THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE 

CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING 

EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR. 

THE STATE OF SOUTH CAROLINA 

In The Supreme Court 

John Kennedy Hughey, Respondent/Petitioner, 

v. 

State of South Carolina, Petitioner/Respondent. 

Appellate Case No. 2010-170387 

Appeal From Abbeville County 

The Honorable Alexander S. Macaulay, Circuit Court 

Judge
 

Memorandum Opinion No. 2015-MO-029 

Heard January 15, 2015 – Filed May 13, 2015 

DISMISSED AS IMPROVIDENTLY GRANTED 

Attorney General Alan McCrory Wilson, Chief Deputy 

Attorney General John W. McIntosh, and Senior 

Assistant Deputy Attorney General Donald J. Zelenka, all 

of Columbia, for Petitioner/Respondent. 

E. Charles Grose, of Greenwood, and Tara Schulz 

Waters, of Summerville, for Respondent/Petitioner. 

J. Christopher Mills, for Amicus Curiae, South Carolina 

Religious Leaders and Scholars. 
 

PER CURIAM: After careful review of the record, appendix, and briefs, the writs 

of certiorari are dismissed as improvidently granted. 

DISMISSED AS IMPROVIDENTLY GRANTED. 

PLEICONES, BEATTY and HEARN, JJ., concur. KITTREDGE, J., 

concurring in part and dissenting in part in a separate opinion in which 

TOAL, C.J., concurs. 
 

 

JUSTICE KITTREDGE: I concur in part and dissent in part. I concur as to the 

dismissal of John Kennedy Hughey's certiorari petition. I dissent with respect to 

the dismissal of the State's certiorari petition, which, in effect, upholds the postconviction relief court's grant of a new sentencing hearing based on the erroneous 

mercy charge. I would reverse the post-conviction relief court and reinstate 

Hughey's death sentence. I incorporate the well-reasoned opinion of Chief Justice 

Toal in Evans v. State, Op. No. 2015-MO-027 (S.C. Sup. Ct. filed May 13, 2015) 

(Toal, C.J., dissenting). 

I add the following comments. In 2009, I authored this court's unanimous opinion 

in Rosemond v. Catoe, 383 S.C. 320, 680 S.E.2d 5 (2009). Rosemond was granted 

a new sentencing hearing based on trial counsel's failure to present any mental 

health mitigation evidence. Rosemond, 383 S.C. at 329, 680 S.E.2d at 10. 

Rosemond also asserted the mercy charge—"you may recommend a sentence of 

life imprisonment for any reason or for no reason at all other than as an act of 

mercy"—as a basis for post-conviction relief. Id. We did not grant PCR based on 

the mercy charge, but clarified in dictum that the "other than as an act of mercy" 

language not be charged. Id. at 330, 680 S.E.2d at 10–11. I view the challenged 

instruction, in isolation, as potentially confusing, for it is susceptible to more than 

one interpretation. 

This court never addressed the challenged mercy instruction in Rosemond in the 

context of the Strickland v. Washington1

 test. Id. at 329–30, 680 S.E.2d at 10–11. 

Given that the charge in this case was affirmed on direct review fifteen years ago, I 

cannot fathom how it is proper for this Court to uphold the post-conviction relief 

court's finding of deficient representation. See State v. Hughey, 339 S.C. 439, 459, 

529 S.E.2d 721, 732 (2000) (reviewing the charge on mitigating circumstances, 

including the mercy charge, and concluding "a reasonable juror would understand 

that either a statutory or a non-statutory jury circumstance could reduce the 

sentence to life imprisonment"). The finding of deficient representation is clear 

legal error. In any event, even were I to indulge in the fiction of deficient 

representation, Hughey cannot satisfy the prejudice prong of Strickland. The trial 

court's instruction in Hughey was as follows: 

Now as I indicated to you, you'll also have a form which is a 

recommendation of a life sentence. Now that particular form just 

simply states and sets forth that you twelve jurors have determined 

that a life sentence has been recommended in this case. And as I've 

1

 466 U.S. 668 (1984). 
said, you will have two separate forms. One relating to county [sic] 

one of the indictment, one relating to county [sic] two of the 

indictment. 

By that recommendation-of-sentence form, you twelve jurors may 

recommend that the defendant be sentenced to life imprisonment. 

Please note that while a recommendation of a life imprisonment 

sentence must also be a unanimous decision by the jury, only the 

foreman is required to sign his name to that recommendation-ofsentence form. 

In arriving at your decision as to what the appropriate sentence would 

be in this cases [sic], you are instructed that you must also consider 

any statutory mitigating circumstances. Therefore, what is a statutory 

mitigating circumstance? 

It is a fact, an incident, a detail, or an occurrence which the state 

legislature has declared by statute to be a circumstance which may 

make less or reduce the severity of the crime of murder. It is a 

circumstance which may be considered as mitigating or extenuating 

the degree of moral culpability for the commission of the offense of 

murder. 

