State v. Payne

434 S.C. 121

862 S.E.2d 81

The STATE, Respondent,

v.Demontay Markeith PAYNE, Appellant.

Appellate Case No. 2017-002014

Opinion No. 5846

Court of Appeals of South Carolina.

Heard September 15, 2020

Filed August 11, 2021

Rehearing Denied August 31, 2021

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, Assistant Attorney General William Joseph Maye, all of Columbia; and Solicitor John William Weeks of Aiken, all for Respondent.

HUFF, J.:

Demontay Markeith Payne appeals his conviction for murder, asserting the trial court erred in (1) failing to instruct the jury on voluntary manslaughter and (2) refusing to tailor its self-defense instruction to include language concerning a defendant's justification in continuing to shoot until the apparent danger has ceased. Because we find, under the facts presented before the jury, Payne was entitled to a voluntary manslaughter instruction, we reverse and remand for a new trial.

FACTUAL/PROCEDURAL HISTORY

This matter stems from the shooting death of Devante Odom (Victim). Essentially, three different versions of what occurred just before and at the time of the shooting were presented to the jury. The State presented eyewitness testimony from Alicia Youmans, while Payne presented the eyewitness testimony of Alicia's sister, Tyeisha Youmans, as well as his own testimony.

Alicia stated that she knew Payne and Victim from growing up in the same neighborhood and Victim was a close friend of her brother. She testified that on the night of May 23, 2015, she was sitting outside Stacey Hartzog's home with Tyeisha, her friend Yvette, and Payne "having some girl talk" when Victim walked up "from the backside."¹ Payne had arrived at the location, driving "straight across the yard." Victim spoke to Alicia, Tyeisha, and Yvette, but he did not speak to Payne. Victim asked Alicia for two cigarettes, which she was going to give him. However, before she could retrieve them from inside the house, Victim and Payne began to argue. Alicia did not know what they were arguing about.

The argument ended when Victim walked away, and Payne got into his car. Victim walked up Wingo Estates Road toward Emerald Lane. Payne got into his car and pulled onto Wingo and drove up toward Emerald, in the same direction Victim walked. Victim made it to Emerald and was at the intersection. Alicia stated there was a streetlight at the intersection on Emerald and she could clearly see what was happening in the intersection.² Alicia testified that after Payne pulled away no one else was outside with her, as Tyeisha and Yvette had walked inside the home. Alicia then described as follows:

Payne drove his car up to Emerald ... him and [Victim] had another verbal dispute or whatever, he got out of his car, they was still arguing or whatever, and he turned to go back to his car. I'm not sure if something was said or what happened, but he — when he turned back around to face [Victim], he began shooting at him.

Alicia stated that she observed Payne and Victim "going back and forth" before Payne exited his car, and when Payne stopped his car and exited the vehicle, he was continuing to argue with Victim. When Payne turned to go back toward his car, he never made it to the car, but turned back around and "just started firing" at Victim. Once Victim started getting shot by Payne while on the street, he attempted to run between some trailers to get away.

Alicia realized Victim had been hit when she saw him fall to the ground and he started waving his arm in the air. Alicia called 911 and told them someone had been shot and needed help. Though she did not initially identify Payne as the shooter, she did so in a subsequent call. She also indicated in her verbal and written statements to an investigator that she saw Payne start shooting at Victim. By the time Alicia walked up to Victim, more than five people had gathered around. She did not see Victim with a gun and did not see a gun on the ground in the area of Victim. Alicia testified regarding numerous street lights in the area between Hartzog's home and where the shooting took place, and she agreed it was "pretty well lit up at night."

On cross-examination, when Alicia was asked who started the argument, she replied, "I would say Mr. Payne initiated it." Alicia estimated Payne was at the location ten to fifteen minutes before Victim arrived and, during that time, his demeanor was calm. She believed that Payne started the argument because, while he was sitting with the women, he lifted his shirt to show a gun when Victim walked up to them. Alicia read her written statement into the record, which provided as follows:

On May 23, 2015, I was sitting outside at Wingo Estates talking with ... Payne when [Victim] came up walking and asked me for two cigarettes. As I was getting them, he and ... Payne had some exchanged words. I didn't hear what they were saying. I only heard [Victim] state to ... Payne you're going to have to show me you're going to kill me.

