Cook v. State
| Decision Date | 09 December 2015 |
| Docket Number | Appellate Case No. 2013–000366.,Nos. 27596.,s. 27596. |
| Citation | 784 S.E.2d 665,415 S.C. 551 |
| Parties | Clarence Kendall COOK, Petitioner, v. STATE of South Carolina, Respondent. |
| Court | South Carolina Supreme Court |
Appellate Defender, Kathrine H. Hudgins, of Columbia, for petitioner.
Attorney General, Alan McCrory Wilson, of Columbia, and Assistant Attorney General, Joshua L. Thomas, of Greenwood, for respondent.
A grand jury indicted Clarence Kendall Cook for murder, unlawful possession of a pistol, and possession of a weapon during the commission of a violent crime. After a jury trial, Cook was convicted of voluntary manslaughter and possession of a weapon during the commission of a violent crime. Cook filed a post-conviction relief ("PCR") application, which was dismissed after a hearing. Following the dismissal of his PCR application, Cook petitioned this Court for a writ of certiorari pursuant to White v. State, 263 S.C. 110, 208 S.E.2d 35 (1974). We granted certiorari to determine whether the trial court erred in charging the jury with the lesser-included offense of voluntary manslaughter. We reverse.
At the time of the incident that gave rise to this appeal, Cook and Charles Hayes ("Victim") lived in the Marlboro Court apartment complex in Marlboro County. Cook, who lived in the apartment above Victim, contended that Victim had constantly been berating him, calling Cook, inter alia, a "snitch" for testifying in a murder trial against an individual tied to Victim as well as for telling their landlord that Victim was allegedly selling drugs out of his apartment.
At approximately 4:00 p.m. on June 10, 2010, Cook, his girlfriend, and his cousin were on their way to the grocery store when Cook and Victim exchanged the following text messages:
At approximately 6:00 p.m. that evening, the three returned to the apartment complex to find Victim sitting outside on the porch. As they walked upstairs, Victim made a series of threatening comments directed at Cook echoing similar sentiments from the text messages he sent earlier that day. According to Cook, Victim was saying "you ain't nothin' but a snitch ass p* * *y n* * *a."; "I can get that n* * *a touched"; and, "look at him and his b*tch." While Cook admitted Victim's last comment was "enough to really strike [him] in [his] heart," Cook continued up the stairs without saying anything to Victim.
Once inside the apartment, Cook ate some watermelon, placed the watermelon rinds inside a plastic bag, grabbed his gun from under the couch, and went downstairs to discard the bag. According to Cook, once downstairs, he did not have a chance to get to the dumpster because Victim was approaching him, grimacing and threatening to shoot him in "broad daylight." Cook stated Victim had one of his hands in his back pocket, acting as if he had a gun and was going to pull it out and shoot Cook at any moment.1 At this time, Victim's nephew, Terrance Bridges, was approaching Cook in the opposite direction as if he was about to "jump" him. Cook and Victim then exchanged the following words:
Cook said he tried to keep walking down the sidewalk, but Victim kept cutting him off. According to Cook, Victim continued to approach Cook huffing, grimacing, and threatening to kill him. At that point, Cook said "the dude was coming up" and "before I knew it, I fired a shot." Cook said he then fired a second shot and ran. Both shots struck Victim in the face. When asked why he fired the second shot, Cook replied "to make sure he was gone." In his oral statement, Cook further explained: "I was terrified." "I wasn't taking any chances." "It was either me or him, man, it really was."
Bridges testified he saw Victim get up and walk over to Cook. He said "from there on they were just talking real softly." He stated he "could hardly tell it was an argument." Then Cook stepped back, pulled out a gun and shot Victim. According to Bridges, Cook then walked over Victim, did some kind of gesture, shot Victim again, and ran.
Victim's girlfriend, Kim Brown, was also outside at the time of the incident. At trial, Brown testified that once Cook came downstairs she saw Victim approach Cook and say The next thing she heard was a gunshot. After seeing Victim fall to the ground, Brown testified she saw Cook walk over Victim and shoot him again. According to Brown, Cook then dropped the bag and ran.
