THE STATE OF SOUTH CAROLINA In The Supreme Court

The State, Respondent,

v.

Michael Vernon Beaty Jr., Appellant.

Appellate Case No. 2015-000718

Appeal from Laurens County W. Jeffrey Young, Circuit Court Judge

Opinion No. 27795 Heard June 15, 2017 – Filed April 25, 2018

AFFIRM ED

Clarence Rauch Wise and E. Charles Grose Jr., both of Greenwood, for Appellant.

Attorney General Alan McCrory Wilson, Deputy Attorney General Donald J . Zelenka, and Assistant Attorney General Susannah Rawl Cole, all of Columbia; and Solicitor David Matthew Stumbo, of Greenwood, for Respondent.

JUSTICE JAMES: Michael Vernon Beaty Jr. (A ppellant) was convicted of murdering Emily Anna Asbill (Victim) and received a life senten ce. We affirmed Appellant's conviction on December 29, 2016, in State v. Beaty , Op. No. 27693 (S.C. Sup. Ct. filed Dec. 29, 2016) (Shearouse 2017 Adv. Sh. No. 1 at 13). Wesubsequently granted the partie s' petitions for rehearing and heard further argument. We affirm Appellant's conviction.

FACTUAL AND PROCEDURAL HISTORY

Appellant and Victim attended an e vening party in their hometow n of Clinton. They decided to leave the party between 9:00 pm and 10:00 pm an d agreed to give

their friend Will Alexander a ri de home. Appella nt drove the v ehicle, Victim sat in the front passenger seat, and Alexander sat in the backseat. A t approximately 11:00 pm, Appellant rang the doorbell at his parents' home and asked his stepfather for help. When Appellant's stepfat her approached the car, he found Victim unconscious on the front passenger side floorboard and called 911. EMS arr ived shortly

thereafter and found Victim s itting on the floorboard with her head laid back on the passenger seat. She was not breathing and did not have a pulse . Appellant's shirt was wrapped around Victim's right arm. Victim was found to hav e severe "road rash" on her right and left arms and bruising to her neck. EMS transported Victim to the hospital, where she was pronounced dead. An autopsy rev ealed the cause of Victim's death was asphyxia due to strangulation.

At trial, the State introduced several of Appellant's statement s to law

enforcement into evidence. Thes e statements varied materially. Appellant initially suggested Victim died of a self-inflicted cutting injury. Foll owing law enforcement's receipt of the autopsy results, Appellant volunta rily returned to the police station and repeated his earlier version of events. How ever, in this statement, Appellant stated he had to undo Victim's seatbelt when he reali zed she was unconscious after arriving at his parents' home. When Appellan t was informed of the autopsy results, which showed Victim had been strangled and had "road rash," Appellant gave a written statement explaining he and Victim had argued during the car ride, Victim had opened the car door to jump out, and he ha d grabbed her shirt to pull her back into the car.

At trial, the State and Appellant presented expert witnesses to support their theories as to the events leading up to Victim's death. The St ate's theory was that Appellant strangled Victim with a USB cord after a fight during which she tried to jump out of the moving car. Appe llant's theory was that when V ictim tried to jump out of the moving car, he held her in by her tank top, which caused the ligature marks on her neck and rendered her unconscious, and that once he pull ed her back into the car, she succumbed to positional asphyxiation due to the awkwar d position she

assumed on the floorboard.The pathologist who conducted the autopsy was called by the Sta te and testified the ligature marks on Victim's neck were visible on t he front and sides of her neck but not on the back of her neck. The pathologist iden tified a USB cord found in the car as consistent with the ligature marks and the abrasion on Victim's neck. DNA analysis of the USB cord showed Victim's DNA on the middle of the

cord. The cord's ends had a mixture of at least two individuals' DNA, with Victim being the major contributor and Appellant being the minor contr ibutor.

A forensic pathologist also tes tified for Appellant and stated the USB cord did not cause the injuries to Victim's neck and opined positional a sphyxiation played a role in Victim's death. A mechanical engineer testified for Ap pellant and stated the ligature marks on Victim's neck could have been caused by someo ne holding her up by her tank top as she hung out of the car and that both Victim 's abrasions and her

blood found on the outside of th e car were consistent with this scenario.

