THIS OPINION HAS NO PRECEDENTIAL VALUE
THIS
OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS
PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of
Appeals
The State, Respondent,
v.
Reginald Tyrell Clea, Appellant.
Appeal From Sumter County
Clifton Newman, Circuit
Court Judge
Unpublished
Opinion No. 2007-UP-552
Submitted
December 1, 2007 Filed December 14, 2007
AFFIRMED
Chief Attorney Joseph L. Savitz, III, South Carolina Commission of Indigent Defense, 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 Melody J. Brown, all of Columbia; and Solicitor C.
Kelly Jackson, of Sumter, for Respondent.
PER
CURIAM:
Reginald Tyrell Clea (Clea) was convicted of one count of murder and possession
of a firearm during the commission of a crime of violence. He was acquitted on
a second murder charge. On appeal, Clea argues the trial judge erred in not
charging the jury on the lesser included offense of voluntary manslaughter. We
affirm.[1]
FACTS
Clea
admittedly shot and killed Charles Jackson (Jackson) and James Pollard
(Pollard). John Lee Powell (Lee) testified he was with Pollard the day of the
shootings. Pollard picked Lee up earlier in the day, and they were later
joined by Maurice Young (Young). They drove together to Rembert to find Clea
and buy doghouses from him. Pollard and Clea had shared a residence prior to
the shootings and had bred dogs. Clea left several dogs at Pollards new home,
and the dogs did not have doghouses. Pollard paid Clea for the doghouses,
and all four men amicably loaded them onto Cleas truck.
The
group drove to Pollards new home and, as they were unloading, Jackson arrived in his car. Jackson spoke cordially with Lee and then approached Pollard.
The group continued to interact in a friendly manner when Jackson called Clea
over to Jacksons car so he could show him something. Lee said Jacksons tone was good natured. When Lee heard the first shots, his back was to Clea, but
he turned to see Clea shooting at Jackson. He asked Clea why he was shooting at
Jackson, and Clea repeatedly answered that Jackson had a gun. Clea fired
again as Jackson crawled through his car to exit the passenger side. Lee told
Clea to stop shooting, but Clea again replied Jackson had a gun. Lee never saw
Jackson with a gun, nor did he hear shots come from Jacksons direction.
Pollard,
who was near the car, asked Clea why he was shooting at Jackson and Clea turned
towards him. As Pollard walked towards Clea repeating his question, Clea
started shooting at Pollard. Lee did not see a weapon on Pollard and had no indication
he was armed. He heard Clea ask Jackson to show his hand, but Lee was unable
to observe Jackson who now lay on the ground on the opposite side of the car. Jackson yelled numerous times for Pollard to tell Clea he didnt have a gun, however
Pollard had already been shot. After Lee and Young left the yard, Lee heard
another set of gunfire.
Young
testified to being at Pollards home unloading the doghouses. Soon after Jackson arrived, he heard gunshots and turned to see Clea shoot at Jackson. He didnt see
Jackson shoot back and saw no gun other than Cleas. After the first shots,
he recalled Clea said Jackson was going to get a gun. Jackson stated, no, I
aint got no gun, I aint got no gun. Young heard Lee tell Clea to put the
gun down, and he heard more shots as he left the yard.
According
to Cleas testimony, he sold the doghouses to Pollard as a last detail from
their having lived together. He explained he had previous difficulties with the
victims and knew both had reputations for violence. The day of the shooting, Pollard
and Young stopped him on the road to discuss the doghouses. No one was upset
and no cross words were exchanged. Clea helped load the doghouses onto his
truck, drove them to Pollards residence, and unloaded one with Pollards
help. Jackson drove up shortly afterwards, and they worked together to unload
another doghouse.
When
Jackson told Clea he needed to talk with him, Clea reported he was not
suspicious at first. But, as he walked toward the car and his truck, a chill
went up [his] back. Because he did not want to speak with Jackson, he
continued towards his truck so [he] could leave. As Clea was about to sit in
the truck, he saw Jackson reach into the cars backseat and pick up a shoebox.
Jackson continued to call Clea to the car. While Clea was stalling . . .
putting Vaseline on my lips because it was cold, Jackson began talking
aggressively. Clea thought Jackson was going to get a gun from the box. He
told Jackson, if you want me to come over there, why you dont come to me.
And thats when [Jackson] be like, nah, I want you to come to me. And thats
when I slammed my backseat back, threw on my jacket and reached for the loaded
assault rifle.
