In this criminal case, Jacqueline Mekler appeals following her conviction for murder. Mekler asserts the trial judge erred in (1) refusing to allow her to impeach one of the State’s witnesses, the deceased’s wife, with evidence that the witness expressed fear of the deceased after a domestic dispute when the witness denied she was ever afraid of the victim; (2) refusing to allow evidence appellant was aware of the deceased’s prior act of violence against the wife and the wife’s property, as this was relevant to appellant’s claim of self-defense; and (3) refusing to instruct the jury on the law of involuntary manslaughter because appellant asserted a self-defense theory, where there was evidence appellant armed herself in self-defense but discharged the gun due to her reckless handling of the weapon. We reverse and remand for a new trial.
FACTUAL/PROCEDURAL BACKGROUND
On the night of March 8, 2002, officers responded to a call at the home of Mekler after receiving a report that a man had been shot. When the first officer arrived, he found a man lying face down on the ground and observed two women standing
Deputy Combs also took a statement from Robette that night. Robette told him that she and Mekler had been talking and drinking on the front porch when Bubba pulled up in the yard in his truck. Bubba started yelling and screaming at her, “Why aren’t you home? You should have called and told me where you were.” Mekler told Bubba several times to leave. Bubba left a few minutes later and, a few minutes after that, returned on foot. When Bubba came back, he had a knife in his hand. Mekler, at that time, went into the house
Detective Rhonda Bamberg testified that as she transported Mekler to the Orangeburg County Sheriffs Office, Mekler began to tell her about the incident. Mekler told the detective that she and Robette were drinking and talking when Bubba came up in his truck. Bubba “got out and began to carry on about why Robette was not home and why she didn’t call.” Mekler told Bubba he needed to calm down or leave. Bubba got in his truck and left. A little while later, Bubba returned, brandishing a knife. Mekler told Bubba he did not need a knife. Mekler grabbed her dog that was chained to the front porch. Bubba said the knife was for the dog. Mekler told Bubba that if he were to quiet down, the dog would stop. Mekler told Bubba to leave or she would shoot him. Mekler stated Bubba was a big man and she was afraid of him. Bubba would not leave. Mekler went into the house and came out again. “She brought the gun down and don’t (sic) remember the shot, but Robette said, Jackie, you’ve shot him.” Mekler said, “No, I didn’t.” Robette said, “Yes, you did.” Mekler told Robette to go call 9-1-1. Mekler again stated that she was afraid of Bubba and that he would not leave.
Once at the Sheriffs Office, Mekler gave another statement, this time to Detective Rush. Mekler told the detective that she and Robette were sitting on her porch drinking and talking. One of Robette’s daughters pulled into the yard and told Robette that Bubba had called and wanted Robette to call him when she got home. Thereafter, Bubba pulled up in his truck, got out and then began “screaming and crying at Robette.” • Bubba said, “Why are you doing this to me? Didn’t they tell you to call me?” Robette said, “Yes,” and began walking toward Bubba. Then Bubba started yelling at Robette saying “Why are you here? Why haven’t you called me?” Mekler described Bubba as “loud and showing himself.” Mekler stated she was afraid Bubba was going to hit Robette, and stated Bubba was “flailing around” and possibly hit his truck. Mekler walked down to Bubba and asked him to come sit with
The State presented the testimony of Robette Spires at the trial. Robette testified that she and Mekler were drinking alcohol on Mekler’s front porch on the night in question. It was after dark when Bubba drove up to Mekler’s house in his pick-up truck. Bubba got out of the truck and started hollering, wanting to know why she had not called him back. Robette stated Bubba “was crying, he was upset, it wasn’t a violent, mean (sic).” He was asking why she had not called him, why she was doing this, and why she would not come home. Bubba came into the yard but did not come onto the porch. Robette did not remember Bubba ever cursing, threatening or putting his hands on either her or Mekler. Robette did not remember at what point the knife came out, but she did remember Bubba saying it was for the dog. During his first trip to the house when Bubba was hollering and crying at Robette, Mekler started hollering back at Bubba telling him to calm down, and if he did so, he could join them for a drink. At one point Mekler told Bubba, “You can’t be hollering here, you can’t scream, you’ve got to go, I’m going to shoot you if you don’t.” Robette claimed she never had the chance to respond to Bubba’s questions because when Bubba would scream, Mekler would scream. Bubba finally got in his track and left, but a few minutes later, he came walking back up the street, apparently having left his truck at Robette’s house. When he returned, Bubba was still crying and hollering, saying the same things as before. Robette testified she was embarrassed by Bubba’s behavior and then irritated because she could not “get a word in between [Bubba and Mekler].” When Bubba came back the second time, the dog was chained to the porch and was barking. Bubba made it to the steps, but could come no further because the dog would have reached him. When Mekler saw the knife, she told Bubba to put it away. Bubba responded that the knife was for the dog. At that point, Robette claims she stood up and began walking away, toward her home. She did not remember seeing Mekler go inside to get the shotgun, but she remembered seeing her come out with the gun. Robette stated she was leaving because Bubba and Mekler were hollering and she had “had enough.” She stated she did not