Appellant was convicted of murder and received a life sentence. Appellant timely filed a notice of appeal, and we certified the case from the court of appeals pursuant to Rule 204(b), SCACR. Appellant raised the following issues: (1) whether the State presented substantial circumstantial evidence proving Appellant committed murder; (2) whether the trial judge erred by denying Appellant' s request to charge

the lesser-included offense of i nvoluntary manslaughter; (3) whether the trial judge erred in using certain language i n his opening remarks to the j ury; (4) whether the trial judge erred during the closing argument stage in not (a) requiring the State to open fully on the law and the facts of the case and (b) limitin g the State's final closing solely to reply to new arguments presented during Appellant's c losing arguments; (5) whether the trial judge erred in charging the law of circum stantial evidence as

set forth in State v. Logan , 405 S.C. 83, 747 S.E.2d 444 (2 013); (6) whether the trial judge erred in excluding testimony concerning a prior incident when Victim threatened to jump from an autom obile; (7) whether the trial ju dge erred in denying one of Appellant's voir dire requests; and (8) whether a new trial should be ordered

based on the cumulative error doctrine.

In affirming Appellant's conviction in our prior opinion, we fo und two of the issues Appellant raised merited discussion. State v. Beaty , Op. No. 27693 (S.C. Sup. Ct. filed Dec. 29, 2016) (Shear ouse 2017 Adv. Sh. No. 1 at 14–1 7). First, we addressed the trial judge's use of certain language in his open ing remarks to the jury

and the content requirements and order of closing argument. We aff irmed Appellant's conviction but instruc ted trial judges to avoid lan guage urging jurors to"search for the truth," find "true facts," and render a "just verdict." Second, we adopted a rule for closing argument in criminal cases, requirin g the party with the right to open and close to open fully on the law and facts and limit its reply to those matters raised by the other party in its closing argument. We affirmed all of Appellant's remaining issues under Rule 220(b), SCACR.

We granted the parties' petitions for rehearing and have heard further argument. We issue this opinion to again address both the tria l judge's use of certain language in his opening remarks to the jury and the rules gover ning the content and order of closing argument. 1 We affirm Appellant's conviction.

DISCUSSION

I. Trial Judge's Opening Remarks

After the jury was sworn, the tr ial judge gave preliminary rema rks to the jury. The trial judge outlined the roles, duties, and responsibilitie s of the lawyers and the jury and explained trial proce dure. During these remarks, the judge stated:

This . . . trial . . . is a search for the truth in an effort t o make sure that justice is done. Searching for the truth and ensuring that justice is done is often slow, deliberate, and repetitive.

[The attorneys] are sworn to uphold the integrity and the fairness of our judicial system and to help you as jurors to

search for the truth.

You also just took an oath to listen to the evidence in this case and reach a fair and just verdict and you are expected to be professional, reasonable and ethical.

1 All remaining issues are affirmed pursuant to Rule 220, SCACR. State v. Bailey

, 298 S.C. 1, 377 S.E.2d 581 (1989); State v. Phillips , 416 S.C. 184, 785 S.E.2d 448 (2016); State v. Sterling , 396 S.C. 599, 723 S.E.2d 176 (2012); State v. Scott , 414

S.C. 482, 779 S.E.2d 529 (2015); State v. Marin , 415 S.C. 475, 783 S.E.2d 808 (2016); State v. Smith , 230 S.C. 164, 94 S.E.2d 886 (1956); State v. Vang , 353 S.C. 78, 577 S.E.2d 225 (Ct. App. 2003).You the jurors find [the facts] from the testimony from a

witness from the witness sta nd or any other evidence, and after hearing that evidence you will deliberate and render a true and just verdict under the solemn oath that you just took as jurors.

In determining what the true facts are in this case you must decide whether or not the testimony of a witness is

believable.

After argument of counsel and the charge on the law by me, you will then be in a position to determine what the true facts are and apply those facts to the law and thus render a true and just verdict.

Appellant objected to the use of t he phrases "search[ing] for t he truth," "true facts," and "just verdict." Appe llant argued these phrases wer e especially improper

when linked with the State's "misstatement" of circumstantial e vidence and reasonable doubt in its opening sta tement, and because the Stat e had informed the jury that it would have to pick between two competing theories. The State acknowledged to the trial judge that the "search for the truth" language is disfavored but argued that its use here was not reversible error. The tri al judge denied Appellant's request for a cura tive instruction, concluding that his remarks were merely an opening comment and not a jury instruction.

