State v. Burkhart

• Court: South Carolina Supreme Court
• Writing for the Court: Chief Justice TOAL.
• Citation: State v. Burkhart, 565 S.E.2d 298, 350 S.C. 252 (S.C. 2002)
• Decision Date: 17 June 2002
• Docket Number: No. 25484.,25484.
• Parties: The STATE, Respondent, v. Troy Alan BURKHART, Appellant.

350 S.C. 252

565 S.E.2d 298

The STATE, Respondent, v. Troy Alan BURKHART, Appellant.

No. 25484.

Supreme Court of South Carolina.

Heard December 13, 2001.

Decided June 17, 2002.

Deputy Chief Attorney Joseph L. Savitz, III, 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 Donald J. Zelenka, Assistant Attorney General Derrick K. McFarland, all of Columbia; and Solicitor Druanne D. White, of Anderson, for respondent.

Chief Justice TOAL.

Troy Alan Burkhart ("Appellant") appeals his convictions on three counts of murder and three counts of possession of a firearm during commission of a violent crime for which he was sentenced to death. We reverse.

FACTUAL/PROCEDURAL BACKGROUND

On January 13, 1998, the grand jury for Anderson County indicted Appellant for the murders of Shane and Stacy Walters, half-brothers, and Sonya Cann. In addition to the three counts of murder, Appellant was indicted on three counts of possession of a firearm during the commission of a violent crime. Although Appellant admitted to shooting and killing Shane, Stacy, and Sonya, he pled not guilty, claiming he killed them all in self-defense. After a two week trial beginning on March 6, 2000, the jury convicted Appellant on all three counts of murder and all three counts of possession of a firearm during commission of a violent crime. The following day, the jury recommended Appellant be sentenced to death, citing the murder of two or more persons pursuant to one scheme or course of conduct as the statutory aggravator. The trial judge affirmed their recommendation and sentenced Appellant to death.

According to the record, Appellant met the Walters brothers just a few days before they were killed. It all began when a mutual friend, Paul Zastrow, introduced Appellant and the Walters when they met by chance at Zastrow's house on Friday, November 14, 1997. Appellant did not know the Walters before that weekend and claims he did not know Sonya Cann at all. Appellant owned and managed a bar called Traditions, and the Walters set up mobile homes for a living.

A group of Clemson students had rented Appellant's bar for a private party that weekend, but Appellant was having trouble with his septic tank. Zastrow suggested that the Walters might be able to help fix it. Appellant accepted the offer and Zastrow and both Walters arrived at Traditions Friday evening, November 14, to work on the septic tank. They built a bonfire and spent the night working on the septic tank, drinking, doing drugs (methamphetamine and marijuana), and talking about deer hunting. An impromptu party developed as several other friends showed up and joined them.

Although Burkhart often carried a sidearm (because, he testified, "I deal with money and liquor and I'm in a secluded location")¹, he had never been hunting, but had become interested in learning to hunt in the weeks preceding these events. After the party broke up, Appellant, Shane, Stacy, and another friend drove around in the woods with their guns looking for deer. Apparently, the group saw and startled a deer at some point before deciding to go home. Shane took Appellant home and told him he could help him again with the septic tank on Saturday if necessary. The next day, Saturday, November 15, went much like the previous evening. Appellant picked up Shane at Paul Zastrow's house around 9:00 p.m. and they drove to Traditions to work on the septic tank. Many of the same people from the night before returned, and the group drank alcohol and did drugs until the bar closed, just as they had on Friday night. Apparently, Shane and Appellant agreed to go hunting the following morning. Appellant dropped Shane off and went home to prepare to go hunting. Appellant waited on Shane, but he never showed up. Appellant drove to Shane's house twice and knocked on the door, but got no answer. Assuming Shane fell asleep, Appellant drove to Paul Zastrow's house for coffee and then drove home to go to sleep.

That afternoon, Sunday, November 16, Shane and his wife Vicky had some friends over to watch car races on television. Appellant called Shane several times, and he and Paul Zastrow went over to the Walters' trailer around 4:00 p.m. Stacy came in from work a short time later. At some point, Shane, Stacy, and Appellant decided to go "four-wheeling" in Shane's truck. Appellant had his gun with him in case they went hunting, and Shane had his rifle. The three men were drinking and doing drugs at this time.

