State v. Boone ( 2013 )

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Respondent,
v.
Andre Tayson Boone, Appellant.
Appellate Case No. 2008-090386
Appeal From Richland County
William P. Keesley, Circuit Court Judge
Unpublished Opinion No. 2013-UP-155
Heard April 1, 2013 – Filed April 17, 2013
AFFIRMED
Chief Appellate Defender Robert Michael Dudek, of
Columbia, for Appellant.
Attorney General Alan McCrory Wilson, Chief Deputy
Attorney General John W. McIntosh, Assistant Deputy
Attorney General Donald J. Zelenka, Assistant Attorney
General Melody Jane Brown, and Solicitor Warren B.
Giese, all of Columbia, for Respondent.
PER CURIAM: Andre Boone appeals his conviction for murder, arguing the trial
judge erred in instructing the jury on mutual combat because it shifted the burden
and was inappropriate given the facts of the case. We affirm pursuant to Rule
220(b), SCACR, and the following authorities: State v. Freiburger, 366 S.C. 125,
134, 620 S.E.2d 737, 741 (2005) (holding an issue is not preserved for appeal
where one ground is raised below and another ground is raised on appeal); State v.
Condrey, 349 S.C. 184, 194, 562 S.E.2d 320, 325 (Ct. App. 2002) (stating the trial
court's duty is to give a requested instruction that correctly states the law applicable
to the issues and is supported by the evidence); Jackson v. State, 355 S.C. 568,
571, 586 S.E.2d 562, 563 (2003) ("Mutual combat exists when there is 'mutual
intent and willingness to fight.'" (quoting State v. Graham, 260 S.C. 449, 450, 196
S.E.2d 495, 495 (1973))); id. ("Mutual intent is 'manifested by the acts and conduct
of the parties and the circumstances attending and leading up to the combat.'");
State v. Taylor, 356 S.C. 227, 235, 589 S.E.2d 1, 5 (2003) ("The mutual combat
doctrine is triggered when both parties contribute to the resulting fight."); id. at
232, 589 S.E.2d at 3 ("Whether or not mutual combat exists is significant because
'the plea of self-defense is not available to one who kills another in mutual
combat.'" (quoting Graham, 260 S.C. at 450, 196 S.E.2d at 495)); Graham, 260
S.C. at 451, 196 S.E.2d at 496 (finding a mutual combat charge was proper where
appellant and deceased had quarreled prior to the killing, each knew that the other
was armed with a pistol, and each fired his gun at the other); State v. Mathis, 174
S.C. 344, 348, 177 S.E. 318, 319 (1934) (holding there was no error in charging
and arguing the law of mutual combat because there was testimony the appellant
and the deceased were on the lookout for each other; were armed in anticipation of
a combat; each drew his pistol; and each fired upon the other); State v. Porter, 269
S.C. 618, 622-23, 239 S.E.2d 641, 643 (1977) (finding a mutual combat charge
was proper when there was evidence the defendant had returned with a gun to one
victim's property at least twice in spite of prior verbal abuse, threats, and
gunshots); State v. Mattison, 388 S.C. 469, 479, 697 S.E.2d 578, 583 (2010)
(providing the court's refusal to give a requested jury charge must be both
erroneous and prejudicial to the defendant to warrant reversal); State v. Buckner,
341 S.C. 241, 247, 534 S.E.2d 15, 18 (Ct. App. 2000) ("[I]n determining whether
the error was harmless, we must determine beyond a reasonable doubt that the
error complained of did not contribute to the verdict."); State v. Dickey, 394 S.C.
491, 499, 716 S.E.2d 97, 101 (2011) ("A person is justified in using deadly force in
self-defense when: (1) [t]he defendant was without fault in bringing on the
difficulty; (2) [t]he defendant . . . actually believed he was in imminent danger of
losing his life or sustaining serious bodily injury, or he actually was in such
imminent danger; (3) [i]f the defense is based upon the defendant's actual belief of
imminent danger, a reasonable prudent man of ordinary firmness and courage
would have entertained the same belief . . . ; and (4) [t]he defendant had no other
probable means of avoiding the danger of losing his own life or sustaining serious
bodily injury than to act as he did in this particular instance.").
AFFIRMED.
SHORT, THOMAS, and PIEPER, JJ., concur.