THE STATE OF SOUTH CAROLINA

In The Supreme Court

State of South Carolina, Respondent,

V.

Willie Wiggins, Appellant.

Appeal From Marlboro County

Edward B. Cottingham, Judge

Opinion No. 24791

Heard December 2, 1998 - Filed May 18, 1998

AFFIRMED

Jack B. Swerling, of Columbia, for appellant.

Charles Molony Condon, Attorney General, John W.

McIntosh, Deputy Attorney General, Salley W.

Elliott, Assistant Deputy Attorney General, Charles

H. Richardson, Senior Assistant Attorney General,

all of Columbia; and C. Gordon McBride, Solicitor,

Fourth Judicial Circuit, of Darlington, for

respondent.

WALLER, A.J.: On January 2, 1995, Appellant Willie Wiggins

was indicted for the murder of Robert Clayton Hood ("Victim"). Following a

jury trial, Appellant was convicted of voluntary manslaughter¹ and sentenced

acquittal on the murder charge, but submitted this lesser-included offense to

p.28

to ten years' imprisonment. We affirm.

FACTS

Appellant and his wife operate the Bennettsville Motel ("Motel").

Attached to Motel is a restaurant named the Launch Pad, and a bar named

the Silver Moon. Victim was a frequent patron of these establishments. It

is undisputed that on the night of October 13, 1994, Victim got into a fight

with another patron. Appellant's wife asked Victim to leave and permanently

barred him from the premises. Appellant was not present. Victim was very

reluctant to leave and had to be persuaded to do so by a family member.

Sometime around mid-day on October 14, 1994, Victim returned to

Motel. He first met with Appellant. Victim and Appellant had an ongoing

arrangement where Victim would borrow money from Appellant using his gun

as collateral. On this day, Victim repaid an outstanding debt to Appellant,

who then returned Victim's gun.² When Victim indicated he wanted to

discuss the events of the night before, Appellant told him his wife had made

the decision to bar him from the restaurant/bar and if he had a problem with

it he would have to talk to her. Appellant then took Victim to speak to his

wife and left. An argument developed between Victim and Appellant's wife

because Victim was upset he was the only person who had been barred (not

the person with whom he was fighting). When Appellant's wife stuck to her

decision, Victim angrily left Motel.

A few hours later, Victim's sister ("Sister") arrived at Motel, demanding

to speak with Appellant's wife. Appellant told Sister his wife was not there

and asked if he could help her. Sister responded she had come to confront

his wife regarding her decision to bar Victim from the premises. Appellant

testified she was angry and threatened to physically attack Appellant's wife.

He told her no one was going to attack his wife, and warned he would call

the police if she came back to cause trouble. He also told her if she came

back and tried to attack his wife, he would "kick her ass." Sister responded

she was going to bring the "whole Hood family" back to Motel later that night

²This gun was not the gun in Victim's possession when the fatal

incident occurred later that afternoon.

p.29

to "shut the place down."³

As Sister was leaving, Victim's brother ("Brother") arrived, apparently

to try to calm her down. Brother and Sister were in Motel's parking lot,

preparing to leave, when Victim drove up. Victim was sitting in Sister's car,

talking to her, when Appellant came out of Motel.⁴ Appellant walked over

to the passenger side of Sister's car, where Victim was sitting. Victim had

one foot in the car and one foot on the ground, with the door open.

Testimony regarding the subsequent events was, unsurprisingly, highly

contradictory.

Sister testified Appellant was leaning into the car talking to her and

Victim. He told them he was going to call the police if they did not leave.

Victim replied he did not come looking for trouble; he had only come to get

Sister.⁵ Sister, however, continued arguing with Appellant. She had

informed Victim Appellant had threatened to kick her ass.⁶ Victim asked

Appellant if he said that and Appellant denied it. Sister accused Appellant

of lying. Appellant then stated, "'Yes, I said it. I'll kick both of your asses."'