A grand jury indicted Cook for murder, unlawful possession of a pistol, and possession of a weapon during the commission of a violent crime. At trial, Cook claimed self-defense. At the close of the State's case, the State withdrew the unlawful possession of a pistol charge. At the close of the defense, the trial court, upon the State's request, and over Cook's objection, instructed the jury on the law of the lesser-included offense of voluntary manslaughter.2 After deliberations, the jury returned a verdict of guilty of voluntary manslaughter and guilty of possession of a weapon during the commission of a violent crime. The trial court sentenced Cook to twenty years' imprisonment and a consecutive, five-year sentence for possession of a weapon during the commission of a violent crime.
Cook filed a PCR application. After a hearing, the PCR judge denied relief and dismissed Cook's application. Cook then filed a petition for a writ of certiorari asserting the PCR judge erred in finding Cook was not entitled to a direct appeal pursuant to White v. State, 263 S.C. 110, 208 S.E.2d 35 (1974). We granted the petition and directed the parties to brief the issue of whether the trial court erred in charging the jury with the lesser-included offense of voluntary manslaughter when there was no evidence of the element of sudden heat of passion required for voluntary manslaughter.
"In criminal cases, the appellate court sits to review errors of law only." State v. Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006). "An appellate court will not reverse the trial judge's decision regarding a jury charge absent an abuse of discretion." State v. Commander, 396 S.C. 254, 270, 721 S.E.2d 413, 421–22 (2011). "An abuse of discretion occurs when the trial court's ruling is based on an error of law or, when grounded in factual conclusions, is without evidentiary support." Clark v. Cantrell, 339 S.C. 369, 389, 529 S.E.2d 528, 539 (2000). "The trial court must determine the law to be charged based on the evidence at trial." State v. Smith, 363 S.C. 111, 115, 609 S.E.2d 528, 530 (Ct.App.2005). "When the record contains no evidence to support it, a voluntary manslaughter jury charge should not be given." Id.
Cook asserts the trial court erred in charging the jury with the lesser-included offense of voluntary manslaughter because there was no evidence that he was acting in the sudden heat of passion. We agree.
"Voluntary manslaughter is the unlawful killing of a human being in sudden heat of passion upon sufficient legal provocation." State v. Walker, 324 S.C. 257, 260, 478 S.E.2d 280, 281 (1996). "Both heat of passion and sufficient legal provocation must be present at the time of the killing." Id. At trial, Cook conceded that there was sufficient legal provocation. Therefore, the narrow issue on appeal is whether Cook was acting in the sudden heat of passion when he killed Victim.
"Whether or not the facts constitute a sudden heat of passion is an appropriate question for the court." State v. Niles, 412 S.C. 515, 522, 772 S.E.2d 877, 880 (2015). This Court has defined the sudden heat of passion as that which:
upon sufficient legal provocation, ... mitigates a felonious killing to manslaughter, while it need not dethrone reason entirely, or shut out knowledge and volition, 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, according to human experience, may be called an uncontrollable impulse to do violence.
Id. (citing State v. Walker, 324 S.C. 257, 260, 478 S.E.2d 280, 281 (1996) ).
We do not believe the facts of this case support a finding that Cook shot Victim in the sudden heat of passion. Here, Cook stated he tried to walk away from Victim, but Victim kept cutting him off. The fact that Cook was trying to walk away from the conflict does not suggest Cook was incapable of cooling off. In addition, Bridges testified that Cook and Victim were talking softly and that he could hardly tell they were arguing. This too does not suggest that Cook was acting under an uncontrollable impulse to do violence as surely if one was so enraged to kill, one would not be talking softly with the victim right before the act. Further, at no point during Cook's statement does he indicate he lacked control over his actions. Accordingly, we believe the facts of this case suggest Cook shot Victim either with malice or in self-defense.
In finding otherwise, the trial court relied on the following facts: (1) that Cook was in fear; (2) Cook shot Victim twice; and (3) Cook's statement "before I knew it, I fired a shot." We believe these facts, without more, are insufficient to establish Cook was acting in the sudden heat of passion.
In State v. Starnes, we affirmed the principle that "to warrant a voluntary manslaughter...
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