In The Court of Appeals

The State, Respondent,


Marlon Rivera, Appellant.

Appeal From Greenville County
 C. Victor Pyle, Jr., Circuit Court Judge

Unpublished Opinion No. 2008-UP-187
Heard March 6, 2008 – Filed March 18, 2008


Deputy Chief Attorney for Capital Appeals Robert M. Dudek, of Columbia; for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, Assistant Attorney General S. Creighton Waters, all of Columbia; and Solicitor Robert M. Ariail, of Greenville, for Respondent.

PER CURIAM:  Marlon Rivera appeals his murder conviction, arguing the trial judge erred in (1) admitting his statement to police, (2) admitting hearsay testimony, (3) refusing to allow an unsequestered witness to testify, and (4) failing to charge accident and involuntary manslaughter.  We reverse and remand. 


This case involves the killing of Wilfredo Solis Monge.  At approximately 12:30 a.m. on July 18, 2005, police officers arrived at the scene of a reported shooting in Greenville County.  There were a number of people at the scene, most of whom only spoke Spanish.  When police arrived, Monge was lying on the ground.  After the paramedics took Monge to the hospital, detectives were called to the scene. 

Police attempted to speak with witnesses at the scene and one witness informed the police the shooter was two blocks away in a nearby bar.  Police accompanied the witness to the bar, where the witness subsequently identified Rivera as the person who shot Monge.  Officers then placed Rivera in custody. 

Officers took Rivera to the law enforcement center to be interviewed.  Although Rivera does not speak English, a Spanish-speaking officer was present to inform Rivera of his rights and translate his statements.  The officer explained Rivera’s rights, and Rivera subsequently signed a written waiver of rights form.  During the interview, Rivera gave a statement to police.  The translated version of the statement indicates Rivera admitted to shooting Monge.  After the interview, the Spanish-speaking officer and Investigator Smith escorted Rivera to the detention center.

At trial, the State offered evidence supporting Rivera’s guilt, including Rivera’s confession to police.  The trial judge admitted the statement following a hearing on its admissibility.  The State also offered evidence of the statement made by Rivera while officers were escorting him to the detention center. 

Additionally, the State offered the testimony of Nelson Castro, Rivera’s cousin, who testified that on the night of the shooting, Rivera arrived at his residence and informed him he had killed someone.  Castro further testified Rivera told him he was wrestling with someone else and the firearm “just went off by itself.”

Upon taking the stand, Rivera denied shooting Monge.  He also offered the testimony of several witnesses, including Carlos Freeman, who had been serving as his interpreter to corroborate the testimony of other witnesses.  The trial judge refused to allow Freeman to testify because he had been in the courtroom for the entirety of the trial in violation of the sequestration order which Rivera himself requested. 

After all of the evidence had been presented, Rivera requested the jury be charged on self-defense, accident, and involuntary manslaughter.  The trial judge denied Rivera’s request.  Rivera was convicted of murder and sentenced to thirty years imprisonment.  This appeal followed.


Rivera argues the trial judge erred by ruling Rivera was not entitled to a jury instruction on involuntary manslaughter.  We agree.

“The law to be charged must be determined from the evidence presented at trial.”  State v. Patterson, 367 S.C. 219, 231, 625 S.E.2d 239, 245 (Ct. App. 2006).  “If any evidence supports a requested jury charge, the trial court should grant the request.”  State v. Ward, 374 S.C. 606, 614, 649 S.E.2d 145, 149 (Ct. App. 2007) (citing State v. Brown, 362 S.C. 258, 262, 607 S.E.2d 93, 95 (Ct. App. 2004)).  “Due process requires that a lesser included offense be charged when the evidence warrants it but only if the evidence would permit a jury rationally to find the defendant guilty of the lesser offense.”  State v. Small, 307 S.C. 92, 94, 413 S.E.2d 870, 871 (Ct. App. 1992).  “To warrant reversal, a trial court's refusal to give a requested jury charge must be both erroneous and prejudicial to the defendant.”  Patterson, 367 S.C. at 232, 625 S.E.2d at 245.