Victim responded, "We'll settle this," and turned to get out of the car. When

he turned, Sister saw a gun clipped to Victim's back (Victim's back was not

to Appellant). She then saw Appellant had a gun in his hand. She had

exited the car when Appellant began shooting.⁷ Victim did not reach for his

gun until he had already been hit by Appellant with the first shot. Victim

never was able to pull the gun out and fire it, however; the gun fell to the

ground. After Victim was hit with the first shot, he exited the car and began

running toward the rear, at which point his back was to Appellant, who

continued firing the gun. Victim fell to the ground and was carried to the

hospital by Sister, where he died. Sister unequivocally stated Victim never

Appellant's wife was and said she would return.

⁴The State presented testimony Victim was in the parking lot for less

than one minute before Appellant confronted him.

⁵Brother testified the reason he went to get Sister from Motel was at

the behest of Victim.

⁶It is unclear whether Sister told Victim this before or after Appellant

confronted them.

⁷Appellant's gun was fired four times. Testimony consistently showed

the shots were fired in rapid succession.

p.30

had a gun in his hand, or pointed a gun at Appellant, while he was sitting

in the car or before Appellant began shooting.

Brother, who was standing outside of, but close to, Sister's car, testified

he heard Victim tell Appellant he did not want any trouble and that they

were leaving. He did not hear any other conversation besides Sister calling

Appellant a liar. As Victim was getting out of the car, Appellant pulled a

gun out of his right back pocket and began firing. Victim did not have a gun

in his hand. Brother saw Victim reach for his gun after Appellant fired the

first shot. Victim began staggering towards the back of the car as Appellant

continued firing. At some point after the first shot, Brother shouted for

Victim to shoot Appellant. Victim never raised his gun or pointed it at

Appellant; the gun fell from Victim's hand as he was being shot. Before

Victim reached for his gun, Brother did not know he had one (i.e. he could

not see it from where he was standing -- which was directly behind

Appellant).⁸

Appellant gave a very different version of events. He testified he

armed himself with a gun after Sister left Motel because he was going home,

and it was his habit to take his gun home. When Victim showed up outside,

he did not think there would be any problem because he thought they were

on good terms. He had never had problems with him that could not be

talked out. When he asked Victim to leave the first time, Victim ignored him

(or did not hear him). He forthrightly told Victim he had threatened to

whip [Sister's] ass" (he testified he never denied saying it), but told Victim

he did not mean it. He told Victim they did not need any problems, to which

Victim responded, "Yeah, we've got problems." Victim got out of the car, took

his sunglasses off with his right hand, and with his left hand pulled out a

pistol.⁹ Victim cocked and pointed the gun at Appellant.¹⁰ As Victim was

exiting the car, Brother was yelling, "Shoot him, Clay." Appellant got scared,

pulled his own gun and fired.

away from the car and begin shooting as Victim was getting out of the car.

Victim did not have a gun in his hand at the time. Victim was running to

the rear of the car, acting "like he was trying to run from the bullets." At

one point his back was to Appellant while Appellant was still shooting.

⁹Brother and Sister testified Victim was right-handed.

¹⁰A desk clerk working in Motel also testified Victim pulled a gun on

Appellant.

p.31

An autopsy revealed Victim died of three "distant" gunshot wounds, two

in the chest and one in the back. No powder burns were associated with the

wounds. No gunpowder residue was found on Victim's hands. The trajectory

of one of the chest wounds indicated it was fired from a downward angle.

From the relative sizes of Victim and Appellant, the pathologist opined this

downward angle was consistent with Victim getting out of a car and

Appellant standing outside of the car when the shot was fired because Victim

would have to be lower than the gun. Victim's blood alcohol level was .019%.

ISSUES

I. Did the trial judge err in refusing to direct a verdict of acquittal

because Appellant was acting in self-defense as a matter of law?

II. Did the trial judge err in submitting the issue of voluntary

manslaughter to the jury?

III. Did the solicitor's remarks during opening and closing argument

prejudice Appellant's right to a fair trial?

DISCUSSION

I. Self-Defense

Appellant argues the trial judge should have directed a verdict of

acquittal because the State failed to provide evidence sufficient to negate his

claim of self-defense (i.e. because Appellant was acting in self-defense as a

matter of law). We disagree.

