Dominic A. Leggette v. State

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Dominic A. Leggette, Petitioner,

v.

State of South Carolina, Respondent.

Appellate Case No. 2018-001793

ON WRIT OF CERTIORARI

Appeal From Georgetown County
Paul M. Burch, Post-Conviction Relief Judge

Opinion No. 6007
Heard December 5, 2022 – Filed August 2, 2023

AFFIRMED

Appellate Defender Lara Mary Caudy, of Columbia, for
Petitioner.

Attorney General Alan McCrory Wilson and Senior
Assistant Deputy Attorney General William M. Blitch,
Jr., of Columbia, both for Respondent.

MCDONALD, J.: In this action for post-conviction relief (PCR), Petitioner
asserts the PCR court erred in finding trial counsel provided effective assistance of
counsel. Petitioner contends trial counsel was ineffective in failing to object to the
trial court's instruction on voluntary manslaughter as a lesser-included offense of
murder because the evidence presented at trial did not support a voluntary
manslaughter charge. We affirm.

Facts and Procedural History

On August 9, 2008, Petitioner and several others from his uptown Andrews
neighborhood were involved in a fight with Al Ingram and other men from the
Andrews westside area. Groups from the two neighborhoods clashed again on
August 11. According to testimony presented at trial, a longstanding conflict
existed between these two neighborhoods, often culminating in fisticuffs.

On August 13, 2008, Officer Verney Cumbee of the Andrews Police Department
(APD) responded to the scene of a shooting. When he arrived, he found
approximately fifteen people surrounding Antonio Tisdale, a westside man with a
gunshot wound to his chest. Several individuals at the scene reported that
"Dominic just shot Tony." Tony Tisdale ultimately died from the gunshot wound.

Investigator Eddie Lee of the APD assisted in the investigation. Investigator Lee
identified Petitioner as a suspect based on eyewitness testimony gathered from the
scene. According to Investigator Lee, Al Ingram recognized Petitioner but did not
know his name; Ingram knew only that he had seen him around town and in the
neighborhood conflicts. Ingram subsequently identified Petitioner from a photo
lineup and named him as the shooter.

In the meantime, Petitioner remained at large. Investigator Lee completed a
fugitive form requesting the assistance of the United States Marshals Service, and
Officer Cumbee subsequently arrested Petitioner on September 9, 2008. The
Georgetown County grand jury later indicted Petitioner for murder and assault and
battery with intent to kill (ABWIK).

At Petitioner's trial began before Judge Benjamin H. Culbertson, the State
presented evidence showing Tisdale and Ingram, along with several others from
their westside neighborhood, were at a nightclub on the night of the shooting.
Ingram and Tisdale saw Petitioner from a distance and followed him as he walked
away from a group of westside men. While the two men were following him,
Petitioner turned and fired a gun several times, injuring Ingram and killing Tisdale.

The State also elicited testimony about prior fights between Ingram and Petitioner
and between the rival neighborhoods. Both Ingram and Petitioner testified as to
their involvement in a physical dispute about one year prior to the shooting.
Ingram admitted he participated in scuffles with Petitioner's neighborhood two and
four days prior to the shooting; however, he maintained no weapons were involved
on those occasions. Ingram claimed Petitioner was not present during the fight
four days before the shooting and maintained he and Petitioner had not fought or
threatened each other since the altercation the previous year.

Petitioner also recalled incidents between the rival neighborhoods, including
lynchings and jumpings. However, Petitioner's testimony about the more recent
encounters differed from Ingram's—Petitioner claimed he and Ingram indeed were
involved in the fight four days before the shooting. He further noted he saw
Ingram again two days before the shooting.

