The State v. Starnes

• Decision Date: 16 August 2010
• Docket Number: No. 26868.,26868.
• Citation: 388 S.C. 590,698 S.E.2d 604
• Parties: The STATE, Respondent,v.Norman STARNES, Appellant.
• Court: South Carolina Supreme Court

388 S.C. 590

698 S.E.2d 604

The STATE, Respondent,v.Norman STARNES, Appellant.

No. 26868.

Supreme Court of South Carolina.

Heard March 4, 2010.

Decided Aug. 16, 2010.

Rehearing Denied Sept. 22, 2010.

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Senior Appellate Defender Joseph L. Savitz, III, and Appellate Defender Elizabeth Franklin-Best, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, Senior Assistant Attorney General S. Creighton Waters, of Columbia, and Solicitor Harold W. Gowdy, III, of Spartanburg, for Respondent.

Justice KITTREDGE.

This is a direct appeal in a death penalty case. Appellant Norman Starnes was charged with the murder of Bill Welborn and Jared Champlain. ¹ At trial, Appellant represented himself. A jury found Appellant guilty of both murders and recommended the death penalty. In this direct appeal, Appellant argues the trial court erred in failing to give a voluntary manslaughter charge, raises issues regarding a capital defendant's right to self-representation, and asserts he did not knowingly and voluntarily waive his right to counsel. We affirm.

I.

Appellant owned a restaurant (“the restaurant”) in Pelion, South Carolina. On January 8, 1996, Bill Welborn and Jared Champlain, friends of Appellant, came into the restaurant to eat and eventually left with Appellant to go to a local bar. When Bill and Jared did not return home that night, their girlfriends filed missing person reports. Police investigated the men's disappearance, but were unable to establish any leads until May 1996 when Appellant's girlfriend, Gwen Ott contacted police and told them Appellant had killed Bill and Jared.

Gwen was working at the restaurant on January 8. After Appellant, Jared, and Bill left the restaurant, Appellant returned twice to get money out of the cash register. Appellant returned a third time with a mark on his temple and appeared very upset. He told Gwen that Bill had pistol-whipped him in the bathroom of the bar. Appellant retrieved his gun and bullets from a shelf in the kitchen and told her he was going to kill “them.” When Appellant returned later, he told Gwen, “Let's go, that they were dead.”

Gwen testified Appellant drove her to his house, where she saw Jared's body in the front room and Bill's body in the bedroom. Appellant told Gwen that Jody Fogle had come over to facilitate a drug transaction and he saw Jared pull a gun on Jody. Appellant admitted to Gwen that he shot Jared and Bill. Gwen testified that Appellant removed all items from the men's pockets, placed the bodies in the trunk of his car, and cleaned the blood from the house before leaving. Appellant returned later that night and asked Gwen to follow him in a separate car to his uncle's property. When they arrived at the property, Gwen saw Jared's and Bill's bodies around the back of the house. Appellant kicked and urinated on the bodies, loaded them into the back of a pickup truck, and took them to the back of the woods on the property. During the drive home, Appellant threw his gun into the Edisto River.

From January until the bodies were discovered in May, Appellant assisted law enforcement in the search for the victims, even appearing on television pleading for any evidence that would help find his friends. Also during this period, Appellant received word of a foul odor on his uncle's farm. Appellant returned to his uncle's property, dug up the graves, and covered the bodies with lime in an effort to hide the smell. As noted, Gwen's tip led to the discovery of the bodies and the charges against Appellant.

Appellant elected to represent himself at trial and to testify in his own defense. Appellant testified that after he, Jared, and Bill left the restaurant, they went to a local bar. While in the bar's restroom, Bill came up behind Appellant, grabbed his throat, put a metal object to the back of his head,² and began yelling at Appellant about money Appellant allegedly stole from him. Later, Bill remarked to one of the bar's employees that she “better call the police because he was going to take [Appellant] up on Platt Springs Road and blow his F'in brains out.” ³

After the three men left the bar, Bill told Appellant to take him to Jody's house to get drugs. Instead, Appellant dropped Bill and Jared off at Appellant's house and then picked up Jody and brought him back to the house. Appellant testified he heard Jared cussing and saw him pointing a gun at Jody. Appellant stated that he ran into the bedroom and retrieved his gun. As he exited the bedroom, Bill said “whoa” and was pointing a gun at him. Appellant testified he shot Bill, then he turned and shot Jared.

