Gibson v. State, 786 S.E.2d 121

Petitioner (Gibson) was convicted of murder and unlawful possession of a pistol after a bar fight where the victim was killed by a single 9mm shot to the back of the shoulder.
Evidence showed a melee in the parking lot, multiple shots heard, and conflicting witness accounts about who had and fired a gun; petitioner admitted firing shots into the air while driving away and said he might have shot the victim unintentionally.
Trial judge instructed the jury that malice "may be inferred" from the use of a deadly weapon but did not include the permissive inference language recommended in State v. Elmore.
Trial counsel objected generally that the charge was a comment on the facts but did not object to the omission of Elmore's permissive inference wording; prosecutor argued twice that "Malice may be inferred from the use of a deadly weapon alone."
On PCR, the judge found the malice charge, as a whole, proper and held trial counsel was not ineffective; the PCR judge also found other evidence of malice aside from the weapon.
Supreme Court granted certiorari as to the malice-charge issue, held trial counsel was deficient for failing to object to the omission of Elmore's permissive inference language, found prejudice because little other evidence of malice existed, reversed the PCR denial, and ordered a new trial on the murder charge.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the jury charge improperly omitted Elmore's permissive-inference language on malice from use of a deadly weapon	Gibson: omission allowed an impermissible burden shift; counsel ineffective for not objecting	State: charge as a whole was correct; language used ("can be inferred"/"may arise") and burden instructions cured any error	Court: Omission was not a slight deviation; counsel deficient for failing to object; prejudice shown; new trial granted
Whether omission was harmless because other evidence showed malice	Gibson: little other evidence of malice beyond weapon use and ambiguous admissions	State: other facts (phone call, presence at scene, admissions) supported malice finding	Court: other evidence was insufficiently strong; weapon inference was significant; error not harmless
Whether PCR judge's ruling must be affirmed if any supporting evidence exists	State: McCray/Tate standards require deference to PCR factual findings	Gibson: legal error in charge independently supports relief	Court: legal error in charge and incorrect PCR legal conclusion warranted reversal despite some supporting factual findings
Whether Elmore's language remains controlling	Gibson: Elmore permissive inference is required language for implied malice instruction	State: Elmore was guidance; slight deviations acceptable	Court: Elmore's recommended permissive inference remains required; complete omission is not slight deviation

State v. Elmore, 279 S.C. 417, 308 S.E.2d 781 (1983) (suggested permissive-inference malice instruction; deviations tolerated only slightly)
State v. Belcher, 385 S.C. 597, 685 S.E.2d 802 (2009) (distinguishing standard implied malice charge and permissive inference instruction)
Tate v. State, 351 S.C. 418, 570 S.E.2d 522 (2002) (counsel deficient for failing to object to a malice charge shifting burden)
McCray v. State, 317 S.C. 557, 455 S.E.2d 686 (1995) (court must affirm PCR rulings if any evidentiary support exists)
Rose v. Clark, 478 U.S. 570 (1986) (review for whether erroneous instruction contributed to verdict)
State v. Fennell, 340 S.C. 266, 531 S.E.2d 512 (2000) (definition and scope of malice for murder)
State v. Harvey, 220 S.C. 506, 68 S.E.2d 409 (1951) (malice as malignant recklessness toward life)