State v. Smith

THIS OPINION HAS NO
PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY
PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State, Respondent,

v.

David Dwight
Smith, Appellant.

Appeal From Spartanburg County

 Doyet A. Early, III, Circuit Court Judge

Unpublished Opinion No. 2008-UP-194

Heard November 6, 2007 – Filed March 20,
2008

REVERSED AND REMANDED

Chief Attorney Joseph L. Savitz, III, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, and Assistant Deputy Attorney General Donald J.
Zelenka, all of Columbia; and Solicitor Harold W. Gowdy, III, of Spartanburg,
for Respondent.

PER CURIAM:  David
Dwight Smith (Smith) was convicted of murder and possession of a firearm during
the commission of a violent crime.  He asserts on appeal the trial judge erred
in refusing to instruct the jury on: 1) voluntary manslaughter, 2) involuntary
manslaughter, and 3) accident.  We reverse and remand.

FACTS

Smith was indicted for murder and possession of a firearm during the
commission of a violent crime.  The charges arose from the January 12, 1997
shooting of Robert Finley (Finley). At trial, the jury found Smith guilty of
both charges and the judge sentenced him to life imprisonment for murder and
five years, concurrent, for possession of a firearm during the commission of a
violent crime.

Smith
unsuccessfully appealed his case and then filed an application for
post-conviction relief (PCR) alleging (1) ineffective assistance of counsel and
(2) failure to call an expert witness.  After a hearing, the judge granted
Smith post-conviction relief.

Smith was
retried on October 31, 2005.  The jury found him guilty of both charges. The
judge sentenced him to imprisonment for thirty-five years for murder and five
years, concurrent, for possession of a firearm during the commission of a
violent crime.

At trial,
testimony revealed that at approximately 2:30 a.m. on the night in question
Finley walked to Otis Hyder’s (Hyder) mobile home to use his phone.  Finley
wanted to purchase some crack cocaine and called a dealer, Rodney Smith
(Rodney).[1]  Rodney refused to help Finley, but Rodney’s sister, Angie Smith (Angie),
volunteered to set up a drug buy between Finley and another dealer, Smith. 
Smith picked Angie up at home and the two drove to meet Finley at Otis Hyder’s
mobile home.

Initially,
Smith stayed in the car while Angie entered Hyder’s trailer. She attempted to
facilitate the drug deal, but Finley wanted to deal with Smith directly.  Angie
returned to the car and informed Smith of the situation.  Smith walked into the
trailer; once inside Smith realized Finley did not have money for the deal and
that Finley insisted on keeping the drugs.  Smith testified that Finley tried
to rob him.  The situation escalated into a fight and struggle over control of
a firearm that was in Smith’s possession.  During the fight, the firearm
discharged striking Finley in the left eye killing him.

During the first trial, Judge Derham Cole charged the jury on the law
of voluntary manslaughter, involuntary manslaughter, and accident, the three
charges at issue in this appeal.  In the case at hand, Judge Jack Early charged
the jury on murder and self-defense. In addition, Smith requested charges on voluntary
manslaughter, involuntary manslaughter, and accident, which the judge denied.

STANDARD OF REVIEW

“In
criminal cases, the appellate court sits to review errors of law only.” State
v. Wilson, 345 S.C. 1, 5-6, 545 S.E.2d 827, 829 (2001); State v.
Wood, 362 S.C. 520, 525, 608 S.E.2d 435, 438 (Ct. App. 2004).  Generally,
the trial judge is required to charge only the current and correct law of South Carolina.  Sheppard v. State, 357 S.C. 646, 665, 594 S.E.2d 462, 472-73
(2004); State v. Brown, 362 S.C. 258, 261-62, 607 S.E.2d 93, 95 (Ct.
App. 2004). “The law
to be charged must be determined from the evidence presented at trial.”  State
v. Patterson, 367 S.C. 219, 231, 625 S.E.2d 239, 245 (Ct. App. 2006). 
If any evidence supports a jury charge, the trial judge should grant the
request.  Brown, 362 S.C. at 262, 607 S.E.2d at 95.  “Due process
requires that a lesser included offense be charged when the evidence warrants
it but only if the evidence would permit a jury rationally to find the
defendant guilty of the lesser offense.”  State v. Small, 307 S.C. 92,
94, 413 S.E.2d 870, 871 (Ct. App. 1992).  “To warrant reversal, a trial court's
refusal to give a requested jury charge must be both
erroneous and prejudicial to the defendant.”  Patterson, 367 S.C. at 232, 625 S.E.2d at 245.
 

