State v. Starnes
| Citation | 531 S.E.2d 907,340 S.C. 312 |
| Decision Date | 08 May 2000 |
| Docket Number | No. 25119.,25119. |
| Court | United States State Supreme Court of South Carolina |
| Parties | The STATE, Respondent, v. Norman E. STARNES, Appellant. |
Joseph L. Savitz, III, of South Carolina Office of Appellate Defense, of Columbia, for appellant.
Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, Assistant Attorney General Derrick K. McFarland, Assistant Attorney General S. Creighton Waters, of Columbia; and Solicitor Donald V. Myers, of Lexington, for respondent.
Appellant admitted he shot and killed Bill Welborn and Jarrod Champlin. He maintained the shootings were in self-defense. Appellant was convicted of two counts of murder and possession of a firearm during the commission of a violent crime. The jury found one statutory aggravating circumstance and recommended a sentence of death.1 The trial judge sentenced appellant to death and a concurrent sentence of five years' imprisonment. We reverse.
Jody Fogle testified appellant arrived unexpectedly at his home at 10:00 p.m. on January 8, 1996. According to Fogle, appellant told him he wanted help moving some things. During the drive to appellant's home, appellant told Fogle about two men who had put a gun to his head and threatened to kill him. Fogle stated appellant demonstrated by holding a .22 gun to his head. Fogle testified he took the gun from appellant, determined it was loaded, then placed it on the car seat. A .38 revolver was on the dash of the car.
Fogle testified Welborn and Champlin were at appellant's home. He denied meeting either Welborn or Champlin previously. Fogle described Welborn and Champlin as "wired" as if on drugs. Champlin asked appellant to return his gun. Appellant gave Champlin the .22, the same gun appellant had been handling in the car. Appellant went into his bedroom; Fogle could hear appellant fumbling around in the bedroom.
Fogle testified Champlin asked him if he had some "dope." Fogle responded negatively. Champlin "chambered a round" in the gun, worked the slide, came towards Fogle stating "[I'm] going to kill [your] lying a—," and pointed the gun at Fogle's chest. Fogle testified he could tell Champlin was serious; he admitted, at that time, he would have shot Champlin if he had been able. Welborn told Champlin to give him the .22 and Champlin complied. A couple of seconds later, appellant shot Welborn three times with the .38 revolver.
Appellant testified Fogle had previously met Welborn. He explained while at a New Year's Eve party ten days before the shooting, Welborn asked appellant if he knew where he could get some crystal "meth," an illegal drug. Appellant stated no one at the party had the drug. Later, Fogle arrived at the party. Appellant testified Fogle had crystal methamphetamine. Appellant introduced Fogle to Welborn. He was not certain if a drug transaction occurred, but Welborn inquired if there was an automatic teller machine at the bank next door.
Appellant testified two nights before the shootings Welborn put an unknown amount of money in his pocket. Later the same evening, he returned the money to Welborn; he was unsure if he returned all of the money.
Appellant testified on January 8, 1996, he was at the restaurant he owned when Welborn and Champlin arrived. Welborn remained outside in a car. Appellant went outside and asked Welborn why he did not come inside and Welborn stated appellant owed him $40. Appellant gave Welborn $40 from the restaurant cash register and Welborn came inside the restaurant. Appellant described Welborn as "real agitated," "wired," "just acting unusual," "just full of energy." Appellant described Champlin as "hyper."
Appellant, Welborn, and Champlin left the restaurant. Appellant testified Welborn asked if appellant was afraid to die and commented about the $40. The three men went to a bar. Appellant testified Welborn was "still acting real antsy," "pacing the pool table." He thought Welborn was "coming down off of a high." Appellant described Champlin as "antsy, kind of wired, same as [Welborn] was acting, but not as bad."
Appellant stated while he was in the bathroom at the bar, Welborn came up behind him, grabbed him around the throat, and hit him in the head with a metal object which he thought was either a gun or a cigarette lighter. Welborn asked again about the $40 and stated "[y]ou don't do your fing friends like that."
Appellant left the bar with Welborn and Champlin.3 He testified Welborn and Champlin asked him to get them some drugs. Appellant left Welborn and Champlin at his home and went to Fogle's home. He testified he did not take Welborn and Champlin with him because Fogle had previously told him he did not want any customers at his home. Appellant picked up Fogle and drove him to his (appellant's) home in order for Fogle to provide Welborn and Champlin with drugs. Appellant testified when he and Fogle entered his house, Welborn was on the telephone. Welborn hung up, put his arm around appellant's neck, and asked if they were going to "score." Appellant heard some noise. Champlin was cursing and pointing a gun at Fogle. Appellant testified he thought Champlin was going to shoot Fogle. He stated he had no idea why Champlin pulled a gun on Fogle.
Appellant stated he was scared and ran into his bedroom to "get away." He realized there was no exit, obtained his pistol, placed it in his back pocket, and returned to the living room in order to leave through the front door. He was opening the front door when Welborn yelled Appellant turned around; Welborn was pointing a gun at him. Appellant testified he thought Welborn was going to shoot him. When he heard a "click," appellant pulled his revolver and shot Welborn multiple times. Welborn did not fire any shots.
Appellant testified he immediately thereafter shot Champlin, although he agreed he was not paying attention to Champlin and Fogle while he was in the bedroom and while he was reacting to Welborn. He testified he shot Champlin because "I thought he was going to shoot me." He admitted Champlin never pointed a gun at him. Appellant testified he did not know Champlin had given his gun to Welborn and Champlin was no longer armed. Appellant concluded he shot Welborn and Champlin "[b]ecause I thought I was going to get shot."
Appellant argues the trial judge erred by refusing to provide the jury with more specific instructions regarding self-defense. He contends the judge should have instructed the jury A) he had the right to act on appearances and B) he did not have to wait before shooting. We agree.
With regard to self-defense, the trial judge instructed the jury, in part, as follows:
Self-defense is a complete defense. If established you must find the defendant not guilty. Now, in this case there are three elements that you would consider that are required by law to establish self-defense. First, first (sic), the defendant must be without fault in bringing on the difficulty. Second, he must have actually believed, actually believed (sic) that he was in imminent danger of losing his life or sustaining serious bodily injury or he actually was in such imminent danger. Third, if his defense is based upon his belief of imminent danger, then the reasonable person of ordinary firmness and courage would have entertained the same belief. If a defendant actually was in imminent danger, then the circumstances must have been such as would warrant a person of ordinary firmness, prudence and courage to strike the fatal blow in order to save himself from serious bodily harm or losing his own life.4
(Emphasis added).5
In State v. Fuller, 297 S.C. 440, 377 S.E.2d 328 (1989), this Court held it error for the trial judge to exclusively charge the Davis instruction on self-defense when the defendant requests additional charges and the evidence supports the requests. The Court instructed the trial court to fashion an appropriate self-defense charge based on the facts and circumstances of each case.
In Fuller, the defendant requested a charge that he had the right to act on appearances. Quoting State v. Jackson, 227 S.C. 271, 278-279, 87 S.E.2d 681, 684-685 (1955), the Court set forth an appropriate charge on right to act on appearances:
A defendant must show that he believed he was in imminent danger, not that he was actually in such danger, because he had the right to act on appearances, and under the circumstances as they appeared to him, he believed he was in such danger and a reasonable prudent man of ordinary firmness and courage would have entertained the same belief.
State v. Fuller, supra 297 S.C. at 443-444, 377 S.E.2d at 331; see also State v. Gandy, 113 S.C. 147, 148, 101 S.E. 644 (1919) ().
Appellant was not entitled to an appearance charge in regard to the Welborn shooting. According to a...
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