If a defendant used a deadly weapon to kill someone, can judges instruct juries that the element of malice can be inferred based on the use of that deadly weapon?

The South Carolina Supreme Court has said no, in an opinion that will have far-reaching effects in murder cases statewide. In State v. Burdette, the court ruled that trial courts can no longer instruct juries that malice may be inferred if the defendant used a deadly weapon to commit the crime of which they have been charged.

Although he was indicted on a murder charge in the shooting death of Evan Tyner, an Oconee County jury convicted Burdette of voluntary manslaughter and possession of a weapon during a commission of a violent crime.

Burdette appealed, arguing that the trial court’s instructions to the jury were inappropriate because they suggested that malice could be present simply because a deadly weapon was used in the crime. The Court of Appeals agreed that the instruction was improper, but held that Burdette had not been prejudiced by the faulty instruction since malice is not an element of either of the crimes of which he was convicted.

But in a unanimous July 31 opinion, the Supreme Court reversed, saying that the erroneous charge could have confused the jury, and so it could not say beyond a reasonable doubt that Burdette had not been prejudiced by the mistake.

“The jury was left with the incorrect impression that malice is an element of voluntary manslaughter, which allowed the jury to use the improperly charged inference of malice from the use of a deadly weapon to find Burdette guilty of voluntary manslaughter,” Justice George P. James wrote.

The court went on to say a jury instruction that malice may be inferred from the use of a deadly weapon is an improper court-sponsored emphasis of a fact in evidence, and it should no longer be permitted in trials. The ruling is effective in cases which are not yet final or pending on direct review, but does not apply to convictions challenged on post-conviction release. The court acknowledged that its decision overrules “a considerable amount of South Carolina case law.”

Absence of malice

Appellate Defender Susan Barber Hackett represented Burdette. Hackett said that, for years, juries have been instructed that if the defendant used a deadly weapon, it could infer malice based on that fact.

“And that can be pretty problematic because, as you can imagine, in many cases with murder or attempted murder, there is a weapon involved, and most weapons are considered deadly weapons,” Hackett said. “What the court has said is ‘We’re not going to allow trial judges to instruct a jury that way. We don’t want the trial judges involved in factual findings. Those should be limited to the jury and the judge’s role should be restricted to just matters of law.’ … The court took this case as an opportunity to simply say, we’re not going to get into this anymore.”

Kathy Schillaci, a partner with McCulloch & Schillaci in Columbia who was not involved in the case, said that the court’s ruling was “one of the most important cases of the year.”

“In Burdette, the South Carolina Supreme Court has overruled precedent and reversed a conviction because of burden-shifting,” Schillaci said. “This allows the jury as finders of fact to come to its own conclusion based on the facts in evidence. There have been other burden-shifting cases, but Burdette finally eliminates the troublesome burden-shifting in these types of weapons related offenses.”

The 12-page decision is State v. Burdette (South Carolina Lawyers Weekly No. 010-055-19.) The full text of the opinion is available online at sclawyersweekly.com.

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