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Classification: Murderer
Characteristics: Drugs
Number of victims: 3
Date of murders: November 17, 1997
Date of arrest: Same day (surrenders)
Date of birth: June 5, 1967
Victims profile: Shane, 27, and Stacy Walters, 21, half-brothers, and Sonya Cann, 21
Method of murder: Shooting
Location: Anderson County, South Carolina, USA
Status: Sentenced to death in 2000. Resentenced to three life sentences without parole on July 27, 2007
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Triple-murderer Burkhart sentenced to life in prison

Families agreed to life to prevent third trial

By David Williams -

Friday, July 27, 2007

— Troy Alan Burkhart, showing no remorse and proclaiming he acted in self-defense in the fatal shootings of three people, was given three life sentences without parole by Judge J.C. Buddy Nicholson on Friday.

Burkhart, who killed three people during an 11-shot shooting spree in the cab of a pickup truck in 1997, has twice been convicted and sentenced to death.

The South Carolina Supreme Court had ruled only the sentencing phase was flawed in the second trial after testimony described prison conditions and did not focus solely on the defendant or the crime.

About a dozen relatives of murder victims Shane and Stacy Walters and Sonya Cann sat in the jury box of the fourth floor courtroom in the Anderson County Courthouse as three sheriff’s deputies stood around Burkhart and his court-appointed attorney Andy Potter.

Judge Nicholson, who was on the bench during the second trial, denied Burkhart’s motion that the judge step down. The motion argued that the judge also is hearing a civil case involving Burkhart’s uncle Ronnie Burkhart, who died shortly after Troy Burkhart was convicted the first time in March 2000. Judge Nicholson also denied Troy Burkhart’s request to be relieved of his attorneys.

Burkhart has said it was his uncle, known by local and federal authorities as a drug kingpin, who wanted him killed. Burkhart also contends his uncle and another person were in the kudzu field the morning of the killings.

Judge Nicholson told Burkhart repeatedly that the hearing Friday was for sentencing only.

“We’re not here to prove innocence or guilt,” Judge Nicholson said.

Tenth Judicial Circuit Solicitor Chrissy Adams told the court that Burkhart had been offered life in prison before the second trial and turned down the offer. Ms. Adams also said she was prepared to seek a third death sentence for Burkhart, but the victims’ families needed closure.

“They simply can not go through a third trial and be forced to listen to the horrific details surrounding their loved ones’ deaths,” Ms. Adams said.

With Juanita Shead, Shane Walters’ mother, standing at her side, Ms. Adams read Ms. Shead’s statement that called Burkhart a “sorry” human being who took her son and she now finds herself crying for hours.

Deborah Byrum, Sonya Cann’s mother, also stood next to Ms. Adams, said she hopes when Burkhart closes his eyes at night he will relive that cold November night again.

Dana Albertson, Shane Walters’ sister, fought back tears as she read her statement.

“He should sit in a small cell and think about what he did,” Ms. Albertson said. “He took my brother and uncle. … Why is he even given a choice? The Bible should be our law, an eye for an eye. Something’s wrong when the murderer has more rights than the victim.”

Burkhart’s father, wife and sister were joined by several other family members and friends, but no members of the group addressed the court.

Burkhart can appeal Friday’s sentencing, but for now he will be sent to a maximum-security prison, Ms. Adams said.


Troy Burkhart could get off death row at Friday hearing

By David Williams -

Monday, July 23, 2007

Troy Alan Burkhart walked into the Seneca Police Department nearly ten years ago splattered with blood after killing three people in an Anderson County kudzu field.

Twice Burkhart has been convicted of the gruesome slayings of two Townville brothers and an Anderson woman and sentenced to death.

On Friday, Burkhart is scheduled to be back in the Anderson County Courthouse, and this time he could plead to three life sentences and get off death row.

Tenth Circuit Solicitor Chrissy Adams said she would reserve comment until after the hearing Friday.

The hearing scheduled to start at 10 a.m. before Judge J.C. “Buddy” Nicholson will give Burkhart the opportunity to be sentenced to life in prison without parole.

The South Carolina Supreme Court overturned Burkhart’s first conviction, saying Judge Donald Beatty did not instruct the jury that the prosecution had to disprove self-defense beyond a reasonable doubt.

After Burkhart was convicted and sentenced a second time, the court ruled the sentencing phase was flawed because prison conditions were part of the sentencing, which should have dealt with just the crime.

In a brief phone conversation with the Anderson Independent-Mail from the Anderson County Detention Center last week, Burkhart said there is someone else who was in that kudzu patch on Nov. 17, 1997, with his uncle Ronnie Burkhart.

“It’s like pulling hair trying to get them to come forward,” Troy Alan Burkhart said. “He needs to be contacted. The past four days I’ve been trying to get an officer here to come down and tell him everything.”

Burkhart insists that a lot of things have not come to light in the last 10 years and that there was a lot of perjury during the two trials. Death penalty cases include a sentencing phase after the defendant has been convicted.

In the two trials, prosecutors described a weekend of drug use and partying after Shane Walters, 27, and his brother Stacy, 21, helped Burkhart repair the septic tank at Traditions nightclub on a Friday.

Burkhart and his wife, Michelle, operated the nightclub and catering business on Coneross Creek Road and lived nearby in southern Oconee County.

Stacy lived with his older brother on Woolbright Road in Townville, and the two ran a business that moved and set up mobile homes.

Sonya Cann, 21, of Carole Avenue in Anderson never had met Burkhart until 5:30 a.m. Nov. 17, a Monday morning, when the three men showed up at her house. to go four-wheeling and deer-spotting in Shane’s extended-cab type Dodge pickup truck. Testimony indicated Shane had known Ms. Cann from her work as a waitress.

At some point, with all four in the truck on that chilly November morning, Burkhart said the situation became a scene out of the movie “Deliverance” and some one said, “Make him squeal like a pig.”

Investigators could only piece together the horror that followed in the next few minutes.

The prosecution, led by then-assistant solicitor Druanne White, showed Burkhart had to reload his seven-shot .45-caliber Colt Commander pistol during a shooting spree inside and outside the truck. Shane Walters was shot six times, including one wound to the back of the head. Stacy Walters was shot in the right temple and the right cheek, and Ms. Cann was shot three times, including the right temple and through the left eye.

When the shooting started, Shane Walters was in the driver’s seat, and Ms. Cann was in the middle between Burkhart and Shane Walters. Stacy Walters was in the back portion of the cab.

Burkhart pulled the three bodies out of the truck and shot Ms. Cann while she was on the ground, authorities testified. He then left the kudzu field in the pickup truck and drove to his father’s house near Seneca. His father, Warren Burkhart, eventually took him to the Seneca Police Department.

