State v. Slater, 3855.

• Decision Date: 09 August 2004
• Docket Number: No. 3855.,3855.
• Citation: 602 S.E.2d 90,360 S.C. 487
• Parties: The STATE, Respondent, v. Byron B. SLATER, Appellant.
• Court: South Carolina Court of Appeals

360 S.C. 487

602 S.E.2d 90

The STATE, Respondent, v. Byron B. SLATER, Appellant.

No. 3855.

Court of Appeals of South Carolina.

Heard April 7, 2004.

Filed August 9, 2004.

Rehearing Denied September 23, 2004.

Assistant Appellate Defender Robert M. Dudek, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, and Senior Assistant Attorney General William Edgar Salter, III, all of Columbia; and Solicitor Ralph E. Hoisington, of Charleston, for Respondent.

BEATTY, J.

Byron Slater appeals his conviction on a murder charge, alleging, inter alia, that the trial court erred in failing to charge the jury on self-defense. We reverse and remand.

FACTS

Appellant Byron Slater was with some friends on the evening of February 3, 2001, at a school gymnasium where there had been a dance. Following the dance, Slater went outside, where he started talking with "some females." While there, he became aware of a disturbance near a truck. Slater walked to his car, retrieved a gun, and started to walk toward the truck.¹ Slater then changed his mind. He walked back toward his car, where three friends, Ellis Judon (the driver), Kenyon Nichols, and Deshawn Brown, were waiting for him. Moments later, Slater noticed that another disturbance was taking place in an adjacent parking lot and wanted to see what was going on. Slater asked Judon to drive there.² In that second parking lot, an apparent robbery was unfolding. The victim was on the ground, being stomped by five men. Slater knew neither the victim nor his attackers.

Slater testified that he walked up to the robbery and surprised one of the attackers. The man then turned around and pointed a gun toward Slater. Slater quickly turned around and started running back toward his car. As he ran, he heard a gunshot and responded by shooting his own gun behind him. Slater got into the car where his friends were waiting for him.³ He continued shooting in the air as the car pulled away. In the ensuing chaos, the victim of the attempted robbery lay dying on the ground. He had been shot twice.

Back in the car, Slater said that he thought he had "hit" someone. Slater and his three friends drove to Slater's house, where Slater left the gun. The four then went back to the parking lot where the shooting had occurred. On the way, the police stopped them and searched the car but did not find any weapon.

Early the next morning, detectives from the city of North Charleston went to Slater's residence to arrest him. Following the arrest, they obtained a search warrant for Slater's house. The detectives recovered various ammunitions from Slater's yard and from inside his house, including two guns, some projectiles, bullets, and shell casings. At the police station, Slater told the police that he "didn't shoot anybody." However, a ballistics expert testified at trial that the fatal bullets came from Slater's gun, as did the ones retrieved from the crime scene. Additionally, numerous witnesses placed Slater at the crime scene with a gun. Slater himself admitted to shooting his gun, but insisted that he did not mean to shoot anyone. The jury convicted Slater of murder, though the trial judge had included a manslaughter option in the jury charge.⁴ The trial judge expressly refused to include a self-defense charge.

ISSUES

I. Did the trial judge err in refusing to include a self-defense charge, reasoning that Slater had brought about the difficulty?

II. Did the trial judge err in allowing the victim's mother to testify that her son did not have a criminal record?

III. Did the trial judge err in allowing a detective to testify that an eyewitness to the crime had denied hearing any gunshot other than Slater's?

LAW/ANALYSIS

Slater argues that the trial judge committed reversible error in refusing to include a self-defense charge. We agree.

The evidence presented at trial determines the law to be charged. State v. Goodson, 312 S.C. 278, 280, 440 S.E.2d 370, 372 (1994). If there is any evidence in the record to support self-defense, the issue should be submitted to the jury. State v. Burkhart, 350 S.C. 252, 261, 565 S.E.2d 298, 302 (2002); State v. Hill, 315 S.C. 260, 261, 433 S.E.2d 848, 849 (1993). A trial judge's failure to do so is reversible error. State v. Day, 341 S.C. 410, 416, 535 S.E.2d 431, 434 (2000). Additionally, "[c]urrent law requires the State to disprove self-defense, once raised by the defendant, beyond a reasonable doubt." Burkhart, 350 S.C. at 261, 565 S.E.2d at 303 (citing State v. Wiggins, 330 S.C. 538, 544, 500 S.E.2d 489, 494 (1998)). For a defendant to argue self-defense, the record must demonstrate that "(1)[he] was without fault in bringing on the difficulty; (2) [he] actually believed he was in imminent danger of losing his life or sustaining serious bodily injury; (3) a reasonably prudent person of ordinary firmness and courage would have entertained the same belief; and (4)[he] had no other probable means of avoiding the danger." State v. Chatman, 336 S.C. 149, 153, 519 S.E.2d 100, 102 (1999). Moreover, "[o]ne who provokes or initiates an assault cannot escape criminal liability by invoking self-defense." State v. Bryant, 336 S.C. 340, 345, 520 S.E.2d 319, 322 (1999). However, a defendant can restore his right to self-defense if he withdraws from the conflict and communicates that decision to the opponent. Id.