Additionally, both the State and Petitioner presented evidence regarding the
moments leading up to the shooting. Ingram testified he saw Petitioner arguing
with two or three people from Ingram's westside neighborhood and that as he
approached Petitioner, he heard people say "there goes Al, there goes Al," which
Ingram interpreted as an encouragement to fight. When Petitioner walked away
from the first group of westside men, Ingram and Tisdale followed ten to fifteen
feet behind him. 1 Ingram saw Petitioner turn and fire his weapon three or four
times, but he did not see Petitioner with a gun prior to the shots. Ingram testified
that he had no weapon, did not see Tisdale pull a weapon, and denied that he and
Tisdale followed or yelled at Petitioner. Ingram further noted no other men from
the rival neighborhoods were fighting the night of the shooting.

Jamar Mitchum, Tisdale's brother, also saw Petitioner that night. He heard no
arguments or fights that evening but did see a few people near Petitioner. Mitchum
testified that when Petitioner walked away from the area where Ingram and Tisdale
were standing, Ingram and Tisdale followed behind him. He acknowledged he did
not see the shooting; however, he heard three or four gunshots. He did not see
Petitioner or anyone else with a weapon that night.

Just prior to the shooting, Craig Jackson was outside Carnell's Bar and Grill taking
a break from work when he saw approximately ten men, including Tisdale,
standing around outside. The men were not loud or rowdy, but Jackson heard
someone say "[t]hat's Dominic right there" before Tisdale and Ingram walked
toward Petitioner. When Tisdale and Ingram were approximately three feet behind
Petitioner, Jackson saw Petitioner turn and start shooting. He did not hear
Petitioner say anything and did not see any weapon other than Petitioner's gun.

1
Ingram claimed he had no intention of fighting Petitioner that night.
Jackson testified he watched as Tisdale and Ingram walked away because he
believed a fight would ensue.

Leron Gardner was with Petitioner the night of the shooting. He testified Ingram
and Tisdale were standing in front of Carnell's as he and Petitioner walked past.
According to Gardner, the group "just rushed up on us out of nowhere out of the
blue" so Petitioner took off running. Gardner noted he was scared after Ingram and
Tisdale chased after Petitioner. Gunshots followed after Petitioner ran down a side
street, but Gardner could not see what happened. He did not see Ingram or Tisdale
with a weapon.

Petitioner testified he received a call from his ex-girlfriend and had an "iffy" or
"messed up feeling that something was going to happen" the night of the shooting.
Despite his reservations, Petitioner and Gardner went out that night. Petitioner
admitted he showed Gardner a gun, which he said he bought for protection because
he was scared of Ingram due to the escalating situation between the two men. He
explained that when he saw the westside group, he kept walking to avoid any
confrontation, but he became scared when the men confronted him. Petitioner
believed he was going to be jumped because the group formed a semi-circle around
him, and one flagged down Tisdale and Ingram to tell them he was there. As
Petitioner walked away, he heard someone come up behind him and ask, "What's
up now?" Petitioner then turned around and saw the two men approximately three
feet from him. When Petitioner saw Ingram reach toward his waist, he believed
Ingram was reaching for a gun, so he pulled his own weapon, shot two or three
times, and fled. Petitioner maintained he did not provoke Tisdale or Ingram that
night. He noted he was already scared of Ingram due to their confrontation two
days earlier, the escalating violence between the rival neighborhoods, and Ingram's
reputation for carrying a gun. He further acknowledged his varying and
contradictory statements to police after the shooting.

The trial court instructed the jury on murder, ABWIK, voluntary manslaughter,
assault and battery of a high and aggravated nature (ABHAN), and self-defense.
Trial counsel did not object to these instructions, and the charge conference was
not on the record. After asking several questions and deliberating for nine hours
over two days, the jury reported an impasse and the court gave an Allen 2 charge.
Two and a half hours later, the jury found Petitioner guilty of the lesser-included
offenses of ABHAN and voluntary manslaughter. The trial court sentenced

2
Allen v. United States, 164 U.S. 492 (1896).
Petitioner to thirty years' imprisonment for voluntary manslaughter and ten years'
imprisonment for ABHAN, to run concurrently.

