State v. Wigington

• Decision Date: 26 July 2007
• Docket Number: No. 4281.,4281.
• Citation: 649 S.E.2d 185
• Parties: The STATE, Respondent, v. George WIGINGTON, Appellant.
• Court: South Carolina Court of Appeals

649 S.E.2d 185

The STATE, Respondent, v. George WIGINGTON, Appellant.

No. 4281.

Court of Appeals of South Carolina.

Submitted June 1, 2007.

Decided July 26, 2007.

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

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

HUFF, J.

Appellant, George Wigington, was convicted of murder and possession of a firearm during the commission of a violent crime in the shooting death of his son, Scott. He appeals, asserting the trial judge erred in refusing to instruct the jury on (1) self-defense and (2) involuntary manslaughter. We affirm.¹

FACTUAL/PROCEDURAL BACKGROUND

Appellant and his son, Scott, Scott's two daughters, and Scott's girlfriend all lived together at the time of Scott's death. Jessica, Scott's daughter and appellant's granddaughter, testified to the events leading up to the shooting. On the night of June 26, 2005, Jessica and her father, Scott, engaged in a loud argument, discussing the matter for over an hour. Around 7:00 the next evening, Scott told Jessica he wanted to talk to her about what had happened the previous night. Jessica entered her father's bedroom and the two began talking. Scott was lying in his bed under the covers. During their discussion, appellant came home. At this time, Jessica and Scott were cutting each other off as they discussed the matter, and Jessica "squealed" because her father was not letting her talk.

Appellant entered the bedroom and Jessica was crying, saying her father would not let her talk. Appellant told them they could not both talk at the same time, then moved in front of Scott, who was still in his bed. Appellant and Scott began "hollering" at each other and the argument escalated. Appellant was crouched over Scott when Jessica heard her father yell that appellant had hit him; however, she did not actually see whether any punches were thrown. Scott stood up from the bed and walked into the hallway. Appellant pursued him, and the two stood on each side of a door, yelling. The argument continued as Scott went into the living room and sat in a chair.

Appellant walked into the living room and stood in front of Scott. At this point, Jessica observed appellant strike Scott in his head and shoulders with three or four punches. Scott stood from his chair, but did not hit his father or physically defend himself. He walked to the hall and said to appellant, "if you hit me again I'll kill you." Appellant told Scott to sit down, and Scott complied, returning to the same chair. Appellant sat down as well, the two facing each other as they spoke. Appellant stated, "I thought you were going to hurt her," and Scott replied, "I haven't hurt her, but you have." Appellant then became increasingly upset and enraged. He leaned over a table between them, pointed his finger at Scott, and told Scott to shut up. Appellant then stood and walked out the side door to the carport, while Scott remained seated. As appellant was walking out the door, Scott stated, "you're gonna get your gun, aren't you." Appellant returned, standing where he stood before he left. Jessica was looking into her father's eyes when she heard a gunshot, saw blood coming from his eyes and face, and then saw her father slump over in the chair.

Jessica stated that at no point did her father hit, strike, kick at, or throw anything at appellant. She further testified that after her grandfather came back inside, as she was looking at her father, her father was not swinging or reaching. Right before she heard the gunshot, Scott sat with his hands in his lap, by his side.

Appellant took the stand in his defense. He testified that, on the night of the incident, he arrived home around seven o'clock. As he pulled into his carport, he heard a loud argument. He entered the house and determined the voices were coming from his son's bedroom. As he walked into the bedroom, he saw his granddaughter standing near the bed with tears running down her face as Scott berated her. Appellant told Scott, who was lying in his bed, to calm down and not be so loud. Scott sat up on the side of the bed and kept arguing loudly. Appellant left the bedroom and walked to the den. He was followed by Jessica, and then by Scott, who was still arguing. Appellant told Scott he was being too loud and that he needed to give Jessica a chance to talk. Appellant and Scott sat down, and the arguing continued. Appellant stood, walked over to Scott in his chair, put his hand on Scott's shoulder, and told Scott he needed to calm down and let Jessica talk. Scott immediately jumped up and stood beside his chair. Appellant testified Scott "didn't advance on me," but that Scott stated, "if you put your hands on me again, I'll kill you."

