State v. Jones

• Decision Date: 12 March 2001
• Docket Number: No. 25257.,25257.
• Citation: 344 S.C. 48,543 S.E.2d 541
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Nakia JONES, Appellant.

344 S.C. 48

543 S.E.2d 541

The STATE, Respondent, v. Nakia JONES, Appellant.

No. 25257.

Supreme Court of South Carolina.

Heard January 11, 2001.

Decided March 12, 2001.

Senior Assistant Appellate Defender Wanda H. Haile, 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 Robert E. Bogan, and Assistant Attorney General Melody J. Brown, all of Columbia, and Solicitor Warren B. Giese, of Columbia, for respondent.

WALLER, Justice:

Jones was convicted of three counts of armed robbery, and possession of a firearm during the commission of a violent crime; he was sentenced to life imprisonment without parole pursuant to S.C.Code Ann. § 17-25-45 (Supp.2000), commonly known as the "Two-Strikes" law.¹ We affirm.

FACTS

At 3:30 AM on the morning of June 29, 1997, the three victims in this case, Dwayne Wright, Theodore Wheeler and Ricardo Wheeler, were robbed at gunpoint by an unknown assailant.

In late July 1997, approximately three and one-half weeks after the robbery, police showed each victim, independently, a photographic line-up of six individuals; all three victims identified Jones as the person who robbed them. Jones was arrested and charged with three counts of armed robbery, possession of a firearm during commission of a violent crime, and failure to stop for a blue light. He was convicted of the armed robbery and possession of a firearm counts; he was found not guilty of failing to stop for a blue light. He was sentenced to life imprisonment without parole under S.C.Code Ann. § 17-25-45 (Supp.2000), the Two-Strikes law, due to his prior conviction of a "most serious" offense.²

ISSUES

1. Was Jones properly tried for three counts of armed robbery?

2. Is a sentence of life imprisonment without parole after commission of one "most serious" offense constitutionally permissible?

3. Did the court err in refusing a Telfaire³ charge?

1. THREE COUNTS OF ARMED ROBBERY

Jones was separately indicted for the armed robbery of each victim. He contends, citing State v. Waller, 280 S.C. 300, 312 S.E.2d 552 (1984), the three counts should have been "rolled into a single count" as the goods were taken from three victims simultaneously. Waller does not control the present case.

In Waller, the defendant broke into an apartment occupied by three roommates and stole property belonging to each. The solicitor decided to aggregate the value of the items taken and charge Waller with grand larceny. On appeal, Waller contended the value of property taken from more than one owner could not be aggregated so as to sustain a conviction for grand larceny. This Court affirmed Waller's conviction under prior case law which suggested a prosecutor could elect to prosecute for one larceny or several larcenies. However, the Waller Court decided to follow the majority of cases which hold the larceny of property from different owners at the same time and place constitutes one larceny. The Court held, "henceforth, the larceny of property from different owners at the same time and at the same place shall be prosecuted only as a single larceny." 280 S.C. at 301, 312 S.E.2d at 553.⁴

Waller is inapplicable here.

The rationale for the single larceny rule is that "the act of taking is one continuous act or transaction, and since the gist of the offense is the felonious taking of property, the legal quality of the act is not affected by the fact that the property stolen belonged to different persons." D.H. White, Single or Separate Larceny Predicated Upon Stealing Property From Different Owners at the Same Time, 37 A.L.R.3d 1407, 1410 § 2 (1971) (emphasis supplied). Larceny is the misdemeanor offense of taking or carrying away of goods valued at less than $1000.⁵

The fundamental distinction between larceny and armed robbery, in our view, lies in the fact that armed robbery is a crime of violence. See S.C.Code Ann. § 16-1-60 (Supp.2000). Although armed robbery is contained in Chapter 11 to Title 16 (Offenses Against Property), the fact that it is a crime of violence makes it more of an offense against the person, thereby warranting its treatment as a separate offense as to each person who was threatened with bodily harm by a deadly weapon. See State v. Mahaley, 122 N.C.App. 490, 470 S.E.2d 549, 551 (1996),citing 77 CJS Robbery § 2 (1994) (while robbery can be classified as an offense against both person and property, it is primarily an offense against the person); State v. Harris, 8 N.C.App. 653, 175 S.E.2d 334, 336 (1970) (gist of armed robbery is not the taking of personal property, but a taking or attempted taking by force or putting in fear by the use of firearms or other dangerous weapon); People v. Jones, 217 Ill.App.3d 175, 160 Ill.Dec. 184, 576 N.E.2d 1138 (1991),rev'd on other grounds149 Ill.2d 288, 172 Ill.Dec. 401, 595 N.E.2d 1071 (1992) (notwithstanding armed robbery is captioned as a "Crime Against Property," it is a forcible felony carried out against a person).