Following a timely appeal, this court affirmed Petitioner's convictions and
sentence. State v. Leggette, Op. No. 2012-UP-203 (S.C. Ct. App. filed March 28,
2012). The supreme court denied the petition for a writ of certiorari in Petitioner's
direct appeal.

Petitioner subsequently filed an application for PCR, claiming ineffective
assistance of counsel and "constitutional and statutory violation[s]." At his PCR
hearing, Petitioner testified "there were amended stipulations that did not meet
murder" and stated murder and voluntary manslaughter were "two different things"
based "on the same acts." The State objected to Petitioner's "legal" testimony, and
PCR counsel responded that Petitioner was trying to explain his understanding of
the indicted offenses versus the charges on which the jury convicted him. The
PCR court allowed Petitioner to address his belief that counsel was ineffective
based on a misunderstanding of the law and due to "discrepancies" between the
indicted offenses and the jury's verdict. Petitioner admitted trial counsel explained
his initial charges but stated he "found out there were some stipulations that were
not [conducive] with what [he was] . . . found guilty of." Petitioner also believed
his voluntary manslaughter conviction did not warrant a thirty-year sentence.3

Petitioner further asserted trial counsel was ineffective in failing to call a character
witness, whom he argued "would have proved to the courts that law enforcement
was creating perjury when they were on the stand, because there were altercations
that were going on since 2006." In light of this history, Petitioner believed the
State's witnesses falsely portrayed the incident as an ambush killing. Petitioner set

3
Trial counsel addressed the thirty-year sentence during his testimony at the PCR
hearing, explaining, "If you're convicted, he (the trial judge) to my experience—if
you're convicted at trial, to my experience he basically gives you every day he
can." However, upon further questioning, trial counsel admitted he recalled the
trial court stating during sentencing that "the biggest problem [the court had] with
[Petitioner's] case is the fact that with [his] prior record by federal law [he was]
prohibited from owning a firearm. In spite of that[, he] went and [he] purchased
one illegally and then [he] carried it down there that night."
forth a litany of other areas in which he believed trial counsel was ineffective,
including the failure to request a charge of involuntary manslaughter. 4

Trial counsel testified he and Petitioner discussed the indictments and the
possibility that the jury could find him guilty of a lesser-included offense. In trial
counsel's opinion, the State failed to disprove self-defense or establish Petitioner's
guilt beyond a reasonable doubt. He noted the jury deliberated for an "inordinate
length of time" and likely reached a compromise verdict. Trial counsel believed he
presented sufficient evidence of self-defense but questioned whether his jury
charge requests were as strong as they would be in his current practice. Although
trial counsel specifically referenced an instruction regarding Petitioner's right to act
on appearances, he couched this concern as a "vague recollection." Neither the
State nor PCR counsel asked trial counsel about the submission of voluntary
manslaughter to the jury as a lesser-included offense or whether this was a legal
strategy he discussed with Petitioner.

The PCR court denied relief and dismissed Petitioner's application, finding trial
counsel was not ineffective in failing "to object to [Petitioner's] conviction for
voluntary manslaughter." The PCR court found Petitioner failed to offer any
support for his argument that voluntary manslaughter should not have been
charged and noted it appeared Petitioner did "not recognize it as a lesser-included
offense of murder." The court further concluded the record demonstrated "the
voluntary manslaughter instruction was appropriate and supported by the facts"
and found trial counsel was not ineffective with regard to Petitioner's other claims.

Standard of Review

"In post-conviction proceedings, the burden of proof is on the applicant to prove
the allegations in his application." Speaks v. State, 377 S.C. 396, 399, 660 S.E.2d
512, 514 (2008). An appellate court will "defer to a PCR court's findings of fact
and will uphold them if there is evidence in the record to support them." Smalls v.
State, 422 S.C. 174, 180, 810 S.E.2d 836, 839 (2018). However, an appellate court
"review[s] questions of law de novo, with no deference to trial courts." Id. at 180–
81, 810 S.E.2d at 839.

