Heard February 2, 2015.
Appeal From Spartanburg County. Doyet A. Early, III, Trial Judge. Roger L. Couch, Post-Conviction Relief Judge. Appellate Case No. 2011-193670.
Appellate Defender Dayne C. Phillips and Appellate Defender Laura Ruth Baer, both of Columbia, for Petitioner.
Attorney General Alan McCrory Wilson and Assistant Attorney General Suzanne Hollifield White, both of Columbia, for Respondent.
SHORT and MCDONALD, JJ., concur.
ON WRIT OF CERTIORARI
LOCKEMY: In this post-conviction relief (PCR) action, George Wigington (Petitioner) argues the PCR court erred in finding trial counsel was not ineffective for failing to properly argue to the trial court and preserve for appellate review whether he was entitled to an involuntary manslaughter jury charge. We reverse and remand for a new trial.
In August 2005, Petitioner was indicted by a Spartanburg County grand jury for murder and possession of a weapon during the commission of a violent crime.
At trial, Petitioner testified his son, his son's girlfriend, and his two granddaughters lived with him at the time of the incident. Petitioner testified he got home around seven in the evening on the day of the incident and heard what sounded like a very loud argument. He explained he heard his son's voice. He testified when he got inside the house, he walked into his son's bedroom and saw his granddaughter, Jessica Wigington, standing near the bed crying and his son was berating her. Petitioner stated he told his son to calm down and not be so loud, then left the bedroom and went into the den to watch television. He explained his son and granddaughter came into the den shortly thereafter, and they were still arguing. He testified he again told his son to quiet down and give his granddaughter a chance to talk. He stated they sat down, but the loud arguing continued. Petitioner explained he stood up, walked over to the chair where his son was seated, put his left hand on his son's right shoulder, and told his son to calm down. He further explained his son immediately stood up and said, " if you put your hands on me again, I'll kill you." He testified he had previously been the victim of criminal domestic violence with his son, and he felt he " didn't know what was going to happen next." Petitioner stated he " felt for [his] safety and [he] felt for [his] grandchildren's safety." He explained he believed he was in danger because his son had just threatened to kill him.
Petitioner testified the situation had escalated out of control and he needed to do something to protect himself and his grandchildren, so he went to his car and got his pistol out of the locked glove box. He stated he made sure the safety was on, and then put the gun in his pocket. He explained he walked back into the den, with his hand in the pocket where the gun was located. Petitioner testified his son asked him if he went
to retrieve his gun, and he told his son he had because the situation was getting out of control. He stated he took the gun out of his pocket and was holding it, but was not pointing it at his son. Petitioner explained he walked closer to the chair his son was sitting in, and then his son grabbed his hand holding the gun. He testified the struggle felt like it lasted a long time, but he was sure it was only a few seconds. He stated he did not mean to pull the trigger and was surprised when the gun discharged because he thought the safety was on. He explained his son had not done anything to him to make him want to shoot him.
At the conclusion of trial, the trial court stated it intended to charge the jury on murder, accident, and possession of a weapon during the commission of a violent crime. Trial counsel asked the trial court to charge the jury on voluntary manslaughter, self-defense, and involuntary manslaughter. As to involuntary manslaughter, trial counsel argued " if you were going to charge self-defense, I believe we, we would be entitled to a, an instruction on involuntary manslaughter." The trial court granted trial counsel's request to charge the ...