State v. John McCarty ( 2022 )

THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
v.
John W. McCarty, Petitioner.
Appellate Case No. 2021-000062
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal From Pickens County
Letitia H. Verdin, Circuit Court Judge
Opinion No. 28116
Heard June 8, 2022 – Filed September 21, 2022
REVERSED AND REMANDED
Appellate Defender Susan Barber Hackett, of Columbia,
for Petitioner.
Attorney General Alan McCrory Wilson, Deputy Attorney
General Donald J. Zelenka, Senior Assistant Deputy
Attorney General Melody Jane Brown, Assistant Attorney
General Michael G. Ross, and Assistant Attorney General
Julianna E. Battenfield, all of Columbia; and Solicitor
William Walter Wilkins III, of Greenville, for
Respondent.
CHIEF JUSTICE BEATTY: John W. McCarty ("Petitioner") was charged
with murder and possession of a weapon during the commission of a violent crime.
Petitioner maintained he acted in defense of another and filed a motion seeking
immunity from criminal prosecution pursuant to the South Carolina Protection of
Persons and Property Act ("Act").1 After a pretrial hearing, the circuit court denied
the motion, and Petitioner was subsequently tried and convicted as charged. On
appeal, Petitioner challenged the circuit court's ruling as to immunity, and the court
of appeals affirmed in State v. McCarty, 2020-UP-269 (S.C. Ct. App. filed Sept. 23,
2020). This Court has granted a petition for a writ of certiorari to consider
Petitioner's arguments that (1) the court of appeals erred in failing to hold the circuit
court abdicated its role as the fact-finder by ruling a jury, not the court, must decide
whether the individual Petitioner was defending was without fault in bringing on the
difficulty; and (2) this Court should conclude Petitioner is entitled to immunity. We
agree with Petitioner as to the first issue, but hold the issue of immunity should be
decided in the first instance by the circuit court. As a result, we reverse the decision
of the court of appeals and remand the matter to the circuit court to make the
necessary findings.
I. FACTS
The charges against Petitioner arose from the July 15, 2015 shooting death of
Mitchell Bradley. Petitioner moved for immunity under the Act on the basis he acted
in defense of Randy Wilson, his partner of nearly thirty years. The circuit court held
a pretrial hearing on the motion on February 23, 2017, at which Petitioner, Wilson,
Jacob Kirk, and two deputies from the Pickens County Sheriff's Office testified. As
the circuit court ultimately noted in its ruling on the motion, many of the core facts
were not in dispute.
Petitioner and Wilson shared a mobile home owned by Wilson in Liberty,
South Carolina. Less than two years before the 2015 altercation, they allowed
Bradley's brother, Jacob Kirk, to begin living with them rent-free in exchange for
Kirk helping Wilson with household chores and errands. Wilson had recently
stopped working due to increasing pain and physical impairment from injuries
suffered as a teenager in 1980, including a broken neck, and Petitioner still worked
full-time, so Wilson wanted assistance with activities around the home. Wilson
1
See S.C. Code Ann. §§ 16-11-410 to -450 (2015).
knew Kirk and his family because he had worked for Kirk's grandfather until his
physical condition deteriorated.
On the evening of July 15, 2015, Bradley, who was in his twenties, was at the
home visiting his brother. Petitioner testified Kirk appeared to come home from
work in a bad mood, and Kirk acknowledged that he began drinking as soon as he
got home from work, sometime between 5:00 p.m. and 5:30 p.m. Later in the
evening, Bradley and Kirk were drinking together on the porch, and Kirk came inside
to get something to eat. By that time, Wilson and Petitioner had already eaten and
Petitioner had gone to bed, so Wilson placed several plates of leftovers for Bradley
and Kirk in the microwave. Wilson was on the phone talking to his niece when Kirk
came in.
An argument began between Kirk and Wilson when Kirk interrupted Wilson
several times to ask about the leftovers while Wilson was on the phone. Kirk, who
was admittedly intoxicated (Kirk conceded that he and his brother, Bradley, had
consumed "at least" ten or more beers each and were "drunk"), began talking loudly
to Wilson, asking him questions about how to "divvy up" the plates of food.
