J. D. Gleaton, 53, 98-12-04, South
In Columbia, 2 killers who were half brothers were executed by
injection Friday for killing a gas station owner during a robbery.
Larry Gilbert, 43, and J.D. Gleaton, 53, were put to death for the
stabbing and shooting death of Ralph Stoudemire.
Gilbert died 1st. The pair had spent more than two decades on death
"I thought when this day came that I wouldn't be sad, that I would
be happy, but I am," said Stoudemire's widow, Betty Slusher.
"Let's face it, we're taking two men's lives."
It was the 1st time since the Supreme Court reinstated the death
penalty in 1976 that 2 brothers were executed on the same day, said
Richard Dieter, executive director of the Death Penalty Information
Their 21 years, 1 month and 27 days on death row is among the
longest waits. An Arizona man, Jose Ceja, spent 23 years and a month
on death row before he was executed, Dieter said.
Authorities said the pair, both high on drugs, entered Stoudemire's
gas station July 12, 1977, to rob it. Gleaton stabbed the 44-year-old
Stoudemire 5 times, including once in the heart. Gilbert shot him.
In 1979, the state Supreme Court ordered a new sentencing trial
because of a prosecutor's remarks. They were resentenced to death.
In 1996, a federal judge said they deserved a new trial because of
improper jury instructions, but an appeals court overturned that
Gilbert and Gleaton become the 4th and 5th condemned prisoners to be
put to death this year in South Carolina, and the 17th and 18th
overall since the state resumed executions in 1985.
(sources: Associated Press and Rick Halperin)
Rick Halperin - Friday,
A federal appellate court yesterday overturned a lower court
ruling that 2 killers on death row should receive a new trial,
setting the state for a final appeal in the case.
In a unanimous decision, the 4th US Court of Appeals reversed US
District Judge C. Weston Houck's decision to grant a new trial to
Larry Gilbert, 42, and J.D. Gleaton, 52.
David Voisin, Gleaton's lawyer, said he will consider asking the
appeals court for a rehearing. If that is denied, he will petition
the US Supreme Court. Voisin said that "I am disappointed because we
thought we had several compelling issues in the case. The
instructions went to the key issue of guilt or innocence...It can't
be reduced to the category of a technicality."
Attorney General Charlie Condon and others on the prosecution
side of the case hailed the ruling, saying that "I think this sends
a strong message to the US Supreme Court. I hope it is a watershed
for use since this was our oldest case."
Last July, a 3-judge panel of the appellate court upheld Houck's
ruling. 2 of the 3 judges changed their minds in Thursday's decision,
Condon said. The 3rd was sick and did not participate, he said.
Condon had asked the full appellate court to review Houck's
decision. Oral arguments were heard in December.
11th Circuit Solicitor Donnie Myers, who prosecuted Gilbert and
Gleaton, said that "it was total elation and total surprise to have
a unanimous decision. It's amazing. Thank God some common sense has
finally come into play in this situation. We're back where we were
21 years ago."
Gilbert and Gleaton, 1/2 brothers who lived in Salley, S.C.,
received death sentences in 1977 for stabbing and shooting Ralph
Stoudemire, 44, while robbing his gas station. They were later tried
a 2nd time and again received death sentences.
Betty Slusher, who was married to Stoudemire for 25 years, got
the phone call with the news she had been praying for, and said that
"it was the attorney general's office, and I started screaming and
crying and said, 'Thank you, God.' I still haven't come down to
earth yet." Slusher, now remarried, added that "Ralph Stoudemire's
justice is going to come. I have hope that the execution dates are
getting closer now."
On August 26, 1996, Houck ordered Gilbert and Gleaton to be
He granted their request for a writ of habeas corpus, which was
based on claims they were illegally imprisoned. Houck ruled during
the men's 3rd and final round of appeals.
Houck took issue with an instruction Circuit Judge Rodney Peeples
gave jurors during the men's 1977 trial; he ruled the instruction
improperly shifted the burden of proof to Gilbert and Gleaton, who
had confessed to police, acted with the malice required for a murder
conviction if they found the men were armed with deadly weapons when
Stoudemire was robbed.
The instruction meant the state did not have to prove the men
intended to use deadly force while robbing Stoudemire, Houck
Condon argued that the jury insruction, while improper, was a "harmless
error." The appellate court agreed, with the judges stating that "we
conclude that although the challenged instruction is
unconstitutional, the error was harmless."
