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25010 - State v. Smith

Shearouse Adv. Sh. No.
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State, Respondent,

v.

Derrick Smith, Appellant.

Appeal From Richland County

L. Henry McKellar, Circuit Court Judge

Opinion No. 25010

Heard June 22, 1999 - Filed November 8, 1999

AFFIRMED

Senior Assistant Appellate Defender Wanda H.

Haile, 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,

Assistant Attorney General G. Robert DeLoach, III,

and Solicitor Warren B. Giese, all of Columbia, for

respondent.

PER CURIAM: Appellant was convicted of murder and assault

and battery with intent to kill (ABIK) 1 and sentenced to life and ten years'

imprisonment, respectively. He appeals.


1 The jury was also charged the lesser-included offenses of voluntary

and involuntary manslaughter and assault and battery of a high and

aggravated nature.

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STATE v. SMITH

FACTS

Shortly before midnight on October 14, 1996, appellant shot

and killed his six-week-old daughter, Fuschia, while she was being held by

his wife, the infant's mother, Tammy. The bullet entered Fuschia's chest,

exited through her back, and lodged in Tammy's clavicle. Appellant

claimed the shooting was an accident.

A neighbor testified, while at home with the television on, he

heard Tammy say several times, "[a]ppellant, get away from me when I

am holding the baby." Fifteen seconds later, the neighbor heard a

gunshot, went outside, and saw a man running in the alley. The neighbor

characterized Tammy's voice as loud and argumentative.

A paramedic testified when he arrived at the scene of the

shooting, the infant was unresponsive. 2He testified Tammy stated "she

was involved with an argument and that mother - - - - er shot her." She

stated "I cannot he (sic) believe he got mad and shot me." Another

paramedic testified Tammy stated she and appellant were arguing and he

shot her.

An investigator who interviewed Tammy shortly after the

shooting testified Tammy stated appellant had been drinking. They were

arguing over a car. Appellant obtained his pistol, pointed it at her, and

then fired a shot inside the home. Tammy picked up the baby and went

outside. Appellant followed Tammy outside then shot her while she was

holding Fuschia.

The investigator asked Tammy the following questions:

Q. Why do you think [appellant] shot you?

A. He was mad and had been drinking.

Q. Did he tell you he was going to shoot you?

A. He said, "if I ever catch you with anybody I will blow both of


2 Although Fuschia died at the scene, no one told Tammy until she

arrived at the hospital.

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STATE v. SMITH

your brains out, because I love you."

Although she gave a written statement to the police indicating

she and her husband were arguing and the shooting was intentional, at

trial Tammy testified appellant was unloading his pistol when the shooting

occurred. Contrary to her written statement, Tammy denied appellant

threatened to "blow [her] brains out," denied he struck her in the face,

denied pleading with appellant not to touch her while she held Fuschia,

and denied she left her home to telephone the police. She testified she did

not remember giving a statement to the police.

Three hours after the shooting, Curtis Weathersbee gave the

following statement:

On 10-15 (sic) -96 1 was in [appellant's] house, watching a

football, the football game. Earlier [Tammy and appellant]

were having a verbal confrontation because she went to her

cousin's house and stayed too long. He was explaining that

she should not be gone from the baby that long because the

baby was sick. While raving at her he was constantly

threatening her that he would shoot her head off, shoot her in

the face.

As he told her that he was approaching the bedroom to get a

pistol. He stood in the kitchen, with the pistol beside him, just

wobbling from left to right with an angry look on his face.

That is when the pistol went off. After that he went and put

the pistol back in the bedroom. He came back out and was

pacing the floor constantly. threatening her. Tammy grabbed

her baby and said, 'oh, Lord, let me get up and go.'

By the time she got at the car trying to leave, that is when he

left out the door with the pistol. The door slammed shut. I

heard Tammy holler. I was praying that it would not happen.

But I heard a shot. I jumped, stating - - I jumped up and as I

was approaching the door, [appellant] ran back in the house

stating, 'I believe that I shot Tammy.'

Mr. Weathersbee testified his statement was involuntary; he

stated he was threatened by an investigator. He testified he did not

remember telling the investigator appellant had threatened to shoot

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STATE v. SMITH

Tammy's "head off' or in the face. He admitted appellant and Tammy had

argued and appellant was "real upset" and "hollering."

Through a written statement, appellant indicated he was

removing the pistol from his trouser pocket when it fired. Appellant did

not testify at trial.

ISSUES

1. Did the trial judge err by allowing the solicitor to refer to

appellant's July 1996 criminal domestic violence conviction?

11. Did the trial judge err by charging the jury on unlawful

possession of a weapon?

DISCUSSION

I.

Appellant argues the trial judge erred in admitting his July

1996 criminal domestic violence conviction because there was insufficient

connection between the prior conviction and the murder charge. We

disagree.

Prior to trial, the solicitor moved to be allowed to introduce

evidence of the ongoing abusive relationship between appellant and

Tammy. Specifically, the solicitor moved to introduce appellant's four

criminal domestic violence convictions in order to establish appellant's

state of mind at the time of the shooting and to rebut his claim of

accident.3Appellant argued there was no similarity between the prior

convictions and the current charge and, therefore, the convictions were

inadmissible. The trial judge ruled the July 1996 criminal domestic

violence conviction was admissible and that he would determine whether

the other convictions were admissible.

During trial, Tammy testified on direct examination:

Q. Isn't it a fact, Tammy, that not three months before this


3 Tammy was the victim in each of the four incidents.

p.14


STATE v. SMITH

incident, when you were pregnant with Fuschia, [appellant]

assaulted you, not once but twice?

A. We were having verbal conversation and to keep it down, I

called the police because we was having an argument and I

wanted to get in the car and leave, and we kept having an

argument, so I called the police. They insinuated that.