The defense called Jody to testify. On direct examination, Jody testified that Jared pulled a gun on him and asked him: “[W]here is the dope?” Jared told Jody he would kill him. Jody testified that Bill took the gun from Jared, and then Appellant shot them. On cross-examination, Jody admitted that Appellant unexpectedly arrived at his house and asked Jody to come back to his house to “watch his back” because he was having trouble with Bill and Jared. Appellant asked Jody if he had a gun with him, but Jody said he did not. Jody testified when he and Appellant arrived at the house, Appellant immediately went into the bedroom and began fumbling around. Jody maintained that Jared charged at him with the gun, but stated Bill took the gun from Jared and everyone calmed down. Jody testified Appellant came out of the bedroom and fired three shots at Bill and then fired at Jared. Jody demanded Appellant take him home.⁴

The trial court charged the jury on murder and self-defense, but refused to charge voluntary manslaughter. The jury found Appellant guilty of both murders. In the sentencing phase, the trial court gave three statutory aggravating circumstances charges: 1) the defendant committed the murders while in the commission of robbery while armed with a deadly weapon; 2) the defendant committed the murders while in the commission of larceny while armed with a deadly weapon; and 3) two or more persons were murdered by the defendant by one act or pursuant to one scheme or course of conduct. Additionally, the trial court gave four statutory mitigating circumstances: 1) the defendant had no significant criminal history; 2) the victims were participants in the defendant's conduct or consented to the act; 3) the defendant acted under duress or domination of another person; and 4) the defendant was provoked by the victims into committing the murders. The jury found the existence of all three aggravating circumstances beyond a reasonable doubt and recommended the death penalty.

II.

Appellant argues the trial court erred in failing to charge the jury on the law of voluntary manslaughter. We disagree. Voluntary manslaughter is the unlawful killing of a human being in sudden heat of passion upon sufficient legal provocation. State v. Wharton, 381 S.C. 209, 214, 672 S.E.2d 786, 788 (2009).

To warrant the court eliminating the charge of manslaughter, there must be no evidence whatsoever tending to reduce the crime from murder to manslaughter. Id. If there is any evidence from which it could be inferred the lesser, rather than the greater, offense was committed, the defendant is entitled to such charge. Dempsey v. State, 363 S.C. 365, 371, 610 S.E.2d 812, 815 (2005).

We have consistently held that both heat of passion and sufficient legal provocation must be present at the time of the killing. Wharton, 381 S.C. at 215, 672 S.E.2d at 788. A defendant is not entitled to a voluntary manslaughter charge merely because he was in a heat of passion. See id. (holding the State's request for a voluntary manslaughter charge was not warranted where there was no evidence of sufficient legal provocation, although the defendant may have been acting under heat of passion). Conversely, a defendant is not entitled to voluntary manslaughter merely because he was legally provoked. See State v. Pittman, 373 S.C. 527, 576, 647 S.E.2d 144, 170 (2007) (holding although sufficient legal provocation arguably existed, there was no evidence the defendant was in a heat of passion). Moreover, there must be evidence that the heat of passion was caused by sufficient legal provocation.

Appellant bases his entitlement to a voluntary manslaughter charge on his testimony that when Bill pointed a gun at him, he felt threatened and was in fear. Appellant argues the threat of an imminent deadly assault was sufficient to entitle him to a voluntary manslaughter charge. Appellant cites to several cases from this Court to support this argument.

The State, which concedes the propriety of the self-defense charge, counters that our case law should not be read so broadly as to sanction a voluntary manslaughter charge that is based upon the mere testimony that the defendant was “afraid.” While acknowledging that self-defense and voluntary manslaughter are not mutually exclusive, the State asserts “it does not follow that manslaughter should be charged simply because a defendant claiming self-defense testifies he was afraid.” The State claims there was no evidence Appellant shot the victims in the heat of passion, and therefore, the trial court correctly refused to charge voluntary manslaughter.

Whether a voluntary manslaughter charge is warranted turns on the facts. If the facts disclose any basis for the charge, the charge must be given. Given Appellant's argument, which takes our case law and turns primarily fact-driven holdings into broad statements of law, we take this opportunity to clarify the law regarding how a defendant's fear following an attack or a threatening act relates to voluntary manslaughter.

Trial courts often struggle with the difficult interplay between murder and the lesser-included offense of voluntary manslaughter,⁵ especially where a defendant claims he acted in self-defense. This struggle may be...