The State v. Joseph Bowers

THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Petitioner,
v.
Joseph Bowers, Respondent.
Appellate Case No. 2019-001776
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal from Beaufort County
R. Markley Dennis Jr., Circuit Court Judge
Opinion No. 28101
Heard December 9, 2020 – Filed June 29, 2022
AFFIRMED
Attorney General Alan McCrory Wilson and Assistant
Attorney General Mark Reynolds Farthing, both of
Columbia; Solicitor Isaac McDuffie Stone III, of Bluffton,
all for Petitioner.
Chief Appellate Defender Robert Michael Dudek, of
Columbia, for Respondent.
JUSTICE FEW: Joseph Bowers was involved in a shootout in which multiple
people fired their guns. Four people were shot, and two of them died. A jury
convicted Bowers of voluntary manslaughter, assault and battery of a high and
aggravated nature (ABHAN), and possession of a firearm during the commission of
a violent crime. The court of appeals reversed the convictions because the trial court
should not have charged the doctrine of mutual combat to the jury. State v. Bowers,
428 S.C. 21, 34, 39, 832 S.E.2d 623, 630, 633 (2019). We granted the State's petition
for a writ of certiorari to address a narrow point: the State's contention the erroneous
jury charge did not prejudice Bowers as to the ABHAN conviction. We affirm the
court of appeals.
I. Facts and Procedural History
The facts and circumstances of this chaotic shootout are explained in detail in the
opinion of the court of appeals. 428 S.C. at 25-28, 832 S.E.2d at 625-27. In essence,
at least ten people shot at each other and at innocent bystanders in the parking lot of
Midnight Soul Patrol on St. Helena Island in Beaufort County in the early morning
hours of June 21, 2012. Approximately 75 people were present at the club when
Michael Morgan began the shootout by firing a flare gun. When the shooting ended,
four people had been shot, including Richard Green. Two of them later died,
including Michael Morgan.
The State charged Bowers with two counts of murder, two counts of attempted
murder, and possession of a firearm during the commission of a violent crime. At
trial, Bowers claimed he acted in self-defense. In an off-the-record conference, the
State requested the trial court charge the jury on the doctrine of mutual combat to
negate the self-defense claim. Over Bowers' objection, the trial court agreed to give
the mutual combat instruction. Before giving the instruction to the jury, the trial
court stated to the attorneys, "[mutual combat] only applies . . . to the murder as to
Michael [Morgan] . . . ." The trial court then explained the doctrine of mutual
combat to the jury and stated, "This law provides that if a defendant voluntarily
participated in mutual combat . . . , the killing of a victim would not be self-defense."
The trial court did not explain to the jury whether or how a finding that Bowers
engaged in mutual combat with Michael Morgan would affect his claim that he acted
in self-defense in shooting other victims.
During its deliberations, the jury asked a question, "Does a determination of mutual
combat require a finding of culpability in each of the charges?" After an off-the-
record discussion with the attorneys, the trial court stated, "I'll recharge mutual
combat . . . and then tell them, as a matter of law . . . , I don't think mutual combat
can apply to the indictments for attempted murder." The trial court then answered
the question by repeating to the jury its original instruction on mutual combat and
stating, "There can only be one mutual combat defense in the indictments, that is the
indictment with respect to Michael Morgan, because there are -- I find as a matter of
law there is no evidence to support the other victims being armed at any point." The
trial court continued its answer, "You would still, as to the other victims, since there's
no mutual combat, you would have to consider whether or not the State has
disproved self-defense . . . because mutual combat would not be there to negate
[self-defense] as to those particular indictments."
The jury convicted Bowers of the lesser-included offenses of voluntary
manslaughter for killing Michael Morgan and ABHAN for shooting Green.1 The
jury also convicted Bowers of possession of a firearm during the commission of a
violent crime.
The court of appeals reversed, 428 S.C. at 25, 832 S.E.2d at 625, finding there was
no evidence to support the trial court charging the jury on the doctrine of mutual
combat, 428 S.C. at 34, 832 S.E.2d at 630. 2 The State filed a petition for a writ of
certiorari. The State does not challenge the court of appeals' analysis of the evidence
or its ruling that the doctrine of mutual combat is not applicable. Rather, the State
challenges whether the court of appeals' ruling on that issue requires reversal of the
ABHAN conviction. We hold it does.
