State v. Manning

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State,       
Respondent,

v.

Kenji Manning,       
Appellant.

Appeal From Spartanburg County

John C. Hayes, III, Circuit Court Judge

Unpublished Opinion No. 2003-UP-248

Submitted January 29, 2003 - Filed April
2, 2003

AFFIRMED

Assistant Appellate Defender Robert  M. Dudek, of Columbia;
for Appellant.

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

PER CURIAM:  Kenji Manning was convicted
of murder and two counts of assault with intent to kill.  He received concurrent
sentences of forty years for murder and ten years for each assault charge. 
Manning appeals.

FACTS

Michael Bohn, his brother, and a friend were in line at a
McDonald’s drive-thru when they were approached by Manning and his brother. 
As Manning and his brother ran towards the car, Michael and his friends drove
out of the parking lot. [1]   After Manning and his brother chased the car
on foot for approximately twenty feet, they got into their own car and followed
the victims for four miles, arriving at Michael’s house.  Manning and his brother
drove up to the end of Michael’s driveway.  One of the victims testified that
when Manning and his brother reached the end of the driveway, “they stopped
and started firing.”  The Mannings’ car then sped away. 

While Michael’s brother and friend were not injured, Michael
suffered  a fatal shot to the head.  The two men then broke into Michael’s house
and called 9-1-1.  Both of the surviving victims testified that, while there
were rifles in the house,  neither they nor Michael were armed that day.  The
victims also testified that the numerous .22 rifle shells in Michael’s yard
were shells from an earlier target practice.
[2]  

Though Manning did not testify in his own defense, the State
introduced the voluntary statement he gave to the police on the day after the
incident.  In his signed, handwritten statement, Manning admitted to shooting
at the three victims on the evening in question.  Manning said he recognized
the victims as the individuals he had gotten into a fight with a couple of weeks
before.  He stated he and his brother attempted to talk to the victims at McDonald’s,
then followed them home in order to ask them why “they tried to gang [him].” 
Once outside Michael’s house, Manning stated that he fired his gun in the direction
of the victims only after he heard a gunshot.  Manning stated that he did not
want to shoot anyone, and that he was “trying to shoot back in the air at them
and scare them.”  Manning stated he fired “about 2 or 3 times in the air.” 

Several police officers and investigators testified that
no guns were found in Michael’s house or yard, and that the victims were unarmed. 
These individuals also testified that no shells or casings were found near the
front of the house.  Though there were .22 shells in the yard, most were along
a fence in the backyard.  The senior police investigator testified that, using
bullet holes found in a building on Michael’s property, they were able to determine
the bullets’ trajectory.  He testified the bullets had been fired from the driveway. 

After the defense rested its case, the trial judge denied
the defense’s request to charge self-defense, finding the elements had not been
satisfied.  The defense then requested a charge for involuntary manslaughter,
arguing Manning was “acting in his lawful capacity to defend himself.”  The
trial judge stated that, as he found a self-defense charge was not merited,
he would not charge the jury on involuntary manslaughter.  Manning was subsequently
convicted of all three charges and received an aggregate sentence of forty years
imprisonment. 

LAW/ANALYSIS

Manning argues the trial court erred in failing to
charge the jury on the law of (1) self-defense and (2) involuntary manslaughter.

I.       Self-Defense

“To warrant reversal, a trial judge’s refusal to
give a requested charge must be both erroneous and prejudicial.”  State v.
Burkhart, 350 S.C. 260, 261, 565 S.E.2d 298, 302 (2002).  “If there is any
evidence in the record to support self-defense, the issue should be submitted
to the jury.”  Id. at 260-61, 565 S.E.2d at 302.  A defendant is entitled
to a self-defense charge where the evidence shows that:  (1) he was without
fault in bringing on the difficulty; (2) he actually believed he was in imminent
danger of losing his life or sustaining serious bodily injury; and (3) a reasonably
prudent person would have entertained the same belief.  State v. Sullivan,
345 S.C. 169, 172-73, 547 S.E.2d 183, 184 (2001).   

Manning’s actions on the night of the shooting do
not satisfy the elements needed to justify a self-defense charge.  First, Manning
was not without fault in the events leading to Michael’s death.  Manning originally
approached the victims and chased them on foot out of the parking lot.  Manning
and his brother, while armed, then got into their car and chased the victims
back to Michael’s house more than four miles away.   Manning also admitted to
shooting in the direction of the victims.

Second, Manning cannot sustain a claim that he believed
he was in imminent danger of serious injury or death.  There was no evidence
that any of the three victims were armed at the time of the shooting or had
threatened Manning with a weapon of any kind.  Further, Manning traveled more
than four miles to confront the victims and was inside his car when he opened
fire.  As Manning was already in his vehicle, he could have avoided the alleged
“imminent danger” and left the scene. 

Third, a reasonably prudent person in Manning’s situation
would not have believed they were in imminent danger of serious injury or death. 
While Manning had a weapon, the victims were unarmed.  Rather than shooting
at the victims from inside his vehicle, Manning could have left the scene and
avoided the incident. 

Accordingly, the trial court did not err declining
to charge the jury on the law of self-defense.

II.      Involuntary Manslaughter

“To warrant reversal, a trial judge’s refusal to
give a requested charge must be both erroneous and prejudicial.”  State v.
Burkhart, 350 S.C. 260, 261, 547 S.E.2d 298, 302 (2002).  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.  See
State v. Chatman, 336 S.C. 149, 152, 519 S.E.2d 100, 101 (1999).

The events that transpired on the night of the
shooting do not satisfy either definition of involuntary manslaughter.  The
first definition is not satisfied because Manning, by firing several shots in
the direction of three people, was engaged in an unlawful activity that easily
could have, and did, result in death.  The second definition does not apply
in this case because Michael’s death did not occur while Manning was engaged
in a lawful activity.  As such, the evidence does not support a jury charge
on the law of involuntary manslaughter.  See State v. Chatman,
336 S.C. at 152, 519 S.E.2d at 101.

Further, Manning’s chief argument in support of a charge
for involuntary manslaughter is that he did not intend to shoot anyone, but
merely fired his gun into the air.  However, the supreme court has held on multiple
occasions that this scenario does not automatically merit a jury charge for
involuntary manslaughter.  See State v. Cooney, 320 S.C. 107,
112, 463 S.E.2d 597, 600 (1995) (“There is no error in the refusal to charge
the law of involuntary manslaughter when the defendant admitted intentionally
firing the gun, but claimed he only meant to shoot over the victim’s head.”);
see also Bozeman v. State, 307 S.C. 172, 414 S.E.2d 144 (1992);
State v. Craig, 267 S.C. 262, 227 S.E.2d 306 (1976). 

Accordingly, the trial court did not err declining
to charge the jury on the law of involuntary manslaughter.  

CONCLUSION

Based upon the foregoing, Manning’s convictions and
sentences are

AFFIRMED.

HEARN, C.J., GOOLSBY and SHULER, JJ., concur.

[1] Michael’s brother testified that he believed Manning was going to
retaliate for a fistfight that occurred between the two of them a couple of
weeks earlier. 

[2] Three individuals testified that the victims often had target practice
in Michael’s backyard.  One witness specifically stated that he used his .22
rifle in the backyard the day before the shooting.