State v. Santiago ( 2006 )

HEARN, C.J.

Christopher Santiago appeals his convictions of murder and possession of a firearm during the commission of a violent crime, alleging the trial judge erred in refusing to charge the jury on self-defense and in excluding testimony of a forensic psychiatrist. We affirm.

FACTS

During the summer of 2002, Santiago and Kate Wisn lived together at the Hilton Head vacation home of Kate’s parents. When Kate’s father, Joe (hereinafter “Wisn”), visited Hilton Head in July, he informed Santiago that he and Kate needed to move out of the home within the next two weeks. That evening, Santiago left the home and drove to New Jersey to live with his parents. After a brief stay in New Jersey, Santiago returned to South Carolina and began renting an apartment near the vacation home.

According to Santiago, on the morning of August 9, 2002, he left his apartment with a 20-gauge shotgun in the trunk of his car with the intent to commit suicide. Before taking his own life, he called his parents to tell them goodbye. They convinced him to see his psychiatrist, who was able to talk Santiago out of committing suicide.¹

When Santiago returned to his apartment, he had a message on his answering machine from Wisn, requesting that Santiago come to the vacation home to pick up some belongings. Upon his arrival at Wisn’s home, Santiago saw his belongings packed in a container beside Wisn’s car in the driveway. Santiago rummaged through the container in search of a favorite belt but was unable to find it. He rang the doorbell; Wisn answered, and the two men went inside to search for the belt.

According to Santiago, he began to cry while looking for the belt, and Wisn ridiculed him. At that point Santiago left the house, but Wisn followed him. Santiago testified that Wisn told him to “stay the f — away from my daughter.” Santiago walked past the container of his belongings, but Wisn picked it up and walked around to the back of Santiago’s car to place it in the trunk. After Santiago opened the trunk, Wisn placed the container into it and noticed the 20-gauge shotgun. Wisn looked at the shotgun, looked at Santiago, and then looked at the shotgun again. Santiago testified he thought Wisn was about to grab the shotgun, so he took the gun from the trunk and pointed it at Wisn. Santiago took a step back. Wisn told Santiago “don’t be f — ing stupid.” Santiago testified he thought Wisn was about to reach for the gun so he opened fire. He shot Wisn four times, and Wisn later died from his wounds.

After fleeing the scene, Santiago drove to a fire station, and told the firemen that he shot someone on Hilton Head who had “ruined his life.” A fireman called the police, and the police sent detective Leland Tuten to investigate. Detective Tuten provided Santiago with a Miranda² rights and waiver form, which Santiago initialed and signed. Tuten then provided Santiago with a pen and paper, and Santiago drafted a confession. In this confession, Santiago explained that while he lived with Kate, Wisn tried to turn her family members against him. He wrote he planned to marry Kate, but his plan fell through because Wisn kicked him out of the house. Santiago also admitted he shot Wisn four times with the shotgun. The confession went on to describe the shooting. Santiago said he was standing near the back of his car when he fired on Wisn, who was standing near the front of the car.³ After Santiago confessed to the shooting, Tuten arrested him. Santiago was subsequently indicted for murder and possession of a firearm during the commission of a violent crime.

During trial, Santiago attempted to present testimony from Dr. Donna Schwartzr-Watts, a forensic psychiatrist, who, prior to trial, had diagnosed Santiago with a condition called asperger’s disorder, a subset of autism. Santiago argued Schwartz-Watts’s testimony would be relevant to his mental state at the time of the shooting and would also support a finding that Santiago committed voluntary manslaughter rather than murder. The trial judge refused to allow her testimony into evidence, finding it was not relevant because South Carolina does not recognize the defense of diminished capacity. The trial court also rejected Santiago’s request to charge the jury with self-defense.

The jury convicted Santiago of murder and possession of a firearm during the commission of a crime. The judge sentenced Santiago to life imprisonment without parole.

LAW/ANALYSIS

I. Self-Defense Charge

Santiago first argues the trial judge erred in refusing to charge the jury on self-defense. We disagree.

