                     THE STATE OF SOUTH CAROLINA
                          In The Supreme Court

             Jacques Gibson, Petitioner,

             v.

             State of South Carolina, Respondent.

             Appellate Case No. 2014-001074


                          ON WRIT OF CERTIORARI



                        Appeal From Richland County
                  The Honorable Diane Schafer Goodstein, Post-
                            Conviction Relief Judge


                              Opinion No. 27636
                  Submitted April 25, 2016 – Filed May 11, 2016


                                    REVERSED


             Tricia A. Blanchette, of Columbia, for Petitioner.

             Attorney General Alan McCrory Wilson and Assistant
             Attorney General James Clayton Mitchell, III, both of
             Columbia, for Respondent.


PER CURIAM: Petitioner was convicted of murder and unlawful possession of a
pistol by a person under the age of twenty-one. He now seeks a writ of certiorari
from the denial, after a hearing, of his application for post-conviction relief (PCR).
We grant the petition on petitioner's Question III, dispense with further briefing,
reverse the order of the PCR judge, and grant petitioner a new trial on the murder
charge. The petition for a writ of certiorari is denied on the remaining questions.

The evidence presented at trial showed that a fight occurred between two groups at
a bar. Following the initial confrontation, petitioner's brother, Adams, called
petitioner to request a ride home.1 Shortly after petitioner arrived to pick up
Adams, the dispute that began inside the bar spilled out into the parking lot and
became a physical altercation between numerous members of each group. During
the melee, several gunshots were heard, and the victim was killed by a single nine-
millimeter shot to the back of his shoulder.

There was evidence, including a statement petitioner gave to police, that petitioner
retrieved his gun from his car, pointed his gun at another person he suspected was
going to hit Adams, and subsequently fired his gun into the air three to four times
as he drove away from the scene. When asked whether he believed he may have
shot the victim, petitioner responded, "I think that I did, because I was doing some
shooting, but I didn't just look at him and shoot him. . . . the gun could have
dropped down because I was driving. I promise I don't remember seeing him and
aiming."

One witness, Shunta Wilson, testified Adams walked over to petitioner's car, sat in
the driver's seat, reached under it, and pulled out what she recognized as a small
caliber handgun, either a .22 or .25. Wilson maintained Adams was the only
person she saw with a gun. Wilson identified Adams as wearing jeans and a black
t-shirt; however, other witnesses and evidence presented at trial showed petitioner
was wearing a black t-shirt and Adams wore a white t-shirt. The evidence did not
provide a clear picture of who fired a weapon or how many shots were fired.

The trial judge charged the jury, in part, as follows:

               Both defendants in this case have been charged with the offense
               of murder. The State has to prove beyond a reasonable doubt
               that the defendant charged killed another person with malice
               aforethought. Malice: that's hatred, ill will, hostility towards
               another person. It's the intentional doing of a wrongful act
               without just cause or excuse and with an intent to inflict an
1
  Adams was tried with petitioner and was also convicted of murder. His application for PCR
was granted on the ground that trial counsel was ineffective in failing to object to the erroneous
jury charge on the inference of malice from the use of a deadly weapon. This Court denied the
State's petition for a writ of certiorari to review the PCR order in Adams' case.
            injury or under such circumstances that the law would infer an
            evil intent.

            Now, malice aforethought does not require that the malice exist
            for any particular time before the act was committed, but malice
            has to exist in the mind of the defendant just before and at the
            time the act was committed. Therefore, there has to be that
            combination of the previous evil intent and the act.

            Now, malice aforethought can either be express or inferred.
            Express means that malice is shown when a person speaks
            words with express hatred or ill will for another or the person
            prepared beforehand to do the act which was later
            accomplished. Malice can be inferred from conduct showing a
            total disregard for human life. Inferred malice may also arise
            when the deed is done with a deadly weapon. A deadly weapon
            is any article, instrument, or substance which is likely to cause
            death or great bodily harm. Whether an instrument has been
            used as a deadly weapon depends upon the facts and
            circumstances of each case.

            I'll just give you some examples of deadly weapons. There's
            [sic] a lot of them, and I'm not -- this is obviously not an
            exhaustive list. It could be a knife, a dagger, a slingshot, metal
            knuckles, a rifle, a shotgun, a pistol, a razor, gasoline. Any
            number of things that you determine from the facts would be a
            deadly weapon.

Trial counsel objected to the charge as a comment on the facts, but did not object
to the trial judge's failure to use the permissive inference language approved in
State v. Elmore, 279 S.C. 417, 308 S.E.2d 781 (1983), overruled on other grounds
by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991). In her closing argument,
the solicitor twice stated, "Malice may be inferred from the use of a deadly weapon
alone."

