State v. Reese, 26195.

• Decision Date: 07 August 2006
• Docket Number: No. 26195.,26195.
• Citation: 633 S.E.2d 898
• Court: South Carolina Supreme Court
• Parties: The STATE, Petitioner/Respondent, v. Willie Earle REESE, Jr., Respondent/Petitioner.

633 S.E.2d 898

The STATE, Petitioner/Respondent, v. Willie Earle REESE, Jr., Respondent/Petitioner.

No. 26195.

Supreme Court of South Carolina.

Heard June 8, 2006.

Decided August 7, 2006.

Rehearing Denied September 7, 2006.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, Senior Assistant Attorney General William Edgar Salter, III; and Solicitor W. Barney Giese, all of Columbia, for Petitioner-Respondent.

Jack B. Swerling, of Columbia, for Respondent-Petitioner.

Justice MOORE:

Willie Earl Reese, Jr. was convicted of murder and sentenced to imprisonment for thirty-five years. The Court of Appeals reversed Reese's conviction, holding that the trial judge erred in: (1) failing to charge the jury on involuntary manslaughter; and (2) denying Reese's motion for a mistrial based on the solicitor's closing argument. State v. Reese, 359 S.C. 260, 597 S.E.2d 169 (Ct.App. 2004). Chief Judge Hearn filed a dissenting opinion. We granted petitions for writs of certiorari filed by the State and Willie Earl Reese to review the decision of the Court of Appeals reversing Reese's conviction for murder. We affirm in part and reverse in part.

FACTS

Willie Earl Reese and Teresa Reese were married in 1999. In April 2001, Teresa left the marital home and moved in with her parents, Cora and Donald Joyner. On April 28, 2001, Teresa and her cousin Edith played in a softball game and, afterwards, went to a bar with other team members. While Teresa was away, Reese called her parents' house three or four times looking for Teresa. Reese also drove around the neighborhood for several hours while Teresa was out and finally parked at the end of the street where Teresa's parents lived. Phone records indicated that, between 9:45 p.m. and 2 a.m., Reese called Teresa's cell phone fifty-one times.

Teresa and Edith left the bar at approximately 1:30 a.m., with Edith following Teresa home. When they arrived at the neighborhood where Teresa was living with her parents, Edith noticed Reese stopped at a stop sign in front of the street where Teresa's parents lived, sitting in his car. Teresa stopped and spoke briefly to Reese, then drove to her parents' home. Edith and Reese followed Teresa home. When Edith got out of her car to determine whether Teresa was all right, she noticed Reese exiting his car and walking calmly towards Teresa. Edith saw Teresa and Reese standing on the sidewalk talking as she drove to her home, two houses away. When Edith entered her house, she called Teresa. While dialing the number, she heard Reese's car drive away. Edith spoke to Cora, who went to check on Teresa. When Cora saw Teresa lying on the sidewalk, she began to scream. Edith returned to Cora's house and saw Teresa lying on the sidewalk with her eyes wide open and blood running down the side of her ear.

Later on the morning of April 29, 2001, Reese turned himself in to police. He took police to his parents' home, where he had hidden the gun with which he shot Teresa, and to his aunt's home, where he left his car. In his statement to police, Reese admitted shooting Teresa. However, he stated that he did not go to her house to kill her. According to Reese, he was upset and crying while talking to Teresa. He pulled the gun out and told Teresa he was going to kill himself. When Teresa tried to talk him out of killing himself, Reese was "moving the gun back and forth as a reaction." Reese stated he did not know why the gun went off because he thought both of the gun's safeties were on. The evidence showed the gunshot wound which killed Teresa was from the gun being either very close to, or in contact with, Teresa's head.

The trial judge charged the jury on murder and denied Reese's requests for charges on involuntary manslaughter and accident. The jury found Reese guilty of murder.

THE STATE'S ISSUES

I. Did the Court of Appeals err in holding Reese was entitled to an involuntary manslaughter instruction?

II. Did the Court of Appeals err in holding a mistrial should have been granted based on the solicitor's closing argument?

DISCUSSION

Involuntary Manslaughter

The State argues the Court of Appeals erred in holding Reese was entitled to an involuntary manslaughter instruction. We agree.

