A. Homicide

• Library: The Criminal Law of South Carolina (SCBar) (2014 Ed.)

A. Homicide

1. Basic Issues

a. Types of Homicides and Definitions

Homicide is generally defined as the killing of one human being by another human being. E.g., Commonwealth v. Redline, 391 Pa. 486, 492, 137 A.2d 472, 475 (1958); 40 C.J.S. Homicide § 1 (1944). This generic description includes all such killings whether criminal or not. Id. Criminal homicides are usually divided into murder and manslaughter.

"Murder is the unlawful killing of another with malice aforethought, express or implied." State v. Johnson, 291 S.C. 127, 128, 352 S.E.2d 480, 481 (1987), citing S.C. Code Ann. § 16-3-10 (2003). In a number of jurisdictions murder is subdivided into degrees with first degree murder requiring deliberation and premeditation and second degree encompassing all other murder. E.g., Mass. Gen. Laws Ann. ch. 265 § 1 (1990). Some jurisdictions have three degrees of murder. 18 Pa. Cons. Stat. Ann. § 106 (West 2000). Sometimes certain felony murders are denominated as first degree murder. R.I. St. § 11-23-1 (2000). Degree-type statutes represent an attempt to sort out murders according to the relative culpability of the perpetrator and to allocate sanctions accordingly.

South Carolina does not subdivide murder into degrees. S.C. Code Ann. § 16-3-10 (2003). For murders committed prior to January 1, 1996, the penalty is either execution or life imprisonment without the possibility of parole for either 20 years or 30 years, depending on the presence of aggravating factors

Effective January 1, 1996, there are three possible penalties for murder: (1) death; (2) mandatory life imprisonment if the State sought death and at least one statutory aggravating circumstance was found beyond a reasonable doubt but without a recommendation of death; and (3) a minimum term of imprisonment for 30 years to life. S.C. Code Ann. § 16-3-20(A) (Supp. 2012). Under the 1996 amendment, life means the full natural life of the convict. Such a convict is not eligible for parole, community supervision, any early work release program, work credits, education credits, good conduct credits, or any other credit that would reduce the sentence. Id. A person sentenced to the mandatory minimum of 30 years is ineligible for parole, any early release program, work credits, education credits, good conduct credits, or any other credits that would reduce the mandatory minimum term of thirty years. The 30 year option is available only for murders committed on or after January 1, 1996. State v. Gay, 343 S.C. 543, 541 S.E.2d 541 (2001). The post 2010 statute reads: "A person who is convicted of or pleads guilty to murder must be punished by death, or by a mandatory minimum term of imprisonment for thirty years to life." S.C. Code Ann. § 16-3-20(A) (Supp. 2012).

In 2010, the Legislature created the statutory offense of attempted murder. S.C. Code Ann. § 16-3-29 (Supp. 2012). The offense is a felony and requires that the attempt be with malice aforethought "either express of implied." A conviction carries a sentence of "not more than thirty years" and the sentence imposed may not be suspended "nor may probation be granted." However, the statute does not include a minimum sentence that must be imposed. When this offense was created the Legislature abolished the common law offenses of assault and battery with intent to kill and assault with intent to kill. As the offense is essentially identical to murder other than the death of the victim, case law developed over time for the offense of murder would be applicable to this new statutory offense and instructions used for murder would be appropriate.

A separate statute provides that, regardless of any other provision of law, an inmate guilty of an offense against a household member is eligible to be considered for parole after serving one fourth of his sentence on proof that he suffered a history of criminal domestic violence at the hands of that household member. S.C. Code Ann. § 16-25-90 (Supp. 2012). Although the statute requires the inmate to present "credible evidence" of the history of criminal domestic violence, the Court interpreted that phrase to require a preponderance of the evidence. State v. Grooms, 343 S.C. 248, 540 S.E.2d 99 (2000). When this issue is raised at sentencing, the trial court must make specific findings of fact on the record which are then subject to appellate review. State v. Blackwell-Selim, 392 S.C. 1, 707 S.E.2d 426 (2011) (vacating Court of Appeals ruling and remanding to circuit court for specific findings of fact.) What is meant by the term "history of violence" has not yet been defined. The circuit court attempted to craft a definition in State v. Hawes, 399 S.C. 211, 730 S.E.2d 904 (Ct. App. 2012), but the court of appeals rejected the definition, although it affirmed the circuit court's finding that the defendant was eligible for the benefit of the statute as the trial court "considered the legislative intent" of the statute.

The statutory punishments for murder and kidnapping have an unusual relationship. When one is convicted of both offenses arising out of the same criminal transaction, the punishment for kidnapping must be vacated as per S.C. Code Ann. § 16-3-910 (Supp. 2012), regardless of whether the murder conviction is simultaneous with the kidnapping conviction or subsequent to it. Owens v. State, 331 S.C. 582, 503 S.E.2d 462 (1998).

