THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
Delano Rafael Cooley,
Appeal From Greenville County
Thomas J. Ervin, Circuit Court Judge
Opinion No. 25184
Heard June 6, 2000 - Filed August 14, 2000
Beattie B. Ashmore, of Ashmore & Yarborough, P.A.,
and James F. Brehm, both of Greenville, for
Attorney General Charles M. Condon, Assistant Deputy
Attorney General Salley W. Elliott, Assistant Attorney
General J. Benjamin Aplin, all of Columbia, and Solicitor
Robert M. Arial, of Greenville, for respondent.
CHIEF JUSTICE TOAL: Appellant Delano Rafael Cooley, Sr.,
("Defendant") was convicted of voluntary manslaughter in the death of his wife
Donna Cooley ("Victim"). He has appealed. We reverse.
On October 26,1996, Defendant shot and killed Victim as she sat at their
dinner table. At trial, Defendant claimed the gun fired accidently while he was
showing Victim that it was unloaded. There were no witnesses to the killing, but
two of the couple's three young children were in the home at the time of the
One of the children, Delano Cooley, Jr., was nine when his mother was
shot and eleven when he testified at trial. He testified the shooting happened
on a Sunday. He and Victim, along with the youngest child, had attended
church that morning without Defendant who stayed home to watch football on
television. That afternoon, the witness and Victim had also gone to the store
and gotten water for their house.
Young Cooley testified that Defendant and Victim were "fussing"
throughout the day. He testified Defendant accused Victim of having an
adulterous affair. At one point in the afternoon, young Cooley testified that
Defendant went outside, fired his shotgun into the air, and then returned to
threaten Victim stating "That's how it will be" and "I'm not playing with you.
I will shoot you." The argument continued until just before the fatal shooting of
Corey Butler, the oldest child of Defendant and Victim, also testified. His
testimony concerned the relationship between his parents in the years prior to
the shooting. Butler testified that his parents constantly argued. He told the
jury that his father had often physically assaulted his mother and the police
were regularly called to the house. Butler testified he moved in with his
grandmother two years prior to the shooting because he had gotten into fistfights
with his father while trying to protect his mother. In particular, Butler testified
on many occasions Defendant would hold a knife to Victim's throat and threaten
to kill her and then kill himself.
At the trial's conclusion, Defendant requested the judge charge the jury on
involuntary manslaughter and the judge granted his request. In response, the
State requested a jury charge on voluntary manslaughter. Defendant opposed
the voluntary manslaughter charge contending that the argument between
Defendant and Victim could not rise to the level necessary to justify a voluntary
manslaughter charge. The trial judge disagreed and charged the jury on
voluntary manslaughter. The jury convicted Defendant of voluntary
manslaughter. Defendant has appealed and the issues before the Court are:
I. Did the trial court err in charging the jury on voluntary
II. Did the trial court err in allowing Defendant's oldest son, who had
not lived with the family in two years, to testify about the nature of
I. The Voluntary Manslaughter Jury Charge
Voluntary manslaughter is the unlawful killing of a human being in the
sudden heat of passion upon sufficient legal provocation. State v. Cole, 338 S.C.
97, 525 S.E.2d 511(2000). Both heat of passion and sufficient legal provocation
must be present at the time of the killing. Id. The provocation must be such as
to render the mind of an ordinary person incapable of cool reflection and produce
an uncontrollable impulse to do violence. See id.
The trial judge in this case should not have given a voluntary
manslaughter jury charge because the record contained no evidence to support
a finding of sufficient legal provocation. The law to be charged must be
determined from the evidence presented at trial. State v. Lee, 298 S.C. 362, 380
S.E.2d 834 (1989). The State argues the following evidence supported giving the
voluntary manslaughter charge:
1. Defendant and Victim were arguing throughout the afternoon of the
2. The argument was over Defendant's belief that Victim was having
an adulterous affair;
3. At one point in the argument, Defendant fired the gun in the
backyard and then threatened to kill Victim; and
4. Defendant and Victim were arguing minutes before the gunshot
that killed Victim.
The State points to no evidence of Victim provoking Defendant other than her
role in the alleged argument with Defendant. Furthermore, the State
erroneously focuses on Defendant's firing the gun in the backyard. Defendant's
own actions, no matter how outrageous or violent, cannot legally provoke
If we accept the State's theory of what happened that afternoon, the
argument between Defendant and Victim was about alleged marital infidelity.
While adultery may, in some instances, serve as sufficient legal provocation to
warrant a voluntary manslaughter charge, spousal adultery is not a license to
kill. See State v. Gadsden, 314 S.C. 229, 233, 442 S.E.2d 594, 597(1994). In
general, South Carolina has allowed martial infidelity to support a charge of
marital voluntary manslaughter only when the killer finds the other spouse and
paramour in a guilty embrace or flagrantly suggestive situation. See State v.
Herring, 118 S.C. 386,110 S.E. 668 (1921); but see State v. Martin, 216 S.C. 129,
57 S.E.2d 55 (1949) (finding evidence of the husband's belief that the deceased
had repeatedly and violently raped his wife and was then taunting them
supported a voluntary manslaughter charge). The killing must also happen so
soon after the discovery of the affair that the spouse does not have time to coolly
reflect on the situation. See Gadsen, 314 S.C. at 233, 442.S.E.2d at 597.