Appellant testified he had been the victim of criminal domestic violence involving his son in 1998, and when his son made that statement, he did not know what would happen next. He feared for his and his grandchildren's safety and wanted to protect them and himself, so he walked out to his car and retrieved a pistol. He looked at the gun to ensure the safety was on and then put it in his pocket before walking back into the room. Scott remarked, "went and got your gun," and appellant stated, "yes, I did." Appellant told Scott it was getting out of control and they were going to have to "de-escalate" things. Appellant had the gun out in his hand, but was not pointing it at Scott, who was sitting in a chair. Scott grabbed appellant's hand with the gun in it. Appellant was concerned Scott was trying to get the gun out of his hand. He did not point the gun directly at Scott until Scott grabbed his hand, and then the gun was "more or less pointing at him." When asked if he pulled the trigger, appellant stated that he evidently did, but that he did not mean to pull it and was surprised because the safety was on the gun. When he saw the bullet had struck Scott, he told another granddaughter to call 911. Appellant denied that he ever hit Scott during the incident. He admitted, though, that Scott never hit him either.

Defense counsel requested the court charge the jury on self-defense. The trial court declined, finding appellant failed to meet two of the elements of self-defense: (1) that the defendant be without fault in bringing on the difficulty and (2) that he had no other probable way to avoid the danger of death or serious bodily injury than to act as he did under the circumstances. Defense counsel then stated, "if you were to charge self-defense, I believe we would be entitled to an instruction on voluntary manslaughter." The trial court responded it would deny the request for an involuntary manslaughter charge based on the reasons stated. After submission of the matter to the jury, appellant was found guilty of murder and possession of a firearm during the commission of a violent crime.²

STANDARD OF REVIEW

The evidence presented at trial determines the law to be charged. State v. White, 361 S.C. 407, 412, 605 S.E.2d 540, 542 (2004). If there is any evidence in the record to support self-defense, the issue should be submitted to the jury. State v. Burkhart, 350 S.C. 252, 260, 565 S.E.2d 298, 302 (2002). Additionally, if any evidence exists to warrant a jury charge on the lesser-included offense of involuntary manslaughter, then the charge must be given. State v. Cabrera-Pena, 361 S.C. 372, 380, 605 S.E.2d 522, 526 (2004).

LAW/ANALYSIS

I. Self-defense

Appellant first contends the trial court erred in refusing to instruct the jury on the law of self-defense. We disagree.

If there is any evidence of record from which it can be reasonably inferred that an accused justifiably inflicted a wound in self-defense, then the accused is entitled to a charge on the law of self-defense. State v. Adkinson, 280 S.C. 85, 86, 311 S.E.2d 79, 80 (1984), overruled on other grounds by State v. Stone, 285 S.C. 386, 330 S.E.2d 286 (1985). A jury charge on self-defense is not required unless it is supported by the evidence. State v. Bryant, 336 S.C. 340, 344, 520 S.E.2d 319, 321 (1999). In order to establish self-defense in South Carolina, the following four elements must be present: (1) the defendant must be without fault in bringing on the difficulty; (2) the defendant must have been in actual imminent danger of losing his life or sustaining serious bodily injury, or he must have actually believed he was in imminent danger of losing his life or sustaining serious bodily injury; (3) if his defense is based upon his belief of imminent danger, a reasonably prudent person of ordinary firmness and courage would have entertained the same belief that he was actually in imminent danger and the circumstances were such as would warrant a person of ordinary prudence, firmness and courage to strike the fatal blow in order to save himself from serious bodily harm or loss of his own life; and (4) the defendant had no other probable means of avoiding the danger. Id. at 344-45, 520 S.E.2d at 321-22.

In the instant case, appellant fails to meet at least two of the necessary elements of self-defense. First, appellant does not meet the requirement that he be without fault in bring on the difficulty. "`[O]ne who provokes or initiates an assault cannot escape criminal liability by invoking self defense. . . .'" Id. at 345, 520 S.E.2d at 322 (quoting Ferdinand S. Tinio, Comment Note: Withdrawal, After Provocation of Conflict, As Reviving Right Of Self-Defense, 55 A.L.R.3d 1000, 1003 (1974)). "Any act of the accused in violation of law and reasonably calculated to produce the occasion amounts to bringing on the difficulty and bars his right to assert self-defense as a justification or excuse for a homicide." Id. In the very recent case of State v. Slater, 373 S.C. 66, 644 S.E.2d 50 (2007) (...