Appellant relies upon State v. Aleksey , 343 S.C. 20, 538 S.E.2d 248 (2000), in which we held that jury instructions on reasonable doubt which also charge the jury

to "seek the truth" or "search for the truth" run the risk of u nconstitutionally shifting the burden of proof to the defendant. In Aleksey , we found there was no reversible

error because the "seek the tru th" language was charged in conj unction with the credibility of witnesses charge, and not with either the reason able doubt or circumstantial evidence charges. Id. at 27–29, 538 S.E.2d at 251–53; cf. State v.

Daniels , 401 S.C. 251, 737 S.E.2d 473 (2012) (instructing discontinuan ce of charge that jury's duty is to return a v erdict that is just and fair t o all parties).

As the trial judge noted, the disputed comments can be distingu ished from Aleksey because they were a mere statement to the jury and not a charg e on the law. Further, the remarks were not linked to either the reasonable d oubt or thecircumstantial evidence charges as was condemned in Aleksey . However, we agree with Appellant that a trial judge should refrain from informing the jury, whether through comments or through a charge on the law, that its role is to search for the truth, or to find the true facts, or to render a just verdict. 2 These phrases could be understood to place an obligation on the jury, independent of t he burden of proof, to

determine the circumstances surro unding the alleged crime and f rom those facts alone render the verdict the jury believes best serves its perc eption of justice. We instruct trial judges to avoid these terms and any others that may divert the jury from its obligation in a criminal case to determine whether the Stat e has proven the defendant's guilt beyond a reasonable doubt. Although there wa s error here, our review of the entirety of the judge's opening comments and the entire trial record convinces us that Appellant has not shown prejudice from this e rror sufficient to

warrant reversal. Compare State v. Coggins , 210 S.C. 242, 245, 42 S.E.2d 240, 241 (1947) (providing trial judge's choice of words and comments, w hile not "happy," did not require reversal).

II. Closing Arguments

A. Background

During trial, before closing arguments, Appellant requested the trial judge to require the State to open fully on the law and facts of the cas e and then reply only to new matter raised by Appellant i n his closing argument. Appell ant stated to the trial judge, "I understand [the State i s] going to open fully on the law and the facts, and not just open on some of the facts, but fully on the facts to e xplain their theory of the case so that --." The trial judge then interrupted and said, " [The State] will open and explain and then they will have f inal argument which I will all ow them to go int[o] what they want to talk about." T he solicitor responded, "[W]e believe the law in the state right now is the State [has the option] to bifurcate or t o give one argument. We honestly would prefer to give one argument, but if [Appellant] demands that we open and close, I don't have any probl em with it." The trial judge replied, "You can do it either way."

The State proceeded to open on the law and gave the facts only a cursory review. Appellant then gave his closing argument and stated to the jury that when

2 We acknowledge the general sessions benchbook this Court previ ously supplied to all circuit judges contained la nguage virtually identical to th e disputed language employed by the trial judge.he concluded his argument, the S tate would give a final argumen t and reply to everything he said. Appellant then informed the jury:

Then what's going to happen is this. The State's then going to come up with their real theory. How the arm got scratched, exactly how this alleged strangulation took place, and we have to sit mute. We will not have the

chance to come back and refute t hat, and yet they'll have a chance to refute everything we 've laid out there. That was their choice as to how they chose to do the closing arguments. I can't make them do it any differently.

During its reply argument, 3 the State reviewed the inconsistencies in the statements Appellant gave to law enforcement. The State also a rgued the murder took place in Appellant's car on the street in front of his par ents' house and that Appellant murdered Victim because she was screaming and Appella nt wanted to "shut her up." Appellant argues this was improper reply argume nt because he mentioned none of these points during his closing argument.

Appellant argued the State's reply argument "was nothing but on e big sandbag, which we discussed in chambers" 4 and constituted a violation of his due process rights. Appellant asserted the State pre sented factual scenarios for th e first time in its reply argument and requested either a mistrial or t he opportunity to reply to the State's argument. The t rial judge denied both requests.

In this appeal, Appellant cont ends the trial judge erred in re fusing to require the State to open fully on the law and facts in its closing argument, in refusing to limit the State's reply argument to matters raised by Appellant 's counsel in his closing argument, and in refusing to allow him to reply to new matter raised by the

3 In this opinion, if used in conjunction with the State's secon d closing argument, the terms "the reply," "reply argument," "final argument," and "las t argument" are

synonymous.