Here, there was some evidence to support a self-defense charge. Slater maintains that when he approached the altercation between the victim and his attackers, an attacker pointed a gun at Slater. Slater then turned and ran. While running away, Slater heard gunshots and returned fire, not looking in the direction where he was firing. Slater testified, "when I walked up on him, I guess I surprised him and he turned to me and he had a gun in his hand. And I see his gun and I started running." He added, "Yeah, when I walked up on him like here, like he turned to me, like had the gun pointed at me like he surprised." Additionally, Mark Nelson, a friend of the victim, testified that he saw one of the attackers — someone other than Slater — with a gun.

The State insists that Slater bears some responsibility for the tragedy because he was in unlawful possession of a gun and carried that gun into the altercation. However, the mere unlawful possession of a firearm, with nothing more, does not automatically bar a self-defense charge. See State v. Burriss, 334 S.C. 256, 262, 513 S.E.2d 104, 108 (1999)

(explaining that "a person can be acting lawfully, even if he is in unlawful possession of a weapon"). As importantly, Slater testified that he turned and started to run away from the attacker holding the gun. Therefore, even if Slater initially contributed to the difficulty, that he turned and ran away would restore his right to self-defense. See Bryant, 336 S.C. at 346,

520 S.E.2d at 322 (explaining that an appellant's attempt to leave the scene of a confrontation would signal that the "appellant truly intended to withdraw" from the situation). See also State v. Rogers, 320 S.C. 520, 525, 466 S.E.2d 360, 363 (1996) (reasoning that Rogers faced no overt threat because his opponent was moving away from him and said nothing to evince a threat).

The dissent contends that Slater "provoked a conflict by running toward an altercation while conspicuously holding a cocked and loaded gun." The record provides otherwise. Slater testified, "I walked up on [the attacker] ... [the gun] was by my side... in my right hand." That testimony is uncontroverted. The dissent apparently assumes that (1) one of the attackers saw Slater's gun; (2) was afraid for his own safety; and (3) started to shoot as a result. That scenario is plausible, but the record fails to establish it.⁵ It is just as likely that Slater's gun was inconspicuous, especially given that the regrettable events of that evening occurred when "it was pretty dark" and that Slater had his gun by his side.

Citing Bryant, the dissent argues that "Slater failed to effectively communicate his intent to withdraw" to the attacker with the gun. We disagree. In Bryant, the victim apparently caught the appellant breaking into the victim's truck. Id. at 343, 520 S.E.2d at 321. The two struggled, and the appellant stabbed the victim to death with a screwdriver. Id. at 344, 520 S.E.2d at 321. The appellant argued that he was entitled to a self-defense charge because he had dropped his knife to the ground before the fight began. Id. According to him, that gesture indicated his intent to withdraw and restored his right to self-defense. Id. Our supreme court rejected the argument.

The court initially found that the appellant brought on the difficulty because the attempted break-in was "in violation of law and reasonably calculated to produce the occasion." Id. at 345, 520 S.E.2d at 322. The court clarified, however, that, "`[i]f, after commencing the assault, the aggressor withdraws in good faith from the conflict and announces in some way to his adversary his intention to retire, he is restored to his right of self-defense.'" Id. (citation omitted). In that case, the appellant himself admitted that the victim did not see him drop the knife, and therefore could not have known about the alleged withdrawal. The court reasoned, as said earlier, that "[i]f appellant truly intended to withdraw he could have easily left the open parking lot." Id. at 346, 520 S.E.2d at 322.

Here, Slater merely walked toward the altercation; he threatened or assaulted no one.⁶ More importantly, Slater immediately "turned and ran" after seeing the attacker's gun. Slater did exactly what the supreme court looked for in Bryant: he left — quickly.

Admittedly, as the dissent posits, the attacker may have thought that Slater was withdrawing simply "to gain [some] tactical advantage." However, our task is not to determine the attacker's state of mind....