State v. Day

• Decision Date: 06 July 2000
• Docket Number: No. 25167.,25167.
• Citation: 341 S.C. 410,535 S.E.2d 431
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Raymond DAY, Appellant.

341 S.C. 410

535 S.E.2d 431

The STATE, Respondent, v. Raymond DAY, Appellant.

No. 25167.

Supreme Court of South Carolina.

Heard May 10, 2000.

Decided July 6, 2000.

Assistant Appellate Defender Robert M. Dudek, of 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 Donald J. Zelenka, Senior Assistant Attorney General William Edgar Salter, III, all of Columbia; Solicitor Barbara R. Morgan, of Aiken, all for respondent.

TOAL, Chief Justice:

Raymond Day ("Day") appeals his convictions for murder and possession of a firearm during the commission of a violent crime. We reverse and remand.

FACTS/PROCEDURAL BACKGROUND

This case involves a complicated love triangle, a murder conspiracy, and a stolen trailer. In March of 1996, Wayne Renew ("Renew") hired Day to kill his ex-girlfriend, Debra Bouchillon (Bouchillon), because she turned him into the police for giving her a stolen trailer in satisfaction of a debt. Renew planned to give Day two hundred dollars and a red truck in exchange for killing Bouchillon. However, the events did not occur as Renew intended.

Renew and Day were good friends and roommates who enjoyed partying and abusing crack cocaine. Both men had been romantically involved with Bouchillon prior to the shooting. Renew was angry at Bouchillon for turning him into the police so he decided to hire Day to murder her. On several occasions, Renew discussed various ways that Day could kill Bouchillon. According to Day, these included, "sneaking in the back door and slicing her throat. Another way he showed me three tubes of explosives, told me to mix the explosives up, cut a hole in the top of the explosives big enough for two wires to fit in and run it to the car to the core." Renew suggested that Day either shoot, stab, or blow up Bouchillon. Day claimed he only agreed to kill Bouchillon because "if I didn't agree he would have got somebody else to do it."

Day's plan was to go to Bouchillon's house, tell her to call the police, and have Renew detained until he could make further statements to the sheriffs department. Day testified that once he arrived at Bouchillon's house he "told her that Wayne wanted her dead and that he had hired me to kill her and that I could not kill her ... I told her I loved her and she hugged my neck." He then made an anonymous phone call to the police informing them that Bouchillon was going to be harmed that night because he did not "want to be tied up in a conspiracy for murder." Bouchillon believed Day's story because earlier that evening she received an anonymous phone call informing her that Renew planned to kill her.

According to Renew's plan, Day was supposed to meet him on a dirt road after killing Bouchillon. Day told Bouchillon that he had to meet Renew or he would find out that he had not killed her. At 2:30 a.m., Day and Bouchillon decided to meet Renew. Bouchillon hid in the back seat of the car under some blankets as Day drove. They brought along Bouchillon's pistol and a pillowcase filled with valuables so that Renew would think Day robbed Bouchillon after killing her.

While Bouchillon stayed hidden in the car, Day met Renew and told him that he murdered Bouchillon. They returned to their cars and Day and Bouchillon followed Renew to Muddy Branch Road, a desolate dirt road. Renew stopped his car and motioned to Day that he wanted to speak to him. Day became frightened because he thought Renew had figured out he had been duped. According to Day,

I was talking to Wayne listening to what he said and looking, and then I just caught it out of the corner of my eye, the blankets coming up and came up and went down real quick and I saw Mr. Renew reach for a gun ... and I saw Mr. Renew go like this (indicating). And by the time he had come up, I had shot him. I really thought he had a gun. I re-live that moment every day.

Day claims he was terrified and just kept shooting. Day and Bouchillon returned to her home after the shooting. Day admits to dropping several items, including a crack pipe and extra bullets, into a vent in Bouchillon's trailer to conceal them from the police. Day contends that he did not initially tell the police what happened because he was afraid his story was unbelievable.