DISCUSSION

ISSUE:

Did the trial judge err in refusing to charge
voluntary manslaughter, involuntary manslaughter, and accident?

Voluntary Manslaughter

First, Smith contends that his murder conviction should be
reversed and remanded for a new trial based on the trial judge’s failure to
charge the jury on the law of voluntary manslaughter.  We agree.

Voluntary manslaughter is defined as the “unlawful
killing of a human being in the sudden heat of passion upon sufficient legal
provocation.” State v. Knoten, 347 S.C. 296, 302, 555 S.E.2d 391,
394 (2001).  Both heat of passion and sufficient legal provocation must be
present for the killing to constitute voluntary manslaughter. Id. at
302, 555 S.E.2d at 394; State v. Cole, 338 S.C. 97, 101-02, 525
S.E.2d 511, 513 (2000).

“[T]o warrant the
Court in eliminating the offense of manslaughter it should very clearly appear
that there is no evidence whatsoever tending to reduce the crime from murder to
manslaughter.” State v. Gardner, 219 S.C. 97, 64 S.E.2d 130, 134
(1951) (citing State v. Norton, 28 S.C. 572, 6 S.E. 820 (1888)).
Moreover, South Carolina case law consistently holds that a request to charge a
lesser included offense is properly refused only when there is no evidence that
the defendant committed the lesser rather than the greater offense.  See State v. Goldenbaum, 294 S.C. 455, 457, 365 S.E.2d 731, 732
(1988).  “In determining
whether the evidence requires a charge on voluntary manslaughter, this Court
must view the facts in the light most favorable to
the defendant.” Cole, 338 S.C. at 101, 525 S.E.2d at 512-13 (citing State
v. Byrd, 323 S.C. 319, 474 S.E.2d 430 (1996)).

The
record supports a charge on the law of voluntary manslaughter.  Smith claims the
victim was attempting to rob him thereby provoking the altercation which he
ultimately claims caused the alleged accidental shooting.  Smith specifically
testified that Finley “was coming toward me, the expression on his face and
everything was a real serious demeanor, and I, you know, I didn’t know what to
expect from him next: . . . [h]e looked like he was on something.”  Smith
further stated, “[a]s I said, he had this look about him, and he was
approaching me.  So, I took the gun out of my pocket hoping that if he saw it,
that maybe he would cease.”  Smith also testified that Finley “tries to knock
the gun out my hand.  He hit me with the left, with the left arm and grabbed me
in my collar of the jacket . . . I thought I was gonna lose the gun.  He had
hit it and I got the grip on the gun and he’s got me . . . I went to defend
myself.  I threw my left arm over his, over his arm that he had me grab, and I
hit him with the butt of the gun. . . . I was trying to get out of there . . . He
was coming up on me, I was afraid. . . . I was hitting him with the gun and it
went off and hit him in the face.” 

This testimony, coupled with the testimony of Angie who described
the encounter right before the shot was fired as two men scuffling and falling
out of the trailer door, sufficiently depicts a fight between Finley and Smith immediately
preceding the shooting and after Smith claimed Finley was trying to rob him.  Thus,
the record contains testimony from Smith that Finley initiated the physical
confrontation by trying to rob him and aggressively approaching him.  Smith
testified he was trying to escape the situation and feared Finley would gain
possession of the firearm.  Moreover, Smith testified that the discharge of the
pistol was a “[f]luke accident.  I was hitting him with the gun and it went off
and hit him in the face.”  Smith testified “I didn’t intend to use it, and I
never pointed it at him.”

