The opinion of the court was delivered by: Gregory, Justice:
May 28, 1979.
Appellants Joseph Carl Shaw and James Terry Roach pled guilty to the murders of Thomas Taylor and Carlotta Hartness and each was sentenced to death. The case is before this Court on direct appeal and for mandatory review of the death sentences.
This is the first capital case reviewed under our current death penalty statutes, Section 16-3-20 through Section 16-3-28, 1976 Code of Laws of South Carolina, Cum. Supp. 1978.
Shaw, Roach, and Ronald Eugene Mahaffey spent the morning of Saturday, October 29, 1977, "shooting up" with drugs and drinking beer. At approximately 1:00 that afternoon the three decided, in Mahaffey's words, "to see if we could find a girl to rape."
Shaw, Roach, and Mahaffey drove to Polo Park, a baseball park, located off Alpine Road northeast of Columbia. There they saw a parked late model car occupied by Thomas Taylor, aged 17, and Carlotta Hartness, aged 14.
Shaw, who was driving, pulled up beside the parked car in such a way that Roach, who was in the front passenger's seat, was directly across from Taylor, the driver of the parked car. Mahaffey was in the back seat.
At a prearranged signal from Shaw, Roach leveled a .22 caliber rifle through the car window at Taylor and demanded money. Taylor gave the three his wallet.
Ms. Hartness was carried to a dirt road a short distance away where she was forced to disrobe. Shaw raped Ms. Hartness while Roach and Mahaffey looked through Taylor's wallet. Roach then raped Ms. Hartness. Shaw raped Ms. Hartness a second time while Mahaffey forced her to perform oral sex. Mahaffey then raped Ms. Hartness while Shaw forced her to perform oral sex.
Shaw asked who would shoot Ms. Hartness and Roach volunteered. Shaw instructed Ms. Hartness to put her face to the ground but she refused. Shaw drew a circle in the dirt and drew an "X" inside the circle and told Ms. Hartness to place her head in the circle. Ms. Hartness again refused and pleaded for her life. Shaw told Ms. Hartness a third time to place her head on the ground and she complied. Roach shot Ms. Hartness in the head, causing her body to convulse. Shaw then took the rifle from Roach and fired into Ms. Hartness's head, killing her.
Shaw, Roach, and Mahaffey left the scene, disposed of the rifle and bullets, and returned to Polo Park to satisfy themselves that Taylor was dead.
Later that night Shaw returned to the scene of Ms. Hartness's murder and mutilated her body by cutting her breasts and pubic area with broken glass and by inserting sticks in her vagina and anus.
Shaw, Roach, and Mahaffey were arrested on November 3, 1977. Each was indicted for two counts of murder, two counts of conspiracy, rape, kidnapping, and armed robbery. The State elected to seek the death penalty for Shaw and Roach and served the Notices required by Section 16-3-20 (B) and Section 16-3-26(A), Cum. Supp. 1978.
As the result of plea negotiations the State did not seek the death penalty against Mahaffey in exchange for his testimony against Shaw and Roach.
On December 12, 1977 Shaw pled guilty to all charges. Roach pled guilty to two counts of murder, rape, kidnapping and armed robbery, and pled nolo contendere to two counts of conspiracy.
A separate pre-sentence hearing was conducted as required by Section 16-3-20(B), Cum. Supp. 1978, on December 14, 15 and 16, 1977. At this hearing evidence in extenuation, mitigation and aggravation was introduced. The trial judge found aggravating circumstances and imposed sentences of death upon both Shaw and Roach.
No issue is raised on appeal regarding the validity of appellants' guilty pleas. We have reviewed the record, however, and are satisfied the guilty pleas were properly taken. The able trial judge went the second mile to insure that the guilty pleas were given knowingly and voluntarily.
CONSTITUTIONAL CHALLENGES TO
THE STATUTORY COMPLEX
Our present death penalty statutes, Section 16-3-20 through Section 16-3-28, Cum. Supp. 1978, were enacted as Act No. 177 of the 1977 Acts of the General Assembly. Act No. 177 of 1977 was patterned after the death penalty statutes of our sister state Georgia.
The constitutionality of Georgia's death penalty statutes was considered by the United States Supreme Court in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). While opinions may differ as to the parameters of the Supreme Court's holding in Gregg, it is indisputable that in Gregg the Court approved Georgia's death penalty statutes.
We now consider whether this State's statutory death penalty procedure is sufficiently similar to Georgia's procedure to pass constitutional scrutiny.
