*1 2) lant as mandated by 16-3-20(B); Section the failure of the record to reflect the appellant’s knowing and voluntary waiver right of his to testify during his sentencing proceeding.
Affirmed in part; vacated in part; and remanded.
Harwell, C.J., and Chandler, Toal and Moore, JJ., concur. STATE, Respondent SIMMONS,
The Appellant. v. Jonathan Dale
(427 (2d) 175) Supreme Court *2 Bruch, Pearce, Ap- M. Anne of David I. and of Office Columbia, Defensе, appellant. pellate Medloch, Gen. Don- Atty. Gen. T. Atty. Deputy Travis Chief Zelenka, A. Harpootlixm, Columbia, Richard ald J. Sol. and respondent. 1, 1993. Decided Feb. 13, 1992; Heard Oct. 10, 1993.
Reh. Den. March Justice:
Moore, murder, first-degree burglary, of Appellant convicted death, a larceny. and He was sentenced to consеcutive petit affirm. term, thirty and We days.
FACTS Josie was found dead in July 17,1990, victim, Lamb, On the the of her home in area Columbia. Olympia the bathroom the had been an assailant who used toilet by Her skull crushed seventy-nine her Ms. tank lid to beat on the head. Lamb was old. years was found on the commode lid
Appellant’s fingerprint He the bloody fingerprint on the floor. was arrested next his Lamb. he went killing and confessed to Ms. He stated day redheaded, Jimmy, house “to see white male named he her house me 50 He has been Ms. Lamb’s owed dollars.” Jimmy week he touched previous asked for but when the night handle Ms. fled. On the doоr Lamb screamed he murder, he the home and heard her scream. After entered around to no one else was looking present, appellant be sure twice on went into the bathroom and struck Ms. Lamb At some point unplugged the commode lid. he head with from a He took a bedroоm and fled. telephone. nightgown trial, appellant At the counsel conceded that guilt phase nightgown. had in fact murdered Ms. Lamb and had taken the prove defense focused on the State’s failure to Appellant’s first-degree burglary which was the only statutory aggravat- ing alleged circumstance in this case. He contended there was no evidence he intended to commit a crime at the time en- tered Ms. Lamb’s house since, as stated in his confession, he gone had there intending only to look for “Jimmy.” response appellant’s trial strategy, State was al- v. Lyle, lowed to intrоduce under 125 S'.C. 406,118 S.E. evidence of appellant’s confessions to other crimes against three elderly female victims.
ISSUES Lyle 1. Whether the evidence was admitted? properly 2. Whether appellant was entitled penalty to a phase regarding parole ineligibility? 3. Whether a charge regarding general deterrence should
have been given? 4. Whether a charge describing each asserted nonstatutory
mitigating circumstance should have been given?
DISCUSSION GUILT PHASE 16-11-311(A) 1991) 5.C. Code Ann. requires State to prove as one element of first-degree burglary that the defendant “entered a dwelling without consent and with intent to commit a crime therеin.” While such an intent is in- ferable from the defendant’s conduct the absence of other State v. Haney, proof,
here the issue of intent joined by was evidence appellant had no intent to commit a crime when he entered Ms. Lamb’s intent, house. To prove Solicitor introduced the fоllowing three confessions given by appellant shortly after his arrest for Ms. Lamb’s murder:
1. Faris v. Mims
Ms. Mims is an elderly woman who lived in the Olympia area of Columbia at the time she was as- saulted. In May 1990, appellant the front approached door of Ms. Mims house and asked for directions. He then went to her bаck door and forced his way in. He sexually choking assaulted her while her with some from the house. $50 around her neck. He stole
clothing he saw she He admitted he chose the victim because lady.” an “old 2. Marie Furtick old at the time she seventy-one years
Ms. Furtick was in her home in the South by apрellant was assaulted 1989, appellant area. In went Ms. Congaree August Furtick’s front door and threw water on her when she her, her, He then beat opened raped the door. stole money.
3. Estelle Simmons appellant’s grandmother.
Ms. Simmons is She was sev- when, and lived near Ms. Furtick enty-one years old and beat her in her home. appеllant raped June unplugged telephone money. He her and looked for evidence that Furtick The State introduced other both Ms. were beaten about the head very severely and Ms. Simmons and face. Ms. Furtick was bitten on the breasts and buttocks. Although appellant’s money confessiоns indicate took from Simmons, both Ms. Furtick and Ms. the State’s evidence indi- of value was taken either home. nothing cates from evidence of other Appellant argues that this crimes should (1) were have been excluded because these crimes too dissimi- lar probative prejudicial Lаmb murder to be of this evidence was too impact great.
