Sullivan v. State

754 S.E.2d 885, 407 S.C. 241, 2014 WL 309471, 2014 S.C. App. LEXIS 5
Court of Appeals of South Carolina·Decided January 29, 2014·No. Appellate Case No. 2010-151951; No. 5190·Published·Cited by 4 cases

Opinion

FEW, C.J.

Morris Antonio Sullivan shot and killed Jervis Powers, and a jury convicted Sullivan of voluntary manslaughter, possession of a weapon during the commission of a violent crime, and possession of a pistol under the age of twenty-one. Sullivan filed an application for post-conviction relief (PCR) alleging his trial counsel was ineffective for not making a sufficient request to the trial court to include language from State v. Burriss, 334 S.C. 256, 513 S.E.2d 104 (1999), in its jury charge on involuntary manslaughter. Because there is no evidence that Sullivan shot Powers unintentionally, we find Sullivan was not entitled to an involuntary manslaughter charge, and thus was not prejudiced by any alleged error of his trial counsel. We affirm.

[243] I. Facts and Procedural History

On the afternoon of January 16, 1998, Sullivan fired three shots in Powers’ direction after the two exchanged angry words. According to eyewitness testimony, Sullivan and Powers began arguing over whether Sullivan fired gunshots into Powers’ home earlier that day. After Powers took his jacket off like “he was ready to fight,” Sullivan walked down the hallway to the back bedroom. Powers followed Sullivan, and they were still arguing when they entered the bedroom. A few minutes later, Sullivan entered the living room, holding a gun and walking backwards away from Powers, while Powers advanced towards Sullivan. Sullivan told Powers to “get out of here,” but Powers said, “I don’t give a f*** about that gun” and that “if [Sullivan] had the gun out he better use it.” Sullivan then fired a “warning shot” into the floor. Powers “kept walking toward [Sullivan], so he shot again” in a downward direction, hitting Powers in the leg. Powers “continued to walk toward [Sullivan],” and Sullivan fired a third shot that hit Powers in the chest. According to one witness, Powers “was falling over holding his leg” when Sullivan fired the third shot.

The State introduced notes an officer took during Sullivan’s interview with police. According to the notes, Sullivan asked Powers to come with him to the back bedroom to settle their dispute “man to man.” Once there, Powers pushed Sullivan. Sullivan then reached for his gun and “asked [Powers] to please leave several times.” Powers responded, “I’m not afraid to die,” and walked toward Sullivan. Sullivan then “shot in the floor to scare [Powers],” and shot two more times.

The State also introduced Sullivan’s written statement to police, in which he stated Powers followed him to the back bedroom, where they continued to argue. He then told police,

[W]e both grabbed for the gun, but I got it and went back toward the front [of the house], ... and I kept asking him to leave. And then he replied that he isn’t scared to die, and then I shot him — I shot down once and then I shot two more times. Then I saw him fall.

The court charged the jury on murder, voluntary manslaughter, involuntary manslaughter, self-defense, defense of habitation, and necessity. However, when the court charged [244] the jury on involuntary manslaughter, it did not include language explaining that a person can be acting lawfully if he is entitled to arm himself in self-defense at the time of the shooting. See Burriss, 334 S.C. at 262, 513 S.E.2d at 108 (“[A] person can be acting lawfully, even if he is in unlawful possession of a weapon, if he was entitled to arm himself in self-defense at the time of the shooting.”). The jury found Sullivan guilty of voluntary manslaughter and the two weapons charges, and the trial court sentenced him to eighteen years in prison.

After this court dismissed his direct appeal pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), see State v. Sullivan, Op. No. 2008-UP-478 (S.C.Ct.App. filed Aug. 11, 2008), Sullivan filed this PCR action. He claimed his trial counsel was ineffective for not sufficiently requesting an involuntary manslaughter charge that included the language from Burriss. The PCR court dismissed the application, finding Sullivan failed to prove either prong of the test from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

II. No Evidence of Unintentional Killing

This court will affirm if there is any evidence to support the PCR court’s ruling. Moore v. State, 399 S.C. 641, 646, 732 S.E.2d 871, 873 (2012). We find there is evidence to support the PCR court’s finding under the second prong of Strickland — that Sullivan was not prejudiced by any alleged error of trial counsel — because Sullivan was not entitled to an involuntary manslaughter charge in the first place. See Harris v. State, 354 S.C. 382, 389, 581 S.E.2d 154, 157 (2003) (finding defendant not prejudiced by counsel’s failure to request an involuntary manslaughter charge where evidence did not warrant such a charge).

Involuntary manslaughter is defined as the unintentional killing of another without malice while engaged in (1) an unlawful activity not naturally tending to cause death or great bodily harm or (2) a lawful activity with reckless disregard for the safety of others. State v. Smith, 391 S.C. 408, 414, 706 S.E.2d 12, 15 (2011). To warrant a jury charge on involuntary manslaughter under either definition, there must be some [245] evidence that the killing was unintentional. See Douglas v. State, 332 S.C. 67, 74, 504 S.E.2d 307, 310 (1998) (stating “involuntary manslaughter is at its core an unintentional killing”); State v. Gibson, 390 S.C. 347, 357, 701 S.E.2d 766, 771 (Ct.App.2010) (stating “the essence of involuntary manslaughter is the involuntary nature of the killing”).

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Sullivan v. State, 754 S.E.2d 885, 407 S.C. 241, 2014 WL 309471, 2014 S.C. App. LEXIS 5 (S.C. Ct. App. 2014).

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