South Carolina's statutory complex, which is found at Appendix A to this opinion, retains the death penalty only for the crime of murder.*fn1 A capital defendant's guilt or innocence is determined in the traditional manner, either by a judge or jury, in the first stage of a bifurcated trial.
Upon conviction or adjudication of guilt of a capital defendant of murder, a separate sentencing proceeding is conducted to determine whether the capital defendant shall be sentenced to death or life imprisonment. The sentencing proceeding is conducted before the trial jury, or if the capital defendant pled guilty or if the trial jury is waived by both the capital defendant and the State, the sentencing proceeding is conducted before the court. Section 16-3-20(B), Cum. Supp. 1978.
"In the sentencing proceeding, the [trial] jury or judge shall hear additional evidence in extenuation, mitigation or aggravation of the punishment. Only such evidence in aggravation as the State has made known to the defendant in writing prior to the trial shall be admissible." Section 16-3-20(B), Cum. Supp. 1978. No similar limitation is imposed on evidence introduced in extenuation or mitigation of punishment by the capital defendant.
The capital defendant and his counsel are entitled to the closing argument regarding the sentence imposed.
In the assessment of the appropriate sentence to be imposed the judge is required to consider or include in his instructions to the trial jury for it to consider "any mitigating circumstances otherwise authorized or allowed by law and any of . . . [seven (7) statutory] aggravating and [nine (9) statutory] mitigating circumstances which may be supported by the evidence." Section 16-3-20(C), Cum. Supp. 1978. Although the statutory complex does not delineate the scope of non-statutory mitigating circumstances, It makes no provision for the consideration by the sentencing authority of any non-statutory aggravating circumstances.
Before a convicted capital defendant may be sentenced to death, the sentencing authority must find at least one aggravating circumstance beyond a reasonable doubt. The sentencing authority must designate in writing the aggravating circumstance or circumstances which it found. If the sentencing authority is the trial jury, this written finding must be signed by all members of the jury. The trial jury may recommend the death penalty only by unanimous decision. Section 16-3-20 (C), Cum. Supp. 1978.
The sentencing authority is not required by the statutory complex to find any mitigating circumstance in order to impose life imprisonment.
When the trial jury is the sentencing authority, its recommendation for punishment is binding on the court.
Regardless of whether the sentencing authority is the court or the trial jury, the court, prior to imposing the death penalty, is required to find as an affirmative fact that the death penalty is warranted under the evidence and is not imposed as the result of prejudice, passion, or any other arbitrary factor.*fn2 Section 16-3-20 (C), Cum. Supp. 1978.
Whenever the death penalty is imposed, the entire record and transcript of the trial, together with a separate report by the trial judge, are transmitted to this Court for sentence review. The report of the trial judge is in the form of a questionnaire prepared and supplied by this Court. Section 16-3-25(A), Cum. Supp. 1978. The eleven page questionnaire is designed to elicit detailed information about the defendant, the crime, and the circumstances of the trial.
The mandatory sentence review is in addition to, but may be consolidated with, any direct appeal by the convicted capital defendant. Section 16-3-25(F), Cum. Supp. 1978.
Mr. Justice Stewart, speaking for the Court in Gregg, summarized the procedural conditions necessary to impose the death penalty:
In summary, the concerns expressed in Furman [v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972)] that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance. As a general proposition these concerns are best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information. 428 U.S. at 195, 96 S.Ct. at 2935, 49 L.Ed.2d at 887.
Commenting on Gregg, supra, Chief Justice Burger, joined by Justices Stewart, Powell and Stevens, stated in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978):
The plurality [in Gregg] reasoned that to comply with Furman, sentencing procedures should not create "a substantial risk that the [death penalty will] be inflicted in an arbitrary and capricious manner." Gregg v. Georgia, supra, 428 U.S. at 188, 96 S.Ct. , at 2932 [49 L.Ed.2d 859]. In view of the plurality, however, Furman did not require that all sentencing discretion be eliminated, but only that it be "directed and limited," id., at 189, 96 S.Ct. , at 2932 [49 L.Ed.2d 859], so that the death penalty would be imposed in a more consistent and rational manner and so that there would be a "meaningful basis for distinguishing the . . . cases in which it is imposed from . . . the many cases in which it is not." Id, at 188, 96 S.Ct. , at 2932 [49 L.Ed.2d 859]. The plurality also concluded, in the course of invalidating North Carolina's mandatory death penalty statute, that the sentencing process must permit consideration of the "character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death." Woodson v. North Carolina supra, 428 U.S.  at 304, 96 S.Ct.  at 2991 [49 L.Ed.2d 944], in order to ensure the reliability, under Eighth Amendment standards, of the determination that "death is the appropriate ...