State v. Crosby, 3426.
| Decision Date | 17 December 2001 |
| Docket Number | No. 3426.,3426. |
| Citation | 348 S.C. 387,559 S.E.2d 352 |
| Parties | The STATE, Respondent, v. Leon CROSBY, Appellant. |
| Court | South Carolina Court of Appeals |
Assistant Appellate Defender Robert M. Dudek, of the South Carolina Office of Appellate Defense, of Columbia, for appellant.
Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Robert E. Bogan, Assistant Attorney General Toyya Brawley Gray, Assistant Attorney General W. Rutledge Martin; and Solicitor Warren B. Giese, all of Columbia, for respondent.
A jury found Leon Crosby guilty of voluntary manslaughter. He was sentenced to seventeen years imprisonment. Crosby asserts three errors on appeal. We affirm.
On December 28, 1998, Crosby and his girlfriend, Ketura Young, were visiting Monica Tucker in an apartment Monica shared with Shawanda Knox, and Shawanda's brother, Ryan Knox. Several other people, including Lavaris Dunham ("the victim"), were also visiting the apartment. When Shawanda and Ryan returned home from work with Jessica Herring, a co-worker, Shawanda became upset with the number of people in the apartment and wanted them to leave. Monica refused to ask her guests to leave. Shawanda left and went to a nearby apartment where she called the police to intervene. During this time, Crosby became upset when the victim commented that he could "take" Crosby's girlfriend. Crosby yelled at the victim, pointed at Ketura, and told the victim to go ahead and try. The victim apologized to Crosby for upsetting him, and Crosby walked outside the apartment to "cool off." Deputy Ernest Nesbitt of the Kershaw County Sheriffs Office approached the apartment in response to Shawanda's call as Crosby exited the apartment. Deputy Nesbitt heard Crosby mention that he needed to "clear his head."
Deputy Nesbitt attempted to resolve the disagreement between the roommates. Shawanda, who had returned after calling the police, again left the apartment upon Deputy Nesbitt's advice. The deputy then departed. Shawanda returned again to retrieve some of her belongings. An argument between Shawanda and Monica ensued, which escalated into a physical altercation outside the apartment involving Shawanda, Monica, Ryan, and Monica's cousin, Jenelle Outten. During the fight, Crosby shot the victim in the neck in the open doorway of the apartment. The victim died from his injuries.
Crosby and several others fled the scene in Jessica's car. Crosby averred several times to the occupants of the car that he did not intend to shoot the victim. The next morning, Crosby turned himself in to the police. He gave a statementthat the victim charged at him while he was attempting to help break up the fight between Shawanda and the others. Crosby stated that when the victim charged him, he "seen (sic) his life in danger" and took his gun out of his pocket, closed his eyes, and pulled the trigger.
At trial, Calvin Hill testified he was inside the apartment when he witnessed Crosby attempting to break up the fight. Hill saw the victim exit the apartment and approach Crosby. Hill heard Crosby telling the victim to back up, and then Crosby walked into the apartment. According to Hill, the victim then "charged" at Crosby with his hands up and without any weapons in them. Hill heard the gunshot as both men were standing in the doorway and then saw the victim fall to the floor. Ketura testified that when Crosby attempted to break up the fight outside the apartment, the victim told Crosby not to touch the girls and the two men shoved each other. While the two men were near the doorway, Crosby directed Ketura into the apartment, and she then heard the gunshot.
Crosby testified that while attempting to break up the fight, the victim told him to take his hands off Jenelle. The two exchanged words and shoved each other. Crosby stated that as he turned to push Ketura into the apartment out of harm's way, he glanced back to see the victim coming toward him. The victim was reaching behind his back, and Crosby believed the victim had a weapon. Crosby pulled a gun out of his pocket as he turned around and shot the gun, though he did not realize right away that the gun had discharged.
Crosby first argues the trial court erred in failing to charge the jury on the law of involuntary manslaughter because the evidence showed he acted in self-defense and the shooting "appeared more accidental than intentional." We disagree.
At the conclusion of the defense's case, Crosby withdrew his request for a charge on the law of accident, admitting no testimony was presented to show an accidental shooting. Because Crosby's testimony showed he turned around to find the victim "on top of him," Crosby argued the evidence demonstrated he acted recklessly and negligently in handling the gun. Crosby contended he was entitled to a charge on involuntary manslaughter based on the premise that the negligent handling of a loaded gun warrants a finding of involuntary manslaughter.
"The law to be charged to the jury is determined from the evidence presented at trial." State v. Hill, 315 S.C. 260, 262, 433 S.E.2d 848, 849 (1993) (citation omitted). If there is any evidence to support a jury charge, the trial judge should grant the request. State v. Shuler, 344 S.C. 604, 545 S.E.2d 805 (2001). The trial court commits reversible error if it fails to give a requested jury charge on an issue raised by the evidence. State v. Burriss, 334 S.C. 256, 513 S.E.2d 104 (1999). The trial court's refusal to give a requested jury instruction must be "both erroneous and prejudicial" to warrant reversal. State v. Harrison, 343 S.C. 165, 173, 539 S.E.2d 71, 75 (Ct.App.2000),cert. denied (citation omitted).
To be entitled to a charge on involuntary manslaughter, there must be evidence that the defendant either:
Burriss, 334 S.C. at 264-65, 513 S.E.2d at 109 (citation omitted). Involuntary manslaughter is at its heart an unintentional act. See Douglas v. State, 332 S.C. 67, 74, 504 S.E.2d 307, 310-11 (1998)
() (citations and footnote omitted).
Our Supreme Court has considered whether a killing was intentional or accidental in determining whether the facts of a case supported a charge of involuntary manslaughter. In Burriss, the defendant was threatened and then attacked by the victim and another male. During the fight, the defendant drew a gun and fired two rounds into the ground. One attacker backed away, yet continued to verbally threaten the defendant and urged his accomplice—the victim—to attack the defendant again. At this point, the defendant was on the ground, separated from his gun. As the victim drew closer, the defendant reached for the gun. As he picked it up, the weapon discharged, accidently killing the victim: " Burriss, 334 S.C. at 263, 513 S.E.2d at 108 (footnote omitted).
The defendant was convicted of murder. On appeal, the defendant argued the trial judge erred by refusing to instruct the jury on the law of accident or involuntary manslaughter. The Supreme Court agreed, finding: (1) the factual scenario of the case supported the defendant's argument that the shooting was accidental; and (2) the evidence would sustain a finding the defendant was lawfully armed in self-defense at the time the fatal shot occurred and the negligent handling of a loaded gun supported a finding of involuntary manslaughter. Id. at 263-65, 513 S.E.2d at 108-09. Accordingly, the Burriss Court reversed the conviction and remanded the case to the Circuit Court with instructions to charge the jury with the law of accident and involuntary manslaughter. Id. at 266, 513 S.E.2d at 110.
By contrast, the defendant in State v. Pickens, 320 S.C. 528, 466 S.E.2d 364 (1996), admitted he and a co-defendant intentionally shot into an advancing crowd, killing two victims. On appeal, the defendant averred the trial judge erred in refusing to charge involuntary manslaughter. The Supreme Court disagreed, finding the defendant was not entitled to a charge of involuntary manslaughter because he had intentionally fired the gun. Pickens, 320 S.C. at 531-32, 466 S.E.2d at 366.
Crosby argues that testimony by Calvin Hill during cross-examination granted him the right to a charge of involuntary manslaughter:
During his testimony, Crosby related the sequence of events during his fight with the victim:
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