4
Initially, Petitioner testified he believed trial counsel should have requested a
charge of voluntary manslaughter, but when PCR counsel asked him about this
more specifically, he responded, "I felt like he should have motioned for
involuntary manslaughter when it came to Tisdale."
Law and Analysis

I. Issue Preservation

At the outset of our analysis, we must contend with the imprecise allegations
asserted in Petitioner's PCR pro se application for relief. Although his brief to this
court ably sets out Petitioner's argument that trial counsel was ineffective in failing
to object to the voluntary manslaughter charge, the argument before the PCR court
was not so specific, leaving the PCR court to glean the deficiencies asserted from
the pro se application and hearing testimony. Petitioner's arguments before the
PCR court—that there were "discrepancies" between the indicted offenses and the
offenses for which he was convicted and that he did not understand he could be
convicted of an unindicted lesser-included offense—differ somewhat from his
argument to this court that the evidence at trial did not support the voluntary
manslaughter instruction. See, e.g., State v. Freiburger, 366 S.C. 125, 134, 620
S.E.2d 737, 741 (2005) (reiterating that an issue is not preserved for appellate
review when one ground is raised to the trial court and a different ground is raised
on appeal); Mangal v. State, 421 S.C. 85, 97, 805 S.E.2d 568, 574 (2017)
(recognizing that in most PCR cases, our supreme court has "refused to excuse the
pleading and issue-preservation requirements that apply in all civil cases").

While we recognize this initial lack of clarity lends weight to the State's
preservation argument, we address the merits here in light of the arguments made
before the PCR court, the PCR court's comprehensive analysis of the evidence
supporting the voluntary manslaughter instruction, the lack of an amended
application, and the failure of either party to ask trial counsel whether seeking the
lesser-included charge was a strategic decision. 5 See Atl. Coast Builders &

5
Neither party asked trial counsel about the voluntary manslaughter instruction,
and trial counsel was most concerned about the jury's rejection of self-defense and
the lengthy sentence imposed by the trial court. Because he was not asked the
question, trial counsel was not able to explain why he failed to object to the
instruction—if it was a failure at all. Because here, requesting a voluntary
manslaughter instruction would have been a legitimate strategic attempt to mitigate
the consequences of the sentence Petitioner faced on the murder charge if the jury
were to reject his theory of self-defense, as it ultimately did. A murder conviction
carries a sentence of thirty years to life (day-for-day) while the sentencing
exposure for voluntary manslaughter is two to thirty years computed at 85%. S.C.
Code Ann. § 16-3-20(A) (2015) (punishment for murder); § 16-3-50 (2015) ("A
person convicted of manslaughter . . . must be imprisoned not more than thirty
Contractors, LLC v. Lewis, 398 S.C. 323, 330, 730 S.E.2d 282, 285 (2012) ("While
it may be good practice for us to reach the merits of an issue when error
preservation is doubtful, we should follow our longstanding precedent and resolve
the issue on preservation grounds when it clearly is unpreserved.").

II. The PCR Court's Analysis of the Lesser-Included Offense

Petitioner contends the PCR court erred in finding trial counsel was not ineffective
in failing to object to the voluntary manslaughter instruction because the evidence
presented at trial did not support the instruction. He asserts the evidence did not
demonstrate he acted in the heat of passion because it did not show he was "out of
control as a result of his fear," "was acting under an uncontrollable impulse to do
violence," "lacked control over his actions," or was engaged in any argument or
altercation with Tisdale. In Petitioner's view, the State failed to set forth evidence
of sufficient legal provocation because although the evidence indicated Petitioner
believed Ingram was reaching for a gun, the evidence did not show Tisdale
committed an overt act or provoked Petitioner into firing his weapon. Petitioner
asserts he was prejudiced because he contends the jury likely would have found he
acted in self-defense had the voluntary manslaughter charge not been given and
believes the jury reached a compromise verdict after deliberating for almost twelve
hours and receiving an Allen charge. We disagree.

