State v. Childers ( 2007 )

Justice BURNETT.

We granted both parties’ petitions for writ of certiorari to review the Court of Appeals’ decision in State v. Childers, 358 S.C. 614, 595 S.E.2d 872 (Ct.App.2004). We affirm in part and reverse in part.

FACTUAL/PROCEDURAL BACKGROUND

On October 14, 2002, William Larry Childers visited his former live-in girlfriend (the victim) at her mother’s home.¹ According to the victim’s sister, Childers became upset during the meeting because the victim would not leave the house to talk to him. Later that night, Childers saw the victim along with her sister and her sister’s ex-husband at a turkey shoot and a confrontation ensued.

About 3:00 a.m. on October 15, the victim’s brother returned to his mother’s home and after hearing footsteps in a wooded area near the home, he determined Childers was prowling around the area. The brother immediately called 911, but the police were unable to locate Childers when they arrived. The brother testified he was awakened approximately thirty minutes later by the sound of gunshots in the front yard and when he went outside, he saw “Childers go across the yard.”

According to the victim’s sister, she along with her ex-husband and the victim were standing in the victim’s mother’s yard talking after the turkey shoot when Childers suddenly appeared in the yard and shot the victim twice, at close range, in the head. The victim’s sister said she immediately ran toward the house and Childers fired two more shots at her. The victim’s former brother-in-law testified he attempted to warn the victim and his ex-wife that Childers was approaching them, but Childers shot the victim in the back of the head before he could do so.

According to Childers, he went to a friend’s home, which was close to the victim’s mother’s home, after the turkey shoot. Childers testified he then decided to walk to the victim’s mother’s home to talk to the victim. He testified he carried a loaded gun with him to protect himself from stray dogs during the walk, and as he approached the group standing in the yard, he had the gun in his coat pocket. Childers stated the victim’s former brother-in-law shot at him first. He returned fire, and in doing so, he shot the victim. Childers also testified he did not visit the victim that night with the intention of shooting anyone, but he fired because he was fired upon.

After the jury had been selected, Childers requested the trial judge relieve his defense counsel, but the trial court denied this request. At the end of trial, defense counsel requested a jury charge on voluntary manslaughter. The trial judge refused to charge voluntary manslaughter, but charged murder, involuntary manslaughter, and self-defense. Childers was convicted of murder, assault of a high and aggravated nature,² and discharging a firearm into a dwelling. He received a life sentence for murder and concurrent terms of ten years’ imprisonment for each of the remaining two convictions.

Childers appealed his convictions. The Court of Appeals upheld the trial judge’s refusal to relieve defense counsel. The Court of Appeals reversed and remanded Childers’ murder conviction after finding the trial judge erred in failing to give a jury charge on voluntary manslaughter. Childers, 358 S.C. at 614-21, 595 S.E.2d at 872-76.

CHILDERS’ ISSUE

Did the Court of Appeals err in finding the trial judge did not abuse his discretion by denying Childers’ request to relieve defense counsel?

LAW/ANALYSIS

Childers argues his defense counsel should have been relieved because defense counsel, while employed as an assistant solicitor, had previously prosecuted him on an unrelated charge.³ We disagree.

A motion to relieve counsel is addressed to the discretion of the trial judge and will not be disturbed absent an abuse of discretion. State v. Gregory, 364 S.C. 150, 152, 612 S.E.2d 449, 450 (2005); State v. Graddick, 345 S.C. 383, 385, 548 S.E.2d 210, 211 (2001). The movant bears the burden to show satisfactory cause for removal. Gregor, 364 S.C. at 152, 612 S.E.2d at 450; Graddick, 345 S.C. at 386, 548 S.E.2d at 211.

Childers asked the trial judge to relieve defense counsel based on defense counsel’s prior prosecution of him and his perceived lack of defense counsel’s trial preparation. Defense counsel told the trial judge he was ready and prepared to go to trial and he had no independent recollection of prosecuting Childers. Childers failed to show his counsel had any divided loyalties or an actual conflict of interest. See Gregory, 364 S.C. at 152, 612 S.E.2d at 450 (“An actual conflict of interest occurs where an attorney owes a duty to a party whose interests are adverse to the defendant’s.”); see also People v. Abar, 290 A.D.2d 592, 736 N.Y.S.2d 155 (N.Y.App.Div.2002) (finding there was no conflict of interest where defendant’s public defender had previously prosecuted him on unrelated charges when she was employed as an assistant district attorney); State v. Cobbs, 221 Wis.2d 101, 584 N.W.2d 709 (1998) (concluding there was no actual or serious potential conflict where defendant’s counsel had previously prosecuted defendant while working in the district attorney’s office). The Court of Appeals correctly found the trial judge did not abuse his discretion by denying Childers’ request to relieve counsel.

