Gentry v. State

• Decision Date: 25 October 1991
• Citation: 595 So.2d 548
• Parties: Joseph Ward GENTRY v. STATE. CR 90-645.
• Court: Alabama Court of Criminal Appeals

Page 548

595 So.2d 548

Joseph Ward GENTRY v. STATE.

CR 90-645.

Court of Criminal Appeals of Alabama.

Oct. 25, 1991.

Rehearing Denied Nov. 27, 1991.

Certiorari Denied March 6, 1992

Alabama Supreme Court 1910440.

John A. Lentine and Lawrence B. Sheffield III, Birmingham, for appellant.

James H. Evans, Atty. Gen., and Sandra Stewart, Melissa G. Math and J. Thomas Leverette, Asst. Attys. Gen., for appellee.

BOWEN, Judge.

Joseph Ward Gentry, the appellant, was convicted for the capital offense involving burglary and the intentional murder of Kimberly Diane Hill, in violation of Ala.Code 1975, § 13A-5-40(a)(4). The jury recommended the death penalty. The trial court sentenced the appellant to death by electrocution.

I.

This is an extremely unusual case in that all the parties involved--the appellant, the trial judge, the assistant district attorney who represented the State at trial, and the attorney general, who represents the State on appeal--admit that the appellant's conviction must be reversed because the trial judge allowed the jury to separate over the objections of the appellant and in violation of Ala.Code 1975, § 12-16-9(a), which provides in pertinent part:

"If the accused and his counsel and also the prosecuting attorney, in any prosecution for a capital felony consent thereto in open court, the trial court in its discretion may permit the jury trying the case to separate during the pendency of the trial, whether the jury has retired or not."

See also Rule 19.3(a)(1), A.R.Crim.P., which, we recognize, was not applicable when the appellant was tried.

By letter dated August 23, 1991, the attorney general requests this Court to "enter a summary order reversing the conviction and sentence on the issue of jury separation, and remand the cause for a new trial." When a reversal is required on one ground, this Court need not consider other issues that would not arise on another trial. See Wilson v. State, 195 Ala. 675, 680, 71 So. 115, 118 (1916). Therefore, this Court will not address most of the issues raised on this appeal. However, there remain other issues which demand comment because, in all probability, they will be encountered in any new trial that the appellant might face.

II.

The appellant argues that he could not be guilty of burglary as a matter of law because he had the victim's consent to enter her residence.

The indictment charged, in pertinent part, that the appellant intentionally killed the victim

"during the time that [the appellant] knowingly and unlawfully entered or remained, or attempted to enter or remain unlawfully in the dwelling of Kimberly Diane Hill with intent to commit murder, and the said [appellant] did cause physical injury to Kimberly Diane Hill by the said stabbing with a knife and by beating with a blunt object." R. 1234.

In sentencing the appellant to death, the trial judge made the following finding of facts:

"The victim in this case, Kimberly Diane Hill, was a 24-year-old female that had worked with the defendant at a local bank. The defendant had worked in a supervisory capacity over the victim and after some period of time [of] working together, the victim and the defendant developed an intimate relationship. During this relationship the victim had given the defendant a set of keys to her apartment and the defendant had apparently used the keys for some period of time prior to January 13, 1989. Approximately two weeks before Christmas of the preceding year the defendant was advised by the victim that she was pregnant by him which caused the defendant much concern as he was presently married with two children of his own. In subsequent conversation with the victim, the defendant advised her that he would divorce his wife and move in with her to raise their child that she was expecting. The defendant further told the victim that he would leave his wife after the Christmas holidays and as soon as he had celebrated his child's birthday in January.

"On the date of the murder the defendant and the victim had worked together; however, the defendant left work early that day advising everyone that he was ill and was going home. Instead of going home, the defendant went to the victim's apartment and waited for her to arrive. On her arrival the defendant stated that he surprised the victim and on being surprised she struck him in the chest and as a result a fight between the two parties occurred. During the course of the struggle the victim was severely beaten and stabbed numerous times and was ultimately tied with her hands and feet together and a towel stuffed into the victim's mouth. The defendant further stated that at the time he left the victim in her apartment that she was possibly still alive. The defendant, leaving the victim in this condition, went to his home and returned to work at his regular shift later that day. When the victim did not arrive at work he stated much concern as to her whereabouts and ultimately caused the victim's mother to go check on her and she found the victim dead in her apartment from the wounds caused by the defendant. In subsequent questioning by police officers the defendant ultimately admitted his participation in the death of the victim.