The trial judge, in denying Smith’s request to charge voluntary
manslaughter, determined that there was insufficient evidence to show sudden
heat of passion although Smith claimed Finley tried to rob him and that they
were fighting.  In State v. Davis, 278 S.C. 544, 298 S.E.2d 778 (1983), the
court found that a voluntary manslaughter charge was appropriate where “a
witness testified that appellant and the victim had been ‘fighting.’ From this
circumstance of ‘provocation’ and ‘heat of passion,’ guilt of voluntary
manslaughter could be fairly and logically deduced and was thus a proper matter
for jury determination.” Id. at 546, 298 S.E.2d at 779 (citing State
v. Kahan, 268 S.C. 240, 233 S.E.2d 293 (1977)).

Viewing the case at hand in the light most favorable to Smith, the
requested charge is appropriate.  Cole, 338 S.C. at 101, 525 S.E.2d at
513.  The trial judge charged self-defense[2] but declined to also charge voluntary manslaughter. If the trial judge
concluded, as the solicitor argued, that the element of legal provocation could
not be simultaneously used in support of both self-defense as well as voluntary
manslaughter, that conclusion nonetheless constitutes legal error.

Both self-defense and the lesser included offense of voluntary
manslaughter should be submitted to the jury if supported by the evidence.
State
v. Linder, 276 S.C. 304, 278 S.E.2d 335 (1981). The rationale for
this rule is that the jury may fail to find all the elements of self-defense
but could find sufficient legal provocation and heat of passion to conclude the
defendant was guilty of voluntary manslaughter. Id.

State v. Gilliam, 296 S.C. 395, 396-97, 373 S.E.2d 596, 597 (1988). 

Further,
any concern about whether the defendant was acting with presumed malice (or a
mandatory presumption of malice) as a matter of law because of the alleged
commission of a felony has recently been answered and revisited by our supreme
court in Lowry v. State, Op. No. 26436 (S.C. Sup. Ct. filed Feb. 11,
2008). In Lowry, the supreme court rejected the presumed malice (substantive
rule of law) approach to the felony murder rule as unconstitutionally shifting
the state’s burden of proof on the issue of malice.  The court continues to
adhere to precedent regarding the alternative inference of malice approach
suggested in State v. Norris, 285 S.C. 86, 92, 328 S.E.2d 339, 342
(1985) (overruled on other grounds by State v. Torrence, 305 S.C. 45,
406 S.E.2d 315 (1991).   Any implication of malice arising from an act
occurring during the commission of a felony may be accepted or rejected by the
jury as it deems appropriate.

We,
therefore, respectfully find the trial judge should have instructed the jury on
voluntary manslaughter and that Smith was prejudiced by the failure to charge
the lesser offense.  Because we reverse on the issue of voluntary manslaughter,
we need not address the remaining issues presented. Whiteside v. Cherokee County School Dist.
No. One, 311 S.C. 335,
340, 428 S.E.2d 886, 889 (1993) (appellate court need not address remaining
issues when resolution of prior issue is dispositive).

CONCLUSION

We respectfully conclude the trial court
erred in refusing to instruct the jury on voluntary manslaughter; we also find
that Smith was prejudiced by this error.  Therefore, we reverse the conviction
and remand the case to the circuit court for a new trial.  Furthermore, in
reversing Smith’s murder conviction, we must also reverse the conviction for
possession of a firearm during the commission of a violent crime because the
former conviction is a prerequisite to the latter.  E.g., S.C. Code Ann.
§ 16-23-490(E) (2003) (noting the additional punishment for possession of a
firearm during the commission of a violent crime may not be imposed unless the
defendant is convicted of the underlying violent crime); State v. Taylor, 356 S.C. 227, 235 n.4, 589 S.E.2d 1, 5 n.4 (2003) (noting defendant's
conviction for possession of a weapon during the commission of a violent crime
must be reversed where the court was reversing defendant's murder conviction).  Based
on the foregoing, Smith’s convictions are hereby

REVERSED
AND REMANDED.

HUFF
and PIEPER, JJ., and CURETON, A.J., concur.

[1] Since the appellant is referred to as “Smith”
throughout this order and there are two key witnesses named Rodney Smith and
Angie Smith, these witnesses will be referred to as Rodney and Angie
respectively to avoid any confusion.

[2] No issues on appeal have been argued as to the
judge’s charge of self-defense.