4 When used as a transitive verb, Merriam–Webster defines "sandb ag" as "to conceal or misrepresent one's true positi on, potential, or intent espec ially in order to gain an advantage over." Me rriam–Webster Dictionary, http://www.merria m-webster.com/ dictionary/sandbag.State in its reply argument. Appellant claims these errors vio lated his rights under the due process clauses of the S outh Carolina and United States Constitutions. 5

In our prior opinion, we agreed in part, holding that in crimin al trials, "where the party with the 'middle' argument requests, the party with t he right to the first and last closing argument must open in full on the law and the fact s, and in reply may respond in full to the other party's argument but may not raise new matter." Nevertheless, we concluded Appe llant was not entitled to a new trial, as any error in the trial judge's denial of his motion to require the State to open in full on the facts and the law and to limit its rep ly was harmless beyond a reason able doubt. Having revisited these issues upon rehearing, we now address the histo ry of the rules governing the content and order of closing argument in criminal cases, and we address our authority to promulgate new rules governing the sam e. We also address Appellant's due process argument and conclude his conviction mu st be affirmed.

B. Rules Governing Content and Order of Closing Argument

Prior to 1802, the practice regarding closing arguments in all public prosecutions on behalf of the State was to allow the State the privilege of opening and concluding the arguments in every case addressed to the jur y. See State v.

Brisbane , 2 S.C.L. (2 Bay) 451, 453 (1802). This partiality shown to p rosecutors was a "relict of the kingly prerogative." Id. However, in Brisbane , the Constitutional Court of Appeals of South Carolina (a predecesso r to this Court)

formulated a rule governing closing argument in criminal courts, holding that in all

cases in which a defendant calls no witnesses, he should have t he privilege of concluding to the jury. Id. at 454.

In State v. Huckie , Prince Huckie and his codefendant Paris Bailey were jointly indicted and tried for burglary and larceny. 22 S.C. 2 98, 298–99 (1885). Following the State's presentati on of evidence, Huckie declined to offer evidence in his defense, but Baile y called one witness. Id. at 299. Huckie argued it was error to deny him the last argument because he did not offer any evidenc e in his own behalf.

Id. We noted there was no express ru le giving the defendant a right to reply when

the defendant offered no evidence but stated, "[R]esting upon t he common law, such has been the practice." Id. We concluded that when a defendant in a criminal

5 Due process requires no person sh all be deprived of life, libe rty, or property without due process of law. U.S. C ONST . amend. XIV § 1; S.C. C ONST . art. I, § 3.prosecution offers no evidence, he is entitled to the last argu ment; however, when two or more defendants are jointly tried, if any codefendant in troduces evidence, the State is entitled to the reply argument. Id. at 300–01. 6 See also State v. Mouzon

, 326 S.C. 199, 485 S.E.2d 918 (1997); State v. Crowe , 258 S.C. 258, 188 S.E.2d 379 (1972).

In State v. Garlington , 90 S.C. 138, 144–45, 72 S.E. 564, 566 (1911), we held

that in cases in which no defenda nt introduces evidence, the defendant(s) have the right to open and close during closing argument but may waive t he right to both arguments or may waive the right to open and instead present fu ll argument to the jury after the State's closing argument. In State v. Gellis , 158 S.C. 471, 485–86, 155

S.E. 849, 855 (1930), the defendant did not call any witnesses in his own defense, but he introduced letters and telegrams into evidence through a prosecution witness. Holding the defendant did not hav e the right to the final argum ent, we clarified that

"if a defendant offers any evidence on trial of the case, the state is not deprived of its general right to the opening and concluding arguments." Id. at 486–87, 155 S.E. at 855 (emphasis added). Consequently, the loss of the right to m ake the final argument depends upon whether a defendant introduces any evidence at all , not upon whether he calls any witnesses.

In State v. Atterberry , 129 S.C. 464, 469, 124 S.E. 648, 650 (1924), the defendant was indicted for possession of "a quantity of whisky" in violation of the Prohibition Law and was found guilty by a jury. For perhaps th e first time, we applied a codified court rule to closing arguments in a crimina l trial. The defendant introduced evidence during the trial, and prior to closing argu ments, he demanded the trial court to require the S tate to open in full on the fac ts and the law. Id. at 471, 124 S.E. at 651. The trial judge r efused the defendant's reque st and allowed the State to fully waive its opening argument. Id. At that time, Circuit Court Rule 59 provided, "The party having the opening in an argument shall di sclose his entire case; and on his closing shall be confined strictly to a reply to the points made and authorities cited by the opposite party." We explained Rule 59 was clear and mandatory and held the trial cou rt's failure to require the Sta te to open fully on the

law and facts was reversible error. Atterberry , 129 S.C. at 471, 124 S.E. at 651. Noting the "wisdom of this rule" was most clearly evident in circumstantial evidence cases, we explained that if the rule did not require the State to open in full on the facts and the law, an able prosecutor would be able to present a connection of

6 The rationale behind this par ticular rule, as explained in Huckie , is curious but

irrelevant to the instant case.circumstances to the jury during his last argument that the def endant would not be

allowed to rebut. Id

.

