State v. Perry
| Decision Date | 21 April 2021 |
| Docket Number | Opinion No. 5816,Appellate Case No. 2017-002107 |
| Citation | 862 S.E.2d 451,434 S.C. 92 |
| Parties | The STATE, Respondent, v. John Ernest PERRY, Jr., Appellant. |
| Court | South Carolina Court of Appeals |
Chief Appellate Defender Robert Michael Dudek, of Columbia, for Appellant.
Attorney General Alan McCrory Wilson and Senior Assistant Deputy Attorney General William M. Blitch, Jr., both of Columbia; and Solicitor Kevin Scott Brackett, of York, all for Respondent.
John Ernest Perry Jr. appeals his conviction of attempted murder. He maintains because he told the police his gun "went off" accidentally as he attempted to dispose of the gun during a police chase, the trial court erred in charging the jury "when the intent to do an act that violates the law exists, motive becomes immaterial," because attempted murder was a specific intent crime and this was essentially a general intent instruction. We reverse and remand.
Officers Dalton Taylor and Shaun Bailey of the Rock Hill Police Department were conducting a night patrol on June 22, 2016. Officer Taylor observed a vehicle turn without using a turn signal and in response initiated a traffic stop. The driver of the vehicle jumped out of the vehicle, without putting the vehicle into park, and ran from the scene. Officer Bailey and Officer Taylor pursued the driver on foot. The driver jumped a fence, and the officers followed him. As the driver was running, he pulled a firearm from his waistband. The driver fired two shots, which did not strike anyone.1 According to Officer Taylor, he and the driver were about five to seven feet apart, and the area was sufficiently lit. Officer Taylor returned fire, striking the driver, but the driver continued to flee, and Officer Taylor lost sight of him.
Officers identified the driver as Perry from paperwork found in the vehicle and a video recording from a nearby convenience store. Law enforcement officers later took Perry into custody outside a camper in Fairfield County. Officers discovered in the camper the weapon Perry had fired.
A grand jury indicted Perry for attempted murder. At trial, Officer Taylor testified Perry fired directly at him once. Officer Taylor opined that it was not an accidental discharge and Perry was trying to shoot him in order to escape. On cross-examination, Officer Taylor acknowledged that his written statement about the incident provided that Perry fired the first shot in the air. He indicated he perceived Perry as pointing the weapon at him with the intent to kill. Officer Bailey testified he also pursued Perry and observed Perry fire twice in the air.
Special Agent Melissa Wallace from South Carolina Law Enforcement Division (SLED) testified she became involved with this case because it was an officer involved shooting. She provided she rode with Perry in the ambulance to the hospital after he had been apprehended. During the ambulance ride, she read Perry his Miranda2 rights. He answered her questions during the ride and while he was at the hospital. He informed her that he had been involved in a shooting with police. He provided he had run because he had some unpaid warrants outstanding and he possessed the gun and knew he could not be caught with it. According to Special Agent Wallace, Perry stated "[h]e was jumping what he called the gate and the gun accident[al]ly went off while he was trying to get it out of his pants." She further noted Perry stated that as he was pulling the gun out, he had it "in front of his waist pointed towards the left-hand side of his body" when it went off. Perry also told Special Agent Wallace he threw the gun he used in the shooting in a field. SLED searched the field but did not recover a weapon there. Perry admitted in a subsequent interview the gun found in the camper was the gun he used in the incident.
Following the close of the State's case, Perry moved for a directed verdict, which the trial court denied. Perry did not present a defense. Following closing arguments, the trial court charged the jury on attempted murder and the lesser included offenses of assault and battery in the first, second, and third degree. The trial court informed the jury the attempted murder statute states, "A person who with intent to kill attempts to kill another person with malice aforethought, either express or implied, commits the offense of attempted murder." The court also described to the jury what malice meant.
Following deliberations, the jury requested to be recharged on attempted murder and the various degrees of assault and battery. The trial court repeated the jury charge it had previously given for those offenses, including the description of malice. After the jury resumed deliberations, the jury requested a copy of the charge on malice. The jury then asked if malice was only associated with the attempted murder charge or if it was also associated with the assault and battery charges. The attorneys and the court agreed it was only an element of attempted murder. The jury also asked, The trial court proposed charging the jury with the definition of intent from Black's Law Dictionary , which stated: Perry stated, "I don't like the end of that with motive being in there," and the trial court indicated the last sentence could be left off. Perry continued, arguing "that's almost implying that use of a deadly weapon," before the trial court cut him off and stated it did not "see any need for that" sentence. However, the State argued because motive was not an element it had to prove, charging that sentence would not be prejudicial to Perry. The State asserted, "It says motive is immaterial, which we think motive is immaterial under the attempted murder statute ...." The trial court stated, The trial court charged the jury: The jury returned to its deliberations. Perry renewed his objection, stating:
Your Honor, I just to renew my objection to the intent that you just read based on about the motive being immaterial. Also my concern is that attempted murder with case law out there saying that it is a specific intent crime, I mean, in my opinion is what was read was more of a general intent type of thing so that's my -- I'm objecting to the charge.
The court asked, "Your objection is with the last sentence?" and Perry responded, "That's correct, Your Honor." The court stated
Following a note from the jury, the trial court gave the jury an Allen3 charge. The jury resumed its deliberations and ultimately reached a verdict. The jury convicted Perry of attempted murder. The trial court sentenced him to life imprisonment. This appeal followed.
"In criminal cases, the appellate court sits to review errors of law only." State v. Baccus , 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006). Thus, an appellate Id. "An appellate court will not reverse the trial [court]’s decision regarding a jury charge absent an abuse of discretion." State v. Marin , 415 S.C. 475, 482, 783 S.E.2d 808, 812 (2016) (quoting State v. Mattison , 388 S.C. 469, 479, 697 S.E.2d 578, 584 (2010) ). "An abuse of discretion occurs when the conclusions of the trial court either lack evidentiary support or are controlled by an error of law." State v. Pagan , 369 S.C. 201, 208, 631 S.E.2d 262, 265 (2006).
Perry argues the trial court erred in instructing the jury that "when the intent to do an act that violates the law exists, motive becomes immaterial," as attempted murder is a specific intent crime, and this was essentially a general intent instruction and was highly prejudicial because he told the police his gun went off accidentally as he attempted to dispose of it during the police chase. We agree.
"[T]he trial court is required to charge only the current and correct law of South Carolina." State v. Marin , 415 S.C. 475, 482, 783 S.E.2d 808, 812 (2016) (alteration in original) (quoting State v. Brandt , 393 S.C. 526, 549, 713 S.E.2d 591, 603 (2011) ). The trial court is required to charge the law as determined from the evidence presented at trial. State v. Gates , 269 S.C. 557, 561, 238 S.E.2d 680, 681 (1977). If any evidence supports a charge, it should be given. State v. Burriss , 334 S.C. 256, 262, 513 S.E.2d 104, 108 (1999). "[J]ury instructions should be considered as a whole, and if as a whole they are free from error, any isolated portions [that] may be misleading do not constitute reversible error." State v. Aleksey , 343 S.C. 20, 27, 538 S.E.2d 248, 251 (2000). A charge is correct if it adequately explains the law and contains the correct definition when read as a whole. Brandt , 393 S.C. at 549, 713 S.E.2d at 603. "In reviewing jury charges for error, we must consider the court's jury charge as a whole in light of the evidence and issues presented at trial." Id. (quoting State v. Adkins , 353 S.C. 312, 318, 577 S.E.2d 460, 463 (Ct. App. 2003) ). "A jury charge [that] is substantially correct and...
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