An Anderson Sheriff’s helicopter later located the three bodies off Old Denver Road near Pearman Dairy Road.

Ms. Cann had a three-year-old daughter at the time of her death and Stacy Walters had two sons ages 3 and 1.

Burkhart is not alone in his belief that he was fighting for his life.

His sister Lori and his wife also have proclaimed Burkhart’s innocence based on self-defense. The two women also say they hurt for the victims’ families.

“I pray their families will have peace,” Lori said during an interview with the Independent-Mail.

She has moved back to Seneca and is caring for her father, Warren, who has cancer.

Burkhart’s wife also has moved back to Oconee County after looking after a sister in Charleston.

Michelle Burkhart said her husband has now been in jail longer they have had been together. The two still are married.

“We were engaged for one year and married five years,” she said.

She and Lori have been friends since their high school days in Seneca. She has known her husband, now 39, since she was 15 years old.

“I pray for mercy and grace every day,” Michelle said. “Troy feels like when he is sentenced to life he will be killed in jail. Troy has told the truth from day one.”

Ten years and two trials with death sentence hearings have been a different kind of sentence for the victims’ families who said there was no justice when the second trial was ordered.

Lawrence Walters, the father of two men, said he could not watch his sons’ killer’s retrial.

“This trial is no justice,” Mr. Walters said after the first trial. “I am not going to sit down there and have them make a mockery of my two sons laying up there in the ground.”

Deborah Byrum, Ms. Cann’s mother, also was deeply disturbed by the re-trial.

“We don’t need this,” Ms. Byrum said. “All we’ve got is going to the graveyard and grieving for my child and Shane and Stacy. I know them boys, and they were good boys, and Sonya wasn’t with them 25 minutes, and she never even met Mr. Burkhart and now she’s dead. I’ve lived with those pictures of my daughter’s brains being blown out.” He said he never met her until that day and only knew her 25 minutes when he shot her in the face three times.”

Mr. Walters said he can’t forget those past events.

“You don’t forget a call to go to the Anderson hospital and the morgue to identify your sons and you see that they are that sickening blue color and blood is running out of their heads and ears where that idiot shot them,” he said.

Burkhart, who is in custody in Anderson, said Ronnie Burkhart and another person were in the kudzu field the night of the killings.

Former Anderson Sheriff Gene Taylor testified that Ronnie Burkhart was the target of an extensive local and federal drug investigation, including ties to area attorneys and Florida lawyers.

However, Ronnie Burkhart died of cancer in April 2000 shortly after his nephew was sentenced to death. Also, Ronnie Burkhart never testified, but defense witnesses said he was someone to fear.

Shortly after marrying Ronnie Burkhart, Janice Burkhart was arrested a month after his death from cancer and she pleaded guilty to giving false information to a federal agent about a $390,000 cashier’s check.

The state also targeted $1.3 million that was left in the control of various attorneys and more than 260 acres in land parcels throughout Oconee County that were identified as purchases for drug money laundering.

Some of the property included lots in such subdivisions as Keowee, Townville Lakes Plantation, Keowee Inlet, Clemson Forest, Calhoun Point and Loran Pointe.

Burkhart insists that his knowledge of his uncle’s operations put him in his uncle’s sights.

“My uncle’s own stepson as well as another employee testified that they all worked for my uncle, and that he in fact wanted me killed,” Burkhart said.

For Burkhart’s sister, it is an uphill battle to find those who believe her brother.

“Apathy is our biggest hurdle,” Lori Burkhart said. “It all seems so beyond our control, and it is so frustrating.”


In The Supreme Court

The State, Respondent,


Troy Alan Burkhart, Appellant.

Appeal From Anderson County
Donald W. Beatty, Circuit Court Judge

Opinion No. 25484
Heard December 13, 2001 - Filed June 17, 2002


CHIEF JUSTICE TOAL: Troy Alan Burkhart ("Appellant") appeals his convictions on three counts of murder and three counts of possession of a firearm during commission of a violent crime for which he was sentenced to death. We reverse.

Factual/Procedural Background

On January 13, 1998, the grand jury for Anderson County indicted Appellant for the murders of Shane and Stacy Walters, half-brothers, and Sonya Cann. In addition to the three counts of murder, Appellant was indicted on three counts of possession of a firearm during the commission of a violent crime. Although Appellant admitted to shooting and killing Shane, Stacy, and Sonya, he pled not guilty, claiming he killed them all in self-defense.

After a two week trial beginning on March 6, 2000, the jury convicted Appellant on all three counts of murder and all three counts of possession of a firearm during commission of a violent crime. The following day, the jury recommended Appellant be sentenced to death, citing the murder of two or more persons pursuant to one scheme or course of conduct as the statutory aggravator. The trial judge affirmed their recommendation and sentenced Appellant to death.

According to the record, Appellant met the Walters brothers just a few days before they were killed. It all began when a mutual friend, Paul Zastrow, introduced Appellant and the Walters when they met by chance at Zastrow's house on Friday, November 14, 1997. Appellant did not know the Walters before that weekend and claims he did not know Sonya Cann at all. Appellant owned and managed a bar called Traditions, and the Walters set up mobile homes for a living.

A group of Clemson students had rented Appellant's bar for a private party that weekend, but Appellant was having trouble with his septic tank. Zastrow suggested that the Walters might be able to help fix it. Appellant accepted the offer and Zastrow and both Walters arrived at Traditions Friday evening, November 14, to work on the septic tank. They built a bonfire and spent the night working on the septic tank, drinking, doing drugs (methamphetamine and marijuana), and talking about deer hunting. An impromptu party developed as several other friends showed up and joined them.

Although Burkhart often carried a sidearm (because, he testified, "I deal with money and liquor and I'm in a secluded location") (1), he had never been hunting, but had become interested in learning to hunt in the weeks preceding these events. After the party broke up, Appellant, Shane, Stacy, and another friend drove around in the woods with their guns looking for deer. Apparently, the group saw and startled a deer at some point before deciding to go home. Shane took Appellant home and told him he could help him again with the septic tank on Saturday if necessary.

The next day, Saturday, November 15, went much like the previous evening. Appellant picked up Shane at Paul Zastrow's house around 9:00 p.m. and they drove to Traditions to work on the septic tank. Many of the same people from the night before returned, and the group drank alcohol and did drugs until the bar closed, just as they had on Friday night.

Apparently, Shane and Appellant agreed to go hunting the following morning. Appellant dropped Shane off and went home to prepare to go hunting. Appellant waited on Shane, but he never showed up. Appellant drove to Shane's house twice and knocked on the door, but got no answer. Assuming Shane fell asleep, Appellant drove to Paul Zastrow's house for coffee and then drove home to go to sleep.