According to Wilson, he told Kirk, "[C]an't you see I'm on the phone[?]" Kirk
then got angry and hit or bumped Wilson on the shoulder. Kirk began yelling at
Wilson and allegedly stated during their argument that he "was going to slice
[Wilson] up." Kirk began packing his belongings, but Bradley also "started getting
mouthy," so Wilson told Bradley that he needed to leave the home, as he did not live
there, and Bradley refused. Wilson called 9-1-1 for assistance. While waiting on
law enforcement, Wilson went outside to repair Kirk's truck so Kirk would have a
way to carry all of his belongings.2
Kirk's recollection also was that his statements to Wilson over the food are
"what sparked everything." Kirk acknowledged that he "was furious" with Wilson
and that he could be heard screaming in the background during the recording of
Wilson's 9-1-1 call. Kirk testified he was screaming at Wilson because he "was
2
Kirk testified that, although his truck was not running, his brother had a car they
could have used, but one of the reasons they did not leave immediately was because
they were both too drunk to drive. Kirk also testified that, in hindsight, he and his
brother should have left the premises, adding, "The whole argument started over
nothing."
trying to do more of an intimidating type of thing showing him [Wilson] that I'm not
afraid of him . . . ."
One of the deputies who responded to the 9-1-1 call testified that he noticed
all three men involved in the dispute, Wilson, Kirk, and Bradley, appeared to be
grossly intoxicated. Petitioner, however, was asleep in his bedroom. The deputy
concluded the men had been involved in an argument over food and that Wilson
wanted Bradley to leave, but Kirk wanted him to stay. The deputy informed Wilson
that, because Kirk was a resident, he did not believe he could make his invited guest
(Bradley) leave.3 Although the deputy testified everyone appeared to be "chill"
during their conversation, he recalled that as he left, he heard Wilson shout out to
him that he was going to have to come back to the home.
The evidence at the hearing indicates the argument resumed within minutes
after the deputies left and turned into a physical altercation between Wilson and
Bradley. Kirk acknowledged that after the officers left, he went over to Wilson while
Wilson was working on his (Kirk's) truck and told him, "[S]ee, just because it's your
property doesn't mean that you get to control everything that goes on here." Kirk
testified that this upset Wilson, who then threw down the tool that he was using and
began "shuffling" through Bradley's cigarettes and cigarette tubes. According to
Kirk, Bradley became upset and grabbed Wilson and told Wilson to "stop f'ing with
my S, Randy," and Wilson allegedly grabbed Bradley at the same time. However,
Bradley then shoved Wilson down the outside stairs leading to the porch and the
back door of the home. The force broke several of the steps and Wilson's foot.
Kirk testified he noticed Wilson held onto the hand railing and appeared to
struggle to go back up the stairs to the home after he was pushed down, but at that
time he did not realize Wilson had sustained any broken bones and thought his gout
was hurting him. Kirk contended Wilson "smacked" a beer off of the hand railing
as he made his way up the steps and that this angered Bradley, who began "popping
[Wilson] in the face" with his hand as Wilson screamed for help from Petitioner.
Kirk stated he did not believe Bradley struck Wilson with "serious force," and opined
that his brother "was slapping [Wilson], trying to . . . incite him to throw the first
3
Although we need not address this point for our decision today, we note that, while
Kirk resided at the home, the home was owned by Wilson. Cf. State v. Douglas, 411
S.C. 307, 322, 768 S.E.2d 232, 240–41 (Ct. App. 2014) ("A man who attempts to
force himself into another's dwelling, or who, being in the dwelling by invitation or
license refuses to leave when the owner makes that demand, is a trespasser . . . ."
(quoting State v. Bradley, 126 S.C. 528, 533, 120 S.E. 240, 242 (1923))).
punch." Kirk recalled Bradley "kept on popping" Wilson and said to Wilson, "What
you hollering for [Petitioner] for?" At that point, he saw Petitioner come to the door,
and he (Kirk) yelled to his brother that Petitioner had a gun. Kirk stated Petitioner
fired a shot at the floor once and pushed on the door but did not come outside.
Petitioner then shot at Bradley twice, striking him.