At one time, self-defense was an affirmative defense in this State, and

a defendant bore the burden of establishing it by a preponderance or greater

weight of the evidence. State v. McDowell, 272 S.C. 203, 249 S.E.2d 916

(1978). However, current law requires the State to disprove self-defense, once

r,-ilsed by the defendant, beyond a reasonable doubt. See State v. Fuller, 297

S.C. 440, 443, 377 S.E.2d 328, 330 (1989); State v. Bellamy, 293 S.C. 103,

105, 359 S.E.2d 63, 64-65 (1987), overruled on other grounds, State v.

Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991) ("It is clear that the defendant

need not establish self-defense by a preponderance of the evidence but must

merely produce evidence which causes the jury to have a reasonable doubt

regarding his guilt.").

p.32

"When ruling on a motion for a directed verdict, the trial judge is

concerned with the existence of evidence, not its weight. When this Court

reviews the denial of a motion for a directed verdict, it views the evidence in

the light most favorable to the non-moving party, and if there is any direct

or substantial circumstantial evidence which reasonably tends to prove the

guilt of the accused or from which guilt may be fairly and logically deduced,

refusal by the trial judge to direct a verdict is not error." State v. Long , 325

S.C. 59, 480 S.E.2d 62 (1997). See also William S. McAninch & W. Gaston

Fairey, The Criminal Law of South Carolina 483 (3d ed. 1996) (Supp. 1997

at 77) ("Reversal of a conviction because of the trial court's refusing to give

a directed verdict on the ground of self-defense is rare").

The basic definition of when a person is justified in using deadly force

in self-defense is comprised of four elements:

(1) The defendant was without fault in bringing on the difficulty;

(2) The defendant must have 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) If 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. If the

defendant actually was in imminent danger, the circumstances

were such as would warrant a man of ordinary prudence,

firmness and courage to strike the fatal blow in order to save

himself from serious bodily harm or losing his own life; and

(4) The 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.

State v. Davis, 282 S.C. 45, 46, 317 S.E.2d 452, 453 (1984). We find, viewing

the evidence in the light most favorable to the State, that sufficient evidence

was produced at trial to submit this issue to the jury.

Appellant argues he was clearly without fault in bringing on the

difficulty because he was ejecting Victim, a trespasser, from his business

premises. He relies on State v. Brooks, 252 S.C. 504, 167 S.E.2d 307 (1969),

for this proposition. Brooks held:

p.33

[I]f in the exercise of the right by a proprietor to eject a

trespasser from his premises, the proprietor is assaulted by the

trespasser and subjected to the danger of losing his life or of

receiving serious bodily harm as would justify the killing of the

assailant under the right of self-defense, obviously,'he would have

the right to stand on that defense and if, in fact, engaged in the

legitimate exercise in good faith of his right to eject, he would in

such case be without fault in bringing on the difficulty . . . .

Id. at 510, 167 S.E.2d at 310. In Brooks, the issue was whether this law

should have been charged in a case where a fight broke out in a tavern

parking lot as the managers (defendants) were allegedly trying to evict an

unruly patron.¹¹ In finding such a charge warranted, the Court stated,

"Whether the appellants were acting in good faith in attempting to eject [the

victim], and while so doing [the victim] assaulted them, was a question of

fact for jury determination." 252 S.C. at 511, 167 S.E.2d at 310. The Court

did not hold the defendants were, as a matter of law, without fault in

bringing on the difficulty. It held they were entitled to have a jury consider

the issue. See also State v. Starnes, 213 S.C. 304, 49 S.E.2d 209 (1948)

(because of conflict of testimony regarding facts, refusing to hold as a matter

of law that defendant was entitled to act as he did in ejecting patrons).¹²

Here, evidence was presented by the State that Victim was in the

process of leaving and told Appellant he did not want any trouble.

Furthermore, Appellant threatened to kick "both [Victim's and Sister's]

asses." We find this evidence raised a question of fact regarding whether

Victim assaulted Appellant, and whether Appellant was exercising good faith

in attempting to eject when the shooting occurred. See also State v.

Woodham, 162 S.C. 492, 502, 160 S.E. 885, 889 (1906) (one can bring on

difficulty by using "language so opprobrious that a reasonable man would

expect it to bring on a physical encounter, and which did actually contribute

open the door of the tavern, armed with a pistol and cursing. When they all

went outside, the victim grabbed a gun and started firing after threatening

to kill the managers. Only after the victim started firing did the manager

fire his gun. Aside from the fact that Brooks had the exact opposite

procedural posture of that here, its facts are clearly distinguishable when

viewing the light of the current evidence most favorably to the State.

