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, PostConviction 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 ninemillimeter 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.