An appellate court will not reverse the trial judge’s decision regarding jury charges absent an abuse of discretion. Clark v. Cantrell, 339 S.C. 369, 389, 529 S.E.2d 528, 539 (2000); State v. Williams, 367 S.C. 192, 624 S.E.2d 443 (Ct.App.2005). If there is any evidence to support a jury charge, the trial judge should grant the requested charge. State v. Burriss, 334 S.C. 256, 262, 513 S.E.2d 104, 108 (1999). The refusal to grant a requested jury charge that states a sound principle of law applicable to the case at hand is an error of law. Clark, 339 S.C. at 390, 529 S.E.2d at 539. To warrant a reversal, however, the error must result in prejudice to the party requesting the charge. Id. A self-defense charge is not required unless the evidence supports it. State v. Goodson, 312 S.C. 278, 280, 440 S.E.2d 370, 372 (1994).

To establish self defense in South Carolina, four elements must be present: (1) the defendant was without fault in bringing on the difficulty; (2) the defendant actually believed he was in imminent danger of losing his life or sustaining serious bodily injury; (3) a reasonable, prudent person of ordinary fitness and courage would have entertained the same belief; and (4) the defendant had no other probable means of avoiding the danger of losing his life or sustaining serious bodily injury other than to act as he did. Jackson v. State, 355 S.C. 568, 570-71, 586 S.E.2d 562, 562 (2003); State v. Day, 341 S.C. 410, 416, 535 S.E.2d 431, 434 (2000). If there is any evidence of self-defense, the issue must be submitted to the jury. State v. Burkhart, 350 S.C. 252, 260, 565 S.E.2d 298, 302 (2002). In charging self-defense, the trial judge should consider the facts and circumstances of the case and fashion an appropriate charge. State v. Starnes, 340 S.C. 312, 322, 531 S.E.2d 907, 913 (2000). The trial judge commits reversible error if he or she fails to give a charge on an issue raised by the evidence and requested by the defendant. State v. Lee, 298 S.C. 362, 364, 380 S.E.2d 834, 836 (1989).

Here, the record does not support a charge of self-defense for several reasons. First, the evidence does not support a finding that Santiago was without fault in bringing about the difficulty. Santiago had gone to Wisn’s house with a loaded gun in his vehicle, and that weapon was apparently observed by Wisn as he lifted Santiago’s belongings into the car. Although Santiago asserted that Wisn verbally berated him as he looked for his favorite belt, these words were never accompanied by a hostile act. While we recognize that, depending on the circumstances, words accompanied by hostile acts may establish self-defense, there was no evidence of a hostile act by Wisn. See State v. Fuller, 297 S.C. 440, 444, 377 S.E.2d 328, 331 (1989); State v. Harvey, 220 S.C. 506, 518, 68 S.E.2d 409, 414 (1951) (“[W]here death is caused by the use of a deadly weapon, words alone, however opprobrious, are not sufficient to constitute a legal provocation.”).

Santiago argues the hostile act occurred when Wisn looked at the gun, looked at Santiago, and then looked at the gun again. This bare assertion is insufficient to establish a hostile act by Wisn. Santiago never claimed Wisn made a move for the gun before Santiago took it from the trunk. Even assuming, as Santiago testified, that Wisn reached for the gun while in Santiago’s hands, he did so after Santiago brought about the difficulty by removing the shotgun from the trunk and aiming it at Wisn.⁴ Therefore, no question of fact for the jury is created on the first prong of self-defense.

While Santiago asserts he actually believed he was in imminent danger, the third prong of self-defense cannot be established because a reasonable, prudent person of ordinary fitness and courage would not have feared for his life or serious bodily injury under the circumstances of this case. Santiago testified that he and Wisn had never had a physical altercation, nor had Wisn ever threatened to kill or cause serious injury to Santiago before the shooting. Additionally, the evidence, taken in the light most favorable to Santiago, demonstrates that Wisn merely looked at the shotgun, looked at Santiago, and then looked at the shotgun again. Accordingly, no reasonable person would have feared for his life simply because of Wisn’s actions of looking. Therefore, no question of fact for the jury is created on this element of self-defense.