Mekler took the stand and testified in her own defense. She stated that on the night of the incident, she and Robette were on her porch talking when Bubba pulled into her yard, jumped out of his truck, and began screaming and hollering at Robette. He was yelling, “Why aren’t you home, why are you here, why do you keep doing this to me?” Robette walked down into the yard to talk to him, but Bubba continued to scream and yell. He started flailing around, and may have hit the truck. Mekler stated she became afraid Bubba was going to hit Robette. Mekler did not call the police because she did not have a phone, and she did not walk to the store to use the phone because she was not going to leave Robette “with [Bubba] in that state.” At some point Bubba left, driving down the street. Robette and Mekler sat back down and Robette told Mekler Bubba had pulled into Robette’s yard and that he was expecting Robette to come up there. Mekler told her not to go there yet, but to let him calm down, stating to Robette that she was scared for Robette to go up there. Robette then said she would not go up there. As they were sitting on the porch, Mekler’s dog “Fuzzy” began to bark. Fuzzy was sitting in a chair and was chained to the porch. The dog got up and was “looking in that direction” barking when Robette said, “there’s Bubba.” Mekler looked and observed Bubba walking quickly into her yard, coming up the walk. As Bubba reached the steps, Fuzzy jumped down the steps and stopped Bubba’s momentum. Mekler stepped down and grabbed Fuzzy saying to Bubba, “What are you doing? Have you lost your mind?” Bubba was still screaming and hollering at Robette, “You’re going to come with me. Why are you still here?” Mekler told Bubba he needed to go home. Bubba would not back up any farther, so Mekler reached down to grab Fuzzy with her other hand. As she did, she noticed the knife in Bubba’s hand. Mekler asked Bubba, “What is wrong with you? You pull a knife on me?” Bubba
On cross-examination, the solicitor asked Mekler if she meant to shoot Bubba. Mekler responded that she “meant for [Bubba] to stop.” When asked again if she meant to shoot him, Mekler stated, “I wanted to live.” She further stated, “I would never want to shoot anybody.” The solicitor again asked her if she meant to shoot Bubba. Mekler testified that she got the gun, she cocked the hammer, she wanted to live, and that she wanted Robette to live. The solicitor again asked Mekler whether she meant to shoot him or she did not mean to shoot him. Mekler replied that she was scared, that Bubba would not stop, that Bubba moved, “and then the gun fired.” Mekler stated that when she advised Bubba she had a
LAW/ANAL Y SIS
X. Failure to allow evidence to impeach Robette
Mekler first contends the trial judge erred in failing to allow her to impeach Robette, after Robette denied on the stand that she had ever been afraid of Bubba, with evidence Robette told a police officer during a prior dispute that she was afraid of Bubba and that Bubba had threatened to kill Robette. Mekler argues the evidence was relevant to the credibility of Robette and therefore the trial judge erroneously excluded the evidence. We disagree.
During defense counsel’s cross-examination of Robette, he asked if it was her testimony that she was not afraid of Bubba the night of the shooting. Robette replied that she was not. She testified she was mad at him for hollering at her, but she was not scared. Counsel then asked Robette if she had been scared of Bubba before. Robette denied that she had ever been scared of him, claiming she had only been mad at him. At this point, the trial judge excused the jury and counsel informed the court he wished to inquire about an incident at Robette’s home on December 29, 2001, about two months and nine days prior to this shooting incident. When the court
Counsel again argued to the court that the issue went to Robette’s credibility and asked to proffer the officer’s testimony. Detective McCord then testified in camera, stating he remembered going to Robette’s home on December 29, 2001. Robette told him that Bubba had threatened to kill her and that she was afraid. When Bubba returned to the home he was very boisterous and, using profanity, said he wanted Robette to come outside. At that point, Detective McCord placed Bubba under arrest for criminal domestic violence. Bubba was subsequently convicted as charged. The trial judge ruled it was a collateral issue, it could unduly lengthen the trial, and it might confuse the jury. He determined it had no bearing on any issue in the case at that time and refused admission of the evidence based on Rule 403, SCRE. 2 Robette’s cross-examination resumed and she testified that Bubba was not vicious and was not “normally a violent person of any kind.” She claimed that his beating on her door was the worst thing Bubba had ever done and it made her angry, but he was drunk at the time and he was not a violent person.
