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THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State, Respondent,

v.

James Joseph Lewis,

Jr., Appellant.

Appeal From Horry County

Daniel E. Martin, Sr., Judge

Opinion No. 24720

Heard October 7, 1997 - Filed December 8, 1997

AFFIRMED

Deputy Chief Attorney Joseph L. Savitz, III, of

South Carolina Office of Appellate Defense, of

Columbia, for appellant.

Attorney General Charles Molony Condon, Deputy

Attorney General John W. McIntosh, Assistant

Deputy Attorney General Salley W. Elliott, and

Senior Assistant Attorney General Norman Mark

Rapoport, of Columbia; and Ralph J. Wilson, of

Conway for respondent.

BURNETT, A.J.: On November 2, 1995, appellant broke into

his estranged wife's home and shot her paramour at close range, killing

him. Appellant was indicted on murder and first degree burglary charges.

He was convicted of voluntary manslaughter and first degree burglary, but

found mentally ill.

p. 3

Appellant argues the trial judge erred by failing to instruct the

jury on insanity. He contends his own testimony and that of lay witnesses

supported an instruction on insanity. We disagree.

ISSUE

Did the trial judge err by refusing appellant's request to instruct the

jury on insanity?

FACTS

Appellant testified he and Charlotte began living together in

March 1991 and married in March 1993. Throughout the marriage,

appellant was suspicious of Charlotte's relationships with other men.

Appellant and Charlotte separated in June 1995. Charlotte moved into

her own residence. After their separation, appellant learned some of

Charlotte's relationships had been adulterous.

Appellant testified between the separation and the shooting, he

lost 70 pounds, had difficulty sleeping, saw a "nerve specialist," and

contemplated suicide. Appellant testified he did not remember going to

work two days before the shooting. The day before the shooting, appellant

saw a psychiatrist who prescribed medication.

The morning of the shooting, appellant testified he awoke and

felt at peace because he had decided to visit Charlotte and then take his

own life. Appellant remembered telephoning Charlotte and telling her he

was going to shoot himself on her front porch. Appellant explained he sat

on Charlotte's front porch with the gun in his mouth waiting for someone

to look out the window, but no one did. Appellant testified the next thing

he remembered was the gun going off. He realized he had shot Sammy,

who was laying half-dressed in Charlotte's bed. Appellant maintained he

did not intend to harm anyone other than himself.1

After the shooting, appellant admitted following Charlotte out

of her residence with the gun in his hand, but after seeing two police

officers with their guns drawn, he turned around and went back into the

home. Appellant allowed emergency personnel into the residence to

Charlotte's home, however, Charlotte testified she told appellant over the

telephone Sammy was there and "[they] were still in bed."

p. 4

remove Sammy.2 Appellant stated he remained in the home with a gun to

his head and shot himself when the SWAT team threw in tear gas because

he "thought they may be able to take me out alive."3

On cross-examination, appellant testified he "wasn't in [his]

right mind that morning;" "I didn't do anything logical that day." He

testified he must have been "totally out of [his] mind."

A neighbor testified she saw appellant the evening before the

shooting. He was slumped in a chair and was acting differently; he did

not hear anything she was saying; he cried; he was "completely out of it;"

he was "severely disturbed." The neighbor testified she thought appellant

was going to kill himself. Another neighbor testified she never saw

appellant lose his temper.

Appellant's employee testified months prior to the shooting,

appellant quit coming to work on a regular basis and was dazed and

depressed.

Appellant's sister, who resided in Maryland, testified weeks

prior to the shooting, appellant would telephone and, when she answered,

he would be crying and incoherent. She testified she visited appellant a

few days before the shooting because she was concerned he would kill

himself. The sister testified appellant was not a violent person.

Appellant's daughter testified she was very worried about

appellant after he and Charlotte separated. Appellant would telephone

her and cry, and spend hours talking about how he missed Charlotte. On

the day of the shooting, appellant telephoned his daughter at 6:00 a.m.;

she thought he was going to kill himself.

Both the prosecution and defense medical experts testified

appellant suffered from severe depression, a mental illness, at the time of

the commission of the crimes, but concluded appellant was able to

distinguish between right and wrong. Appellant's expert testified, because

her home. The forensic pathologist testified Sammy died several hours

after the shooting.

3Police negotiated with appellant for seven hours before the SWAT

team entered the home.

p. 5

of his severe depression, appellant was unable to conform his conduct to

the requirements of the law.4

DISCUSSION

In every criminal case, it is presumed the defendant is sane.

State v. Milian-Hemandez, 287 S.C. 183, 336 S.E.2d 476 (1985). Insanity

is an affirmative defense to a prosecution for a crime. Id.

South Carolina has adopted the M'Naghten test to determine

insanity.5 A defendant is insane if, at the time of the commission of the

act constituting the offense, as a result of mental disease or defect, he

lacked the capacity to distinguish moral or legal right from moral or legal

wrong or to recognize the particular act charged as morally or legally

wrong. S.C. Code Ann. § 17-24-10(A)(Supp. 1996). "[T]he key to insanity

is 'the power of the defendant to distinguish right from wrong in the act

itself - to recognize the act complained of is either morally or legally

wrong'." State v. Wilson 306 S.C. 498, 506, 413 S.E.2d 19, 23, cert.

denied, 506 U.S. 846 (1992), quoting State v. McIntosh, 39 S.C. 97, 17 S.E.

