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THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State, Respondent,

v.

Raymond Day, Appellant.

Appeal From Aiken County

Charles W. Whetstone, Jr., Circuit Court Judge

Opinion No. 25167

Heard May 10, 2000 - Filed July 6, 2000

REVERSED AND REMANDED

Assistant Appellate Defender Robert M. Dudek, of

South Carolina Office of Appellate Defense, of

Columbia, for appellant.

Attorney General Charles M. Condon, Chief Deputy

Attorney General John W. McIntosh, Assistant

Deputy Attorney General Donald J. Zelenka, Senior

Assistant Attorney General William Edgar Salter,

III, all of Columbia; Solicitor Barbara R. Morgan, of

Aiken, all for respondent.

CHIEF JUSTICE TOAL: Raymond Day ("Day") appeals his convictions for murder

and possession of a firearm during the commission of a violent crime. We reverse

and remand.

p.383

FACTS/PROCEDURAL BACKGROUND

This case involves a complicated love triangle, a murder conspiracy;

and a stolen trailer. In March of 1996, Wayne Renew ("Renew") hired Day to

kill his ex-girlfriend, Debra Bouchillon (Bouchillon), because she turned him

into the police for giving her a stolen trailer in satisfaction of a debt. Renew

planned to give Day two hundred dollars and a red truck in exchange for

killing Bouchillon. However, the events did not occur as Renew intended.

Renew and Day were good friends and roommates who enjoyed

partying and abusing crack cocaine. Both men had been romantically

involved with Bouchillon prior to the shooting. Renew was angry at

Bouchillon for turning him into the police so he decided to hire Day to

murder her. On several occasions, Renew discussed various ways that Day

could kill Bouchillon. According to Day, these included, "sneaking in the

back door and slicing her throat. Another way he showed me three tubes of .

explosives, told me to mix the explosives up, cut a hole in the top of the

explosives big enough for two wires to fit in and run it to the car to the core."

Renew suggested that Day either shoot, stab, or blow up Bouchillon. Day

claimed he only agreed to kill Bouchillon because "if I didn't agree he would

have got somebody else to do it."

Day's plan was to go to Bouchillon's house, tell her to call the police,

and have Renew detained until he could make further statements to the

sheriff's department. Day testified that once he arrived at Bouchillon's

house he "told her that Wayne wanted her dead and that he had hired me to

kill her and that I could not kill her . . . I told her I loved her and she hugged

my neck." He then made an anonymous phone call to the police informing

them that Bouchillon was going to be harmed that night because he did not

"want to be tied up in a conspiracy for murder." Bouchillon believed Day's

story because earlier that evening she received an anonymous phone call

informing her that Renew planned to kill her.

According to Renew's plan, Day was supposed to meet him on a dirt

road after killing Bouchillon. Day told Bouchillon that he had to meet

Renew or he would find out that he had not killed her. At 2:30 a.m., Day and

Bouchillon decided to meet Renew. Bouchillon hid in the back seat of the car

under some blankets as Day drove. They brought along Bouchillon's pistol

and a pillowcase filled with valuables so that Renew would think Day robbed

Bouchillon after killing her.

p.384

While Bouchillon stayed hidden in the car, Day met Renew and told

him that he murdered Bouchillon. They returned to their cars and Day and

Bouchillon followed Renew to Muddy Branch Road, a desolate dirt road.

Renew stopped his car and motioned to Day that he wanted to speak to him.

Day became frightened because he thought Renew had figured out he had

been duped. According to Day,

I was talking to Wayne listening to what he said and looking,

and then I just caught it out of the corner of my eye, the blankets

coming up and came up and went down real quick and I saw Mr.

Renew reach for a gun. . . and I saw Mr. Renew go like this

(indicating). And by the' time he had come up, I had shot him. I

really thought he had a gun. I re-live that moment every day.

Day claims he was terrified and just kept shooting. Day and Bouchillon

returned to her home after the shooting. Day admits to dropping several

items, including a crack pipe and extra bullets, into a vent in Bouchillon's

trailer to conceal them from the police. Day contends that he did not initially

tell the police what happened because he was afraid his story was

unbelievable.