II. Analysis
The State makes two arguments to support its contention the erroneous jury charge
did not prejudice Bowers as to the ABHAN conviction. First, the State argues the
trial court's initial jury instruction explaining mutual combat "could not have had
1
The State withdrew one of the murder indictments during trial, and the jury found
Bowers not guilty on one of the attempted murder indictments.
2
The court of appeals found "evidence of one or more elements of mutual combat
is entirely lacking." 428 S.C. at 34, 832 S.E.2d at 630. Specifically, the court of
appeals found "there was no evidence of an antecedent agreement to fight or pre-
existing ill-will between [Bowers] and Michael Morgan," id., and "there was no
evidence that Michael Morgan had reason to believe [Bowers] was armed with a
deadly weapon before the shooting started," 428 S.C. at 36, 832 S.E.2d at 631. For
both findings, the court of appeals relied on State v. Taylor, 356 S.C. 227, 589 S.E.2d
1 (2003), in which this Court placed limitations on the application of the doctrine of
mutual combat. 356 S.C. at 233-34, 589 S.E.2d at 4.
any impact on [the attempted murder] charge based on the specific evidence
presented." In other words, the State argues the jury would not have thought in the
first place to apply the doctrine of mutual combat—based on the trial court's initial
explanation—to the attempted murder charge involving Green. Second, the State
contends the trial court's answer to the jury's question "corrected" any
misunderstanding the jury may have had as to whether the doctrine of mutual combat
could apply to the attempted murder charge involving Green.
A. The Law of Prejudice
To reverse a criminal conviction on the basis of an erroneous jury instruction, we
must find the error was a prejudicial error. See State v. Stukes, 416 S.C. 493, 498,
787 S.E.2d 480, 482 (2016) (stating "the charge must be prejudicial to the appellant
to warrant a new trial" (citing State v. Curry, 406 S.C. 364, 373, 752 S.E.2d 263,
267 (2013))). Prejudicial error in a jury instruction is an error that contributed to the
jury verdict. State v. Burdette, 427 S.C. 490, 496, 832 S.E.2d 575, 578 (2019). The
question we address here is not whether the error was harmless beyond a reasonable
doubt because of overwhelming evidence of guilt. See State v. Simmons, 423 S.C.
552, 566, 816 S.E.2d 566, 574 (2018) ("If a review of the entire record does not
establish that the error was harmless beyond a reasonable doubt, then the conviction
shall be reversed."). Rather, the question here is whether the erroneous jury charge
affected the jury's deliberations on the charge involving Green and, thus, contributed
to the ABHAN verdict. See State v. Tapp, 398 S.C. 376, 389, 728 S.E.2d 468, 475
(2012) (stating, "The key factor for determining whether a trial error constitutes
reversible error is whether it appears beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained" (internal quotation marks
omitted) (quoting State v. Charping, 313 S.C. 147, 157, 437 S.E.2d 88, 94 (1993))).3
If we have any reasonable doubt as to whether the erroneous charge contributed to
the verdict, we must affirm the reversal of the conviction. Tapp, 398 S.C. at 389,
728 S.E.2d at 475.
To determine whether the erroneous jury charge contributed to the verdict here, we
must attempt to determine how the jury understood the initial jury instruction and
3
See generally State v. Chavis, 412 S.C. 101, 110 n.7, 771 S.E.2d 336, 340 n.7
(2015) (discussing "the 'contributing to the verdict' standard and the 'overwhelming
evidence' standard" for determining if error is reversible); 412 S.C. at 115 n.14, 771
S.E.2d at 343 n.14 (Hearn, J., dissenting) (same, arguing the two standards are
different, citing cases).
the trial court's answer to the jury's question. As the State argues in its brief, "the
appropriate test involves determining what a reasonable juror would have
understood the charge to mean." See Sheppard v. State, 357 S.C. 646, 664, 594
S.E.2d 462, 472 (2004) (stating "the test is what a reasonable juror would have
understood the charge as meaning"), overruled on other grounds by State v.