Rivera relies upon the testimony of Nelson Castro, a witness for the prosecution, who stated Rivera had told Castro the shooting occurred while Rivera was wrestling with another man and the gun accidentally discharged.  During his testimony, Castro stated specifically: “He said that when they were wrestling both of them were grabbing the pistol.  And what he told me is that the other one, one had grabbed the pistol away from him.  And in that the shot went off.”  This testimony is substantially different from that of Rivera himself.  Rivera testified that during the fight the gun slipped inside of his pants and started falling down his pant leg until it fell out onto the ground.  He then testified that both he and the assailant went after the gun, but he got it first and shot twice toward the ground in order to scare the assailant.  He further stated that at that point another man whom he knew as “Skinny” grabbed the gun and shot one time in the direction of Mauricio and then gave the gun back.  Once they realized someone had been hit by the gunfire they ran from the scene.

Rivera’s testimony at trial not only differs from Castro’s testimony but also differs substantially from the statement Rivera originally gave to investigating officers.  Rivera’s statement to the officers admits to grabbing the weapon, pointing it at his assailant, and firing it two times.  In his statement to investigators, Rivera fails to mention or identify anyone other than himself firing the weapon.

While Rivera’s testimony at trial differed from his signed statement, defense witnesses Courtney Robles and Norberto Ortiz corroborated Rivera’s trial testimony.  Robles testified that a guy in a striped shirt was fighting a guy in a white shirt.  Then a guy in a black shirt got the gun from the guy in the striped shirt and fired it towards the guy in the white shirt.  She further stated that she could not remember specifics about these three men’s appearances other than their general characteristics and the clothes they were wearing.  Ortiz, an acquaintance of Rivera, testified that Rivera only fired the weapon towards the ground and that another guy whom he did not know grabbed the weapon and fired it towards the man who had been fighting with Rivera.

Involuntary manslaughter is defined as (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.  State v. Pittman, 373 S.C. 527, 571, 647 S.E.2d 144, 167 (2007). 

While there are several inconsistent explanations for the fatal shot in this case, including the testimony by Rivera that he was not the actual shooter, Castro’s testimony would support a jury finding the weapon discharged during a struggle over the weapon.  Despite the disparity of evidence and conflicting versions of the facts presented by Rivera, all of the evidence including Rivera’s inconsistent statements must be viewed in the light most favorable to the defendant.  See State v. Knoten, 347 S.C. 296, 555 S.E.2d 391 (2001).  Moreover, Rivera admits to firing the weapon towards the ground.  The discharge of a firearm in a public area is evidence of recklessness in the absence of self-defense.  “The fact that there may have been evidence showing the shooting was intentional did not negate the other inferences that could be drawn from all the evidence.”  State v. Mekler, 368 S.C. 1, 16, 626 S.E.2d 890, 898 (Ct. App. 2005), cert. granted (2007).  Evidence a weapon discharged during a struggle is sufficient for submission of an involuntary manslaughter instruction to the jury.  Casey v. State, 305 S.C. 445, 447, 409 S.E.2d 391, 392 (1991).  If the jury believed the testimony of Castro, it could find the gun was fired during a struggle between Rivera and another party and conclude Rivera was guilty of involuntary manslaughter. “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.” State v. Cole, 338 S.C. 97, 101, 525 S.E.2d 511, 513 (2000).  It is not our province on review to decide which testimony to believe; the jury must determine the facts and resolve any issues of credibility.

Here, there is some evidence supporting an involuntary manslaughter charge.  The failure to submit this charge to the jury prejudiced Rivera and warrants a new trial.


The trial judge erred in failing to instruct the jury on involuntary manslaughter and Rivera was prejudiced by this error; thus, he is entitled to a new trial.  Furthermore, in light of our disposition of the issue pertaining to the trial judge’s refusal to charge the jury on involuntary manslaughter, the remaining issues on appeal are not dispositive and need not be addressed.  See Whiteside v. Cherokee County School Dist. No. One, 311 S.C. 335, 340, 428 S.E.2d 886, 889 (1993) (appellate court need not address remaining issues when resolution of prior issue is dispositive).  Accordingly, Rivera’s conviction is


HEARN, C.J., PIEPER, J., and CURETON, A.J. concur.