In July 1996, Day was indicted for murder and possession of a firearm

during the commission of or attempt to commit a violent crime. Although the

trial judge indicated he would not charge the jury on self-defense, he gave a

self-defense instruction based upon a question from the jury inquiring about

the South Carolina law of self-defense. The jury found Day guilty and the

trial judge sentenced him to life imprisonment for murder and to a

concurrent sentence of five years imprisonment for the possession of a

firearm during the commission of a violent crime. Day appeals his

convictions on the following issues:

1. Whether the trial judge erred by refusing to charge self-defense

in his initial jury charge?

2. Once the jury requested an instruction on self-defense, did the

trial judge err by 'refusing to instruct the jury that Day did not

have the burden of proving self-defense, that the state had to

disprove self-defense, and that the jury could consider past

difficulties between the parties?

p.384

3. Did the trial judge err by refusing to allow Marva Szumowicz to

testify that Renew held a double-barrel shotgun to her head for

eighteen hours because he was suspicious of her?

4. Whether the trial judge erred by allowing the state to cross

examine a defense witness about Day's tattoo, which read

"Outlaw", because it may have constituted an impermissible

attack on Day's character?

LAW/ANALYSIS

I. Trial Judge's Refusal to Charge Self-Defense

Day argues the trial judge erred by refusing to give a self-defense

charge because there was sufficient evidence presented at trial entitling him

to this instruction. We agree.

A self-defense charge is not required unless the evidence supports it.

State v. Goodson, 312 S.C. 278, 440 S.E.2d 370 (1994). To establish self

defense in South Carolina, four elements must be present: (1) the defendant

must be without fault in bringing on the difficulty; (2) the defendant must

have been in actual imminent danger of losing his life or sustaining serious

bodily injury, or he must have actually believed he was in imminent danger

of losing his life or sustaining serious bodily injury; (3) if his defense is based

upon his belief of imminent danger, defendant must show that a reasonably

prudent person of ordinary firmness and courage would have entertained the

belief that he was actually in imminent danger and that the circumstances

were such as would warrant a person of ordinary prudence, firmness, and

courage to strike the fatal blow in order to save himself from serious bodily

harm or the loss of his life; and (4) the defendant had no other probable

means of avoiding the danger. State v. Bryant, 336 S.C. 340, 520 S.E.2d 319

(1999).

"If there is any evidence in the record from which it could reasonably

be inferred that the defendant acted in self-defense, the defendant is entitled

to instructions on the defense, and the trial judge's refusal to do so is

reversible error." State v. Muller, 282 S.C. 10, 316 S.E.2d 409 (1984). There

is sufficient evidence in the instant case to support a charge on self-defense.

Day testified he believed he was in imminent danger because he thought

Renew was going to pull a gun on him. Day gave the following testimony

p.385

about the fatal incident:

I pulled in and turned around and pulled in front of him [Renew]

and I walked to the truck and he said something and I said

something and he pulled a gun on me. I pulled Debbie's gun out

and shot him in the head the first shot and I don't know where

the last stuff, the first shot went.

According to Day's theory, Renew was a violent drug abuser who had a

history of violence against him and others. 1 Day knew that Renew had a

tendency to violently overreact, and when he thought Renew saw Bouchillon

move under the blankets, he believed he was in imminent danger and shot

Renew to defend himself.

Day presented an evidence based theory as to what occurred that

evening. Although some of the evidence was disputed, there was certainly

enough evidence in this case to make self-defense a jury question. Defense

counsel felt so strongly about the trial judge's refusal to give a self-defense

instruction that she moved for a mistrial. She convincingly argued that the

trial judge cast aside Day's entire defense and removed it from the jury's

consideration.

II. Self-Defense Charge

Day argues the trial judge erred by refusing to instruct the jury that

Day did not have the burden of proving self-defense, and that the jury could

consider past difficulties between the parties in weighing self-defense. We

agree.

The trial judge initially refused to charge the jury on self-defense.

However, the jury inquired about the South Carolina law on self defense.

