Submitted April 25, 2016
ON WRIT OF CERTIORARI
Appeal From Richland County The Honorable Diane Schafer Goodstein, Post-Conviction Relief Judg
Tricia A. Blanchette, of Columbia, for Petitioner.
Attorney General Alan McCrory Wilson and Assistant Attorney General James Clayton Mitchell, III, both of Columbia, for Respondent.
Petitioner was convicted of murder and unlawful possession of a pistol by a person under the age of twenty-one. He now seeks a writ of certiorari from the denial, after a hearing, of his application for post-conviction relief (PCR).
We grant the petition on petitioner's Question III, dispense with further briefing, reverse the order of the PCR judge, and grant petitioner a new trial on the murder charge. The petition for a writ of certiorari is denied on the remaining questions.
The evidence presented at trial showed that a fight occurred between two groups at a bar. Following the initial confrontation, petitioner's brother, Adams, called petitioner to request a ride home. Shortly after petitioner arrived to pick up Adams, the dispute that began inside the bar spilled out into the parking lot and became a physical altercation between numerous members of each group. During the melee, several gunshots were heard, and the victim was killed by a single nine-millimeter shot to the back of his shoulder.
There was evidence, including a statement petitioner gave to police, that petitioner retrieved his gun from his car, pointed his gun at another person he suspected was going to hit Adams, and subsequently fired his gun into the air three to four times as he drove away from the scene. When asked whether he believed he may have shot the victim, petitioner responded, "I think that I did, because I was doing some shooting, but I didn't just look at him and shoot him. . . . the gun could have dropped down because I was driving. I promise I don't remember seeing him and aiming."
One witness, Shunta Wilson, testified Adams walked over to petitioner's car, sat in the driver's seat, reached under it, and pulled out what she recognized as a small caliber handgun, either a .22 or .25. Wilson maintained Adams was the only person she saw with a gun. Wilson identified Adams as wearing jeans and a black t-shirt; however, other witnesses and evidence presented at trial showed petitioner was wearing a black t-shirt and Adams wore a white t-shirt. The evidence did not provide a clear picture of who fired a weapon or how many shots were fired.
The trial judge charged the jury, in part, as follows:
Both defendants in this case have been charged with the offense of murder. The State has to prove beyond a reasonable doubt that the defendant charged killed another person with malice aforethought. Malice: that's hatred, ill will, hostility towards another person. It's the intentional doing of a wrongful act without just cause or excuse and with an intent to inflict an injury or under such circumstances that the law would infer an evil intent.
Now, malice aforethought does not require that the malice exist for any particular time before the act was committed, but malice has to exist in the mind of the defendant just before and at the time the act was committed. Therefore, there has ...