Burdette, 427 S.C. 490, 503 n.3, 832 S.E.2d 575, 583 n.3 (2019); State v. Jackson,
297 S.C. 523, 527, 377 S.E.2d 570, 572 (1989) (same). Specifically, we must
determine whether the jury would have interpreted the trial court's instruction on
mutual combat—as originally given or as "corrected" by the trial court's answer to
the jury's question—to mean that Bowers' mutual combat with Michael Morgan did
not foreclose his claim of self-defense as to the charge involving Green.
B. The Role of the Doctrine of Mutual Combat
We begin our analysis with a brief summary of the doctrine of mutual combat.
Mutual combat relates primarily to the law of self-defense. See State v. Young, 429
S.C. 155, 157 n.1, 838 S.E.2d 516, 517 n.1 (2020) (explaining "the mutual combat
doctrine is most commonly used to negate self-defense"). This Court has explained
self-defense by referring to four elements. See State v. Dickey, 394 S.C. 491, 499,
716 S.E.2d 97, 101 (2011) (listing the four elements that must be present for self-
defense); State v. Bryant, 336 S.C. 340, 344-45, 520 S.E.2d 319, 321-22 (1999)
(same); State v. Davis, 282 S.C. 45, 46, 317 S.E.2d 452, 453 (1984) (same); State v.
Ross, 75 S.C. 533, 544, 55 S.E. 977, 981 (1906) (affirming a jury charge in which
the four elements were explained). The doctrine of mutual combat relates to the first
element, Taylor, 356 S.C. at 232, 589 S.E.2d at 3, which "we have traditionally
described as, 'The defendant [must be] without fault in bringing on the difficulty,'"
State v. Williams, 427 S.C. 246, 250, 830 S.E.2d 904, 906 (2019) (quoting Dickey,
394 S.C. at 499, 716 S.E.2d at 101).
Under the doctrine of mutual combat, if Bowers had engaged in mutual combat with
Michael Morgan before they arrived at Midnight Soul Patrol, then Bowers would be
deemed to be at fault in bringing on the difficulty, even though Bowers might not
have started the shootout. See Taylor, 356 S.C. at 232, 589 S.E.2d at 3 (explaining
"if a defendant is found to have been involved in mutual combat, the 'no fault'
element of self-defense cannot be established"); 356 S.C. at 234, 589 S.E.2d at 4(explaining "mutual combat acts as a bar to self-defense because it requires mutual
agreement to fight on equal terms for purposes other than protection. This is
inherently inconsistent with the concept of self-defense, and directly conflicts with
the 'no fault' finding necessary to establish self-defense"); 356 S.C. at 234, 589
S.E.2d at 5 (requiring "pre-existing ill-will or dispute"); see also State v. Graham,
260 S.C. 449, 452, 196 S.E.2d 495, 496 (1973) (finding "the apparent willingness of
each to engage in an armed encounter with the other" made the doctrine of mutual
combat applicable). Thus, mutual combat is not a defense. Rather, the doctrine of
mutual combat—if it applies—negates the defense of self-defense.
C. The Applicability of the Doctrine of Mutual Combat in a
Multi-Person Shootout
In Taylor, Graham, and most other cases in which this Court considered the
applicability of the doctrine of mutual combat in the context of self-defense, the
dispute began as a one-on-one encounter between the defendant and the eventual
victim, and the "difficulty" resumed later between the same two combatants. 4 In
those cases, it was not necessary for the Court to consider the extent to which a
combatant bore responsibility for the death or injury of a person not involved in the
original dispute. 5
4
See, e.g., Jackson v. State, 355 S.C. 568, 572, 586 S.E.2d 562, 564 (2003) (stating
the same two participants in the initial fight resumed the alleged "difficulty"); State
v. Mathis, 174 S.C. 344, 348, 177 S.E. 318, 319 (1934) ("[T]he appellant and the
deceased were on the lookout for each other; that they were armed in anticipation of
a combat; that each drew his pistol and each fired upon the other."); State v. Lee, 85
S.C. 101, 104-06, 67 S.E. 141, 142 (1910) (finding "there was bad blood between"
the defendant and the deceased, the two anticipated further conflict, and the deceased
was eventually killed by the defendant); but see State v. Porter, 269 S.C. 618, 621-
23, 239 S.E.2d 641, 642-43 (1977) (holding "the law [of] . . . mutual combat
obviated a plea of self-defense" when the defendant engaged "in an exchange of
gunfire in which [a third person] was severely wounded").
