State v. Riddle ( 1990 )

Toal, Justice

(concurring in result only):

Mrs. Abbie Sue Mullinax, a 76 year old widow, lived with her stepdaughter, 65 year old Marie Osment, in a small house in Gaffney, South Carolina. On Wednesday, August 7, 1985, Mrs. Mullinax went to a church prayer meeting. She returned about 8:45 p.m. and the two women retired for the night. Later that night, Marie was awakened by a noise which she thought was Mrs. Mullinax moving about the house. Shortly thereafter, Marie was awakened by her stepmother’s screams. Marie went to the “little back room” where she saw a figure sitting in the window with one leg in the room. As she heard this person jump to the ground, she rushed to call the police, stepping over her stepmother’s body. Her stepmother made a gurgling sound. Blood was everywhere. It was later determined that Mrs. Mullinax had been brutally hacked to death with a butcher knife from her kitchen which was recovered in the bushes outside the victims’ house. She had been robbed of approximately $200.00.

Early the morning following the murder, appellant, in the company of his brother and a friend, viewed a television story about Mrs. Mullinax’s murder and stated “we ain’t got to worry about that f_bitch no more.” In the ensuing days following Mrs. Mullinax’s murder, appellant boasted to two witnesses about his involvement in the killing and told one of the witnesses that the victim had fine things and a good bit of money in her home.

In November of 1985, appellant was indicted for murder, burglary in the first degree and armed robbery. He was tried and convicted of each of these crimes and sentenced to death. This court affirmed appellant’s convictions but reversed the death sentence on the grounds that appellant was not allowed to offer expert opinion on his future adaptability to prison life and that the state failed to notify appellant that it intended to introduce his juvenile record. The case was remanded for a new sentencing proceeding.

The statutory aggravating circumstance upon which the State sought the death penalty in the sentencing proceeding was “[m]urder ... committed while in the commission o/the following crimes or acts: ... (c) burglary, (d) robbery while armed with a deadly weapon____” S. C. Code Ann. § 16-3-20(C)(a)(1) (Supp. 1988) (Emphasis added).

In holding that the convictions may not be presented as evidence in the resentencing proceeding and that the jury must be instructed on the elements of burglary and robbery, the majority focuses on the wrong issue. The question is not whether the appellant is guilty beyond a reasonable doubt of committing a robbery or burglary. That issue has already been determined by another jury — just as it has already been determined that he is guilty of murder. Under the majority’s theory, the State would be required to retry its case in regard to the charges of burglary and robbery and, therefore, to establish the appellant’s guilt twice.

It is my opinion that the proper inquiry at the sentencing phase of this capital case is whether the murder was committed “while in the commission of’ the robbery and/or burglary. It is this clause that defines this aggravating circumstance. If it were determined that the appellant was guilty of murder and robbery, but that the murder was not committed “while in the commission of” the robbery, appellant could not be sentenced to death because the aggravating circumstance would not exist. In this case, the jury was properly instructed as to the necessity of finding that the other crimes accompanied the act of murder.

Furthermore, the majority states that convictions established in the guilt phase do not constitute “evidence admitted in the defendant’s first trial relating to guilt” under State v. Stewart, 288 S. C. 232, 341 S. E. (2d) 789 (1986). Stewart, however, did not involve, nor did the Court address, the admissibility of a conviction established in the guilt phase. In contrast, this Court has held that where the statutory aggravating circumstance has been proved beyond a reasonable doubt at the guilt phase, an instruction limiting consideration of the conviction to the defendant’s character and not as proof of the aggravating circumstance is unnecessary. State v. Skipper, 285 S. C. 42, 328 S. E. (2d) 58 (1985) rev’d on other grounds, 476 U. S. 1, 106 S. Ct. 1669, 90 L. Ed. (2d) 1 (1986); State v. Plemmons, 286 S. C. 78, 332 S. E. (2d) 765 (1985). Therefore, if such an instruction is not required, it logically follows that the jury would be free to consider the conviction as part of the proof of the aggravating circumstance. See also, Cofield v. State, 247 Ga. 98, 274 S. E. (2d) 530 (1981) (failure to instruct jury on elements of crime constituting aggravating circumstance is not error where jury is instructed on elements during the guilt phase of the trial and defendant is found guilty of that offense).

The problem in this case is that no evidence was submitted to the jury upon which they could base a finding that the murder was committed “while in the commission of” the robbery and/or burglary. No testimony was presented concerning the facts of the crime. The only “evidence” submitted concerning the time frame of the commission of the crimes were the indictments for the charges. Clearly, these cannot support the finding of an aggravating circumstance.

Therefore, while it is my opinion that convictions established in the guilt phase are admissible in a resentencing proceeding thereby rendering instructions from the judge on the elements of such crimes as unnecessary, this case must be reversed because of the lack of evidence to support the jury’s finding that the murder was committed “while in the commission of” the robbery and/or burglary.