State v. Fuller, 22979

• Citation: 297 S.C. 440,377 S.E.2d 328
• Decision Date: 14 November 1988
• Docket Number: No. 22979,22979
• Parties: The STATE, Respondent, v. Albert FULLER, Jr., Appellant. . Heard
• Court: United States State Supreme Court of South Carolina

Page 328

377 S.E.2d 328

297 S.C. 440

The STATE, Respondent, v. Albert FULLER, Jr., Appellant.

No. 22979.

Supreme Court of South Carolina.

Heard Nov. 14, 1988.

Decided March 6, 1989.

Jack B. Swerling, John H. Blume and David I. Bruck, Columbia, for appellant.

Atty. Gen. T. Travis Medlock, Chief Deputy Atty. Gen. Donald J. Zelenka, Columbia, and Sol. (Sp. Prosecutor) Robert J. Harte, Aiken, for respondent.

TOAL, Justice:

Appellant Fuller was indicted for two counts of murder. The jury acquitted Fuller of one count, and found him guilty of the lesser offense of voluntary manslaughter on the other count. The Honorable Marion H. Kinon sentenced Fuller to thirty years imprisonment. Fuller appeals his conviction on three grounds: (1) that the State exercised its peremptory challenges in a discriminatory manner; (2) that the trial court erred in only charging the Davis self-defense charge; and, (3) that the trial court improperly gave an Allen charge. We, however, will only consider the dispositive issue of whether the trial judge erred in limiting the self-defense charge to the language found in Davis. Because the trial judge erred in exclusively charging Davis, we reverse Fuller's conviction and remand for a new trial.

BACKGROUND

Fuller, who was a Correctional Officer at Kirkland Correctional Institute, admitted that he shot and killed two men. Fuller claimed, however, that he shot the men while acting in self-defense.

On the night of September 20, 1986, Fuller, a black man, solicited a white prostitute, Susan Phillips, on Two Notch Road, in the parking lot of the Columbia Motor Lodge. Fuller agreed to meet Ms. Phillips back at her trailer. Ms. Phillips lived in a trailer on Blume Court, next to the Ole Place Club and behind the Columbia Motor Lodge. Fuller drove to Blume Court while Ms. Phillips ran down Two Notch Road to Blume Court. Fuller parked his car and waited on Blume Court while Ms. Phillips went in the trailer. Upon arriving at her trailer, Ms. Phillips found that another prostitute already had a "bag" (a man) in the bedroom. Since the trailer was occupied by another prostitute, Fuller left to find a friend's party.

Unsuccessful in finding the party, Fuller returned to Blume Court. Upon returning, Fuller encountered a car driven by a white woman blocking the entrance to Blume Court. Fuller asked her to move. Mr. Dixon, the owner of the private Ole Place Club, and Mr. Phillips, the Ole Place Club's bouncer, approached Fuller's car and asked him what he was "trying to do to that white lady." Fuller denied that he was "doing anything." While grabbing Fuller's door, Mr. Dixon responded, "Nigger, don't lie to me." Mr. Dixon then grabbed Fuller by the throat, and stated, "that is why we have got to take care of niggers like you."

Fuller, threatened by Mr. Dixon, reached down to the floorboard of his car and retrieved his gun. He then fired a warning shot between Dixon and Phillips. Not knowing Blume Court was a dead end street, Fuller drove to the end of Blume Court. As he began to turn around in an attempt to leave, he saw Dixon and Phillips open the trunk of their car. Both Dixon and Phillips then got in their car and tried to block Fuller's car from exiting Blume Court.

Maneuvering past Dixon's car, Fuller turned right on Two Notch Road. After entering Two Notch Road, Fuller's car crashed into a steel rail at the road's curb. Fuller could not move his car off of the steel rail. The testimony was unclear as to whether the Dixon car forced Fuller off the road or whether he lost control of his car. After Fuller crashed his car, Dixon and Phillips drove their car into Fuller's car. Fuller testified that one of the two men yelled, "we're going to take care of you."

Fuller testified that after his car had been rammed, the two men began to exit their car. He cautioned them to stay in their car. Fuller testified that when the door of the car opened, he saw something shiny in Dixon's hand and thought it was a gun. Fuller fired four shots at the men's car and killed both men. A gun was never found in Dixon's car.

I. SELF-DEFENSE

Fuller contends that the lower court erred in only charging the self-defense charge as set forth by this court in State v. Davis, 282 S.C. 45, 317 S.E.2d 452 (1984). The trial judge charged self-defense as follows:

"Now ladies and gentlemen the defendant has pled in this case what is known as the plea of self-defense and self-defense is a complete defense, if established you must find the defendant not guilty. There are four elements required by law to establish self-defense in this case. First, the defendant must be without fault in bringing on the difficulty. Second, the defendant must have actually believed he was in imminent danger of losing his life or sustaining serious bodily injury, or he actually was in such imminent danger. Third, if his defense is based upon his belief of imminent danger, a reasonable prudent man of ordinary firmness and courage would have entertained the same belief. If the defendant actually was in imminent danger, 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. Fourth, the defendant 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 this particular instance. If however, the defendant was--correction on that, absence of self-defense must be proven by the prosecution beyond a reasonable doubt. If you have a reasonable doubt of the defendant's guilt after considering all of the evidence, including the evidence of self-defense, then you must find him not guilty. On the other hand if you have no reasonable doubt of the defendant's guilt after considering all of the evidence, including the evidence of self-defense, then you must find him guilty."

The language of the above charge was taken directly from the Davis case. We hold that it was error for the trial judge to charge Davis as an exclusive self-defense charge when Fuller's counsel repeatedly requested additional charges. We intended that the Davis charge cure the difficulties the trial bench encountered in charging the burden of proving self-defense. We did not, however, intend for the trial courts to eradicate the body of common law self-defense by accepting Davis as an exclusive charge. See generally, State v. Sales, 285 S.C. 115, 328 S.E.2d 619 (1985). In charging self-defense, we instruct the trial court to consider the facts and circumstances of the case at bar...