The State v. Bryant

• Decision Date: 15 December 2010
• Docket Number: Opinion No. 4766
• Citation: The State v. Bryant, Opinion No. 4766 (S.C. App. Dec 15, 2010)
• Parties: The State, Respondent, v. Thomas T. Bryant, Jr., Appellant.
• Court: South Carolina Court of Appeals

The State, Respondent,

v. Thomas T. Bryant, Jr., Appellant.

Opinion No. 4766

STATE OF SOUTH CAROLINA In The Court of Appeals

Heard: November 3, 2010

Filed: December 15, 2010

Appeal From Richland County

Perry M. Buckner, Circuit Court Judge

REVERSED AND REMANDED

Chief 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, Assistant Attorney General Alphonso Simon, Jr., Solicitor Warren B. Giese, all of Columbia, for Respondent.

HUFF, J.:

Thomas T. Bryant, Jr. was convicted of murder in the death of Daniel Austin. Bryant appeals, asserting the trial judge erred in (1) refusing to admit into evidence a dispatch log of a 911 call and (2) refusing to instruct the jury on the defense of habitation. We reverse and remand for a new trial.¹

FACTUAL/PROCEDURAL BACKGROUND

The record shows Bryant is a paraplegic who is confined to a wheelchair. At the time of this incident, Bryant had been living at a Days Inn Hotel, located approximately 150 yards from the "Bottoms Up" nightclub. On the night of July 22, 1999, Bryant met Austin at the nearby nightclub. Austin, who was at the club with some other men from North Carolina, became friendly with Bryant. As the night wore on, both Bryant and Austin became intoxicated.

There is conflicting evidence on the relationship of the two men that evening and what occurred between them. An employee of the club characterized the two as being "very chummy," and observed no arguments, fighting, or violence between Bryant and Austin. According to Bryant, Austin and the two other men with Austin pressed Bryant to obtain some marijuana. Bryant told them "he did not do that" and informed them he did not know where to obtain any. At approximately 3:30 a.m. on July 23, 1999, Bryant and Austin left the nightclub. The nightclub employee testified that just before they left, Bryant had fallen from his wheelchair and the employee and Austin assisted Bryant back into the chair and helped him out the door. Austin then continued to help Bryant down the road toward the Days Inn, "pushing him along, still talking, still carrying on, having a good time." Bryant, however, testified he was attempting to leave the club by himself when Austin followed him in the parking lot and was on the back of his wheelchair, telling Bryant to let him help him.

Nellie Connell, the night auditor and desk clerk at the Days Inn, was working the night shift when in the early morning hours she observed a gentleman pushing Bryant in his wheelchair. According to Connell, the two men were laughing and talked "like two buddies." As she watched them, she saw Bryant fall out of his wheelchair when they hit a speed bump in the parking lot. The other gentleman then put Bryant back into his wheelchair.

Bryant testified he repeatedly told Austin he did not need his help. When Austin continued, Bryant stopped his chair and told Austin he did not want his help and Austin should leave him alone and let him go. Austin then pushed Bryant, causing him to almost fall from his chair. Austin and Bryant began swinging at each other and Bryant was knocked from his chair. Austin then picked Bryant up and placed him back in his wheelchair. As Bryant attempted to roll away, Austin grabbed the back of his chair and they argued again. As they rolled down the street, Bryant stopped again and told Austin to leave him alone, but Austin began cussing at Bryant, harassing him again for some drugs. Bryant stated another altercation ensued in which Bryant was again knocked from his chair, but this time Austin kicked Bryant in the face twice. Because he could not get away from Austin, Bryant finally "went along with it," and the two ended up outside Bryant's room at the Days Inn.

