State v. Stanko

Decision Date03 April 2013
Docket NumberNo. 27224.,27224.
Citation741 S.E.2d 708,402 S.C. 252
CourtSouth Carolina Supreme Court
PartiesThe STATE, Respondent, v. Stephen Christopher STANKO, Appellant. Appellate Case No. 2010–154746.


Chief Appellate Defender Robert M. Dudek and Appellate Defender Robert M. Pachak, both of Columbia, SC, for Appellant.

Attorney General Alan McCrory Wilson, Chief Deputy Attorney General John W. McIntosh, Senior Assistant Deputy Attorney General Donald J. Zelenka, Assistant Attorney General J. Anthony Mabry, all of Columbia, SC, and Solicitor John Gregory Hembree of Conway, SC, for Respondent.

Chief Justice TOAL.

Stephen Christopher Stanko (Appellant), appeals his conviction and death sentence for murder and armed robbery. We affirm.

Factual/Procedural Background

On April 8, 2005, at approximately 3:30 a.m., Appellant called his friend, seventy-four year old Henry Turner (the Victim), and falsely informed him that Appellant's father had died. Appellant arrived at the Victim's residence around 4:00 a.m. Later that morning, the Victim drove to a nearby McDonald's restaurant for breakfast. After returning with breakfast, sometime later that morning, the Victim was shaving in front of his bathroom mirror. Appellant approached the Victim from behind with a gun and a pillow as a silencer, and shot him in the back. Appellant then struck the Victim in the head, and fatally shot him in the chest.

Appellant stole the Victim's gray Mazda truck and fled the scene. On the evening of April 8, Appellant visited Columbia's Vista district. Appellant held himself out as a resident of New York City, visiting South Carolina to close a “big deal.” Appellant proceeded to spend large amounts of cash and buy drinks for several people he met that night.

On April 9, Appellant travelled to Augusta, Georgia and visited Surrey Tavern. There, Appellant met a woman, and convinced her that he was a businessman in town for The Master's Golf Tournament. Appellant and the woman spent the next several days together, and Appellant stayed at her apartment. The two attended church services together on Sunday, April 10, and she introduced Appellant to her co-workers on Monday, April 11. Appellant left the woman's apartment at approximately 1:00 a.m. on Tuesday, April 12. Later that day, the woman recognized Appellant's picture in the newspaper with a headline alerting her to his alleged involvement in the Victim's murder. She notified police and assisted in Appellant's arrest. Appellant possessed the Victim's vehicle at the time of his arrest. Police searched the vehicle and recovered a bag containing a .357 Magnum caliber double-action revolver, .38 caliber bullets, and a checkbook belonging to the Victim. Testing later revealed that the .357 Magnum fired the bullets recovered from the Victim's body.

On August 25, 2005, the Horry County Grand Jury indicted Appellant for the Victim's murder and armed robbery. The case proceeded to trial, and Appellant relied on an insanity defense. Specifically, Appellant averred that he suffered from central nervous system dysfunction, and at the time of the Victim's murder he did not understand “legal right from wrong.” On November 16, 2009, a jury found Appellant guilty of murder and armed robbery. Three days later, following the conclusion of the trial's penalty phase, the jury found beyond a reasonable doubt the existence of the requisite statutory aggravating circumstance and recommended the trial court sentence Appellant to death. Consequently, the trial court sentenced Appellant to the maximum twenty years' imprisonment for armed robbery and to death by lethal injection for the Victim's murder.

Issues Presented

I. Whether the trial court erred by instructing the jury that malice could be inferred from the use of a deadly weapon where Appellant presented an insanity defense.

II. Whether the trial court erred in accepting Appellant's waiver of his trial counsel's conflict of interest where that counsel was subject to a pending accusation of ineffective assistance of counsel for his representation of Appellant in a prior capital murder case.

III. Whether the trial court erred in refusing to disqualify a juror who acknowledged she knew that Appellant received the death penalty for a prior capital murder, and stated unequivocally that she would vote to impose death in every instance where the State proved an aggravating circumstance beyond a reasonable doubt.

IV. Whether the trial court abused its discretion by refusing to grant a change of venue.

V. Whether the trial court erred by allowing all jurors over sixty-five to opt out of jury service.

VI. Whether the trial court erred by ruling that Appellant's execution did not violate the Eighth Amendment to the United States Constitution.

