State v. Cooney
| Decision Date | 06 October 1994 |
| Docket Number | No. 24306,24306 |
| Citation | 463 S.E.2d 597,320 S.C. 107 |
| Parties | The STATE, Respondent, v. Thomas Christopher COONEY, Appellant. . Heard |
| Court | South Carolina Supreme Court |
David I. Bruck, Columbia, for appellant.
Atty. Gen. T. Travis Medlock, Chief Deputy Atty. Gen. Donald J. Zelenka, Sr. Asst. Atty. Gen. Harold M. Coombs, Jr., Asst. Atty. Gen. Norman Mark Rapoport, Columbia; and Sol. George M. Ducworth, Anderson, for respondent.
Thomas Cooney and James Clinton Hale were indicted and tried for the murder of Carlton Williams. The jury acquitted Hale, but convicted Cooney of murder. Cooney appeals his conviction. We reverse in part and affirm in part.
The facts are summarized as follows. Cooney and Hale's plumbing supply business was burglarized several times and copper tubing was taken. After the last burglary Cooney and Hale discovered copper tubing concealed in plastic garbage bags in a wooded area about one-fourth of a mile behind their business. They decided to stake out the location to catch the burglar when he returned to retrieve the tubing.
Carlton Williams eventually appeared and went directly to the tubing. Cooney and Hale, with pistols loaded with hollow point bullets, approached Williams and told him they were going to take him to the police. They asked Williams if he had robbed their store and according to Cooney and Hale, Williams confessed to the robbery. As they walked back towards the store, Williams (who was unarmed) attempted to run away. Hale stated he shot warning shots at Williams' feet to make him stop. Williams complied at first, but later ran away with Cooney and Hale shooting after him. Both claimed to have been shooting at the ground and not aiming to kill him. However, the autopsy report showed that Williams was shot in each hip. Cooney and Hale left after shooting Williams. The following morning, Cooney returned and found the body of Williams. Sometime later that morning Cooney and Hale reported the killing to the police.
During the trial, Appellant Cooney interjected citizen's arrest as a defense to murder. At the conclusion of the trial appellant requested several charges pertaining to citizen's arrest. The trial judge ruled that based on Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) the use of deadly force to apprehend a suspect is not justified where the suspect poses no immediate threat to the person making the arrest and others. Additionally, the judge found that S.C.Code Ann. § 17-13-10 (1985) 1 does not authorize the use of deadly force.
Appellant contends the trial judge erred in refusing to instruct the jury on the law of citizen's arrest because the evidence demonstrated the killing was justifiable as it was reasonably necessary to effect Williams' arrest for a felony. Appellant cites the following language in State v. Nall, 304 S.C. 332, 404 S.E.2d 202 (Ct.App.1991) as support: "[i]f after notice of arrest, the suspect attempts to flee or forcibly to resist arrest, the person making the arrest may use reasonable means to effect it."
The law to be charged must be determined from the evidence presented at trial. State v. Lee, 298 S.C. 362, 380 S.E.2d 834 (1989). An instruction should not be given unless justified by the evidence. State v. Weaver, 265 S.C. 130, 217 S.E.2d 31 (1975). Appellant must have presented facts establishing that a defense of citizen's arrest is appropriate in order to be entitled to a charge.
In Tennessee v. Garner, supra, the U.S. Supreme Court held it is unconstitutional under the Fourth Amendment to use deadly force except in certain circumstances. Garner, which involved a determination of civil liability as opposed to criminal liability, dealt with the use of deadly force by a police officer while attempting to arrest a fleeing felon. The Fourth Amendment proscription against warrantless searches and seizures does not apply to searches by private individuals not acting as agents of the State. Peters v. State, 302 S.C. 59, 393 S.E.2d 387 (1990). We extend the reasoning in Peters to apply to seizures by private citizens. Cooney was acting free of State influence when he attempted to arrest Williams. Accordingly, we find the holding in Garner does not apply to seizures by private persons and does not change the State's criminal law with respect to citizens using force in apprehending a fleeing felon. People v. Couch, 436 Mich. 414, 461 N.W.2d 683 (1990). 2
In order to invoke the defense of justifiable killing in apprehending a fleeing felon, appellant at a minimum must show that he had certain information that a felony had been committed, § 17-13-10(b), and he used reasonable means to effect the arrest, State v. Nall, supra. There was evidence presented that appellant had certain information that a felony had been committed. However, State courts examining similar situations have found that whether reasonable force was used to apprehend a fleeing felon is a factual question left to the jury. People v. Couch, supra; State v. Clarke, 61 Wash.2d 138, 377 P.2d 449 (1962).
The determination of reasonableness depends upon the facts of the case and is a question for the jury unless there is no evidence to support a finding of reasonableness. The trial judge found killing an unarmed fleeing suspect is per se unreasonable. We hold it was reversible error to not charge the jury on the common law of citizen's arrest and the use of reasonable force since evidence placed appellant's reasonableness in apprehending Mr. Williams in issue.
Next, appellant contends the trial court improperly excluded testimony of William's involvement in burglarizing the plumbing store. The trial court excluded the testimony because at the time of the killing, appellant was unaware of the facts as proffered by the witnesses. Appellant's actions were based on finding Williams near the copper tubing which he believed had been stolen from his store.
The trial judge is given broad discretion in ruling on questions concerning the relevancy of evidence, and his decision will not be disturbed on appeal unless there is a clear abuse of discretion. State v. Alexander, 303 S.C. 377, 401 S.E.2d 146 (1991). Evidence is only relevant and admissible if it tends to establish or make more or less probable some matter in issue and bears directly or indirectly thereon. State v. Sims, 304 S.C. 409, 405 S.E.2d 377 (1991).
The excluded evidence was not relevant. Actual...
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