State v. Harris

• Decision Date: 04 March 2009
• Docket Number: No. 4514.,4514.
• Citation: 674 S.E.2d 532
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. Jhune HARRIS, Appellant.

674 S.E.2d 532

The STATE, Respondent, v. Jhune HARRIS, Appellant.

No. 4514.

Court of Appeals of South Carolina.

Submitted February 3, 2009.

Decided March 4, 2009.

Appellate Defender Kathrine H. Hudgins, of the South Carolina Commission on Indigent Defense, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, Assistant Attorney General J. Anthony Mabry, Office of the Attorney General, of Columbia; and Solicitor Warren Blair Giese, of Columbia, for Respondent.

WILLIAMS, J.

In this criminal case, Jhune Harris (Harris) argues the trial court erred in refusing to charge the jury on the law of self-defense and accident. Harris also contends the trial court improperly refused to grant a mistrial. We affirm.

FACTS

Leopold Pierre (Pierre) was at the residence of Angela Gilmore (Gilmore) helping her children clean an upstairs bedroom in anticipation of a family reunion. While Pierre was helping the children, Gilmore was in the kitchen cooking. Harris, a former boyfriend of Gilmore, walked to the back door of the house and asked if he could come inside. Gilmore informed Harris she had company and perhaps he should return at a different time. Harris responded he had watermelon for the children.

Based on Harris's representation, Gilmore allowed him to enter the house so he could bring the watermelon inside. Harris entered the house without a watermelon and immediately asked Gilmore to call Pierre downstairs. In response, Gilmore unsuccessfully asked Harris to leave her house.

Harris went upstairs several times and confronted Pierre and at least once asked Pierre to go outside and settle the matter like men. Pierre did not comply with Harris's requests. Shortly after this exchange, Pierre came downstairs to retrieve a broom. Harris told Pierre he wanted to talk to him. Pierre refused to speak with Harris and returned upstairs. Harris continued to call Pierre to come downstairs. Eventually Pierre complied and proceeded down the stairs.

As Pierre reached the bottom step or the second to the last step, Harris pulled a gun from his jacket pocket and shot Pierre twice, resulting in his death. Harris next turned his gun toward Gilmore and chased her through her home. During the chase, Gilmore took hold of her son, and they both fell to the floor. Subsequently, Harris shot Gilmore while she was lying underneath her son. Gilmore survived the incident.

Consequently, Harris was charged with murder and assault and battery with intent to kill (ABWIK). At trial, Harris employed a combination of self-defense and accident to justify the shootings. Specifically, Harris testified he saw something "flicker from the back where [Pierre] had his hand," and Pierre lunged at him as Pierre made his way down the stairs.

With respect to Gilmore's injury, Harris stated that after he shot Pierre, he was backing up and tripped, which caused the gun to accidently discharge. The trial court charged the jury with the law of self-defense and accident. Harris took exception to the given charges and submitted specific requests. The trial court denied these requests.

Following the trial, the jury returned verdicts of guilty for both counts. The trial judge sentenced Harris to forty years for the murder charge and twenty years for the ABWIK charge, with the sentences to run concurrently. This appeal followed.

STANDARD OF REVIEW

Generally, the conduct of a criminal trial is left largely to the sound discretion of the trial court, and this Court will not interfere unless it clearly appears that the rights of the complaining party were abused or prejudiced in some way. State v. Bridges, 278 S.C. 447, 448, 298 S.E.2d 212, 212 (1982). As such, an appellate court sits to review errors of law only, and we are bound by the trial court's factual determinations unless they are clearly erroneous. State v. Baccus, 367 S.C. 41, 48-49, 625 S.E.2d 216, 220 (2006).

LAW/ANALYSIS

On appeal, Harris argues the trial court improperly refused to: (1) charge the jury on the law of self-defense as requested; (2) charge the jury on the law of accident as requested; (3) grant a mistrial when the State allegedly elicited improper character evidence testimony; and (4) grant a mistrial based on the solicitor's improper closing statements.

I. Jury charge

Initially, Harris argues the trial court erred in refusing to charge the law of self-defense and accident as requested. We disagree.

