S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
v.
James Joseph Lewis,
Jr., Appellant.
Appeal From Horry County
Daniel E. Martin, Sr., Judge
Opinion No. 24720
Heard October 7, 1997 - Filed December 8, 1997
AFFIRMED
Deputy Chief Attorney Joseph L. Savitz, III, of
South Carolina Office of Appellate Defense, of
Columbia, for appellant.
Attorney General Charles Molony Condon, Deputy
Attorney General John W. McIntosh, Assistant
Deputy Attorney General Salley W. Elliott, and
Senior Assistant Attorney General Norman Mark
Rapoport, of Columbia; and Ralph J. Wilson, of
Conway for respondent.
BURNETT, A.J.: On November 2, 1995, appellant broke into
his estranged wife's home and shot her paramour at close range, killing
him. Appellant was indicted on murder and first degree burglary charges.
He was convicted of voluntary manslaughter and first degree burglary, but
found mentally ill.
p. 3
STATE v. LEWIS
Appellant argues the trial judge erred by failing to instruct the
jury on insanity. He contends his own testimony and that of lay witnesses
supported an instruction on insanity. We disagree.
ISSUE
Did the trial judge err by refusing appellant's request to instruct the
jury on insanity?
FACTS
Appellant testified he and Charlotte began living together in
March 1991 and married in March 1993. Throughout the marriage,
appellant was suspicious of Charlotte's relationships with other men.
Appellant and Charlotte separated in June 1995. Charlotte moved into
her own residence. After their separation, appellant learned some of
Charlotte's relationships had been adulterous.
Appellant testified between the separation and the shooting, he
lost 70 pounds, had difficulty sleeping, saw a "nerve specialist," and
contemplated suicide. Appellant testified he did not remember going to
work two days before the shooting. The day before the shooting, appellant
saw a psychiatrist who prescribed medication.
The morning of the shooting, appellant testified he awoke and
felt at peace because he had decided to visit Charlotte and then take his
own life. Appellant remembered telephoning Charlotte and telling her he
was going to shoot himself on her front porch. Appellant explained he sat
on Charlotte's front porch with the gun in his mouth waiting for someone
to look out the window, but no one did. Appellant testified the next thing
he remembered was the gun going off. He realized he had shot Sammy,
who was laying half-dressed in Charlotte's bed. Appellant maintained he
did not intend to harm anyone other than himself.1
After the shooting, appellant admitted following Charlotte out
of her residence with the gun in his hand, but after seeing two police
officers with their guns drawn, he turned around and went back into the
home. Appellant allowed emergency personnel into the residence to
1 Appellant neither admitted nor denied knowing Sammy was inside
Charlotte's home, however, Charlotte testified she told appellant over the
telephone Sammy was there and "[they] were still in bed."
p. 4
STATE v. LEWIS
remove Sammy.2 Appellant stated he remained in the home with a gun to
his head and shot himself when the SWAT team threw in tear gas because
he "thought they may be able to take me out alive."3
On cross-examination, appellant testified he "wasn't in [his]
right mind that morning;" "I didn't do anything logical that day." He
testified he must have been "totally out of [his] mind."
A neighbor testified she saw appellant the evening before the
shooting. He was slumped in a chair and was acting differently; he did
not hear anything she was saying; he cried; he was "completely out of it;"
he was "severely disturbed." The neighbor testified she thought appellant
was going to kill himself. Another neighbor testified she never saw
appellant lose his temper.
Appellant's employee testified months prior to the shooting,
appellant quit coming to work on a regular basis and was dazed and
depressed.
Appellant's sister, who resided in Maryland, testified weeks
prior to the shooting, appellant would telephone and, when she answered,
he would be crying and incoherent. She testified she visited appellant a
few days before the shooting because she was concerned he would kill
himself. The sister testified appellant was not a violent person.
Appellant's daughter testified she was very worried about
appellant after he and Charlotte separated. Appellant would telephone
her and cry, and spend hours talking about how he missed Charlotte. On
the day of the shooting, appellant telephoned his daughter at 6:00 a.m.;
she thought he was going to kill himself.
Both the prosecution and defense medical experts testified
appellant suffered from severe depression, a mental illness, at the time of
the commission of the crimes, but concluded appellant was able to
distinguish between right and wrong. Appellant's expert testified, because
2Charlotte testified she heard Sammy breathing before she fled from
her home. The forensic pathologist testified Sammy died several hours
after the shooting.
3Police negotiated with appellant for seven hours before the SWAT
team entered the home.
p. 5
STATE v. LEWIS
of his severe depression, appellant was unable to conform his conduct to
the requirements of the law.4
DISCUSSION
In every criminal case, it is presumed the defendant is sane.
State v. Milian-Hemandez, 287 S.C. 183, 336 S.E.2d 476 (1985). Insanity
is an affirmative defense to a prosecution for a crime. Id.
South Carolina has adopted the M'Naghten test to determine
insanity.5 A defendant is insane if, at the time of the commission of the
act constituting the offense, as a result of mental disease or defect, he
lacked the capacity to distinguish moral or legal right from moral or legal
wrong or to recognize the particular act charged as morally or legally
wrong. S.C. Code Ann. 17-24-10(A)(Supp. 1996). "[T]he key to insanity
is 'the power of the defendant to distinguish right from wrong in the act
itself - to recognize the act complained of is either morally or legally
wrong'." State v. Wilson 306 S.C. 498, 506, 413 S.E.2d 19, 23, cert.
denied, 506 U.S. 846 (1992), quoting State v. McIntosh, 39 S.C. 97, 17 S.E.
