State v. Charping

437 S.E.2d 88, 313 S.C. 147, 1993 S.C. LEXIS 200

• Court: Supreme Court of South Carolina
• Decided: October 11, 1993
• Docket: 23942
• Status: Published

Opinions

Harwell, Chief Justice:

James Michael Charping (Charping) appeals from the convictions and death sentence he received for his alleged role in the brutal rape and murder of Joann Pruitt (Pruitt). We reverse.

I. FACTS

Late on the evening of February 1, 1990, Charping, Jeffrey Whitlock, and John Thoman (Thoman) drove Pruitt to an isolated pond in Lexington County where she was raped, severely beaten, and drowned. At 1:21 a.m. on February 2, Thoman reported Pruitt’s murder by telephone from his home and told police that Charping and Whitlock were returning to the scene to conceal Pruitt’s body. Acting on Thoman’s information, police arrested Charping and Whitlock at the pond. A jury convicted Charping of conspiracy, kidnapping, first-degree criminal sexual conduct, and murder and sentenced him to death. Charping appealed.

II. DISCUSSION

Charping contends that the trial judge erred by failing to obtain a knowing and voluntary waiver of his right to make the final argument to the jury in the guilt phase. We agree.

S.C. Code Ann. § 16-3-28 (Supp. 1991) provides:

Notwithstanding any other provision of law, in any criminal trial where the maximum penalty is death or in a separate sentencing proceeding following such trial, the defendant and his counsel shall have the right to make the last argument. (Emphasis added.)

The 1986 amendment to section 16-3-28, which substituted “defendant and his counsel” for “defendant or his counsel,” clearly indicates that the legislature intended for capital defendants to have a personal right to make the last argument in both phases of their trials. As with other constitutional and statutory rights, we have held that a waiver of the right granted by section 16-3-28 must be knowingly and voluntarily made on the record. See State v. Orr, 304 S.C. 185, 403 S.E. (2d) 623 (1991) (knowing and voluntary waiver of the right to last argument must be satisfied by a full record); State v. Reed, 293 S.C. 515, 362 S.E. (2d) 13 (1987) (denial of a defendant’s right to make a final argument is reversible error absent a knowing and voluntary waiver of the right on the record). The State concedes that there was no such waiver in this case. Accordingly, we reverse Charping’s murder eonviction and remand his case for a new trial.¹ Our ruling makes it unnecessary for us to address Charping’s remaining exceptions.

Charping’s convictions for kidnapping, first-degree criminal sexual conduct, and conspiracy are unaffected by trial errors raised for the first time on appeal and, therefore, are affirmed. State v. Williams, 303 S.C. 410, 401 S.E. (2d) 168 (1991).

Affirmed in part, reversed in part, and remanded.

Chandler, Finney, JJ., concur. Goolsby, Acting Associate Justice, and Toal, J., concurring in part and dissenting in part in separate opinion.

1 Infavorem vitae review requires this Court to search the trial record for legal errors even though not properly preserved for appeal. State v. Torrence, 305 S.C. 45, 406 S.E. (2d) 315 (1991). Under infavorem vitae review, the omission of an on-the-record knowing and intelligent waiver of the right to address the jury at the close of the guilt phase mandates reversal. State v. Rocheville, 425 S.E. (2d) 32 (1993).

The dissent urges us to find the error harmless or to remand the ease for a factual determination of waiver. Error is harmless only when it could not reasonably have affected the result of the trial. State v. Reeves, 301 S.C. 191, 391 S.E. (2d) 241 (1990). We have stated that speculation as to whether an appellant was prejudiced by being denied his right to final argument is inappropriate. Reed, 293 S.C. at 518, 362 S.E. (2d) at 14. Moreover, it is clear that the waiver must be made on the record. Orr, 304 S.C. at 188, 403 S.E. (2d) at 624.