On January 13, 1998, the grand jury for Anderson County indicted Appellant for the murders of Shane and Stacy Walters, half-brothers, and Sonya Cann. In addition to the three counts of murder, Appellant was indicted on three counts of possession of a firearm during the commission of a violent crime. Although Appellant admitted to shooting and killing Shane, Stacy, and Sonya, he pled not guilty, claiming he killed them all in self-defense.

After a two week trial beginning on March 6, 2000, the jury convicted Appellant on all three counts of murder and all three counts of possession of a firearm during commission of a violent crime. The following day, the jury recommended Appellant be sentenced to death, citing the murder of two or more persons pursuant to one scheme or course of conduct as the statutory aggravator. The trial judge affirmed their recommendation and sentenced Appellant to death.

Although Burkhart often carried a sidearm (because, he testified, "I deal with money and liquor and I'm in a secluded location") ⁽¹⁾, he had never been hunting, but had become interested in learning to hunt in the weeks preceding these events. After the party broke up, Appellant, Shane, Stacy, and another friend drove around in the woods with their guns looking for deer. Apparently, the group saw and startled a deer at some point before deciding to go home. Shane took Appellant home and told him he could help him again with the septic tank on Saturday if necessary.

Apparently, Shane and Appellant agreed to go hunting the following morning. Appellant dropped Shane off and went home to prepare to go hunting. Appellant waited on Shane, but he never showed up. Appellant drove to Shane's house twice and knocked on the door, but got no answer. Assuming Shane fell asleep, Appellant drove to Paul Zastrow's house for coffee and then drove home to go to sleep.

That afternoon, Sunday, November 16, Shane and his wife Vicky had some friends over to watch car races on television. Appellant called Shane several times, and he and Paul Zastrow went over to the Walters' trailer around 4:00 p.m. Stacy came in from work a short time later. At some point, Shane, Stacy, and Appellant decided to go "four-wheeling" in Shane's truck. Appellant had his gun with him in case they went hunting, and Shane had his rifle. The three men were drinking and doing drugs at this time.

At some point, Tammy's sister, Danielle, came over. Some time later, Paul Zastrow contacted the group and asked if Appellant could bring him some beer from Traditions. Appellant agreed to do so, and he, Shane, and Danielle went by Traditions and then onto Zastrow's, where they did more drugs and drank with Zastrow and his girlfriend. While they were gone, Tammy testified that she and Stacy had sex and that the condom Stacy was wearing broke and they could not find it. ⁽²⁾

Shane, Danielle, and Appellant returned to Tammy's house until the party disbursed sometime after 5:00 a.m. Shane, Stacy, and Appellant left Tammy's house in Shane's truck. After they left her house, Shane drove them to Sonya Cann's house to pick her up. Sonya sat in the front of the truck between Shane and Appellant and Stacy sat on the backseat of the truck, behind Appellant on the passenger side. They drove around for a little while, eventually going up to an isolated kudzu field known to everyone in the truck but Appellant.

When we got to the top, we parked and I believe there was some beer opened and Sonya handed Stacy some, what I believed to have been some more methamphetamine. . . . Stacy was, was fixing it . . . on a CD case. And I said to Shane, I said, "Are there any deer here, where are the deer?" He didn't answer, but Sonya said, "There ain't no deer here, this is a scattering field.". . . I didn't know what to think of that. I guess I just let it go and didn't think much more about it. And I . . . started a conversation about the restaurant. Shane and I had talked about him knowing someone that could help me that wasn't a bank. And I asked him a little more about that. And he told me that he had that worked out and that I didn't have to worry about that. . . .That's when Stacy handed Shane a cassette case with some what I thought to be methamphetamine on it. . . . He held it for a moment and passed it to me. When I got it, it still had four lines or four piles of powder on it. . . . [O]n occasion when we had done drugs before, when I got it, there was only one line left on it. I thought it was strange that there were four and it had been passed through the other three. . . . As he passed it to me, he asked me if I had ever wronged anyone. And I said, "No, what do you mean by that?" Then he said, "Have you ever wronged your Uncle Ronnie?"

Appellant claims that this question "struck fear into [his] soul." Appellant and his father considered Ronnie, who had a reputation for being a somewhat ruthless drug smuggler, an enemy. ⁽³⁾ Appellant's testimony continued:

Shane Walters was shot six times, including one fatal wound to the back of the head. Stacy Walters was shot in the right temple and right cheek, either of which would have been fatal. Sonya Cann was shot three times, including fatal wounds to the right temple and through the left eye.

Once he was out of danger, Appellant claims he became concerned for the safety of his father and his wife. He left the kudzu field in Shane's truck and called his father from a cell phone. Appellant testified that he drove directly to his father's house, that he and his father got into his father's truck, and then drove to his own house to get his wife. Appellant told his wife that Ronnie had tried to kill him and that he had shot three people defending his life, describing it as a "scene out of Deliverance." ⁽⁴⁾ From his house, Appellant, his father, and his wife, drove to the Seneca Police Department.