5
In Young—outside the context of self-defense—we addressed the responsibility
one combatant bears when another combatant kills an innocent bystander. We held,
When two or more individuals engage in combat via a
reckless shootout, they collectively trigger an escalating
chain reaction that creates a high risk to any human life
falling within the field of fire. In that type of
gunfight, all individuals are willing to use lethal force and
display a depraved indifference to human life. More
importantly, an innocent bystander would not be shot but
for the willingness of all combatants to turn an otherwise
peaceful environment . . . into a battlefield. . . . [E]ach
In this case, at least ten people participated in the same shootout. If Bowers and
Michael Morgan had a previous dispute, mutually agreed to fight at a later time, and
otherwise satisfied the limitations on the doctrine of mutual combat set forth in
Taylor, and if the resumption of their conflict played a role in starting the shootout
in which Bowers shot Green, then under the same theory that led us to apply the
doctrine in Graham and Young, the doctrine would make Bowers responsible for the
injury to Green. In other words, even though there had been no prior difficulty
between Bowers and Green, and even if Green threatened Bowers with death or
serious bodily injury, Bowers' "mutual combat" with Michael Morgan would render
Bowers "at fault" in bringing on the shootout in which he shot Green. Under those
circumstances, the doctrine of mutual combat "negates self-defense." That is,
Bowers' mutual combat with anyone would preclude Bowers from self-defense as to
any victim killed or injured during the shootout, including Green.
The trial court explained precisely this in its initial jury instruction, stating, "This
law provides that if a defendant voluntarily participated in mutual combat . . . , the
killing of a victim would not be self-defense." The trial court gave no indication the
effect of Bowers' mutual combat with Michael Morgan was limited to the charge in
which Morgan was the victim. Rather, under the initial charge, if Bowers' mutual
combat with Morgan led to the shootout, then Bowers was at fault in bringing on the
difficulty and was not entitled to self-defense in shooting anyone during the
shootout, including Green.
Turning then to the jury's question, "Does a determination of mutual combat require
a finding of culpability in each of the charges?," the parties and the trial court appear
to have interpreted the question as asking whether prior mutual combat with Michael
Morgan precluded Bowers' self-defense claim as to Green. Assuming that is what
the jury asked, the answer should have been, "Yes, a determination of mutual combat
means the State has proven Bowers is at fault in bringing on the shootout, and the
combatant aids and encourages all of the other
combatants—whether friend or foe—to create the lethal
crossfire. We therefore find the law sanctions holding
[one combatant] responsible for the actions of [another
combatant] in causing the victim's death. Both men were
equally culpable.
429 S.C. at 157-58, 838 S.E.2d at 517.
State has disproved one of the elements of self-defense. This determination requires
a finding that Bowers is not entitled to self-defense for any of the charges."
Therefore, the trial court's answer to the jury's question was not correct under the
law. First, the trial court told the jury mutual combat was a "defense," which it is
not. More importantly, as we explained in Taylor, Graham, and other opinions, the
law of mutual combat—when it applies—provides the defendant is at fault and, thus,
not entitled to self-defense when a fight later occurs with his mutual combatant. As
we explained in this opinion, when the prior dispute leads to a multi-person shootout,
the participants in the prior dispute are at fault not only as to their mutual combatant,
but also in bringing on the entire shootout. Our explanation follows from Young.
See supra note 5. In this case, if mutual combat between Bowers and Michael
Morgan led to this shootout, then Bowers was not entitled to self-defense for his use
of force against anyone, including Green.
III. Prejudice
This brings us to the State's argument that the mutual combat instruction did not
prejudice Bowers as to the ABHAN conviction. Our standard for decision is
"whether the erroneous charge contributed to the verdict." Burdette, 427 S.C. at 496,
832 S.E.2d at 578 (quoting State v. Middleton, 407 S.C. 312, 317, 755 S.E.2d 432,
435 (2014)). As stated in Subsection II.A, we must consider what impact the trial
court's initial instruction on mutual combat and its answer to the jury's question
likely had on the jury's consideration of Bowers' self-defense claim as to Green.
