State v. Brooks

428 S.C. 618

837 S.E.2d 236

The STATE, Respondent,

v.Gregory Lamont BROOKS, Appellant.

Appellate Case No. 2016-002301

Opinion No. 5693

Court of Appeals of South Carolina.

Heard October 14, 2019

Filed November 20, 2019

Rehearing Denied January 24, 2020

Appellate Defender Susan Barber Hackett, of Columbia, for Appellant.

Attorney General Alan McCrory Wilson, Chief Deputy Attorney General W. Jeffrey Young, Deputy Attorney General Donald J. Zelenka, Senior Assistant Deputy Attorney General Melody Jane Brown, Senior Assistant Deputy Attorney General William M. Blitch, Jr., and Assistant Attorney General Samuel Marion Bailey, all of Columbia; and Solicitor Samuel R. Hubbard, III, of Lexington, for Respondent.

GEATHERS, J.:

Appellant Gregory Lamont Brooks seeks reversal of his convictions for murder and possession of a weapon during the commission of a violent crime. Appellant argues the circuit court erred by instructing the jury that malice may be inferred from the use of a deadly weapon because there was evidence that could have reduced the murder charge to voluntary manslaughter and, therefore, the instruction was confusing and prejudicial. Appellant also argues the circuit court erred by excluding from evidence two photographs found on the cell phone of a bar patron present at the shooting and in communication with a suspect because the photographs, which depicted a gun, were relevant to Appellant's defense of third party guilt. We affirm.

FACTS/PROCEDURAL HISTORY

In the early morning hours of February 2, 2014, Fred Moss, Brandon Ratliff, and Andre Bunch visited the Cockpit Bar and Grill on Berryhill Road in Columbia. Andre drove separately and met Fred and Brandon at the bar. Andre had to park his car in the road because all of the spaces in the parking lot were taken. The three friends separated after they arrived, and Fred began a conversation with a female sitting at the bar.

Two or three minutes later, Fred noticed several people on the dance floor looking at him. A man wearing a skull cap was held back by others as he tried to approach Fred. Fred had the impression that he must have been speaking with "somebody['s] girl." Then a young man with dreadlocks extending past his shoulders approached Fred, "said something slick," and asked "What's up?" Fred responded, "What's up?," and "things started escalating." Andre observed Fred and several other people "fussing back and forth." Andre was concerned, so he briefly talked with Fred and, separately, with Brandon, then went to close out his tab. As Andre was paying his tab, he noticed a bouncer escorting Fred and Brandon out of the bar. Andre walked outside approximately five minutes later.

The group of people arguing with Fred followed him and Brandon into the parking lot.¹ Brandon went to the driver's side of Fred's car, and Fred went to the passenger's side and tried to open the door, but it was locked. Fred then noticed the hostile group behind him. Fred adjusted his belt in an attempt to convey the impression he was armed and to "scare them away," but he later testified that the hostile group did not see that. Fred testified the man with the long dreadlocks and Appellant, who had shorter, shoulder-length dreadlocks, were displaying their guns, pacing back and forth, and stating, "What's up now?" As soon as Fred saw that they were armed, Fred raised his hands to show he was unarmed.² Nevertheless, Appellant unleashed a hail of gunfire toward Brandon and then Fred as Appellant paced back and forth. Appellant then started shooting at Fred's car as he paced backwards, approaching Rickena Knightner's parked car. Rickena, who had previously met Appellant and knew him by the nickname "Dink," testified that as he was approaching her car, she saw he had a gun and said, "[N]o, Dink, No, Dink." Appellant responded, "Get down" while gesturing with his arm for her to stay out of the way. After Appellant stopped firing his gun, he immediately ran to, and entered, a car that had pulled up behind Rickena's car and fled the scene.

Fred began looking for Brandon and discovered him lying in the middle of the road with blood on his chest. Andre, who had been walking to his car when he heard the gunshots, realized Fred and Brandon might be in trouble, so he jumped in his car and raced to Brandon's location. Andre placed Brandon in the back seat of his car with Fred and rushed to Lexington Medical Center. Tragically, Brandon bled out on the way to the hospital due to a bullet lacerating his heart.

Appellant was indicted for murder and possession of a weapon during the commission of a violent crime. After the jury found Appellant guilty on both charges, the circuit court sentenced Appellant to thirty-five years' imprisonment for murder and five years' imprisonment for weapon possession, to be served concurrently. This appeal followed.

