State v. Belcher

• Decision Date: 12 October 2009
• Docket Number: No. 26729.,26729.
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Johnny Rufus BELCHER, Appellant.

685 S.E.2d 802

The STATE, Respondent, v. Johnny Rufus BELCHER, Appellant.

No. 26729.

Supreme Court of South Carolina.

Heard May 14, 2009.

Decided October 12, 2009.

C. Rauch Wise, of Greenwood, and James E. Bryan, Jr., of Laurens, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, Senior Assistant Attorney General William Edgar Salter, III, of Columbia, and Solicitor Jerry W. Peace, of Greenwood, for Respondent.

Justice KITTREDGE.

Appellant Johnny Rufus Belcher was convicted of murder and possession of a firearm during the commission of a violent crime following the shooting of his cousin, Fred Suber. The jury was charged with the offenses of murder and voluntary manslaughter, as well as self-defense. Of special significance was the jury instruction that permits an inference of malice from the use of a deadly weapon.

It has long been the practice for trial courts in South Carolina, as sanctioned by this Court, to charge juries in any murder prosecution that the jury may infer malice from the use of a deadly weapon. We granted Belcher's petition to argue against this precedent. Having carefully scrutinized the historical antecedents to this permissive inference, we hold today that a jury charge instructing that malice may be inferred from the use of a deadly weapon is no longer good law in South Carolina where evidence is presented that would reduce, mitigate, excuse or justify the homicide. We therefore reverse Belcher's convictions and remand for a new trial.

I.

Fred Suber was shot and killed during a cookout with family and friends. Those in attendance included Suber's ex-girlfriend and Hansel Brown, whom Suber believed was the father of his ex-girlfriend's child. Suber confronted Brown and an argument ensued. Belcher interceded.

The testimony presented at trial revealed conflicting versions of the event. The State's view tended to show that after Belcher confronted Suber, Belcher retrieved a gun from Brown and, with no justification or excuse, fatally shot Suber. Conversely, Belcher presented evidence that after the confrontation between Suber and Brown was seemingly resolved, Suber without provocation confronted him (Belcher) with a gun. Belcher fled to Brown's truck where he retrieved a gun from Brown and fired it at Suber while he (Suber) was approaching, gun in hand.

The jury was instructed that "malice may be inferred by the use of a deadly weapon" and convicted Belcher of murder and the related firearm charge. This direct appeal is before us pursuant to Rule 204(b), SCACR, certification.

II.

A.

Because the evidence presented a jury question on self-defense, Belcher asserts it was error to charge the jury that it may infer malice from the use of a deadly weapon. We agree.

The trial court charged the jury, in part, as follows:

Murder is the unlawful killing of another person with malice aforethought either expressed or inferred.... Malice can ... be inferred from facts and circumstances that are proven by the State. Malice may be inferred by the use of a deadly weapon. But these inferences are evidentiary only and may be considered by you along with all the other evidence and given such weight, if any, as you determine that they should receive.

The charge given by the trial court has heretofore been considered textbook. Yet when confronted with Belcher's challenge, the learned and experienced trial court judge expressed "concern about [the charge] rising to a charge on the facts."

Where a jury is asked to consider a lesser included offense of murder or a defense, Belcher asserts the permissive inference charge violates our common law and our constitutional prohibition against charging juries on the facts.¹ We elect to decide this appeal solely under the common law. Relying on Belcher's common law challenge, we conclude that our modern day usage of this jury charge has strayed from this Court's original jurisprudence.

B.

We begin by reviewing the progression of the jury charge in this state.²

We begin with State v. Hopkins, 15 S.C. 153 (1881). Hopkins was convicted of murder. He pled accident, and objected to the following "use of a deadly weapon" implied malice instruction: "In every case of intentional homicide the presumption of malice arises, and the fact of killing intentionally by the use of a deadly weapon being shown in any case, the burden of proof is thereby imposed upon the defendant to rebut such presumption, unless the facts and circumstances shown in the testimony in behalf of the [S]tate incidentally rebut it."³ Id. at 156. Under the circumstances, the charge was error, and Hopkins was granted a new trial.