At some point after four-wheeling, the threesome drove over to Tammy Steele's house where they continued partying. According to Tammy, Appellant's wife called him on his mobile phone while he was there and, after speaking to her, Appellant said he did not want to go home that night. Tammy also testified that Appellant mentioned that his business was not doing well and thanked Shane and Stacy profusely for helping him with the septic tank. At some point, Tammy's sister, Danielle, came over. Some time later, Paul Zastrow contacted the group and asked if Appellant could bring him some beer from Traditions. Appellant agreed to do so, and he, Shane, and Danielle went by Traditions and then onto Zastrow's, where they did more drugs and drank with Zastrow and his girlfriend. While they were gone, Tammy testified that she and Stacy had sex and that the condom Stacy was wearing broke and they could not find it.² Shane, Danielle, and Appellant returned to Tammy's house until the party disbursed sometime after 5:00 a.m. Shane, Stacy, and Appellant left Tammy's house in Shane's truck. After they left her house, Shane drove them to Sonya Cann's house to pick her up. Sonya sat in the front of the truck between Shane and Appellant and Stacy sat on the backseat of the truck, behind Appellant on the passenger side. They drove around for a little while, eventually going up to an isolated kudzu field known to everyone in the truck but Appellant.

From this point on, Appellant testified that the atmosphere in the truck changed dramatically. He related the ensuing events as follows:

When we got to the top, we parked and I believe there was some beer opened and Sonya handed Stacy some, what I believed to have been some more methamphetamine.... Stacy was, was fixing it ... on a CD case. And I said to Shane, I said, "Are there any deer here, where are the deer?" He didn't answer, but Sonya said, "There ain't no deer here, this is a scattering field."... I didn't know what to think of that. I guess I just let it go and didn't think much more about it. And I ... started a conversation about the restaurant. Shane and I had talked about him knowing someone that could help me that wasn't a bank. And I asked him a little more about that. And he told me that he had that worked out and that I didn't have to worry about that.... That's when Stacy handed Shane a cassette case with some what I thought to be methamphetamine on it.... He held it for a moment and passed it to me. When I got it, it still had four lines or four piles of powder on it.... [O]n occasion when we had done drugs before, when I got it, there was only one line left on it. I thought it was strange that there were four and it had been passed through the other three.... As he passed it to me, he asked me if I had ever wronged anyone. And I said, "No, what do you mean by that?" Then he said, "Have you ever wronged your Uncle Ronnie?"

Appellant claims that this question "struck fear into [his] soul." Appellant and his father considered Ronnie, who had a reputation for being a somewhat ruthless drug smuggler, an enemy.³ Appellant's testimony continued:

[Shane] said that he and Ronnie had this thing worked out, that he had gotten money from drugs in Florida.... [Shane] said all he had to do was take care of me....Then [Shane] said, "it's time to get this over with." Then he pulled out the gun and told me to get the hell out of the truck.... Stacy had had [sic] me around the neck and had a knife in his hand and said, "we're going to make you squeal like a pig, boy." ... Sonya said, "Yeah, baby, make him squeal like a pig." ... I lunged for the gun and then the gun went off.... I was able to get the gun and I just shot. I just shot.... I couldn't say which direction.... I shot until it wouldn't shoot.... I opened the driver's door and... I pushed Shane and Sonya out of the truck....I heard what sounded like another door slamming.... I looked on the seat and saw the other clip for the gun was there, and I put the other clip in the gun.... I couldn't get it to work. I couldn't get the bullet to go in. And I remember trying to get it to work and bullets coming out, and I remember it going off. Then I got out of the truck to see what it was that I may have heard, and I couldn't see anything. I went around and I pulled Stacy out of the truck.... I got in the truck and got the hell out of there.... I thought I was going to be raped and killed.

Shane Walters was shot six times, including one fatal wound to the back of the head. Stacy Walters was shot in the right temple and right cheek, either of which would have been fatal. Sonya Cann was shot three times, including fatal wounds to the right temple and through the left eye.

The State contended, contrary to Appellant's account, that the shots that killed Shane and Sonya were fired after they were already incapacitated, lying on the ground outside the truck, and that Appellant had stomped Sonya and Stacy with his boot after he shot them. Still, the State's pathologist who advanced these theories could not rule out self-defense, particularly in view of the amount of drugs and alcohol consumed. A defense pathologist testified that the shootings could have occurred exactly as Appellant described.

On cross-examination, Appellant unequivocally denied the State's accusations. He testified, "I did not stomp...