The jury wrote: "What does the State of South Carolina have to say when a

person can defend themself [sic] with the use of deadly force. May we see a

copy of the law concerning this?" In response, the trial judge charged the jury

"I was at his house one night which I had a key to. Mr. Renew was drinking

at the time. He said I was making too much noise when I come into the

house. He pulled the gun on me at which I [sic] proceeded to leave... Mr.

Renew has always toted a gun as long as I've known him."

p.386

a standard self-defense instruction as outlined by this Court in State v.

Davis, 282 S.C. 45, 317 S:E.2d, 452 (1984) along with a specific charge on the

right to act on appearances and the duty to retreat. The trial judge did not

include in his instruction Day's Request to Charge Number One (factors that

would give Day the right to judge Renew's conduct more harshly, including

age difference, substance abuse, "bad blood", prior threats, and reputation

for violence); Number Two (prior acts of violence and prior difficulties

between Day and Renew); and Number Eight (the State's burden of proof

when a defendant asserts self-defense).

The trial judge's failure to charge on the specific elements of self-

defense that were applicable to Day's theory constitutes reversible error. As

we held in Fuller, a trial judge should specifically tailor the self-defense

instruction to adequately reflect the facts and theories presented by the

defendant. State v. Fuller, 297 S.C. 440, 377 S.E.2d 328 (1989). A self-

defense charge is erroneous where the trial court fails to charge on elements

of the defense which were applicable to the issues raised by the defendant.

Id. The trial judge's instruction in this case was incomplete. It should have

included a charge indicating: (1) Day had a right to judge the conduct of

Renew more harshly than otherwise because of Renew's drug consumption

(Defendant's Request to Charge Number 1); and (2) the jury could consider

prior instances of violence or unprovoked aggression by Renew in

determining whether Day had a reasonable belief of imminent danger

(Defendant's Request to Charge Number 2). Central to Day's defense was

his argument that Renew had' previously pulled a gun on him and that

Renew was in a drug-induced paranoia the day of the incident. The jury

charge was, therefore, incomplete because the trial judge failed to charge on

Renew's substance abuse or his prior acts of violence.

The trial judge's "after-the-fact" self-defense instruction was

inadequate because defense counsel was unable to present a complete

defense during her summation. In her closing argument, defense counsel

could not assert self-defense, even though that was Day's theory, because she

knew the trial judge was not going to adequately charge the jury. Instead,

she was forced to present the facts so they implied self-defense, without

actually saying the word. For example, in her closing defense counsel states:

[Day] knew Wayne to be a violent person who would immediately

take action against someone who had double-crossed him ....

[H]e told you he saw Wayne's hands come down and he shot him.

p.387

. . . Raymond Day honestly believed that he was reaching for a

gun. Raymond knew that Wayne carried a gun. He knew

Wayne carried the gun stuck in the waistband of his pants or

under the seat and he just seen Debbie's head pop up, he knew

he had double-crossed Wayne Renew and he did what he had to

do. He honestly believed that was the only course of action he

could take and he pulled the gun out from his waistband where

he held it and he had to shoot Wayne Renew.

Defense counsel attempted to make a case for self-defense but was

restricted because she knew the jury was not going to be so charged. The

trial judge belatedly recognized that a self-defense charge was necessary.

Providing an "after-the-fact" instruction was inadequate because the

prejudice to Day was incurable. Day was unable to adequately assert a

complete defense during the trial, and the jury was left with the impression

that the trial judge did not think the law of self-defense was applicable to the

case.

III. Testimony Concerning Other Specific Instances of

Violence

Day argues the trial judge erred by excluding testimony of Marva

Szumowicz ("Szumowicz") concerning a past act of violence that was closely

related in time and occasion to the homicide and served as strong

corroborating evidence that Renew was a vengeful person. We agree.

