THE STATE OF SOUTH CAROLINA

In The Supreme Court

Willie Lee Douglas, Petitioner,

v.

State of South Carolina, Respondent.

ON WRIT OF CERTIORARI

Appeal From Florence County

Ralph King Anderson, Trial Judge

Marc H. Westbrook, Post-Conviction Judge

Opinion No. 24828

Submitted December 17, 1997 - Filed August 10, 1998

AFFIRMED

Chief Attorney Daniel T. Stacey and Assistant

Appellate Defender Lisa T. Gregory, of South

Carolina Office of Appellate Defense, of Columbia,

for petitioner.

Attorney General Charles Molony Condon, Deputy

Attorney General John W. McIntosh, and Assistant

Deputy Attorney General Teresa A. Knox, all of

Columbia, for respondent.

TOAL, A.J.: Willie Lee Douglas and co-defendant Maurice

Pickens were involved in a shooting incident outside a Waffle House in

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Florence, South Carolina. Four people were shot; two died. Douglas and

Pickens were indicted for the shooting. In this post-conviction relief action,

we granted a writ of certiorari to review petitioner's direct appeal issues

pursuant to White v. State, 263 S.C. 110, 208 S.E.2d 35 (1974). We affirm.

FACTUAL/PROCEDURAL BACKGROUND

Early in the morning on February 13, 1994, a crowd gathered in an

area next to a Waffle House in Florence; Douglas and Pickens were among

those in the crowd. An argument erupted between the defendants and others

in the crowd. There was testimony that a group of people rushed the

defendants, and in self-defense, Douglas and Pickens began shooting.

Douglas and Pickens were tried together for the shooting. They were

convicted of two counts of voluntary manslaughter and possession of a

firearm during the commission of a crime of violence. Both Douglas and

Pickens appealed. Douglas filed an untimely notice of intent to appeal which

we dismissed on January 25, 1994 for lack of jurisdiction. Pickens made a

timely appeal which we addressed in State v. Pickens, 320 S.C. 528, 466

S.E.2d 364 (1996). We reversed Pickens's conviction and remanded for a new

trial.

Meanwhile, on May 19, 1995, Douglas filed an application for post-

conviction relief ("PCR"). In its order dated March 21, 1996, the PCR court

found that Douglas did not knowingly and intelligently waive his right to a

direct appeal and was entitled to White v. State 1 review. As a result,

Douglas petitioned for a writ of certiorari, which we granted to consider the

following issues:

1. Did the trial court err in refusing to give a curative instruction after

the solicitor commented on the defendants' failure to call witnesses?

2. Did the trial court err in refusing a request to charge that Douglas

was not limited to the degree or quantity of attacking opposing forces?

3. Did the trial court err in denying a request to charge defense of

others?

4. Did the trial court err in refusing a request to instruct the jury on

involuntary manslaughter?

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LAW/ANALYSIS

A. COMMENT ON FAILURE TO CALL WITNESSES

Douglas argues that the trial court erred in refusing to give a curative

instruction after the solicitor referred to Douglas's failure to call witnesses.

We disagree.

In closing arguments, the solicitor stated, "One thing they short me on

is I didn't put these officers up. Well, I tell you one thing, they can call

witnesses just like I can. And [Douglas] did call witnesses." Douglas

objected, and Pickens joined in the motion. Inasmuch as Pickens had elected

not to testify or call any witnesses, the trial judge ruled that he was entitled

to protection under Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d

91 (1976).2 However, the trial judge refused to give a curative instruction.

Douglas argues this was reversible error.

