State v. Dickey
| Decision Date | 29 October 2008 |
| Docket Number | No. 4451.,4451. |
| Citation | 380 S.C. 384,669 S.E.2d 917 |
| Parties | The STATE, Respondent, v. Jason Michael DICKEY, Appellant. |
| Court | South Carolina Court of Appeals |
Laura C. Tesh, of Columbia and Lourie A. Salley, of Lexington, for Appellant.
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Norman Mark Rapoport, Office of the Attorney General and Solicitor Warren Blair Giese, all of Columbia, for Respondent.
Jason Michael Dickey was convicted of voluntary manslaughter after he shot and killed Josh Boot on the sidewalk outside the apartment building where Dickey lived and worked as a security guard. Dickey makes several arguments on appeal. We affirm.
In April 2004, Dickey was working as the night watchman at the Cornell Arms apartments in Columbia, where he also resided. Although not required by his employer for his duties, Dickey carried a loaded pistol, for which he held a valid permit.
On April 29, 2004, Boot and Alex Stroud (Stroud) were tailgating outside a Jimmy Buffett concert at the Colonial Center, a few blocks from the Cornell Arms apartments. According to Stroud, Boot consumed approximately twenty beers and several shots of liquor that evening. Stroud and Boot met two ladies outside the concert, Amanda McGariggle (McGariggle) and Tara West (West), both of whom resided at the Cornell Arms apartments. After a few hours of drinking together outside the Colonial Center, Boot and Stroud accompanied the two ladies back to their apartment. While West and Stroud adjourned to West's bedroom, Boot and McGariggle remained on the sofa in the living room of the apartment. As they sat on the sofa, apparently close to an open window, a neighbor from the sixth floor threw a water balloon1 down into the ladies' apartment, splashing Boot. Boot became angry and stormed out of the apartment. He then went upstairs to the floors above and began randomly knocking on the doors of other tenants.
At this point, McGariggle went to the lobby and asked Dickey, who was the security guard on duty that night, to evict Boot from her apartment. Dickey came to the apartment where he found Boot upset and intoxicated. Dickey told Boot to leave or else he would call the police. Boot was indignant, hurling obscenities and insults at Dickey and making physical threats to him as he slammed the door to the apartment. According to West and McGariggle, Dickey looked angry during the encounter but remained calm and did not try to threaten or grab Boot. As he stood outside the door, Dickey proceeded to call the police to report the disturbance.
Meanwhile, back in the apartment, Stroud calmed Boot down and convinced Boot they should leave. As the two exited the apartment, they passed Dickey in the hallway. According to Stroud, Dickey and Boot "stared each other down," but no words were exchanged. Boot and Stroud took the elevator down to the lobby while Dickey took the stairs down to meet them. As Boot and Stroud walked to the front door to exit, Dickey followed behind them. Again, no words were exchanged. Boot and Stroud exited the building. Dickey followed the two out the building, stood on the Cornell Arms front doormat, and watched them walk away. Boot then turned around and walked back in the direction of Dickey.
At this point, the testimony of the witnesses varies substantially. Stroud testified he was "right beside" Boot as Boot advanced towards Dickey and asked Dickey, "[W]hy the f____ was he following [them]?" Stroud then stated when Boot turned around to say something towards Dickey, Dickey shot Boot three times. Dickey, on the other hand, testified the two turned towards him and made threats they were going to "kick his a___," and called him a "fat f____" among other things. Dickey testified he told them, again, he just wanted them to leave. Dickey stated he was afraid and felt "[he] was outnumbered and [he] realized they were covering ground too fast for [him] to get back in the building." Dickey went on to say he reached into his pocket and exposed his pistol, causing both men to stop advancing temporarily. Dickey then claimed Boot said, "f____ it, let's do it," and reached under his shirt and stepped toward Dickey. Believing Boot to have a concealed weapon under his shirt, Dickey fired three shots, killing Boot.
Immediately, Dickey called 911. When the police arrived, Dickey told the officer about his pistol and that he had a concealed weapon permit. Dickey told the officer he shot Boot after Boot had come at him with a bottle he had hidden under his shirt. Crime scene investigators found a broken liquor bottle near the scene of the shooting with a smear of Boot's blood on it.