¹²We note the judge did not charge this aspect of self-defense, and the

record contains no evidence Appellant requested such a charge.

p.34

to bringing it on.") (internal quotations omitted); 40 Am. Jur. 2d Homicide §

147 (1968) ("Threats made by the accused against the deceased may be

considered sufficient provocation").

We similarly decline to find the evidence established the second and

third elements of self-defense as a matter of law.¹³ Appellant certainly

realized Victim owned at least one gun, and he knew Victim had a tendency

to get into fights. However, he never testified he thought or was afraid

Victim was carrying a gun when he went out to the parking lot. Further, he

testified he did not think anything would happen when he went out to the

parking lot because he had always been able to reason with Victim. He

thought they were friends.¹⁴ Under these circumstances, we do not find that,

as a matter of law, Appellant actually believed he was, or actually was, in

imminent danger of serious bodily injury or loss of life. Nor can we conclude

that, as a matter of law, a reasonable person would, in the same situation

with this same past history, feel justified in striking a fatal blow. The fact

that Victim turned out to have had a gun in his possession does not

automatically provide justification for this shooting when there is evidence in

the record showing Appellant was unaware he had it. Furthermore,

Appellant continued shooting, even when Victim was falling to the ground

and turning away from him.¹⁵

testified, that Victim did not initially pull his gun on Appellant. This issue

would be much more favorable to Appellant if the evidence were

uncontradicted that Victim cocked a gun and pointed it at him.

¹⁴Although Appellant emphasizes Victim's blood alcohol level, he never

testified he thought Victim was under the influence of alcohol, or that this

was part of the reason he acted as he did.

¹⁵We agree with Appellant's argument that under the fourth element

he was under no duty to retreat because the incident occurred in the parking

lot of his place of business. There is no duty to retreat where an attack

occurs in one's home or place of business. We have followed the general rule

that the absence of a duty to retreat also extends to the curtilage of a home.

See also 40 Am. Jur. 2d § 168 ("curtilage" includes outbuildings, yard around

dwelling, garden). We now clarify the law that, consistent with this

curtilage rule," the absence of a duty to retreat on one's place of business

applies to the business parking lot. See Brooks, 252 S.C. 504, 167 S.E.2d 307

(noting if proprietor was exercising good faith attempt to eject and was

assaulted, he would have no duty to retreat; shooting occurred in parking lot

p.35

Our recent opinion in Long rejected this same argument under similar

facts. See Long , 325 S.C. 59, 480 S.E.2d 62. In that case, Long killed his

stepson after a confrontation which occurred in Long's home. The victim was

angry with Long because Long had reported to police that the victim had

stolen a bicycle. Long was in his bedroom when the victim began beating on

the door with a baseball bat and arguing with him.¹⁶ Long opened the door

and immediately shot the victim. Long testified he thought the victim was

using drugs at the time and he was afraid of him when he used drugs. He

testified the victim had been over at the house the day before with a gun.

Further, there was a history of ill feeling between the two. We rejected

Long's argument he was entitled to acquittal because he was acting in self-

defense as a matter of law, stating, "While self-defense can be inferred even

from the State's version of the evidence, the evidence of self-defense is not

conclusive." Id. at 63.¹⁷

We find the State presented sufficient evidence to create a jury issue

regarding whether Appellant was acting in self-defense or was guilty of

voluntary manslaughter.

II. Voluntary Manslaughter

Appellant argues the judge erred in submitting the issue of voluntary

manslaughter to the jury because there was no evidence he committed this

offense. We disagree.

Voluntary manslaughter is defined as the intentional killing of a human

being in the sudden heat of passion resulting from a sufficient legal

provocation. State v. Nichols, 325 S.C. 111, 481 S.E.2d 118 (1997). "'Sudden

heat of passion upon sufficient legal provocation' that mitigates a felonious

killing to manslaughter 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

¹⁶ The victim did not reside in the same home with Long.