Although Douglas did not testify in his own defense, he did call several

witnesses in his behalf. Douglas contends the solicitor's statement was an

attempt to draw an adverse inference from Douglas's failure to call a

particular witness. At the outset, it should be noted that it is a real stretch

to interpret the solicitor's remarks as a negative comment of any kind

regarding Douglas. Nevertheless, the jury should ordinarily be instructed not

to draw inferences from the neglect of a defendant to call witnesses. See 29

Am. Jur. 2d Evidence § 247 (1994). Moreover, pursuant to State v. Posey,

269 S.C. 500, 238 S.E.2d 176 (1977), it is never permissible for the prosecutor

to suggest to the jury that it draw an adverse inference when the defendant

fails to present any evidence at trial, since the defendant may let the case go

to the jury on the basis that the prosecution did not meet its burden of proof.

However, where, as here, the defendant presents evidence at trial, and

"there are witnesses, seemingly accessible to the accused, or under his

control, who are or should be cognizant of material and relevant facts and

competent to testify thereto, and whose testimony would presumably aid him

or substantiate his story if it were true, it is not improper for the prosecuting

attorney to comment upon [defendant's] failure to produce them." State v.

Shackleford, 228 S.C. 9, 11, 88 S.E.2d 778, 779 (1955). In State v. Bamberg,

270 S.C. 77, 240 S.E.2d 639 (1977), the solicitor argued to the jury that it

should draw an adverse inference from the defendants' failure to call certain

to remain silent.

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witnesses. The defendant argued that the trial court erred in allowing the

solicitor to make the argument. We disagreed, noting that the rule in Posey

applied only in cases where a defendant failed to present any evidence at all.

In Bamberg, the defendants had produced other witnesses in their behalf.

As such, we found the solicitor's argument was proper.

In this case, Douglas also produced other witnesses in his behalf.

Additionally, the trial court extensively charged the jury that the State had

the burden of proof and the defendants had no duty to prove their innocence.

Therefore, we find the trial court's failure to give a curative instruction was

not error.3

B. DEGREE OF FORCE IN SELF-DEFENSE

Douglas argues that the trial court erred in refusing to charge that

Douglas was not limited to the degree or quantity of attacking opposing

forces. We disagree,

Douglas's requested charge provided:

I charge you that the defendant, if without fault, has the right to

use such necessary force as required for his complete protection

from loss of life or serious bodily harm and cannot be limited to

the degree or quantity of attacking opposing force. State v.

Campbell, 111 S.C. 112, 113, 96 S.E. 543, 544 (1918).

In Campbell, the defendant shot and killed a man who came at him

with a bottle. The defendant claimed self-defense. The trial court charged

the jury that under self-defense the defendant was limited to using as much

force as was used against him. We found the trial court had erred in giving

the charge, stating: "The defendant was not limited to use the same force and

no more than that with which he was threatened. The defendant, if without

fault, had the right to use as much force as required for his complete

protection from loss of life or serious bodily harm, and could not be limited

to the degree or quantity of attacking opposing force." State v. Campbell, 111

S.C. at 113, 96 S.E. at 544.

trial court's failure to give a curative instruction was reversible error.

However, the instant case is distinguishable from Pickens because Douglas

did present evidence at trial, while Pickens did not.

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In this case, after instructing the jury on the elements of self-defense,

the trial court gave the following jury charge:

[I]f the defendant was justified in using force and firing the first

shot, he is justified in continuing to shoot until it appears that

any danger to his life and body has ceased.

* * * *

The law in this state is that the defendant does not have to wait

until the deceased gets the drop on him or the deceased begins

to shoot him. He has the right to act upon the law of self-

preservation and prevent this.

We find that the trial court's charge was consistent with the dictates

of Campbell. Therefore, the trial court's refusal to give Douglas's requested

charge was not error. See State v. Hicks, 305 S.C. 277, 407 S.E.2d 907

(1991)(although charges requested by a party may be a correct statement of

law, a judge does not err by refusing to deliver the charges verbatim).

C. DEFENSE OF OTHERS

Douglas argues that the trial court erred in denying a request to charge

"defense of others." We disagree.

