State v. Taylor, 25637.

• Decision Date: 12 June 2002
• Docket Number: No. 25637.,25637.
• Citation: 356 S.C. 227,589 S.E.2d 1
• Parties: The STATE, Respondent, v. Therl Avery TAYLOR, Petitioner.
• Court: South Carolina Supreme Court

356 S.C. 227

589 S.E.2d 1

The STATE, Respondent, v. Therl Avery TAYLOR, Petitioner.

No. 25637.

Supreme Court of South Carolina.

Heard November 16, 2002.

Refiled June 12, 2003.

Katherine Carruth Link and South Carolina Office of Appellate Defense, of Columbia, for petitioner.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, all of Columbia; and Solicitor Thomas E. Pope, of the Sixteenth Judicial Circuit, for respondent.

Chief Justice TOAL:

Petitioner, Theryl Avery Taylor ("Petitioner"), petitioned this Court to review the Court of Appeals' decision affirming his conviction for murder on grounds that the trial court erred in charging mutual combat to the jury. This Court granted certiorari and issued an opinion reversing Petitioner's murder conviction. Subsequently, Petitioner filed a Petition for Rehearing, arguing that this Court must also reverse his conviction for Possession of a Firearm or Knife during Commission of a Violent Crime pursuant to S.C.Code Ann. § 16-23-490 (2003). This Court granted the Petition for Rehearing and issues the following opinion reversing both of Petitioner's convictions.

FACTUAL / PROCEDURAL BACKGROUND

On December 16, 1998, Petitioner hired Robert Murphy ("Murphy"), fourteen year-old Shane Wallace, and Shane's teenaged friend Dean, to help him in his tree service business. After working that day, Petitioner and Murphy drove the two young men to the home of Shane's mother, Angela Wallace, an acquaintance of both Murphy and Petitioner. When they arrived at Angela's house, Petitioner and Murphy went inside and joined Angela, Myranda Stillinger, and Kevin Carter who had been drinking heavily all day. Shane, Dean, and Shane's sister, Chrystal, played outside.

While the testimony varied widely regarding many of the relevant facts, all witnesses agreed that, at some point in the evening, Kevin and Myranda began arguing. Petitioner testified that Kevin forcefully pushed Myranda into a counter. All parties agreed that Petitioner intervened, either physically or verbally, to stop the apparently escalating argument between Kevin and Myranda. Kevin and Petitioner then engaged in a violent, physical confrontation; however, the witnesses disagree about who started the fight and about its intensity at various points.

At trial, Murphy testified that the fight began when Petitioner "sucker-punched" Kevin. Murphy reported, "[a]nd that's when [Petitioner] said, you know, I'm not afraid of you, big man. And [Kevin] said, I'm not afraid of you either. And that's when [Petitioner] said, we're going to hell or jail. And all of sudden, he just hauled off and punched [Kevin] in the head while [Kevin] was sitting down.¹ Petitioner, on the other hand, testified that Kevin threw the first punch, and that he tried to withdraw from the fight, but that Kevin would not release him and continued to beat him. Other witnesses asserted that Kevin, not Petitioner, attempted to quit fighting. All witnesses agree that Angela insisted the two take the fight outside, and that they continued their struggle on the porch of the trailer and into the front yard.

At some point thereafter, Petitioner drew a buck knife from his pocket, and began stabbing Kevin. The autopsy report disclosed that Kevin was stabbed fifteen times and died of a stab wound to the heart. The autopsy reported Kevin was six feet two inches tall and weighed approximately 270 pounds at the time of his death. A physical examination of Petitioner a few days after the fight revealed Petitioner had undergone abdominal surgery in the weeks preceding this incident after a car accident, but indicated no new cuts or bruises. Petitioner was substantially smaller than Kevin.

At trial, Petitioner admitted he stabbed Kevin, but alleged he did so in self-defense. The trial judge charged the jury on self-defense and, over Petitioner's objection, on mutual combat, as follows:

We also have the law in this state regarding what is sometimes referred to as mutual combat. This premise is in the law where two persons are mutually engaged in combat and one kills the other. And at the time of the killing it being maliciously done as murder.

If it be done in the sudden heat of passion upon sufficient provocation or without premeditation, it would be manslaughter.

One who provokes or initiates an assault and not [sic] escape from the liability may find in self-defense a defense to a prosecution arising with respect to injury or death of their adversary.

And where a person voluntarily participates in mutual combat for purposes other than protection you cannot justify or excuse the killing of the adversary in the course of such conduct on the ground of self-defense, regardless of what extremity or even peril he may be introduced to in the process of the combat. Unless in either event before the homicide is committed the person withdraws and does in good faith decline from the conflict and either by word or by act makes that known to their adversary.