Subsequent to Atterberry , Circuit Court Rule 59 and any wisdom it possessed were replaced by Circuit Court Rule 58, which provided in relev ant part, "The party having the opening in an argum ent shall disclose fully the law upon which he relies if demanded by the opposite party ." (emphasis added). We addressed Rule 58 in

State v. Lee , 255 S.C. 309, 178 S.E.2d 652 (1971), overruled in part on other grounds by State v. Belcher , 385 S.C. 597, 685 S.E.2d 802 (2009). In Lee , the defendant introduced evidence to the jury. At the close of the trial, the defendant requested the trial judge to requi re the State to open fully on the law and the facts during its closing argument. Id. at 317, 178 S.E.2d at 656. The trial judge required the State to open on the law but refused to require the State to open on the facts. Id. We held "the trial judge, under the changed rule, was correct i n holding that a solicitor is no longer required to make an opening argument to the jury on issues of

fact." Id. at 318, 178 S.E.2d at 656. There was no discussion of due proc ess concerns or "the wisdom" inherent in the former Rule 59. 7

On July 1, 1985, the South Carolina Rules of Civil Procedure we nt into effect.

See Rule 86, SCRCP. Rule 1, SCRCP, limits the application of those rules to civil

cases. 8 Rule 85(b), SCRCP, also effective as of July 1, 1985, retaine d ten enumerated criminal practice ru les contained in the Appendix of Criminal Practice Rules; according to Rule 85(b), SCRCP, those ten rules were ren umbered as Criminal Practice Rules 1 through 10 and were to "continue in f ull force and effect."

Circuit Court Rule 58 was not one of those ten retained rules. Rule 85(c), SCRCP, also effective July 1, 1985, provides that all other Circuit Co urt Rules were repealed

7 Both Rule 59 and Rule 58 were part of an appendix to the Code of Civil Procedure.

In his concurrence in Atterberry , Acting Associate Justice Aycock observed that nothing limited the application of these rules to civil cases. 129 S.C. at 473, 124

S.E. at 651. Circuit Court Rules 59 and 58, while they were in effect, were properly applied to crimi nal cases.

8 Rule 43(j), SCRCP, controls the c ontent and order of argument i n civil cases. This rule essentially provides that the plaintiff shall have the rig ht to open and close at the trial of the case and must open in full, and in reply may r espond in full but may not introduce any new matter. This rule has never been applied to criminal cases, and Rule 1, SCRCP, expressly pr ohibits such application.as of that date. Consequently, Circuit Court Rule 58 no longer existed as a codified rule as of July 1, 1985.

On September 1, 1988, the South Carolina Rules of Criminal Pro cedure went

into effect. See Rule 40, SCRCrimP. No rule contained within the South Carolina

Rules of Criminal Procedure addr esses the content and order of closing arguments in criminal trials. Rule 39, SCRCrimP, expressly repealed all existing Criminal

Practice Rules. With the repeal of Circuit Court Rule 58 by Ru le 85(c), SCRCP, and with the adoption of Rule 39, SCR CrimP, there is no codified or otherwise duly adopted court rule governing the content and order of closing a rguments in criminal cases in which a defendant introduces evidence. However, Rule 37, SCRCrimP, provides in part, "In any case where no provision is made by st atute or these rules, the procedure shall be according to th e practice as it has heretofore existed in the courts of the State." Rule 37, SCRCrimP (emphasis added). In the instant case, both

the content and order of closi ng arguments were in keeping with repealed Circuit Court Rule 58, which required the State to open only on the law

. Lee , 255 S.C. at 318, 178 S.E.2d at 656. We must f irst determine whether, almos t thirty years after its adoption, Rule 37 preserves the application of repealed Cir cuit Court Rule 58 in

criminal cases in which a defenda nt introduces evidence. We ho ld it does not.