Finally, the fourth prong of self-defense cannot be satisfied because Santiago had other probable means of avoiding the danger. If the defendant provokes or initiates the assault, he cannot invoke self-defense; however, he may restore his right to self-defense if he withdraws from the conflict and communicates that decision to his adversary. State v. Bryant, 336 S.C. 340, 345, 520 S.E.2d 319, 322 (1999). Because Santiago was not on his property, he had a duty to retreat. See Fuller, 297 S.C. at 444, 377 S.E.2d at 331. Taken in the light most favorable to Santiago, the record indicates that when Wisn was shot, Santiago stood at the back of his car and Wisn stood in the front. Due to the distance between the two men at the time of the shooting, Santiago could have retreated with the shotgun rather than shooting Wisn. Moreover, Santiago simply could have avoided the danger by closing his trunk. See Bryant, 336 S.C. at 345, 520 S.E.2d at 322 (stating appellant easily could have avoided the conflict by leaving the open parking lot where the situation arose). Further, because Wisn was unarmed, Santiago had multiple opportunities to escape his perceived peril without resorting to firing his weapon, let alone firing it four times. Therefore, no question of fact for the jury is created on this prong of self-defense.

Because the record demonstrates as a matter of law the absence of at least one element of self-defense, the trial judge did not err in refusing to charge self-defense.

II. Dr. Schwartz-Watts’s Testimony

Santiago next argues the trial judge erred in refusing to allow Schwartz-Watts to testify that because of Santiago’s asperger’s disorder he did not have the requisite mental state to commit murder nor the ability to provide a voluntary confession. Santiago attempted to call Schwartz-Watts as a witness during his case, but the trial judge refused to allow the testimony. We find no reversible error.

The admission or exclusion of evidence is left to the sound discretion of the trial judge. State v. Gaster, 349 S.C. 545, 557, 564 S.E.2d 87, 93 (2002); State v. Horton, 359 S.C. 555, 566, 598 S.E.2d 279, 285 (Ct.App.2004). A trial judge’s ruling on the admissibility of evidence will not be reversed on appeal absent an abuse of discretion. State v. Mansfield, 343 S.C. 66, 77, 538 S.E.2d 257, 263 (Ct.App.2000). An abuse of discretion occurs when the trial judge’s ruling is based on an error of law. Id. For an error to warrant reversal, however, the error must result in prejudice to the appellant. Id. Evidence is relevant if it has “any tendency to make[ ] the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Rule 401, SCRE. An expert witness qualified by knowledge, skill, experience, training, or education may testify to assist the jury in understanding the evidence or determining an issue before them. Rule 702, SCRE.

A. Santiago’s Mental State During the Commission of the Crime

On appeal, Santiago argues the trial court erred in refusing to allow the testimony of Schwartz-Watts because the evidence was relevant to Santiago’s mental state, both at the time he made the statement to police and at the time of the shooting. At trial, defense counsel offered Schwartz-Watts as an expert witness to testify that Santiago’s asperger’s disorder caused him to fear for his life, and accordingly, Santiago did not have the requisite mental state to commit murder. Essentially, defense counsel argued that Santiago was culpable of a lesser offense because of his diminished capacity. However, the diminished capacity defense is not recognized in South Carolina. Gill v. State, 346 S.C. 209, 220, 552 S.E.2d 26, 32 (2001). In Gill, defense counsel wanted a forensic psychiatrist to testify that because Gill had a low IQ, he did not have the requisite mental state to commit murder. The supreme court held the trial judge properly excluded this testimony because South Carolina does not recognize the diminished capacity defense. Thus, the trial judge did not commit an abuse of discretion when she refused to allow Schwartz-Watts to testify regarding Santiago’s diminished capacity.

B. Voluntariness of Santiago’s Statements to Police

Santiago also argues that Schwartz-Watts’s testimony was relevant to his mental state at the time he made the statement to the police. Initially, we question whether this issue is preserved for our review.

As a general rule, if an issue was not raised and ruled upon below, it will not be considered for the first time on appeal. State v. Dunbar, 356 S.C. 138, 142, 587 S.E.2d 691, 693 (2003); State v. Passmore, 363 S.C. 568, 584, 611 S.E.2d 273, 281 (Ct.App.2005). Our courts have “consistently refused to apply the plain error rule.” Jackson v. Speed, 326 S.C. 289, 306, 486 S.E.2d 750, 759 (1997) (citations omitted). Instead, “it is the responsibility of counsel to preserve issues for appellate review.” Id. Moreover, a proffer of testimony is required to preserve the issue of whether testimony was properly excluded by the trial judge, and an appellate court will not consider error alleged in the exclusion of testimony unless the record on appeal shows fairly what the excluded testimony would have been. State v. Roper, 274 S.C. 14, 20, 260 S.E.2d 705, 708 (1979); State v. King, 367 S.C. 131, 136, 623 S.E.2d 865, 868 (Ct.App.2005).