The trial court initially instructed the jury that if Bowers "voluntarily participated in
mutual combat," he was not entitled to self-defense. While the evidence does not
support the instruction, the jury apparently concluded Bowers did engage in mutual
combat with someone, presumably Michael Morgan. The court said nothing about
whether Bowers' mutual combat with Michael Morgan affected his self-defense
claim as to other victims. As we explained, the law provides that it does. On this
point, the law makes practical sense. If Bowers was "at fault" in bringing on the
shootout because of his prior mutual combat with Michael Morgan, then his fault
intuitively extended to Green. A jury is smart enough to figure that out. Accepting
the State's invitation to "determin[e] what a reasonable juror would have understood
the charge to mean," we find the initial jury charge likely led the jury to believe
Bowers' mutual combat with Michael Morgan precluded his self-defense claim as to
Green.
The question then becomes whether the trial court's answer to the jury's question
"corrected" the error. First, as we explained, the trial court's answer was not correct.
We find it difficult to accept the notion that an incorrect answer "corrects" anything.
Second, the answer did not correct the error because it did not clearly inform the jury
that self-defense was still available to Bowers as to the attempted murder charge
involving Green. The trial court began its answer stating "there is no evidence to
support [Green] being armed at any point." Under the limitations on mutual
combat—which the trial court already explained to the jury—the consequence of
Green not being armed is that Bowers' prior interactions with Green could not be
considered mutual combat. The trial court simply followed up on this thought in the
next sentence, explaining that Bowers' prior interaction with Green cannot relieve
the State's burden of disproving self-defense. The trial court's answer gave no
indication that Bowers' mutual combat with Michael Morgan could not be used to
foreclose self-defense as to Green.
The trial court did state in its answer, "You would still, as to the other victims, since
there's no mutual combat, you would have to consider whether or not the State has
disproved self-defense . . . because mutual combat would not be there to negate
[self-defense] as to those particular indictments." The dissent places great
significance on this statement, but we think the statement may be understood in two
different ways. The dissent assumes the jury understood it to mean that even if
Bowers engaged in mutual combat with Michael Morgan he could still claim self-
defense as to Green. We think it equally likely the jury understood the trial court to
mean only that the jury could not find mutual combat based on Bowers' interactions
with Green because there was no evidence Green was armed. There is nothing in
this statement—or in the entire answer to the jury's question—that specifically
informed the jury it could not apply Bowers' prior mutual combat with Michael
Morgan to find self-defense did not apply as to Bowers' use of deadly force against
Green.
As we have previously held, "When an incorrect charge is given, the court must
withdraw it; '[m]erely superimposing a correct statement of law over an erroneous
charge only fosters confusion and prejudice.'" State v. Robinson, 306 S.C. 399, 401,
412 S.E.2d 411, 413 (1991) (citations omitted). Robinson was not intended to
impose a hard and fast rule. Rather, the purpose of Robinson is to ensure the jury
understands that the incorrect charge is not applicable and the "superimposed"
correct charge must control its decision. The point of Robinson—which we reaffirm
today—is the trial court must inform the jury the first charge was incorrect, or the
charge "fosters confusion and prejudice." 306 S.C. at 401, 412 S.E.2d at 413. It is
too much to ask of a lay jury to determine on its own which of a trial court's
conflicting statements of law are correct, and which are incorrect. 6 In this case, the
trial court responded to the jury's question by "superimposing" an incorrect
statement of law over the already improper mutual combat instruction. We are
concerned this did not cure, and likely exacerbated, the confusion the jury was
already experiencing.
In addition, at trial, the State never once suggested to the jury it disproved self-
defense as to the attempted murder charge involving Green on any basis other than
the doctrine of mutual combat. The closest it came to doing so was in closing
argument when the assistant solicitor rhetorically asked, "Was it a retaliatory
gunshot?," and then answered her own question, "Maybe, but it was mutual combat."
The State put no emphasis on disproving any element of self-defense as to Bowers
shooting Green except by using the doctrine of mutual combat.
For these reasons, we find the erroneous mutual combat instruction prejudiced
Bowers as to the ABHAN conviction.
IV. Conclusion
We affirm the court of appeals' decision to reverse the ABHAN conviction based on
the erroneous jury instruction on the doctrine of mutual combat.