That afternoon, Sunday, November 16, Shane and his wife Vicky had some friends over to watch car races on television. Appellant called Shane several times, and he and Paul Zastrow went over to the Walters' trailer around 4:00 p.m. Stacy came in from work a short time later. At some point, Shane, Stacy, and Appellant decided to go "four-wheeling" in Shane's truck. Appellant had his gun with him in case they went hunting, and Shane had his rifle. The three men were drinking and doing drugs at this time.

At some point after four-wheeling, the threesome drove over to Tammy Steele's house where they continued partying. According to Tammy, Appellant's wife called him on his mobile phone while he was there and, after speaking to her, Appellant said he did not want to go home that night. Tammy also testified that Appellant mentioned that his business was not doing well and thanked Shane and Stacy profusely for helping him with the septic tank.

At some point, Tammy's sister, Danielle, came over. Some time later, Paul Zastrow contacted the group and asked if Appellant could bring him some beer from Traditions. Appellant agreed to do so, and he, Shane, and Danielle went by Traditions and then onto Zastrow's, where they did more drugs and drank with Zastrow and his girlfriend. While they were gone, Tammy testified that she and Stacy had sex and that the condom Stacy was wearing broke and they could not find it. (2)

Shane, Danielle, and Appellant returned to Tammy's house until the party disbursed sometime after 5:00 a.m. Shane, Stacy, and Appellant left Tammy's house in Shane's truck. After they left her house, Shane drove them to Sonya Cann's house to pick her up. Sonya sat in the front of the truck between Shane and Appellant and Stacy sat on the backseat of the truck, behind Appellant on the passenger side. They drove around for a little while, eventually going up to an isolated kudzu field known to everyone in the truck but Appellant.

From this point on, Appellant testified that the atmosphere in the truck changed dramatically. He related the ensuing events as follows:

When we got to the top, we parked and I believe there was some beer opened and Sonya handed Stacy some, what I believed to have been some more methamphetamine. . . . Stacy was, was fixing it . . . on a CD case. And I said to Shane, I said, "Are there any deer here, where are the deer?" He didn't answer, but Sonya said, "There ain't no deer here, this is a scattering field.". . . I didn't know what to think of that. I guess I just let it go and didn't think much more about it. And I . . . started a conversation about the restaurant. Shane and I had talked about him knowing someone that could help me that wasn't a bank. And I asked him a little more about that. And he told me that he had that worked out and that I didn't have to worry about that. . . .That's when Stacy handed Shane a cassette case with some what I thought to be methamphetamine on it. . . . He held it for a moment and passed it to me. When I got it, it still had four lines or four piles of powder on it. . . . [O]n occasion when we had done drugs before, when I got it, there was only one line left on it. I thought it was strange that there were four and it had been passed through the other three. . . . As he passed it to me, he asked me if I had ever wronged anyone. And I said, "No, what do you mean by that?" Then he said, "Have you ever wronged your Uncle Ronnie?"

Appellant claims that this question "struck fear into [his] soul." Appellant and his father considered Ronnie, who had a reputation for being a somewhat ruthless drug smuggler, an enemy. (3) Appellant's testimony continued:

[Shane] said that he and Ronnie had this thing worked out, that he had gotten money from drugs in Florida. . . . [Shane] said all he had to do was take care of me . . . . Then [Shane] said, "it's time to get this over with." Then he pulled out the gun and told me to get the hell out of the truck. . . . Stacy had had [sic] me around the neck and had a knife in his hand and said, "we're going to make you squeal like a pig, boy." . . . Sonya said, "Yeah, baby, make him squeal like a pig." . . . I lunged for the gun and then the gun went off. . . . I was able to get the gun and I just shot. I just shot. . . . I couldn't say which direction. . . . I shot until it wouldn't shoot. . . . I opened the driver's door and . . . I pushed Shane and Sonya out of the truck. . . . I heard what sounded like another door slamming. . . . I looked on the seat and saw the other clip for the gun was there, and I put the other clip in the gun. . . . I couldn't get it to work. I couldn't get the bullet to go in. And I remember trying to get it to work and bullets coming out, and I remember it going off. Then I got out of the truck to see what it was that I may have heard, and I couldn't see anything. I went around and I pulled Stacy out of the truck. . . . I got in the truck and got the hell out of there. . . . I thought I was going to be raped and killed.

Shane Walters was shot six times, including one fatal wound to the back of the head. Stacy Walters was shot in the right temple and right cheek, either of which would have been fatal. Sonya Cann was shot three times, including fatal wounds to the right temple and through the left eye.

The State contended, contrary to Appellant's account, that the shots that killed Shane and Sonya were fired after they were already incapacitated, lying on the ground outside the truck, and that Appellant had stomped Sonya and Stacy with his boot after he shot them. Still, the State's pathologist who advanced these theories could not rule out self-defense, particularly in view of the amount of drugs and alcohol consumed. A defense pathologist testified that the shootings could have occurred exactly as Appellant described.

On cross-examination, Appellant unequivocally denied the State's accusations. He testified, "I did not stomp anyone and I did not shoot anyone on the ground." Appellant described the episode as a five-second fight for his life against Stacy, Shane, and Sonya. According to Appellant, he had no choice but to kill them all in self-defense.

Once he was out of danger, Appellant claims he became concerned for the safety of his father and his wife. He left the kudzu field in Shane's truck and called his father from a cell phone. Appellant testified that he drove directly to his father's house, that he and his father got into his father's truck, and then drove to his own house to get his wife. Appellant told his wife that Ronnie had tried to kill him and that he had shot three people defending his life, describing it as a "scene out of Deliverance." (4) From his house, Appellant, his father, and his wife, drove to the Seneca Police Department.

Appellant claims to have told the police the same story he told at trial when he led them to the bodies later that morning, including the Deliverance "squeal like a pig" threat of homosexual rape. This is significant because Stacy Walters' autopsy later revealed he was wearing a condom at the time he was killed which Appellant could not have known when he took the police to the scene. The State speculated it was the same condom Stacy wore when he had sex with Tammy Steele earlier in the evening, but the defense argued this was highly unlikely as hours had passed since he had sex with Tammy, and that this fact corroborated Appellant's self-defense claim.

At trial, the judge instructed the jury on murder, voluntary manslaughter and self-defense. Defense counsel submitted a number of written requests for the judge to charge concerning self-defense, two of which would have charged the jury that the State must prove the defendant did not act in self-defense beyond a reasonable doubt. Instead, in addition to the basic four element self-defense instruction from State v. Davis, 282 S.C. 45, 317 S.E.2d 452 (1984), the judge charged, "[t]he defendant, ladies and gentlemen, is not required to prove the defense of self-defense. All burdens of proof in this case are on the State and remain with the State."