(source: The (Columbia, S.C.) State)
Rick Halperin - Friday, 1-30-98
2 South Carolina men who killed a service station owner in 1977
had their death sentence reinstated Thursday by a federal appeals
The full 4th U.S. Circuit Court of Appeals in Richmond, Va.,
unanimously overturned an earlier decision by a 3-judge panel of the
court upholding a lower court ruling that granted the 2 men a new
Half-brothers Larry Gilbert and J.D. Gleaton have spent more than
2 decades on death row. In 1996, a U.S. District Court judge ruled
that their jury had been improperly instructed, violating their
constitutional rights, and decided they deserved a new trial.
The full appeals court then decided to rehear the case.
"Considering the totality of the overpowering evidence of malice
that the jury had before it, there can be no doubt that the
erroneous instruction had no effect whatsoever on the verdicts,"
wrote Judge William W. Wilkins Jr.
"It is now well-established that not all errors of constitutional
dimension warrant a federal court to overturn a state conviction or
sentence," he wrote.
According to testimony, the men had been awake for 2 days using
stimulants and marijuana. At the South Congaree, S.C., station,
Gleaton pulled a knife on Ralph Stoudemire, threatened to rob him,
then stabbed him several times and ran. Gilbert then shot Stoudemire
once before he also fled.
(source: Associated Press)
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
LARRY GILBERT, Petitioner-Appellee,
MICHAEL W. MOORE, Director of the South Carolina Department of
Corrections, in his official capacity; ATTORNEY GENERAL OF THE STATE
OF SOUTH CAROLINA, Respondents-Appellants.
No. 96-12 - No. 96-15
J. D. GLEATON,
MICHAEL W. MOORE, Director of the South
Carolina Department ofCorrections, in his official capacity;
ATTORNEY GENERAL OF THE STATE OF SOUTH CAROLINA, Respondents-Appellants.
No. 96-13 - No. 96-16
Argued: March 5, 1997
Decided: July 29, 1997
Before RUSSELL, MURNAGHAN, and MOTZ, Circuit
Affirmed by published opinion. Judge Russell
wrote the opinion, inwhich Judge Murnaghan and Judge Motz joined.
RUSSELL, Circuit Judge:
The Director of the South Carolina Department of
Corrections, in his official capacity, and the Attorney General of
the State of South Carolina (collectively "the State"), appeal the
district court's final order granting Larry Gilbert's and J.D.
Gleaton's individual petitions for writs of habeas corpus. Although
we heard oral argument on the appeals and cross-appeals in seriatim,
we consolidate both cases into this single opinion.
On Tuesday afternoon, July 12, 1977, half-brothers
Gilbert and Gleaton drove around Cayce, South Carolina intending to
purchase drugs. After several unsuccessful inquiries in Cayce, they
drove toward South Congaree. As they traveled along Highway 51, they
noticed a lone attendant, Ralph Stoudemire, in a service station,
and decided to rob him. Gleaton entered the station first. After
requesting some cigarettes, he pulled out a hunting knife, and told
Stoudemire that it was a robbery.
As Stoudemire reached into his pocket, Gleaton
made a stabbing motion at Stoudemire, and a scuffle ensued. Gleaton
inflicted Stoudemire with slash and stab wounds to his torso and
wrists. During the scuffle, Gilbert entered the station with a gun
and shot Stoudemire once. Gilbert and Gleaton then ran out of the
On his way out, Gilbert grabbed a nearby
pocketbook left in the station by Stoudemire's wife. From across the
street, Stoudemire's son witnessed the men drive off and saw his
father stagger out of the service station pointing at the car.
Stoudemire died approximately forty-five minutes
The police arrested Gilbert and Gleaton the next
day. While the men were in police custody, each man admitted to
driving around looking for a business to rob so they would have
money with which to purchase drugs. Gilbert confessed to shooting
Stoudemire with the gun. Gleaton confessed to assaulting Stoudemire
with the knife.
An autopsy established that Gilbert and Gleaton
had collectively inflicted Stoudemire with one superficial gunshot
wound to the chest, two superficial slash wounds to the wrists, and
five stab wounds to the torso. One of the stab wounds pierced
Stoudemire's heart and caused his death.
In October 1977, Gilbert and Gleaton (hereinafter
"the Petition-ers"), were jointly tried and convicted for the murder
and armed robbery of Stoudemire. At their subsequent sentencing
trial, both men received death sentences.
