Mutual Combat in SC – Manslaughter Conviction Reversed
In State v. Bowers, decided August 7, 2019, the SC Court of Appeals reversed a voluntary manslaughter conviction because the trial court improperly instructed the jury that they could find that Bowers was engaged in mutual combat.
What is mutual combat in SC, and why didn’t it apply in this case?
Bowers was originally charged with murder, but the jury convicted him of voluntary manslaughter – another jury instruction that the defense objected to, but the Court of Appeals did not address because they overturned the conviction based on the mutual combat jury instruction.
Will Bowers face another murder trial, or will the state be limited to a second prosecution for the lesser offense of voluntary manslaughter? Can they prove voluntary manslaughter if there was no mutual combat?
What is Mutual Combat in SC?
First, mutual combat is not a defense – it is a prosecution theory that shuts down the possibility of an acquittal based on self-defense.
Mutual combat is not used often, possibly because it is difficult to prove:
“The doctrine of mutual combat has existed in South Carolina since at least 1843, but has fallen out of common use in recent years.” Taylor, 356 S.C. at 231, 589 S.E.2d at 3. “The doctrine [of mutual combat] has most often been applied in situations where the defendant and decedent bear a grudge against each other before the fight in which one of them is killed occurs.” Id. at 232, 589 S.E.2d at 4. Mutual combat occurs when there is a mutual intent and willingness to fight. State v. Graham, 260 S.C. 449, 450, 196 S.E.2d 495, 495 (1973). Mutual intent is “manifested by the acts and conduct of the parties and the circumstances attending and leading up to the combat.” Id. (citing 40 C.J.S. Homicide § 123).
The use of mutual combat was limited even further by the SC Court of Appeals in State v. Taylor, decided last year:
The antiquated doctrine was limited in its application by our supreme court in State v. Taylor. In Taylor, our supreme court required that the fight arise out of a pre-existing dispute and that the combatants be armed with deadly weapons. 356 S.C. at 233–34, 589 S.E.2d at 4. Additionally, each party must know the other is armed with a deadly weapon. Id. at 234, 589 S.E.2d at 5. Moreover, it is essential that the agreement to fight be “entered into prior to the beginning of combat,” also described as an antecedent agreement to fight. 40 C.J.S. Homicide § 206; accord Taylor, 356 S.C. at 233, 589 S.E.2d at 4.
Prosecutors want to prove mutual combat, mainly because it negates self-defense. In this case, it also made it more likely that the jury would convict Bowers for the lesser included offense of voluntary manslaughter, which carries a sentence of up to 30 years in prison.
What are the Elements of Mutual Combat in SC?
To get a jury instruction on mutual combat, the prosecutor must introduce evidence that:
- There was a “mutual intent and willingness to fight;”
- The agreement was entered into “prior to the beginning of combat;”
- Both parties were armed with weapons; and
- Each person knew that the other was armed with a deadly weapon.
In this case, there was no evidence of an agreement to fight or even ill-will between Bowers and the alleged victim. Although there had been an argument earlier in the night, it did not involve Bowers. Because there was no agreement to fight, there was no agreement that was entered into “prior to the beginning of combat.”
There was also no evidence that the alleged victim knew that Bowers was armed with a deadly weapon before the fight began, meaning that three of the four elements listed above were not present.
As a practical matter, mutual combat sounds an awful lot like a duel – two people agree to fight, arm themselves, and start shooting… Anything short of that is not going to be considered mutual combat by the Court of Appeals.
If There Was No Mutual Combat, Was There Voluntary Manslaughter?
Bowers was initially charged with murder, but he was ultimately convicted of voluntary manslaughter.
If the jury found that he had engaged in mutual combat, they could not also find that he acted in self-defense (which is what he argued to them). Because mutual combat tends to fit the definition of voluntary manslaughter, the judge instructed them on the elements of voluntary manslaughter, and they could not acquit for self-defense if they thought there was mutual combat, I bet the jurors “split the difference” by acquitting him of murder but finding him guilty of voluntary manslaughter.
Since Bowers was acquitted of murder, double jeopardy bars another trial for the same murder even though his conviction for manslaughter was overturned. So, can the state retry him for voluntary manslaughter?
What are the Elements of Voluntary Manslaughter?
Did Bowers kill the alleged victim 1) in the heat of passion and 2) upon sufficient legal provocation if there was no argument beforehand and no mutual combat?
The state can probably produce some evidence to fit the elements of voluntary manslaughter, but they have a much weaker case now than they did before and murder is off the table…
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Grant B. Smaldone is a SC criminal defense lawyer based in Charleston, SC. If you have been charged with a crime in the Charleston, SC area, call Charleston criminal defense lawyer Grant B. Smaldone now at (843) 808-2100 or send an email to set up a free initial consultation today.