Q. Isn't it a fact that you filed two police reports within thirty

minutes of each other on July 10, 1996, against your husband?

Correct?

A. I could have. I do not remember.

Q. And went to court on one of them. Correct?

A. I could have.

Q. And he was convicted. Correct?

A. I think just on one.

Q. Of criminal domestic violence against his eight month

pregnant wife. Correct?

A. I am not sure.

Generally, a motion in limine seeks a pretrial evidentiary

ruling to prevent the disclosure of potentially prejudicial matter to the

jury. State v. Hill, 331 S.C. 94, 501 S.E.2d 122 (1998); State v. Floyd, 295

S.C. 518, 369 S.E.2d 842 (1988). A pretrial ruling on the admissibility of

evidence is preliminary and is subject to change based on developments at

trial. Id. A ruling in limine is not final; unless an objection is made at

the time the evidence is offered and a final ruling procured, the issue is

not preserved for review. State v. Mitchell, 330 S.C. 18% 498 S.E.2d 642

(1998); State v. Simpson, 325 S.C. 37, 479 S.E.2d 57 (1996).

Appellant failed to object to the solicitor's questions concerning

his July 1996 criminal domestic violence conviction. Accordingly, this

issue is not preserved for consideration on appeal. State v. Mitchell,

supra.

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STATE v. SMITH

In any event, as a general rule, "[e]vidence of other crimes,

wrongs, or acts is not admissible to prove the character of a person in

order to show action in conformity therewith." Rule 404(b), SCRE; see

State v. Jenkins, 322 S.C. 414, 472 S.E.2d 251 (1996)(evidence of other

crimes, wrongs, or acts is not admissible to prove a defendant committed

the specific crime charged). However, evidence of other crimes, wrongs, or

acts is admissible if it tends to establish motive, intent, the absence of

mistake or accident, identity, or the existence of a common scheme or

plan. Rule 404(b), SCRE.4The evidence must be logically relevant to the

particular purpose or purposes for which it is sought to be introduced.

State v. Bell, 302 S.C. 18, 393 S.E.2d 364 (1990). Even if the prior crime

evidence is relevant, it must be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice to the

defendant. Rule 403, SCRE; State v. King, Op. No. 24916 (S.C. Sup. Ct.

filed March 8, 1999)(Shearouse Adv. Sh. No. 10 at 31).

The solicitor properly offered appellant's July 1996 criminal

domestic violence conviction to establish appellant's intent to kill and the

absence of mistake or accident. The prior conviction was logically relevant

to appellant's intent and absence of mistake or accident at the time of the

shooting. 5 See State v. Key, 277 S.C. 214, 284 S.E.2d 781 (1981)(in trial

for aggravated assault and battery arising from a shooting at defendant's

store, testimony defendant had threatened victim's associate two or three

times with a gun at the store was admissible to show absence of mistake

or accident). We conclude the probative value of the prior conviction was


4 These are the same exceptions enumerated in State v. Lyle, 125

S.C. 406, 118 S.E. 803 (1923).

5 The State's case involved the doctrine of transferred intent. Under

the doctrine of transferred intent, i'the actor's intent to kill his intended

victim is said to be transferred to his actual victim. All that is required of

murder is the mental state of malice, provided by the intent to kill a

human being coupled with an act which caused the death of a human

being." State v. Horne, 282 S.C. 444, 446, 319 S.E.2d 703, 704 (1984).

Here, the State theorized appellant intended to kill Tammy. Instead, he

shot and killed Fuschia. His intent to kill Tammy supplied the element of

malice.

p.16


STATE v. SMITH

not outweighed by unfair prejudice to appellant. The trial judge did not

abuse his discretion in admitting appellant's July 1996 criminal domestic

violence conviction. State v. Nance, 320 S.C. 501, 466 S.E.2d 349

(1996)(the admission of evidence is within the discretion of the trial court

and will not be reversed by this Court absent an abuse of discretion).

II.

Appellant argues the trial judge erred by charging the jury on

the statutory offense of unlawful possession of a weapon. He contends

there is no requirement the trial judge instruct the jury on the unlawful

possession statute and, further, the charge constituted a conu-nent on the

facts in violation of Article V, § 21 of the South Carolina Constitution.

While discussing the proposed jury charge, the solicitor agreed

appellant was entitled to an instruction on accident. The trial judge

stated he would instruct the jury on the unlawful pistol statute.6

Appellant objected, arguing there was no evidence as to whether he was

either on or off of his property at the time of the shooting. The trial judge

overruled the objection then charged the jury on accident and the unlawful

possession statute.

Appellant's present argument is not preserved for consideration

on appeal. Prior to the charge, appellant objected to instructing the jury

on the statute, arguing there was no evidence as to his location at the

time of the shooting. He did not claim, as he does now, that there is no

requirement the trial judge instruct the jury on the unlawful possession

statute or the charge constituted a comment on the facts in violation of

the Constitution. Since he did not object at trial on the same grounds as

raised on appeal, the issue is not preserved for review. State v. Ard, 332

S.C. 370, 505 S.E.2d 328 (1998)(failure to object to jury charge constitutes

a waiver of the right to raise the issue on appeal); State v. Byram, 326

S.C. 107, 485 S.E.2d 360 (1997)(defendant may not argue one ground

below and another on appeal).


6 This statute provides: "[i]t is unlawful for anyone to carry about

the person any pistol, whether concealed or not, except as follows: ... (8)

Any person in his home, or upon his real property, or fixed place of

business." S.C. Code Ann. § 16-23-20(8)(Supp. 1998).

p.17


STATE v. SMITH

AFFIRMED.

C.J.

A.J.

A.J.

A.J.

A.J.

p.18