Murder and attempted murder are classified as violent crimes by S.C. Code Ann. § 16-1-60 (Supp. 2012); "most serious offenses," S.C. Code Ann. § 17-25-45(C)(1) (Supp. 2012); and a no parole offense. S.C. Code Ann. § 24-13-100 (2007). See Chapter I.C.5.,6., and 7.

There were several ancient, specialized murder statutes with mandatory death penalties, which would be invalid under Woodson v. North Carolina, 428 U.S. 280 (1976), and State v. Rumsey, 267 S.C. 236, 226 S.E.2d 894 (1976): S.C. Code Ann. §§ 16-3-30 (killing by poison); 16-3-40 (killing by stabbing or thrusting, with a curious mitigating provision for one who should so kill his child while chastising or correcting); and 16-3-430 (killing in a duel, if the victim dies within six months). All three statutes were repealed in 2010 in the Omnibus Crime Reduction and Sentencing Reform Act.

Suicide, or self-destruction, is another separate felony as is attempted suicide. State v. Levelle, 34 S.C. 120, 13 S.E. 319 (1891), overruled on other grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991) (abrogating the doctrine of in favorem vitae). Mob violence against another that results in death is assault and battery by mob in the first degree, punishable by imprisonment for not less than thirty years. S.C. Code Ann. § 16-3-210 (Supp. 2012). See State v. Barksdale, 311 S.C. 210, 428 S.E.2d 498 (Ct. App. 1993), discussed in subsection II.A.5., infra. First degree assault and battery by mob is also a "most serious offense," S.C. Code Ann. § 17-25-45(C)(1) (Supp. 2012), and a no parole offense. S.C. Code Ann. § 24-13-100 (2007). See Chapter I.C.6 and 7.

Manslaughter is ordinarily divided into two types: voluntary and involuntary. The South Carolina statute uses a standard definition of voluntary manslaughter as an "unlawful killing without malice, express or implied . . . ." S.C. Code Ann. § 16-3-50 (Supp. 2012). It is usually an intentional killing committed while under the heat of passion. Involuntary manslaughter involves an unintentional killing committed with criminal negligence. S.C. Code Ann. § 16-3-60 (Supp. 2012). Voluntary manslaughter is punishable by incarceration from two to thirty years, and involuntary manslaughter by incarceration for not more than five years. The term "manslaughter", without modifying adjectives, ordinarily encompasses both voluntary and involuntary manslaughter. See Koenig v. S.C. Dep't of Pub. Safety, 325 S.C. 400, 480 S.E.2d 98 (Ct. App. 1996) (decided in the context of construing the term as used in S.C. Code Ann. § 56-1-20 (1991) (suspension of driving privileges)).

South Carolina has a separate statute proscribing reckless vehicular homicide. S.C. Code Ann. § 56-5-2910 (Supp. 2012). The penalty includes a fine of between $1,000 and $5,000 and/or imprisonment for not more than ten years. Reckless homicide by operation of a boat is also a class F felony. S.C. Code Ann. § 50-21-115 (2008). The year and a day rule written into both statutes was changed to a three year period effective August 31, 2001. See Subsection d. Causation, infra. Additionally, death caused by driving while under the influence of intoxicating liquor or other drugs is punishable by mandatory fine of $10,100 to $25,100 and imprisonment from 1 to 25 years, no part of which may be suspended. S.C. Code Ann. § 56-5-2945 (Supp. 2012).

In 1992, South Carolina enacted a new homicide offense, homicide by child abuse. S.C. Code Ann. § 16-3-85 (2003). The statute proscribes "caus[ing] the death of a child under the age of 11 while committing child abuse or neglect, and the death occurs under circumstances manifesting an extreme indifference to human life." The offense is punishable by imprisonment for 20 years to life. Id. Subsections (A)(2) and (C)(2) of the statute provide a penalty of imprisonment from ten to 20 years for aiding or abetting child abuse or neglect resulting in death.

In 2006, the Legislature added the offense of "Death or injury of a child in utero due to commission of a violent crime." S.C. Code Ann. § 16-3-1083 (Supp. 2012). The crime carries the same punishment as would be applicable if the assault or homicide was against the child's mother, with the exception that the death penalty may not be returned for homicides under this statute. The perpetrator need not know the pregnant condition of the mother nor intend to due bodily injury to the unborn child. Intent to injure the mother is sufficient. In effect, if a person commits a violent crime as defined under section 16-1-60, and a fetus dies as a result of that felony, the perpetrator may be charged with murder, even if...