Walter BELL, Respondent v. STATE of South Carolina, Petitioner

Supreme Court of South Carolina1996-03-04No. 24383

321 S.C. 238467 S.E.2d 926

Summary · law.co

Holding. The court reversed the grant of post-conviction relief, holding that because the trial record lacked any evidence of sufficient legal provocation to support a voluntary manslaughter instruction, Bell could not establish prejudice from counsel's failure to request a King charge.

Walter Bell was charged with two murders and his trial judge granted a request to instruct the jury on voluntary manslaughter as a lesser-included offense. Bell later sought post-conviction relief, arguing his trial counsel was ineffective for failing to request a King charge, which would have required the jury to resolve reasonable doubts between murder and manslaughter in his favor. The court found that Bell could not demonstrate prejudice from this omission because the trial record contained no evidence supporting submission of the manslaughter charge to the jury.

The facts showed Bell ejected his wife Carrie from their home one week before the killings. On the night of the murders, Bell found Carrie sitting outside in a van speaking with Amos Franklin, a longtime family friend. Bell assaulted Carrie, and after police responded and left, he returned to shoot Franklin as Franklin exited the van, then pursued and shot Carrie inside the house. Critically, the record contained no evidence that Carrie and Franklin had an adulterous relationship, that Bell believed they did, or that Bell was jealous about finding them together. Bell himself admitted he was not angry about Carrie being in the van with Franklin.

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Key issues

Whether evidence of sufficient legal provocation existed to warrant jury instruction on voluntary manslaughter
Whether counsel's failure to request a King charge constituted ineffective assistance of counsel where no evidentiary basis for the lesser offense existed
Whether adultery or jealousy may serve as legal provocation to reduce murder to manslaughter

Procedural posture

The trial court granted post-conviction relief based on ineffective assistance of counsel, and the appellate court reviewed whether that grant was proper.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Per Curiam:

FACTS

Bell was arrested and charged with the murders of his estranged wife, Carrie Bell, and her longtime friend,

Amos Franklin. The trial judge reluctantly granted trial counsel’s request to charge voluntary manslaughter. Thereafter, Bell was granted PCR based upon counsel’s ineffective assistance in failing to request a King charge. The State contends there was no evidence to support submission of manslaughter to the jury such that Bell was not prejudiced from the lack of a King charge. We agree.

DISCUSSION

The burden of proof as to the allegations contained in a PCR application lies with the applicant. Butler v. State, 286 S.C. 441, 334 S.E. (2d) 813 (1985). Allegations of in effective assistance of counsel must be supported by proof that counsel was deficient in his performance and that this deficiency resulted in prejudice to the applicant. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. (2d) 674 (1984). Where there is no evidence to support an instruction on a lesser-included offense, a PCR applicant cannot show prejudice from the failure to request a King charge. Gilmore v. State, 314 S.C. 453, 445 S.E. (2d) 454 (1994). See also State v. Gadsden, 314 S.C. 229, 442 S.E. (2d) 594 (1994).

Voluntary manslaughter is the unlawful killing of a human being in sudden heat of passion upon sufficient legal provocation. State v. Lowry, 315 S.C. 396,434 S.E. (2d) 272 (1993). “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 “an uncontrollable impulse to do violence.” State v. Gardner, 219 S.C. 97, 64 S.E. (2d) 130 (1951). Adultery may, in some instances, serve as sufficient legal provocation. State v. Gadsden, supra.

The present record reveals that one week prior to the murders, Bell threw his wife Carrie and her daughter out of the house. On the night of the murders, Bell went to the home where Carrie was staying with relatives. She was sitting outside in a van talking to her friend Amos Franklin. Bell began to beat her. Carrie’s daughter called police and Bell left. After police left, Bell returned and shot Franklin as he exited the van. He then chased Carrie into the house and shot her.

There is absolutely no evidence in the record that Carrie and Amos had anything other than a platonic relationship or that they were engaged in an adulterous affair. Likewise, there is no evidence Bell was jealous in finding Carrie with Franklin. On the contrary, the only evidence is that Franklin was a longtime family friend, and Bell admitted that he was not mad that Carrie was in the van with Franklin.

The evidence in this case does not demonstrate sufficient legal provocation to warrant submission of voluntary man slaughter to the jury. Cf. State v. Takis, 204 S.C. 140, 28 S.E. (2d) 679 (1944). Accordingly, Bell was not prejudiced by the lack of a King charge. The grant of PCR is therefore reversed.

Reversed.

State v. King, 158 S.C. 251, 155 S.E. 409 (1930) (if jury has a reasonable doubt between the offenses of murder and manslaughter, it must resolve the doubt in the defendant’s favor).

Bell’s defense was alibi. However, several witnesses placed him at the scene of the crime.