State v. Stone, 25494.

• Citation: 567 S.E.2d 244,350 S.C. 442
• Decision Date: 15 July 2002
• Docket Number: No. 25494.,25494.
• Parties: The STATE, Respondent, v. Bobby Wayne STONE, Appellant.
• Court: United States State Supreme Court of South Carolina

350 S.C. 442

567 S.E.2d 244

The STATE, Respondent, v. Bobby Wayne STONE, Appellant.

No. 25494.

Supreme Court of South Carolina.

Heard May 16, 2002.

Decided July 15, 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 S. Creighton Waters, all of Columbia, and Solicitor C. Kelly Jackson, of Sumter, for respondent.

Justice WALLER.

Appellant, Bobby Wayne Stone, was convicted of murder, first-degree burglary, and possession of a weapon during a violent crime. He was sentenced to death for murder, and consecutively sentenced to thirty years for burglary, and five years for possession of a weapon. We affirm the convictions, but reverse Stone's death sentence and remand for a new sentencing proceeding.

FACTS

Shortly before 7:00 p.m. on February 26, 1996, Ruth Griffith heard gunshots in her backyard. She called her next door neighbor, Landrow Taylor, who came over; the two called 911. As they waited in the living room, Griffith and Taylor heard someone come onto the screened porch on the side of the house and start banging on the door to the house. A wooden board which had been nailed over a broken window pane on the lower right-hand corner of the door broke out. Sumter police officer, Sergeant Charles Kubala arrived at 7:07 p.m.; he was motioned to the side of the house by Taylor. As Taylor and Griffith waited inside the house, they heard someone shout "Halt" or "Hold It" followed immediately by three or four gunshots. A second police officer arrived to find Kubala had been shot in the right ear and neck. Kubala died at the scene.

After four hours of searching the wooded area behind Griffith's home, Stone was found lying beneath two fallen trees, with a .22 caliber pistol under him. A shotgun had been left on the screened porch. Stone confessed to the shooting, but claimed he had drank about twelve beers in the six hours prior to the shooting. He told police that when he heard a man's voice yelling at him from outside the screened porch, he turned and the gun went off, so he ran.¹ The jury convicted Stone of murder, first degree burglary, and possession of a firearm during commission of a violent crime.

ISSUES

1. Did the court err in failing to direct a verdict on the charge of first-degree burglary?

2. Did the court err in excusing a juror during sentencing?

3. Did the court err in refusing to charge the statutory mitigating circumstances of S.C.Code Ann. § 16-3-20(C)(b)(6) & (7)(Supp.2001)?

4. Did the court err in failing to instruct the jury that Stone would be ineligible for parole if sentenced to life imprisonment?

1. DIRECTED VERDICT-FIRST DEGREE BURGLARY

Stone asserts he was entitled to a directed verdict on the charge of burglary as there was no evidence he entered Ruth Griffith's "dwelling." We disagree.

Under S.C.Code Ann. § 16-11-311(A)(Supp.2001), a person is guilty of burglary in the first degree if the person enters a dwelling without consent and with intent to commit a crime in the dwelling, and the entering is accompanied by an aggravating circumstance. For purposes of burglary, a "dwelling house" is defined by S.C.Code Ann. § 16-11-10 (1985) as follows:

With respect to the crimes of burglary and arson and to all criminal offenses which are constituted or aggravated by being committed in a dwelling house, any house, outhouse, apartment, building, erection, shed or box in which there sleeps a proprietor, tenant, watchman, clerk, laborer or person who lodges there with a view to the protection of property shall be deemed a dwelling house, and of such a dwelling house or of any other dwelling house all houses, outhouses, buildings, sheds and erections which are within two hundred yards of it and are appurtenant to it or to the same establishment of which it is an appurtenance shall be deemed parcels.

A "dwelling" also means the living quarters of a building which is used or normally used for sleeping, living, or lodging by a person. S.C.Code Ann. § 16-11-310 (Supp.2001).

We find Griffith's screened porch meets the statutory definition of a dwelling. The porch is attached to the left side of Griffith's house. It has three concrete block stairs going up to it, and appears from photographs to be very small, approximately four feet on each side, with wood panels which extend two-thirds of the way up on two sides, and a screened door on the third side. The porch leads into and out of the laundry room and is used primarily to store wood and paint cans. Griffith uses the porch for ingress and egress to her clothesline outside. We find the screened porch is appurtenant, and is used for the protection of Griffith's property (paint and wood) so as to come within the definition of a dwelling.