The judge did not charge the reasonable doubt instruction submitted by the defense. Defense counsel objected that the charge given did not comport with State v. Wiggins, 330 S.C. 538, 500 S.E.2d 489 (1998)(requiring the State to disprove self-defense beyond a reasonable doubt). The judge refused to add to the charge, finding the charge he had given to be sufficient in light of present law relating to burden of proof and self-defense. After the jury found Appellant guilty, defense counsel moved for a new trial, based once again on the judge's failure to "to charge that the state has the burden of proving beyond a reasonable doubt the absence of the elements of self-defense," citing Wiggins for support. The judge denied defense counsel's motion, relying on his earlier ruling.

As discussed, Appellant was convicted on all three counts of murder and possession of a firearm during commission of a violent crime at trial and sentenced to death. On appeal, Appellant raises the following issue:

Did the trial judge commit reversible error in refusing to charge the jury that the State bore the burden of disproving self-defense beyond a reasonable doubt?


Appellant argues the trial court committed reversible error when it refused to charge the jury that the State bore the burden of disproving self-defense beyond a reasonable doubt. We agree.

If there is any evidence in the record to support self-defense, the issue should be submitted to the jury. State v. Hill, 315 S.C. 260, 433 S.E.2d 848 (1993). In general, the trial judge is required to charge only the current and correct law of South Carolina. Cohens v. Atkins, 333 S.C. 345, 509 S.E.2d 286 (Ct. App. 1998). A jury charge is correct if it contains the correct definition of the law when read as a whole. Keaton v. Greenville Hosp. Sys., 334 S.C. 345, 514 S.E.2d 570 (1990).

The substance of the law must be charged to the jury, not particular verbiage. Keaton. "Current law requires the State to disprove self-defense, once raised by the defendant, beyond a reasonable doubt." Wiggins, 330 S.C. at 544, 500 S.E.2d at 493. Finally, to warrant reversal, a trial judge's refusal to give a requested charge must be both erroneous and prejudicial. Ellison v. Parts Distributors, Inc., 302 S.C. 299, 395 S.E.2d 740 (Ct. App. 1990).

This Court recently clarified the State's burden when a defendant raises self-defense:

In Wiggins, we specified for the first time, though not in the context of a jury charge, that the State has the burden of disproving self-defense. . . . When self-defense is properly submitted to the jury, the defendant is entitled to a charge, if requested, that the State has the burden of disproving self-defense by proof beyond a reasonable doubt. (5)

State v. Addison, 343 S.C. 290, 293, 540 S.E.2d 449, 451 (2000). (6)

In this case, the trial judge charged the jury on the four elements of self-defense pursuant to State v. Davis and, additionally, charged that the defendant did not have to prove self-defense and that the burden remained on the State at all times. The State argues that this charge, coupled with the other charges given by the judge, complied with Wiggins by conveying to the jury that all of the evidence, including evidence of self-defense, must be considered in the jury's calculation of reasonable doubt.

We disagree with the State. We do not believe the trial judge's self-defense charge adequately conveyed that the State has the burden of disproving self-defense beyond a reasonable doubt as required under Wiggins. It is the substance of the law and not the "particular verbiage" of a charge that determine whether the charge is adequate, and, in this case, the trial judge's charge did not accurately communicate the "substance of the law" as pronounced in Wiggins. Keaton.

In State v. Fuller, this Court made clear that it did not intend Davis to be the exclusive self-defense charge. 297 S.C. 440, 377 S.E.2d 328 (1989). This Court removed the burden of proving self-defense from the defendant and placed it instead on the State in Davis. In Wiggins, this Court eliminated any confusion lingering since Davis by enunciating the State's precise burden clearly: "current law requires the State to disprove self-defense, once raised by the defendant, beyond a reasonable doubt." 330 S.C. at 544, 500 S.E.2d at 492.

Under Wiggins and now Addison, when self-defense is properly submitted to the jury, the defendant is entitled to a charge, if requested, that the State has the burden of disproving self-defense by proof beyond a reasonable doubt. Addison; Wiggins. The instruction regarding burden of proof in this case did not reference the beyond reasonable doubt standard, required arguably since Davis, and without a doubt since Wiggins. Further, the instruction did not include any language indicating that the State must disprove Appellant's self-defense claim or, conversely, that the State must prove Appellant did not act in self-defense.

There is a difference between the charge given in this case and the charge required by Wiggins and now, if requested, by Addison. Charging that the State must disprove Appellant's self-defense claim is a vastly clearer description of the burden of proof than simply charging that the defendant does not need to prove self-defense, as the trial judge charged in this case. Charging that the State must disprove self-defense or, that the State must prove the elements of self-defense are not present, clearly places the burden on the State, as this Court intended. (7) Addison; Wiggins. In our opinion, the trial judge erred by not charging under Wiggins as requested by defense counsel immediately after the charges were given.

As noted, to warrant reversal, a trial judge's refusal to give a requested jury charge must be both erroneous and prejudicial to the defendant. Keaton; State v. Hughey, 339 S.C. 439, 529 S.E.2d 721 (2000). The jury charge is to be read as a whole in considering whether it adequately covers the law. Hughey. Failure to give requested jury instructions is not prejudicial error where the instructions given afford the proper test for determining the issues. Orders Distributing Co., Inc. v. Newsome Carpets & Wallcovering, 308 S.C. 429, 418 S.E.2d 550 (1992).

Appellant admitted to killing all three victims and relied entirely on self-defense at trial. In another case, the Court of Appeals found the judge's failure to give a requested charge to be prejudicial when the charge related to the "sole issue before the jury." Ellison v. Parts Distributors, Inc., 302 S.C. 299, 395 S.E.2d 740 (Ct. App. 1990). The Ellison court held prejudice resulted from the judge's failure to give a general charge on circumstantial evidence when the majority of evidence presented on payment, the sole issue in the case, was circumstantial. Because we consider the issue of self-defense versus murder to be the sole issue in this case, we find the trial judge's failure to properly instruct the jury on burden of proof to be prejudicial, warranting reversal. (8)

Although the trial judge did charge that the burden was on the State and remains on the State, we do not believe that charge was adequate. Similarly, the fact that defense counsel enunciated the proper burden in his closing argument, telling the jury, "you must find the defendant not guilty unless the State proves to you beyond a reasonable doubt that each of the elements of self-defense do not exist in this case" does not adequately convey the State's burden. Clearly, the judge's instruction carries far more weight with the jury than defense counsel's word in his closing argument. We cannot assume the jury was able to connect the State's general burden to prove Appellant's guilt beyond a reasonable doubt to the trial judge's charge regarding self-defense when the judge failed to mention the reasonable doubt standard at all and only said the defendant did not have to prove self-defense. The trial judge's charge only implicitly placed the burden on the State, and that is not sufficient under Wiggins and Addison.

