State v. Isaac

• Decision Date: 21 August 2013
• Docket Number: No. 27302.,27302.
• Citation: 405 S.C. 177,747 S.E.2d 677
• Parties: The STATE, Respondent, v. Greg K. ISAAC, Appellant. Appellate Case No. 2013–001464.
• Court: South Carolina Supreme Court

405 S.C. 177

747 S.E.2d 677

The STATE, Respondent,

v. Greg K. ISAAC, Appellant.Appellate Case No. 2013–001464.

No. 27302.

Supreme Court of South Carolina.

Submitted Aug. 7, 2013.

Decided Aug. 21, 2013.

Mark E. Schnee, of Columbia, for Appellant.

Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Senior Assistant Deputy Attorney General Donald J. Zelenka; Solicitor Daniel E. Johnson, and Deputy Solicitor Kathryn Campbell Hubbird; all of Columbia, for Respondent.

Chief Justice TOAL.

Appellant has appealed the ruling of the trial judge denying his request for a hearing to determine whether he was immune from prosecution under the Protection of Persons and Property Act (the Act).¹ This Court expedited this matter so that it could be decided without an excessive delay of the trial. We dismiss the appeal.

FACTS

On October 27, 2005, Tavares World, an acquaintance of Appellant's, asked Appellant to help him get money the victim owed to him. According to Appellant, he refused until World pointed a gun at him ² and threatened to kill him if he did not accompany World to the victim's apartment. Thereafter, Appellant agreed, and World gave him the .380 caliber handgun.

The victim was not at home when Appellant and World first arrived at the victim's apartment,³ so the pair waited in World's vehicle in the parking lot for fifteen to twenty minutes before seeing the victim returned home. After the victim returned, Appellant and World remained in the vehicle for an additional ten to fifteen minutes before again approaching the victim's apartment.

When Appellant and World subsequently arrived at the victim's apartment door, World beat on and kicked the door to the victim's apartment until it opened. World entered the victim's apartment yelling “where my money at?,” while Appellant initially remained outside. During the ensuing fight between World and the victim, Appellant entered the victim's apartment and attempted to intervene. When Appellant's attempts to diffuse the situation were unsuccessful, Appellant exited the victim's apartment but remained nearby, directly outside the apartment's door. Thereafter, Appellant saw World running from the victim's apartment with the victim chasing him. Although Appellant had not seen World or the victim draw a gun during the altercation, Appellant subsequently drew the .380 caliber handgun World had given him and shot the victim three times. The victim fell to the ground and died. World and Appellant then fled the apartment and were not apprehended until 2012. ⁴

Appellant was indicted for murder, first degree burglary, attempted armed robbery, and criminal conspiracy. At the beginning of trial, Appellant moved for a hearing to determine whether he was immune from prosecutionunder the Act. Despite Appellant's contention that he was not afforded a hearing, the able trial judge held a full hearing, at which Appellant testified, and determined the Act did not apply to this case as a matter of law. Specifically, the trial judge found the intent of the Act “is not to protect intruders and [afford] any immunity or protection to intruders or those who might enter the dwelling of another to commit a criminal act.” Accordingly, the trial judge denied Appellant's request for immunity.

APPEALABILITY

Appellant asserts the order of the trial judge denying his request for immunity under the Act is immediately appealable. We disagree.

The right to appeal a criminal conviction is conferred by section 14–3–330 of the South Carolina Code. In order to exercise the right to appeal, a defendant must come within the terms of the statute. State v. Miller, 289 S.C. 426, 427, 346 S.E.2d 705, 706 (1986). An order denying a request for immunity under the Act does not fall within any category of orders which are immediately appealable under section 14–3–330.

Pursuant to section 14–3–330, an immediate appeal may be taken in a law case from:

(1) Any intermediate judgment, order or decree in a law case involving the merits in actions commenced in the court of common pleas and general sessions, brought there by original process or removed there from any inferior court or jurisdiction, and final judgments in such actions; provided, that if no appeal be taken until final judgment is entered the court may upon appeal from such final judgment review any intermediate order or decree necessarily affecting the judgment not before appealed from;

(2) An order affecting a substantial right made in an action when such order (a) in effect determines the action and prevents a judgment from which an appeal might be taken or discontinues the action, (b) grants or refuses a new trial or (c) strikes out an answer or any part thereof or any pleading in any action;

(3) A final order affecting a substantial right made in any special proceeding or upon a summary application in any action after judgment; and

(4) An interlocutory order or decree in a court of common pleas granting, continuing, modifying, or refusing an injunction or granting, continuing, modifying, or refusing the appointment of a receiver.