This Court cannot simply assume that from July 1, 1985 through the trial of the instant case, the criminal tr ial courts of this State have uniformly continued to follow repealed Circuit Court Rule 58 to the extent that it rem ains the "practice as it

has heretofore existed" in crimi nal cases in which the defendan t introduces evidence. We have no effective way to ascertain the prevailing practices of current and past trial judges. We can only concl ude that absent a published cou rt rule or a defined common law rule, individual tria l judges have developed their o wn practices governing closing argument in cases in which a defendant introd uces evidence. That is an untenable approach to such an important pha se of a crimin al trial.

One may inquire whether this Court may simply create a much-nee ded practice or procedural rule simply by exercising its authority to alter the common

law. This is a reasonable inquiry, especially since the courts of this State attend on a daily basis to the notions of order, predictability, and due process in criminal proceedings. Indeed, "[t]he common law changes when necessary to serve the needs of the people. We have not hesitated to act in the past when i t has become apparent that the public policy of the S tate is offended by outdated rul es of law." Russo v.

Sutton , 310 S.C. 200, 204, 422 S.E.2d 750, 753 (1992) (citations omit ted). See also

Marcum v. Bowden , 372 S.C. 452, 643 S.E.2d 85 (2 007) (altering the common lawof social host liability); Nelson v. Concrete Supply Co. , 303 S.C. 243, 399 S.E.2d 783 (1991) (abolishing contributory negligence); Hossenlopp v. Cannon

, 285 S.C. 367, 329 S.E.2d 438 (1985) (observing that since the dog-bite l aw was of common law origin, it could be cha nged by common law mandate); McCall v. Batson , 285

S.C. 243, 329 S.E.2d 741 (1985) (abolishing s overeign immunity)

.

In the foregoing cases, we certainly did alter the common law a nd were within our authority to do so. However, those cases involved substant ive common law, not common law procedural rules. We are prohibited on two fronts f rom promulgating a new rule in the course of deciding the issues in this case. First, this Court does not have the power to adopt new rules of procedure for future trial s by writing opinions to decide cases. Instead, when w e decide an appeal from a crim inal conviction—as we do here—our power is limite d to correcting errors of law. 9

Second, the South Carolina Constitution limits this Court's power to promulgate rules governing prac tice and procedure in the courts of this State. Before 1973, the South Carolina Constitu tion did not address in any ma nner the power of this Court to implement rules of practice and procedure in the courts of this State. On April 4, 1973, article V, section 4 of the South Carolina Co nstitution was amended to grant power to this Court, subject to statutory law, to "make rules governing the practice and procedure in all such courts [in the unified judicial system]." S.C. C ONST . art. V, § 4. While this amendm ent was in effect, we did not make any rules governing the content and order of closing argum ent in criminal cases, and Circuit Court Rule 58 and other Circuit Court Rules carried the day until July 1, 1985, when the South Carolina Rules of Civil Procedure came into being, with Rule 85, SCRCP, preserving some criminal practice rules an d repealing others, including Circuit Court Rule 58.

On February 26, 1985, article V, section 4A of the South Caroli na Constitution took effect. It remains in effect today and provides:

All rules and amendments to rules governing practice and procedure in all courts of th is State promulgated by the Supreme Court must be subm itted by the Supreme Court to the Judiciary Committee of each House of the General

9 See S.C. C ONST . art. V, § 5 ("The Supreme Court shall constitute a court for the correction of errors at law under such regulations as the Gener al Assembly may prescribe.").Assembly during a regular session, but not later than the first day of February during each session. Such rules or amendments shall become effective ninety calendar days

after submission unless di sapproved by concurrent

resolution of the General A ssembly, with the concurrence

of three-fifths of the member s of each House present and voting.

S.C. C ONST . art. V, § 4A (emphasis added).

On January 28, 2016, we initiated the prescribed legislative pr ocess by proposing an amendment to the South Carolina Rules of Criminal Procedure to add

Rule 21. See Re: Amendments to the South Ca rolina Rules of Criminal Procedure

, 2014-002673 (S.C. Sup. Ct. Order dated Jan. 28, 2016). Proposed Rule 21 stated, "Closing arguments in all non-cap ital cases shall proceed in th e following order: (a) the prosecution shall open the argument in full; (b) the defens e shall be permitted to reply; and (c) the prosecution shall then be permitted to reply in rebuttal." Id. However, by concurrent resolution, the General Assembly, as was its prerogative, rejected proposed Rule 21 in April 2016. See S. Con. Res. 1191, 121st Gen. Sess. (S.C. 2016).

