State v. Stewart, 22163

• Decision Date: 07 June 1984
• Docket Number: No. 22163,22163
• Citation: 320 S.E.2d 447,283 S.C. 104
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Richard STEWART, Appellant. . Heard

Page 447

320 S.E.2d 447

283 S.C. 104

The STATE, Respondent, v. Richard STEWART, Appellant.

No. 22163.

Supreme Court of South Carolina.

Heard June 7, 1984.

Decided Sept. 5, 1984.

David I. Bruck and South Carolina Office of Appellate Defense, Columbia, Charles W. Whiten, Jr., Anderson County Public Defender, and Frank James, Anderson, for appellant.

Atty. Gen. T. Travis Medlock, Asst. Atty. Gen. Harold M. Coombs, Jr. and Staff Atty. Carlisle Roberts, Jr., Columbia, and Sol. George M. Ducworth, Anderson, for respondent.

GREGORY, Justice:

Appellant Richard Stewart was found guilty of murder and sentenced to death pursuant to S.C.Code Ann. § 16-3-20 (Cum.Supp.1983). We consolidate Stewart's direct appeal with the mandatory review required by § 16-3-25. We affirm the conviction but reverse the sentence and remand for a new sentencing proceeding.

Appellant Richard Stewart was indicted for the murder of Mrs. Junie Rider, an elderly widow. The State alleged appellant broke into Mrs. Rider's home, stole $13 from her, stabbed her several times, and stomped on her head as she lay on the floor with such force as to break her jaw, crush the cheekbone on the opposite side of her face, and cause her dentures to break and fly out of her mouth. Sometime during this attack, appellant allegedly ripped the crotch from Mrs. Rider's slacks and girdle.

Appellant was found guilty of murder. At the sentencing phase of the trial, the jurors were instructed they could consider as aggravating circumstances: (1) assault with intent to ravish; (2) robbery while armed with a deadly weapon; (3) larceny with use of a deadly weapon; and (4) housebreaking. The jury found the existence of all of these aggravating circumstances and recommended appellant be sentenced to death.

I. Guilt Phase

Appellant argues the trial judge erred in allowing the reply testimony of Michael Wardlaw. We disagree.

The admission of reply testimony is a matter within the sound discretion of the trial judge. State v. Bailey, 279 S.C. 437, 308 S.E.2d 795 (1983). The admission of testimony which is arguably contradictory of and in reply to earlier testimony does not constitute an abuse of discretion. State v. Groome, 274 S.C. 189, 262 S.E.2d 31 (1980).

The State's evidence in its case in chief included appellant's full confession. Then, appellant presented alibi witnesses, friends and family, who accounted for all but approximately forty-five minutes of appellant's whereabouts at the time of the murder. Wardlaw, an "associate" of appellant, testified in reply to appellant's defense, that appellant admitted to him while they were walking past Mrs. Rider's home sometime after her death, that that was the home where he "stabbed that old woman." We find no abuse of discretion on the part of the trial judge in allowing this testimony in reply as it is arguably contradictory of the testimony of appellant's witnesses that appellant was elsewhere during the commission of the murder.

II. Sentencing Phase

First, appellant contends the trial judge erred in admitting evidence at the sentencing phase of the trial that appellant had committed similar crimes before and after Mrs. Rider's murder.

Section 16-3-20(B) of the Code provides in part: "In the sentencing proceeding, the jury or judge shall hear additional evidence in extenuation, mitigation, or aggravation of the punishment." (emphasis added). Before a death sentence may be imposed, the attention of the jury or judge must be directed to the specific circumstances of the crime and the characteristics of the person who committed the crime. State v. Shaw, 273 S.C. 194, 255 S.E.2d 799, cert. denied, 444 U.S. 957, 100 S.Ct. 437, 62 L.Ed.2d 329 and Roach v. South Carolina, 444 U.S. 1026, 100 S.Ct. 690, 62 L.Ed. 660 (1980). In State v. Koon, 278 S.C. 528, 298 S.E.2d 769 (1982) (Koon I ), this Court held the admission of testimony that Koon had previously attempted a similar crime was not error as the testimony indicated Koon's individual characteristics and his predisposition to commit similar crimes. We find the admission of similar crimes allegedly committed by appellant proper under the Koon I decision.

Appellant argues, however, that these offenses of which he has not been convicted could have been considered by the jury as evidence to prove the statutory aggravating circumstances in this case. He asserts the trial judge should have properly limited the jury's consideration of these offenses to evidence of appellant's characteristics as they may bear logical relevance to the crime.

We agree with appellant and hold the jury must be instructed these offenses may not be used as proof of the statutory aggravating circumstances. Here, however, the trial judge properly instructed the jury on this matter.

Appellant next argues the trial judge erred in admitting evidence of appellant's prior convictions. Again, we disagree. "[I]nformation concerning prior criminal convictions shall be admissible as additional evidence during the sentencing or resentencing phase of a capital trial under [the South Carolina death penalty] statute." State v. Plath, 313 S.E.2d 619 (S.C.1984). The trial judge instructed the jurors that they could consider the convictions not as proof of aggravating circumstances, but only as tending to show appellant's characteristics; thus, appellant's argument that the jury was not so instructed is meritless.

Next, appellant argues the trial judge erred in excluding from the sentencing proceeding testimony by jail and stockade officers regarding appellant's past behavior in jail. We agree.

The State contends appellant did not seek to introduce testimony regarding his past behavior in jail, but only his future adaptability to life in prison. Appellant argues that the trial judge should have realized the lay testimony would necessarily have included appellant's past behavior in jail and that, under State v. Koon, Davis's Advance Sheets, Opinion No. 22075, filed April 3, 1984, (Koon II ), such testimony is admissible.

The trial judge did not have the benefit of the Koon II opinion. In that decision, this Court held that, while future adaptability to prison is irrelevant because it does not bear upon a defendant's character,...