Wilson testified he was working on Kirk's truck after the officers left and at
one point he accidentally knocked over Bradley's beer that was sitting near the
engine.4 Wilson stated Bradley grabbed him by the arm but then went and got
another beer, so he thought the interaction was over. When Wilson finished working
on the truck, he proceeded to go up the steps to the home's porch, but Bradley shoved
him down the stairs, breaking two of the steps and bones in his foot. Wilson testified
he tried to get back up the stairs by gripping the hand railing and, in doing so, he
knocked over a beer left sitting on the hand railing. Wilson stated he was trying to
get back inside the home, but Bradley pushed him down and he could not get inside
the home, so he started screaming for help from Petitioner. Wilson testified Kirk
did not try to stop the altercation and instead was inciting his brother with his
comments, which intensified Bradley's anger. Wilson acknowledged that he had
some liquor that evening, but he stated he was not drinking heavily like the two
younger men.
Wilson testified that he was concerned for his life and safety as his neck was
fragile due to both his prior surgery for a broken neck and his osteoporosis condition,
and his neck was being twisted roughly by Bradley during the altercation. Wilson
recalled Petitioner ran to the kitchen and fired a warning shot at the floor, but Bradley
did not stop, so Petitioner fired again, striking Bradley. Wilson then administered
CPR to Bradley. Wilson stated he believed Petitioner prevented him from sustaining
serious bodily injury or death. Wilson's testimony was supplemented with
photographs taken at the scene showing him with blood running down both of his
legs and one leg that was badly swollen from the break he sustained from being
pushed down the stairs.
As outlined above, Kirk's testimony substantially tracked Wilson's, but he
indicated Wilson intentionally tossed around Bradley's beers and cigarettes. Kirk
stated he did not view Wilson as fragile and would have stepped in if he thought the
fight was getting serious. Kirk stated he thought Wilson and Bradley "needed to
fight" and that Bradley did not get physical until Wilson allegedly "started messing
with his [Bradley's] belongings," which he described as his "cigarettes, tobacco,
4
Kirk testified the interaction at the truck either did not happen or he missed it.
beer." Kirk stated: "I know those all aren't things to get upset about. But to some
people, it's an attack to their character." When he was asked if he wanted to see
Wilson to get hurt that evening, Kirk stated: "Not like serious injury. I wanted to
see him fight it out." At another point when he was asked why he did not try to
break up the fight between his brother and Wilson, Kirk admitted, "I was okay with
it happening." Importantly, Kirk ultimately agreed that Wilson "was trying to get
away, trying to get back in the house and [Bradley] wasn't letting him do that."
Petitioner testified that he was in bed when the first 9-1-1 call occurred that
evening, and an officer came to his room and stated the situation was under control
and there was no reason to get up. Petitioner stated he later woke up upon hearing
Wilson screaming his name and pleading for help in an unusually high-pitched,
piercing tone of voice that he had never heard before, so he "knew there was
something seriously wrong." Petitioner stated he grabbed his handgun and went
towards the door and saw Bradley holding Wilson, so he fired a warning shot
towards the floor, but Bradley did not stop "swinging" at Wilson. Petitioner tried to
kick open the door, but the door was blocked by Bradley and Wilson on the other
side, so he shot through the window, striking Bradley. Petitioner stated his intent
was only to wound Bradley, not kill him. Petitioner stated he believed he had no
choice but to act immediately to defend Wilson to prevent him from being seriously
hurt or killed by Bradley.
A deputy with the forensics unit of the Pickens County Sheriff's Office
confirmed Bradley died from two gunshot wounds that entered the right side of his
chest. The deputy testified the wounds were consistent with the bullets being fired
through a window before hitting Bradley. He also confirmed that a shot was fired
into the floor of the kitchen area, inside the rear door to the home.
The circuit court took the matter under advisement and thereafter issued a
written order denying Petitioner's motion for immunity. Petitioner proceeded to trial
and was convicted as charged. The court of appeals affirmed without oral argument
in an unpublished opinion issued pursuant to Rule 220(b), SCACR. Petitioner
asserts error to this Court in the denial of his motion for immunity.