Bryant claimed he was scared to open the door to the room with Austin standing there because Austin had been pressing him for marijuana and they had been fighting. He attempted to stall in opening his door and Austin tried to snatch a pouch from him, which contained his room key, causing the contents of the pouch to fall to the ground. The two men cussed at each other, and Austin left, presumably to go to the front desk to obtain a room key. During this time, a gentleman named Mr. Hawkins walked through, and Bryant asked Hawkins to help him by "get[ting] somebody to call" because "they done beat me up and I feel like they're going to rob me." Bryant testified he referred to "they" because he was concerned one or two of the other men with Austin that night might be "hanging back waiting." Hawkins agreed to go to the desk and get the night clerk to call the police. Thereafter, Bryant found his key and opened the door to his room. Once he entered, but before he could shut his door, Austin came in the room behind him and shut the door. Bryant testified he did not invite Austin into his room and did not want him in there. Bryant maintained he was scared, as Austin then stated, "I'm going to kill you," and Austin had shut the door to the room. Bryant then opened a drawer to a nightstand and pulled out a pistol. When he turned around, Austin, who was "a good six feet in the door" was coming toward him, and he shot Austin "once[,]... twice, maybe a few more times." According to Bryant, Austin fell, got right back up, opened the door and ran from the room. Bryant dropped his pistol on his bed, retrieved a shotgun from his dresser, rolled out of the door and saw Austin standing in the breezeway. Bryant then started shooting Austin until his shotgun was empty.

Bryant further testified, at the time he saw Austin in the breezeway, "I had done had--I'm seeing red. I'm very angry, mad. I've been done like this--I was done like this for no reason. And when I seen him, I started shooting him, and I just--I just shot. I shot my shotgun 'til it was--I believe it was empty." Bryant explained he did not know if Austin had a weapon or not, but he was concerned Austin could get his weapon, and stated, "I was scared to death." Bryant stated, after having been treated the way he was, he was not thinking and recognized, "I was just seeing red because I'd done had enough. I'd done been beat, kicked and everything over something that I didn't even do." He claimed he did not plan on killing Austin, but he did so because he was scared for his life and did not feel he had any other options at that time, as he felt Austin was going to hurt him badly or kill him. Bryant further acknowledged that he was angry and he grabbed his shotgun, and when Austin fell and then jumped up and ran, he did not know if he had hit Austin, but he was scared because he believed another person was out there besides Austin.

When the authorities arrived, Austin was lying in the breezeway bleeding from gunshot wounds, and shots were being fired from Bryant's room. After a standoff lasting approximately twenty minutes, officers heard one final, muffled pistol shot. The officers entered Bryant's room and found Bryant on the floor with a self-inflicted gunshot wound to his stomach. Bryant was transported to the hospital for treatment, but Austin died at the scene.

An autopsy showed Austin suffered from birdshot and buckshot wounds, as well as three standard bullet gunshot wounds. Two of the standard bullets, consistent with a.32 caliber projectile, were recovered from the upper portion of the right side and just above the hip on the right side of Austin's body. The pathologist testified the most deadly or dangerous shot, and the cause of Austin's death, was the gunshot delivered to the upper portion of Austin's right side, which fractured a rib, passed through the right lung, ruptured the aorta, and passed through the left lung. He opined that after receiving this gunshot, about half of Austin's blood volume would have been immediately pouring out into his chest, his blood pressure would have dropped, he would start to lose consciousness, and within seconds he would have been on the ground. While a wound to Austin's left side, where shotgun pellets entered his left lung, would have been a dangerous wound, it was not fatal in an immediate manner as was the standard bullet wound to the right upper side of Austin's body. Had this fatal gunshot wound from the.32 caliber projectile occurred first, Austin would have been able to walk a short period of time, and it was not outside the realm of possibility that he could have run twenty feet.

Following presentation of all the evidence, the trial judge discussed the matters he intended to charge. Bryant noted he requested a charge on the defense of habitation.² The trial judge recognized Bryant had requested the charge but declined to include it in his instructions to the jury, noting he was charging, as part of the self-defense instruction, that a defendant had no duty to retreat while on his own premises before acting in self-defense and, in addition was charging "words accompanied by hostile acts, prior difficulties, age, prior violence by the victim, threats by the victim, no other way to avoid the danger, and then no duty to retreat if on your own premises, [and] degree of force continuing until the threat of harm is ended," finding defense of habitation was going to be covered by his charge. The trial judge thereafter charged the jury as he indicated and did not include the defense of habitation charge sought by Bryant.³ Bryant was convicted of murdering Austin and was sentenced to life imprisonment without parole. This appeal followed.

ISSUES

I. Did the trial judge err by refusing to instruct the jury on the defense of habitation because a self-defense instruction was not sufficient to cover this separate distinct defense when Bryant testified he was threatened in and around his hotel room and Bryant was entitled to this instruction under the facts of this case?

II. Did the trial judge err by refusing to admit evidence of a Richland County...