THE STATE’S ISSUE

Did the Court of Appeals err in finding the trial judge improperly denied Childers’ request for a voluntary manslaughter charge?

LAW/ANALYSIS

The State argues Childers was not entitled to a voluntary manslaughter charge given the facts of this case. We agree.

Voluntary manslaughter is the unlawful killing of a human being in the sudden heat of passion upon a sufficient legal provocation. State v. Kornahrens, 290 S.C. 281, 285-86, 350 S.E.2d 180, 184 (1986). “The sudden heat of passion, upon sufficient legal provocation, which mitigates a felonious killing to manslaughter, while it need not dethrone reason entirely, or shut out knowledge and volition, must be such as would naturally disturb the sway of reason, and render the mind of an ordinary person incapable of cool reflection, and produce what, according to human experience, may be called an uncontrollable impulse to do violence.” State v. Byrd, 323 S.C. 319, 322, 474 S.E.2d 430, 432 (1996) (internal quotations omitted). Both heat of passion and sufficient legal provocation must be present at the time of the killing to constitute voluntary manslaughter. State v. Hughey, 339 S.C. 439, 451, 529 S.E.2d 721, 727 (2000).

The law to be charged must be determined from the evidence presented at trial. State v. Cole, 338 S.C. 97, 101, 525 S.E.2d 511, 512 (2000). In determining whether the evidence requires a charge on voluntary manslaughter, this Court must view the facts in the light most favorable to the defendant. Id. at 101, 525 S.E.2d at 512-13. To warrant a court’s eliminating the offense of manslaughter, it should very clearly appear that there is no evidence whatsoever tending to reduce the crime from murder to manslaughter. Id.

The Court of Appeals determined the evidence showed that Childers only fired his gun after being fired upon by the victim’s former brother-in-law. The Court of Appeals found, although the victim did not provoke Childers, the provocation by her ex-brother-in-law could be transferred to the victim under the doctrine of transferred intent. Based on this analysis, the Court of Appeals concluded Childers was entitled to a voluntary manslaughter charge. Childers, 358 S.C. at 621, 595 S.E.2d at 876.

Viewing the evidence in the light most favorable to Childers, this factual scenario is completely void of any evidence supporting a charge of voluntary manslaughter. Childers testified he was provoked by the victim’s former brother-in-law and he fired his gun in response to being first shot at by the ex-brother-in-law. Childers’ testimony does not support the contention that the killing was in the sudden heat of passion upon sufficient legal provocation by the victim because, contrary to the Court of Appeals’ decision, the overt act that produces the sudden heat of passion must be made by the victim. See State v. Lowry, 315 S.C. 396, 399, 434 S.E.2d 272, 274 (1993) (“[W]hen death is caused by the use of a deadly weapon, the opprobrious words must be accompanied by the appearance of an assault-by some overt, threatening act-which could have produced the heat of passion.”); State v. Locklair, 341 S.C. 352, 363, 535 S.E.2d 420, 425 (the defendant was not entitled to a voluntary manslaughter charge because the “overt act was made by a third party, not the deceased, and South Carolina has not recognized sufficient legal provocation from a third party that can be transferred to the victim.”); State v. Tucker, 324 S.C. 155, 171, 478 S.E.2d 260, 269 (1996) (“The provocation must come from some act of or related to the victim in order to constitute sufficient legal provocation.”). Because there is no evidence whatsoever tending to reduce the crime from murder to voluntary manslaughter, the Court of Appeals erred in finding the trial judge erroneously failed to give a voluntary manslaughter charge.

CONCLUSION

For the foregoing reasons, we uphold Childers’ convictions.

AFFIRMED IN PART; REVERSED IN PART.

WALLER, J., concurs. TOAL, C.J., concurring in result only in a separate opinion. PLEICONES, J., dissenting in a separate opinion in which MOORE, J., concurs.

1 . For a more complete recitation of the facts, see State v. Childers, 358 S.C. 614, 595 S.E.2d 872 (Ct.App.2004).

2 . The Court of Appeals’ opinion incorrectly referred to this conviction as assault and battery of a high and aggravated nature. Childers, 358 S.C. at 615, 618, 621, 595 S.E.2d at 873-74, 876.

3 . Childers also argues the trial judge erred in denying his request to relieve counsel because counsel had previously represented the victim's brother. This issue is not preserved for review because it was not raised at trial. See State v. Hicks, 330 S.C. 207, 216, 499 S.E.2d 209, 214 (1998) (to be preserved for appeal, an issue must be raised to and ruled upon by the trial judge).