446 (1893).

A defendant may rely on lay testimony to establish insanity.

State v. Hinson, 253 S.C. 607, 172 S.E.2d 548 (1970); see also, State v.

Rimert, 315 S.C. 527, 446 S.E.2d 400, cert. denied, 513 U.S. 1080

(1994)(State relied on lay testimony to establish sanity); State v. Smith,

298 S.C. 205, 379 S.E.2d 287 (1989)(where defendant presents expert

testimony on his insanity, State is not required to present expert

testimony on sanity; lay testimony may be sufficient). In fact, a jury may

disregard expert testimony. Milian-Hernandez, supra.

The law to be charged is determined from the facts presented

at trial. State v. Todd, 290 S.C. 212, 349 S.E.2d 339 (1986). A requested

charge on insanity is properly refused where there is no evidence tending

(GBMI). A defendant is GBMI, "if, at the time of the commission of the

act constituting the offense, he had the capacity to distinguish right from

wrong or to recognize his act as being wrong ... but because of mental

disease or defect he lacked sufficient capacity to conform his conduct to

the requirements of the law." S.C. Code § 17-24-20(A)(Supp. 1996).

p. 6

to show the defendant was insane at the time of the crime charged. 23A

C.J.S. Criminal Law § 1321 (1989).

Appellant contends his own testimony and the testimony of lay

witnesses established he could not distinguish between right and wrong or

recognize his acts as wrong at the time of the shooting. Appellant relies

on his characterization of his mental condition as "out of [his] mind" at the

time of the offense and other witnesses' descriptions of his mental state

near the time of the offense.

After carefully reviewing the evidence presented, we conclude

appellant was not entitled to a charge on insanity. While it is

uncontroverted appellant suffered from severe depression, the evidence

does not suggest he was unable to distinguish between right and wrong o

unable to recognize his actions as morally or legally wrong at the time of

the offense. Even appellant's own testimony that he was "out of [his]

mind" does not indicate he could not differentiate between right and wrong

or recognize his conduct as wrong.6 We note "there are but few instances

where one slays another while his mind is in normal condition." State v.

Gardner, 219 S.C. 97, 107, 64 S.E.2d 130, 135 (1951), citing Anderson v.

State, 148 S.W. 802 (Tex. App. 1912)

insufficient to sustain plea of insanity and court was justified in

instructing jury to that effect despite defendant's testimony he was

depressed, upset, "something just came over him," and he "didn't know

what he was doing at the time of the shooting"); McClendon v. State, 278

S.E.2d 96 (Ga. App. 1981)(testimony that just prior to assault defendant

was "going crazy," was not evidence defendant did not have mental

capacity to distinguish between right and wrong); State v. Roy , 60 P.2d

646 (N.M. 1936)(evidence defendant was "polluted half the time or crazy or

something" after the death of his wife, cried, "wasn't himself," and on the

day of the homicide "looked kind of wild in his eyes ... just looked

something out of the ordinary; figgety [sic], like" did not show at time of

crime defendant was not able to distinguish right from wrong); State v.

Davis, 334 S.E.2d 509 (N.C.App. 1985) (defendant's testimony at time of

the homicide he "lost [his] mind," "was so mixed up right then," and "went

completely out of [his] mind" was not evidence of insanity); De La Garza v.

State, 650 S.W.2d 870 (Tex. App. 1983)(defendant's testimony he was sleep

deprived, intoxicated, confused, and "out of control" was insufficient to

support a jury charge on insanity).

p. 7

Moreover, appellant's own testimony suggests he was sane.

After killing Sammy, appellant testified he chased Charlotte out of her

home then ran back inside when he saw police officers with their guns

drawn. He allowed an emergency crew into the home to remove Sammy,

who was still alive. Thereafter, appellant remained in Charlotte's

residence for hours, threatening to shoot himself but not doing so until the

SWAT team entered. These actions suggest appellant recognized the

gravity of the situation and that his conduct was wrong, and tend to

establish his sanity rather than his insanity. Id. S.C. at 106, S.E.2d at

135 (defendant not entitled to insanity charge even though police testified,

shortly after the homicide, defendant "didn't act clear" and "looked like a

madman," but stated he was "ready to be electrocuted;" the statement

showed the defendant "fully appreciated the gravity of his act.").

Since there was no evidence appellant was unable to

distinguish between right and wrong or unable to recognize his actions as

wrong at the time of the offense, there was no evidence of insanity and

the trial judge properly refused appellant's request to charge insanity.

State v. Todd- supra. 7 Appellant's conviction is AFFIRMED.

FINNEY, C.J., TOAL, MOORE and WALLER, A.J., concur.

the Court of Appeals held, in dicta, a defendant was properly entitled to a

charge on insanity where he had testified he had mental difficulties most

of his life, suffered from paranoia, and, on the day of the offense, he was

paranoid, confused, had no control over his actions, and needed

psychological help. We overrule Campen insofar as it found this evidence

supported a charge on insanity.

p. 8