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TATE v. STATE

April 13, 1992

LOTHELL TATE, PETITIONER
v.
STATE OF SOUTH CAROLINA, RESPONDENT.



The opinion of the court was delivered by: Chandler, Justice:

Heard Jan. 7, 1992.

Decided April 13, 1992.

ON WRIT OF CERTIORARI

We granted rehearing to reconsider our opinion in Tate v. State, Op. No. 23589 (filed March 2, 1992, Davis Adv. Sh. #6). Opinion Number 23589 is vacated, and the following substituted in its place.

We granted certiorari to review denial of Petitioner Lothell Tate's (Tate) application for Post-Conviction Relief (PCR).

We affirm.

FACTS

Tate was convicted of the murder of her brother, Malcolm. We recite, briefly, the facts leading to his death.

Since approximately age nineteen,*fn1 Malcolm had a history of schizophrenia. In 1984, he was hospitalized in Baltimore for approximately one year. At that time, Malcolm believed he heard voices from God telling him that Tate's then two-year-old daughter, N'Zinga, had the devil in her and that God had sent him to kill her.

After the Baltimore hospitalization, Malcolm's condition improved but began to regress 1 1/2 years to 2 years later when he quit taking his medications. He was repeatedly arrested for minor offenses such as trespassing and injury to property. He was treated periodically at numerous mental institutions, the treatment generally being for a few days only, followed by out-patient care.

According to his family, Malcolm's behavior progressively deteriorated, and he became more violent and abusive. However, neither Tate nor any other family member could point to a single act of physical violence by Malcolm toward them or anyone else.

Following his arrest in December, 1988, Malcolm was released on bond provided by Tate and their mother, Pauline Wilkerson. When he expressed the desire to "go somewhere," Tate and Wilkerson volunteered to take him to Baltimore where he had previously lived. Malcolm followed their instructions to return to their home at 11:00 p.m., at which time the three left Wilkerson's Gastonia, North Carolina, home.

Rather than taking a north-bound route toward Baltimore, they drove south into Chester County, South Carolina, stopping en route to purchase candy and a soda for Malcolm.

When Malcolm indicated the need to use the bathroom, Wilkerson pulled her car to the side of the road and stopped. As Malcolm walked away, with his back to Tate and Wilkerson, Tate shot him thirteen times with a .25 caliber pistol which Wilkerson had purchased a few days earlier. Tate and Wilkerson then rolled Malcolm's body down an embankment, covering it ...


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