Appellant claims to have told the police the same story he told at trial when he led them to the bodies later that morning, including the Deliverance "squeal like a pig" threat of homosexual rape. This is significant because Stacy Walters' autopsy later revealed he was wearing a condom at the time he was killed which Appellant could not have known when he took the police to the scene. The State speculated it was the same condom Stacy wore when he had sex with Tammy Steele earlier in the evening, but the defense argued this was highly unlikely as hours had passed since he had sex with Tammy, and that this fact corroborated Appellant's self-defense claim.

The judge did not charge the reasonable doubt instruction submitted by the defense. Defense counsel objected that the charge given did not comport with State v. Wiggins, 330 S.C. 538, 500 S.E.2d 489 (1998)(requiring the State to disprove self-defense beyond a reasonable doubt). The judge refused to add to the charge, finding the charge he had given to be sufficient in light of present law relating to burden of proof and self-defense. After the jury found Appellant guilty, defense counsel moved for a new trial, based once again on the judge's failure to "to charge that the state has the burden of proving beyond a reasonable doubt the absence of the elements of self-defense," citing Wiggins for support. The judge denied defense counsel's motion, relying on his earlier ruling.

In Wiggins, we specified for the first time, though not in the context of a jury charge, that the State has the burden of disproving self-defense. . . . When self-defense is properly submitted to the jury, the defendant is entitled to a charge, if requested, that the State has the burden of disproving self-defense by proof beyond a reasonable doubt. ⁽⁵⁾

State v. Addison, 343 S.C. 290, 293, 540 S.E.2d 449, 451 (2000). ⁽⁶⁾

In this case, the trial judge charged the jury on the four elements of self-defense pursuant to State v. Davis and, additionally, charged that the defendant did not have to prove self-defense and that the burden remained on the State at all times. The State argues that this charge, coupled with the other charges given by the judge, complied with Wiggins by conveying to the jury that all of the evidence, including evidence of self-defense, must be considered in the jury's calculation of reasonable doubt.

Under Wiggins and now Addison, when self-defense is properly submitted to the jury, the defendant is entitled to a charge, if requested, that the State has the burden of disproving self-defense by proof beyond a reasonable doubt. Addison; Wiggins. The instruction regarding burden of proof in this case did not reference the beyond reasonable doubt standard, required arguably since Davis, and without a doubt since Wiggins. Further, the instruction did not include any language indicating that the State must disprove Appellant's self-defense claim or, conversely, that the State must prove Appellant did not act in self-defense.

There is a difference between the charge given in this case and the charge required by Wiggins and now, if requested, by Addison. Charging that the State must disprove Appellant's self-defense claim is a vastly clearer description of the burden of proof than simply charging that the defendant does not need to prove self-defense, as the trial judge charged in this case. Charging that the State must disprove self-defense or, that the State must prove the elements of self-defense are not present, clearly places the burden on the State, as this Court intended. ⁽⁷⁾ Addison; Wiggins. In our opinion, the trial judge erred by not charging under Wiggins as requested by defense counsel immediately after the charges were given.

Appellant admitted to killing all three victims and relied entirely on self-defense at trial. In another case, the Court of Appeals found the judge's failure to give a requested charge to be prejudicial when the charge related to the "sole issue before the jury." Ellison v. Parts Distributors, Inc., 302 S.C. 299, 395 S.E.2d 740 (Ct. App. 1990). The Ellison court held prejudice resulted from the judge's failure to give a general charge on circumstantial evidence when the majority of evidence presented on payment, the sole issue in the case, was circumstantial. Because we consider the issue of self-defense versus murder to be the sole issue in this case, we find the trial judge's failure to properly instruct the jury on burden of proof to be prejudicial, warranting reversal. ⁽⁸⁾

Although the trial judge did charge that the burden was on the State and remains on the State, we do not believe that charge was adequate. Similarly, the fact that defense counsel enunciated the proper burden in his closing argument, telling the jury, "you must find the defendant not guilty unless the State proves to you beyond a reasonable doubt that each of the elements of self-defense do not exist in this case" does not adequately convey the State's burden. Clearly, the judge's instruction carries far more weight with the jury than defense counsel's word in his closing argument. We cannot assume the jury was able to connect the State's general burden to prove Appellant's guilt beyond a reasonable doubt to the trial judge's charge regarding self-defense when the judge failed to mention the reasonable doubt standard at all and only said the defendant did not have to prove self-defense. The trial judge's charge only implicitly placed the burden on the State, and that is not sufficient under Wiggins and Addison.

Self-defense was the most significant issue for the jury to decide. Appellant admitted to the killings on the stand at trial. His credibility and the relative burdens of proof surrounding self-defense were central to this case. In light of that conclusion, we find the trial judge's error was prejudicial to Appellant and constituted reversible error.

1. Appellant purchased a Colt .45 automatic - the gun he shot Shane, Stacy, and Sonya with - at a pawn shop a few years before this episode.