II. STANDARD OF REVIEW
"Circuit courts utilize pretrial hearings to determine whether a defendant is
entitled to immunity under the Act, employing a preponderance of the evidence
standard." State v. Cervantes-Pavon, 426 S.C. 442, 449, 827 S.E.2d 564, 567 (2019).
This Court, in turn, reviews an immunity determination for an abuse of discretion.
Id. "An abuse of discretion occurs when the [circuit] court's 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).
III. DISCUSSION
A. Circuit Court's Role as Fact-Finder
Petitioner's first point asserts the court of appeals erred in upholding the denial
of his motion for immunity because the circuit court abdicated its role as the fact-
finder when it ruled a jury, not the court, must decide whether the individual
Petitioner was defending was without fault in bringing on the difficulty. To address
this point, we shall consider (1) the Act and developing case law regarding its
application, and (2) the role the circuit court played in Petitioner's case.
(1) The Act and its Application
The "Stand Your Ground Law," as the Act is informally known, was enacted
by the South Carolina General Assembly in 2006 and provides a person "is immune
from criminal prosecution and civil action for the use of deadly force" in
circumstances that are permitted by the Act or by another provision of law. S.C.
Code Ann. § 16-11-450(A) (2015). By its terms, the Act does not apply to the use
of deadly force against law enforcement officers. Id.We have observed that "[t]he Act codified the common law Castle Doctrine
and extended its reach.'' State v. Glenn, 429 S.C. 108, 117, 838 S.E.2d 491, 495
(2019) (citing S.C. Code Ann. § 16-11-420(A)). "Under the Castle Doctrine, '[o]ne
attacked, without fault on his part, on his own premises, has the right, in establishing
his plea of self-defense, to claim immunity from the law of retreat, which ordinarily
is an essential element of that defense.'" Id. at 117, 838 S.E.2d at 495–96 (alteration
in original) (quoting Jones, 416 S.C. at 291, 786 S.E.2d at 136).
The General Assembly has stated it is "its intent to provide the protections of
the Act to persons within their own home facing not only unwelcome intruders but
also 'attackers,' including those who are initially invited into the home and later place
the homeowner in reasonable fear of death or great bodily injury." State v. Douglas,
411 S.C. 307, 331, 768 S.E.2d 232, 245 (Ct. App. 2014) (citing S.C. Code Ann. § 16-
11-420, "Intent and findings of General Assembly"). The Act defines "great bodily
injury" as "bodily injury which creates a substantial risk of death or which causes
serious, permanent disfigurement, or protracted loss or impairment of the function
of a bodily member or organ." S.C. Code Ann. § 16-11-430(2).
In section 16-11-440, the General Assembly has set forth the circumstances
justifying the use of deadly force. S.C. Code Ann. § 16-11-440. While some parts
of this statute, such as subsection (A), address forcible intrusions at residences,
Bradley was initially an invited guest before he reportedly attacked Wilson.
Consequently, Petitioner sought immunity under subsection (C), which generally
provides that one who is not engaged in unlawful conduct and who is "attacked in
another place where he has a right to be"5 has no duty to retreat and may use deadly
force if he reasonably believes it is needed to (1) prevent death or great bodily injury
to himself or another, or (2) prevent the commission of a violent crime. We
emphasize the General Assembly's use of the word "prevent" because it underscores
the Act's protective focus; its terms do not require the undesirable harms to occur
before defensive action is justified. Subsection (C) provides in full as follows:
(C) A person who is not engaged in an unlawful activity
and who is attacked in another place where he has a right
to be, including, but not limited to, his place of business,
has no duty to retreat and has the right to stand his
ground and meet force with force, including deadly
force, if he reasonably believes it is necessary to
prevent death or great bodily injury to himself or another
person or to prevent the commission of a violent crime as
defined in Section 16-1-60.[6]
Id. § 16-11-440(C) (emphasis added).
This Court has previously recognized that, while the Act clearly affords
immunity from prosecution, it contains no procedures or standards for its
implementation. As a result, the Court has found it necessary, in a series of
decisions, to fill such gaps judicially, where the General Assembly has not specified
the procedures legislatively. See State v. Duncan, 392 S.C. 404, 409, 709 S.E.2d
662, 664 (2011) ("Whether immunity under the Act should be determined prior to
5
The phrase "another place where he has a right to be" may also include a residence.
