State v. Smith

Decision Date20 March 2008
Docket Number2008-UP-194
PartiesThe State, Respondent, v. David Dwight Smith, Appellant.
CourtSouth Carolina Court of Appeals

THIS OPINION HAS NO PRECEDENTIAL VALUE, IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

Heard November 6, 2007

Appeal From Spartanburg County Doyet A. Early, III, Circuit Court Judge

Chief Attorney Joseph L. Savitz, III, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, and Assistant Deputy Attorney General Donald J. Zelenka, all of Columbia; and Solicitor Harold W. Gowdy, III, of Spartanburg, for Respondent.

PER CURIAM

David Dwight Smith (Smith) was convicted of murder and possession of a firearm during the commission of a violent crime. He asserts on appeal the trial judge erred in refusing to instruct the jury on: 1) voluntary manslaughter, 2) involuntary manslaughter, and 3) accident. We reverse and remand.

FACTS

Smith was indicted for murder and possession of a firearm during the commission of a violent crime. The charges arose from the January 12, 1997 shooting of Robert Finley (Finley). At trial, the jury found Smith guilty of both charges and the judge sentenced him to life imprisonment for murder and five years, concurrent, for possession of a firearm during the commission of a violent crime.

Smith unsuccessfully appealed his case and then filed an application for post-conviction relief (PCR) alleging (1) ineffective assistance of counsel and (2) failure to call an expert witness. After a hearing, the judge granted Smith post-conviction relief.

Smith was retried on October 31, 2005. The jury found him guilty of both charges. The judge sentenced him to imprisonment for thirty-five years for murder and five years, concurrent, for possession of a firearm during the commission of a violent crime.

At trial, testimony revealed that at approximately 2:30 a.m. on the night in question Finley walked to Otis Hyder's (Hyder) mobile home to use his phone. Finley wanted to purchase some crack cocaine and called a dealer, Rodney Smith (Rodney). [1] Rodney refused to help Finley, but Rodney's sister, Angie Smith (Angie), volunteered to set up a drug buy between Finley and another dealer, Smith. Smith picked Angie up at home and the two drove to meet Finley at Otis Hyder's mobile home.

Initially Smith stayed in the car while Angie entered Hyder's trailer. She attempted to facilitate the drug deal, but Finley wanted to deal with Smith directly. Angie returned to the car and informed Smith of the situation. Smith walked into the trailer; once inside Smith realized Finley did not have money for the deal and that Finley insisted on keeping the drugs. Smith testified that Finley tried to rob him. The situation escalated into a fight and struggle over control of a firearm that was in Smith's possession. During the fight, the firearm discharged striking Finley in the left eye killing him.

During the first trial, Judge Derham Cole charged the jury on the law of voluntary manslaughter, involuntary manslaughter, and accident, the three charges at issue in this appeal. In the case at hand, Judge Jack Early charged the jury on murder and self-defense. In addition, Smith requested charges on voluntary manslaughter, involuntary manslaughter, and accident, which the judge denied.

STANDARD OF REVIEW

In criminal cases, the appellate court sits to review errors of law only.” State v. Wilson, 345 S.C. 1, 5-6 545 S.E.2d 827, 829 (2001); State v. Wood, 362 S.C 520, 525, 608 S.E.2d 435, 438 (Ct. App. 2004). Generally, the trial judge is required to charge only the current and correct law of South Carolina. Sheppard v. State 357 S.C. 646, 665, 594 S.E.2d 462, 472-73 (2004); State v. Brown, 362 S.C. 258, 261-62, 607 S.E.2d 93, 95 (Ct App. 2004). The law to be charged must be determined from the evidence presented at trial.” State v. Patterson, 367 S.C. 219, 231, 625 S.E.2d 239, 245 (Ct. App. 2006). If any evidence supports a jury charge, the trial judge should grant the request. Brown, 362 S.C. at 262, 607 S.E.2d at 95. Due process requires that a lesser included offense be charged when the evidence warrants it but only if the evidence would permit a jury rationally to find the defendant guilty of the lesser offense.” State v. Small, 307 S.C. 92, 94, 413 S.E.2d 870, 871 (Ct. App. 1992). To warrant reversal, a trial court's refusal to give a requested jury charge must be both erroneous and prejudicial to the defendant.” Patterson, 367 S.C. at 232, 625 S.E.2d at 245.

