No Jury Instructions of Inferred Malice from Use of a Deadly Weapon
In State v. Burdette, decided today, the SC Supreme Court held that trial courts may not instruct juries that malice can be inferred from the use of a deadly weapon. Period. Not ever.
Although the Court’s previous decisions have held that an inferred malice instruction is inappropriate only when there is “evidence presented that could reduce, excuse, justify, or mitigate the homicide,” see State v. Belcher, today the Court has extended that ruling to forbid an inferred malice instruction in every case:
Regardless of the evidence presented at trial, trial courts shall not instruct a jury that the element of malice may be inferred when the deed is done with a deadly weapon.
Burdette was acquitted of murder, but the jury convicted him of voluntary manslaughter and possession of a weapon during a violent crime, and he was sentenced to a total of 20 years in prison followed by five years’ probation.
The convictions are reversed – and prosecutors can re-try him on the voluntary manslaughter and possession of weapon charges, but double jeopardy bars a re-trial for murder.
Jury Instructions – No Inferred Malice from Use of a Deadly Weapon
The Court overruled a long line of cases that held trial courts could instruct jurors on inferred malice unless there is evidence that would “reduce, excuse, justify, or mitigate the homicide.” Clearly, some judges had trouble understanding that language, so now we have a blanket rule that bans any mention of inferred malice in the court’s jury instructions in every case.
The Old Rule
In Burdette, there was evidence presented that the killing was an accident. That’s evidence that would “reduce, excuse, justify, or mitigate the homicide,” which means it was error, under the old rule, for the trial judge to charge the jurors on inferred malice.
A jury charge instructing that malice may be inferred from the use of a deadly weapon is no longer good law in South Carolina where evidence is presented that would reduce, mitigate, excuse, or justify the homicide.
Similarly, if evidence is presented of self-defense, the lesser offenses of manslaughter, defense of others, or any defense that would “reduce, excuse, justify, or mitigate the homicide,” trial courts were not permitted to tell jurors that malice can be inferred from the use of a deadly weapon.
The New Rule
After Burdette, it doesn’t matter what the defenses are or what evidence was presented. Trial courts can no longer instruct jurors that malice can be inferred from the use of a deadly weapon.
Why Does it Matter?
The Court of Appeals, reversed by the Supreme Court, held that the jury instruction was harmless error because Burdette was convicted of voluntary manslaughter and malice is not an element of voluntary manslaughter:
The State maintains, and the court of appeals held, Burdette was not prejudiced by the trial court’s erroneous inferred malice instruction (1) because Burdette was convicted of voluntary manslaughter, and (2) since malice is not an element of voluntary manslaughter, the inclusion of the inferred malice instruction in the jury instruction on murder could not have contributed to the verdict.
The Supreme Court disagreed.
Because the trial court instructed the jurors that 1) Malice is an element of murder, 2) Malice is not an element of involuntary manslaughter, 3) Voluntary manslaughter is a lesser included offense of murder, but 4) Did not instruct the jury that malice is not an element of voluntary manslaughter, the jurors could easily have assumed that malice is an element of voluntary manslaughter and inferred that Burdette was guilty because he had a deadly weapon.
When the trial court instructed the jury that malice was not an element of involuntary manslaughter, but did not instruct the jury that malice was not an element of voluntary manslaughter, the jury was left with the incorrect impression that malice is an element of voluntary manslaughter, which allowed the jury to use the improperly charged inference of malice from the use of a deadly weapon to find Burdette guilty of voluntary manslaughter.
The jury’s confusion was clear when the jurors asked the court to clarify the definitions of murder, manslaughter, and voluntary manslaughter during deliberations.
Courts can Still Consider the Use of a Deadly Weapon, They Just Can’t Instruct Juries on It
The Supreme Court was clear that the attorneys can still argue that there is an inference of malice from the use of a deadly weapon, or that there is an inference of no malice because there is no deadly weapon:
Of course, whether the deed was done with a deadly weapon or not, the State and the defendant are free to argue the existence or nonexistence of malice based on the evidence in the record. For example, if evidence is introduced that the deed was done with a deadly weapon, the State is free to argue to the jury that it should infer the existence of malice based on that fact and any other facts that would naturally and logically allow a jury to conclude the defendant acted with malice aforethought.2 Similarly, if the deed was not done with a deadly weapon, a defendant is free to argue the absence of malice based on that fact and any other facts that would naturally and logically allow a jury to conclude the State failed to prove beyond a reasonable doubt that the defendant acted without malice aforethought.
The Court’s decision also does not prevent a judge from considering the defendant’s use of a deadly weapon when appropriate:
Of course, our ruling does not prohibit a trial court from citing outside the presence of the jury the proposition that malice may be inferred from the use of a deadly weapon. For example, when ruling on a defendant’s motion for directed verdict on the ground the State failed to prove the element of malice, a trial court may take into account the fact that the deed was done with a deadly weapon.
It’s a good decision that helps, somewhat, to cut through the confusion that plagues jury instructions in murder trials.
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Grant B. Smaldone is a SC criminal defense lawyer based in Charleston, SC. If you have been charged with a crime in the Charleston, SC area, call Charleston criminal defense lawyer Grant B. Smaldone now at (843) 808-2100 or send an email to set up a free initial consultation today.