Jones, 416 S.C. at 295, 786 S.E.2d at 138.
6
Section 16-1-60's definition of a "violent crime" includes such offenses as assault
and battery of a high and aggravated nature ("ABHAN") and an attempt to commit
ABHAN or another violent offense. See S.C. Code Ann. § 16-1-60 (Supp. 2021);
see also id. § 16-1-80 (2015) ("A person who commits the common law offense of
attempt, upon conviction, must be punished as for the principal offense.").
trial is an issue of first impression in this state. Further, the Act does not explicitly
provide a procedure for determining immunity."); State v. Manning, 418 S.C. 38, 43,
791 S.E.2d 148, 150 (2016) ("Neither the Act, nor Duncan, sets forth a specific type
of hearing or procedure to be followed when a criminal defendant claims immunity
under the Act."); State v. Cervantes-Pavon, 426 S.C. 442, 452 n.4, 827 S.E.2d 564,
569 n.4 (2019) ("While the Act does not require a written order upon an immunity
determination, specific findings of fact and conclusions of law are critical to
reviewing courts, particularly given the gravity of the circumstances these cases
necessarily involve.").
In Duncan, one of our earlier decisions, we made several fundamental
determinations as matters of first impression. We found the Act requires a pretrial
ruling by the circuit court—and did not simply create a new affirmative defense—
because the General Assembly has expressly provided an individual will be
"immune from criminal prosecution." Duncan, 392 S.C. at 410, 709 S.E.2d at 665.
We further determined in Duncan that the circuit court should utilize a
preponderance of the evidence standard of proof when considering whether a
defendant is entitled to immunity under the Act, and an appellate court should review
the circuit court's ruling to determine if it is supported by the evidence. Id. at 411,
709 S.E.2d at 665.
Thereafter, in the 2013 case of Curry, we found it necessary to "interpret what
we believe[d] to be the legislative intent regarding a trial court's authority to weigh
the underlying claim of self-defense in determining an accused's entitlement to
immunity." Curry, 406 S.C. at 371, 752 S.E.2d at 266. We concluded a defendant
must show, by a preponderance of the evidence, that he has a valid claim of self-
defense and reasoned the circuit court must, therefore, consider all of the elements
of self-defense—except the duty to retreat:
Consistent with the Castle Doctrine and the text of the Act,
a valid case of self-defense must exist, and the trial court
must necessarily consider the elements of self-defense
in determining a defendant's entitlement to the Act's
immunity. This includes all elements of self-defense, save
the duty to retreat.
Id. (emphasis added); accord Jones, 416 S.C. at 300–01, 786 S.E.2d at 141. We
noted there are four elements to establishing a claim of self-defense, as outlined
below:
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.[7] 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.
Curry, 406 S.C. at 371 n.4, 752 S.E.2d at 266 n.4 (quoting State v. Davis, 282 S.C.
45, 46, 317 S.E.2d 452, 453 (1984)). We reiterated, however, that "[i]t is the fourth
element—the duty to retreat—that is excused under the Act and the Castle Doctrine."
Id.The same year Curry was published, the Court addressed what it characterized
as "dicta" appearing in the Duncan decision regarding the procedure for appeal in
immunity cases. See State v. Isaac, 405 S.C. 177, 185, 747 S.E.2d 677, 681 (2013).
Specifically, we clarified that, while the grant of a motion for immunity is
immediately appealable because it is a final order that ends the case, the denial of a
motion is distinguishable because it is not a final order ending the case and,
consequently, the denial of a motion for immunity is not immediately appealable.
Id. at 182–85, 747 S.E.2d at 679–81. In addition, we determined there was no
evidence of legislative intent that the Act apply retroactively, so we found the
protections of the Act did not extend to a case where the underlying incident
occurred prior to the Act's effective date. Id. at 186–87, 747 S.E.2d at 681–82.