DISCUSSION

ISSUE:

Did the trial judge err in refusing to charge voluntary manslaughter, involuntary manslaughter, and accident?

Voluntary Manslaughter

First Smith contends that his murder conviction should be reversed and remanded for a new trial based on the trial judge's failure to charge the jury on the law of voluntary manslaughter. We agree.

Voluntary manslaughter is defined as the unlawful killing of a human being in the sudden heat of passion upon sufficient legal provocation.” State v. Knoten, 347 S.C. 296, 302, 555 S.E.2d 391, 394 (2001). Both heat of passion and sufficient legal provocation must be present for the killing to constitute voluntary manslaughter. Id. at 302, 555 S.E.2d at 394; State v. Cole, 338 S.C. 97, 101-02, 525 S.E.2d 511, 513 (2000).

[T]o warrant the Court in eliminating the offense of manslaughter it should very clearly appear that there is no evidence whatsoever tending to reduce the crime from murder to manslaughter.State v. Gardner, 219 S.C. 97, 64 S.E.2d 130, 134 (1951) (citing State v. Norton, 28 S.C. 572, 6 S.E. 820 (1888)). Moreover, South Carolina case law consistently holds that a request to charge a lesser included offense is properly refused only when there is no evidence that the defendant committed the lesser rather than the greater offense. See State v. Goldenbaum, 294 S.C. 455, 457, 365 S.E.2d 731, 732 (1988). In determining whether the evidence requires a charge on voluntary manslaughter, this Court must view the facts in the light most favorable to the defendant.” Cole, 338 S.C. at 101, 525 S.E.2d at 512-13 (citing State v. Byrd, 323 S.C. 319, 474 S.E.2d 430 (1996)).

The record supports a charge on the law of voluntary manslaughter. Smith claims the victim was attempting to rob him thereby provoking the altercation which he ultimately claims caused the alleged accidental shooting. Smith specifically testified that Finley was coming toward me, the expression on his face and everything was a real serious demeanor, and I, you know, I didn't know what to expect from him next:... [h]e looked like he was on something.” Smith further stated, [a]s I said, he had this look about him, and he was approaching me. So, I took the gun out of my pocket hoping that if he saw it, that maybe he would cease.” Smith also testified that Finley tries to knock the gun out my hand. He hit me with the left, with the left arm and grabbed me in my collar of the jacket... I thought I was gonna lose the gun. He had hit it and I got the grip on the gun and he's got me... I went to defend myself. I threw my left arm over his, over his arm that he had me grab, and I hit him with the butt of the gun.... I was trying to get out of there... He was coming up on me, I was afraid.... I was hitting him with the gun and it went off and hit him in the face.”

This testimony, coupled with the testimony of Angie who described the encounter right before the shot was fired as two men scuffling and falling out of the trailer door, sufficiently depicts a fight between Finley and Smith immediately preceding the shooting and after Smith claimed Finley was trying to rob him. Thus, the record contains testimony from Smith that Finley initiated the physical confrontation by trying to rob him and aggressively approaching him. Smith testified he was trying to escape the situation and feared Finley would gain possession of the firearm. Moreover, Smith testified that the discharge of the pistol was a [f]luke accident. I was hitting him with the gun and it went off and hit him in the face.” Smith testified I didn't intend to use it, and I never pointed it at him.”

The trial judge, in denying Smith's request to charge voluntary manslaughter, determined that there was insufficient evidence to show sudden heat of passion although Smith claimed Finley tried to...

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