If there is any evidence warranting a charge on involuntary manslaughter, then the charge must be given. State v. Cabrera-Pena, 361 S.C. 372, 605 S.E.2d 522 (2004); State v. Burriss, 334 S.C. 256, 513 S.E.2d 104 (1999). Involuntary manslaughter is the killing of another without malice and unintentionally while engaged in either: (1) an unlawful act not amounting to a felony and not naturally tending to cause death or great bodily harm; or (2) a lawful act with reckless disregard for the safety of others. State v. Cabrera-Pena, supra; State v. Tucker, 324 S.C. 155, 478 S.E.2d 260 (1996).

It is a felony for a person to present or point at another person a loaded or unloaded firearm. S.C.Code Ann. § 16-23-410 (2003). Suicide is an unlawful act. State v. Levelle, 34 S.C. 120, 13 S.E. 319 (1891), overruled on other grounds, State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991).

Reese argues that the jury could have found he was not pointing or presenting a firearm or in the process of committing suicide, but was merely threatening to commit suicide, which is not an unlawful act.

Although the jury could have found Reese's statement that he was moving the gun back and forth did not constitute pointing a firearm, and threatening suicide has not been classified as an unlawful act, there is no doubt that Reese was presenting a firearm when he took the gun out and began waiving it around. Therefore, Reese was pointing or presenting a firearm, a felony, which would preclude an involuntary manslaughter charge. Accordingly, the Court of Appeals erred in holding Reese was entitled to an involuntary manslaughter instruction.

Closing Argument

The State argues the Court of Appeals erred in holding Reese was entitled to a new trial based on the solicitor's closing argument. We disagree.

In his closing argument, the solicitor asked the jury,

Who speaks for Teresa Reese? In this system of justice that we have in this type of case, who speaks for Teresa Reese? That is the question that has been asked since April the 29th . . . of this year, since the day she died. From the time that Willie Earl Reese was arrested, the time that he initially appeared in court, through the Grand Jury proceedings, when he was placed on the trial docket, when his case was called on Monday, when you jurors with your fellow jurors assembled downstairs before Judge Manning, during the process of you being selected for this case, from opening statements of Ms. Campbell and Mr. Swerling through the presentation of the testimony and the submission of evidence, through the closing remarks of Ms. Campbell and Mr. Swerling and as I stand before you, Madam Forelady and Ladies and Gentlemen, the question is: Who speaks for Teresa Reese? And I submit to you that that question can be answered and will be answered today.

After he argued the evidence showed Reese was guilty of murder, the solicitor again asked, "Who speaks for Teresa Reese?" Reese objected to the argument, and the trial judge overruled the objection, stating he would hear counsel on the motion later. The solicitor then continued, "So now I ask you, now that all the evidence is in upon my argument, who speaks for Teresa Reese? You do, Madam Forelady and Ladies and Gentlemen of the Jury. . . . You do. You speak for her . . . You can speak for her with your verdict. . . . And so you, the State submits, will speak for her with your verdict, with your verdict." Again, Reese's objection to the argument was overruled.

Following the jury charge, Reese was allowed to place on the record his motion concerning the solicitor's argument. He contended the solicitor's argument asking the jury to speak for Teresa exceeded the bounds of permissible argument, personalized the issue to the jury, and injected inflammation and passion into the trial. Accordingly, Reese moved for a mistrial. The motion was denied. When Reese later asked the trial judge for a curative instruction concerning the solicitor's argument, the judge denied the request.

A solicitor's closing argument must be carefully tailored not to appeal to the personal biases of the jury. Von Dohlen v. State, 360 S.C. 598, 602 S.E.2d 738 (2004), cert. denied, 544 U.S. 943, 125 S.Ct. 1645, 161 L.Ed.2d 511 (2005). The argument must not be calculated to arouse the jurors' passions or prejudices, and its content should stay within the record and reasonable inferences that may be drawn therefrom. Id.

Jurors are sworn to be governed by the evidence, and it is their duty to consider the facts of the case impartially. Id. A Golden Rule argument asking the jurors to place themselves in the victim's shoes tends to completely destroy all sense of impartiality of the jurors, and its effect is to arouse passion and prejudice. Id.

On appeal, the solicitor's argument will be reviewed in the...