State v. Smith
| Decision Date | 15 August 2018 |
| Docket Number | Opinion No. 5591,Appellate Case No. 2015-001905 |
| Citation | 425 S.C. 20,819 S.E.2d 187 |
| Parties | The STATE, Respondent, v. Michael Juan SMITH, Appellant. |
| Court | South Carolina Court of Appeals |
Appellate Defender David Alexander, of Columbia, for Appellant.
Attorney General Alan McCrory Wilson, Assistant Senior Attorney General William M. Blitch, Jr., and Solicitor Daniel Edward Johnson, all of Columbia, for Respondent.
Appellant Michael Juan Smith seeks reversal of his conviction for attempted murder. Appellant argues (1) he was entitled to a directed verdict because the State failed to prove he had the specific intent to kill the victim; (2) he was entitled to a mistrial based on improper statements made by the solicitor during her closing argument because the statements violated his due process right to a verdict based only on the evidence of his guilt; and (3) the circuit court erred by instructing the jurors they could infer malice based on the "felony murder rule" because the underlying felonies were not inherently dangerous and involved merely possession of a firearm.1 We affirm.
The facts in the light most favorable to the State are as follows. On Sunday, October 13, 2013, at approximately 2 a.m., Appellant and his four companions, Ryan Ellison, Shante Bethel, Asia Bethel, and Taqayya White, were in Columbia's Five Points, which was crowded and noisy, when they encountered a group of three men, Byron Tucker, Donnell Woodard, and Daquan Samuel. The three men flirted with Appellant's female companions, causing tension between these men and Appellant. A silent video shows the men exchanging words with Appellant, but the written record references only one specific word uttered—Donnell Woodard used the word, "slob," which "is a disrespect toward the Bloods,"2 a notorious gang. Members of Appellant's family as well as several of his friends were members of the Bloods, and Appellant admitted to being an unofficial member of the Bloods.3 One of Appellant's female companions, Shante Bethel, testified that none of the three men said anything threatening but rather they were merely disrespectful. Likewise, Taqayya White testified that the three men were not intimidating.
Immediately after the confrontation, Appellant, who admitted he had been drinking and "smoking weed" that night, took a gun out of the inside pocket of his jacket, moved it to the outside right pocket, and kept his hand in that pocket. He testified that he and his companions then began walking toward their car and the three men followed them. Appellant also testified, "somebody said they had a gun" and he heard a gunshot, so he cocked his gun to put a round in the chamber and "fired one shot back," intending to target at least one of the three men. Instead, Appellant's bullet struck Martha Childress (Victim) in her chest at the seventh rib and passed through her diaphragm and liver and into her spinal canal, transecting her spinal cord and paralyzing her from the waist down.
White's statement to police contradicted Appellant's testimony that he heard a shot before he fired his gun—she told police that Appellant was the only one who fired a shot that night. His other three companions also testified at trial, admitting they did not see anyone pull out a gun or fire a shot at Appellant.4 A disinterested eyewitness observed a muzzle flash coming from Appellant but did not see anyone else with a gun.
Tucker gave a version of events that was different from Appellant's version. Tucker, who described Five Points as "Blood territory," testified that after Samuel tried to entice Appellant's female companions with money, Appellant "turned to walk back in [their] direction and then that's when the first shot rang out." Tucker, who did not have a gun that night, ducked, then a second shot "came out."
Officer Theodore McLaughlin with the City of Columbia Police Department testified that he "was standing on the corner of Devine and Harden Street observing the students as they were crossing the street" when he heard one or two gunshots "coming from the fountain area." He then "saw [Appellant] running in the sidewalk dodging ... people on the sidewalk." Officer McLaughlin continued, Officer McLaughlin caught Appellant in front of Pop's Pizza, grabbing him "at the jacket front and his right pocket," and felt a pistol in that pocket. As Officer McLaughlin reached inside the pocket to retrieve the pistol, Appellant's hand was still on it. Officer McLaughlin pulled Appellant's hand out of the pocket and took the pistol, observing that it was a Glock 27 that was "still warm to the touch." As Officer McLaughlin began to unload the pistol, he noticed there was a round chambered in it.
On November 13, 2013, Appellant was indicted for attempted murder, possession of a weapon during the commission of a violent crime, unlawful carrying of a pistol, possession of a firearm by a person convicted of a violent felony, and possession of a stolen pistol. On December 18, 2013, he was indicted for unlawful possession of a weapon by a person convicted of a crime of violence. The circuit court conducted Appellant's trial on August 10–14, 2015, and August 17, 2015.