"The coroner/medical examiner testified that the victim was seven (7) weeks pregnant and that the cause of death was multiple blunt force trauma and multiple stab wounds.

"The defendant testified in his own behalf and stated that he had indeed gone to the victim's apartment that night and had gone there only to surprise her and further to find out if something was bothering her concerning their ultimate plans for marriage. He stated that when he did surprise the victim that she struck him in the chest and it caused considerable pain to which he reacted and snapped and after that he can remember very little of what else occurred on that occasion. The defendant further stated that he did not know how many times he had stabbed the victim. The defendant further presented evidence of the defendant's wife wherein she testified that the defendant was a devoted father and had never mistreated her or the family in any way." R. 1265-67.

The crime of burglary in the first degree is defined by Ala.Code 1975, § 13A-7-5(a).

"To establish burglary the prosecution must prove: (1) The intruder 'entered or remained unlawfully,' as that term is defined in § 13A-7-1(4). There is no requirement that a technical breaking be established, although the use of force in effectuating entry is highly relevant on the issue of license or privilege, as well as the mental culpability required. (2) The intruder 'knowingly' entered or remained unlawfully. See § 13A-2-2(2). This means that the intruder must be aware of the fact that he has no license or privilege to enter or remain. (3) The invaded premises constitute a 'building.' (4) The intruder had an intent to commit theft or felony (required for 1st or 2nd degree), or any crime (required for 3rd degree)."

Commentary to §§ 13A-7-5 through 13A-7-7.

This issue involves primarily the interpretation of the phrase "remains unlawfully in a dwelling." "A person 'enters or remains unlawfully' in or upon premises when he is not licensed, invited or privileged to do so." Ala.Code 1975, § 13A-7-1(4).

"Under § 13A-7-1(4), a person 'enters or remains unlawfully' when he is not licensed or privileged to do so. (For discussion of what constitutes license or privilege to enter or remain upon premises, see Restatement of the Law of Torts, Second, Chapter 8, Privileged Entries on Land.) A person who is licensed or privileged to enter premises cannot, therefore, commit criminal trespass or burglary under the proposal. Of course, a person who gains admittance through intimidation, deception, trick or artifice does not enter with 'license or privilege.'

"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)."

Commentary to § 13A-7-1. See also 12A C.J.S. Burglary § 24(a) (1980).

This Court adheres to the interpretation of the phrase "unlawfully remains" found in Moss v. State, 536 So.2d 129, 133-34 (Ala.Cr.App.1988), Minshew v. State, 542 So.2d 307, 311-12 (Ala.Cr.App.1988), and Johnson v. State, 473 So.2d 607, 609-10 (Ala.Cr.App.1985), that the fact that the victim terminated the defendant's license or privilege to remain on the premises can be inferred where a struggle took place and the victim was beaten.

The common law requirement that there be a "breaking" has been omitted from the definition of burglary under the Alabama Criminal Code. "The primary objective of burglary statutes should be to conserve human life and not property merely, Reeves v. State, 245 Ala. 237, 16 So.2d 699 (1943), and there is no essential purpose served by retaining a technical breaking requirement." Commentary to §§ 13A-7-5 through 13A-7-7. "Once a consensual entry has occurred, a burglary charge still may be grounded in a nonconsensual 'remaining in' the structure." Thorpe v. State, 559 So.2d 1285, 1286 (Fla.App.1990). We find persuasive the reasoning expressed in Ray v. State, 522 So.2d 963 (Fla.App.) review denied, 531 So.2d 168 (Fla.1988).

"The phrase 'remaining in' has been interpreted as proscribing an act distinct from that of entering. In Routly v. State, 440 So.2d 1257 (Fla.1983), [cert. denied, 468 U.S. 1220, 104 S.Ct. 3591, 82 L.Ed.2d 888 (1984)], the court rejected, as being without merit, the defendant's contention that because he had lawfully entered the decedent's home at the outset, there could be no burglary. The court held that '[t]he burglary statute is satisfied when the defendant "remains in" a structure with the intent to commit an offense therein. Hence, the...