ISSUES ON APPEAL

1. Did the circuit court err by charging the jury that malice may be inferred from the use of a deadly weapon?

2. Was the implied malice jury charge harmless beyond a reasonable doubt?

3. Did the circuit court abuse its discretion by excluding the two gun photographs from evidence?

STANDARD OF REVIEW

An appellate court will not reverse a trial court's decision regarding a jury instruction unless there is an abuse of discretion. State v. Cottrell , 421 S.C. 622, 643, 809 S.E.2d 423, 435 (2017). Likewise, "[t]he admission of evidence is within the circuit court's discretion and will not be reversed on appeal absent an abuse of that discretion." State v. Dickerson , 395 S.C. 101, 116, 716 S.E.2d 895, 903 (2011). "An abuse of discretion occurs when the trial court's ruling is based on an error of law or, when grounded in factual conclusions, is without evidentiary support." State v. Pittman , 373 S.C. 527, 570, 647 S.E.2d 144, 166–67 (2007).

LAW/ANALYSIS

I. Inferred Malice Instruction

Appellant argues the circuit court erred by instructing the jury that malice may be inferred from the use of a deadly weapon because there was evidence that could have reduced the murder charge to voluntary manslaughter and, therefore, the instruction was confusing and prejudicial. In support of this argument, Appellant cites State v. Belcher , 385 S.C. 597, 610, 685 S.E.2d 802, 809 (2009), overruled in part by State v. Burdette , 427 S.C. 490, 505 n.3, 832 S.E.2d 575, 583 n.3 (2019). Appellant also argues that the circuit court's error cannot be considered harmless because the instruction was given shortly after the circuit court instructed the jury to examine the surrounding circumstances to determine criminal intent. We will address these arguments in turn.

A. Merits

1. Impact of State v. Burdette

In Belcher , our supreme court held that when evidence of self-defense or any evidence that would reduce, mitigate, excuse, or justify a homicide is presented, the circuit court may not charge the jury that malice may be inferred from the use of a deadly weapon. 385 S.C. at 610, 685 S.E.2d at 809. However, in State v. Burdette , our supreme court recently held in a unanimous decision, "[R]egardless of the evidence presented at trial , a trial court shall not instruct the jury that it may infer the existence of malice when the deed was done with a deadly weapon." 427 S.C. at 503, 832 S.E.2d at 582 (emphasis added). The court explained that this particular jury charge was an impermissible charge on the facts. Id. at 502–03, 832 S.E.2d at 582. The court also held that this ruling was effective in cases pending on direct review or not yet final, as long as the issue is preserved. Id. at 505, 832 S.E.2d at 583. The court overruled "in part" prior case law, including Belcher , "insofar as it can be construed that [the court had] approved a trial court's charge that a jury may infer the existence of malice from the defendant's use of a deadly weapon." Id. at 505 n.3, 832 S.E.2d at 583 n.3.

In light of Burdette , the circuit court's inferred malice instruction in the present case clearly constitutes error. Further, this new point of law is properly before the court because the Burdette opinion was issued after the parties in the present case filed their final briefs, and since that time, Appellant has referenced Burdette as a supplemental citation pursuant to Rule 208(b)(7), SCACR. Nonetheless, we address below whether the inferred malice instruction also ran afoul of Belcher to the extent this issue could affect a harmless error analysis.

2. Violation of Belcher

"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, 236 (2007). Here, Appellant argues there was evidence that the shooting resulted from sudden heat of passion upon sufficient legal provocation, thus reducing the offense of murder to voluntary manslaughter. See State v. Oates , 421 S.C. 1, 23, 803 S.E.2d 911, 923–24 (Ct. App. 2017) (defining voluntary manslaughter as "the unlawful killing of a human being in sudden heat of passion upon sufficient legal provocation" (quoting State v. Starnes , 388 S.C. 590, 596, 698 S.E.2d 604, 608 (2010) )). Appellant asserts the presence of this evidence in the case prohibited the circuit court from giving an inferred malice jury instruction. However, there was no evidence of sufficient legal provocation. See State v. Byrd , 323 S.C. 319, 322, 474 S.E.2d 430, 432 (1996) ("Both heat of passion and sufficient legal provocation must be present at the time of the killing.").

First, there is no evidence that Brandon interacted with Appellant. Further, assuming Fred's behavior could be considered in this analysis,³ his argument with Appellant and his companions was not enough to constitute legal provocation. See Byrd , 323 S.C. 319, 322, 474 S.E.2d 430, 432 ("Where death is caused by the use of a deadly weapon, words alone, however opprobrious, are not sufficient to constitute a legal provocation."). Moreover, even if Appellant saw Fred's subsequent act of adjusting his belt and could have interpreted this...