Hopkins cited to the rule that "[t]here is no doubt whatever of the isolated proposition that the law presumes malice from the mere fact of homicide, but there are cases as made by the proof to which the rule is inapplicable." The Court explained that, "[w]hen all the circumstances of the case are fully proved there is no room for presumption. The question becomes one of fact for the jury, under the general principle that he who affirms must prove, and that every man is presumed innocent until the contrary appears." Id. at 156-57 (citing State v. Coleman, 6 S.C. 185 (1875)). Hopkins then quoted at length from Coleman:

This presumption is not applicable when the facts and circumstances attending the homicide are disclosed in evidence so as to draw a conclusion of malice or want of malice, as one fact, from the evidence. Presumptions of this class are intended as substitutes in the absence of direct proof, and are in their nature indirect and constructive. The best evidence of the state of mind attending any act is what was said and done by the person whose motive is sought for. The motive that impels to the taking of human life is no exception to this rule, and the importance of the consequences that depend on the accurate ascertainment of its nature in such cases, affords the strongest ground for limiting indirect and constructive proofs to the narrow grounds within which they belong. It appears, from the record before us, that the proofs embraced a statement of the origin of the difficulty between the parties; their conduct towards each other down to the time of the killing, and, to some extent, the subsequent conduct of the prisoner. When the evidence is of such a character, it must be presumed to be sufficient to enable the jury to draw from it a conclusion of fact one way or the other. Under such circumstances there was no necessity, and, therefore, no propriety in resorting to any general presumption arising by operation of law. When the circumstances preceding and attending an act of this character are full, as in the present case, the prisoner is entitled to the benefit of any doubt that may arise, and cannot be deprived of such benefit by any presumption of guilt arising by operation of law from the naked fact of homicide. A charge may be erroneous, although the propositions of which it is composed may severally be conformable to recognized authority, if in its scope and bearing in the case it was likely to lead to a misconception of the law.

Id. at 157-58 (quoting Coleman, 6 S.C. at 186-87).

We next review the case of State v. Levelle, 34 S.C. 120, 13 S.E. 319 (1891), overruled on other grounds by State v. Torrence, 305 S.C. 45, 69 n. 5, 406 S.E.2d 315, 328 n. 5 (1991). Levelle killed his wife and was convicted of murder. He appealed on several grounds, including a challenge to the State's requested jury instruction that "malice will be inferred from the use of a deadly weapon." Although that precise charge was not given, the Court addressed the issue, noting:

[E]ven if it be assumed that the judge must be regarded as adopting the language used in the solicitor's ninth request, quoted above, we still think there was no error. In 2 Bish. Crim. Law[ ] § 680, it is said: "As general doctrine, subject, we shall see, to some qualification, the malice of murder is conclusively inferred from the unlawful use of a deadly weapon, resulting in death." And to the same effect, see 3 Greenl. Ev. §§ 145, 147. This doctrine has also been recognized in this state. See State v. Toohey, [2 Rice Dig. 105 (1819)]; State v. Ferguson, [20 S.C.L. (2 Hill) 619 (1835)]; State v. Smith, [33 S.C.L. (2 Strob.) 77 (1847)]. It is true that the inference of malice drawn from the use of a deadly weapon may be rebutted by testimony, but, in the absence of any such testimony, malice may be and is inferred from the use of a deadly weapon causing death.

Levelle, 34 S.C. at 127, 13 S.E. at 320 (emphasis added).

Levelle's reliance on section 680 of 2 Bishop Criminal Law, a criminal law treatise, is instructive but not entirely complete. It is our view that Levelle considered and incorporated the referenced "qualification" when it concluded that, "[i]t is true that the inference of malice drawn from the use of a deadly weapon may be rebutted by testimony, but, in the absence of any such testimony, malice may be and is inferred from the use of a deadly weapon causing death." Id. at 127, 13 S.E. at 320 (emphasis added). The recognition that some facts will not permit the inference of malice from the use of a deadly weapon lies at the heart of the qualification.

More specifically, Bishop's criminal law treatise ties the qualification to the proposition that malice is inferred from the "unlawful use of a deadly weapon." The malice inference would, therefore, have no place where the use of a deadly weapon was "lawful." As we shall see, the significant import of the qualifying term "lawful" was effectively abandoned in our subsequent decisions.

Levelle never expanded upon the "in the absence of any such testimony [rebutting malice]" qualification, perhaps because it was not necessary to the disposition of the appeal. We are persuaded, though, that this qualification relates to homicide...