Under the theory of defense of others, one is not guilty of taking the

life of an assailant who assaults a friend, relative, or bystander if that friend

relative, or bystander would likewise have the right to take the life of the

assailant in self-defense. State v. Long, _ S.C. _, 480 S.E.2d 62 (1997).

The law to be charged is determined from the evidence presented at trial.

State v. Gourdine, 322 S.C. 396, 472 S.E.2d 241 (1996). Consequently, in

order for the trial court to give a defense of others charge, there must be

some evidence adduced at trial that the defendant was indeed lawfully

defending others. In this case, the evidence was insufficient to warrant such

a charge.

Douglas further argues that since the jury was charged with "the hand

of one is the hand of all" theory, it should have also been charged with

defense of others. Douglas reasons that it would not be fair for the State to

have the benefit of a charge on concerted action, without the defendant also

having the benefit of the reciprocal charge on defense of others. We disagree.

Evidence that supports a charge on concerted action does not automatically

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warrant a defense of others charge. There must be some other evidence to

support the defense of others theory. See Bozeman v. State, 307 S.C. 172,

414 S.E.2d 144 (1992)(finding the record supported a self-defense charge

rather than a defense of others charge). Thus, in this case, the trial court

did not err in refusing to give the requested charge.

D. INVOLUNTARY MANSLAUGHTER

Douglas argues that the trial court erred in refusing to instruct the

jury on involuntary manslaughter. We disagree.

Involuntary manslaughter is (1) the unintentional killing of another

without malice, but while engaged in an unlawful activity not naturally

tending to cause death or great bodily harm; or (2) the unintentional killing

of another without malice, while engaged in a lawful activity with reckless

disregard for the safety of others. Bozeman v. State, 307 S.C. 172, 414

S.E.2d 144. Douglas argues that an involuntary manslaughter charge should

have been given because he acted lawfully,. but recklessly, in defending

himself.

Douglas admits he intentionally shot the gun into the crowd in self-

defense. In State v. McLaughlin, 208 S.C. 462, 38 S.E.2d 492 (1946), the

defendant also argued that he intentionally shot a gun while defending

himself from an attack. We found that an involuntary manslaughter charge

was warranted since there "was sufficient evidence to go to the jury as to

whether or not [defendant] was negligent in firing as he did at random in the

darkness knowing that others were about." State v. McLaughlin, 208 S.C.

at 466, 38 S.E.2d at 493. However, in Pickens, we overruled McLaughlin as

to the evidence needed to warrant an involuntary manslaughter charge.

Pickens, 320 S.C. at 531 n.3, 466 S.E.2d at 366 n.3. In Pickens, we relied

upon two modern South Carolina cases discussing this issue: State v. Smith,

315 S.C. 547, 446 S.E.2d 446 (1994)(holding that a defendant who acted

intentionally in wielding a knife in self-defense was not entitled to an

involuntary manslaughter charge) and State v. Morris, 307 S.C. 480, 415

S.E.2d 819 (Ct. App. 1991)(finding an involuntary manslaughter charge not

warranted because evidence showed an intentional shooting). We reasoned

that involuntary manslaughter is at its core an unintentional killing. Thus,

where a defendant intentionally arms himself and shoots into a crowd, as

Douglas did here, he is not entitled to an involuntary manslaughter charge.4

has no application to involuntary manslaughter. See William Shepard

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Accord Lamon v. State, 390 S.E.2d 582 (Ga. 1990); People v. DeMumbree, 424

N.E.2d 73 (Ill. 1981); State v. Moore, 331 S.E.2d 251 (N.C. Ct. App. 1985).

Thus, pursuant to Pickens, the evidence in this case would not support

a charge of involuntary manslaughter. The record firmly establishes that

Douglas armed himself with a gun and intentionally fired it into the crowd.

CONCLUSION

For the foregoing reasons, the trial court is AFFIRMED on all issues.

FINNEY, C.J., MOORE, WALLER and BURNETT, JJ., concur.

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