State v. Cottrell

• Court: South Carolina Supreme Court
• Writing for the Court: Pleicones
• Citation: State v. Cottrell, 657 S.E.2d 451, 376 S.C. 260 (S.C. 2008)
• Decision Date: 28 January 2008
• Docket Number: No. 26424.,26424.
• Parties: The STATE, Respondent v. Luzenski A. COTTRELL, Appellant.

657 S.E.2d 451

376 S.C. 260

The STATE, Respondent v. Luzenski A. COTTRELL, Appellant.

No. 26424.

Supreme Court of South Carolina.

Heard September 18, 2007.

Decided January 28, 2008.

Chief Appellate Defender Joseph L. Savitz, III, and Appellate Defender Kathrine H. Hudgins, both of South Carolina Commission on Indigent Defense, Division of Appellate Defense, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, all of Columbia, and

John Gregory Hembree, of Conway, for Respondent.

Justice PLEICONES:

Appellant was convicted of murder, assault with intent to kill, resisting arrest with a deadly weapon, and grand larceny. He received a death sentence for murder, the jury finding two statutory aggravating factors¹ and concurrent ten year sentences on the remaining three charges. On appeal, he contends² the trial court erred in refusing appellant's request that the jury be charged voluntary manslaughter as a lesser offense of murder. We agree, reverse appellant's murder conviction and death sentence, and remand for further proceedings.

ISSUE

Whether the evidence, viewed in the light most favorable to appellant, entitled him to a charge on voluntary manslaughter?

FACTS/ANALYSIS

"Voluntary manslaughter is the unlawful killing of a human being in sudden heat of passion upon sufficient legal provocation." State v. Cole, 338 S.C. 97, 525 S.E.2d 511 (2000). In determining whether voluntary manslaughter should be charged as a lesser offense of murder, the court must view the evidence in the light most favorable to the defendant. The charge need not be given "where it clearly appears that there is no evidence whatsoever tending to reduce the crime from murder to manslaughter." State v. Pittman, 373 S.C. 527, 647 S.E.2d 144 (2007) (internal citation omitted). We therefore review the evidence in the light most favorable to appellant, mindful that the charge request is properly rejected only where "there is no evidence whatsoever" of the lesser offense.

Shortly after midnight on December 29, two automobiles pulled into a Dunkin Donuts parking lot in Myrtle Beach. Fred Halcomb was driving one car, which contained a single passenger, his girlfriend Dianne. Donnie Morgan was driving the second car; in the front passenger's seat was Donnie's fiancée, sitting behind her was appellant, and beside him in the back seat his girlfriend, Amber Counts. At the store, appellant, Fred, and Dianne went in while Donnie, Amber, and Donnie's fiancée stayed in Donnie's car. While appellant and his friends were in the store, two police cars pulled into the lot, and the two officers entered the Dunkin Donuts. The officer/victim was in an excited state of mind, his girlfriend having just accepted his marriage proposal. As the officers entered, appellant and his friends were talking with their acquaintance who worked at the shop. A Dunkin Donuts patron described appellant as loud but not obnoxious, and testified the "guy behind the counter," appellant, Fred, and Dianne were laughing a lot, but not being annoying.

When the officers came in the store they did not get in line to make a purchase but rather, according to the patron, "stood side by side in the entrance." When Fred, Dianne, and appellant left the Dunkin Donuts carrying coffee, the officers followed them because, the surviving officer testified, the victim wanted to ask appellant some questions. Appellant followed Fred and Dianne to their car, where he received a cup of coffee which he then took towards Donnie's car to give to Amber. As he walked between the cars, the victim asked appellant for identification. The other officer, who had gone to talk to Fred, observed this exchange and testified that the victim and appellant "were just engaged in a regular conversation. It seemed real laid back." According to this officer, appellant appeared friendly, not upset or agitated. The victim then "called, in" appellant's identifying information, and learned there were no warrants outstanding for appellant's arrest.

Amber testified she then observed appellant raise his hands, at which point the victim pulled out his gun. The victim, gun pulled, followed appellant to the back of the car where, Amber testified, she heard what sounded like hands being placed on the back of the car, followed by a single gun shot. Other shots followed. Dianne observed much the same scene, but testified the victim was yelling "freeze" as he pulled his gun on appellant. Appellant then raised his hands. According to Dianne, the officer then holstered his gun and followed appellant around the back of the car, grabbing appellant and getting "on his back." Dianne clarified that the victim jumped on appellant's back, and a struggle ensued. At this point, according to Dianne and the other officer, appellant shot the victim in the face with a gun appellant had on his person. The other officer on the scene testified that at the juncture when the victim grabbed appellant from behind by the wrist and neck/shoulder area, appellant was not under arrest but remained "free to leave." He also testified that he heard the victim saying to appellant "Show me your hands" as he followed appellant towards the back of the car, but not all witnesses testified, that they heard this command.

After the victim was shot in the face at close range, the other officer and appellant exchanged gunfire before appellant and Amber drove off in Donnie's car. Donnie and his fiancée had escaped from the car when appellant jumped in after the shooting began, and Amber had moved to the driver's seat.

The victim died from a combination of blood loss and a concussive injury to the spinal cord which the pathologist testified "could certainly cause immediate incapacitation." When appellant was arrested in Donnie's car later that night, he was found to have been shot as well. The victim's gun was recovered at the scene, as was a cartridge from a bullet fired from that gun. Based on the pathologist's testimony that the bullet which killed the victim may have rendered him instantly incapacitated, appellant contends that the jury could have concluded that the victim was the first to fire his gun since, had appellant shot him first, the victim would have lost the ability to operate his weapon. At least two eyewitnesses, however, reported seeing appellant shoot first.

Appellant's request for a charge on voluntary manslaughter was predicated on this Court's decision in State v. Linder, 276 S.C. 304, 278 S.E.2d 335 (1981), which held in part "The killing [of a law enforcement officer] may be only manslaughter where a legal arrest is attempted in an unlawful manner, as when the passion of the accused is aroused by employment of unnecessary violence." All parties agreed that the victim had the right to question appellant, and to ask for his license. All agreed, as well, that appellant had the right to refuse these requests, a right which he did not exercise until after answering questions, showing his identification, and raising his hands.

The parties and the judge disagree whether, after raising his hands as instructed by the officer, appellant had the right to walk away as he did, or whether, as the trial court ruled, at that point one must necessarily infer that the officer saw appellant's gun tucked in his pants, and that this observation elevated the officer's right to...