On direct appeal, the Supreme Court of South
Carolina affirmed the convictions, but reversed the sentences
because of the solicitor's improper closing argument during the
sentencing phase of the trial. At the resentencing trial in February
1980, the Petitioners again received death sentences. The Supreme
Court of South Carolina affirmed their new sentences. After the
United States Supreme Court declined discretionary review of their
appeals, the Petitioners filed applications for post-conviction
relief ("PCR") in state court. Their applications were denied by
separate orders following a joint hearing. The Supreme Court of
South Carolina refused to consider their appeals, and the United
States Supreme Court denied certiorari review.
In 1984, the Petitioners filed separate petitions
for writs of habeas corpus in federal district court. In June 1988,
the district court granted the State's motion for summary judgment
on all claims raised by the Petitioners in their PCR applications.
Three years later, in August 1991, the district court vacated its
order, and remanded the petitions to a magistrate judge with
instructions to hold the pleadings in abeyance for sixty days while
the Petitioners pursued additional remedies in state court.
The Petitioners immediately filed second PCR
applications in state court. In March of 1994, the judge who
presided over the joint hearing on their applications declined to
grant them relief. The Supreme Court of South Carolina denied the
Petitioners' petitions for certiorari review. Neither Gilbert nor
Gleaton petitioned the United States Supreme Court for writs of
During the four years in which the Petitioners'
second PCR applications were litigated in state court, the parties
continued to file pleadings in federal district court. In May 1992,
the State moved to expedite the district court's decision. As of
that date, the State waived exhaustion as to all of the claims
pending before the district court. The Petitioners opposed the
motion, urging the district court to wait until the state court
concluded its review of their pending PCR applications. In late July
1992, however, the district court granted the State's motion to
Finally, on August 26, 1996, the district court
granted the Petitioners' habeas corpus petitions. The district court
found the implied malice instruction, which had been presented to
the jury in the 1977 guilt phase of their trial, contained
unconstitutional rebuttable presumptions and was not harmless error.
The district court also found the Petitioners' remaining grounds of
appeal either unsubstantiated or not of constitutional magnitude.
The State appeals the district court's grant of
the writs of habeas corpus. The Petitioners' cross-appeal the
district court's denial of the writs on their remaining issues.
The key issue on appeal is the implied malice
instruction. At the close of the guilt phase of the Petitioners'
trial, the trial court instructed the jury that murder is "the
killing of any person with malice aforethought, either expressed or
The trial courtexplained that "malice may be
expressed as where previous threats of vengeance or lying in wait or
other circumstances show directly that an intent to kill was really
entertained." Malice may also be implied from the "facts and
circumstances of the case which are proven." In addition, the "willful,
deliberate and intentional doing of any unlawful act without just
cause" or the "conduct of the defendant in the use or handling of a
deadly weapon" creates a rebuttable presumption of malice.
In Yates v. Evatt, the Supreme Court held that
this implied malice instruction, which was the standard instruction
given in South Carolina at the time of Gilbert's and Gleaton's trial,
violates a defendant's due process right because the instruction
erroneously shifts the burden of proof as to malice from the
prosecution to the defendant. The district court found the
instruction to be harmful error in the Petitioners' case and granted
their petitions for writs of habeas corpus. Our review of the
district court's determination is plenary.
The harmlessness standard for habeas review of
constitutional error is whether the error "had substantial and
injurious effect or influence in determining the jury's verdict."
The Petitioners must establish "actual prejudice" as a result of the
implied malice instruction in order to obtain habeas relief.
In a recent habeas case, Arnold v. Evatt,
weaddressed an identical claim, based on the same implied malice
instruction, and applied the analysis established by the Supreme
Courtin Yates. The reviewing court "must only determine the error
was unimportant in relation to the other evidence considered by the
jury independently of the erroneous presumption." In making this
determination, the reviewing court must: "(1) ask what evidence the
jury actually considered in reaching its verdict; and (2) weigh the
probative force of that evidence as against the probative force of
the erroneous presumption standing alone."
Throughout its charge on malice, the trial court
reminded the jurors to base their determination of malice on all of
the evidence presented, that any malice presumption was rebuttable,
and that the State must establish malice beyond a reasonable doubt.
In asking what evidence the jury actually considered, we apply the
customary presumption that the jurors followed the trial court's
instructions in reaching their decision.
The jury also heard evidence tending to rebut
malice. Notably, the solicitor presented Gleaton's statement that
the killing of Stoudemire was the result of a "scuffle." Thus, as in
Yates and Arnold, the jury was "free to look beyond the unlawful
presumption and consider all the evidence on malice."
In Arnold, we found that the implied malice
instruction was not prejudicial. We based our decision on the
existence of fourteen pieces of evidence showing express malice,
including evidence of premeditation. Most of that evidence also
supported the predicate facts underlying the erroneous presumptions.
