State v. Burriss

• Decision Date: 16 February 1999
• Docket Number: No. 24903.,24903.
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Demetric BURRISS, Appellant.

334 S.C. 256

513 S.E.2d 104

The STATE, Respondent, v. Demetric BURRISS, Appellant.

No. 24903.

Supreme Court of South Carolina.

Heard January 8, 1997.

Decided February 16, 1999.

Daniel T. Stacey, Chief Attorney, and Joseph L. Savitz, III, Deputy Chief Attorney, of South Carolina Office of Appellate Defense, of Columbia, for appellant.

Charles Molony Condon, Attorney General, Donald J. Zelenka, Assistant Deputy Attorney General, of Columbia; and George M. Ducworth, Solicitor, Tenth Judicial Circuit, of Anderson, for respondent.

WALLER, Justice:

A jury convicted Appellant Demetric Burriss of murder, possession of a firearm during the commission of a violent crime, and possession of a firearm by a person under the age of twenty-one. Appellant contends the trial judge erred in refusing to instruct the jury regarding the law of accident and involuntary manslaughter. We agree and reverse.

FACTS

The facts, viewed in the light most favorable to Appellant, present the following scenario. On the afternoon of May 31, 1994, Appellant went to visit a friend at his apartment. Several other people were there when he arrived, including Kenneth Scott, the victim in this case, and James Pickens. Kenneth and James were smoking "lace," marijuana cigarettes laced with crack cocaine.

While Appellant was waiting for his friend to come out of the apartment, Kenneth asked him if he had any drugs. When Appellant told him he did not, Kenneth stated he would send James down the block to get some and if James was unsuccessful, they would rob Appellant. At the time, Appellant had one hundred dollars on his person. James went down the block and returned two or three minutes later without drugs. Kenneth and James then attacked Appellant, throwing him on the ground and trying to get into his pockets. Appellant drew a gun from his pocket and shot twice into the ground,¹ causing both Kenneth and James to back away. Kenneth ran inside the house and James stayed near Appellant in the yard. As Appellant was attempting to get off the ground, Kenneth came to the back door of the apartment, standing partially behind a screen door, and James again began advancing towards Appellant. Appellant picked up his gun and it went off, killing Kenneth.

Appellant was sixteen years old at the time this incident took place.

ISSUES

I. Did the trial judge err in refusing to instruct the jury on the law of accident?

II. Did the trial judge err in refusing to instruct the jury on the law of involuntary manslaughter?

DISCUSSION

I. Accident

Appellant argues the trial judge should have instructed the jury on the law of accident. We agree.

For a homicide to be excusable on the ground of accident, it must be shown the killing was unintentional, the defendant was acting lawfully, and due care was exercised in the handling of the weapon. State v. Goodson, 312 S.C. 278, 440 S.E.2d 370 (1994). The dispositive issue in this case is whether there was evidence Appellant was acting lawfully when the fatal shooting occurred.² The trial judge found Appellant was not acting lawfully because he was in unlawful possession of a firearm. Appellant argues he armed himself in self-defense but the fatal shot occurred when the gun fired accidentally. We have previously addressed similar cases involving claims a gun accidentally discharged while the shooter was armed in self-defense. For example, in State v. McCaskill,³ the defendant (McCaskill) and the victim were involved in a domestic quarrel in McCaskill's home. McCaskill, being afraid, armed herself with a gun, which she claimed subsequently fired by accident. We held the trial judge's separate jury instructions on self-defense and accident were insufficient when the defendant claimed she armed herself in self-defense but the shooting occurred accidentally:

In effect, the trial judge's failure to instruct the jury that appellant had the right to have the gun in her possession to protect herself in the situation where the shooting occurred accidentally conveyed to the jury that her willful act of arming herself foreclosed the defense of an accidental shooting.

Where a defendant claims that he armed himself in selfdefense, while also claiming that the actual shooting was accidental, this combination of events can "place the shooting in the context of self-defense."

[A] homicide is excused when caused by the discharge of a gun ... where the accused is lawfully acting in self-defense and the victim meets death by accident, through the unintentional discharge of a gun or the like.

Id. at 259, 387 S.E.2d at 269-70 (internal citations omitted). We held the trial judge erred in "failing to charge that if appellant lawfully armed herself in self-defense because of a threat to her safety created by the decedent, and the gun accidentally discharged, the jury would have to find her not guilty." Id. at 259, 387 S.E.2d at 270.

