State v. Rogers

• Decision Date: 31 October 1995
• Docket Number: No. 24366,24366
• Parties: The STATE, Respondent, v. Timothy D. ROGERS, Appellant. . Heard
• Court: South Carolina Supreme Court

Page 360

466 S.E.2d 360

320 S.C. 520

The STATE, Respondent, v. Timothy D. ROGERS, Appellant.

No. 24366.

Supreme Court of South Carolina.

Heard Oct. 31, 1995.

Decided Jan. 22, 1996.

Deputy Chief Attorney Joseph L. Savitz, III, of S.C. Office of Appellate Defense, Columbia, for Appellant.

Attorney General Charles Molony Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General William Edgar Salter, III, all of Columbia; and Solicitor Walter M. Bailey, Jr., Summerville, for Respondent.

TOAL, Justice:

This is an appeal of Appellant Timothy Rogers's conviction and subsequent death sentence for murder.

FACTUAL/PROCEDURAL BACKGROUND

On November 25, 1992, Appellant Timothy Rogers shot nine-year-old Stephanie Burditt in the head. Stephanie died the next day.

Rogers was tried on February 28 through March 5, 1994 for Stephanie's murder. The State sought the death penalty, citing as aggravating factors Stephanie's age and the danger Rogers's action had posed to others. Rogers did not testify during the guilt phase of his trial, although the State introduced into evidence a statement Rogers had made to police after his arrest.

According to Rogers's statement, Rogers was speaking on the telephone outside Spell's Grocery Store when Stephanie's father Mike Burditt pulled up in a pick-up truck accompanied by his daughter Stephanie and another male, Jimmy Carver. Burditt told Rogers he needed to use the telephone, and Rogers informed Burditt he would be off shortly. Burditt and his friend Carver then began making racist remarks, which Rogers ignored. (R. p. 1236). However, Rogers could hear Burditt and Carver arguing with Rogers's friend Daxton Patterson. Rogers's girlfriend Tonya Bickham was also present. When Burditt and Carver approached Patterson and Bickham, Rogers "walked over to where [Patterson] and [Bickham] were." (R. p. 1237). Burditt then "turned around, went back to the truck and pushed his seat up." (R. p. 1237). It appeared to Rogers that Burditt "was looking for a weapon of some sort." (R. p. 1237). Rogers asserts he fired a shot in the air to scare Burditt and Carver. (R. p. 1237). Apparently that shot killed Stephanie.

Not surprisingly, other witnesses perceived the events of November 25th quite differently. Burditt testified that he stopped at Spell's Grocery Store so that Stephanie could get a sandwich before they went fishing. While at the store, Burditt saw his friend Anthony Riley, and the two of them began to talk. Carver stayed in the truck. While Burditt and Riley were talking, Rogers, Patterson, and Bickham came up behind them. Rogers went to talk on the telephone, but Patterson began to taunt and threaten Riley and Burditt. Riley and Burditt ignored Patterson. When Patterson flicked a cigarette on Riley's shoe, Riley left the store. (R. p. 732).

According to Burditt's testimony, Burditt then tried to get in his truck to leave, but Patterson prevented Burditt from leaving by pulling on the door of the truck. At some point, Carver got out of the truck and began walking toward the back of it. As Patterson and Burditt struggled by the door, Rogers approached, stepped between them, put a gun to Burditt's head, and said, "I'll kill you." (R. pp. 733-34). Rogers then lowered the gun and fired a shot that hit no one. As Rogers's girlfriend Bickham testified that Burditt, Carver, Patterson, and Rogers were involved in a heated confrontation, which Patterson had begun. When Bickham turned around to go talk on the telephone, she heard two shots. The second shot was fired as the truck was driving away. (R. p. 833-34).

Burditt once again tried to get in his truck, Rogers spit in Burditt's face. (R. pp. 734-35). When Burditt finally got back into his truck and began to drive away, Rogers fired a shot into the back window of the truck. That shot hit Stephanie, who had been sitting in the truck crying during the incident. (R. pp. 735-37). Carver's testimony was similar to Burditt's. Carver specifically denied that Burditt had ever reached in the truck for his gun, as Rogers had asserted. (R. p. 949).

Based largely on Rogers's statement, defense counsel requested a jury charge on voluntary manslaughter. (R. p. 968). After discussing the issue with the prosecution and defense counsel, the trial judge refused the instruction. (R. pp. 976, 1019). The jury returned with a verdict of murder.

During the solicitor's closing arguments at the penalty phase, the solicitor asked: "What do you do with a person like this once he's in our midst ...?" (R. p. 1190). The solicitor also said that "by his record Timothy Rogers has shown that he cannot safely exist in this society inside or outside of the prison system." (R. p. 1193).