In the murder prosecution of one pleading self-defense against an

attack by the deceased, evidence of other specific instances of violence on the

part of the deceased are not admissible unless they were directed against the

defendant or, if directed against others, were so closely connected at point of

time or occasion with the homicide as reasonably to indicate the state of

mind of the deceased at the time of the homicide, or to produce reasonable

apprehension of great bodily harm. State v. Brown, 321 S.C. 184, 467 S.E.2d

922 (1996); State v. Amburgey, 206 S.C. 426, 34 S.E.2d 779 (1945). Whether

a specific instance of conduct by the deceased is closely connected in point of

time or occasion to the homicide so as to be admissible is in the trial judge's

discretion and will not be disturbed on appeal absent an abuse of discretion

resulting in prejudice to the accused. Id. (citing State v. Peak, 134 S.C. 329,

133 S.E. 31 (1926)).

p.388

To support his theory of self-defense, Day wanted to cross-examine

Szumowicz concerning a past act of violence by Renew. At an in camera

hearing prior to trial, Day argued he should be allowed to present testimony

from Szumowicz concerning a November 30, 1995 incident where Renew held

a double-barreled shotgun to her head for eighteen hours as he drove around

Aiken County and accused her of being involved with others in a drug

trafficking scheme in his residence. According to Szumowicz, "He thought

that there was drug trafficking going on in his . . . yard or his premises there

and that he was not getting any benefit from what was going on and that I

was to produce at least a thousand dollars on his table by that night which

he then continued until twelve o'clock . . . the next day."

The trial judge ruled that specific instances of Renew's conduct was

inadmissible under Rule 405, SCRE 2 and State v. Brown, supra, but allowed

Day to present Szumowicz's opinion as to whether Renew was a violent

person. In Brown, this Court found that the trial judge did not abuse his

discretion in refusing to admit a prior act of violence by the deceased in

support of a self-defense charge because of the remoteness of the specific act

of violence, which occurred twenty-three years prior to the incident in

question. Brown, 321 S.C. at 187, 467 S.E.2d at 924; see also State v. Evans,

112 S.C. 43, 99 S.E. 751 (1919) (holding trial judge in a manslaughter trial

did not abuse discretion in excluding record of indictment of deceased for

burglary where burglary charge was not sufficiently connected in time and

circumstances to be submitted as evidence affecting self-defense).

In this case, the prior act of violence against Szumowicz occurred only

four months prior to Renew's death and was admissible to prove Day had a

reasonable apprehension of violence from Renew, an essential element of his

self-defense claim. Szumowicz's testimony demonstrates that Renew acted

(a) Reputation or Opinion. In all cases in which evidence of

character or a trait of a person is admissible, proof may be made by

testimony as to reputation or by testimony in the form of an opinion.

On cross-examination, inquiry is allowable into relevant specific

instances of conduct.

(b) Specific Instances of Conduct. In cases in which character or a

trait of character of a person is an essential element of a charge, claim,

or defense, proof may also be made of specific instances of that person's

conduct.

p.389

very violently when he felt he had been deceived or double-crossed by a

confidant. This evidence is relevant to Day's theory of self-defense because

he claimed he thought Renew may pull a gun on him if he thought Day had

deceived him by allowing Bouchillon to hide in the back seat of the car.

Renew's conduct in holding a gun to Szumowicz's head because he was

suspicious of her is also further evidence of the continuous and consistent

pattern of Renew's drug-induced, violent paranoia, which the defense

attempted to establish during trial.

IV. Day's "Outlaw" Tattoo

Day argues the trial judge erred by allowing the state to cross-examine

Thomas Cuppernell ("Cuppernell") about Day's "Outlaw" tattoo and

nickname because this testimony was used to impugn Day's character. We

agree.

The State submits Day's argument concerning his tattoo and nickname

is not properly before this Court because the argument advanced on appeal

was not presented in the lower court. During the cross-examination, defense

counsel objected to any categorization of the word "outlaw" and to any

explanation of the term's meaning by the witness. On the State's cross

examination of defense witness Cuppernell, the following exchange occurred

concerning Day's tattoo and nickname:

Question: And do you know if Mr., if the Defendant had a nickname?

Answer: Yes, ma'am.

Question: What was his nickname, Mr. Cuppernell?

Answer: Outlaw.

Question: In fact, they called him outlaw; didn't they?

Answer: Some did.

Question: Some did. In fact, he, the Defendant, has outlaw tattooed

on him, doesn't he?

Answer: Yes ma'am.

Defense Counsel: Objection, Your Honor. I'm going to

object to any categorization of the word

outlaw and any explanation of whether

the witness understands what that

phrase might have him meant [sic].