Further, we note case law supports our finding that the trial judge committed no error in denying the admission of this evidence. In
State v. Beckham,
II. Refusal to allow evidence of appellant’s knowledge of decedent’s prior act of violence
Mekler next contends the trial judge erred in refusing to allow evidence that Mekler was aware of Bubba’s prior act of violence against Robette and Robette’s property, arguing the evidence was relevant to Mekler’s claim of self-defense and defense of others. We agree.
Following his redirect-examination of Mekler, defense counsel asked to proffer some testimony from Mekler regarding her specific knowledge of Bubba having broken the door in Robette’s home. The trial judge indicated he would allow the proffer, but he would not let the evidence go before the jury because it was a collateral issue that would unduly lengthen the trial and was not necessary to any issue in the case. He noted he had allowed Mekler to testify that she was aware of Bubba’s criminal domestic violence conviction, but he would not allow evidence of the details of the crime. Thereafter, counsel proffered testimony from Mekler that she first became aware of the criminal domestic violence incident involving Bubba and Robette when she heard Bubba “beating in [Robette’s] door” from her house. She later learned Bubba had been drinking when he went to Robette’s house, threatened Robette, and beat Robette’s door until he broke through it with his fists. She became aware that Bubba was arrested for the incident and was later convicted. The trial judge stated, “I specifically decline to permit that testimony.”
In
State v. Day,
In the case at hand, the prior act of violence by Bubba against Robette occurred less than three months prior to Bubba’s death and was so closely connected at point of time to indicate Bubba’s state of mind at the time of the shooting. The prior incident of criminal domestic violence was also admissible to prove Mekler had a reasonable apprehension of great bodily harm from Bubba, an essential element of Mekler’s claim of self-defense as well as her claim of defense of others.
III. Failure to charge the jury on the law of involuntary manslaughter
Mekler finally contends the trial judge erred in refusing to instruct the jury on involuntary manslaughter. We agree.
At the close of the evidence, defense counsel requested a jury instruction on involuntary manslaughter. The trial judge found there was a strong inference from Mekler’s testimony that she “certainly intended to shoot [Bubba].” He noted Mekler said she was afraid of Bubba and was protecting
The law to be charged must be determined from the evidence presented at trial.
State v. Crosby,
Involuntary manslaughter is (1) the unintentional killing of another without malice, but while engaged in an unlawful activity not naturally tending to cause death or great bodily harm; or (2) the unintentional killing of another without malice, while engaged in a lawful activity with reckless disregard for the safety of others.
Chatman,
Here, there is evidence that would support a finding Mekler was lawfully armed in self-defense at the time of the fatal shooting. Further, there is ample evidence from which the jury could infer Mekler did not intentionally discharge the shotgun. Although Mekler stated on cross-examination that she had cocked the gun and “meant for [Bubba] to stop,” she clearly testified on direct that, as she was cocking the gun, Bubba leaned to the right “and the gun fired.” Mekler specifically testified she did not remember pulling the trigger. Mekler also consistently maintained in her statements to police that she did not remember pulling the trigger. In her detailed statement taken at the Sheriffs Office, Mekler stated
In
Crosby,
the facts showed Crosby was involved in an incident with a group of people when the victim began charging at Crosby with his hand behind his back. Crosby indicated that he pulled out a gun, closed eyes and pulled the trigger, but he did not know he pulled the trigger.
Crosby,
We likewise hold, given the evidence adduced at trial, Mekler was entitled to have the jury charged on the law of involuntary manslaughter. Because there is evidence from which the jury could have inferred Mekler did not intentionally discharge the shotgun, the trial judge erroneously concluded an involuntary manslaughter charge was precluded by Mekler’s self-defense claim.
CONCLUSION
Based on the foregoing, we hold the trial judge erred in excluding testimony of the past violent act by Bubba that was closely related in time and occasion to the shooting death of Bubba. We further hold the trial judge erred in failing to instruct the jury on the law of involuntary manslaughter. For the foregoing reasons, Mekler’s mui'der conviction is
REVERSED AND REMANDED.
Notes
. After the initial statement to the first officer on the scene, Mekler was advised of her rights before any further statements were given by her, and there is no issue as to the voluntariness of any of her statements.
. This rule provides, "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.’’