AFFIRMED.
JAMES, J., concurs. BEATTY, C.J., concurring in result only. KITTREDGE,
J., dissenting in a separate opinion in which Acting Justice Thomas E. Huff,
concurs.
6
In Robinson, the trial court initially charged the jury incorrectly regarding mere
presence. Id. Although the trial court correctly charged the law in the remainder of
the same instruction, this Court held the error warranted reversal because the trial
court "never retracted the incorrect statement." Id. Here, the trial court did not
retract or refute its initial instruction on the doctrine of mutual combat, likely leaving
members of the jury under the impression the initial charge still applied. It makes
no difference that in Robinson the incorrect and later correct statements were made
in the same charge.
JUSTICE KITTREDGE: I respectfully dissent. Distilled to its essence, the
question before the Court is whether the jury understood that the State was
required to disprove Respondent Joseph Bowers acted in self-defense with respect
to the charges involving victim Richard Green.7 The answer, unequivocally, is
yes. The trial court told the jury (1) self-defense applied to the charges involving
Green, and (2) the State had to disprove self-defense beyond a reasonable doubt
with respect to the charges involving Green. That is the end of the analysis.
On appeal, Respondent contended it was error to charge the law of mutual combat
as to any of the charges against him. The State conceded the error, acknowledging
the inapplicability of mutual combat to any aspect of the case. As a result, the
intricacies of mutual combat are no longer at issue before the Court. Focusing only
on the issue on which this Court granted the petition for a writ of certiorari, I
would reverse the court of appeals and reinstate the jury verdict involving
Respondent's actions towards Green.
I.
The majority's academic discussion of the law of mutual combat is irrelevant, for it
is not the issue on which this Court granted the State's petition for a writ of
certiorari and is not necessary to a resolution of this case. In fact, the law of this
case requires us to find that mutual combat should not have been charged. See
Smith v. State, 413 S.C. 194, 196, 775 S.E.2d 696, 697 (2015) (explaining an
unappealed ruling, whether right or wrong, is the law of the case (quoting Atl.
Coast Builders & Contractors, L.L.C. v. Lewis, 398 S.C. 323, 329, 730 S.E.2d 282,
285 (2012)). We granted a writ of certiorari to review only whether the court of
appeals erred in reversing Respondent's ABHAN conviction involving Green based
on the trial court's erroneous mutual combat instruction, when the trial court
directly and subsequently instructed the jury that mutual combat did not apply to
the shooting of Green. For reasons I will explain, I am confident the supplemental
jury instruction corrected the error in the initial jury charge.
7
Specifically, as to the charges against Respondent involving his actions toward
Green, Respondent was convicted of assault and battery of a high and aggravated
nature (ABHAN) and possession of a weapon during the commission of a violent
crime. I will refer to these charges collectively as either the charges involving
Green or, for ease of reference, merely the ABHAN charge involving Green.
II.
With respect to the question actually before the Court, I certainly accept the State's
and Respondent's agreement that it was error to charge the jury on mutual combat
as it related to Respondent's murder charge involving another victim, Michael
Morgan. As noted, error in charging mutual combat is the law of this case. The
initial jury instruction apparently created confusion as to the availability of self-
defense concerning Respondent's actions towards the other victims, including
Green. After beginning its deliberations, the jury asked for clarification as to
mutual combat, inquiring whether "a determination of mutual combat require[d]
culpability in each of the charges."
The trial court informed counsel that it would recharge the jury and clarify that
mutual combat was limited to the murder indictment concerning Morgan. The trial
court did so via a supplemental instruction, explaining to the jury that "[t]here can
only be one mutual combat defense in the indictments, that is the indictment with
respect to Michael Morgan because . . . I find as a matter of law there is no
evidence to support the other victims being armed at any point." Significantly, the
trial court then instructed the jury that "as to the other victims, since there's no
mutual combat, you would have to consider whether or not the State has disproved
self-defense . . . because mutual combat would not be there to negate [self-defense]
as to those particular indictments."
A.
