State v. Cabrera-Pena

Justice MOORE

dissenting:

I respectfully dissent. I agree the trial court erred in refusing to admit appellant’s statement in its entirety, but I would not find this error harmless.

The majority relies on evidence from the State’s witnesses to conclude appellant was not entitled to a charge of involuntary manslaughter. Under appellant’s version of the facts, however, he was entitled to such a charge. The excluded part of appellant’s statement was: “I do not know how she took the gun out of my pants pocket. I tried to grab and force her, but *385the gun went off and fired.”7 Because this critical part of appellant’s statement would have entitled him to a charge of involuntary manslaughter, the error in its exclusion cannot be harmless. See State v. Burriss, 334 S.C. 256, 265, 513 S.E.2d 104, 109 (1999) (evidence of negligent handling of a loaded gun will support a charge of involuntary manslaughter); State v. White, 253 S.C. 475, 479, 171 S.E.2d 712, 714 (1969) (same).

As stated by the majority, involuntary manslaughter is defined as either:

(1) the killing of another without malice and unintentionally, but while one is engaged in the commission of some unlawful act not amounting to a felony and not naturally tending to cause death or great bodily harm; or (2) the killing of another without malice and unintentionally, but while one is acting lawfully with reckless disregard of the safety of others.

Burriss, 334 S.C. at 264-65, 513 S.E.2d at 109. Here, there is no evidence appellant unlawfully possessed the weapon.8 Even if appellant was acting unlawfully in carrying a concealed weapon, this conduct is not a felony9 such that it would preclude a charge of involuntary manslaughter, nor is it an activity in itself “tending to cause death or great bodily harm.” To preclude a charge of involuntary manslaughter, the unlawful possession of a weapon must be the proximate cause of the killing. Id. at 262, 513 S.E.2d at 108, n. 5. Under appellant’s version of the facts, his possession of the gun was not the proximate cause of the victim’s death since the gun was removed from his pocket only when the victim herself grabbed it.

*386This Court does not sit as a finder of fact. It was for the jury to determine whether appellant’s version of the shooting was believable or not. Had appellant’s statement been admitted in full, it would have entitled him to a charge of involuntary manslaughter. Accordingly, I would reverse.

PLEICONES, J., concurs.

. Eyewitnesses testified the victim put her hand on appellant’s wrist but she backed away before the gun was fired. Appellant referred to this testimony in closing argument and maintained the shooting was an accident.

. The majority cites S.C.Code Ann. § 16-23-20 (2003) for the proposition that it is unlawful to carry a weapon on one's person. This section provides in full that it is unlawful to carry a weapon without a permit. § 16-23-20(12). The State did not come forward with any evidence that appellant was in unlawful possession of the gun and there is no evidence regarding whether or not appellant had a permit.

. A violation of § 16-23-20 (carrying a concealed weapon) is a misdemeanor. S.C.Code Ann. § 16-1-100(C) (Supp.2003).