Self-defense was the most significant issue for the jury to decide. Appellant admitted to the killings on the stand at trial. His credibility and the relative burdens of proof surrounding self-defense were central to this case. In light of that conclusion, we find the trial judge's error was prejudicial to Appellant and constituted reversible error.


Based on the foregoing reasons, we REVERSE and REMAND this case for a new trial on each of Appellant's convictions.

MOORE and WALLER, JJ., concur. PLEICONES, J., concurring in result in a separate opinion in which BURNETT, J., concurs.

JUSTICE PLEICONES: I concur with the result reached by the majority. At the time Burkhart was tried, he was entitled to the charge he requested: That the State has the burden of disproving, beyond a reasonable doubt, his self-defense claim. Upon further reflection, however, I am convinced that this charge is confusing and imposes an impossible burden on the State.

In every criminal trial the burden is on the State to prove every element of the crime charged beyond a reasonable doubt. Instructions should focus the jury's attention on this fundamental principle. The charge mandated by Addison and Wiggins, in essence, requires the State prove, not an element of the offense, but rather a negative.

I agree with the following statement of the law taken from State v. Davis, 282 S.C. 45, 46, 317 S.E.2d 452, 453 (1984): If, after considering all the evidence presented including the evidence of self-defense, the jury has a reasonable doubt as to the defendant's guilt, then the jury must find the defendant not guilty. On the other hand, if, after considering all the evidence including the evidence of self-defense, the jury has no reasonable doubt of the defendant's guilt, then it must find the defendant guilty.

In my view, this statement properly informs the jury of the State's burden to prove the defendant's guilt beyond a reasonable doubt.

I therefore concur in the result, and would prospectively overrule State v. Addison, 343 S.C. 290, 540 S.E.2d 449 (2000), and State v. Wiggins, 330 S.C. 538, 500 S.E.2d 489 (1998).

BURNETT, J., concurs.


1. Appellant purchased a Colt .45 automatic - the gun he shot Shane, Stacy, and Sonya with - at a pawn shop a few years before this episode.

2. This testimony is relevant because Stacy's autopsy revealed he was wearing a condom at the time of his death which Appellant claims corroborates his story that Stacy threatened him with homosexual rape. The State refuted this evidence by arguing the condom was the same one he used with Tammy earlier in the night.

3. Ronnie Burkhart and his brother, Appellant's father, Warren Burkhart, hated each other so much, according to an attorney with first-hand knowledge of their relationship, that they could not be left alone in a courtroom together without getting into a fist fight. Ronnie seemed determined to ruin his brother financially and there were several lawsuits between the two brothers. Appellant's relatives referred to Ronnie as "very vicious" and as an "evil person."

4. James Dickey, Deliverance, Boston: Houghton Mifflin, 1970. Dickey's best-selling novel, Deliverance, set on a white water river in the Georgia wilderness, has become famous, not only for its masterful prose, but for its vivid account of a sexual assault of a man by a group of rough and brutal men he and his three friends encountered while canoeing the river.

5. Nearly all state courts considering the prosecution's burden of proof have held the defendant is entitled to such a charge. See, e.g., Williams v. State, 538 S.E.2d 544 (Ga. 2000); Miller v.State,720 N.E.2d 696 (Ind. 1999); State v. Osborne, 775 So. 2d 607 (La. App. (4th Cir.) 2000); Commonwealth v. Beauchamp, 732 N.E.2d 311 (Mass. 2000); State v. Plante, 623 A.2d 166 (Me. 1993); State v. Cooper, 561 N.W.2d 175 (Minn. 1997); State v. Santamaria, 756 A.2d 589 (N.H. 2000); State v. Garcia,18 P.3d 1123 (Utah App. 2001); State v. Walden, 932 P.2d 1237 (Wash. 1997).

6. Because Addison was decided shortly after Appellant's trial, we do not rely on it alone in this case. Wiggins, by itself, is sufficient to support our analysis and ultimate decision in this case. Addison does, however, clarify what this Court stated in Wiggins and provides an instructive description of the Wiggins decision. The only change Addison makes is to place a limitation on when the charge must be given. After Addison, the charge set out in Wiggins is required only if requested. Presumably then, before Addison, the Wiggins charge must have been given whenever a self-defense charge was merited.

7. In the concurring opinion, it is argued that the Wiggins and Addison cases impose an impossible burden on the State and, therefore, should be reversed. As we observed in Addison, however, nearly all courts that have considered the state's burden of proof have held that when the defendant presents evidence of self-defense he is entitled to a charge that the state bears the burden of disproving self-defense beyond a reasonable doubt. See Supra n. 5 (providing citations of several state court opinions enunciating this rule); 43 A.L.R.3d 221 § 5(b) (Supp. 2001) (listing cases in support of rule that once self-defense is properly raised, the state has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense).

8. Some courts find proper self-defense charges to be so important that prejudice is presumed if error is identified. "'A jury instruction misstating the law of self-defense amounts to an error of constitutional magnitude and is presumed prejudicial.'" State v. Walden, 932 P.2d 1237, 1239 (Wash. 1997) (quoting State v. LeFaber, 913 P.2d 369 (Wash. 1996)).


In The Supreme Court

The State, Respondent,


Troy Alan Burkhart, Appellant.

Appeal from Anderson County
J.C. Buddy Nicholson, Jr., Circuit Court Judge

Opinion No.  26243
Heard September 20, 2006 – Filed January 8, 2007 


JUSTICE MOORE:  Appellant shot and killed three people in a rural area of Anderson County on November 19, 1997.  The victims were brothers Shane and Stacy Walters, aged twenty-seven and twenty-two, and Sonya Cann, aged twenty-one.  Appellant was convicted of three counts of murder and three counts of possessing a firearm during the commission of a violent crime and sentenced to death.  These convictions were overturned on appeal.  State v. Burkhart, 350 S.C. 252, 565 S.E.2d 298 (2002).  In March 2004, appellant was again convicted and sentenced to death.  We affirm appellant’s convictions but reverse and remand for resentencing.


Appellant became acquainted with brothers Shane and Stacy Walters on a Friday night when they met at a mutual friend’s home.  Appellant asked the brothers for help with the septic tank at his restaurant.  They worked together and socialized over the course of the weekend.  All three used methamphetamine repeatedly from Friday until late into the night on Sunday. 