In order to establish a claim for ineffective assistance of counsel, a PCR applicant
must show: (1) counsel's performance was deficient because it fell below an
objective standard of reasonableness; and (2) there is a reasonable probability that,
but for counsel's errors, the result of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 687 (1984). "Failure to make the required
showing of either deficient performance or sufficient prejudice defeats the
ineffectiveness claim." Id. at 700.

"Whether a voluntary manslaughter charge is warranted turns on the facts. If the
facts disclose any basis for the charge, the charge must be given." State v. Starnes,
388 S.C. 590, 597, 698 S.E.2d 604, 608 (2010). "To warrant the court eliminating

years or less than two years."). Challenging the voluntary manslaughter instruction
at trial would have been a huge risk in light of Petitioner's very contradictory
statements to law enforcement and his decision to obtain an illegal firearm and go
out that night—armed—despite his escalating beef with Ingram and his
anticipation that "something was going to happen."
the charge of manslaughter, there must be no evidence whatsoever tending to
reduce the crime from murder to manslaughter." Id. at 596, 698 S.E.2d at 608.

Voluntary manslaughter is a lesser offense of murder not
by virtue of the elements test, but because it has
traditionally been considered a lesser offense of murder.
Therefore, a trial court must allow the jury to consider
the lesser offense of voluntary manslaughter if there is
evidence from which it could be inferred that a defendant
committed voluntary manslaughter rather than the greater
offense of murder.

State v. Burdette, 427 S.C. 490, 497, 832 S.E.2d 575, 579 (2019).

"[D]ue process requires that a lesser included offense instruction be given only
when the evidence warrants such an instruction." Cook v. State, 415 S.C. 551, 559,
784 S.E.2d 665, 669 (2015) (quoting Hopper v. Evans, 456 U.S. 605, 611 (1982)).
However, "[i]f there is any evidence from which it could be inferred the lesser,
rather than the greater, offense was committed, the defendant is entitled to such
charge." Starnes, 388 S.C. at 596, 698 S.E.2d at 608. "To justify charging the
lesser crime, the evidence presented must allow a rational inference the defendant
was guilty only of the lesser offense." State v. Sims, 426 S.C. 115, 130, 825 S.E.2d
731, 738 (Ct. App. 2019) (quoting State v. Geiger, 370 S.C. 600, 607, 635 S.E.2d
669, 673 (Ct. App. 2006)).

"Voluntary manslaughter is the unlawful killing of a human being in sudden heat
of passion upon sufficient legal provocation." Cook, 415 S.C. at 556, 784 S.E.2d
at 668 (quoting State v. Walker, 324 S.C. 257, 260, 478 S.E.2d 280, 281 (1996)).
"[B]oth heat of passion and sufficient legal provocation must be present at the time
of the killing." Starnes, 388 S.C. at 596, 698 S.E.2d at 608. "A defendant is not
entitled to a voluntary manslaughter charge merely because he was in a heat of
passion" or "merely because he was legally provoked." Id. at 596–97, 698 S.E.2d
at 608. Rather, "there must be evidence that the heat of passion was caused by
sufficient legal provocation." Id. at 597, 698 S.E.2d at 608.

"In determining whether the act which caused death was impelled by heat of
passion or by malice, all the surrounding circumstances and conditions are to be
taken into consideration, including previous relations and conditions connected
with the tragedy, as well as those existing at the time of the killing." State v.
Smith, 391 S.C. 408, 413, 706 S.E.2d 12, 15 (2011).
The sudden heat of passion need not dethrone reason
entirely or shut out knowledge and volition, but it must
be such as would naturally disturb the sway of reason and
render the mind of an ordinary person incapable of cool
reflection and produce what may be called an
uncontrollable impulse to do violence.

