According to eyewitness Chraius Geter, appellant got a weapon and “was just swinging it around in the air . . . and a shot went off.”  ROA p. 25, lines 10 – 25.  Geter further testified appellant had been pointing the weapon at people while he was swinging it around.  ROA p. 30, lines 15 – 17.    Edward Morris Wharton, appellant’s cousin, testified he thought appellant meant to shoot in the air when “the gun went off accidentally.”  ROA p. 65, lines 4 – 12.  Clifton Deshon Shaw, yet another eyewitness, testified “I thought [appellant] was going to shoot in the air.”  ROA p. 77, line 25 – 95, line 1.  It was undisputed that the victim died from the shooting. 

ARGUMENT

1.  The trial judge erred in charging the jury on the law of voluntary manslaughter.

The state overcharged appellant with murder.  It clearly failed to meet its burden of proof that there was anything approaching malice aforethought.  Appellant was, under these circumstances, entitled to require the jury to return with an “all or nothing” verdict.  Instead, the trial judge gave the state exactly what it asked for – a charge on voluntary manslaughter but not involuntary manslaughter or accident.  ROA p. 93, line 22 – p. 95, line 25.  This was error.   

The error was not harmless.  Appellant was convicted of the lesser-included offense only after the jury struggled extensively, sought to be recharged on the definition of manslaughter, the concept of transferred intent, and the difference between implied and expressed malice.  The jury actually asked sua sponte to either be charged on the law of involuntary manslaughter or given an explanation regarding why it was not an option.   ROA p. 109, line 6 – p. 111, line 14.  The judge had incorrectly instructed the jury that transferred intent was not relevant to a manslaughter charge.  He attempted to correct the error by recharging the jury.  ROA p. 112, line 19 – p. 113, line 1. Next, the jury asked for a written copy of the definition of manslaughter.  ROA p. 113, lines 10 – 11.

Appellant was prejudiced by the judge tailoring the jury charge to suit the state, including a charge of voluntary manslaughter over the objection of the defense.  This error was not harmless as it might have been had the jury convicted appellant of murder rather than acquitting him.  State v. Mitchell, 330 S.C. 189, 498 S.E.2d 642 (1998) (submitting voluntary manslaughter over defendant’s objection rendered harmless where jury convicted defendant of the greater offense of murder). 

2. The trial judge erred in failing to charge the jury on the law of involuntary manslaughter.

In determining whether an accused is entitled to a jury charge, the facts must be viewed in the light most favorable to the defendant.  State v. Johnson, 333 S.C. 62, 508 S.E.2d 29 (1998).  Involuntary manslaughter is “(1) the unintentional killing of another without malice, but while engaged in an unlawful activity not naturally tending to cause death or great bodily harm; or (2) the unintentional killing of another without malice, while engaged in a lawful activity with reckless disregard for the safety of others.”  State v. Crosby, 355 S.C. 47, 51, 584 S.E.2d 110, 112 (2003).  Involuntary manslaughter requires a finding of criminal negligence, in other words, the reckless disregard of the safety of others.  S.C. Code Ann. § 16-3-60 (1985). 

Here, the facts present a classic case of involuntary manslaughter.  Appellant was entitled to a jury charge on involuntary manslaughter, particularly in light of the fact that the state was granted its request for a jury charge on voluntary manslaughter.  Appellant has demonstrated prejudice by the fact that the jury on its own accord requested the charge.    

3. The trial judge erred in failing to charge the jury on the law of accident. 

 Accident will excuse a homicide where (1) the killing was unintentional, (2) the defendant was acting lawfully, and (3) due care was exercised in the handling of the weapon.  State v. Chatman, 336 S.C. 149, ___, 519 S.E.2d 100, 102 (1999); State v. Goodson, 312 S.C. 278, 440 S.E.2d 370 (1994).  All three of the elements of accident present questions of fact for the jury. 

The jury in this case should have been instructed on the law of accident, especially where there was affirmative testimony that the tragedy was in fact an accident.  ROA p. 65, lines 10 – 12.  It was not seriously controverted that the homicide was unintentional.  Finally, whether appellant used due care in the handling of the weapon is yet another factual issue to be determined by the jury rather than the trial judge.  Appellant was entitled under the Constitutions of both the United States and the State of South Carolina to put the state to its burden of proof.  Appellant presented no defense, as he is entitled to do.  He is also entitled to have his jury charged on the law where there is any evidence whatsoever to support the lesser offenses.  The trial judge erred in denying defense counsel’s request to charge the law of accident.  See, e.g., State v. Burriss, 334 S.C. 256, 513 S.E.2d 104 (1999).

CONCLUSION

Appellant’s conviction and sentence for voluntary manslaughter should be reversed.  Because the weapons possession charge is derivative, he is entitled to a new trial on that charge also.

January 20, 2004

CERTIFICATE OF COUNSEL

The undersigned certifies that this Final Brief complies with Rule 211(b), SCACR.

January 20, 2004