State v. Glenn, Appellate Case No. 2018-001478

• Citation: 429 S.C. 108,838 S.E.2d 491
• Decision Date: 18 December 2019
• Docket Number: Opinion No. 27935,Appellate Case No. 2018-001478
• Court: United States State Supreme Court of South Carolina
• Parties: The STATE, Respondent, v. Marquez Devon GLENN, Petitioner.

429 S.C. 108

838 S.E.2d 491

The STATE, Respondent,

v.Marquez Devon GLENN, Petitioner.

Appellate Case No. 2018-001478

Opinion No. 27935

Supreme Court of South Carolina.

Heard October 29, 2019

Filed December 18, 2019

Rehearing Denied March 12, 2020

Christopher Todd Brumback and John Hampton Scully, both of Brumback & Langley, LLC, and Roy F. Harmon, III, of Harmon & Major, all of Greenville, for Petitioner.

Attorney General Alan McCrory Wilson ; John Benjamin Aplin, of SC Department of Probation, Parole and Pardon Services, both of Columbia, and Solicitor William Walter Wilkins, III, of Greenville, for Respondent.

JUSTICE HEARN :

We granted Marquez Devon Glenn's petition for a writ of certiorari to determine whether the court of appeals erred in affirming the circuit court's denial of immunity from prosecution under the Protection of Persons and Property Act ("the Act"), S.C. Code Ann. §§ 16-11-410 to 450 (2015). State v. Glenn , Op. No. 2018-UP-169 (S.C. Ct. App. filed Apr. 25, 2018). We reverse the decision of the court of appeals and remand for a new immunity hearing.

FACTUAL/PROCEDURAL BACKGROUND

On the evening of April 12, 2013, Petitioner Marquez Glenn was invited to the Spring Grove apartment complex in Taylors, South Carolina by tenants Shelricka Duncan and Kiana Grayson. Glenn, along with his brother, Tivarious Henderson, and two others went to Shelricka's apartment to "chill." Once there, Glenn drove one of Shelricka's friends to the store in her car, since she had been drinking and he had not.

While Glenn was at the store, Kevin Bruster showed up at the apartment uninvited, despite having been put on trespass notice less than twenty-four hours before due to an incident between him and his ex-girlfriend, Gloria Duncan, Shelricka's mother. Kevin was heavily intoxicated and forced his way into the apartment, yelling that he was going to kill Gloria. When Shelricka attempted to stop him, he hit her, and Tivarious intervened. Kevin then pulled a razor blade from his mouth, cutting Tivarious across the eye. Tivarious and another friend managed to get Kevin outside, where he ran off.

Kevin went to another apartment in the complex where his nephew, Elfonso Bruster, was visiting family, and he begged Elfonso to help him retrieve his moped, which he had left at Shelricka's apartment the day before. Around the same time, Glenn returned to Spring Grove with a bag from the convenience store, and Kiana waived him over to her apartment to warn him of what had happened in his absence. Glenn went to Kiana's apartment to get change back from money he had given her to buy a pizza, and he set his bag down there. Upon returning to the complex, Glenn was approached by the police who reported to the scene as a result of Kevin's altercation with Tivarious. The police officers asked Glenn whether he knew anything about the altercation, and he told them he knew nothing because he had been at the store. At that time, Tivarious got into Glenn's car and parked it in front of Kiana's apartment.

While Glenn was speaking with the officers, he noticed Kevin and Elfonso lurking in the shadows of a nearby apartment building. After speaking with the police, Glenn retrieved his belongings from Kiana's apartment to depart from Spring Grove. While walking to his car, Kevin and Elfonso abruptly approached him, blocking his way. Glenn believes Elfonso asked him, "who jumped my m----r f-----g uncle?" to which he replied that he did not know because he had gone to the store.¹ Glenn then recalls Kevin saying, "Alf, let's do what we said -- what you just said we came to do. You said we gonna get one of these n-----s in this white Lincoln right here, we gonna get all these n-----s right here, so let's do what we came to do." Kevin then punched Glenn in the throat/neck, splashing the alcoholic drink he was carrying into his eyes.

The attack caused Glenn to stumble back and knocked him off balance. As he wiped the alcohol from his eyes and his vision cleared, Glenn saw Elfonso pulling something from his waistband and heard a female yell "GUN!" There was testimony by female witnesses nearby that they did not see a gun, but others present at the scene testified Elfonso had a gun, that he was known to carry a gun, and that his movements near his waistband indicated he was pulling a gun. At that moment, Glenn pulled out a handgun concealed in his pants pocket and fired three shots in Elfonso's direction. The shots rendered Elfonso paralyzed from the waist down. After the shooting, Glenn got in the car, pulled up to a nearby officer, and told him that he had just been in an altercation with two guys and that Elfonso was bleeding and needed help. There is conflicting testimony as to whether Glenn told the officer he was the shooter.