State v. Sams, 410 S.C. 303, 309, 764 S.E.2d 511, 514 (2014).

"[A] person's fear immediately following an attack or threatening act may cause
the person to act in a sudden heat of passion." Starnes, 388 S.C. at 598, 698
S.E.2d at 609. "However, the mere fact that a person is afraid is not sufficient, by
itself, to entitle a defendant to a voluntary manslaughter charge." Id. "[I]n order to
constitute 'sudden heat of passion upon sufficient legal provocation,' the fear must
be the result of sufficient legal provocation and cause the defendant to lose control
and create an uncontrollable impulse to do violence." Id. "Evidence that fear
caused a person to kill another person in a sudden heat of passion will mitigate a
homicide from murder to manslaughter—it will not justify it." Id. at 599, 698
S.E.2d at 609.

We acknowledge the question of whether Petitioner acted in a sudden heat of
passion is a close one. But instruction on a lesser offense is appropriate when "any
evidence" supports the lesser charge. Both Petitioner and Ingram testified as to
prior altercations between their respective neighborhoods, referencing separate
incidents two and four days prior to the shooting. Regarding the night of the
shooting, Petitioner and Gardner both testified they were surrounded in a
threatening manner by several westside men after they arrived at Carnell's, and
Petitioner feared he was about to be jumped when the group formed a semi-circle
around him. Both Petitioner and Gardner were scared. Several witnesses testified
people pointed Petitioner out to Ingram when Ingram and Tisdale arrived, and
Ingram believed people were encouraging him to fight Petitioner.

Witnesses also testified that as Petitioner either walked or ran away from the group
of westside men, Ingram and Tisdale followed closely behind him, with Gardner
testifying Ingram and Tisdale "went after" Petitioner immediately after he started
towards the Super Chic store. Jackson continued to watch after the men walked off
because he thought he was about the see a fight. Petitioner testified that when he
heard someone come up behind him and ask, "What's up now?" he turned and saw
Ingram and Tisdale just three feet from him. Petitioner recalled he was scared
when he saw Ingram reach toward his waist because Ingram was known to carry a
weapon, "So, I proceeded to pull my gun out and shot two, two to three times."
Petitioner admitted that Tisdale and Ingram running after him caused him to be
fearful and frightened; he was already scared and did not know what to do because
the prior incidents indicated hostilities between the opposing groups were
escalating.

Although Petitioner's testimony established the main provocation on the night of
the shooting came from Ingram, Tisdale accompanied Ingram in following
Petitioner and both were clearly part of the approaching, threatening westside
group. See State v. Locklair, 341 S.C. 352, 362, 535 S.E.2d 420, 425 (2000)
("Provocation necessary to support a voluntary manslaughter charge must come
from some act of or related to the victim in order to constitute sufficient legal
provocation." (emphasis added)); id. ("The provocation of the deceased must be
such as naturally and instantly produces in the mind of a person ordinarily
constituted the highest degree of exasperation, rage, anger, sudden resentment, or
terror, rendering the mind incapable of cool reflection." (second emphasis added)
(quoting State v. Franklin, 310 S.C. 122, 125, 425 S.E.2d 758, 760 (Ct. App.
1993))). In light of the prior troubles between Petitioner and the westside group
and the menacing actions of the various westside men on the night of the shooting,
we find evidence exists to support the PCR court's finding that trial counsel was
not deficient in failing to object to the voluntary manslaughter instruction as a
lesser-included offense. See, e.g., Starnes, 388 S.C. at 596, 698 S.E.2d at 608 ("If
there is any evidence from which it could be inferred the lesser, rather than the
greater, offense was committed, the defendant is entitled to such charge.").

Conclusion

Accordingly, the PCR court's order denying relief and dismissing Petitioner's PCR
application is

AFFIRMED.

GEATHERS, J., and HILL, A.J., concur.