State v. Frazier

• Court: South Carolina Court of Appeals
• Writing for the Court: THOMAS
• Citation: State v. Frazier, 401 S.C. 224, 736 S.E.2d 301 (S.C. App. 2013)
• Decision Date: 02 January 2013
• Docket Number: No. 5069.,5069.
• Parties: The STATE, Respondent, v. Devon F. FRAZIER, Appellant. Appellate Case No. 2010–171626.

401 S.C. 224

736 S.E.2d 301

The STATE, Respondent,

v. Devon F. FRAZIER, Appellant.Appellate Case No. 2010–171626.

No. 5069.

Court of Appeals of South Carolina.

Heard Oct. 30, 2012.

Decided Jan. 2, 2013.

Appellate Defender Breen R. Stevens, of Columbia, for Appellant.

Attorney General Alan M. Wilson, Chief Deputy Attorney General John W. McIntosh, Senior Assistant Deputy Attorney General Donald J. Zelenka, and Assistant Attorney General Alphonso Simon, Jr., all of Columbia; and Solicitor Douglas A. Barfield, Jr., of Lancaster, for Respondent.

THOMAS, J.

Devon F. Frazier appeals his convictions for murder and possession of a firearm during the commission of a violent crime. He argues the trial court committed reversible error in (1) declining to charge self-defense; (2) declining to charge voluntary manslaughter; and (3) charging that malice may be inferred from the use of a deadly weapon. We affirm in part, reverse in part, and remand for a new trial.

FACTS & PROCEDURAL HISTORY

Frazier shot Jermaine Richardson, “Baldy,” in the head at the Pardue Street Apartments in Lancaster around 9:30 pm on March 9, 2007. Baldy and Andre Hood drove to the incident in a blue, four-door Cadillac, Baldy in the driver's seat and Hood in the front passenger's seat. When the police arrived, only Baldy remained in the car, and the front two doors of the car were open. No weapons were recovered. The windows were tinted, and the driver's side window had four bullet holes in it. The window had not shattered because the tint kept it together.

Baldy later died from his wounds, and a Lancaster County grand jury indicted Frazier for murder and possession of a firearm during the commission of a violent crime. The State presented twenty-five witnesses. A number of the witnesses testified Baldy attacked Frazier earlier in the night. They also testified Frazier never calmed down after the attack and immediately made threats to James Ross (“Pop Charlie”) that he would kill Baldy and Pop Charlie. Six of the witnesses testified they later saw Frazier walk up to Baldy's car, look in the driver's side window, and shoot into the window three to four times.

Frazier testified he and Baldy were initially friends until they had a falling out. As a result of the decline in their friendship, Baldy initiated an altercation in early February 2007 during which he punched and shot at Frazier, who escaped unharmed. Later that month, they had words during a concert. About a week later, Frazier began seeing Tawanna Stalk. Around that time, he purchaseda nine millimeter pistol for protection from Baldy.

Frazier recounted that he arrived at Stalk's apartment at 7:30 pm on the night of the shooting. He brought the gun and placed it under a chair in the apartment's front room. Stalk, Ayana Parker, and a number of others were also present. Everyone began to smoke marijuana and drink alcohol. An hour later, Pop Charlie knocked on the apartment door. At Pop Charlie's suggestion, Frazier along with two others left the apartment. Frazier testified he did not bring his gun because he was comfortable with the group and did not expect to see Baldy.

The group went to the apartment of Stalk's rear neighbor, Parker, and entered her kitchen. Frazier sold Pop Charlie a blunt, and Frazier then lit his own. Frazier testified that he looked down and, upon looking up, Pop Charlie slapped him, knocking him to the floor. Frazier testified he had not seen Baldy in Parker's apartment, but while he lay on the floor, Baldy jumped on and began to beat him. Frazier passed out from the beating and awoke on the kitchen floor. He testified he looked outside and saw Baldy getting in a car, leaving.

According to Frazier, he did not suffer any bruises or bleeding as a result of the fight. However, he was “mad” and “pissed off,” and he asked Pop Charlie why they jumped him. He and Pop Charlie began to argue, and a third party eventually held Frazier back from the argument. Pop Charlie left Parker's apartment, and shortly thereafter, Frazier did as well.

Frazier testified he walked back to Stalk's apartment. He knocked on the door, and Pop Charlie answered. He and Pop Charlie resumed arguing, and they walked into the kitchen. Pop Charlie got a knife, and Frazier grabbed his gun in response, aiming it at Pop Charlie.

Frazier stated he stepped outside to leave, when a friend of his arrived. The friend joined Frazier's argument with Pop Charlie in the doorway of the apartment, and Stalk intervened, eventually separating them.

