State v. Chhith-Berry
| Decision Date | 31 August 2022 |
| Docket Number | 5943,Appellate 2019-000352 |
| Parties | The State, Respondent, v. Nicholas Benjamin Chhith-Berry, Appellant. |
| Court | South Carolina Court of Appeals |
Heard February 17, 2022
Appeal From Lexington County Eugene C. Griffith, Jr., Circuit Court Judge
Appellate Defender Susan Barber Hackett, of Columbia, for Appellant.
Attorney General Alan McCrory Wilson, Deputy Attorney General Donald J. Zelenka, Deputy Attorney General J. Anthony Mabry and Senior Assistant Deputy Attorney General Melody Jane Brown, all of Columbia; and Solicitor Samuel R. Hubbard, III of Lexington, all for Respondent.
Nicholas Benjamin Chhith-Berry appeals his convictions for murder and possession of a weapon during the commission of a violent crime.
Chhith-Berry contends the trial court erred by (1) denying him immunity from prosecution pursuant to the Protection of Persons and Property Act; (2) prohibiting a witness from testifying about the details of the deceased shooting two people four months prior to his death; (3) refusing to give an imperfect defense jury instruction; and (4) failing to grant his motion for a mistrial due to premature jury deliberations. We affirm.
On May 11, 2014, Adam Berry drove his girlfriend Kayla Bass and his brother Nicholas Chhith-Berry to Kathy Polk's residence in South Congaree to pick up Bass's child. When they arrived, Jamie Galloway, Polk's son and the father of Bass's child, confronted Berry about driving while intoxicated with his child in the car. According to Chhith-Berry, Galloway spit in Berry's face. Chhith-Berry exited the vehicle and told Galloway to stop disrespecting his brother. Galloway responded by punching Chhith-Berry in the face, which knocked Chhith-Berry to the ground. After Chhith-Berry got up, he pulled a knife out of his pocket and moved towards Galloway. According to Polk, she got between Galloway and Chhith-Berry and told Chhith-Berry to put the knife away. Chhith-Berry put the knife away, got back into Berry's vehicle, and left with Berry, Bass, and Bass's child.
Later that day, Berry, Bass, and Chhith-Berry took Bass's child to Bass's mother's house. After hearing about the altercation with Galloway, Bass's mother, Tonya Griffin told the group that if they felt something was wrong they should call the police and let them handle it. According to Griffin, Chhith-Berry replied Chhith-Berry also began messaging his friends asking for a burner[1] and .22 rounds. In some of the messages, Chhith-Berry stated he had to take care of a problem and specifically referenced Galloway punching him.
About a week later, Berry, Bass, and Chhith-Berry returned to Polk's house to drop off Bass's child. According to Polk, she apologized for the way Galloway acted.
Polk recalled that Chhith-Berry responded,
On May 19, 2014, Berry, Bass, and Chhith-Berry picked up Kaysha Fontenot[2] and went to her residence in the Pine Ridge area of Lexington County. The four began socializing and drinking alcohol. Later, the mother of Berry's children, Haley Stone,[3] arrived at Fontenot's house but remained sober. Fontenot also invited Galloway over without telling him the others were there.
Katie Leavitt, who described Galloway as a "good friend," drove Galloway to Fontenot's house. Leavitt parked in the driveway and remained in the car while Galloway walked up to Fontenot's house. Galloway briefly entered Fontenot's house then walked back outside. Fontenot followed Galloway out of her house, and the two tried to have a conversation in the driveway; however, Bass interrupted and physically confronted Galloway. After Berry separated Bass from Galloway and Fontenot, Bass began verbally harassing Leavitt. Eventually, Leavitt exited her car and began fighting Bass; Fontenot then began fighting Leavitt. When the fight ended, Leavitt got into her car and drove away.
Galloway became angry with Bass because she caused Leavitt to leave, and Bass physically confronted Galloway again. Galloway asked Berry to intervene, but Berry declined to do so. Galloway eventually pushed Bass away from him, which caused her to fall to the ground. Berry then confronted Galloway, and Galloway responded by punching Berry in the face. Berry retaliated and the two exchanged a couple of punches each while wrestling their way onto Fontenot's porch.
Eventually, Galloway got on top of Berry in the corner of Fontenot's porch, and the two continued to exchange blows. While Galloway was on top of Berry, Chhith-Berry took his knife out of his pocket and stabbed Galloway. Fontenot called 911 and performed CPR on Galloway, but he bled to death. An autopsy revealed Galloway sustained twenty-five stab wounds from an object with a sharp edge: twenty-one to his back, two to the back of his head, one just below his right ear, and one to the front of his upper left arm.