7
The reference to a reasonable belief of imminent danger echoes language in the
Act. We have observed that an individual has the right to act on appearances, even
if that belief is ultimately mistaken. State v. Scott, 424 S.C. 463, 472, 819 S.E.2d
116, 120 (2018). However, the belief must be objectively reasonable. Douglas, 411
S.C. at 328, 768 S.E.2d at 244.
More recently, the Court revisited the Act and concluded the circuit court
should perform a proximate cause analysis when considering the requirements in
subsection 16-11-440(C) that the person attacked must be someone who was "not
engaged in an unlawful activity" and was in a "place where he ha[d] a right to be."
See State v. Glenn, 429 S.C. 108, 124, 838 S.E.2d 491, 499 (2019) ("We [] hereafter
require circuit courts during pretrial Duncan hearings to conduct a proximate cause
analysis before determining whether a person seeking immunity under the Act
satisfies subsection 16-11-440(C), if applicable.").
We explained that "analyzing a defendant's 'right to be' in a place where he is
attacked under [sub]section 16-11-440(C) without considering proximate cause or a
causal connection to the incident leaves an innocent person's ability to seek the Act's
protection up to happenstance, which we [] do not believe was the intent of the
Legislature." Id. at 119–20, 838 S.E.2d at 497. Further, we found "a proximate
cause analysis must also be applied to the unlawful activity element of subsection
(C)." Id. at 120, 838 S.E.2d at 497; see also id. at 120 n.4, 838 S.E.2d at 497 n.4
("Here, the circuit court properly applied a proximate cause analysis to examine
whether Glenn was engaged in unlawful activity at the time of the incident. In its
oral ruling, the court found Glenn was not engaged in any unlawful activity—despite
the fact he was carrying an illegal weapon at the time of the shooting—because his
possession was not the proximate cause of the incident.").
(2) Circuit Court's Role in Petitioner's Case
Turning to Petitioner's case, we note the circuit court conducted a pretrial
Duncan hearing on Petitioner's motion for immunity and later issued a written order
denying the motion. In its order, the circuit court correctly cited Duncan for
Petitioner's burden of proof—a preponderance of the evidence—and acknowledged
both the law of self-defense and the legal principle that a person has the right to act
in defense of another person if the person being protected would have had the right
to kill the assailant in self-defense.
The circuit court summarized the evidence presented at the hearing and
observed that "the core facts are largely uncontested." However, the circuit court
stated, "Despite the general consensus regarding the basic facts, there was some
dispute as to the cause and nature of the argument between Wilson, Kirk, and
Bradley." The circuit court concluded Petitioner failed to meet his burden of
showing that he had the right to act in defense of another "because he did not prove
that Wilson was without fault in bringing about the difficulty."8
The circuit court explained the evidence was conflicting on this particular
element, so it presented "a quintessential jury question" that must be decided by a
jury, citing this Court's decision in Curry:
Whether or not a defendant is without fault in
bringing on the difficulty presents 'a quintessential
jury question' which is 'not a situation warranting
immunity from prosecution.' Curry, [406 S.C. at 372,]
752 S.E.2d at 267. Since the Defendant, claiming to have
acted in defense of Wilson, is only entitled to immunity if
Wilson was entitled to act in self-defense, it becomes a
material question as to whether Wilson was at fault in
bringing about the difficulty. As a matter of law, one is
not entitled to act in defense of others if the other person
provoked the encounter and therefore would not be
entitled to act in self-defense. See State v. Jackson, [384
S.C. 29,] 681 S.E.2d 17 (S.C. Ct. App. 2009). The
evidence presented conflicting views as to Randy
Wilson's involvement in the argument that led to the
fatal encounter, and that presents a factual question
that must be answered by a jury.
(Emphasis added.) The circuit court's ruling was issued in early 2017 and, as noted
above, it relied on a 2013 decision from this Court, Curry.