This Court concluded in State v. Duncan, 392 S.C. 404, 709 S.E.2d 662 (2011), that an order granting a motion to dismiss on the ground that the defendant is immune under the Act is immediately appealable. Although we indicated in Duncan that an immediate appeal is allowed because the order is in the nature of an injunction, we now clarify that an order granting a request for immunity under the Act is immediately appealable because it is a final order in the case.⁵ However, an order denying a request for immunity is not a final order in the case.

An order involving the merits “must finally determine some substantial matter forming the whole or a part of some cause of action or defense.” Mid–State Distrib., Inc. v. Century Imp., Inc., 310 S.C. 330, 334, 426 S.E.2d 777, 780 (1993). An order denying an immunity request is not an order involving the merits in that it does not finally determine a substantial cause of action or defense. Accordingly, it is not immediately appealable under section 14–3–330(1).

Further, an order denying a motion to dismiss under the Act is not an interlocutory order or decree in a court of common pleas granting, continuing, modifying, or refusing an injunction or granting, continuing, modifying, or refusing the appointment of a receiver under section 14–3–330(4).

This Court has held that, generally, a criminal defendant may not appeal until sentence is imposed. See In re Lorenzo B., 307 S.C. 439, 439, 415 S.E.2d 795 (1992) (an order adjudicating a juvenile delinquent is not appealable until imposition of final judgment at the dispositional hearing); Parsons v. State, 289 S.C. 542, 542, 347 S.E.2d 504, 504 (1986) (denial of bail pending trial is not immediately appealable); Miller, 289 S.C. at 427, 346 S.E.2d at 706 (denial of a claim of double jeopardy is not immediately appealable); State v. Washington, 285 S.C. 457, 458, 330 S.E.2d 289, 289 (1985) (a conviction at a trial in absentia prior to imposition of sentence is not immediately appealable); State v. Dingle, 279 S.C. 278, 282, 306 S.E.2d 223, 225 (1983), abrogated on other grounds, Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990) (an order committing the defendant to the Department of Mental Health is not immediately appealable); State v. Hubbard, 277 S.C. 568, 569, 290 S.E.2d 817, 817 (1982) (the denial of a motion to suppress evidence is not immediately appealable); State v. Lockhart, 275 S.C. 160, 161, 267 S.E.2d 720, 720 (1980) (an order transferring jurisdiction over a juvenile from family court to general sessions court is not immediately appealable); State v. Parker, 267 S.C. 317, 323, 227 S.E.2d 677, 679 (1976) (the denial of a motion to quash an indictment is not immediately appealable).

As stated in State v. Hughes:

It is a bad practice, and generally condemned, to hear appeals by piecemeal, especially in criminal cases; for it is destructive of the prompt administration of justice, which is so essential to the peace of society. To allow appeals to be heard from such preliminary rulings would enable a party charged with the most serious crime always to secure a continuance, when otherwise not entitled to it, by simply moving to quash the indictment, and, when his motion is overruled, give notice of appeal from such ruling, and thereby stop the trial....

56 S.C. 540, 35 S.E. 214, 215 (1900).

The denial of a request for immunity under the Act is analogous to the denial of a motion to dismiss a criminal case on the ground of double jeopardy, which is not immediately appealable. Miller, 289 S.C. at 427, 346 S.E.2d at 706. Absent an unambiguous expression of legislative intent, we see no reason to alter settled law concerning appealability, which additionally would have the illogical effect of elevating a statutory immunity claim over one constitutionally based.

Appellant cites State v. Marin, 745 S.E.2d 148 (S.C.Ct.App.2013), for his argument that he cannot preserve the issue for review unless he immediately appeals the ruling of the trial judge in this matter. However, Marin does not require an immediate appeal from the denial of a request for immunity. That decision refers only to the fact that the determination is made prior to trial. The Marin decision does not purport to create a right to an immediate appeal when the circuit court determines a defendant is not entitled to immunity. Instead, any error in the denial of a request for immunity from prosecution may be raised on appeal after conviction and sentencing based on the plain language of section 14–3–330(1).

The concurring opinion claims the General Assembly clearly manifested its intent in the Act to dictate an immediate appeal from the denial of a motion for immunity, transforming the Act's purpose in finding an unmistakable expression of legislative intent to mandate an immediate appeal from the denial of an accused's...