At about 5:00 a.m. Monday morning, the three men went to pick up Shane’s girlfriend, Sonya, at her home.  The four of them drove off in Shane’s extended-cab “dually” truck.  The victims were not seen alive again.

Later that morning, at about 8:15 a.m., appellant came to the Seneca police department and told police he had killed three people in self-defense.  He led police to a secluded kudzu field where police found the bodies of Shane, Stacy, and Sonya on the ground. 

The truck was recovered from where appellant had parked it at his father’s house.  Its interior was covered with blood.  Forensic evidence indicated that all three victims had been shot in the head at close range while seated in the cab of the truck and their bodies had been dragged onto the ground.  The State also produced evidence that Stacy and Shane had been stomped while on the ground and Sonya was shot in the head while lying there.

The only weapon used was appellant’s semi-automatic pistol which could hold eight rounds, seven in the magazine and one in the chamber.[1]  Two empty magazines were at the scene indicating appellant had reloaded.  Experts estimated up to eleven shots could have been fired. 


1.     Was the exclusion of evidence in the guilt phase prejudicial?

2.     Was the admission of evidence regarding prison conditions in the sentencing phase reversible error?


1.  Exclusion of evidence in guilt phase

Appellant claimed self-defense.  He testified that he killed the victims because he believed the brothers had been hired to kill him by his uncle, Ronnie Burkhart, an infamous drug-dealer with whom appellant was on bad terms. 

Appellant testified that when they arrived at the kudzu field, Shane was holding appellant’s gun because appellant had given it to him to shoot at a deer earlier.  While they were sitting in the truck, Shane asked appellant if he had ever wronged “Uncle Ronnie.”  Because appellant had been threatened by Ronnie and was surprised that Shane knew Ronnie, he immediately became anxious.  Shane then pointed the gun at appellant and ordered him out of the truck.  Stacy said, “We’re going to make you squeal like a pig, boy,” which appellant took to mean they were going to rape him. 

Appellant grabbed the gun from Shane and began shooting.  When it was over, he pushed the bodies out of the truck and put the second magazine in the gun because he thought someone else may have been out in the field.  A shot went off outside the truck.  Finally, appellant drove off in Shane’s truck.  He went to pick up his wife and his father because he was afraid Ronnie would hurt them.  After parking Shane’s truck at his father’s house, appellant went to the police.

Sheriff Taylor was called as a defense witness.  He testified that Ronnie, who was now deceased, was at one time an international drug smuggler in cocaine and marijuana with connections to violent drug lords.  On cross-examination, Sheriff Taylor stated that Ronnie was very careful in his dealings.  The solicitor then asked, “Did you ever uncover anything that showed that Shane and Stacy were on (sic) any of this inside circle that Ronnie Burkhart would have trusted them?”  Sheriff Taylor answered “no.” 

In reply, the defense sought to elicit Sheriff Taylor’s testimony that Shane had been arrested for buying a sixteenth of an ounce of methamphetamine from an undercover agent in December 1995, two years before the killings.  The solicitor objected on the ground of relevance and the trial judge excluded the evidence.  Appellant claims the exclusion of this evidence prejudiced him because it indicated a relationship between the brothers and Ronnie that would substantiate his claim of self-defense.  We disagree.

Sheriff Taylor testified Ronnie Burkhart was out of the drug business by 1991, Ronnie did not deal in methamphetamine, and he knew of no connection between Shane’s 1995 drug transaction and Ronnie.  In the absence of any evidence linking Shane’s drug transaction to Ronnie, the excluded evidence did not tend to make more or less probable appellant’s claim that Shane would have worked for Ronnie as a hit man.  See Rule 401, SCRE (evidence is relevant if it tends to make the existence of any fact at issue more or less probable).  We find the exclusion of this evidence could not reasonably have affected the outcome of the trial.  See State v. Johnson, 363 S.C. 53, 609 S.E.2d 520 (2005) (exclusion of evidence is not reversible error if it could not reasonably have affected outcome of trial). 

2.  Admission of evidence in sentencing phase

During the sentencing phase of trial, appellant objected to testimony by State’s witness James Sligh, Director of Inmate Classification for the Department of Corrections, regarding the privileges available to an inmate who receives a sentence of life without parole.  These privileges include access to the yard, work, education, meals, canteen, phone, library, recreation, mail, television, and outside visitors.  On cross-examination, Sligh acknowledged that prison life is “very regimented” and “is not a country club.”  Further, appellant presented evidence through his own witness that prison is a harsh environment with violent predators where one’s freedom is severely curtailed. 

We have long held that evidence in the sentencing phase of a capital trial must be relevant to the character of the defendant or the circumstances of the crime.  State v. Copeland, 278 S.C. 572, 300 S.E.2d 63 (1982).  The jury’s sole function is to make a sentencing determination based on these factors and not to legislate a plan of punishment.  State v. Johnson, 293 S.C. 321, 360 S.E.2d 317 (1987).  “Such determinations as the time, place, manner, and conditions of execution or incarceration . . . are reserved . . . to agencies other than the jury.”  State v. Plath (Plath II), 281 S.C. 1, 15, 313 S.E.2d 619, 627 (1984) (emphasis added).  Based on this reasoning, we have disallowed defense evidence regarding the process of electrocution, State v. Plath (Plath I), 277 S.C. 126, 284 S.E.2d 221 (1981), and expert testimony regarding the deterrent effect of capital punishment.  State v. George, 323 S.C. 496, 476 S.E.2d 903 (1996).

Recently, in State v. Bowman, 366 S.C. 485, 623 S.E.2d 378 (2005), the defendant challenged on appeal the admission of evidence regarding general prison conditions.  Although we found the issue was not preserved for review, we cautioned the State and the defense bar that such evidence is not relevant to the question of whether a defendant should be sentenced to death or life imprisonment.  366 S.C. at 498-99, 623 S.E.2d at 387. 

This case was tried before our decision in Bowman; however, we apply that reasoning here because it is consistent with our long-standing rule that evidence in the sentencing phase of a capital trial must be relevant to the character of the defendant or the circumstances of the crime.  We are aware of the tension between evidence regarding the defendant’s adaptability to prison life, which is clearly admissible,[2] and this restriction on the admission of evidence regarding prison life in general.  We note, however, that evidence of the defendant’s characteristics may include prison conditions if narrowly tailored to demonstrate the defendant’s personal behavior in those conditions. 

