State v. Burdette
| Decision Date | 05 April 1999 |
| Docket Number | No. 24929.,24929. |
| Citation | 515 S.E.2d 525,335 S.C. 34 |
| Parties | The STATE, Respondent, v. John Samuel BURDETTE, Appellant. |
| Court | South Carolina Supreme Court |
Assistant Appellate Defender Aileen P. Clare, of South Carolina Office of Appellate Defense, of Columbia, for appellant.
Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General Caroline Callison Tiffin; and Solicitor Warren B. Giese, all of Columbia, for respondent.
John Samuel Burdette ("Defendant") appeals his convictions for assault and battery of a high and aggravated nature (ABHAN), first degree burglary, and his mandatory life sentence without parole imposed under S.C.Code Ann. § 17-25-45 (Supp.1998). We affirm.
At approximately 7:00 p.m. on February 13, 1996, Defendant and his accomplice Don Robinson entered the house of Nathan Tarte ("Victim"), age 95, and Aida Tarte ("Victim's Wife"), age 85, At that time, Victim's Wife was on the telephone with her daughter. Defendant and Robinson physically attacked Victim and threw him to the ground. Robinson then took the portable phone from Victim's Wife as she spoke to her daughter and used it to beat her about the head and face. Robinson then left the house with the telephone and Defendant followed shortly thereafter.
As Robinson stood in the front yard following the attack, his presence caught the attention of a neighbor across the street. The neighbor testified that Robinson waited in the front yard until Defendant came out of Victim's residence and then the two of them left together. The neighbor heard screams coming from Victim's house and went across the street to investigate. He found Victim and Victim's Wife injured and the police were called immediately. Based on a description given by the neighbor, the police apprehended Defendant and Robinson in the neighborhood shortly after the attack.
The State indicted Defendant for burglary in the first degree and two counts of ABHAN. A jury found him guilty on all counts and the trial court sentenced Defendant pursuant to S.C.Code Ann. § 17-25-45 (Supp.1998).1 Due to Defendant's previous conviction for armed robbery in 1979, the conviction of first degree burglary triggered section 17-25-45(A), and Defendant received a mandatory life sentence without parole. Defendant appeals his convictions, raising four issues:
Defendant argues that this Court should overturn his sentence because the notice sent to him as required by section 17-25-45 failed to list the indictment number for his first degree burglary charge.2 We disagree.
The State is required by law to inform a defendant that it plans to apply the recidivist statute. Section (H) of the statute provides:
Where the solicitor is required to seek or determines to seek sentencing of a defendant under this section, written notice must be given by the solicitor to the defendant and defendant's counsel not less than ten days before trial.
S.C.Code Ann. § 17-25-45(H). The statute, however, does not address the content requirement of such notice.
Defendant's position is that S.C. Const. art. I, § 14's requirement that "Any person charged with an offense shall enjoy the right ... to be fully informed of the nature and cause of the accusation" mandates that the notice include a listing of the offenses which trigger the two strikes law, or else the notice is constitutionally insufficient. Defendant claims that without a listing of the charges triggering the recidivist statute's application, he could not be "fully informed" of the nature of the charges against him.3 We disagree.
Historically, South Carolina has not required a defendant be informed, even in the indictment, that he was eligible upon conviction to be punished more severely on the basis of previous convictions in his record. See State v. Stewart, 275 S.C. 447, 272 S.E.2d 628 (1980)
(); see also State v. Parris, 89 S.C. 140, 141, 71 S.E. 808, 809 (1911) ().4 Thus, under our constitution there would be no duty to inform Defendant about seeking the statute's application. The duty, if any, would have to be set forth in the notice provision of the recidivist statute.
The indictment, along with the notice that the recidivist statute would apply, satisfied the fully informed requirement of S.C. Const. article I, sec. 14. Once the indictment informs a defendant of the charges against him, section 17-25-45(H) only requires the solicitor to inform the defendant that the recidivist sentencing statute will be applied upon conviction. Specifically listing the triggering charge from the current case is unnecessary because Defendant has been fully informed of the charges against him in the indictment, and he has been informed that the State will apply the recidivist statute. Determining which of the indicted offenses triggers the statute merely requires looking at the list of offenses listed in section 17-25-45.
Defendant argues that the mandatory nature of section 17-25-45(G) renders it a violation of the separation of powers doctrine.5 We disagree.
Defendant cites State v. Thrift, 312 S.C. 282, 440 S.E.2d 341 (1994), for the proposition that:
Under the separation of powers doctrine, which is the basis for our form of government, the Executive Branch is vested with the power to decide when and how to prosecute a case. Both the South Carolina Constitution and South Carolina case law place the unfettered discretion to prosecute solely in the prosecutor's hands. The Attorney General as the State's chief prosecutor may decide when and where to present an indictment, and may even decide whether an indictment should be sought. Prosecutors may pursue a case to trial, or they may plea bargain it down to a lesser offense, or they can simply decide not to prosecute the offense in its entirety.
Id. at 291-92, 440 S.E.2d at 346-47. However, section 17-25-45 does not interfere with any of the prosecutorial rights enumerated in Thrift. Under the mandatory sentencing guidelines, the prosecutor can still choose not to pursue the triggering offenses or to plea the charges down to nontriggering offenses. Choosing which crime to charge a defendant with is the essence of prosecutorial discretion, not choosing which sentence the court shall impose upon conviction. See U.S. v. Washington, 109 F.3d 335, 338 (7th Cir.1997)
().
If a defendant is convicted of one of the triggering offenses, the matter of sentencing becomes the province of the legislature. "We have held in the past that the penalty assessed for a particular offense is, except in the rarest of cases, `purely a matter of legislative prerogative,' and the legislature's judgment will not be disturbed." State v. De La Cruz, 302 S.C. 13, 15, 393 S.E.2d 184, 186 (1990); see also State v. Smith, 275 S.C. 164, 167, 268 S.E.2d 276, 277 (1980)
. In the current case, the legislature has designated life in prison without parole as the appropriate sentence for Defendant based on his criminal convictions. The imposition of that sentence does not violate the separation of powers doctrine.
Defendant argues that Victim's statement to police officers constituted inadmissible hearsay evidence. We disagree. Defendant further claims that even if the statement was not inadmissible hearsay that it violated the Confrontation Clause of the federal Constitution. We disagree.
The trial court found that Victim's statements to the police immediately following the attack were allowable under either Rule 803(1), SCRE, as a present sense impression or Rule 803(2), SCRE, as an excited utterance. We agree that the statement qualifies as an excited utterance.
The hearsay exceptions of present sense impression and excited utterance have replaced the res gestae hearsay exception in South Carolina law.6 In the current case, Victim's statement to the police immediately after the attack qualifies under the excited utterance exception to the hearsay prohibition. "The rationale for the [excited utterance] exception lies in the special reliability accorded to a statement uttered in spontaneous excitement which suspends the declarant's powers of reflection and fabrication." Blackburn, at 327, 247 S.E.2d at 336. In Blackburn, this Court found that "to qualify as part of the res gestae, the [excited] utterance need only be `substantially contemporaneous' with the transaction." Id., at 328, 247 S.E.2d at 336. In an analysis of the excited utterance exception in Rule 803 of the Federal Rules of Evidence, the Blackburn Court found the victim's statement given to police approximately one hour after the event "would qualify as an excited utterance and be admissible under [that] exception."7
The record indicates that there could have been no more than one hour between the attack on Victim...
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