The State's theory, even if true, is insufficient to warrant a charge of
voluntary manslaughter because the State made no allegation that Defendant
actually encountered Victim in an adulterous situation. At most, Victim may
have confessed to adultery, an admission we find very unlikely due to the lack
of any evidence produced at trial of Victim having an affair. Furthermore, a
verbal confession of adultery, no matter what the content, would be insufficient
to warrant a voluntary manslaughter charge. See State v. Byrd, 323 S.C. 319,
322, 474 S.E.2d 430, 432 (1996)("Where death is caused by the use of a deadly
weapon, words alone, however opprobrious, are not sufficient to constitute a
legal provocation."). Therefore, even if the State's allegations about the
argument are taken as true, they do not support the giving of a voluntary
manslaughter charge because the allegations do not rise to the level of sufficient
II. Corey Butler's Testimony
Defendant argues the trial court erred in allowing his son to testify about
previous episodes of spousal abuse, including incidents where Defendant held
a knife to Victim's throat and threatened to kill her. We agree.
Recently, this Court reiterated the rule that "[i]n homicide cases, evidence
that the accused and the decedent had previous difficulty is admissible. The
evidence is admissible to show the animus of the parties and to aid the jury in
deciding who was the probable aggressor." State v. Taylor, 333 S.C. 159, 168,
508 S.E.2d 870, 874 (1998). Here, while it is true that no issue exists about the
identity of a probable aggressor, the testimony would be relevant to proving the
"animus of the parties," specifically the abusive marital relationship between
Defendant and Victim. See State v. Clinkscales, 231 S.C. 650, 99 S.E.2d 663
(1957)(finding testimony about prior difficulties between a husband and wife was
admissible against husband in a murder case as long as specific details were not
However, although evidence is relevant, it should be excluded where the
danger of unfair prejudice substantially outweighs its probative value. Rule
403, SCRE. In the current case, Butler testified about events that occurred
several years prior to the date of the killing. While we recognize that a trial
judge is accorded broad discretion in ruling on the admissibility of the testimony,
the remoteness in time of these events make them so prejudicial that Butler's
testimony about his parent's marital relationship should have been excluded.
See State v. King, 334 S.C. 504, 514 S.E.2d 578 (1999)(excluding evidence of
Defendant's bad acts that occurred more than one year before the crime on trial).
III. Effect of the Error
This Court is aware of the profound consequences of reversing Defendant's
voluntary manslaughter conviction. When the jury convicted petitioner of the
lesser included offense of voluntary manslaughter, in essence, he was acquitted
of the murder charge. See Bozeman v. State, 307 S.C. 172, 414 S.E.2d 144
(1992)(holding that a conviction for voluntary manslaughter acts as an implicit
acquittal of murder). On retrial, the constitutional prohibition against double
jeopardy prevents Defendant from being tried again for murder because he did
not waive this defense by making a successful appeal of his conviction. Id.
Furthermore, based on the testimony presented at Defendant's trial, the result
of our holding here is that without any evidence of legal provocation Defendant
cannot be retried on the charge of voluntary manslaughter. Thus, retrial will be
limited to the charge of involuntary manslaughter.
For most of our State's history, if a defendant was indicted for murder and
convicted of manslaughter he could be retried for murder when a new trial was
ordered based on the defendant's own motion. See, e.g., State v. Gillis, 73 S.C.
318, 53 S.E. 487 (1906). However, in applying the federal Fifth Amendment, the
United States Supreme Court has ruled that double jeopardy prevents states
from retrying defendants for greater offenses once they have "run the gauntlet"
on the greater offense and have not been convicted. See Green v. United States,
355 U.S. 184 (1957). For example, in a situation nearly identical to the current
one, the United States Supreme Court held the retrial of a defendant for murder,
after an earlier guilty verdict on the lesser included offense of voluntary
manslaughter had been set aside because of a trial error, constituted double
jeopardy in violation of the Fifth and Fourteenth Amendments. See Price v.
Georgia, 398 U.S. 323(1970).
Since the jury heard no evidence of legal provocation, Defendant's
voluntary manslaughter conviction suggests that the jury may have
compromised between murder and involuntary manslaughter or accident in
reaching their verdict. As such, it is fair to assume that at least one member of
the jury may have believed the State's position that Defendant murdered Victim
by shooting her with a shotgun in the face at close range. However, due to the
error in granting the solicitor's request for a voluntary manslaughter charge,
Defendant will not have to face a jury of his peers on the charge of murder again.
This is a cautionary tale for solicitors as to the pitfalls of requesting a potential
"compromise" charge which is unsupported by the evidence. Although the result
is an unsatisfactory one, this situation is controlled by the precedent of the
United States Supreme Court which we cannot ignore.
Based on the foregoing, we REVERSE Defendant's conviction.
MOORE, WALLER, BURNETT and PLEICONES, JJ., concur.