Stinski v. State

• Decision Date: 01 March 2010
• Docket Number: No. S09P1745.,S09P1745.
• Citation: 691 S.E.2d 854
• Parties: STINSKI v. The STATE.
• Court: Georgia Supreme Court

691 S.E.2d 854

STINSKI v. The STATE.

No. S09P1745.

Supreme Court of Georgia.

March 1, 2010.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Jackson & Schiavone, Michael G. Schiavone, Steven L. Sparger, Savannah, for appellant.

Spencer Lawton, Jr., District Attorney, Gregory M. McConnell, Asst. Dist. Atty., Thurbert E. Baker, Attorney General, Richard Tangum, Assistant Attorney General, for appellee.

THOMPSON, Justice.

A jury convicted Darryl Scott Stinski of murdering Susan and Kimberly Pittman and related crimes.¹ After finding multiple statutory aggravating circumstances, the jury recommended a death sentence for each of the murders. See OCGA § 17-10-30(b). For the reasons set forth below, we reverse the trial court's sentencing order insofar as it imposed two sentences for the one crime of arson and direct the trial court to vacate the second of those duplicative sentences, and we affirm all of Stinski's remaining convictions and sentences, including his death sentences for the murders.

1. The evidence at trial showed that Darryl Stinski and Dorian O'Kelley engaged in a crime spree that spanned April 10-12, 2002. On the night of April 10, two police officers observed two men dressed in black clothing in a convenience store. Later, the officers responded to two separate calls regarding the sounding of a burglar alarm at a nearby home and the officers returned to the store after responding to each call. Then, at approximately 5:00 a.m. on April 11, the officers noticed while leaving the store that "the sky was lit up." The officers discovered the victims' house fully engulfed in flames. As one of the officers moved the patrol vehicle to block traffic in preparation for the arrival of emergency vehicles, his headlights illuminated a wooded area where he observed the same two men that he and his partner had observed earlier in the convenience store. O'Kelley, as the neighbor living across the street from the burned house, gave an interview to a local television station. The officer saw the interview on television and identified O'Kelley as being one of the men he had seen in the convenience store and near the fire. The officer later identified both Stinski and O'Kelley in court.

Stinski and O'Kelley left items they had stolen with friends who lived nearby. The friends handed those items over to the police. Testimony showed that, before their arrest, O'Kelley had bragged about raping a girl and keeping one of her teeth as a memento and Stinski had laughed when he saw O'Kelley being interviewed on the news in front of the victims' house.

Stinski gave two videotaped interviews with investigators after his arrest, the second of which was suppressed on his motion. In the interview the jury heard, Stinski confessed to participating in the crime spree described below, which began with burglarizing a home and leaving when a motion detector in this first home set off an alarm. After their botched burglary of the first home, Stinski and O'Kelley turned off the electricity to the home of Susan Pittman and her 13-year old daughter, Kimberly Pittman, and entered as both victims slept. O'Kelley took a walking cane and began beating Susan Pittman, while Stinski held a large flashlight. Stinski beat Susan Pittman with the flashlight and then left the room to subdue Kimberly Pittman, who had awakened to her mother's screams. O'Kelley then beat Susan Pittman with a lamp and kicked her. At some point, Susan Pittman was also stabbed three to four times in the chest and abdomen. Stinski took Kimberly Pittman upstairs so she would not continue to hear her mother's screams. Susan Pittman eventually died from her attack. Stinski and O'Kelley then brought Kimberly Pittman back downstairs, drank beverages, and discussed "taking care of" her. Stinski took Kimberly Pittman back upstairs and bound and gagged her. As Stinski rummaged through the house downstairs, O'Kelley raped Kimberly Pittman. Stinski and O'Kelley then agreed that Stinski would begin beating Kimberly Pittman with a baseball bat when O'Kelley said a particular word. On cue, Stinski hit Kimberly Pittman in the head with the bat as she knelt on the floor, bloody from the rape and with her hands bound. O'Kelley then slit Kimberly Pittman's throat with a knife but she remained alive. Stinski went downstairs and came back upstairs when O'Kelley called him. Stinski then hit Kimberly Pittman in her knee with the bat as O'Kelley tried to suffocate her. O'Kelley then took another knife and stabbed her in the torso and legs. O'Kelley kicked her and threw objects at her head, but her groans indicated that she was still alive. Stinski and O'Kelley then set fires throughout the house and went to O'Kelley's house across the street to watch the fire. Kimberly Pittman died of smoke inhalation before the fire fully consumed the house. Later, in the early morning hours of April 12, Stinski and O'Kelley broke into numerous vehicles in the neighborhood.

