The State v. Dickey

• Decision Date: 18 October 2011
• Docket Number: No. 27047.,27047.
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent,v.Jason Michael DICKEY, Petitioner.

394 S.C. 491

716 S.E.2d 97

The STATE, Respondent,

v.Jason Michael DICKEY, Petitioner.

No. 27047.

Supreme Court of South Carolina.

Heard March 2, 2011.Decided Sept. 26, 2011.Rehearing Denied Oct. 18, 2011.

Lourie A. Salley III, of Lexington, for Petitioner.Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Christina J. Catoe, and Daniel E. Johnson, all of Columbia, for Respondent.Chief Justice TOAL.

Jason Michael Dickey (Petitioner) appeals the court of appeals' decision affirming his conviction of voluntary manslaughter. State v. Dickey, 380 S.C. 384, 669 S.E.2d 917 (Ct.App.2008). We find Petitioner was entitled to a directed verdict on the issue of self-defense. Therefore, we reverse.

Factual/Procedural Background

In April 2004, Petitioner was employed as a security guard at Cornell Arms apartments in Columbia, where he also resided. Although not required by his employer for his duties, Petitioner carried a loaded pistol, for which he held a valid concealed weapons permit.

On April 29, 2004, Joshua Boot and his friend, Alex Stroud, met Amanda McGarrigle and Tara West while tailgating at a Jimmy Buffet concert. After several hours of heavy drinking, Boot and Stroud accompanied McGarrigle and West, who were roommates, back to their apartment at Cornell Arms. Stroud testified Boot was “pretty intoxicated” and had consumed up to twenty beers and several shots of tequila throughout the day. As McGarrigle and Boot sat on the couch in her apartment, a neighbor threw a water balloon through an open window, splashing Boot. The water balloon tossing was part of an ongoing joke between neighbors. However, the prank so angered Boot that he threatened to physically assault the person who splashed him.¹ Fearful of trouble, McGarrigle asked Boot to leave the apartment, and Boot refused. He instead went to find the culprit, in what McGarrigle described as an aggressive, angry manner. Boot began banging on neighbors' doors, which prompted McGarrigle to go to the security desk, where Petitioner was on duty, and ask Petitioner to evict her guest. McGarrigle, Petitioner, and McGarrigle's friend, Morteza Safaie, whom she met along the way, searched for Boot on several floors and eventually found him back in her apartment. Boot stepped outside into the hall and Petitioner identified himself as the security guard on duty and asked Boot to leave. According to Safaie and McGarrigle, who were standing in the hallway, Boot responded by shouting expletives at Petitioner and telling him “he couldn't make him do anything,” then re-entering the apartment and slamming the door. Petitioner knocked on the door and again asked Boot to leave, without making any threatening comments or gestures or raising his voice. Boot again slammed the door in Petitioner's face. According to Stroud, who, at this point, had come out of West's bedroom, stated that Boot was “awfully” angry and Petitioner seemed “pretty unhappy.” While standing outside the door to the apartment, Petitioner called the Columbia police to report the disturbance, and then asked McGarrigle and Safaie to go downstairs to let the officers inside the building. Meanwhile, inside the apartment, Stroud attempted to calm Boot and eventually convinced him they should leave. West witnessed Boot tuck a liquor bottle in his shorts before he exited the apartment.²

As Boot and Stroud walked toward the elevator, Petitioner kept his distance and the parties did not exchange words. However, Stroud testified Boot and Petitioner were “staring each other down.” Petitioner chose not to ride with Stroud and Boot in the elevator, instead opting to take the stairs. The silence continued in the lobby as Petitioner followed several feet behind the men while they walked toward the exit. Petitioner testified that he noticed a Crown Victoria pass by the lobby windows and thought the police had arrived. He stated he followed Boot and Stroud outside so he could inform the police of the direction they were walking. According to Stroud, Petitioner stood in the vicinity of the Cornell Arms doormat watching them silently as they walked toward Sumter Street. Kristy Ann Murphy witnessed the scene from a bench located in front of the Cornell Arms doorway. She testified that Petitioner asked the men to leave in an unthreatening manner, while Boot shouted obscenities at Petitioner. Stroud testified that the derogatory comments Boot made about Petitioner were directed to Stroud only. After walking halfway down the block, Stroud turned around first and asked Petitioner, “[W]hy the f––– [are you] following [us].” Stroud testified that Petitioner just stood there, making no gestures or comments. Boot and Stroud then turned and started walking towards Petitioner quickly. Petitioner testified Boot threatened to “whip [his] a—.” Stroud testified he made at most two steps, while Boot took two or three big steps, placing Boot nearer to Petitioner than Stroud. Stroud testified further that as Boot advanced toward Petitioner, he was in the mood to fight and planned to harm Petitioner. Petitioner, in turn, testified the two men were covering ground very quickly and if he turned his back he was afraid of being attacked from behind with no way to defend himself. ³ When Boot was approximately fifteen feet away, Petitioner pulled a gun from his pocket. Petitioner testified he pulled the gun to discourage the two men from attacking him. Stroud took a few steps back at the sight of the gun, but Boot continued to advance toward Petitioner in an aggressive manner. Petitioner testified he saw Boot reach under his shirt as he continued forward, and Petitioner feared he was reaching for a weapon. ⁴ Without warning, Petitioner fired a shot, striking Boot. After the first shot, Boot took another step toward Petitioner. Petitioner's second shot stopped Boot. Petitioner then fired a third shot as Boot dropped to his knees. Petitioner immediately put the gun back in his pocket and called 911.