I initially note Respondent did not object to this supplemental jury charge, despite
the invitation from the trial court to state "[a]ny exceptions or additions." As a
result, it is unassailable that Respondent has failed to preserve any possible
objection to the supplemental charge. See Rule 20(b), SCRCrimP
("Notwithstanding any request for legal instructions, the parties shall be given the
opportunity to object to the giving or failure to give an instruction . . . out of the
hearing of the jury. Any objection shall state distinctly the matter objected to and
the grounds for objection. Failure to object in accordance with this rule shall
constitute a waiver of objection." (emphasis added)); Lowry v. State, 376 S.C. 499,
503–04 & n.1, 657 S.E.2d 760, 762 & n.1 (2008) (noting the failure to object to a
supplemental jury charge results in any objections being unpreserved for appellate
review); Pinckney v. Pettijohn Builders, Inc., 289 S.C. 405, 407, 346 S.E.2d 533,
534 (Ct. App. 1986) (holding that when counsel states at trial that he has no
objection to a specific aspect of a jury charge, he may not argue on appeal that the
jury charge was erroneous); cf. Rule 220(c), SCACR ("The appellate court may
affirm any ruling, order, decision or judgment upon any ground(s) appearing in the
Record on Appeal."). I therefore believe the proper result is to reverse the court of
appeals' decision and reinstate the jury's guilty verdict as to the charges involving
Green.
B.
Regardless, I would reverse the court of appeals and reinstate the convictions
involving Green on the merits as well. In my judgment, the recharging of the jury
removed any error in the original instruction by making it clear that self-defense
was available to all charges related "to the other victims," which included the
charges involving Green. I fully acknowledge our law recognizes that correct legal
instructions overlaid or "superimposed" alongside improper instructions during the
jury charge generally constitute reversible error. In this regard, the majority relies
on State v. Robinson to support its conclusion. 306 S.C. 399, 412 S.E.2d 411(1991). In Robinson, the trial court in the same charge gave correct and incorrect
instructions on the law of "mere presence." Id. at 401, 412 S.E.2d at 413. This
Court found the error reversible, concluding that "merely superimposing a correct
statement of law over an erroneous charge only fosters confusion and prejudice."
Id. (internal alteration marks omitted) (citation omitted). I find Robinson easily
distinguished from this case.
We are not confronted with a correct statement of law being combined with or
"superimposed" alongside an incorrect charge in the same jury instruction. Here,
during the course of its deliberations, an astute jury presented a targeted question
that went to heart of the disputed issue—did the law of mutual combat apply to all
charges? The original jury instruction was confusing and incomplete. However,
unlike in Robinson, the trial court removed any error and prejudice by issuing a
standalone, supplemental jury instruction informing the jury of the correct law
concerning the victim Green—that the law of mutual combat did not apply and,
therefore, the State must disprove self-defense. See, e.g., United States v. Velez,
652 F.2d 258, 262 (2d Cir. 1981) (explaining that an error in a jury charge may be
cured by a subsequent, correct supplemental instruction); Flanagan v. State, 533
So. 2d 637, 645 (Ala. Crim. App. 1987) (same); Morris v. Christopher, 258 A.2d
172, 175 (Md. 1969) (same); People v. Strong, 683 N.Y.S.2d 275, 275 (App. Div.
1998) (same); State v. Foss, 134 A. 636, 637 (Vt. 1926) (same).
C.
We are told by the majority that the "trial court's answer gave no indication that
[Respondent] Bowers'[s] mutual combat with Michael Morgan could not be used to
foreclose self-defense as to Green." That statement is patently contrary to the
actual jury instruction.
The supplemental instruction made it clear that mutual combat only applied to the
charge involving Morgan, and significantly, the State was required to disprove
self-defense as to the other charges, including the ABHAN charge involving
Green. The majority states that "the trial court's answer was not correct." I
disagree, for the supplemental instruction was a correct statement of the law in
response to the specific question posed by the jury—because there was no mutual
combat in connection with the charges involving Green, Respondent's claim of
self-defense was proper, and the State had the burden to disprove self-defense.
I respectfully disagree with the majority's efforts to disavow the supplemental
instruction based on its speculation—without any shred of proof—that the jury
intuitively chose to ignore the supplemental instruction. See State v. Washington,
431 S.C. 394, 410, 848 S.E.2d 779, 788 (2020) ("[J]urors are presumed to follow
the law as instructed to them." (quoting State v. Grovenstein, 335 S.C. 347, 353,
517 S.E.2d 216, 219 (1999))). Moreover, I reject the suggestion that members of
the jury could have been under the impression the initial charge still applied.