Petitioner contends trial counsel was ineffective in failing to object to the charge
that malice may be inferred from the use of a deadly weapon on the ground that the
charge did not include the permissive inference language approved by this Court in
Elmore.
The PCR judge found that the charge given was, as a whole, a proper statement of
law, despite the lack of the permissive inference language suggested in Elmore,
and did not constitute impermissible burden shifting. The judge relied on the
phrases "can be inferred," "may arise," and "depends on the facts and
circumstances of each case" in finding the charge was not erroneous. In addition,
the PCR judge found the jury was explicitly instructed on the State's burden of
proof. Finally, the judge found that the result of the trial would have been no
different had trial counsel objected to the implied malice charge since the use of a
deadly weapon was not the only evidence of malice. We disagree and reverse the
order of the PCR judge on this issue.

In Elmore, this Court stated:

      We suggest the following charge:

             The law says if one intentionally kills another with a deadly
             weapon, the implication of malice may arise. If facts, [sic] are
             proved beyond a reasonable doubt, sufficient to raise an
             inference of malice to your satisfaction, this inference would be
             simply an evidentiary fact to be taken into consideration by
             you, the jury, along with other evidence in the case, and you
             may give it such weight as you determine it should receive.

             We caution the bench, [sic] that hereafter only slight deviations
             from this charge will be tolerated.

In State v. Belcher, 385 S.C. 597, 685 S.E.2d 802 (2009), this Court referred to the
first sentence of the Elmore charge as the standard implied malice charge and the
second sentence as the permissive inference charge. The Court stated in a footnote
that "[t]he standard implied malice charge remains valid, as does the general
permissive inference instruction." Id.

The charge given by the trial judge in this case clearly deviates from the suggested
Elmore charge as it does not contain the permissive inference language. Although
the PCR judge refers to the fact that Elmore merely suggested the language, this
ignores the provision in Elmore indicating that "only slight deviations from this
charge will be tolerated." The complete omission of the permissive inference
language is not a "slight deviation" that would be permissible under Elmore.

The "depends upon the facts and circumstances of each case" language cited by the
PCR judge is contained in the charge on whether an instrument has been used as a
deadly weapon, not in the charge on the inference of malice. Therefore, this does
not cure the error in omitting the permissive inference instruction.

Because the charge was erroneous, the PCR judge erred in finding trial counsel
was not deficient for failing to object to the malice charge. Tate v. State, 351 S.C.
418, 570 S.E.2d 522 (2002), overruled on other grounds by State v. Belcher, supra
(counsel was deficient in failing to object to a malice charge that shifted the burden
of proof to the defendant); McCray v. State, 317 S.C. 557, 455 S.E.2d 686 (1995)
(this Court must affirm the rulings of the PCR judge if there is any evidence to
support the decision).

In determining whether petitioner was prejudiced by trial counsel's deficient
performance, this Court must decide whether the erroneous malice instruction
contributed to the verdict based on all the evidence presented to the jury. Rose v.
Clark, 478 U.S. 570 (1986); Plyler v. State, 309 S.C. 408, 424 S.E.2d 477 (1992).
The Court must weigh the significance of the presumption to the jury against the
other evidence of malice considered by the jury without the erroneous malice
charge. Lowry v. State, 376 S.C. 499, 657 S.E.2d 760 (2008).

In this case, the PCR judge erred in finding there was evidence of malice other
than the use of a deadly weapon. State v. Fennell, 340 S.C. 266, 531 S.E.2d 512
(2000) (malice is hatred, ill-will, or hostility toward another person; a wrongful
intent to injure another person indicating a wicked or depraved spirit intent on
doing wrong; a formed purpose and design to do a wrongful act without legal
justification or excuse); State v. Harvey, 220 S.C. 506, 68 S.E.2d 409 (1951)
overruled on other grounds by State v. Torrence, supra (as used in the description
of murder, malice does not necessarily import ill-will toward the individual
injured, but signifies a general malignant recklessness toward the lives and safety
of others, or a condition of the mind that "shows a heart regardless of social duty
and fatally bent on mischief."). Although the State argued petitioner received a
phone call from his brother, who knew petitioner had a gun, to come to the bar, the
only evidence of petitioner shooting the gun indicated he shot his weapon in the air
after other shots were fired. Petitioner admitted in one of his statements that it was
possible his gun "may have dropped down" toward the victim while he was driving
away and shooting in the air; however, this is not overwhelming evidence of
malice. Because there was little evidence of malice aside from the use of a gun,
the PCR judge erred in finding petitioner was not prejudiced by trial counsel's
failure to object to the charge on the inference of malice from the use of a deadly
weapon. Accordingly, we reverse the order of the PCR judge and grant petitioner
a new trial on the murder charge.

REVERSED.

PLEICONES, C.J., BEATTY, KITTREDGE and HEARN, JJ., concur. FEW,
J., not participating.
