State v. Bowers

• Decision Date: 07 August 2019
• Docket Number: Opinion No. 5677,Appellate Case No. 2014-002176
• Citation: 428 S.C. 21,832 S.E.2d 623
• Parties: The STATE, Respondent, v. Joseph BOWERS, Appellant.
• Court: South Carolina Court of Appeals

428 S.C. 21

832 S.E.2d 623

The STATE, Respondent,

v.Joseph BOWERS, Appellant.

Appellate Case No. 2014-002176

Opinion No. 5677

Court of Appeals of South Carolina.

Heard October 10, 2018

Filed August 7, 2019

Rehearing Denied September 20, 2019

Chief Appellate Defender Robert Michael Dudek, of Columbia, for Appellant.

Attorney General Alan McCrory Wilson, Assistant Attorney General Mark Reynolds Farthing, both of Columbia; and Solicitor Isaac McDuffie Stone, III, of Bluffton, all for Respondent.

GEATHERS, J.:

Late night verbal altercations at a local club escalated to a shootout, resulting in the death of two people, Dante Bailey and Michael Morgan, and the injury of two others, Robert Goodwine and Richard Green. Appellant Joseph Bowers was convicted for the (1) voluntary manslaughter of Michael Morgan, (2) assault and battery of a high and aggravated nature of Richard Green, and (3) possession of a weapon during the commission of a violent crime. Bowers argues the circuit court erred by instructing the jury on mutual combat and voluntary manslaughter because there is no evidence to support either charge. We reverse and remand for a new trial.

FACTS/PROCEDURAL HISTORY

On June 21, 2012, Stanley Humphries and Dante Bailey were playing pool at the Sand Dollar in St. Helena. After the Sand Dollar closed for the night, the two left and went to Bailey's house to pick up some cigarettes before heading to a local club, Midnight Soul Patrol. Appellant met Humphries and Bailey at Bailey's house, and the group rode in Humphries' car to the club. The group went inside the club but was inside for only a few minutes before walking outside to smoke. Arthur Chaplin and a group of men approached Bailey, and Bailey and Chaplin started arguing.

Humphries testified the argument was only verbal and ended soon after it started. Other witnesses testified similarly. Mangum Smalls stated he saw Bailey and Chaplin arguing and guns were flashed, then Derrick Grant got between the two and defused the situation. Joe Pope testified he saw the argument between Bailey and a group of men and it was defused quickly. Alvin Wilson, the DJ at the club, noticed the crowd was moving outside and when he followed, he saw the altercation. As a result, Wilson declared the party over and walked back inside.

After the altercation was abated, someone suggested leaving, and Humphries, Bailey, and Appellant walked back to Humphries' car, attempting to leave. Meanwhile, Pope turned to walk into the club and saw a separate altercation between Lucas Morgan and Irvin Smalls, unrelated to Bailey and Chaplin's altercation. According to Pope, Irvin was trying "to get to Lucas," but Lucas had a gun. At that time, Humphries, Appellant, and Bailey had returned to Humphries' car, but Bailey was standing outside of the car directing Humphries out of the parking spot to avoid hitting nearby obstacles.

Then the gunshots began, precipitated by Michael Morgan inexplicably firing a flare gun.¹ Bailey was shot. Humphries and Appellant exited the car and Bailey was on the ground, having been hit by a bullet that perforated his heart and a lung. Mangum Smalls testified that he saw Appellant trying to help put Bailey inside of a car and noticed Appellant was holding Bailey's gun.² Richard Green, who had his back to the club and was outside of the club owner's nearby house, heard the first shot and attempted to flee. He was shot in the back and paralyzed from the waist down. Robert Goodwine walked outside of the club as the gunshots began and saw Green lying on the ground. Goodwine saw Lucas and Bailey shooting and attempted to flee towards the main road when Lucas "came around the corner shooting," hitting Goodwine in his left calf. Pope testified that shortly after the shots began, a group of four or five men ran towards Michael Morgan shooting while Michael was standing over Green with a flare gun. Michael was then hit by a bullet, but no one saw who shot Michael. The bullet struck Michael in his hip, perforated his iliac vein, and he died hours later. All of the injuries were the result of "through and through" shots, meaning a projectile passed completely through the body.

Once the shooting stopped, Pope called 911. Paul Adam, a deputy with the Beaufort County Sheriff's Office, was dispatched to the club and arrived thirteen minutes later. Deputy Adam collected evidence—including spent shell casings, a Glock handgun, and a flare gun—and turned the evidence over to the lead investigator, Adam Zsamar. Deputy Adam also told Investigator Zsamar that three people had guns—Bailey, Lucas Morgan, and Lewis Johnson. Investigator Zsamar processed the scene and located two sets of different brand nine–millimeter shell casings, one set clustered near where Lucas Morgan was seen firing and the other set clustered near where Appellant and Bailey were placed. The day after the shooting, Investigator Zsamar executed a search warrant at Lucas Morgan's residence and found the same brand of ammunition that was clustered near where witnesses placed Lucas Morgan. Further investigation also revealed that the Glock recovered from the scene was registered to Bailey.