Here, unlike Bowman, appellant objected to the State’s evidence regarding general prison conditions.  Although appellant attempted to counter the testimony of the State’s witness with evidence regarding the harshness of prison life, this entire subject matter injected an arbitrary factor into the jury’s sentencing considerations.  A capital jury may not impose a death sentence under the influence of any arbitrary factor.  S.C. Code Ann. § 16-3-25(C)(1) (2003).  When the jury is invited to speculate about irrelevant matters upon which a death sentence may be based, § 16-3-25(C)(1) is violated.  State v. Sloan, 278 S.C. 435, 298 S.E.2d 92 (1982).  Accordingly, we reverse appellant’s death sentence and remand for resentencing. 


WALLER, J, concurs. PLEICONES, J., concurring in a separate opinion. TOAL, C.J., dissenting in a separate opinion in which BURNETT, J., concurs.


JUSTICE PLEICONES:  I concur in the majority’s conclusion that appellant is entitled to a new sentencing proceeding.  I write separately because I believe a violation of S.C. Code Ann. § 16-3-25(C)(1) (2003) is not subject to a harmless error analysis.

I agree with the majority that the prison conditions testimony by Mr. Sligh violated our rule that evidence in the sentencing phase of a capital trial must be relevant to the character of the defendant or the circumstances of the crime.  More importantly, this inadmissible evidence infused an arbitrary factor into the jury’s decision to return a death sentence.  Once an arbitrary matter has been presented to the jury, this Court cannot uphold the death sentence if we are to fulfill our statutory duty under S.C. Code Ann. § 16-3-25(C)(1).  State v. Shaw, 273 S.C. 194, 209-210, 255 S.E.2d 799, 807 (1979), overruled on other grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991).

The dissent argues that the statute’s prohibition against imposing a death sentence obtained under the influence of passion, prejudice, or any other arbitrary factor merely recites the requirements of the Eighth Amendment.  As a result, although not finding the evidence in this case to introduce an arbitrary subject to the jury, the dissent would subject violations of § 16-3-25(C)(1) to a harmless error analysis.[3]

In my opinion, this Court should not apply a standard of review for constitutional errors to statutory violations.  The dissent ignores the plain language of the statute, which requires this Court to “determine whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor.”  S.C. Code Ann. § 16-3-25(C)(1) (emphasis added).  We are not required to determine if appellant’s cross-examination of Mr. Sligh was able to remedy any error.  Once improper evidence of any kind injects an arbitrary factor into the jury’s consideration, this Court cannot uphold the death sentence under § 16-3-25(C)(1).  Moreover, a review for harmless error is unnecessary because by definition, evidence that implicates an arbitrary factor is prejudicial.

We must honor the General Assembly's prerogative to establish the procedure which it deems necessary to the fair administration of the death penalty.  Where the legislature requires this Court to review a death sentence for possible arbitrariness, that directive should be conscientiously honored.  I would thus not engage in a harmless error analysis which could potentially uphold a death sentence returned under the influence of an arbitrary factor. Accordingly, I agree with the majority’s decision to reverse the death sentence and remand for resentencing.


Chief Justice Toal: I respectfully dissent.  In my view, the introduction of irrelevant evidence in a capital sentencing proceeding does not, in and of itself, warrant reversal of Appellant’s death sentence. 

Although we cautioned in State v. Bowman that evidence relating to the conditions of incarceration should not be admitted during a capital sentencing proceeding, nothing in that case indicated a departure from the general rules governing appeals involving the admission of evidence or constitutional issues.  See 366 S.C. 485, 498-99, 623 S.E.2d 378, 385 (2005).  With this principle in mind, I believe our jurisprudence requires clarification.

That evidentiary appeals in criminal trials and questions of fundamental fairness sometimes overlap must be an easy conclusion.  Even the most cursory review of this Court’s jurisprudence and federal precedent in the capital arena reveals as much.  Arguments in capital cases involving the introduction of evidence will invariably be buttressed by considerations of fundamental fairness secured by the Eighth and Fourteenth Amendments.  In these cases, both the evidentiary questions of state law and the federal constitutional questions are of paramount importance.  Accordingly, a genuine resolution requires that these issues be given a complete discussion.

A trial court has a great deal of latitude concerning rulings on the admissibility of evidence, and a trial court’s ruling on such an issue will not be reversed on appeal absent an abuse of discretion and a demonstration of prejudice. State v. Plath, 281 S.C. 1, 9-10, 313 S.E.2d 619, 624 (1984); State v. Gregory, 198 S.C. 98, 103, 16 S.E.2d 532, 534 (1941). 

In this case, although the trial court admitted irrelevant evidence during Appellant’s sentencing proceeding, I can find no evidence indicating that the introduction of this evidence prejudiced Appellant.  Although the State improperly introduced evidence regarding the general conditions that Appellant would experience while in prison, Appellant cross-examined the State’s witness at length and demonstrated that the conditions of Appellant’s imprisonment would be quite severe.  Specifically, Appellant was able to inform the jury that, if he was spared the death penalty, he would be subject to the second highest degree of restriction in South Carolina’s prison system for the remainder of his life.[4]  In short, though this evidence was irrelevant and improper, Appellant used the evidence quite effectively to argue against imposing the death penalty.  Absent a showing of prejudice which resulted from the introduction of this evidence, our standards of review require us to affirm the trial court’s decision.[5]

Turning to the questions of federal law, the Eighth Amendment is violated when the decision to impose the death penalty is made in an arbitrary manner, or “out of a whim, passion, prejudice, or mistake.”  Caldwell v. Mississippi, 472 U.S. 320, 329-30 (1985); State v. Copeland, 278 S.C. 572, 587, 300 S.E.2d 63, 72 (1982).  Violations of the Fourteenth Amendment occur when something “so infects the trial with unfairness as to make the resulting conviction a denial of due process.”  See Darden v. Wainwright, 477 U.S. 168, 181 (1986).  Furthermore, an appellate court’s inquiry does not end upon finding that a constitutional violation occurred.  Very recently, the United States Supreme Court reminded us that harmless error analysis is a constitutionally sufficient rubric by which an appellate court may judge whether most constitutional violations require reversal in a criminal case.  Washington v. Recuenco, 548 U.S. ­­­__, 126 S.Ct. 2546, 2551 (2006).

In this case, I would not reach the question of whether the trial court’s error in admitting the above described evidence was harmless because I would find no constitutional violations occurred.  As a first matter, Appellant did not raise any constitutional objections in the trial court, and it is not clear that he raises these issues here.[6]  Assuming, however, that Appellant makes such arguments, in my view, the introduction of this improper evidence did not create an impermissible risk that the jury would make the decision to impose the death penalty in an arbitrary manner, nor did it so infect Appellant’s sentencing proceeding with prejudice as to render it fundamentally unfair.[7]  Again, because I would find that no constitutional violations resulted from the introduction of this evidence, I do not believe this Court need decide whether any evidentiary error was harmless.