[Victim] walked up the road and ... Payne got into his car and drove up the road. He stopped, they exchanged words. [Payne] got out of his car swinging his arms. After that they got real close to each other, and that's when ... Payne pulled out his gun and shot [Victim]. He jumped back into his car and left.

Alicia acknowledged that she did not mention a gun being in Payne's waistband or Payne showing a gun in her statement—or any subsequent statement—and agreed it would have been a very important fact to include. Alicia stated that Payne drove on Wingo, not across the yard to his residence, and he never pulled into his yard.

Brandy Williams testified she was at her parents’ home on the night of May 23, 2015, when she heard seven to nine gunshots and called 911. After placing the call, she went over to the scene, where she observed two individuals next to Victim, who was lying on the ground. Williams performed CPR on Victim for thirty minutes, until EMS arrived. The Sheriff's Office arrived along with EMS. She stayed there about ten minutes after their arrival, and there was a large crowd of ten to fifteen people gathered by the time she left. She never saw a weapon on or near Victim. Williams agreed the Sheriff's Office was not there during the time she performed CPR, there were people walking back and forth around Victim's body, and the scene remained unsecure for those thirty minutes.

Investigator Andy Chavis, who was the on-call investigator at the time of the incident, testified Victim had already been taken from the scene and another officer had taped off the area when he arrived. Investigator Chavis photographed the overall scene and the evidence. He testified that six .380 caliber cartridge casings were recovered in front of a residence, with some of them in the road and a few in the yard, in an area of about six to eight feet. Investigator Chavis testified a .40 caliber cartridge casing was also found, and he stated it was located "close to where they said [Victim] was [lying]" and where he observed blood and items left by EMS. He performed a gunshot residue (GSR) test on Victim later that night at the morgue. A .380 caliber projectile was removed from Victim's body during his autopsy. Unfortunately, Investigator Chavis’ photographs were lost, and he acknowledged the location of the shell casings was just an estimate on his part. He further agreed there would be an opportunity for crime scene contamination in a crime scene that was open for thirty minutes.

Tyler Sturkie, a SLED forensic scientist in the trace evidence department, testified regarding the results of the GSR test from Victim. Particles of GSR, particles consistent with GSR, and particles associated with GSR were found on Victim's right hand. As to his left hand, particles of GSR, one particle consistent with GSR, and one particle associated with GSR were found. Sturkie testified that finding GSR meant one of three things: the individual fired a weapon; the individual was in the vicinity when a weapon was fired; or the individual touched an object that had GSR on it.

SLED Agent James Green testified as an expert in the field of firearms identification. He examined the .380 caliber cartridge cases recovered from the scene as well as a .40 S&W caliber cartridge case. Agent Green opined the .40 S&W caliber was much larger and had different class characteristics from the .380 caliber cartridge cases and was not fired from the same gun. He further testified that the .380 caliber bullet recovered from Victim could have been fired from the same gun that fired the .380 caliber cartridge casings found at the scene. Agent Green acknowledged his report provided that the .40 S&W caliber cartridge casing was "collected from beside [V]ictim's body." Victim's autopsy revealed he suffered four gunshot wounds.

Investigator Scott Peterson testified he was initially called to the scene that night to help with crowd control, but the crowd had already dispersed by the time he arrived. He met with Alicia, and he was wearing a body camera that recorded her explanation of what had occurred that night. Alicia also provided him with a written statement. Investigator Peterson testified law enforcement attempted to locate other potential witnesses to the shooting, but he had no knowledge of anybody else who saw what happened.

Tyeisha testified that she was sitting outside Hartzog's home on May 23, 2015, with Alicia, Payne, and her aunt, Yvette Walker. Payne, who had driven up to the location, was engaged in conversation with the women and his demeanor was calm. Tyeisha, who had music playing in her car for the gathering, went to her car to change the music when she heard people "sounding like they [were] ... arguing." She did not see Victim initially when he walked up because she was looking at her...