Clea
said he couldnt leave because no safe exit from the yard was available. [A]t
first, he didnt think Jackson had a gun; but, when he saw that Jackson was clamping on to something, he thought like, man, forget that and shot at
the front of the car in which Jackson sat. He called these first shots
warning signs, and he told Jackson to let [him] leave from the scene because
[he] was about to leave anyway. When Clea demanded let me see your hand, Jackson did not comply. The solicitor asked Clea:
| Q: |
Was there anything that he did
that provoked you into a fight with him? Is there anything he
did to make you mad? Did he call you a name or do anything
like that that got you heated up?
|
| A: |
What got me heated up was he
wouldnt show me his hands.
|
| Q: |
All right, what Im trying to
ask you is if there was any hostility, if there was anything that
got you mad at him, angry at him, outraged at him?
|
| A: |
I never said I was mad.
|
| Q: |
Whats that?
|
| A: |
Whoever said I was mad?
|
| Q: |
Im asking you that. Are
you telling me you werent mad?
|
| A: |
No, I was just precautious.
|
. . .
|
|
| Q: |
Did Mr. Pollard ever say
anything or do anything to you that made you mad or angry?
|
| A: |
Yeah, when he kept hollering to
me and looking for me, wanting me to give an explanation about
something that I didnt had no that I didnt had no right to give
him an explanation about.
|
. . .
|
|
| Q:
|
Im asking you if Mr. Jackson
if Mr. Pollard on this day ever said anything to you or did anything
to you that got you mad, that got you outraged?
|
| A:
|
No, sir.
|
| Q: |
Did he ever provoke you by
calling you a name or by doing anything else, provoke you into the
point where you just said you had to shoot him for no other reason?
|
| A: |
Yes.
|
| Q: |
How did he provoke you?
|
| A: |
By reaching into his waist.
|
| Q: |
That made you mad?
|
| A: |
No, it didnt make me mad but
Im not going to let nobody draw down on me and my life is in
danger.
|
| Q: |
So you werent made [sic] at
him, you werent outraged at him, you were just trying to defend
yourself, thats your testimony?
|
| A: |
Exactly.
|
. . .
|
|
| Q: |
How many steps did [Pollard] get
towards you before you dropped him?
|
| A: |
About three or four. |
| . . . |
|
| Q: |
And then you dropped him.
He didnt have anything in his hands, did he?
|
| A: |
Nah, but as he was walking he
was reaching in his waist.
|
| Q: |
Did he have anything in his
hands?
|
| A: |
I couldnt see his hands.
|
| Q: |
Did you ever see his hands?
|
| A: |
How could I?
|
| Q: |
Did you ever see anything in his
hands?
|
| A: |
No. |
Jackson was shot three times and Pollard was shot nine times. Twenty-seven cartridges were
recovered from the scene. Twenty-one were determined to have been fired from Cleas gun. The remaining six cartridges, though inconclusive, were the proper
caliber for the same gun. No weapons were found in the yard or in any
vehicles. Gunshot residue testing on Pollards right hand indicated lead
counts higher than would be expected had he fired a gun. The SLED technician
found it more consistent with a hand being on the muzzle end of a gun. From
the residue found on Jacksons hand, the technician reasoned he either could
have fired a gun or a gun was fired in his vicinity. Testing of the shoebox
was positive suggesting a gun had been placed in the box after being fired or
that the box was open when a gun was fired nearby.
Defense
counsel requested a charge on voluntary manslaughter arguing the appearance of
danger or the gesture of reaching for a weapon can adequately provide the
necessary provocation. The State objected stating no evidence showed sudden
heat of passion or sufficient legal provocation. After the trial judge
considered the issue and reviewed the case law overnight, he ruled against the
request finding no sudden heat of passion. He explained:
[F]or the Court to charge voluntary
manslaughter, the law requires a sudden heat of passion brought about upon
sufficient legal provocation.
I find
in this instance that the evidence does not support a charge of voluntary
manslaughter. That the evidence presented by the Defense best supports a
self-defense charge in that there is no evidence of any sudden heat of
passion. That the case law required some degree of assault, and in addition to
that, something that might have provoked the killing.
