State v. Sams

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT
SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS
PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State, Respondent,

v.

Desmond Javon
Sams, Appellant.

Appeal From Colleton County

Perry M. Buckner, Circuit Court Judge

Unpublished Opinion No. 2011-UP-205

Submitted February 8, 2011 – Filed May 4,
2011   

AFFIRMED

Senior Appellate Defender Joseph L. Savitz, and Appellate
Defender Tristan M. Shaffer, both of Columbia, for Appellant.

Assistant Attorney General Mark R. Farthing,
for Respondent.

PER CURIAM: Desmond Javon Sams appeals his conviction and
sentence for voluntary manslaughter.  Sams contends the trial court committed
reversible error by refusing to instruct the jury on involuntary manslaughter
when the evidence arguably supported a factual finding that Sams
unintentionally killed Jake Frazier (Victim) while acting in self-defense.  We
affirm.[1]

The trial court charged
murder, voluntary manslaughter, and self-defense, but declined to charge
involuntary manslaughter.  The jury returned with a guilty verdict on the
voluntary manslaughter charge.  Limited to the facts of this case, we hold the
trial court did not err.  Sams's appellate brief does not articulate which
definition of involuntary manslaughter he believes applies to the facts of his
case.[2] 
Therefore, we will proceed to analyze the facts of this case under both
definitions.  

"Involuntary
manslaughter is (1) the unintentional killing of another without malice, but
while engaged in an unlawful activity not naturally tending to cause death or
great bodily harm; or (2) the unintentional killing of another without malice,
while engaged in a lawful activity with reckless disregard for the safety of
others."  State v. Wharton, 381 S.C. 209, 216, 672 S.E.2d 786,
789 (2009).  "If
there is any evidence warranting a charge on involuntary manslaughter, then the
charge must be given."  Id.

Sams did not qualify for an
involuntary manslaughter instruction under the first definition because his
conduct in placing his arms around Victim's neck and holding Victim down for
over eight minutes was of the type naturally tending to cause death or great
bodily harm.  See Wharton, 381 S.C. at 216, 672 S.E.2d at 789
(defining involuntary manslaughter as "the
unintentional killing of another without malice, but while engaged in an
unlawful activity not naturally tending to cause death or great bodily harm").  

This case can be factually
distinguished from State v. Chatman, 336
S.C. 149, 519 S.E.2d 100 (1999).  Chatman accidentally strangled the victim by
pressing his shoulder into the victim's neck while engaged in a fight with the victim
on the ground.  Id. at 153, 519 S.E.2d at 101-02.  The supreme court
noted Chatman's conduct was not such that naturally tended to cause death or
great bodily harm because it was not a traditional strangulation-type situation
involving the accused's hands placed around a victim's neck.  Id. at
153, 519 S.E.2d at 102.  Thus, Chatman was entitled to an involuntary
manslaughter charge under the first definition.  Id. 

In contrast to Chatman,
the present case is a traditional strangulation-type situation.  Sams wrapped
both arms around Victim's neck and applied pressure for over eight minutes.  Sams
continued to hold Victim face down in a choke hold even after Victim became
"lifeless."  When the police arrived and asked Sams to release his
hold on Victim, Sams was reluctant to do so.  Furthermore, Sams did not
expressly argue below, nor does he suggest on appeal, that his actions were not
of the type naturally tending to cause death or great bodily harm.  Even if Sams
had raised this argument, this contention is manifestly without merit.  See Rule 220(b)(2) ("The Court of Appeals need not address a point which is
manifestly without merit."). 

Sams was likewise not entitled
to an involuntary manslaughter charge under the second definition.  See Wharton, 381 S.C. at 216, 672 S.E.2d at 789 (further defining
involuntary manslaughter as "the
unintentional killing of another without malice, while engaged in a lawful
activity with reckless disregard for the safety of others").  Sams could only
qualify for an involuntary manslaughter instruction under the second definition
if he were acting lawfully in self-defense and unintentionally killed Victim.[3] 

Sams stated, "I wasn't
choking him like hard to try to kill him" and "I wasn't trying to
kill him."  Even assuming Sams was acting lawfully in defending himself,
he admitted to intentionally choking Victim.  In addition, Sams exerted more
force than was reasonably necessary to defend himself by wrapping his arms
around Victim's neck for over eight minutes while Victim lay face down on the
floor and begged for his life.  See State v. Campbell, 111 S.C. 112, 113, 96 S.E. 543, 543-44 (1918)
("A person assaulted, being without fault in bringing
on the difficulty, has the right to use such force as is necessary for his
complete self-protection, or which in the mind of a person of ordinary reason
and firmness would reasonably prevent the assailant from taking his life or inflicting
serious bodily harm.").

State v. Pickens, in which the defendant argued he shot a
gun at his victim in self-defense, is analogous to the present case.  320 S.C.
528, 531-32, 466 S.E.2d 364, 366-67 (1996).  In Pickens, refusal to
charge involuntary manslaughter was proper because the defendant admitted he intentionally
shot the gun at the victim.  Id.  Like Pickens, Sams was either
not guilty by reason of self-defense, or guilty of voluntary manslaughter.  Id. 
However, no evidence exists indicating Sams's actions were unintentional for
purposes of an involuntary manslaughter charge.

This case is distinguishable
from accidental trigger-pull gun cases where an involuntary manslaughter
instruction is often deemed appropriate.  See, e.g., State v. Mekler, 379 S.C. 12, 15-16, 664 S.E.2d 477, 479
(2008) (explaining an involuntary manslaughter instruction was warranted when
testimony supported defendant's assertion that she unintentionally shot victim
while acting in reckless disregard for the safety of others by negligently handling
a loaded shotgun); State v. Light, 378 S.C. 641, 648-49, 664 S.E.2d 465,
468-69 (2008) (holding an involuntary manslaughter instruction was warranted
when defendant testified he was struggling with his girlfriend to take
possession of a loaded shotgun when the gun unintentionally discharged); State
v. Crosby, 355 S.C. 47, 53, 584 S.E.2d 110, 112-13 (2003) (finding
defendant's contradictory statements that he pulled the trigger and did not
intend to pull the trigger were sufficient to warrant a jury instruction on
involuntary manslaughter).

Here, Sams admitted he
intentionally choked Victim but suggested he did not choke him hard enough to
kill him.  The intentional act of choking someone is evidence of malice, not
reckless disregard for the safety of others, and a malicious killing is not an
unintentional killing.  See Wharton, 381
S.C. at 216, 672 S.E.2d at 789 (defining involuntary manslaughter as "the unintentional killing of another without
malice, while engaged in a lawful activity with reckless disregard for the
safety of others") (emphasis added); see also Tate v. State,
351 S.C. 418, 426, 570 S.E.2d 522, 527 (2002) ("Malice is the
wrongful intent to injure another and indicates a wicked or depraved spirit
intent on doing wrong.").  Indeed, two eye-witnesses to the incident
testified Sams told Victim "I'm going to . . . kill you" while
engaged in the act of choking Victim. 

Because no evidence exists
demonstrating that this was an unintentional killing under either definition of
involuntary manslaughter, the decision of the trial court not to charge
involuntary manslaughter is

AFFIRMED. 

WILLIAMS, GEATHERS, and
LOCKEMY, JJ., concur.       

[1]  We affirm without oral argument pursuant to Rule
215, SCACR.

[2]  We are disturbed by the brevity of the legal
argument in Sams's appellate brief, which consists of less than a page.

[3]  The trial court agreed to charge the jury on the law
of self-defense, and the State did not object to this charge.