We have not previously addressed, under the current burglary statute, whether a fully enclosed screened porch is a dwelling within the meaning of section 16-11-10. In the 1913 case of State v. Puckett, 95 S.C. 114, 78 S.E. 737 (1913), we addressed whether the defendant could be convicted of burglary for entering an unenclosed piazza, which had a two and one-half foot balustrade, and was open on the top 6-7 feet, with a picket gate on each end to keep out chickens and dogs. Under the facts of the case, the Court held the evidence did not show the piazza was such a part of the dwelling house as was contemplated by law to make it an offense to enter in the nighttime against the security of the dwelling house.² However, at the time Puckett was decided, common law required a breaking in order to establish the offense of burglary. The offense of burglary no longer requires such a breaking. Further, unlike Puckett, the porch here was completely enclosed and was utilized for the protection of Griffith's property. We find these factors sufficient to demonstrate the porch was part of Griffith's dwelling.

Furthermore, numerous courts in other jurisdictions have held screened porches qualify as part of a dwelling for purposes of burglary statutes. See State v. Bordley, 2000 WL 706788 (Del.Super.2000); State v. Jenkins 741 S.W.2d 767, 768-770 (Mo.Ct.App.1987) (upholding burglary conviction for entry into enclosed screen porch despite unsuccessful attempt to open inner door to home); Davis v. State, 938 P.2d 1076 (Alaska App.1997); People v. Wise, 25 Cal.App.4th 339, 30 Cal.Rptr.2d 413, 416-18 (1994); Johnson v. Commonwealth, 875 S.W.2d 105, 106-07 (Ky.App.1994); People v. McIntyre, 218 Ill.App.3d 479, 161 Ill.Dec. 187, 578 N.E.2d 314 (1991) (screened porch attached to house was part of "living quarters" and thus was a "dwelling"); State v. Lawrence, 572 So.2d 276, 278-79 (La.App.1990)(particular back porch was part of the residence; porch was fully enclosed screened porch underneath the main roof); State v. Watts, 76 N.C.App. 656, 334 S.E.2d 68, 70 (1985); People v. Lewoc, 101 A.D.2d 927, 475 N.Y.S.2d 933, 934 (1984)(fully enclosed porch, with windows and walls of wooden construction running length of the house); State v. Gatewood, 169 Kan. 679, 221 P.2d 392 (1950) (porch which was screened in and connected to kitchen by door and window). Similarly, other courts have held appurtenant structures to a home, even if not directly accessible from the home, are nonetheless part of the "dwelling" as contemplated by burglary statutes. See State v. Maykoski, 583 N.W.2d 587 (Minn.1998)

(basement); People v. Ingram, 40 Cal.App.4th 1397, 48 Cal.Rptr.2d 256 (5th Dist.1995) (garage attached to house, even though not connected by an inside doorway to the inhabited part of house); People v. Moreno, 158 Cal.App.3d 109, 204 Cal.Rptr. 17 (1984)("given that garage was under the same roof, functionally interconnected with, and immediately contiguous to other portions of the house, simple logic would suffer were we to leap over this interrelationship to a conclusion that a garage is not part of a dwelling because no inside entrance connects the two").

We find the screened porch is part of the "dwelling." Accordingly, Stone was not entitled to a directed verdict.

2. REMOVAL OF JUROR DURING SENTENCING

Stone next asserts the trial court abused its discretion in removing Juror Clydie Thompson during sentencing. We agree.

At sentencing, the state called Stone's aunt, Bernice Perry, as a witness. When Perry was placed on the witness stand, Juror Thompson indicated to the court that she knew Ms. Perry. Although Perry had been announced as a witness at the start of voir dire, Thompson did not know her name. Thompson had lived down the street from Perry five or six years earlier, and they were casual acquaintances only. Thompson indicated her acquaintance would not affect her ability to be fair and impartial.

The solicitor objected to Thompson's continued participation contending it would be difficult for her to impose a death sentence on a former acquaintance's nephew. The court removed Juror Thompson and replaced her with the second alternate juror. We find this was error.

In State v. Woods, 345 S.C. 583, 587-88, 550 S.E.2d 282, 284 (2001), we recently stated:

When a juror conceals information inquired into during voir dire, a new trial is required only when the court finds the juror intentionally concealed the information, and that the information concealed would have supported a challenge for cause or would have been a material factor in the use of the party's peremptory challenges. Thompson v. O'Rourke, 288 S.C. 13, 15, 339 S.E.2d 505, 506 (1986). Where a juror, without justification, fails to disclose a relationship, it may be inferred, nothing to the contrary appearing, that the juror is not impartial. On the other hand, where the failure to disclose is innocent, no such inference may be drawn. State v. Savage, 306 S.C. 5, 409 S.E.2d 809 (Ct.App.1991).

Although the present case does not involve a...