That in this
case, at best, the Defendants testimony concerning the what he thought was a
presence of a gun, indicates possibly some provocation but it does not conjure
up any sudden heat of passion. That the prior incidents between parties could
not create a sudden heat of passion, but any passion regarding that, in
addition to the Defendants testimony about firing the shots regarding warning
the Defendant [sic] or something of that nature, in and of itself does not
indicate any sudden heat of passion and Im not going to charge manslaughter.
STANDARD
OF REVIEW
The
law to be charged must be determined from the evidence presented at trial. State
v. Childers, 373 S.C. 367, 373, 645 S.E.2d 233, 235 (2006); State v.
Cole, 338 S.C. 97, 101, 525 S.E.2d 511, 512 (2000). Due process requires
that a lesser included offense be charged when the evidence warrants it but
only if the evidence would permit a jury rationally to find the defendant
guilty of the lesser offense. State v. Small, 307 S.C. 92, 94, 413
S.E.2d 870, 871 (Ct. App. 1992). In determining whether the evidence requires
a charge on voluntary manslaughter, this Court must view the facts in the light
most favorable to the defendant. Childers, 373 S.C. at 373, 645 S.E.2d
at 235. To justify a courts eliminating the offense of manslaughter, it
should clearly appear that there is no evidence whatsoever tending to reduce
the crime from murder to manslaughter. Id.
DISCUSSION
Clea
argues he was entitled to a charge of voluntary manslaughter given the facts of
this case. We disagree.
Voluntary
manslaughter is the unlawful killing of a human being in the sudden heat of
passion upon sufficient legal provocation. Both heat of passion and sufficient
legal provocation must be present at the time of the killing. State v.
Smith, 363 S.C. 111, 609 S.E.2d 528 (Ct. App. 2005) (citing State v.
Cooley, 342 S.C. 63, 67, 536 S.E.2d 666, 668 (2000)). The sudden heat of
passion, upon sufficient legal provocation, which mitigates a felonious killing
to manslaughter, while it need not dethrone reason entirely, or shut out
knowledge and volition, must be such as would naturally disturb the sway of
reason, and render the mind of an ordinary person incapable of cool reflection,
and produce what, according to human experience, may be called an
uncontrollable impulse to do violence. State v. Walker, 324 S.C. 257,
260, 478 S.E.2d 280, 281 (1996) (citing State v. Byrd, 323 S.C. 319, 474
S.E.2d 430 (1996)). When there is no evidence of sudden heat of passion upon
sufficient legal provocation, the courts refusal to instruct the jury on
voluntary manslaughter is proper. Id.
Viewing
the evidence in the light most favorable to Clea, we find he did not act in the
sudden heat of passion. Clea testified that, in the moments before the
shooting, he was suspicious, walked away from the victims, stalled at his
truck, negotiated with Jackson to come to his truck to speak, and asked to be
allowed to leave. We find these statements demonstrate cool reflection. Clea explained
he was heated up by Jacksons not showing his hands. But, further
strengthening our determination, he said he was just precautious and not mad.
Although he said Pollard provoked him by reaching into his waist, he again asserted
he was not mad but simply defending himself. See State v. Walker,
324 S.C. 257, 478 S.E.2d 280 (1996) (no sudden heat of passion where defendant
tried to diffuse argument and give victim time to cool off); State v. Rogers,
275 S.C. 485, 272 S.E.2d 792 (1980) (defendants testimony he was not mad when
he shot wife and stepdaughter, together with his insanity defense, precluded
voluntary manslaughter charge); cf. State v. Wiggins, 330 S.C. 538, 500 S.E.2d 489 (1998) (evidence tended to show defendant acted in sudden heat of passion where he was in a heated argument
with victim and feared for his life because victim threatened him); State v.
Lowry, 315 S.C. 396, 434 S.E.2d 272 (1993) (holding a voluntary
manslaughter charge was necessary where defendant and victim were in a heated
argument and victim was about to initiate a physical encounter when shooting
occurred); State v. Davis, 278 S.C. 544, 298 S.E.2d 778 (1983) (holding
voluntary manslaughter charge was proper where a witness testified that
defendant and victim had been fighting).
Because
there is clearly no evidence to show Clea acted in the sudden heat of passion,
we will not reach the issue of whether sufficient legal provocation existed.
CONCLUSION
The
trial judge properly found Clea did not act in the sudden heat of passion and
did not err in refusing to charge the lesser included offense of voluntary
manslaughter. Accordingly, Cleas convictions are
AFFIRMED.
ANDERSON, SHORT AND WILLIAMS, JJ., concur.