State v. Reese , 370 S.C. 31 ( 2006 )

Justice BURNETT dissenting:

I respectfully dissent in part. I agree with the majority’s conclusion the Court of Appeals erred in finding Reese was entitled to an involuntary manslaughter charge. I also agree the solicitor’s closing argument was improper; however, in my opinion, this error was harmless because of the overwhelming evidence of Reese’s guilt.

When guilt is conclusively proven by competent evidence, such that no other rational conclusion could be reached, this Court will not set aside a conviction for insubstantial errors not affecting the result. State v. Livingston, 282 S.C. 1, 6, 317 S.E.2d 129, 132 (1984).

In the testimony developed at trial, Reese admitted he possessed a gun, waved it back and forth, and shot Teresa, but he claimed the gun accidentally discharged. Several witnesses testified Teresa died from a single gunshot wound to the head which was either very close to or directly against her head. Regardless of Reese’s allegation that he did not have an express intent to kill Teresa, his actions rise to the level of implied malice. See S.C.Code Ann. § 16-3-10 (rev. 2003) (Murder “is the killing of any person with malice aforethought, either express or implied.”); State v. Campbell, 287 S.C. 377, 379, 339 S.E.2d 109, 109 (1985) (“The implication of malice may arise from the use of a deadly weapon. A deadly weapon is generally defined as ‘any article, instrument or substance which is likely to produce death or great bodily harm.’ ”) (internal citations omitted).

The undisputed evidence in this case unequivocally demonstrates Reese killed Teresa while feloniously presenting a firearm. Based on this overwhelming evidence of Reese’s guilt, I conclude the solicitor’s improper comments during closing argument were harmless beyond any reasonable doubt.