Subsequent decisions from this Court, however, have distinguished Curry on
the basis the immunity motion in Curry was made at the directed verdict stage of
trial because the parties did not have the benefit of the Court's decision in Duncan
calling for a pretrial hearing and ruling. The Court has since clarified that a conflict
in the evidence does not automatically warrant the denial of immunity. Rather, the
circuit court must weigh the evidence and make its own credibility and factual
findings before reaching a decision as to immunity. See, e.g., State v. Andrews, 427
S.C. 178, 181, 830 S.E.2d 12, 13 (2019). In Andrews, the Court acknowledged that
8
The circuit court found it need not consider the remaining elements of self-defense
because the first element was dispositive.
the reference to a "quintessential jury question" in Curry "has been the source of
much confusion for the bench and bar":
In Curry, we explained the accused's 'claim of self-defense
presented a quintessential jury question,' which did not
warrant immunity from prosecution, and therefore, we
held the claim was properly submitted to the jury, with the
claim of self-defense having been fully presented at that
stage of trial. 406 S.C. at 372, 752 S.E.2d at 267. This
excerpt from Curry has been the source of
much confusion for the bench and bar. We take this
opportunity to emphasize that aspect of Curry was
related to its specific and unique procedural posture at
trial—a motion for directed verdict—and was not
intended to allow circuit courts to automatically deny
immunity in cases with conflicting evidence.
Id. (emphasis added). In Andrews, we also referenced the guidance provided in
another decision that distinguished Curry, State v. Cervantes-Pavon, 426 S.C. 442,
827 S.E.2d 564 (2019).
In Cervantes-Pavon, this Court reversed the circuit court's denial of a motion
for immunity and remanded for a new immunity hearing based on multiple errors of
law, including the circuit court's misapplication of Curry. 426 S.C. at 451–52, 827
S.E.2d at 569. We noted that, in Curry, the testimony of the witnesses "varied
substantially," as the defendant testified that he pulled a gun because he believed the
victim was lunging at him, but the evidence showed the victim was shot six times in
the back and the defendant had told investigators that he "blacked out" during the
incident. Id. at 451, 827 S.E.2d at 569.
We reiterated, however, that conflicts in the evidence do not automatically
result in the denial of immunity because the role of the circuit court in immunity
proceedings is to sit as the fact-finder in the first instance and to weigh the evidence:
But just because conflicting evidence as to an immunity
issue exists does not automatically require the court to
deny immunity; the court must sit as the fact-finder at this
hearing, weigh the evidence presented, and reach a
conclusion under the Act. Of course, at the conclusion of
any given hearing, if the circuit court determines the
movant has not met his burden of proof as to immunity,
the case will go to trial, and the issue of self-defense
may—depending upon the evidence presented at trial—be
presented to the trial jury.
Id. "Thus, the relevant inquiry is not merely whether there is a conflict in the
evidence but, rather, whether the accused has proved an entitlement to immunity
under the Act by a preponderance of the evidence." Andrews, 427 S.C. at 181, 830
S.E.2d at 13.
Moreover, in examining the issue of self-defense, we note that, even if a
circuit court finds an individual was initially at fault in bringing on the difficulty,
there are circumstances in which the right to self-defense may be restored. See State
v. Bryant, 336 S.C. 340, 345, 520 S.E.2d 319, 322 (1999) ("One's right to self-
defense is restored after a withdrawal from the initial difficulty with the victim if
that withdrawal is communicated to the victim by word or act." (emphasis added)).
In the current case, Petitioner has argued, inter alia, that even if Wilson were
somehow considered the initial aggressor for disturbing Bradley's belongings, which
he vigorously contests, it was undisputed that Wilson tried to retreat to his home
during the altercation, but was physically prevented from doing so by Bradley, a
point Petitioner asserted was confirmed by Kirk's own testimony at the hearing. As
a result, Petitioner maintains that, because Wilson had communicated his withdrawal
from the altercation by his actions, Wilson's ability to claim self-defense would have
been reinstated, and Petitioner would not have been precluded from asserting a claim
of defense of another.