Here, the trial court conducted a Jackson v. Denno⁵ hearing prior to trial. In that hearing, Santiago challenged the voluntariness of the statements made shortly after the shooting; however, at no point in the hearing did Santiago offer the testimony of Schwartz-Watts on the issue of how his asperger’s syndrome affected the voluntariness of his statement. As the trial proceeded, Santiago sought to introduce the testimony of Schwartz-Watts prior to his own testimony. The trial judge stated such testimony would be premature until after Santiago testified if he chose to do so. However, the trial judge stated: “It is my understanding, based on the information I have had the benefit of in chambers, that counsel would have intended to call Dr. Schwartz-Watts for the purpose of describing or explaining Mr. Santiago’s mode of communications, mode of testifying, why he projects himself as he does.” Neither prior to nor in response to this statement by the court, did Santiago raise the issue of how Schwartz-Watts’s testimony would impact the voluntariness of his confession.

After Santiago testified, the trial judge found the testimony of Schwartz-Watts was inadmissible but allowed Santiago’s counsel to proffer his arguments for the record. Counsel for Santiago stated three reasons for Schwartz-Watts’s testimony:

My intent, originally, for calling her was ... while [Santiago] is ordinary and reasonable, he has this developmental disorder ... that effects his individual perception.

My second aspect of calling Dr. Schwartz-Watts would be to comment on his mental state as per it would relate to provocation and heat of passion under a charge for voluntary manslaughter.

The third and final proffer would be for her to explain [Santiago’s] affect and appearance in court and dealing with his issuing a statement as he did based on his perceptions of his not being treated well, being messed with, his rights being violated, et cetera, et cetera. That’s the entire proffer for the record.

It is apparent from the proffer that Schwartz-Watts would have testified as to Santiago’s mental capacity, his perceptions at the shooting, his in-court demeanor, and his mental state as it relates to voluntary manslaughter. Although defense counsel mentioned Santiago’s “issuing a statement as he did,” counsel never argued Schwartz-Watts’s testimony would be relevant to the jury’s determination of whether Santiago’s confession was voluntary. Santiago only sought to introduce Schwartz-Watts’s testimony on issues related to mental capacity, not on the issue of voluntariness, and the trial court never ruled on the admissibility of Schwartz-Watts’s testimony on the issue of voluntariness. Therefore, the issue is arguably not preserved for our review.

Moreover, even if the issue was preserved for our review, we find any error in failing to allow Schwartz-Watts to testify to be harmless. See State v. Miller, 367 S.C. 329, 332, 626 S.E.2d 328, 332 (2006) (explaining that an error is harmless when it could not reasonably have affected the result of the trial). Even -without Santiago’s written confession, there is overwhelming evidence of Santiago’s guilt. Shortly after the shooting, Santiago turned himself in at the fire station where he told the firemen present that he just shot someone on Hilton Head, and that the weapon used in the shooting was in his car. Furthermore, Santiago testified at trial that he shot Wisn on the day in question. This is not a case where the perpetrator’s identity is at issue or where Santiago’s confession was a pivotal piece of evidence against him. Therefore, even if the trial judge erred in declining to allow Schwartz-Watts to testify about how Santiago’s syndrome affected the voluntariness of his statement, the error was harmless given the overwhelming evidence of Santiago’s guilt.

CONCLUSION

For the aforementioned reasons, Santiago’s conviction is hereby

AFFIRMED.

KITTREDGE, J., concurs.

1 . Santiago did not call his psychiatrist as a witness.

2 . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct 1602, 16 L.Ed.2d 694 (1966).

3 . According to the testimony of the forensic pathologist, the shots were fired from a distance of six to ten feet.

4 . This is not a case where Santiago was justified in using deadly force before his adversary could "get the drop on him.” In Starnes, 340 S.C. at 322, 531 S.E.2d at 913, and State v. Hendrix, 270 S.C. 653, 661, 244 S.E.2d 503, 507 (1978), the defendant's adversary was already armed, or the defendant believed his adversary was already armed, when the defendant fired. Here, there is no indication that Wisn was armed or that Santiago believed otherwise.

5 . 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).