In July 1996, Day was indicted for murder and possession of a firearm during the commission of or attempt to commit a violent crime. Although the trial judge indicated he would not charge the jury on self-defense, he gave a self-defense instruction based upon a question from the jury inquiring about the South Carolina law of self-defense. The jury found Day guilty and the trial judge sentenced him to life imprisonment for murder and to a concurrent sentence of five years imprisonment for the possession of a firearm during the commission of a violent crime. Day appeals his convictions on the following issues:

1. Whether the trial judge erred by refusing to charge self-defense in his initial jury charge?

2. Once the jury requested an instruction on self-defense, did the trial judge err by refusing to instruct the jury that Day did not have the burden of proving selfdefense, that the state had to disprove self-defense, and that the jury could consider past difficulties between the parties?

3. Did the trial judge err by refusing to allow Marva Szumowicz to testify that Renew held a double-barrel shotgun to her head for eighteen hours because he was suspicious of her?

4. Whether the trial judge erred by allowing the state to cross examine a defense witness about Day's tattoo, which read "Outlaw", because it may have constituted an impermissible attack on Day's character?

LAW/ANALYSIS

I. Trial Judge's Refusal to Charge Self-Defense

Day argues the trial judge erred by refusing to give a self-defense charge because there was sufficient evidence presented at trial entitling him to this instruction. We agree.

A self-defense charge is not required unless the evidence supports it. State v. Goodson, 312 S.C. 278, 440 S.E.2d 370 (1994). To establish self defense in South Carolina, four elements must be present: (1) the defendant must be without fault in bringing on the difficulty; (2) the defendant must have been in actual imminent danger of losing his life or sustaining serious bodily injury, or he must have actually believed he was in imminent danger of losing his life or sustaining serious bodily injury; (3) if his defense is based upon his belief of imminent danger, defendant must show that a reasonably prudent person of ordinary firmness and courage would have entertained the belief that he was actually in imminent danger and that the circumstances were such as would warrant a person of ordinary prudence, firmness, and courage to strike the fatal blow in order to save himself from serious bodily harm or the loss of his life; and (4) the defendant had no other probable means of avoiding the danger. State v. Bryant, 336 S.C. 340, 520 S.E.2d 319 (1999).

"If there is any evidence in the record from which it could reasonably be inferred that the defendant acted in selfdefense, the defendant is entitled to instructions on the defense, and the trial judge's refusal to do so is reversible error." State v. Muller, 282 S.C. 10, 316 S.E.2d 409 (1984). There is sufficient evidence in the instant case to support a charge on self-defense. Day testified he believed he was in imminent danger because he thought Renew was going to pull a gun on him. Day gave the following testimony about the fatal incident:

I pulled in and turned around and pulled in front of him [Renew] and I walked to the truck and he said something and I said something and he pulled a gun on me. I pulled Debbie's gun out and shot him in the head the first shot and I don't know where the last stuff, the first shot went.

According to Day's theory, Renew was a violent drug abuser who had a history of violence against him and others.¹ Day knew that Renew had a tendency to violently overreact, and when he thought Renew saw Bouchillon move under the blankets, he believed he was in imminent danger and shot Renew to defend himself.

Day presented an evidence based theory as to what occurred that evening. Although some of the evidence was disputed, there was certainly enough evidence in this case to make self-defense a jury question. Defense counsel felt so strongly about the trial judge's refusal to give a self-defense instruction that she moved for a mistrial. She convincingly argued that the trial judge cast aside Day's entire defense and removed it from the jury's consideration.

II. Self-Defense Charge

Day argues the trial judge erred by refusing to instruct the jury that Day did not have the burden of proving self-defense, and that the jury could consider past difficulties between the parties in weighing self-defense. We agree.

The trial judge initially refused to charge the jury on self-defense. However, the jury inquired about the South Carolina law on self defense. The jury wrote: "What does the State of South Carolina have to say when a person can defend themself [sic] with the use of deadly force. May we see a copy of the law concerning this?" In response, the trial judge charged the jury a standard self-defense instruction as outlined by this Court in State v. Davis, 282 S.C. 45, 317 S.E.2d 452 (1984) along with a specific charge on the right to act on appearances and the duty to retreat. The trial judge did not include in his instruction Day's Request to Charge Number One (factors that would give Day the right to judge Renew's conduct more harshly, including age difference, substance abuse, "bad blood", prior threats, and reputation for violence); Number Two (prior acts of violence and prior difficulties between Day and Renew); and Number Eight (the State's burden of proof when a defendant asserts self-defense).

The trial judge's failure to charge on the specific...