The rule in McCaskill is abundantly supported by case law from other jurisdictions. "Where the defense of excusable homicide by misadventure is relied on, the principles of self-defense may be involved, not for the purpose of establishing defense of self, but for the purpose of determining whether accused was or was not at the time engaged in a lawful act; and it has been held that in such case the right, but not the law, of self-defense is invoked." 40 C.J.S. Homicide § 111(C) (1991). See also Jabich v. People, 58 Colo. 175, 143 P. 1092 (1914) (en banc); State v. Phillips, 37 Del. 544, 187 A. 108 (1936); Gunn v. State, 174 Ind.App. 26, 365 N.E.2d 1234 (1977); State v. Crowley, 345 Mo. 1177, 139 S.W.2d 473 (1940) (accident charge warranted where defendant testified he drew a gun to defend himself and it went off accidentally); Commonwealth v. Turner, 24 Mass.App.Ct. 902, 506 N.E.2d 151 (1987) ("defendant could invoke the right of self-defense in arguing that his act which accidentally resulted in the killing of [the victim] was not itself unlawful") (internal quotations omitted); Valentine v. Commonwealth, 187 Va. 946, 48 S.E.2d 264 (1948).⁴

We expanded the holding in McCaskill when we revisited this issue four years later in Goodson, 312 S.C. at 278, 440 S.E.2d at 370. In Goodson, the defendant (Goodson) and a third party got into an argument over a pool game at a bar. The bar owner escorted Goodson outside when he drew a gun. Once outside, Goodson shot and killed the bar owner and was subsequently convicted of murder. On appeal, Goodson asserted he was entitled to jury charges on self-defense and accident. We first found Goodson was not entitled to a self-defense charge because there was no evidence showing he either believed or actually was in imminent danger of losing his life or sustaining bodily injury when he shot the bar owner.

We then found Goodson was not entitled to a charge of accident because he was not acting lawfully when the shooting occurred. However, we based this determination solely on the lack of evidence Goodson was acting in self-defense. We specifically rejected "the State's claim that because Goodson unlawfully possessed a firearm, the defense of accident is precluded. Rather, the burden rests upon the State to prove beyond a reasonable doubt that the unlawful act in which the accused was engaged was at least the proximate cause of the homicide." 312 S.C. at 280 n. 1,440 S.E.2d at 372 n. 1.⁵See also 40 Am.Jur.2d Homicide § 75 (1968) ("The fact that one carries a concealed weapon in violation of the law does not render him criminally responsible ... where death is caused by the accidental discharge of the weapon, for in such case death cannot be said to be the natural or necessary result of carrying the weapon in violation of law") [hereinafter 40 Am.Jur.2d].

Read together, McCaskill and Goodson stand for the proposition that a person can be acting lawfully, even if he is in unlawful possession of a weapon, if he was entitled to arm himself in self-defense at the time of the shooting. Thus, if the circumstances of this case show Appellant was entitled to arm himself in self-defense when the gun went off, he would be entitled to a charge of accident. It is well-settled the law to be charged is determined from the evidence presented at trial, and if any evidence exists to support a charge, it should be given. The trial court commits reversible error if it fails to give a requested charge on an issue raised by the evidence. See State v. Hill, 315 S.C. 260, 433 S.E.2d 848 (1993)

. We find evidence in the record to support Appellant's claim he armed himself in self-defense at the time of the fatal shooting.⁶

According to Appellant, when he arrived at the house, Kenneth and James were smoking crack cocaine-laced marijuana cigarettes. He testified their eyes were "big like they was getting crazy or something." The two threatened to rob him. Appellant drew his gun after being physically attacked and thrown to the ground by Kenneth and James.⁷ Kenneth then ran into the house "like he was going to get something." When Kenneth returned, he was standing behind a screen door. Appellant could not see Kenneth's hands and was afraid he had gone into the house to get a gun. As Appellant was getting off the ground, Kenneth told James to "get that punk." When James began moving threateningly toward Appellant, he snatched his gun up and it fired. Appellant stated he was scared and his hand was shaking when the gun went off: "It was an accident. I didn't try to shoot nobody."⁸

Although the dissent argues otherwise, the factual scenario of this case is markedly different from that in Goodson. In Goodson, the defendant left the scene of the argument and shot someone who was not the party originally threatening him in the bar. Here, Appellant had been threatened by both Kenneth (the victim) and James. An eyewitness to the shooting testified when Kenneth ran into the house, she tried to get him to leave through the front door. He refused, instead going back to taunt and threaten Appellant while...