Criminal Practice – Constitutional – Ineffective Assistance – Involuntary Manslaughter – Struggle for a Gun

Wigington v. State (Lawyers Weekly No. 011-078-15, 9 pp.) (James Lockemy, J.) Appealed from Spartanburg County (Doyet Early III, Trial Judge & Roger Couch, Post-Conviction Relief Judge) S.C. App.

Holding: Where petitioner testified that his gun went off while he and his adult son were struggling over it, petitioner would have been entitled to a jury instruction on involuntary manslaughter if trial counsel had properly requested it. Instead, counsel argued that petitioner was entitled to an involuntary manslaughter instruction if he was also entitled to a self-defense instruction (he wasn’t).

Reversed and remanded for a new trial.

Since petitioner was in his home at the time of the killing, he was permitted to carry his gun on his property. Nevertheless, it was still a felony for him to present a firearm to another person unless he had the right to arm himself in self-defense. There is a difference between being armed in self-defense and acting in self-defense.

According to petitioner, at the time of the shooting, petitioner’s son grabbed his hand that was holding the gun, which petitioner asserted was not pointed at his son. Petitioner testified he made sure the safety was on when he put the gun in his pocket and he was surprised when it fired because he believed the safety was still on.

Petitioner also testified his son’s threat and prior act of domestic violence against him made him afraid for his and his grandchildren’s safety. Accordingly, evidence from trial indicates petitioner may have been armed in self-defense at the time of the shooting and petitioner may have been recklessly handling the loaded gun at the time of his son’s death.

Trial counsel failed to preserve petitioner’s involuntary manslaughter issue for appeal because he never argued the evidence entitled petitioner to such a charge. This was deficient, particularly in light of trial counsel’s erroneous argument to the trial court that petitioner would have been entitled to a jury charge on involuntary manslaughter only if the trial court determined a self-defense charge was appropriate. Had trial counsel properly raised this issue to the trial court, petitioner would have been entitled to an involuntary manslaughter charge.

Reversed and remanded.