Defense counsel requested a jury instruction informing the jury that if it sentenced Rogers to life in prison, Rogers would never be eligible for parole. (R. pp. 1048-50, 1239). The trial judge refused the proposed instruction and gave a "plain and ordinary meaning" charge pursuant to State v. Norris, 285 S.C. 86, 328 S.E.2d 339 (1985). The trial judge sentenced Rogers to death in accordance with the jury's recommendation.

Rogers appeals.

LAW/ANALYSIS

I. Guilt Phase

Rogers contends that when combined with certain other testimony, his statement to the police contains evidence that could support a finding of voluntary manslaughter. The trial judge refused to charge voluntary manslaughter because he believed that "you can't have voluntary manslaughter when you take the position this was an accidental killing." (R. p. 1031). Rogers asserts the trial judge erred in refusing to charge voluntary manslaughter. We disagree.

The trial judge's reason for refusing to charge voluntary manslaughter--that one is not entitled to a voluntary manslaughter charge when one contends a killing was accidental--was incorrect. We have previously held that where there is evidence to support charging the jury on either of two offenses (or affirmative defenses), both offenses (or defenses) must be charged, even if the two seem inconsistent. See State v. Gilliam, 296 S.C. 395, 373 S.E.2d 596 (1988) (finding trial judge erred in refusing to charge both self-defense and voluntary manslaughter because they are mutually exclusive). If there was evidence to support a jury charge on voluntary manslaughter, the trial judge should have charged the jury on both voluntary manslaughter and accident. Therefore, we must determine whether there was evidence to support a charge on voluntary manslaughter.

Voluntary manslaughter is the unlawful killing of another in sudden heat of passion upon sufficient legal provocation. E.g., State v. Lowry, 315 S.C. 396, 434 S.E.2d 272 (1993). Rogers asserts that the combination of the racist statements allegedly made by Burditt and Carter and Burditt's alleged leaning into his truck constituted sufficient legal provocation. We disagree.

Here, there was absolutely no evidence of sufficient legal provocation. First, the racist statements that Rogers alleges Burditt and Carver made are legally insufficient to constitute such legal provocation because mere words, no matter how opprobrious, are insufficient to constitute adequate legal provocation when death is caused by the use of a deadly weapon. E.g., State v. Butler, 277 S.C. 452, 290 S.E.2d 1, cert. denied, 459 U.S. 932, 103 S.Ct. 242, 74 L.Ed.2d 191 (1982). Instead, when death is caused by The cases relied upon by Rogers are clearly distinguishable. In Lowry, we found that the trial judge should have charged voluntary manslaughter where the defendant shot the decedent after the decedent taunted the defendant then moved toward him in a menacing fashion with his arms outstretched as if to grab him. Id. at ----, 434 S.E.2d at 273. The Court found that a jury could reasonably conclude that when taken together, the menacing words and the actions constituted a legal provocation sufficient to produce sudden heat of passion. Id. at ----, 434 S.E.2d at 274. In State v. Jackson, 301 S.C. 41, 389 S.E.2d 650 (1990), voluntary manslaughter was properly charged where there was evidence that the decedent approached the defendant, reached into his pocket, and said "I'm come to kill you, bitch." Id. at 43, 389 S.E.2d at 651. In both Lowry and Jackson, the threat was clear and overt.

                use of a deadly weapon, offending words must be accompanied by an "overt, threatening act ... which could have produced the heat of passion."  Lowry, 315 S.C. at ----, 434 S.E.2d at 274.   Burditt's allegedly leaning in his truck simply does not constitute an overt, threatening act adequate to constitute sufficient legal provocation
                

In this case, there was no overt threat: According to Rogers's own statement, Burditt was, in fact, moving away from Rogers and made no statements evincing an intent to injure Rogers. Furthermore, there was no evidence that Burditt had struck or assaulted anyone. In fact, none of the persons describing the incident, including Rogers himself, points to anything that would indicate an overt threat to Rogers. Given these facts, we find there was no evidence of sufficient legal provocation, and the trial judge did not err in refusing to charge voluntary manslaughter.

II. Sentencing Phase

Rogers next argues that he was entitled to a jury charge that if sentenced to life in prison, he would never be eligible for parole. See Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994); State v. Southerland, 316 S.C. 377, 447 S.E.2d 862 (1994), cert. denied, --- U.S. ----, 115 S.Ct. 1136, 130 L.Ed.2d 1096 (1995). We agree.

In Simmons, a plurality of the United States Supreme Court held that when a capital defendant would be ineligible for parole if sentenced to life in prison and the State argues the defendant's future dangerousness as a basis for imposition of the death penalty, the defendant is entitled to have the jury informed of his ineligibility...