The law to be charged to the jury must be determined by the evidence presented at trial. State v. Patterson, 367 S.C. 219, 231-32, 625 S.E.2d 239, 245-46 (Ct.App. 2006). In South Carolina, a trial court is required to charge only the current and correct law of this state. Id. A jury charge is correct if it contains the correct definition of the law when read as a whole. Id. On review, an appellate court considers the charge as a whole in view of the evidence and issues presented at trial. Id. To warrant reversal, a trial court's refusal to give a requested jury charge must be erroneous as well as prejudicial to the defendant. Id. Failure to give a requested jury instruction is not prejudicial error where the instructions given afford the proper test for determining issues. Id.

If the charge as a whole is reasonably free from error, isolated portions that might be misleading do not constitute reversible error. Id. A trial court's jury charge that is substantially correct and covers the law does not require reversal. Id. In charging self-defense, the trial court must consider the facts and circumstances of the case at bar in order to fashion an appropriate charge. State v. Starnes, 340 S.C. 312, 322, 531 S.E.2d 907, 913 (2000).

Harris submitted the following specific request:

If a defendant is in imminent danger or if defendant's belief that he is in imminent danger of death or receiving bodily harm is reasonable, he need not wait until actual attack or injury or until force is used by the aggressor before exercising the right to use deadly force in self-defense. In other words, defendant need not wait until the assailant "gets the drop on him" in order to be entitled to use force in self-defense.

The trial court refused to include the "gets the drop on him" language. This language originally arose in State v. Rash, 182 S.C. 42, 50, 188 S.E. 435, 438 (1936) ("[The defendant] doesn't have to wait until his assailant gets the drop on him, he has a right to act under the law of self-preservation and prevent his assailant getting the drop on him; if it is apparent, or reasonably apparent his assailant is taking steps to get the drop on him, he must take steps first to prevent such assailant from getting the drop on him."). This language has been interpreted to mean a defendant does not have to wait until actually fired upon to use force to defend his life. State v. Nichols, 325 S.C. 111, 117-18, 481 S.E.2d 118, 121-22 (1997); see also Starnes, 340 S.C. at 322, 531 S.E.2d at 913 (holding that once the right to fire in self-defense arises, a defendant is not required to wait until his adversary is on equal terms or until he has fired or aimed his weapon in order to act).

With respect to this issue, the trial court charged the jury as follows:

You may consider the deceased's conduct[,] actions and general demeanor immediately before the incident as bearing on the deceased's temper and state of mind at the time of the fatal encounter[,] and the defendant does not have to show that he was actually in danger. It is enough if the defendant believed he was in imminent danger and a reasonably prudent person of ordinary firmness and courage would have had the same belief. The defendant has the right to act on appearances even though the defendant's beliefs may have been mistaken.

(emphasis added).

The trial court's instructions made it clear Harris did not have to wait until he was actually under attack in order to employ force to defend his life. The trial court informed the jury that Harris had a right to act on appearances even if those appearances may have been erroneous. The simple fact that the trial court refused to use the "[gets] the drop on him" language does not render the charge improper. State v. Burkhart, 350 S.C. 252, 261, 565 S.E.2d 298, 303 (2002) ("The substance of the law must be charged to the jury, not particular verbiage.").

Next Harris contends the trial court erred in refusing to charge the jury on the law of accident as requested. We disagree.

Harris submitted the following charge:

I charge you that where the shooting of a human being is the result of accident or mischance, no criminal responsibility attaches. If it is shown that the shooting was accidental, that it was done while the defendant was engaged in a lawful activity, and was not the result of criminal negligence, the shooting will be excused. A person is legally entitled to arm himself in self-defense, to meet a potential threat, created by the person who was shot or another. If you find that the shooting was caused by accident, then you must find the defendant not guilty.... The burden of proof is not upon the defendant to show that the shooting was accidental, but the burden of proof is upon the State to prove beyond a reasonable doubt that it was intentional.

The trial court charged the law of accident as follows:

Now ladies and gentlemen, the defense has also raised the defense of accident. An act may be excused on the ground of accident if it is shown that the act was unintentional; that the defendant was acting lawfully and that due care was used by the defendant in the handling of the weapon.... [I]f a person is lawfully armed in self-defense and the gun accidently discharges, the defense of accident would apply. The burden is on the [S]tate to prove beyond a reasonable doubt that the act was not an accident but was caused by the negligence or carelessness on the part of the...