Although the circuit court summarized the evidence that was presented at the
pretrial hearing and observed that the "core facts" were undisputed, it never engaged
in a weighing of the evidence, and it did not make any specific credibility or factual
findings as to any aspect of the testimony, including the arguments concerning
Wilson's alleged withdrawal from the altercation. Instead, the circuit court appeared
to conclude Petitioner failed to meet his burden of showing Wilson was not at fault
in bringing on the difficulty because the evidence in this regard was conflicting and,
therefore, presented a "quintessential jury question," relying on the precedent of
Curry. Our review of the record indicates the State also focused on Curry at the
immunity hearing and extensively asserted the evidence was conflicting and required
submission of the matter to a jury. For all the foregoing reasons, we hold Petitioner
correctly argues in his first point to this Court that the circuit court committed an
error of law in ruling on the motion for immunity because it abdicated its role as the
fact-finder by ruling a jury, not the court, must decide whether the individual
Petitioner was defending was without fault in bringing on the difficulty.
We emphasize that a circuit court, as the designated fact-finder in this matter,
must provide adequate findings to support its decision so an appellate court can
perform its role of reviewing the ruling under an abuse of discretion standard. See
Cervantes-Pavon, 426 S.C. at 452 n.4, 827 S.E.2d at 569 n.4 (stating "specific
findings of fact and conclusions of law are critical to reviewing courts, particularly
given the gravity of the circumstances these cases necessarily involve"). Further,
the ruling must be based solely on the evidence presented at the pretrial hearing. Id.
at 452–53, 827 S.E.2d at 569 ("[W]e agree with our sister state of Georgia that, 'while
the trial court's pretrial immunity ruling and the jury's verdict on a claim of self-
defense may apply the same statutory justification standard, the court's ruling must
be based solely on the evidence presented at a pretrial hearing, while the jury's
verdict must be based solely on the evidence presented at trial, which may be
considerably different.'" (citation omitted)). In the current appeal, there are no
specific findings by the circuit court to enable this Court to adequately undertake its
appellate review.
Further, although the court of appeals cited several recent cases from this
Court distinguishing Curry and clarifying the appropriate procedure for deciding an
immunity motion, the court of appeals did not adequately apply them to Petitioner's
appeal before issuing an unpublished opinion under Rule 220(b), SCACR, which
affirmed the circuit court's ruling. In contrast, in an unrelated appeal, the court of
appeals was able to properly analyze the circuit court's denial of immunity, where
the circuit court weighed the evidence and made findings on the salient points, and
the court of appeals considered whether the evidence supported those findings. Cf.
State v. Marshall, 428 S.C. 11, 20, 832 S.E.2d 618, 623 (Ct. App. 2019) ("In the
instant case, the circuit court found numerous inconsistencies called Marshall's
credibility into question and resulted in Marshall failing to establish entitlement to
immunity by the preponderance of the evidence."); id. at 21, 832 S.E.2d at 623
("Based upon our review of the record, we find the circuit court properly weighed
the evidence presented and did not abuse its discretion in denying immunity under
the Act."). As a result, we hold the court of appeals erred in upholding the circuit
court's denial of Petitioner's motion for immunity.
B. Decision Regarding Immunity
Although Petitioner's second point asks the Court to hold that he is entitled to
immunity based on the current record, we conclude a remand to the circuit court is
necessary because the circuit court is in the best position to assess witness credibility
and make the necessary findings of fact. See generally State v. Glenn, 429 S.C. 108,
123, 838 S.E.2d 491, 499 (2019) ("The circuit court is the fact-finder in immunity
hearings, and we are reluctant to infer findings of fact which do not appear in the
record."); State v. Douglas, 411 S.C. 307, 316, 768 S.E.2d 232, 238 (Ct. App. 2014)
("[T]he abuse of discretion standard of review does not allow [an appellate] court to
reweigh the evidence or second-guess the trial court's assessment of witness
credibility.").
In this particular case, although we find a remand to the circuit court is needed,
we leave it to the circuit court's discretion to determine whether to issue a new order
based on the record of the hearing it has already conducted, or whether to conduct a
new immunity hearing before issuing a ruling. In either case, the circuit court shall
make specific findings supporting its determination after considering all of the
procedures outlined herein regarding the proper application of the Act.
IV. CONCLUSION
The decision of the court of appeals is reversed, and we remand the matter to
the circuit court for further proceedings in accordance with this decision.
REVERSED AND REMANDED.
KITTREDGE, HEARN, and FEW, JJ., and Acting Justice Blake A. Hewitt,
concur.