We find this evidence was admitted under properly Lyle tending as evidence to establish intent. Clear and evidence of convincing other crimes that is admissible under logically prove relevant intent Lyle if probative outweighs its valuе its undue ef prejudicial Bell, *4 fect. See State v. 18, 302 S.C. 364 Al though Appellant asserts these other crimes are “too dissimi lar” to be admitted under State v. Lyle, we find the evidence of logically other crimes is relevant to the issue of intent.
Evidence is relevant if it tends to make more or less probable some matter in issue which it upon directly or Alexander, bears. indirectly 303 S.C. Bell, (1991); S.E. supra. The evidence appel of lant’s violence against women, each of whom elderly was alone in attack, her home at the time of the makes probable ap- more pellant’s criminаl intent when he entered Ms. Lamb’s house since he knew her to be already elderly Although an woman. there no all case, pre- was sexual assault Ms. Lamb’s of the vious accompanied by sexual assaults were terrific vi- physical olence that beyond accomplish far needed to sexual assault itself. theft Moreover, overwhelming was not the motivation in these It prior cases. is to conclude from the logical evidence that appellant chiefly motivated in each by case an intent an violently injure elderly This woman. evidence is there- fore relevant to the issue at intent the time he entered Ms. Lamb’s home without her consent.
Further, we find the probative value of this evidence out- weighs its undue The prejudicial effect. issue of intent was a State v. Garner, contested one. Cf. (prejudicial effect evidence of other crimes out- weighs probative its value when for which it is admit- purpose issue). ted is a contested The fact that appellant’s grand- mother was one of several elderly women he violently injured probative because it demonstrates that even her status as grandmother negate his did not particular violеnt intent regarding elderly women.
We hold evidence of other crimes was properly admit- Lyle under ted as evidence tending to establish intent on the burglary charge this case. PHASE
SENTENCING At sentencing phase trial, appellant a requested that if sentenced in- imprisonment, he would be eligible parоle § under Ann. S.C. Code 24-21-640 1991).1 Torrence, v.
The trial ruled Judge that precluded any charge on parole eligibility general or After ineligibility. sentencing charge was a given, jury posed question to the judge: impo- “Does the provides: Section 24-21-640 Probation, grant parole [of Pardon] The Board Parole and must not nor is parole any prisoner serving a authorized a sentence for second or sub- conviction, sequent separate following sentencing prior conviction, a for violent crimes as defined in 16-1-60. *5 444 it possibility parole?” with the carry
sition a life sentence meaning” required the gave “plain charge The triаl then judge (2d) Norris, v. (1985), under State “parole or parole eligibility” the was not to consider jury that are be in their and the “life” and “death” to understood terms ordinary meaning. and plain in his re- judge refusing contends the trial erred
Appellant because Torrence did not settle and this issue quested chargе eighth charge process failure the violates his due give rights. amendment Torrence,
In the a that requested charge defendant § 24-21-640 he was for under since ineligible parole would be for The already serving previous a sentence a murder. but offered that request charge trial denied thе judge 1991) § 16-3-20 the defendant under S.C. Code Ann. or only twenty thirty years would after eligible parole be an circumstance was upon aggravating whether depending v. Atkins, in found. This is the charge approved (1987). 294, 360 S.E. for the Tor Finney, writing majority,
Justice reversed judge rence’s trial committed death sentence because “the in error based prejudicial denying request charge [his] 24-21-640.” 305 S.C. at Justice upon 315. Atkins in noting charge Chandler concurred result that § 16-3-20 in He given under was inaccurate Torrence’s case. Atkins (1) a majority then overruled Court because sentencing jury is not a consideration for a since parole proper not mitigating practical problems it is a circumstance Further, of the may application parole arise in the statutes. relies on the that analysis proposition Justice Chandler’s v. is a of state under solely issue matter law California Ramos, 3446, 77 L.Ed. 463 U.S. S.Ct. Tor- engage We in аn academic discussion whether need rence parole to both since we applies eligibility ineligibility the Norris conclude in case in sub- charge given this satisfies request stance for a charge parole ineligibility. on — Davis, —, we Torrence, despite clarified that our a ruling defendаnt entitled, upon plain meaning still to a under request, Atkins, supra. Although judge erroneously the trial give plain meaning charge upon declined to in this request followed case, properly the error was cured when he Norris, supra, answering jury’s question regarding *6 possibility parole as follows: eligi-
You are instructed not to consider or рarole parole bility reaching your verdict. Do not consider or parole parole your That is not a issue for con- eligibility. proper sideration. The terms life and death sen- imprisonment tence are to be understood in their plain ordinary meaning. sufficiency jury
The test for of а is what a rea charge juror sonable would have understood the to charge Bell, mean. State v. 11, 305 S.C. 406 S.E. 165 Patterson, State v. (1991); 280, 299 S.C.