While we acknowledge and respect the limitations placed on thi s Court's power pursuant to article V, section 4A of our constitution, in order for our criminal court system to operate efficiently, effectively, and consistently, clearly stated rules governing the content and order of closing argument are require d. Our current closing argument rules consist of the following patchwork: Purs uant to the common law rule pronounced in Brisbane and as clarified in Garlington , in cases in which no defendant introduces evidence, the defendant(s) have the right to open and close, but may waive the right to both or may waive opening and present fu ll argument after the State's closing argument. Pursuant to the common law rule set forth in Huckie

, if two or more defendants are jointly tried, if any one defenda nt introduces evidence, the State has the final closing argument. Pursuant to the comm on law rule as

clarified in Gellis , in cases in which a defendant introduces evidence of any kind

, even through a prosecution witness, the State has the final clo sing argument. However, in cases in which the State is entitled to the reply argument, there is no common law or codified rule as to whether the State must open i n full on the law, or the facts, or both, or neither, and there is no rule governing the content of the State's reply argument.This case falls within the las t category. Appe llant introduce d evidence during trial. Under our holdings in Huckie and Gellis , the State was entitled to the reply argument. Appellant asked the t rial court to require the State to open in full on the

facts and the law and asked the trial court to restrict the Sta te's reply argument to rebuttal to matters raised by A ppellant in his closing argument . The trial court denied these requests and essen tially followed repealed Circuit Court Rule 58, allowing the State to open on the law and give the facts a curs ory review. Appellant then presented his closing argument. After the State made its reply argument, Appellant asked to be allowed to r ebut what he argued was new m atter raised by the

State. The trial court denied this request as well. Appellant claims his due process rights were violated by this procedure.

C. Due Process

While this Court's authority to promulgate rules is restricted by article V, section 4A of the South Carolina Constitution, we retain the au thority to determine— on a case-by-case basis—whether a defendant's due process right s have been violated by procedural methods employed during a trial. Stated another way, our authority to rectify a specific due process violation falls wit hin our constitutional power to correct errors of law and trumps our inability to adop t a clearly stated practice or procedural rule. We must therefore determine wheth er Appellant's due process rights were violated in this instance.

"Due Process is not a technical concept with fixed parameters u nrelated to time, place, and circumstances; ra ther it is a flexible concept that calls for such procedural protections as the situation demands." State v. Legg , 416 S.C. 9, 13, 785 S.E.2d 369, 371 (2016). In any case, procedural due process co ntemplates a fair

trial. Id. This concept applies to closing arguments. South Carolina ca se law focuses upon allegedly inflamma tory or unsupported content of t he State's closing argument, not upon whether the State must open in full on the f acts and not upon reply arguments which have a basis in the record but to which a defendant is not allowed to respond. Generally, "[i]mproper comments [made duri ng closing argument] do not automatically r equire reversal if they are not prejudicial to the defendant, and the appellant has the burden of proving he did n ot receive a fair trial

because of the alleged improper argument." Humphries v. State , 351 S.C. 362, 373, 570 S.E.2d 160, 166 (2002). The relevant inquiry is whether th e State's comments "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Id. "A denial of due process occurs w hen a defendant in a criminaltrial is denied the fundamental fairness essential to the conce pt of justice." State v. Hornsby , 326 S.C. 121, 129, 484 S.E.2d 869, 873 (1997).

Appellant cites Bailey v. State , 440 A.2d 997, 1003 (Del. 1982), in which the Delaware Supreme Court held the trial court abused its discreti on in permitting the State to utilize the "sandbagging" trial strategy in its reply argument. Appellant acknowledges there is no rule in South Carolina that prohibits "sandbagging," but he asserts his due process rights were violated because the State was allowed, in its reply argument, to present to the jury for the first time "two crucial theories" and "an out of context statement of Appellant."

Appellant's defense at trial was that he accidentally strangled Victim when he pulled her back into the moving vehicle by pulling on her tank top, thereby rendering her unconscious, with Victim then succumbing to positional asphyxiation on the front passenger floorboard. The State's theory of the case was that Appellant strangled Victim to death with the USB cord found in Appellant's car. The Appellant's parents' driveway as a potential scene of the murde r was put before the jury through the State's witnesses—the first responders who fou nd Victim deceased in the driveway of Appellant's p arents' house. Appellant conte nds the first new theory argued by the State in its reply argument dealt with the location of the murder, i.e., that Appellant strangled Victim in Appellant's car in the driveway in front of Appellant's parents' house. Appellant claims his due process r ights were violated when the State was permitted, in its reply, to argue this point to the jury. Appellant contends that at the least, he should have been permitted to re spond. We first note

that the State's presentation of this theory during its reply w as arguably a proper response to the theory Appellant advanced in his closing argume nt. Whatever the case, the question of exactly whe re Victim's death occurred was largely inconsequential to the question of whether Appellant murdered V ictim or whether

Victim instead died of causes unr elated to Appellant's criminal conduct.