Frazier testified that the blue Cadillac drove up to the front of Stalk's apartment while he and his friend argued with Pop Charlie. At that time, Frazier was standing on the sidewalk outside Stalk's apartment, with his hands by his side and his gun tucked in his pants. Frazier heard Pop Charlie yell, “There goes your man,” and then he heard gunshots behind him. As he turned around, he saw Hood at the passenger side of the Cadillac, door open, leaning over the car, shooting at him with a rifle. Frazier ran toward and ducked behind the front corner of a Ford Explorer on the sidewalk in front of a next-door apartment. From that position, he stood up and shot back at the blue Cadillac three times.

Frazier testified he first noticed the blue Cadillac when he heard gunshots behind him. He did not know Baldy owned the blue Cadillac, nor did he know Baldy was driving the car. He claimed he did not see anyone other than Hood exit the blue Cadillac, nor did he see anyone else with a weapon. According to Frazier, he did not know Baldy had been shot until the next morning.

Frazier testified six minutes elapsed from the time he awoke on the floor of Parker's kitchen until the shooting began in front of Stalk's apartment. ¹ He testified he did not have enough time to calm down between the time he was jumped and the time of the shooting. He also testified he shot at the blue Cadillac to defend himself and because he was still “worked up” about the earlier attack. However, he denied ever threatening Pop Charlie or leaving the area to retrieve a gun.

An investigating officer testified Frazier “initially” told the officer he saw Baldy driving the blue Cadillac earlier “in the area that night” but subsequently changed his story to indicate he knew nothing about the shooting and never saw the car or Baldy that evening.

An expert in trace analysis of gunshot residue introduced tests during trial that revealed“quantities of metal consistent with gunshot residue” on the back of Baldy's right hand. Moreover, the gunshot residue expert explained that it was possible for the residue to end up on Baldy's hands even if he did not shoot a firearm because, when a bullet perforates an object—such as a car window—the lead in the bullet can vaporize and land on either side of the perforated object. The expert could not testify, however, as to whether it was more likely that the residue occurred this way or by Baldy firing a weapon. Investigators also found copper bullet jackets in the vehicle, and the State's bullet expert testified it would not be impossible for the jackets to separate from the bullets when the bullets went through the tinted window if the gun was shot from inside the car.

After the parties presented their cases, they talked with the trial court about whether to charge self-defense, voluntary manslaughter, and the inference of malice based upon the use of a deadly weapon. The court denied the motions to charge the jury on self-defense and voluntary manslaughter. In declining to charge self-defense, the court reasoned Frazier failed to comply with a duty to retreat by firing back once he ducked behind the Explorer because he was safe at that point and could have returned to Stalk's apartment. Relying on State v. Childers, 373 S.C. 367, 645 S.E.2d 233 (2007) (plurality), the court declined to charge voluntary manslaughter for three reasons: (1) no evidence showed Frazier was “under the sway of a prior provocation”; (2) no evidence showed Frazier knew Baldy was in the automobile during the shooting; and (3) the evidence showed Frazier's reason for shooting was not to shoot Baldy but to retaliate to the shots he heard.

The court further charged the jury the following:

Inferred malice may arise also when the deed is done with a deadly weapon, and a revolver pistol is a deadly weapon. This inference regarding malice being inferred from the use of a deadly weapon is simply an evidentiary fact to be considered by you along with the other evidence in this case and you can give it such weight as you decide it should have, if any.

The court reasoned State v. Belcher, 385 S.C. 597, 685 S.E.2d 802 (2009), did not preclude the charge because the case did not involve self-defense or voluntary manslaughter.

The jury found Frazier guilty of both murder and possession of a firearm during the commission of a violent crime. He received concurrent sentences of 50 years' imprisonment for murder and 5 years' imprisonment for possession of a firearm. This appeal followed.

ISSUES ON APPEAL

1. Did the trial court err in declining to charge self-defense?

2. Did the trial court err in declining to charge voluntary manslaughter?

[401 S.C. 233]3. Did the trial court err in charging the jury that malice may be inferred from the use of a deadly weapon?

LAW & ANALYSISI. SELF–DEFENSE

Frazier contends the trial court erred in declining to charge self-defense because the record contains evidence he was shot at with a rifle from behind, ducked behind the front corner of a nearby vehicle, and shot back at his assailants. He contends evidence shows Baldy was not only a driver but also a gunman himself, Frazier was not in a place of safety when he ducked behind the corner of the Explorer, and Frazier would have exposed himself to further danger if he ran to Stalk's apartment from the Explorer.² We agree.

“If there is any evidence in the record from which it could reasonably be inferred that the defendant acted in...