At trial, Appellant argued he was acting in self-defense, explaining that he associated with gang members and when he encountered members of a rival gang on the morning in question, he acted to protect himself. The circuit court directed a verdict for Appellant on the stolen pistol charge, and the jury convicted Appellant of the remaining charges. He was sentenced to one year of imprisonment for unlawful carrying of a pistol; thirty years for attempted murder; five years for possession of a weapon during the commission of a violent crime, to run consecutively; five years for possession of a weapon by a person convicted of a violent felony, also to run consecutively; and five years for possession of a weapon by a person convicted of a crime of violence. This appeal followed.5
1. Was Appellant entitled to a directed verdict on the attempted murder charge?
2. Was Appellant entitled to a mistrial based on improper statements made by the solicitor during her closing argument?
3. Did the circuit court err by instructing the jurors they could infer malice based on the "felony murder rule" when the underlying felonies involved possession of a firearm?
4. Did the circuit court's felony murder rule instruction violate State v. Norris ?6
5. Did the circuit court's felony murder rule instruction violate State v. Belcher ?7
"[W]hen ruling on a motion for a directed verdict, the [circuit court] is concerned with the existence of evidence, not its weight." State v. Butler , 407 S.C. 376, 381, 755 S.E.2d 457, 460 (2014) (quoting State v. Wiggins , 330 S.C. 538, 545, 500 S.E.2d 489, 493 (1998) ). Likewise, on appeal, "this [c]ourt must affirm the [circuit] court's decision to submit the case to the jury" when "the [S]tate has presented ‘any direct evidence or any substantial circumstantial evidence reasonably tending to prove the guilt of the accused.’ " State v. Hepburn , 406 S.C. 416, 429, 753 S.E.2d 402, 409 (2013) (quoting State v. Cherry , 361 S.C. 588, 593, 606 S.E.2d 475, 478 (2004) ). In making this determination, "this [c]ourt views the evidence and all reasonable inferences in the light most favorable to the State." State v. Pearson , 415 S.C. 463, 470, 783 S.E.2d 802, 806 (2016) (quoting Butler , 407 S.C. at 381, 755 S.E.2d at 460 ).
Mistrial
"The granting or refusing of a motion for a mistrial lies within the sound discretion of the trial court and its ruling will not be disturbed on appeal absent an abuse of discretion amounting to an error of law." State v. Harris , 340 S.C. 59, 63, 530 S.E.2d 626, 627–28 (2000). "An abuse of discretion occurs when the [circuit] court's ruling is based on an error of law or, when grounded in factual conclusions, is without evidentiary support." State v. Jones , 416 S.C. 283, 290, 786 S.E.2d 132, 136 (2016).
Jury Instructions
"An appellate court will not reverse the trial judge's decision regarding a jury charge absent an abuse of discretion." State v. Mattison , 388 S.C. 469, 479, 697 S.E.2d 578, 584 (2010).
Appellant asserts he was entitled to a directed verdict on the attempted murder charge because the State was required to show his specific intent to kill Victim and the State could not rely on the transferred intent doctrine to make this showing. We disagree.
We begin by comparing the elements of murder with those of attempted murder. "The elements of the common-law offense of murder are codified at [ section 16-3-10 of the South Carolina Code (2015) ]: ‘ "Murder" is the killing of any person with malice aforethought, either express or implied.’ " State v. Watson , 349 S.C. 372, 376, 563 S.E.2d 336, 337 (2002) (quoting section 16-3-10 ). We find the following definition of "malice aforethought" instructive:
"Malice aforethought" is defined as "the requisite mental state for common-law murder" and it utilizes four possible mental states to encompass both specific and general intent to commit the crime. These four possibilities are intent to kill, intent to inflict grievous bodily harm, extremely reckless indifference to the value of human life (abandoned and malignant heart), and intent to commit a felony (felony murder rule). "General intent" is defined as "the state of mind required for the commission of certain common law crimes not requiring specific intent" and it "usually takes the form of recklessness ... or negligence."
State v. Kinard , 373 S.C. 500, 503–04, 646 S.E.2d 168, 169 (Ct. App. 2007) (citations
omitted) (quoting Black's Law Dictionary 813, 969 (7th ed. 1999) ).8
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