446 (1893).
A defendant may rely on lay testimony to establish insanity.
State v. Hinson, 253 S.C. 607, 172 S.E.2d 548 (1970); see also, State v.
Rimert, 315 S.C. 527, 446 S.E.2d 400, cert. denied, 513 U.S. 1080
(1994)(State relied on lay testimony to establish sanity); State v. Smith,
298 S.C. 205, 379 S.E.2d 287 (1989)(where defendant presents expert
testimony on his insanity, State is not required to present expert
testimony on sanity; lay testimony may be sufficient). In fact, a jury may
disregard expert testimony. Milian-Hernandez, supra.
The law to be charged is determined from the facts presented
at trial. State v. Todd, 290 S.C. 212, 349 S.E.2d 339 (1986). A requested
charge on insanity is properly refused where there is no evidence tending
4This testimony alone supported the charge on guilty but mentally ill(GBMI). A defendant is GBMI, "if, at the time of the commission of the
act constituting the offense, he had the capacity to distinguish right from
wrong or to recognize his act as being wrong ... but because of mental
disease or defect he lacked sufficient capacity to conform his conduct to
the requirements of the law." S.C. Code 17-24-20(A)(Supp. 1996).
5M'Naghten's Case, 8 Eng. Rep. 718 (1843).
p. 6
STATE v. LEWIS
to show the defendant was insane at the time of the crime charged. 23A
C.J.S. Criminal Law 1321 (1989).
Appellant contends his own testimony and the testimony of lay
witnesses established he could not distinguish between right and wrong or
recognize his acts as wrong at the time of the shooting. Appellant relies
on his characterization of his mental condition as "out of [his] mind" at the
time of the offense and other witnesses' descriptions of his mental state
near the time of the offense.
After carefully reviewing the evidence presented, we conclude
appellant was not entitled to a charge on insanity. While it is
uncontroverted appellant suffered from severe depression, the evidence
does not suggest he was unable to distinguish between right and wrong o
unable to recognize his actions as morally or legally wrong at the time of
the offense. Even appellant's own testimony that he was "out of [his]
mind" does not indicate he could not differentiate between right and wrong
or recognize his conduct as wrong.6 We note "there are but few instances
where one slays another while his mind is in normal condition." State v.
Gardner, 219 S.C. 97, 107, 64 S.E.2d 130, 135 (1951), citing Anderson v.
State, 148 S.W. 802 (Tex. App. 1912)
6 See Brodka v. State, 298 So.2d 55 (Ala. 1974)(evidence was
insufficient to sustain plea of insanity and court was justified in
instructing jury to that effect despite defendant's testimony he was
depressed, upset, "something just came over him," and he "didn't know
what he was doing at the time of the shooting"); McClendon v. State, 278
S.E.2d 96 (Ga. App. 1981)(testimony that just prior to assault defendant
was "going crazy," was not evidence defendant did not have mental
capacity to distinguish between right and wrong); State v. Roy , 60 P.2d
646 (N.M. 1936)(evidence defendant was "polluted half the time or crazy or
something" after the death of his wife, cried, "wasn't himself," and on the
day of the homicide "looked kind of wild in his eyes ... just looked
something out of the ordinary; figgety [sic], like" did not show at time of
crime defendant was not able to distinguish right from wrong); State v.
Davis, 334 S.E.2d 509 (N.C.App. 1985) (defendant's testimony at time of
the homicide he "lost [his] mind," "was so mixed up right then," and "went
completely out of [his] mind" was not evidence of insanity); De La Garza v.
State, 650 S.W.2d 870 (Tex. App. 1983)(defendant's testimony he was sleep
deprived, intoxicated, confused, and "out of control" was insufficient to
support a jury charge on insanity).
p. 7
STATE v. LEWIS
Moreover, appellant's own testimony suggests he was sane.
After killing Sammy, appellant testified he chased Charlotte out of her
home then ran back inside when he saw police officers with their guns
drawn. He allowed an emergency crew into the home to remove Sammy,
who was still alive. Thereafter, appellant remained in Charlotte's
residence for hours, threatening to shoot himself but not doing so until the
SWAT team entered. These actions suggest appellant recognized the
gravity of the situation and that his conduct was wrong, and tend to
establish his sanity rather than his insanity. Id. S.C. at 106, S.E.2d at
135 (defendant not entitled to insanity charge even though police testified,
shortly after the homicide, defendant "didn't act clear" and "looked like a
madman," but stated he was "ready to be electrocuted;" the statement
showed the defendant "fully appreciated the gravity of his act.").
Since there was no evidence appellant was unable to
distinguish between right and wrong or unable to recognize his actions as
wrong at the time of the offense, there was no evidence of insanity and
the trial judge properly refused appellant's request to charge insanity.
State v. Todd- supra. 7 Appellant's conviction is AFFIRMED.
FINNEY, C.J., TOAL, MOORE and WALLER, A.J., concur.
7 In State v. Campen, 321 S.C. 505, 469 S.E.2d 619 (Ct. App. 1996),
the Court of Appeals held, in dicta, a defendant was properly entitled to a
charge on insanity where he had testified he had mental difficulties most
of his life, suffered from paranoia, and, on the day of the offense, he was
paranoid, confused, had no control over his actions, and needed
psychological help. We overrule Campen insofar as it found this evidence
supported a charge on insanity.
p. 8