Then if the adversary pursues them the aggressor may upon the belief that they are in danger injure or kill the adversary. Communication by one to an adversary or attempt to withdraw may be explicit or verbal by use of words or may be implicit by conduct, such as retiring or attempting to retire from the scene and abandoning conflict.

The jury convicted Petitioner of murder and possession of a weapon during commission of a violent crime. The trial judge sentenced Petitioner to thirty-six years for murder and five years, concurrent, for the weapons charge. The Court of Appeals affirmed Petitioner's convictions. The State v. Therl Avery Taylor, Op. No. 2000-UP-484 (S.C. Ct.App., filed June 26, 2000). This Court granted certiorari to review the following issue:

Did the trial court err in delivering a charge on mutual combat to the jury, and, if so, was Petitioner prejudiced by the charge?

LAW/ANALYSIS

Petitioner argues that the Court of Appeals erred in affirming the trial court's jury charge on mutual combat. We agree.

In general, the trial judge is required to charge only the current and correct law of South Carolina, Cohens v. Atkins, 333 S.C. 345, 509 S.E.2d 286 (Ct.App.1998), and the law to be charged to the jury is determined by the evidence at trial. State v. Hill, 315 S.C. 260, 262, 433 S.E.2d 848, 849 (1993). To warrant reversal, a trial judge's charge must be both erroneous and prejudicial. Ellison v. Parts Distributors, Inc., 302 S.C. 299, 395 S.E.2d 740 (Ct.App.1990).

The doctrine of mutual combat has existed in South Carolina since at least 1843, but has fallen out of common use in recent years. The case law does establish that there must be "mutual intent and willingness to fight" to constitute mutual combat. State v. Graham, 260 S.C. 449, 450, 196 S.E.2d 495, 495 (1973). Mutual intent is "manifested by the acts and conduct of the parties and the circumstances attending and leading up to the combat." Id. Whether or not mutual combat exists is significant because "the plea of self-defense is not available to one who kills another in mutual combat." Id. (citing State v. Jones, 113 S.C. 134, 101 S.E. 647 (1919)). In order to claim self-defense, the defendant "must be without fault in bringing on the difficulty." State v. Davis, 282 S.C. 45, 46, 317 S.E.2d 452, 453 (1984). Because mutual combat requires mutual intent and willingness to fight, if a defendant is found to have been involved in mutual combat, the "no fault" element of self-defense cannot be established.

If the defendant is engaged in mutual combat, self-defense is unavailable unless the defendant withdraws from the conflict before the killing occurs.² A finding that a defendant was engaged in mutual combat does not preclude the jury from convicting the defendant of manslaughter as opposed to murder. "Where two persons mutually engage in combat, and one kills another, and at the time of the killing it be maliciously done, it is murder; if it be done in sudden heat and passion upon sufficient provocation without premeditation or malice, it would be manslaughter." State v. Andrews, 73 S.C. 257, 53 S.E. 423 (1906).

The doctrine has most often been applied in situations where the defendant and decedent bear a grudge against each other before the fight in which one of them is killed occurs. State v. Porter, 269 S.C. 618, 239 S.E.2d 641 (1977) (holding mutual combat precluded a plea of self-defense where Appellant returned to injured party's property at least twice with a gun despite prior verbal warnings not to return and accompanying gunshots); Graham, 260 S.C. at 451,196 S.E.2d at 496 (finding mutual combat charge proper where appellant and deceased had quarreled prior to the killing, each knew that the other was armed with a pistol, and each fired his gun at the other); State v. Mathis, 174 S.C. 344, 177 S.E. 318 (1934) (finding mutual combat charge proper based on testimony that appellant and deceased were on the lookout for each other, that each was armed in anticipation of meeting the other, and that each drew and fired his pistol at the other).³

Although South Carolina has not explicitly required that the fight arise out of a pre-existing dispute, other states have made this prerequisite to mutual combat explicit. Texas and Colorado adhere to the rule that an "antecedent agreement to fight" must exist for the court to charge mutual combat. Eckhardt v. People, 126 Colo. 18, 247 P.2d 673 (1952); People v. Cuevas, 740 P.2d 25 (Colo.App.1987); Lujan v. State, 430 S.W.2d 513, 514 (Tex.Crim.App.1968); Carson v. State, 89 Tex.Crim. 342, 230 S.W. 997 (1921).

Georgia has limited the application of mutual combat in another way by holding that mutual combat arises only when the parties are armed with deadly weapons, and that mutual combat does not arise from "a mere fist fight or scuffle." Flowers v. State, 146 Ga.App. 692, 247 S.E.2d 217, 218 (1978); Grant v....