Appellant contends the second new theory argued by the State in its reply was that Appellant murdered Victim bec ause Victim was screaming at Appellant during the drive home, and Appellant wanted to "shut her up." The fac t that the two were in an argument and Victim was screaming at Appellant was entere d into evidence through Appellant's own statement to law enforcement. Again, the State's advancement of this theory in reply was arguably a proper respo nse to the sequence of events argued by Appellant in his closing argument. Even if it could be considered new matter, we concl ude the State's advancement of t his theory was relatively insignificant.During its reply argument, the State also presented a PowerPoin t summary of one of Appellant's statements to law enforcement. Appellant argues the State took the statement out of context when it "implied that [Appellant] said that [Victim] made it seem like I made her want to hurt herself." Appellant' s actual statement to law enforcement was, "Yet a little before or at this point, I b elieve, that [Victim]

made it seem like I had made her want to hurt herself, which is common for us when we argue." We conclude this minor point was insignificant to t he jury's

consideration of the issues.

While the State perhaps did not restrict its reply argument to matters raised by Appellant, and while Appellant w as not allowed to respond to th e foregoing three points, we conclude Appellant did not suffer prejudice as a res ult. See Humphries

, 351 S.C. at 373, 570 S.E.2d at 166 (errors in closing argument "do not automatically require reversal if they are not prejudicial to the defendant, and the appellant has the burden of proving he did not receive a fair trial because of th e alleged improper argument"); id. (noting the relevant inquiry is w hether the State's comments "s o infected the trial with unfairness as to make the resulting con viction a denial of due process"). Neither the State's reply arguments on these three points nor the trial court's refusal to allow Appellant to respond denied Appellant "the fundamental fairness essential to the concept of justice." See Hornsby , 326 S.C. at 129, 484 S.E.2d at 873. Therefore, we conc lude Appellant has not establ ished a due process deprivation.

CONCLUSION

We instruct trial judges to omit any language, whether in remar ks to the jury or in an instruction, which might have the effect of lessening the State's burden of proof in a criminal case. Such language includes, but is not l imited to, any language suggesting to the jury that its task is to "search for the truth" or to find "true facts," or that the jury should render a "just verdict." However, we h old Appellant has failed to show prejudice from these rema rks sufficient to warrant reve rsal.

Article V, section 5 of the South Carolina Constitution limits this Court's authority to correcting errors of law and does not empower us t o promulgate a procedural rule for future cases by simply issuing an opinion. Article V, section 4A,

of the South Carolina Constituti on prohibits this Court from ad opting any rules of practice and procedure—even a m uch-needed rule governing the pr actice andprocedure of closing arguments in criminal cases—without first going through the prescribed legislative process.

Currently, there is no rule govern ing the content and order of closing arguments in criminal cases in which a defendant introduces evi dence, except for

the "constitutional rule " that a defendant's right to due proce ss cannot be violated at any stage of a trial. Consequently, trial judges must, on a ca se-by-case basis, ensure

that a defendant's due process rights are not violated during t he closing argument stage. Absent authority to formally adopt procedural rules, ou r authority—and the authority of the trial court—is but to address due process cons iderations as they arise. In cases in which a defendant introduces evidence, trial judges clearly have the authority to require the State to open in full on the facts and the law and have the authority to restrict the State's reply argument to matters rai sed by the defense in closing. This authority remains in keeping with the trial judge's authority to ensure

that a defendant's due process rights are not violated during a criminal trial. We remain mindful of the need for clearly articulated rules govern ing the content and order of closing arguments in cases in which a defendant introd uces evidence. The uncertainty resulting from the absence of such rules is unfortu nate. We hope the day will soon come when such rules are firmly in place.

We hold Appellant has not established prejudice resulting from the trial judge's opening remarks, and we hold Appellant was not denied d ue process during the closing argument stage of t he trial. Appellant's convictio n is therefore

AFFIRMED

.

BEATTY, C.J., KITTR EDGE, HEARN and FEW , JJ., concur.