In addition, the solicitor at Arnold's trial referred to the implied
malice instruction in his closing argument. Nonetheless, we found
that Arnold had failed to "tip thescales sufficiently in his favor,"
leading to our conclusion that "any reasonable jury, not
withstanding the implied malice instruction, would have found malice
beyond a reasonable doubt."
In contrast to the solicitor in Arnold, the
solicitor in the Petitioners' case offered no evidence of express
malice. Gleaton's statement to the police, as well as physical
evidence at the scene of the crime, indicated that the stabbings
took place as part of a scuffle. Gleaton entered the store carrying
a knife, while Gilbert waited outside. Only after Gleaton and
Stoudemire began to scuffle did Gilbert enter the station with a gun
and shoot at Stoudemire. Stoudemire was still alive, and mobile,
when the Petitioners left the station.
The State's primary argument on appeal is that
the probative force of the physical evidence is sufficient to
outweigh the probative force of the erroneous presumptions. In
particular, the State points to the multiple wounds suffered by
Stoudemire. The State relies on six cases, primarily from the
Eleventh Circuit, for the proposition that the inference of intent
created by the nature of the crime may be sufficient to render a
burden-shifting intent instruction harmless. All of these cases pre-date
Yates and address a broader rebuttable presumption (i.e. a person
intends the consequences of his acts). Most importantly, these cases
can be distinguished based on the facts. The courts found the intent
instructions harmless because the extreme nature of the crimes
demonstrated the defendants' overwhelming intent to ensure the death
of the victims.
In this case, the Petitioners assaulted
Stoudemire but made no effort to ensure his death.
We believe that the facts in the Petitioners'
case more closely resemble those in Houston v. Dutton, an opinion
applying the Yates analysis. While we do not necessarily embrace the
holding in that case, it offers some guidance as to when a burden-shifting
instruction constitutes harmful error. In Houston, the defendant
killed the owner of a gasoline service station during the course of
a robbery by shooting him three times, twice at point-blank range.
The defendant claimed the killing was an accident
that occurred during the course of a struggle over the gun. The
trial court charged the jury that the use of a deadly weapon raised
a rebuttable presumption of malice. Because of the two point-blank
shots, the nature of the crime in Houston was arguably even more
indicative of malice than the natureof the crime in the Petitioners'
case. On habeas review, however, the Sixth Circuit held that the
implied malice instruction was harmful error.
The solicitor in the Petitioners' case also
exacerbated the prejudicial effect of the implied malice instruction.
In particular, he referred to one of the rebuttable presumptions in
his closing argument. In Hyman v. Aiken, this court found an
identical malice instruction given in a South Carolina case to be
prejudicial. Although Hyman involved different circumstances, we
noted that the "importance of the malice instructions is emphasized
by the solicitor's reliance on them in his closing argument . . . ."
This is not a dispositive factor, as implied by
our holding in Arnold. Nonetheless, in the absence of overwhelming
evidence of malice, whether express or implied, it becomes more
likely that the solicitor's use of the presumption influenced the
The district court found that because the source
of the jury's malice determination "may well have been the
constitutionally infirm jury charge, it cannot be said to be
harmless and the convictions cannot stand." We agree. Unlike the
defendant in Arnold, the Petitioners have tipped the scales
sufficiently in their favor. The relevant inquiry is not whether "in
a trial that occurred without the error, a guilty verdict would
surely have been rendered, but whether the guilty verdict actually
rendered in this trial was surely unattributable to the error." A
reasonable jury, looking at all of the facts in this case, might
have inferred malice from the presence of the weapons, the wounds,
and Stoudemire's death. Under these circumstances, however, the
presumptions in the implied malice instruction were prejudicial.
In the absence of evidence of express malice, and
having examined the evidence of implied malice presented by the
State, we harbor "agrave doubt as to [the] harmlessness" of the
implied malice instruction. Accordingly, we affirm the district
court's order granting habeasrelief to the Petitioners.
Our decision to affirm the judgment of the
district court on the basis of the implied malice instruction
relieves us of the responsibility to consider any of the other
issues raised by the Petitioners on cross-appeal. However, we do
note that the Petitioners' ineffective assistance of counsel claims
could provide an independent ground for the grant of their habeas
It is our responsibility to order appropriate
relief for those petitioners who demonstrate the existence of
harmful error. We must fulfill this responsibility even if we are
convinced of the guilt of the Petitioners and even if our decision
requires the State to either release them, or retry them, nearly
twenty years after their initial trial.