Ex parte Gentry

Citation689 So.2d 916
PartiesEx parte Joseph Ward GENTRY. (Re Joseph Ward Gentry v. State). 1940471.
Decision Date12 July 1996
CourtSupreme Court of Alabama

Randall S. Susskind, Montgomery; and William K. Delgrosso, Birmingham, for Petitioner.

Jeff Sessions, Atty. Gen., and Stephen N. Dodd, Asst. Atty. Gen., for Respondent.

ALMON, Justice.

This Court has granted the writ of certiorari as a matter of right to review the judgment of the Court of Criminal Appeals upholding Joseph Ward Gentry's capital murder conviction and death sentence. Rule 39(c), Ala. R.App. P. Gentry was convicted of the capital offense of murder committed during a burglary in the first degree, Ala. Code 1975, § 13A-5-40(a)(4). Our review concerns the scope of a defendant's "remaining unlawfully" in a dwelling (or other building) as an element of burglary. Specifically, if a person who has permission to be in a dwelling murders the occupant, has that person also committed burglary by virtue of "remaining unlawfully" in the dwelling, on the basis that the jury could infer from the fact that a struggle preceded the murder that the occupant must have revoked the person's permission to be there?

Gentry was convicted of capital murder for killing Kimberly Diane Hill "during a burglary." The Court of Criminal Appeals reversed that conviction and remanded the case for a second trial, based on error in allowing the jury to separate over Gentry's objection. Gentry v. State, 595 So.2d 548 (Ala.Crim.App.1991) (Gentry I ). Gentry was retried and again convicted, and the Court of Criminal Appeals has affirmed the conviction and the sentence of death. The facts surrounding Gentry's crime and conviction are set forth in the Court of Criminal Appeals' opinions. See 595 So.2d 548 and Gentry v. State, 689 So.2d 894 (Ala.Crim.App.1994).

The circumstances allowing imposition of the death penalty have been limited by the United States Supreme Court. See, e.g., Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Godfrey v. Georgia, 446 U.S. 420, 427-28, 100 S.Ct. 1759, 1764, 64 L.Ed.2d 398, 406 (1980); Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). Under the Eighth Amendment to the United States Constitution, capital murder statutes must "genuinely narrow" the class of persons eligible for the death penalty so that capital punishment is reserved for the most egregious crimes. Zant, supra, 462 U.S. at 877, 103 S.Ct. at 2742, 77 L.Ed.2d at 249-50. Standing alone, an intentional murder is not a capital crime. Something more must be established to elevate an intentional murder to a capital offense. Our statute defining capital offenses lists a number of circumstances that can cause an intentional murder to be treated as a capital murder. See § 13A-5-40(a)(1) through (a)(18), Ala. Code 1975. In Gentry's case, the State alleged and sought to prove a first-degree burglary as the additional element needed to make his crime a capital offense.

Gentry argues that the State failed to prove a burglary. The first-degree-burglary statute provides:

"(a) A person commits the crime of burglary in the first degree if he knowingly and unlawfully enters or remains unlawfully in a dwelling with intent to commit a crime therein, and, if, in effecting entry or while in [the] dwelling or in immediate flight therefrom, he or another participant in the crime:

"(1) Is armed with explosives or a deadly weapon; or

"(2) Causes physical injury to any person who is not a participant in the crime; or

"(3) Uses or threatens the immediate use of a dangerous instrument.

"(b) Burglary in the first degree is a Class A felony."

§ 13A-7-5, Ala. Code 1975 (emphasis added). 1 "A person 'enters or remains unlawfully' in or upon premises when he is not licensed, invited or privileged to do so." § 13A-7-1(4), Ala. Code 1975. The language "remains unlawfully" is intended to cover cases where "a person enters with license or privilege but remains after termination of such license or privilege." Commentary, § 13A-7-1, Ala. Code 1975.

Gentry had Hill's consent to enter her apartment at any time, and he lawfully possessed a set of keys to her apartment. Hill and Gentry had been romantically involved, and Hill had provided Gentry with the keys to her apartment. Hence, the State does not contend that Gentry entered unlawfully, only that he "remained unlawfully." The circuit court instructed the jury that it could infer that Gentry had remained unlawfully in Hill's apartment from evidence of a struggle leading up to the murder:

"[T]he fact that the victim had terminated the defendant's license or privilege to be present in the victim's apartment can be inferred from the circumstances that a struggle took place."