A case directly on point is State v. Gratz, 254 Or. 474, 461 P.2d 829 (1969), in which the Oregon Supreme Court addressed a contention identical to Jones':

The defendant relies upon State v. Clark, 46 Or. 140, 80 P. 101, wherein this court held that the stealing of several articles belonging to more than one person at the same time and place by one act constitutes but a single offense. This holding is in accord with the weight of authority and is based on the reasoning that, since there was but one overt act (the theft), a rule to the contrary would lead to incongruous and inhumane results. Anno. 28 A.L.R.2d [1182] 1187, s 3.

However, in the cases dealing with armed robbery, where the gravamen of the offense is an assault upon and a theft from the person, ORS 163.280, the courts hold that each assault and theft from a different person, although occurring at the same time and place, is a separate crime.... With few exceptions, not here pertinent, in crimes against the person when contrasted with crimes against property there are as many offenses as individuals affected. And, while it may be said that in armed robbery a single act may put several persons in fear, yet, in order to consummate the crime, that act must be followed by the act of taking from each person money or personal goods.

461 P.2d at 830 (internal citations omitted). See also Commonwealth v. Levia, 385 Mass. 345, 431 N.E.2d 928 (1982) (although successive larcenies from multiple victims must be charged and punished as a single larceny if part of a single larcenous scheme, where crimes of violence are committed against several victims, multiple charges and punishments are appropriate); Sullivan v. Commonwealth, 16 Va.App. 844, 433 S.E.2d 508 (1993) (essential character of common-law robbery is violence against a person for purpose of theft such that appropriate unit of prosecution is determined by number of persons from whose possession property is taken by force or intimidation); Camacho v. State, 825 S.W.2d 168 (Tex.App. 1992) (what separates robbery from theft is the human element).

In accordance with the above-cited cases, we hold that, where there is a threat of bodily injury to each person from whom property is stolen,⁶ the defendant may be charged with separate offenses. See Joseph T. Bockrath, Prosecution for Robbery of One Person As a Bar to Subsequent Prosecution for Robbery of Another Person Committed at the Same Time, 51 A.L.R.3d 693, § 2 (1973) (noting that ordinarily, where several persons are robbed at the same time, the offender may be indicted and convicted for the robbery of each person as a distinct offense). Accordingly, Jones was properly charged with three separate counts of armed robbery.

2. CONSTITUTIONALITY OF TWO-STRIKES LAW

Jones contends S.C.Code Ann. § 17-25-45 (Supp.2000), the "Two-Strikes" law under which he was sentenced, is unconstitutional. He asserts sentencing under the statute 1) violates separation of powers,⁷ 2) constitutes cruel and unusual punishment,⁸ 3) results in an equal protection violation,⁹ 4) shifts the burden to the defendant to prove the constitutionality of the statute, and 5) constitutes an ex post facto violation.¹⁰ We disagree.

Initially, this Court held in State v. Burdette, 335 S.C. 34, 515 S.E.2d 525 (1999), that Section 17-25-45 does not violate the separation of powers doctrine. We stated, "[u]nder the mandatory sentencing guidelines, the prosecutor can still choose not to pursue the triggering offenses or to plea the charges down to non-triggering 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." 335 S.C. at 40-41, 515 S.E.2d at 528-529. Further, we found the matter of sentencing if convicted of a triggering offense to be a matter within the province of the legislature. Id. Accordingly, under Burdette, Jones' sentences pose no separation of powers problem.

Jones next asserts his life sentence constitutes cruel and unusual punishment. We disagree.

The cruel and unusual punishment clause requires the duration of a sentence not be grossly out of proportion with the severity of the crime. Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). Pursuant to Solem, this Court reviews three factors in assessing proportionality: (1) the gravity of the offense compared to the harshness of the penalty; (2) sentences imposed on other criminals in the same jurisdiction; and (3) sentences for the same crime in other jurisdictions. State v. Kiser, 288 S.C. 441, 343 S.E.2d 292 (1986).¹¹ Initially, we agree with the Court of Appeals that given the "most serious" nature of armed robbery, when coupled with a prior most serious offense, the gravity of the offense is not disproportionate to a sentence of life without parole. See also U.S. v. D'Anjou, 16 F.3d 604, 613-14 (4th Cir.1994) ...