Dickey was indicted for murder and tried before a jury in September 2006. At the close of the State's evidence, defense counsel moved for a directed verdict of acquittal on the ground of self-defense. The motion was denied. Defense counsel renewed the motion for directed verdict at the close of all evidence. Thereafter, the trial court instructed the jury on murder, voluntary manslaughter, and self-defense. After the trial court charged the jury, defense counsel argued the trial court did not adequately charge the jury on either the right to act on appearances or the duty to retreat and objected to the refusal to charge the requested instructions on curtilage. During the instruction on voluntary manslaughter, the trial judge stated to the jury:
By way of illustration, and I would point out this is by illustration alone, that if an unjustifiable assault is made with violence with the circumstances of indignity upon a man's person and the party so assaulted kills the aggressor the crime will be reduced to manslaughter.
The jury returned a verdict of voluntary manslaughter. Dickey was sentenced to sixteen years imprisonment.
A. Whether the trial court erred in refusing to grant a directed verdict that Dickey acted in self defense as a matter of law?
B. Whether the trial court, in its instructions on self-defense, properly charged the jury on curtilage, the duty to retreat, and the right to act on appearances?
C. Whether the trial court erred in charging the jury on voluntary manslaughter in light of the evidence presented at trial?
D. Whether the trial court's "illustration" to the jury of voluntary manslaughter was an improper comment on the facts?
E. Whether the trial court erred in refusing to retroactively apply the "Stand Your Ground" law to this case?
In criminal cases, this Court reviews errors of law only. State v. Miller, 375 S.C. 370, 378, 652 S.E.2d 444, 448 (Ct.App.2007). Thus, we are bound by the trial court's factual findings unless they are clearly erroneous. Id.
Dickey argues under State v. Hendrix, 270 S.C. 653, 244 S.E.2d 503 (1978), the trial court should have directed a verdict of acquittal because the State failed to provide evidence to negate his claim of self-defense as a matter of law. We disagree.
The basic definition of when a person is justified in using deadly force in self-defense is comprised of four elements:
(1) That he was without fault in bringing on the difficulty, (2) That he actually believed he was in imminent danger of losing his life or of sustaining serious bodily injury [ ], or he actually was in imminent danger of losing his life or of sustaining serious bodily injury, (3) If his defense is based on his actual belief of imminent danger, that a reasonable prudent man of ordinary firmness and courage would have entertained the same belief [ ], or if his defense is based on his being in actual and imminent danger, that the circumstances were such as would warrant a man of ordinary prudence, firmness, and courage to strike the fatal blow in order to save himself from serious bodily harm, or losing his own life, (4) That he had no other probable means of avoiding the danger of losing his own life or sustaining serious bodily injury than to act as he did in the particular instance.
Id. at 657-58, 244 S.E.2d at 505-06 (internal citations omitted).
At one time, self-defense was an affirmative defense in this State, and a defendant bore the burden of establishing it by a preponderance of the evidence. State v. McDowell, 272 S.C. 203, 207, 249 S.E.2d 916, 918 (1978). However, current law requires the State to disprove self-defense, once raised by the defendant, beyond a reasonable doubt. State v. Wiggins, 330 S.C. 538, 544, 500 S.E.2d 489, 492-493 (1998).
When this Court reviews the denial of a motion for a directed verdict, it views the evidence in the light most favorable to the non-moving party. State v. Long, 325 S.C. 59, 62, 480 S.E.2d 62, 63 (1997). When ruling on a motion for directed verdict, the trial judge is concerned with the existence of evidence, not its weight. Id. If there is any direct or substantial circumstantial evidence which reasonably tends to prove the guilt of the accused or from which guilt may be fairly and logically deduced, it is the trial court's duty to submit the case to the jury. Id. In other words, if the State provided evidence sufficient to negate Dickey's claim of self-defense, Dickey's motion for directed verdict was properly denied.
The State provided such evidence. First, the State provided evidence which, if believed, tended to show Dickey was not without fault in bringing on the difficulty. Any act of an accused that is reasonably calculated to produce the occasion amounts to bringing on the difficulty and bars the right to assert self-defense. State v. Slater, 373 S.C. 66, 70, 644 S.E.2d 50, 52 (2007). Additionally, the plea of self-defense is not available to one who kills another in mutual combat. State v. Graham, 260 S.C. 449, 450 196 S.E.2d 495, 495 (1973). In ...
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