State v. Simmons, No. 23784

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: MOORE; HARWELL, C.J., TOAL, J., and BRUCE LITTLEJOHN; FINNEY; FINNEY
• Citation: 310 S.C. 439,427 S.E.2d 175
• Parties: The STATE, Respondent, v. Jonathan Dale SIMMONS, Appellant. . Heard
• Docket Number: No. 23784
• Decision Date: 13 October 1992

Page 175

427 S.E.2d 175 310 S.C. 439 The STATE, Respondent,
v.
Jonathan Dale SIMMONS, Appellant. No. 23784. Supreme Court of South Carolina. Heard Oct. 13, 1992.
Decided Feb. 1, 1993.
Rehearing Denied March 10, 1993.

Page 176

[310 S.C. 440] David I. Bruck, and M. Anne Pearce, of S.C. Office of Appellate Defense, Columbia, for appellant.

Atty. Gen. T. Travis Meldock, Chief Deputy Atty. Gen. Donald J. Zelenka, and Sol. Richard A. Harpootlian, Columbia, for respondent.

MOORE, Justice:

Appellant was convicted of murder, first degree burglary, and petit larceny. He was sentenced to death, a consecutive life term, and thirty days. We affirm.

FACTS

On July 17, 1990, the victim, Josie Lamb, was found dead in the bathroom of her home in the Olympia area of Columbia. Her skull had been crushed by an assailant who used the toilet tank lid to beat her on the head. Ms. Lamb was seventy-nine years old.

Appellant's fingerprint was found on the commode lid and his bloody footprint on the floor. He was arrested the next day and confessed to killing Ms. Lamb. He stated he went to her house "to see a white male named Jimmy, redheaded, he owed me 50 dollars." He had been to Ms. Lamb's house and asked for Jimmy the previous week but when he touched the door handle Ms. Lamb screamed and he fled. On the night of the murder, he entered the home and heard her scream. After looking around to be sure no one else was present, appellant went into the bathroom and struck Ms. Lamb twice on the head with the commode lid. At some point he unplugged the telephone. He took a nightgown from a bedroom and fled.

At the guilt phase of trial, counsel conceded that appellant had in fact murdered Ms. Lamb and had taken the nightgown. Appellant's defense focused on the State's failure to prove [310 S.C. 441] first degree burglary which was the only statutory aggravating circumstance alleged in this case. He contended there was no evidence he intended to commit a crime at the time he entered Ms. Lamb's house since, as stated in his confession, he had gone there intending only to look for "Jimmy."

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In response to appellant's trial strategy, the State was allowed to introduce under State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923), evidence of appellant's confessions to other crimes against three elderly female victims.

ISSUES

1. Whether the Lyle evidence was properly admitted?

2. Whether appellant was entitled to a penalty phase charge regarding his parole ineligibility?

3. Whether a charge regarding general deterrence should have been given?

4. Whether a charge describing each asserted nonstatutory mitigating circumstance should have been given?

DISCUSSION GUILT PHASE

S.C.Code Ann. § 16-11-311(A) (Supp.1991) requires the State to prove as one element of first degree burglary that the defendant "entered a dwelling without consent and with intent to commit a crime therein." While such an intent is inferable from the defendant's conduct in the absence of other proof, State v. Haney, 257 S.C. 89, 184 S.E.2d 344 (1971), here the issue of intent was joined by evidence appellant had no intent to commit a crime when he entered Ms. Lamb's house. To prove intent, the Solicitor introduced the following three confessions given by appellant shortly after his arrest for Ms. Lamb's murder:

1. Faris v. Mims

Ms. Mims is an elderly woman who lived in the Olympia area of Columbia at the time she was assaulted. In May 1990, appellant approached the front door of Ms. Mims house and asked for directions. He then went to her back door and forced his way in. He sexually assaulted her while choking her with some [310 S.C. 442] clothing around her neck. He stole $50 from the house. He admitted he chose the victim because he saw she was an "old lady."

2. Marie Furtick

Ms. Furtick was seventy-one years old at the time she was assaulted by appellant in her home in the South Congaree area. In August 1989, appellant went to Ms. Furtick's front door and threw water on her when she opened the door. He then raped her, beat her, and stole money.

3. Estelle Simmons

Ms. Simmons is appellant's grandmother. She was seventy-one years old and lived near Ms. Furtick when, in June 1990, appellant raped and beat her in her home. He unplugged her telephone and looked for money.

The State introduced other evidence that both Ms. Furtick and Ms. Simmons were very severely beaten about the head and face. Ms. Furtick was bitten on the breast and buttocks. Although appellant's confessions indicate he took money from both Ms. Furtick and Ms. Simmons, the State's evidence indicates nothing of value was taken from either home.

Appellant argues that this evidence of other crimes should have been excluded because (1) these crimes were too dissimilar to the Lamb murder to be probative and (2) the prejudicial impact of this evidence was too great.

We find this evidence was properly admitted under State v. Lyle as evidence tending to establish intent. Clear and convincing evidence of other crimes that is logically relevant to prove intent is admissible under State v. Lyle if its probative value outweighs its undue prejudicial effect. See State v. Bell, 302 S.C. 18, 393 S.E.2d 364 (1990). Although appellant asserts these other crimes are "too dissimilar" to be admitted under State v. Lyle, we find the evidence of other crimes is logically relevant to the issue of intent.

Evidence is relevant if it tends to make more or less probable some matter in issue upon which it directly or indirectly bears. State v. Alexander, 303 S.C. 377, 401 S.E.2d 146 (1991); State v. Bell, supra. The evidence of appellant's violence against elderly women, each of whom was alone [310 S.C. 443] in her home at the time of the attack, makes

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more probable appellant's criminal intent when he entered Ms. Lamb's house since he already knew her to be an elderly woman. Although there was no sexual assault in Ms. Lamb's case, all of the previous sexual assaults were accompanied by terrific physical violence far beyond that needed to accomplish the sexual assault itself. Moreover, theft was not the overwhelming motivation in these prior cases. It is logical to conclude from the evidence that appellant was chiefly motivated in each case by an intent to violently injure an elderly woman. This evidence is therefore relevant to the issue of appellant's intent at the time he entered Ms. Lamb's home without her consent.

Further, we find the probative value of this evidence outweighs its undue prejudicial effect. The issue of...