State v. Patrick, 22563

• Court: United States State Supreme Court of South Carolina
• Citation: 345 S.E.2d 481,289 S.C. 301
• Decision Date: 24 March 1986
• Docket Number: No. 22563,22563
• Parties: The STATE, Respondent, v. Gary Lee PATRICK, Appellant. . Heard

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345 S.E.2d 481 289 S.C. 301 The STATE, Respondent,
v.
Gary Lee PATRICK, Appellant. No. 22563. Supreme Court of South Carolina. Heard March 24, 1986.
Decided June 9, 1986.

Page 482

[289 S.C. 302] Asst. Appellate Defender Daniel T. Stacey, of S.C. Office of Appellate Defense, Columbia, for appellant.

Atty.Gen. T. Travis Medlock, Asst. Atty. Gen. Harold M. Coombs, Jr., Staff Atty. Norman Mark Rapoport, Columbia, and Sol. George M. Ducworth, Anderson, for respondent.

[289 S.C. 303] PER CURIAM:

Appellant was found guilty of murder and armed robbery. He was sentenced to death and twenty-five years, respectively. This case consolidates appellant's direct appeal and our mandatory review of the death sentence pursuant to S.C.Code Ann. § 16-3-25 (1976). We affirm the convictions and the armed robbery sentence, but reverse the death sentence and remand for a new sentencing proceeding on the murder charge.

On May 27, 1984, the body of Wayne Richard Morgan was discovered under a bridge, lying in a shallow creek in Oconee County. The victim had been shot in the head and there were several scratches on his body. Traces of blood were found on the bridge above the creek. The victim's pants pockets were pulled inside out and his wallet was missing.

The police learned that a car had been seen in the area the previous night. The car was traced to a body shop and eventually to the appellant. A bullet had passed through the back seat of the car, but the hole had been repaired and covered up. This fact, along with other evidence taken from appellant's car, reasonably led police to conclude that the victim had been shot in the back seat.

GUILT PHASE

Appellant contends that the trial court's charge on implied malice unconstitutionally shifted the burden of proof to the appellant. He bases this claim on the fact that the trial judge used the word rebuttable two times during his lengthy charge on malice.

The United States Supreme Court has held that jury instructions which create a burden shifting presumption are unconstitutional. Francis v. Franklin, 471 U.S. ----, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985); Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). We have noted this on numerous occasions. E.g. State v. Peterson, 287 S.C. 244, 335 S.E.2d 800 (1985); State v. Lewellyn, 281 S.C. 199, 314 S.E.2d 326 (1984); State v. Elmore, 279 S.C. 417, 308 S.E.2d 781 (1983). In determining whether or not a [289 S.C. 304] jury charge impermissibly shifts the burden of proof, the charge must be considered as a whole. Francis v. Franklin, supra; State v. Hyman, 276 S.C. 559, 281 S.E.2d 209 (1981), cert. denied, 458 U.S. 1122, 102 S.Ct. 3510, 73 L.Ed.2d 1384 (1982). As was noted by the United States Supreme Court:

Analysis must focus initially on the specific language challenged, but the inquiry does not end there. If a specific portion of the jury charge, considered in isolation, could reasonably have been understood as creating a presumption that relieves the State of its burden of persuasion on an element of an offense, the

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potentially offending words must be considered in the context of the charge as a whole. Other instructions might explain the particular infirm language to the extent that a reasonable juror could not have considered the charge to have created an unconstitutional presumption. Cupp v. Naughten, 414 U.S. 141, 147, 38 L.Ed.2d 368, 94 S.Ct. 396 (1973). This analysis "requires careful attention to the words actually spoken to the jury ..., for whether a defendant has been accorded his constitutional rights depends upon the way in which a reasonable juror could have interpreted the instruction." Sandstrom, supra, at 514, 61 L.Ed.2d 39, 99 S.Ct. 2450 [2454].

Francis v. Franklin, 471 U.S. at ----, 105 S.Ct. at 1971-72, 85 L.Ed.2d at 354.

In the present case, the trial judge's initial charge to the jury concerning implied malice properly adhered to the guidelines set forth in State v. Elmore, 279 S.C. 417, 308 S.E.2d 781 (1983). Throughout the malice charge, the court maintained an overall tone of permissiveness by repeatedly using such phrases as "may infer malice," "malice may be expressed," and "inference of malice." In the two instances complained of by the appellant, we note that the term "rebuttable" was used in conjunction with the term "inference" rather than "presumption." Additionally, it was followed immediately each time by the instruction that the state bore the burden of proving malice beyond a reasonable doubt and that it was for the jury to determine from all the evidence whether or not malice had been proven.

[289 S.C. 305] In State v. Cooper, 279 S.C. 301, 306 S.E.2d 598 (1983), we held that the expressions "rebuttable" and "reasonable explanation" are impermissible whenever they are susceptible to improper interpretation by the jury as requiring the defendant to personally rebut or explain. After carefully scrutinizing the judge's charge in the case at bar, we find that a reasonable juror, after hearing the entire malice charge, could have understood the charge only as creating a permissive inference of malice, and not a presumption. While we decline to hold that the use of any particular word is per se reversible, we once again admonish trial judges that it is best to never use words such as "rebuttable" in any jury charge.

Appellant next contends that the trial court erred in failing to submit a verdict of involuntary manslaughter to the jury. Paradoxically, appellant's following argument is that the court's jury charge erroneously blended the elements of voluntary and involuntary manslaughter. We agree that the trial judge was required to charge the law regarding involuntary manslaughter. At trial, the state contended that the homicide occurred as the appellant originally had contended in a statement given to law enforcement officers. According to appellant's statement, he, a friend, and the...