age of a person is invariably

calculated from birth and not conception. When strictly construed, this

age-defined class necessarily includes only those persons already born.

Under the majority's holding, will we now calculate age from the time of

viability to determine if a victim falls within this class?

Consistent with my dissent in Whitner v. State, 328 S.C. 1, 492

S.E.2d 777 (1997), 1 find the statutory language here evinces no legislative

intent to include a viable fetus in this class of victim. Not until the

majority's 1997 decision in Whitner did any decision of this Court hold a

viable fetus was included in a statutorily age-defined class. The

legislature clearly could not have been aware of this new rule at the time

the statutory aggravating circumstance in question here was enacted in

1990. See 1990 S.C. Act No. 604, §15.

p.39

Moreover, in light of the State's position at oral argument that a

woman who aborts a viable fetus could be sentenced to death under the

rule adopted by the majority in this case, we must exercise extreme

caution not to exceed the legislative intent as expressed in the statutory

language. Allowing the imposition of death in such a case is a matter

that must be tested by full legislative debate and deliberation; it is not for

this Court to determine.

Because I believe this aggravating circumstance should not have

been submitted to the jury under the facts of this case, I concur in result

only. See State v. Elkins, 312 S.C. 541, 436 S.E.2d 178 (1993) (failure of

one aggravating circumstance does not require reversal where there

remains another valid aggravating circumstance upon which the sentence

of death is based).

p.40