I. Jury Instruction on Inferred Malice

Appellant argues that the trial court erred by instructing the jury that it could infer malice from the use of a deadly weapon where Appellant presented an insanity defense. We agree.

A jury charge instructing that malice may be inferred from the use of a deadly weapon is no longer good law in South Carolina where evidence is presented that would reduce, mitigate, excuse, or justify the homicide. State v. Belcher, 385 S.C. 597, 600, 685 S.E.2d 802, 803–04 (2009). In Belcher, the jury convicted the defendant of murder and possession of a firearm during the commission of a violent crime. Id. at 600, 685 S.E.2d at 803. During a gathering of family and friends, the victim and another man began arguing. The defendant intervened, and later shot and killed the victim. Id. at 601, 685 S.E.2d at 805.

Testimony at trial demonstrated conflicting versions of the event. Id. The State's evidence tended to show that after the defendant confronted the victim, the defendant retrieved a gun and without justification, fatally shot the victim. Id. The defendant presented evidence that the victim confronted him without provocation, and with a gun, following the apparent resolution of the argument. Id. The defendant claimed he subsequently retrieved a gun and fired on the victim as he approached. Id. In accordance with long-standing practice, the trial court instructed the jury that “malice may be inferred by the use of a deadly weapon,” and the jury convicted the defendant of murder. Id.

This Court reversed, and rejected the traditional jury instruction as inconsistent with our policy-making role in the common law:

The use of the term “intentional” is instructive. Say for example, a homicide occurs by the use of a deadly weapon under circumstances warranting a self-defense instruction. The killing would be intentional, yet under our currently sanctioned charge, the jury would be permitted to find malice merely because “if one intentionally kills another with a deadly weapon, the implication of malice may arise.”

Id. at 610, 685 S.E.2d at 809 (citing State v. Elmore, 279 S.C. 417, 421, 308 S.E.2d 781, 784 (1983), overruled on other grounds by State v. Torrence, 305 S.C. 45, 69 n. 5, 406 S.E.2d 315, 328 n. 5 (1991)). The Court also held that the error in Belcher could not be considered harmless:

Evidence of self-defense was presented, thereby highlighting the prejudice resulting from the charge. It is entirely conceivablethat the only evidence of malice was [the defendant]'s use of a handgun. We need go no further than saying we cannot conclude the error was harmless beyond a reasonable doubt.

Id. at 611–12, 685 S.E.2d at 809–10 (“In many, if not most, murder cases the [inferred malice from the use of a deadly weapon] charge will be harmless, even if couched in terms of a presumption.... Obviously[,] when a defendant walks into a store [and] shoots and robs the clerk, a charge that the jury may infer malice is not prejudicial to the defendant.” (alterations in original)).

In the instant case, Appellant presented evidence he had a brain abnormality. A psychiatric expert testified that he performed a psychiatric evaluation and neurological exam on Appellant, and that Appellant demonstrated mild signs consistent with brain dysfunction, including central nervous system dysfunction. According to this expert, Appellant also demonstrated the typical signs of anti-social personality disorder or psychopathy, and at the time of the crime, “you could argue” Appellant did not understand moral or legal right from wrong, as his brain could not process the events. In other words:

Based on the interview, the review of the records, the neurological evaluation, the brain-imaging evaluation, and the fact that he has received diagnoses of anti-social personality disorder ... and the—limitations or impairments that anti-socials or psychopaths have, one of the major ones they have is an appreciation for the wrongfulness, or the moral wrongfulness and legal wrongfulness of their actions at the time.

An expert in physiological psychology testified that Appellant suffered damage to the frontal lobe of his brain from two separate incidents. The first incident occurred during Appellant's birth when his brain received a reduced oxygen supply. The second incident occurred during Appellant's teen-age years when he received a blow to the back of his head from a beer bottle, driving his brain forward. Appellant presented psychiatric testimony that he had diminished or lowered function of his brain in the frontal lobe areas, and that there “could” be a causal connection between diminished function in the frontal lobe and mental illness. An expert in neuropsychology and neuroimaging testified that scans of the right hemisphere of Appellant's brain exhibited damage. According to this expert, the damage occurred in the medial gray matter of Appellant's brain at four standard deviations below normal, and an individual with this type of “extreme” damage would have some type of temporal lobe epilepsy. A medical doctor with expertise in Positron Imaging Tomography (P.E.T.) scans and...

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