The Court: Overruled. You can answer the question.

Question: Raymond Day had a nickname. What was it, Mr.

p.390

Cuppernell?

Answer: Outlaw.

Question: Excuse me?

Answer: Outlaw.

Question: And he not only went by that nickname, he had it on his

body; am I correct?

Answer: Yes, ma'am.

Question: And where was the word, is the word outlaw on the

Defendant, Raymond Day? Where is it tattooed on him?

Answer: I don't remember but I remember seeing it on his body.

He's got it tattooed on him but I can't remember exactly

where.

Defense counsel's objection to any "categorization" of the term outlaw

adequately preserves the defense's argument that Day's tattoo and nickname

were used to impugn his character.

Evidence concerning a defendant's tattoo or nickname is not

prejudicial when used to prove something at issue in a trial, such as the

identification of the defendant. See generally Stevenson v. Texas, 963 S.W.2d

801 (Tex. App. 1998) (holding defendant's "bitch killa" tattoo was admissible

evidence of gang membership). In the instant case, the State did not use

Day's tattoo or nickname for any purpose other than to attack his character.

The solicitor repeatedly referred to Day as an outlaw in her closing argument

in order to paint a picture of Day as someone who was proud of his status as

an outlaw, who felt he was above the law, and who was able to deceive law

enforcement by hiding evidence and concocting a story about self-defense.

A prosecutor's comments deprive the accused of due process of law

where the comments "so infected the trial with unfairness as to make the

resulting conviction a denial of due process." State v. Tubbs, 333 S.C. 316,

509 S.E.2d 815 (1999) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643,

94 S. Ct. 1868, 1871, 40 L. Ed.2d 431, 437 (1974)). This Court held in State

v. Tubbs, supra, that a prosecutor's use of a nickname can deprive the

defendant of due process if the use of the nickname is so excessive and

repetitious as to infect the entire trial with unfairness. In Tubbs, the

solicitor's reference to defendant's nickname, "Cobra", during summation did

not infect the entire trial with unfairness because it was only used seven

times, and one of those times was used to establish identity. Id. at 316, 509

S.E.2d at 818. However, in State v. Hawkins, 292 S.C. 418, 357 S.E.2d 10

p.391

(1987) overruled on other grounds by State v. Torrence, 305 S.C. 45, 406

S.E.2d 315 (1991), this Court held that the solicitor's reference to defendant's

nickname, "Mad Dog", over forty times during the guilt and sentencing phase

was excessive and repetitious and denied the defendant due process.

The solicitor referred to Day as an outlaw or to the word "outlaw"

twenty three times during her summation. The solicitor's reference to the

nickname was excessive and repetitious, and was not used to prove any

matter in controversy. The solicitor's continuous use of the nickname was

extremely prejudicial because it was used to portray Day as a "planner",

someone who was accustomed to deluding law enforcement, and someone

who was proud of his notoriety as an outlaw. The following examples from

the solicitor's summation illustrate how she utilized the term "outlaw" to

impugn Day's character:

"I'm going to be the outlaw. I'm going to be the famous man. I'm

going to make history in Aiken County."

"I get my gun and do I just take just enough to put the five shots,

huh-uh. I'm a planner. I'm an outlaw."

"I can be the outlaw because I have decided I'm the outlaw and

I'm going to do what it takes now."

"I know I planned it. I made the decision of what I was going to

do. I am an outlaw, hit man and I get to do whatever I please."

The solicitor closed her summation with the following:

"And, ladies and gentlemen, the law of this county, the law of

this state, the law in this country is that that is murder and the

only, only verdict that is appropriate on both counts for the

murder and then the use of that pistol in commission of that

murder is guilty for this, man, the outlaw, Raymond Day."

Overall, the use of the term "outlaw" permeates the solicitor's closing

argument, infects the trial with unfairness, and deprives Day of due process

of law.

p.392

CONCLUSION

Based on the foregoing, we REVERSE Day's convictions for murder,

and possession of a firearm or knife during the commission of or attempt to

commit a violent crime and REMAND for a new trial.

Waller, Burnett, Pleicones, JJ., and Acting Justice J. Ernest Kinard, Jr., concur.

p.393