¹⁷ Long distinguished our opinion in State v. Hendrix, 270 S.C. 653, 244

S.E.2d 503 (1978), which is the case Appellant is primarily relying on, on the

basis that in Hendrix the victim was carrying a gun and advancing towards

the defendant, showing he was "clearly in imminent danger." Id. at 64.

p.36

Ian uncontrollable impulse to do violence." State v. Lowry, 315 S.C. 396, 399,

434 S.E.2d 272, 274 (1993) (quoting State v. Gardner, 219 S.C. 97, 64 S.E.2d

130 (1951)). To warrant a court's eliminating the offense of voluntary

manslaughter, it should "very clearly appear that there is no evidence

whatsoever tending to reduce the crime from murder to manslaughter." Id.

We find there is evidence in the record which would tend to show

Appellant acted in sudden heat of passion upon sufficient legal provocation.

Appellant was in a heated argument with Victim and Sister. He testified he

was afraid for his life because Victim physically threatened him. Contrary

to his argument, fear can constitute a basis for voluntary manslaughter. See

State v. Franklin, 310 S.C. 122, 125, 425 S.E.2d 758, 760 (Ct. App. 1992)

(mind can be rendered incapable of cool reflection by "exasperation, rage,

anger, sudden resentment, or terror"). See also Lowry, 315 S.C. at 396, 434

S.E.2d at 272 (properly charged relying on evidence victim and defendant

were arguing and victim was about to initiate a physical encounter when

shooting occurred); State v. Gilliam, 296 S.C. 395, 397, 373 S.E.2d 596, 597

(1988) ("Appellant's testimony that the victim threatened him and then fired

at him would support a finding of sufficient legal provocation and heat of

passion"). We therefore affirm the trial court's submission of this offense to

the jury. ¹⁸

submitted because he claimed he acted in self-defense. We have repeatedly

held these theories may both be properly submitted where the evidence

supports them. See, e.g., Nichols, 481 S.E.2d at 122 ("Self-defense and

voluntary manslaughter are not mutually exclusive and should both be

submitted to the jury if supported by the evidence"); Lowry, 315 S.C. at 400,

434 S.E.2d at 274 ("Even though the jury was not convinced that Lowry acted

in self-defense, the jury could have discerned, consistent with the evidence,

that there was sufficient legal provocation and heat of passion to find Lowry

guilty of voluntary manslaughter"); Gilliam, 296 S.C. at 396-97, 373 S.E.2d

at 597 ("Both self-defense and the lesser included offense of voluntary

manslaughter should be submitted to the jury if supported by the evidence.

The rationale for this rule is that the jury may fall to find all the elements

for self-defense but could find sufficient legal provocation and heat of passion

to conclude the defendant was guilty of voluntary manslaughter."). Appellant

cites our decision in State v. Finley , 277 S.C. 548, 290 S.E.2d 808 (1982), as

support for his argument. We find his reliance on Finley misplaced.

In Finley, the defendant was convicted of murder. On appeal, he

argued he was entitled to have the jury instructed that, under the theory of

p.37

III. Solicitor's Arguments

Appellant argues certain comments the Solicitor made during opening

and closing argument violated his right to a fair trial. We disagree.

This argument is not preserved for appellate review because Appellant

made no objection to Solicitor's arguments at any point during the trial.

State v. Patterson, 324 S.C. 5, 482 S.E.2d 760 (1997). In any event, while

the comments were arguably outside the record and its inferences, we find

they were not so prejudicial as to deprive Appellant of due process by

rendering his trial fundamentally unfair. See State v. Copeland, 321 S.C.

318, 468 S.E.2d 620 (1996) (Appellant bears burden of establishing argument

was so improper it infected the trial with unfairness to the extent that

conviction was a denial of due process; Court reviews argument in light of

the entire record).

AFFIRMED.

FINNEY,C.J., MOORE, BURNETT, JJ., and Acting Associate Justice

James R. Barber, concur.

unreasonable, belief he was in imminent danger of bodily harm, they should

find him guilty of voluntary manslaughter instead of murder. We affirmed

the trial court's refusal to so charge the jury. Here, Appellant has not

argued he was entitled to any such additional charge, but is attempting to

extend Finley's holding to preclude the submission of voluntary manslaughter

as a possible verdict in the first instance. Finley did not address this issue;

in fact, in that case, the jury received both voluntary manslaughter and self-

defense instructions.

p.38