We conclude upon our review of the record that the evidence was sufficient to authorize a rational trier of fact to conclude beyond a reasonable doubt that Stinski was guilty of the crimes of which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The jury convicted Stinski on two counts of arson in the first degree, one alleging that the structure burned was a dwelling house and one alleging that it was reasonably foreseeable that the fire might endanger human life. However, the evidence showed that only one continuous act of setting multiple fires in the same house constituted the act of arson. See OCGA § 16-7-60(a)(1), (5). Therefore, the trial court is directed to vacate the sentence it imposed based on the second count of arson in the first degree. See O'Kelley v. State, 284 Ga. 758, 760-761(1), 670 S.E.2d 388 (2008) (holding that the same remedy was required in the appeal of Stinski's co-defendant).

Pretrial Issues

2. Stinski argues that the trial court erred by denying his motions seeking to limit media publicity of his case. Because Stinski presented no clear and convincing proof that closure of his trial proceedings was necessary in addition to the change of venue actually granted by the trial court, this claim must fail. See Rockdale Citizen Publishing Co. v. State of Ga., 266 Ga. 579, 468 S.E.2d 764 (1996).

3. Stinski argues that the trial court erred by denying his motion for disclosure of any possible grounds for recusal. The trial court did not err by noting its independent ethical duty to disclose any basis for recusal and otherwise denying Stinski's motion. See Georgia Code of Judicial Conduct, Canon 3(E). See also Jones County v. A Mining Group, 285 Ga. 465, 465, 678 S.E.2d 474 (2009) (noting that the Georgia Code of Judicial Conduct imposes a greater duty for voluntary recusal than does Georgia statutory law).

4. The trial court denied Stinski's motion to order the State to disclose all of the evidence, diagrams, sketches, and photographs that it had shown to its prospective witnesses. Because Stinski has shown no reason compelling a different conclusion and because it appears Stinski's constitutional rights were adequately protected by his ability to conduct cross-examination, we find no error.

5. Stinski argues that the trial court erred by denying his motions seeking information related to the grand jury proceedings against him. The State complied with its relevant duties under the Criminal Procedure Discovery Act, and Stinski has failed to show that he was legally entitled to any of the other information he sought. See Ruffin v. State, 283 Ga. 87, 88(5), 656 S.E.2d 140 (2008) ("Grand jury proceedings are confidential and thus appellant was not entitled to a transcript of those proceedings."); U.A.P. I(A) (noting that the Unified Appeal Procedure governs proceedings only "during and after trial"). Accordingly, we find no error.

6. Stinski has shown no sound basis in law for his argument that the trial court erred by refusing to order the State to disclose evidence supporting all pretrial statements made by the prosecution and by law enforcement officers. Accordingly, we find no error.

7. The trial court did not err by denying Stinski's motion to make the jurors' handwritten notes part of the record. McMichen v. State, 265 Ga. 598, 613(35), 458 S.E.2d 833 (1995).

8. Contrary to Stinski's arguments, we conclude that the reference to "the Governor" in OCGA § 17-10-33, which governs the transportation of a death-sentenced prisoner to the site of his or her execution, does not purport to grant the Governor any unconstitutional power of commutation and does not deprive the State Board of Pardons and Paroles of its constitutionally-granted power of commutation. See Ga. Const. of 1983, Art. IV, Sec. II, Par. II (granting the powers of executive clemency to the State Board of Pardons and Paroles). Instead, we conclude that the statute merely grants the Governor the authority to modify, in a manner that does not conflict with other laws governing executions, the statutorily-prescribed time for transporting the defendant. See City of Macon v. Smith, 244 Ga. 157, 158, 259 S.E.2d 90 (1979) (holding that "legislative enactments should be construed, where susceptible to more than one meaning, so as to be constitutional rather than being construed so as to be unconstitutional").

9. Stinski argues that the trial court erred by denying his motion to restrict the use of the word, "murder," at trial. See Laney v. State, 271 Ga. 194, 196(7), 515 S.E.2d 610 (1999) ("The trial court did not err in permitting the prosecutor to use the word `murder' instead of `homicide.'"); James v. State, 270 Ga. 675, 676-677(4), 513 S.E.2d 207 (1999) (addressing a motion for mistrial made in response to a witness' use of the word, "murder"). Stinski has failed to cite to any part of...