A mitigating circumstance is neither a justification nor an excuse for 

the crime of murder. It is simply something which may lessen the 

degree of the defendant's guilt or make the defendant less 

blameworthy or less culpable. 

In making your determination as to whether or not to recommend a 

sentence of death or a sentence of life imprisonment, you should 

consider the following statutory mitigating circumstances. The 

following statutory mitigating circumstances are set forth on your 

statutory instruction form. They are the same as to each of the counts 

of the indictment. 

Those statutory mitigating circumstances are: The defendant has no 

significant history of prior criminal conviction involving the use of 

violence against another person, two, the murder was committed 

while the defendant was under the influence of a mental or an 

emotional disturbance, and three, the age or mentality of the defendant 

at the time of the offense. 
Now you are also permitted under the law to consider, anesthesia [sic] 

you should consider, any non-statutory mitigating circumstances 

which have been shown to exist by the evidence in the case. 

A non-statutory mitigating circumstance is one which is not provided 

for by statute, but is one which the defendant contends serves the 

same purpose. That is to lessen or reduce the degree of the 

defendant's guilt in the commission of the crime of murder. 

Those that the defense contends should be considered are: any prior 

good acts of the defendant, the defendant's level of intellectual 

functioning whether as a natural consequence of his birth or as a result 

of physical and/or emotional trauma suffered as a child or as an adult, 

and any other evidence relating to a mitigating circumstance which 

you find to be appropriate and which you find to have been 

established by the evidence in the case. 

Now while there must be some evidence which supports a finding by 

you of the existence of one or more statutory or non-statutory 

mitigating circumstances, it is not necessary that you find the 

existence of such of a circumstance or circumstances beyond a 

reasonable doubt. And you may recommend a sentence of life 

imprisonment and [sic] whether or not you find the existence of a 

statutory or non-statutory mitigating circumstance. 

In making your determination as to which sentence to recommend in 

these cases, you should consider the statutory aggravating 

circumstances, the statutory mitigating circumstances, and any nonstatutory mitigating circumstances in arriving at your decision. 

While you must find the existence of at least one statutory aggravating 

circumstance beyond a reasonable doubt before you may consider 

recommending a sentence of death, once such a finding is made you 

are permitted to recommend the sentence of death even though you 

may also find the existence of one or more statutory or non-statutory 

mitigating circumstances. 

The existence of any statutory or non-statutory mitigating 

circumstance is not a bar to the recommendation of a death sentence 

so long as you have found the existence of at least one statutory 

aggravating circumstance beyond a reasonable doubt. 
 

Conversely, you may also recommend a sentence of life imprisonment 

even though you find at least one statutory aggravating circumstance 

beyond a reasonable doubt, and find no mitigating circumstances do 

existence [sic]. Simply stated, you may recommend a sentence of life 

imprisonment for any reason or for no reason at all other than as an 

act of mercy.2 

In my judgment, the analysis here is no different than Chief Justice Toal articulated 

in Evans: 

[T]he ultimate test to determine the propriety of the trial judge's 

charge is "what a reasonable juror would have understood the charge 

to mean" in the context of the entire jury instruction. State v. Bell, 

305 S.C. 11, 16, 406 S.E.2d 165, 168 (1991); see also, e.g., State v. 

Hicks, 330 S.C. 207, 218, 499 S.E.2d 209, 215 (1998) ("A jury 

instruction must be viewed in the context of the overall charge."). 

Here, Evans contests one sentence of a lengthy charge that instructed 

the jury to consider all statutory and non-statutory mitigating factors 

in arriving at their verdict. In my opinion, the rest of the instruction, 

the emphasis placed on mercy by both the State and the defense, the 

trial judge's general opening explanation of mitigation and 

aggravation to the jury, and the unremarkable position of the 

condemned instruction in the context of the overall charge, all 

combine to preclude a finding of prejudice. Under these facts, a 

reasonable juror unquestionably would have been aware that he or she 

could recommend life as an act of mercy. Thus, it is my opinion that 

Evans has not proven that he was prejudiced by the defective 

instruction; consequently, his Strickland argument must fail. 

2

 Unlike the transcript in Binney v. State, Op. No. 2015-MO-028 (S.C. Sup. Ct. 

filed May 13, 2015), the transcript here contains no comma between the word "all" 

and the word "other." The absence of a comma, and the assumed absence of a 

pause in the reading of the sentence to the jury, does not change my view that the 

jury charge, when considered in its entirety, conveyed to the jury that it could 

recommend a life sentence merely as an act of mercy. Although we commonly 

find typographical errors in transcripts, an appellate court must accept the 

transcript as presented. I observe that the Hughey transcript contains far more 

errors than the Binney transcript. It would be regrettable, indeed, if an otherwise 

error-free death penalty verdict is set aside due to sloppy transcription. 
Evans v. State, Supra (Toal, C.J., dissenting). 

I agree with Chief Justice Toal's dissenting opinion in Evans, and I would reverse 

the grant of post-conviction relief to Hughey. 

TOAL, C.J., concurs.