Accepting the premise that the original instruction was erroneous, I am firmly
convinced the trial court's clear supplemental instruction—the State had to
disprove self-defense as to the charges involving Green—refuted and removed the
error in the original charge, even absent the court failing to "formally" withdraw
the original instruction. 8 Cf. Bollenbach v. United States, 326 U.S. 607, 612
(1946) ("Particularly in a criminal trial, the judge's last word is apt to be the
decisive word."); McKnight v. State, 378 S.C. 33, 48–49, 661 S.E.2d 354, 362
(2008) (explaining that supplemental instructions "attain[] a special significance in
the minds of the jurors"); Lowry, 376 S.C. at 507, 657 S.E.2d at 764 ("The fact that
the [erroneous] charge occurred in a supplemental instruction is also
relevant. . . . [T]he improper charge . . . was the last thing the jurors heard before
beginning deliberations and [] its brevity was likely received by the jurors with
heightened alertness rather than the normal attentiveness which may well flag from
8
In fact, the clear majority rule from other jurisdictions is exactly contrary to the
majority's conclusion here, in that most jurisdictions (if not all) find that a correct
supplemental instruction cures any error in an incorrect initial instruction.
time to time during the lengthy initial charge." (quoting Arroyo v. Jones, 685 F.2d
35 (2d Cir. 1982)) (internal quotation marks omitted) (citing Bollenbach, 326 U.S.
at 612)).
D.
Perhaps the most problematic aspect of the majority opinion is that it is based on a
hypothetical view of the facts. Specifically, the majority finds the trial court erred
because its supplemental instruction "gave no indication that [Respondent's]
mutual combat with Michael Morgan could not be used to foreclose self-defense as
to Green." (Emphasis added). Of course, the parties and the court of appeals (and
I) all agree there was no evidence of mutual combat, nor did the Court grant a
petition for a writ of certiorari to consider the mutual combat issue. The majority
nonetheless marches forward and concludes, hypothetically-speaking, that if the
facts had been different, then mutual combat would have applied to the charges
involving Green, stating "[i]f [Respondent] and [] Morgan . . . satisfied the
limitations on the doctrine of mutual combat . . . , then . . . the doctrine would
make [Respondent] responsible for the injury to Green." (Emphasis added). As a
result, the majority holds mutual combat negated (or should have negated)
Respondent's claim of self-defense against Green.
Even assuming that the majority's conclusion is correct and the supplemental jury
instruction incorrectly required the State to disprove self-defense, the majority
reaches the wrong result because any possible error heightened the State's burden
of proof, thereby inuring to Respondent's benefit. See, e.g., State v. Stukes, 416
S.C. 493, 498, 787 S.E.2d 480, 482 (2016) (explaining an erroneous jury charge
"must be prejudicial to the [defendant] to warrant a new trial" (emphasis added)).
Specifically, if—as the majority claims—mutual combat negated Respondent's
self-defense claim related to Green, then the State had only to prove Respondent's
guilt, and did not need to disprove the elements of self-defense. The "erroneous"
jury instruction placed an additional burden on the State, with the trial court
informing the jury, "[S]ince there's no mutual combat, you would have to consider
whether or not the State has disproved self-defense . . . ." Thus, under the
majority's formulation of the "erroneous" jury instruction, the State needed to not
only prove Respondent's guilt, but also disprove the elements of self-defense—a
heightened burden compared to what would otherwise be required under the
majority's ultimate analysis.
Accordingly, even assuming the majority is correct in every respect as to its
hypothetical view of the facts and applicability of mutual combat to the charges
involving Green, Respondent benefitted from any possible error and, therefore, has
failed to prove prejudice. See id. (stating erroneous jury charges only warrant a
new trial when they are prejudicial to the defendant).
III.
There can be no serious challenge to the narrow issue currently before the Court—
self-defense was a valid defense, which the State had to disprove beyond a
reasonable doubt. The jury was clearly and correctly informed of that fact in the
supplemental charge. Under these circumstances, I would reverse the court of
appeals and reinstate the convictions involving Green.
Acting Justice Thomas E. Huff, concurs.