Jeremiah Fraser, an investigator with the Beaufort County Sheriff's Office, interviewed Appellant on the day after the shooting. Appellant's version of events was similar to Humphries' version. Appellant told investigators that he was at the club with Bailey and Bailey got into an argument with someone. Appellant said he pulled Bailey away from the argument and towards the car so they could leave but then "shots started ringing out towards them," and that's when Bailey pulled out his gun, stepped out from behind the car, and was shot. Appellant denied shooting a gun, and his clothes were collected for gunshot residue testing. Also, Appellant's hands were swabbed for gunshot residue, but the swabs were never tested because they were collected outside of the six-hour window in which gunshot residue can be expected to be found on living tissue, according to expert testimony. Appellant was jailed after the interview, and his shirt and shorts later tested positive only for lead particles.³ According to one of the South Carolina Law Enforcement Division (SLED) agents, authorities did not test Michael Morgan or Dante Bailey for gunshot residue because they were classified as victims. After being jailed, Appellant chose to speak with investigators again and said that someone else was shooting. While awaiting trial, Appellant had a conversation with his girlfriend on a prison telephone that recorded him saying "I ain't killed the boy, I only shot the boy."

Appellant was tried for the murders of his friend Dante Bailey and Michael Morgan, the attempted murders of Robert Goodwine and Richard Green, and possession of a weapon during the commission of a violent crime. However, after trial but before jury deliberations began, the State withdrew the murder indictment for Bailey and proceeded on the remaining indictments.⁴ Over Appellant's objection, the circuit court instructed the jury on mutual combat and told the jury the doctrine applied only to Michael Morgan's murder. The circuit court also instructed the jury on the lesser-included offenses of voluntary manslaughter and assault and battery of a high and aggravated nature. Appellant objected to the voluntary manslaughter jury instruction. Additionally, Appellant requested a self-defense instruction that was also given.

Ultimately, the jury found Appellant guilty of the voluntary manslaughter of Michael Morgan, the assault and battery of a high and aggravated nature of Richard Green, and possession of a weapon during commission of a violent crime. This appeal followed.

ISSUES ON APPEAL

1. Did the circuit court err by instructing the jury on mutual combat?

2. Did the circuit court err by instructing the jury on voluntary manslaughter?

STANDARD OF REVIEW

"In criminal cases, the appellate court sits to review errors of law only." State v. Wharton , 381 S.C. 209, 213, 672 S.E.2d 786, 788 (2009). "In general, the trial judge is required to charge only the current and correct law of South Carolina ... and the law to be charged to the jury is determined by the evidence at trial." State v. Taylor , 356 S.C. 227, 231, 589 S.E.2d 1, 3 (2003) (citation omitted). Unless justified by the evidence, an instruction should not be given because it can confuse the jury. State v. Commander , 384 S.C. 66, 75, 681 S.E.2d 31, 36 (Ct. App. 2009), aff'd as modified , 396 S.C. 254, 721 S.E.2d 413 (2011). But an instruction must be erroneous and prejudicial to warrant reversal. Taylor , 356 S.C. at 231, 589 S.E.2d at 3.

LAW/ANALYSIS

I. Issue Preservation

As a threshold matter, the State contends the jury instruction issue is not preserved for appellate review and Appellant waived his objection by failing to raise specific grounds. Specifically, the State argues that after the off-the-record charge conference, Appellant "generally objected" to the jury instruction but "did not provide any grounds in support of those objections" during the on-the-record charge conference. We disagree.

Issue preservation rules are "meant to enable the lower court to rule properly after it has considered all relevant facts, law, and arguments." I'On, L.L.C. v. Town of Mt. Pleasant , 338 S.C. 406, 422, 526 S.E.2d 716, 724 (2000). But issue preservation is not a "gotcha" game. Atl. Coast Builders & Contractors, LLC v. Lewis , 398 S.C. 323, 329, 730 S.E.2d 282, 285 (2012). Instead of being hyper-technical, we approach preservation with a practical eye. Herron v. Century BMW , 395 S.C. 461, 470, 719 S.E.2d 640, 644 (2011). Once a party objects to a jury charge and, after opportunity for discussion, is denied on the record, no further action is necessary in order to preserve the issue for appeal. State v. Johnson , 333 S.C. 62, 64 n.1, 508 S.E.2d 29, 30 n.1 (1998). The failure to raise specific grounds for an objection will not prevent the appellate court from...