In my view, the majority’s resolution of this issue is controlled by a theme found largely in dicta beginning in State v. Woomer.  In that case, this Court stated “[w]hen a solicitor’s personal opinion is explicitly injected into the jury’s deliberations as though it were in itself evidence justifying a sentence of death, the resulting death sentence may not be free from the influence of any arbitrary factor as required by S.C. Code § 16-3-25(C)(1), and by the Eighth Amendment to the United States Constitution.”  277 S.C. at 175, 284 S.E.2d at 359. 

I believe this Court has mistakenly seized upon the latter part of that statement and proceeded to treat § 16-3-25(C) as providing a separate standard by which this Court should judge the conduct of capital sentencing proceedings.[8]  In my view, State v. Torrence all but openly rejects the argument that the statute’s prohibition of imposing a death sentence obtained under the influence of “passion, prejudice, or any other arbitrary factor,” constitutes anything other than a recital of the Eighth Amendment’s requirements.  See 305 S.C. at 68, 406 S.E.2d at 328.  Furthermore, in my view, the Eighth Amendment’s requirements are primarily concerned with the ultimate result in capital cases, which is “preventing the imposition of excessive and disproportionate punishment upon the individual prisoner.”  State v. Copeland, 378 S.C. 572, 590, 300 S.E.2d 63, 73-74 (1982).  Thus, even if Torrence did not reject this proposition, I would decline to view § 16-3-25(C) as proscribing a standard of review that is independent from the Eighth Amendment.  Instead, I would interpret the statute to prohibit the imposition of the death penalty only in those situations where it would offend the Constitution.  In my view, a separate standard is not necessary.[9]

Our pronouncement disfavoring this evidence in Bowman was nothing new.  See Plath, 281 S.C. at 15, 313 S.E.2d at 627 (“It should not be necessary in the near future . . . to remind the bench and bar of the strict focus to be maintained in the course of a capital sentencing trial.”); and Smart, 278 S.C. at 526, 299 S.E.2d at 692-93 (“While this Court approves zealous representation . . . it is important in capital cases to maintain strict focus upon the particular characteristics of the specific crime and the unique attributes of the defendant.”).  In reversing this case, I believe we treat the disapproval of this type of evidence as though it were a novel development, and that we unnecessarily depart from an established course of analysis that is easily tied to defined doctrines.  In my view, reversing Appellant’s sentence uses Bowman to propagate a rule that inappropriately presumes prejudice in many cases and is unjustified given the existing constitutional framework.[10]

The majority and concurrence presume what they purport to establish, which is that § 16-3-25(C)(1) requires reversal when improper evidence is introduced in a capital sentencing proceeding.  Were that the General Assembly’s intention, I believe it surely would have spoken in terms of an arbitrary factor’s “presence” instead of its “influence.”  Appellate courts are ill-equipped to speculate about the influence improperly admitted evidence might have exerted on a jury’s determination.  Therefore, in my view, the most prudent course in these cases is to tie the statutory review requirement to the established guideposts provided by the relevant constitutional jurisprudence.  Today, the majority and concurrence endorse a rule that is markedly stricter than the constitution requires, is contrary to at least two of this Court’s prior decisions, and plays far too loosely with the language of the statute.

For these reasons, I would hold that the trial court erred in admitting evidence relating to the conditions of incarceration during Appellant’s capital sentencing proceeding, but I would affirm Appellant’s death sentence.

BURNETT, J., concurs.


[1]Shane’s unloaded hunting rifle was found under the truck’s back seat beneath a large speaker.  In Sonya’s purse were two unopened pocketknives, and Shane had an unopened knife in his pants pocket.  

[2]See generally Skipper v. South Carolina, 476 U.S. 1 (1986) (evidence of good behavior in prison admissible in mitigation as relevant to future adaptability); State v. Schafer, 352 S.C. 191, 573 S.E.2d 796 (2002) (evidence of violent behavior in prison relevant to future dangerousness); State v. Tucker, 324 S.C. 155, 478 S.E.2d 260 (1996) (defendant’s future dangerousness and his adaptability to prison life are legitimate interests in the penalty phase of a capital case).

[3] This Court has acknowledged the appropriateness of harmless error analysis in capital cases where a defendant’s constitutional rights are violated.  See Arnold v. State, 309 S.C. 157, 430 S.E.2d 834 (1992).

[4] Eight pages of the record contain the State’s expert’s direct testimony. Appellant’s cross-examination of this expert fills twenty pages of the record.

[5] Plath further underscores my point.  In that case, this Court unanimously affirmed a death sentence because these precise errors were not accompanied by any demonstration of prejudice.  See 281 S.C. at 9-10, 313 S.E.2d at 624.

[6] At trial, Appellant objected that this testimony was improper under this Court’s ruling in Plath.  That case contains no material discussion of the Eighth or Fourteenth Amendments.  Plath’s discussion of this type of evidence is best interpreted as resolving a traditional appeal of a question of the admission of evidence.  See 281 S.C at 14-16, 313 S.E.2d at 627. 

[7] In making this determination, I judge the effect of these evidentiary errors in the context of the entire record.  See State v. Woomer, 277 S.C. 170, 174-75, 284 S.E.2d 357, 359 (1981).

[8] This principle has consistently re-appeared in our precedent.  See Thompson v. Aiken, 281 S.C. 239, 240, 315 S.E.2d 110, 110 (1984); State v. Sloan, 278 S.C. 435, 438, 298 S.E.2d 92, 93 (1982); State v. Smart, 278 S.C. 515, 517, 299 S.E.2d 686, 687 (1982) (overruled on other grounds by State v. Torrence, 305 S.C. 45, 70, 406 S.E.2d 315, 329 (1991)); and State v. Butler, 277 S.C. 543, 544, 290 S.E.2d 420, 420 (1982) (overruled on other grounds by Torrence, 305 S.C. at 70, 406 S.E.2d at 329).

[9] I do not necessarily question the holdings in the cases I have cited, only the reasoning.  Any number of errors can infect a trial with unfairness to such a degree as to violate the Eighth and Fourteenth Amendments.  These include (1) the introduction of overly inflammatory evidence and (2) arguments which impermissibly appeal to the passions or prejudices of a jury.

[10] Coincidentally, the view taken by the concurrence is contrary to our opinion in Bowman and seems to embrace a rekindled form of ­in favorem vitae review.  This view, if applied in Bowman, would surely have commanded the Court to at least deal with the merits of Bowman’s claim regarding this “prison conditions” testimony rather than disposing of his claim on error preservation grounds.  See 366 S.C. at 498, 623 S.E.2d at 385.



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