Glenn was charged with attempted murder and possession of a weapon during a violent crime. He filed a pretrial motion for statutory immunity under the Protection of Persons and Property Act, which the circuit court denied. Ruling from the bench, the court denied Glenn immunity from prosecution, finding that "the immunity argument fails solely on the issue of whether or not he had a right to be there." The court reasoned that Glenn did not have a right to be where he was at the time of the incident because he was on the apartment complex's no trespass list, and therefore, was a trespasser. According to testimony the State presented at the immunity hearing, Glenn had been placed on trespass notice, recorded on a list maintained by the Greenville County Sheriff's Office, for loitering on the property three years ago after his family had been evicted. Glenn's grandmother, who resided at the complex at the time of the incident, had no knowledge of this and disputed whether he was ever on such a list. However, the court found Glenn was not involved in any unlawful activity, notwithstanding the fact he was carrying an illegal weapon at the time of the shooting, and that his possession of the weapon was not the proximate cause of the incident. From the judge's oral ruling, it does not appear that he made any findings of fact or conclusions of law with respect to the elements of self-defense. Rather, during the immunity hearing, he steered counsel away from arguing the elements of self-defense and focused only on whether Glenn had the right to be there.

Following the circuit court's denial of immunity, Glenn was tried by a jury, convicted of assault and battery of a high and aggravated nature and possession of a weapon during a violent crime, and sentenced to twelve years and five years' imprisonment, respectively, to be served concurrently. Glenn appealed his convictions to the court of appeals, which affirmed the circuit court's order in an unpublished per curiam opinion, finding Glenn was not in a place where he had a right to be because he was a trespasser and declining to address other issues on appeal as unpreserved. We granted Glenn's petition for a writ of certiorari to review the decision.

ISSUES PRESENTED

1. In light of this Court's decision in State v. Scott ,² did the court of appeals err in affirming the circuit court's denial of immunity under the Act, when Glenn proved by a preponderance of the evidence all of the elements of the common law of self-defense?

2. Did the court of appeals err in affirming the circuit court's denial of immunity under the Act solely on the determination that Glenn was not in a place where he had a "right to be"?³

STANDARD OF REVIEW

A defendant's entitlement to immunity from prosecution under the Protection of Persons and Property Act must be decided pretrial using a preponderance of the evidence standard. State v. Duncan , 392 S.C. 404, 410-11, 709 S.E.2d 662, 665 (2011). This Court reviews an immunity determination for abuse of discretion. State v. Curry , 406 S.C. 364, 370, 752 S.E.2d 263, 266 (2013). A trial court abuses its discretion when its ruling is based on an error of law, or when grounded in factual conclusions, is without evidentiary support. State v. Jones , 416 S.C. 283, 290, 786 S.E.2d 132, 136 (2016).

LAW

There are four elements a defendant must establish to justify the use of deadly force under the common law of self-defense:

First, the defendant must be without fault in bringing on the difficulty. Second, the defendant must have actually believed he was in imminent danger of losing his life or sustaining serious bodily injury, or he actually was in such imminent danger. Third, if his defense is based upon his belief of imminent danger, a reasonably prudent man of ordinary firmness and courage would have entertained the same belief. If the defendant actually was in imminent danger, the circumstances were such as would warrant a man of ordinary prudence, firmness and courage to strike the fatal blow in order to save himself from serious bodily harm or losing his own life. Fourth, the defendant had no other probable means of avoiding the danger of losing his own life or sustaining serious bodily injury than to act as he did in this particular instance.

State v. Dickey , 394 S.C. 491, 499, 716 S.E.2d 97, 101 (2011). See also Curry , 406 S.C. at 371 n. 4, 752 S.E.2d at 266 n. 4 (citing State v. Davis , 282 S.C. 45, 46, 317 S.E.2d 452, 453 (1984) ).

In 2006, the South Carolina General Assembly promulgated the Protection of Persons and Property Act to provide immunity from prosecution to persons acting in defense of themselves or others if they are found to be justified in using deadly force. S.C. Code Ann. § 16-11-450 (2015) ; Curry , 406 S.C. at 371, 752 S.E.2d at 266. The Act codified the common law Castle Doctrine and extended its reach. S.C. Code Ann. § 16-11-420(A) (2015) ("It is the intent of the General Assembly to codify the common law Castle Doctrine which recognizes that a person's home is his castle and to extend the doctrine to include an occupied vehicle and the person's place of business"). "Under the Castle Doctrine, ‘[o]ne attacked, without fault on his part, on his own...