The first officer to arrive at the scene heard the three shots. As soon as the officer exited his vehicle, Petitioner stated, “I shot him, I am security for the building. I have a concealed weapons permit, and the gun is in my right front pants pocket. I didn't have a choice. He came at me with a bottle.” Investigators found a broken liquor bottle at the scene with a blood smear on the neck of the bottle matching Boot's DNA. According to the State's expert witness, smearing can occur when someone picks up an object or brushes against something.

Subsequently, a Richland County grand jury indicted Petitioner for murder. At the beginning of Petitioner's September 2006 trial, his counsel moved for the dismissal of Petitioner's murder charge pursuant to the recent enactment of the “Protection of Persons and Property Act,” which codified the common law Castle Doctrine. S.C.Code Ann. § 16–11–410 (Supp.2010). The circuit judge denied the motion, finding the Act did not apply to pending criminal cases. Petitioner's counsel twice moved for a directed verdict of acquittal on the ground that Petitioner was acting in self-defense when he shot Boot. The circuit judge denied both motions.

The circuit judge charged the jury on the crimes of murder and voluntary manslaughter, and on the affirmative defense of self-defense. Petitioner's counsel objected to the voluntary manslaughter charge, arguing there was no evidence to support this charge. Petitioner's counsel additionally challenged that the judge's self-defense instructions were inadequate. The circuit judge denied these motions, and the jury convicted Petitioner of committing voluntary manslaughter. The circuit judge sentenced Petitioner to sixteen years' imprisonment. The court of appeals affirmed. Dickey, 380 S.C. at 384, 669 S.E.2d at 917. Specifically, the court held the circuit judge: (1) properly denied Petitioner's motion for acquittal on the ground of self-defense; (2) sufficiently instructed the jury on the law of self-defense; (3) correctly submitted the charge of voluntary manslaughter to the jury; (4) adequately instructed the jury regarding the charge of voluntary manslaughter; and (5) properly refused to retroactively apply the “Protection of Persons and Property Act” to Petitioner's case. This Court granted Petitioner's petition for a writ of certiorari. Petitioner appeals all of the grounds upon which the court of appeals affirmed his conviction. Finding Petitioner was entitled to a directed verdict of acquittal on the ground of self-defense, we reach that issue only. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (appellate court need not address remaining issues when disposition of prior issue is dispositive).

Standard Of Review

In criminal cases, the appellate court only reviews errors of law and is clearly bound by the trial court's factual findings unless the findings are clearly erroneous. State v. Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006).

Analysis

“A defendant is entitled to a directed verdict when the state fails to produce evidence of the offense charged.” State v. Weston, 367 S.C. 279, 292, 625 S.E.2d 641, 648 (2006). “If there is any direct or substantial circumstantial evidence reasonably tending to prove the guilt of the accused, the appellate court must find the case was properly submitted to the jury.” Id. at 292–93, 25 S.E.2d at 648. However, when a defendant claims self-defense, the State is required to disprove the elements of self-defense beyond a reasonable doubt. Wiggins, 330 S.C. at 544–45, 500 S.E.2d at 492–93. We find the State did not carry that burden.

A person is justified in using deadly force in self-defense when:

(1) The defendant was without fault in bringing on the difficulty;

(2) The defendant ... actually believed he was in imminent danger of losing his life or sustaining...