(Emphasis added.) Thus, the evidence establishing the struggle and the ensuing murder is the very evidence used to establish a "burglary" and to make this killing a capital offense.

According to Gentry, this result is at odds with the plain language of the burglary statute; he also argues that the trial court's interpretation of our capital punishment statute as it relates to the offense of murder committed during a burglary is unconstitutional, in light of the United States Supreme Court decisions in Gregg, supra, Godfrey, supra, and Zant, supra. Gentry argues that the circuit court's interpretation of the burglary statute, as evidenced by the jury instruction, improperly elevates almost every intentional murder committed indoors into capital murder, and would likewise make virtually any crime committed indoors a burglary as well. Gentry contends that the State cannot properly use this interpretation to meet its burden of making out a prima facie case of first- or second-degree burglary as part of its proof necessary to elevate the crime to capital murder based on § 13A-5-40(a)(4), Ala. Code 1975.

The statutory crime of burglary as defined in § 13A-7-1 et seq. is broader than the narrowly defined common law crime of burglary, but it is instructive to consider the historical antecedent.

"Burglary was defined by the common law to be the breaking and entering of the dwelling house of another in the nighttime with the intent to commit a felony. The offense was [composed] of narrowly defined elements in order to meet the specific needs and reasons for the offense.

"....

"The law was not ready to punish one who had been 'invited' in any way to enter the dwelling. The law sought only to keep out intruders, and thus anyone given authority to come into the house could not be committing a breaking when he so entered."

W. LaFave and A. Scott, Handbook on Criminal Law, § 96, p. 708 (1972) (footnotes omitted).

"Because breaking, as an element of common-law burglary, requires a breach of the building made by trespass, it cannot be established by the act of one who had authority to open that very door at that particular time. Thus one who has been provided a key with the unrestricted right to enter at any time does not commit a breaking even if he uses it on one occasion to gain entrance for the purpose of larceny."

R. Perkins and R. Boyce, Criminal Law, Ch. 3, § 1, p. 250 (3d ed. 1982) (footnotes omitted; emphasis in original).

Although the statute does away with the common law requirement of a "breaking" and allows a burglary conviction of one who merely "remains unlawfully," it does define the crime of "burglary" as an offense separate from the crime one intends to commit while in the building. Thus, "remaining unlawfully" must be proved by some evidence other than evidence that the defendant committed a crime while in the building. Burglary is often a more serious offense than the underlying crime, which may be only a misdemeanor. Thus, there must be some distinguishing element establishing a separate crime of burglary.

The commentary to § 13A-7-1 illustrates the intended operation of "remains unlawfully":

"The words 'remain unlawfully' are designed to cover cases where a person enters with license or privilege but remains after termination of such license or privilege. Thus, a person who enters a department store during regular business hours and secretes himself in a public washroom until after the store is closed, 'remains unlawfully' within the meaning of subdivision (4)."

In this example, the act of "secreting himself" is an act separate from the larceny that the person intends to later commit. Such a person knowingly remains in the store after it is closed to the public, knowing that his license or privilege to remain extends only until the time of closing.

Gentry points out that the statutory language "remains unlawfully," which appears throughout the Code sections dealing with burglary and trespass, was derived from the New York Revised Penal Law. See N.Y. Penal Law §§ 140.00, 140.30 (McKinney 1988); Commentary, § 13A-7-4, Ala. Code 1975. The New York courts have construed this provision as requiring more than evidence that the defendant committed a crime while on the premises:

"The People reason that a privilege to remain is necessarily conditioned on lawful purpose and behavior, because nobody consents to criminal acts on his or her premises. Thus, once a person with license engages in criminal behavior, consent and hence license is revoked, and the person who entered lawfully thereafter remains unlawfully.

"This reasoning impermissibly broadens the scope of liability for burglary, making a burglar of anyone who commits a crime on someone else's premises. It erroneously merges two separate and independent elements that must coexist to establish burglary: First, the trespassory element of entry or remaining without license or privilege; Second, intent to commit a crime. An intrusion without license or privilege (unlawful entry) is the distinguishing element, the essence of burglary. It must be established separately and distinctly from the intention to commit a crime. The mere fact that a crime was committed or was...

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