(1989). We juror conclude a reasonable would have understood from the charge given imprisonment that indeed meant life without parole. appellant’s argument Wе therefore find without merit. further the trial
Appellant judge erroneously contends de requested charge jury any nied his that the should disregard alleged deterrent effect on others in whether to im deciding Solicitor, life or death. The declined to pose however, argue deterrence to the stated “all we general jury specifically Thus, are here to do is to deter deter [appellant].” general rence was never an presented jury. Moreover, issue to the we have previously give held the refusal such a is not Patterson, error. (1984). S.E. Finally, appellant the trial erred in argues judge denying that a detailed list of request twenty-seven nonstatutory circumstances be mitigating jury. Appellant submitted to concedes this is not so as the is procedure required long jury here, it miti- instructed, “any nonstatutory as was to consider Linder, circumstances.” gating (1981). PROPORTIONALITY REVIEW We have conducted thе sentence review S.C. required by Code Ann. 16-3-25 and conclude the evidence sup- of an jury’s finding aggravating circumstance. We ports arbitrarily imposed find the death sentence was in similar cases. proportionate penalty Affirmed. J., Littlejohn,
Harwell, C.J., Toal, Acting and Bruce Justice, Associate concur.
Finney, J., dissenting opinion. separate Finney, (dissenting): Justice view, appellant deprived I dissent. respectfully my appel- a fair trial virtue of the erroneous admission of by Lyle, crimes under 125 lant’s past holding I dissent that Further, majority’s from that jury charge not entitled to the effect appellant was be if life in I ineligible parole prison. he would sentenced to conviction and remand for a new would reverse trial. *7 State Lyle
Admission
Evidence Under
v.
of
trial,
At
the State
to
introduced
confessions
past
involving
three
crimes
the assault of
women
elderly
the
showing
dwelling
the
of
that he entered
viсtims
purpose
so,
the
a
therein.
the
doing
with
intent
to commit
crime
the
sought
satisfy
requirement
first-degree
intent
16-11-311(A)
1991).
§
In my
Code Ann.
burglary,
S.C.
view,
admissibility
these
do
meet the test
crimes
not
past
Lyle,
are
supra,
they
factually
under
inasmuch as
dissimilar
in
in at least
present case,
time,
from the
or too remote
instance, unduly prejudicial.
one
to be
under
In order for evidence of other crimes
admissible
rele
“logical
must have
exceptions,
the settled
evidence
for which it is
excepted purpose
vance to the particular
at
Due to the
Lyle,
to be introduced.”
118 S.E.
807.
sought
dangerous
tеndency
“the
very nature of such evidence and
its admission should be sub
misleading probative force,”
rigid scrutiny by
courts. Should the court
ject
between the extraneous
clearly perceive logical relevance
given
be
charged,
crime
the offense
the defendant should
Id.
also
rеjected.
the benefit of the doubt and the evidence
See
(1990).
Douglas,
on
oc-
prior
One
incident
which evidence was admitted
prior
more
to the
year
ap-
curred
than one
offense for which
was
trial. I find this offense too remote in time to
pellant
on
establish that
reasonаbly
appellant
prior
because
entered this
victim’s
with intent
a
dwelling
crime,
commit
he did so
case,
or that there
present
common scheme or plan.
Lyle,
Even if the evidence past relevant, crimes is deemed it if may nonetheless be excluded of unfair danger prejudice Johnson, value. its outweighs probative 360 S.E.
The state was permitted to introduce evidence of appel- lant’s assault of I grandmother. would hold that the preju- dicial effect egregious of this most evidence was substantially outweighed by any probative value which have may been de- Johnson, supra. duced therefrom.
Jury Charge On Parole Eligibility Appellant contends the Circuit Court erred in declining to jury that in the event he was sentenced to life in prison, would be ineligible parole under S.C. Code Ann. § 24-21-640.1 agree. Torrence,
Consistent with my opinion I believe that appellant was entitled to a jury charge under 24-21-640 since he “sought only to have the court declare correct and current law relevant to his case.” Id. at 320. FLOYD, Respondent Carolina,
Darrell Juett v. STATE of South Petitioner.
(427 (2d) 634) Supreme Court Atty. Medlock, Gen. T. Travis Deputy Atty. Gen. Chief Shine, D. Joseph and Asst. Attys. Gen. Delbert H. Singleton Jefferson, Lisa Godwin Columbia, petitioner. Appellate Asst. Tara Dawn Shurling of South Defender Carolina Appellate Defense, Columbia, respon- Office of dent.