Berry and Chhith-Berry got into Berry's vehicle and attempted to leave Fontenot's house, but a patrol officer for Pine Ridge responding to Fontenot's 911 call arrived and prevented Berry and Chhith-Berry from leaving. The officer exited his vehicle, drew his gun, and ordered Berry and Chhith-Berry to get out of the vehicle and lay face down in front of it. Berry complied immediately, but Chhith-Berry told the officer to "go ahead and shoot [me]" before he complied with the officer's orders. The officer then placed Berry and Chhith-Berry in handcuffs, and paramedics treated them at Fontenot's residence.
One paramedic noted Chhith-Berry had "dried blood covering [his] face, neck, arms, lower legs[,] and clothes"; however, the only wounds he located on Chhith-Berry were two lacerations at the base of his little fingers. Chhith-Berry initially told paramedics he was sober before he admitted that he had consumed five shots, a few liquor drinks, marijuana, and "a bar-and-a-half" of Xanax. Chhith-Berry also initially stated he did not know how his fingers had been cut before he claimed he sustained the injuries defending himself and Berry from a knife attack by Galloway. Officers read Chhith-Berry his Miranda[4] rights and transported him to Lexington County Medical Center for further medical treatment. Unsolicited, Chhith-Berry told the officer detaining him that Galloway was fighting Berry and he was defending his brother.
Once investigators arrived at the hospital, they reread Chhith-Berry his Miranda rights and recorded their conversation. Chhith-Berry's story had several inconsistencies and changed several times. Investigators stopped the interview and went to talk to Berry; when they returned to Chhith-Berry's room, they woke him up and resumed questioning him. Chhith-Berry continued to change his story and contradict himself and other witnesses' accounts of events at both Polk's residence and Fontenot's residence. After interviewing Berry again, officers placed Chhith-Berry under arrest for murder and transported him to Lexington County Detention Center.
While in jail, Chhith-Berry called his mother and spoke to her and Berry. During the recorded phone call, Chhith-Berry said he was not going to "watch[ his] brother get his ass kicked," expressed his dislike for Galloway for "think[ing] he was all hard and shit," bragged that he "fucked that boy up," and stated that he believed Galloway deserved to be dead. Berry told Chhith-Berry that he did not need to stab Galloway and that "it didn't need to go that far." In November 2014, a grand jury indicted Chhith-Berry for murder and possession of a weapon during the commission of a violent crime; his jury trial began on December 12, 2016.[5]
At a pretrial hearing, Chhith-Berry moved for immunity from prosecution pursuant to section 16-11-440(C) of the South Carolina Code (2015).[6] During his immunity hearing, Chhith-Berry testified that he was scared when Galloway arrived at Fontenot's residence because he was much smaller than Galloway,[7] and Galloway had previously beaten him up at Polk's residence. Chhith-Berry also testified he feared Galloway because he knew Galloway was out on bond for two attempted murder charges for shooting two people. Chhith-Berry claimed Galloway liked to brag about his charges and told Chhith-Berry he "just wanted to shoot someone."
Regarding the night Galloway died, Chhith-Berry recalled that Galloway took his shirt off and began hitting Berry after the fight between the girls ended, but he could not recall what instigated the fight between Galloway and Berry. Chhith-Berry testified that he believed Berry was in danger of losing his life or sustaining great bodily injury because Berry's face was bleeding, Galloway continued to hit Berry, and Berry was "trapped on the porch." Chhith-Berry admitted he stabbed Galloway once in the shoulder blade with his knife to defend Berry and stated Galloway collapsed to the side, which allowed Berry to stand up.
Chhith-Berry explained his memory of what happened after he stabbed Galloway was "just kind of a blur." Chhith-Berry recalled that Galloway stopped fighting but also testified Galloway was still moving and could have gotten up to fight. Chhith-Berry also stated Berry hit Galloway when he stood up but could not remember whether Berry stabbed Galloway. Chhith-Berry could not account for the other twenty-four stab wounds.
After hearing Chhith-Berry's testimony, which was the only evidence presented at the immunity hearing, the trial court denied his motion for immunity.[8] The trial court ruled that Chhith-Berry did not prove "by a preponderance of the evidence that he needed to continue to defend his brother . [because] he was...
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