State v. Kierin M. Dennis ( 2024 )

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Respondent,
v.
Kierin Marcellus Dennis, Appellant.
Appellate Case No. 2019-001486
Appeal From Lexington County
Eugene C. Griffith Jr., Circuit Court Judge
Opinion No. 6082
Heard November 26, 2024 – Filed August 14, 2024
Withdrawn, Substituted, and Refiled October 30, 2024
REVERSED AND REMANDED
Chief Appellate Defender Robert Michael Dudek,
Appellate Defender Lara Mary Caudy, and Appellate
Defender Adam Sinclair Ruffin, all of Columbia, for
Appellant.
Attorney General Alan McCrory Wilson, Deputy
Attorney General Donald J. Zelenka, Senior Assistant
Deputy Attorney General Melody Jane Brown, and
Assistant Attorney General Julianna E. Battenfield, all of
Columbia, and Solicitor Samuel R. Hubbard III, of Lexington,
for Respondent.
THOMAS, J.: Kierin Marcellus Dennis appeals his conviction for murder,
arguing the trial court erred in (1) relying on evidence from a prior immunity
hearing and mistrial; (2) denying him immunity under the Protection of Persons
and Property Act (the Act) 1; (3) finding he had a duty to retreat under the Act; (4)
finding self-defense was a jury issue; (5) finding he had a duty to avoid going to a
place he had the right to be; (6) admitting an aerial photograph; and (7) admitting a
model car door that was misleading. We reverse and remand.
FACTS
Dennis, at the time a recent graduate of Lexington High School (LHS), was
indicted for murder based on the stabbing of a student from the rival school, Dutch
Fork High School (DFHS), after a basketball game on February 17, 2014. The
stabbing occurred in the parking lot of a Cook-Out restaurant while Dennis was in
his vehicle. A pre-trial hearing on Dennis's entitlement to immunity under the Act
was held in November of 2014 before the Honorable Thomas Russo (the first
immunity hearing). Dennis and numerous LHS students testified, generally
supporting Dennis's claim of immunity. Numerous DFHS students testified,
generally not supporting the claim.
By order filed February 10, 2015, the court denied Dennis's request for immunity
under the Act, finding Dennis had not met his burden of proving the victim was in
the process of entering, or had entered, Dennis's vehicle. In addition, the court
found Dennis's allegation of such an entry or attempt to enter was not credible.
The court also concluded Dennis failed to establish the elements of self-defense.
Thus, the court denied Dennis immunity under the Act.
Dennis was tried in October of 2016. The jury deadlocked, was given an Allen2
charge, and remained deadlocked after more than ten hours of deliberation. The
Honorable Eugene C. Griffith Jr. declared a mistrial.
1
The Act is informally known as the "Stand Your Ground Law" and was enacted
by the South Carolina General Assembly in 2006 to provide 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. See
S.C. Code Ann. § 16-11-450(A) (2015); State v. McCarty, 437 S.C. 355, 366, 878
S.E.2d 902, 908 (2022).
2
Allen v. United States, 164 U.S. 492, 501 (1896) (defining the jury charge used to
encourage a deadlocked jury to reach a verdict).
In June of 2017, Dennis again filed a motion for immunity under the Act. Dennis
argued there was new evidence by Elizabeth Bettini and a manager at Cook-Out,
neither of whom were related to either school and both of whom witnessed the
events. Dennis also alleged there was new evidence from the pathologist, which
was introduced at trial, and new evidence of a 911 recording never produced at
trial and evidence from Ervin Meggett, a friend of the victim, who told
investigators in August of 2016 that the victim was the aggressor. At a hearing on
the motion held in August of 2017 before the Honorable Robert E. Hood (the
second immunity hearing), Dennis argued he was entitled to a new hearing based
on the new witnesses and evidence. He also argued the previous trial was a
mistrial, final, and "we start all over again."
The court refused to allow Dennis a new immunity hearing; however, it ruled
Dennis could proffer the new testimony. Dennis called new witnesses to support
his claim of immunity. Officer Caitlin Voravudhi, of the Lexington County Police
Department, testified she responded to a call at the Cook-Out the night in question
and there were approximately forty students there. With her vehicle camera
recording and audio being recorded from a microphone she wore, she began
interviewing people. She identified Bettini as one of the people and took a
statement. Bettini stated she was in the drive-through, saw about thirty teenagers
in the parking lot, heard cussing and screaming, and witnessed Dennis's vehicle
stop. She stated she then heard him yell, saw a guy ran to his vehicle and throw a
drink at him, and then saw about ten male teenagers run toward the vehicle, which
then pulled out. A small car then followed it. She called 911 and saw a third car
leave. Voravudhi never verified the 911 call, stating she passed the statements on
to an investigator. On her recording, a voice can be heard stating, "I saw
everything that happened" and "Somebody threw a drink." An employee of Cook-
Out can be heard saying he came out for a break and saw someone throw a cup at
and lean into Dennis's vehicle. Voravudhi also got a statement from the Cook-Out
employee, Zachary Lynch, in which he stated he saw a guy in a white shirt walk to
Dennis's car, "reach[] in the car as if to stab somebody." Lynch then saw another
guy walk up to the vehicle and throw a cup, followed by two guys getting in the
vehicle and the vehicle then leaving.
Janice Edwards Ross was qualified as an expert in forensic pathology. Based on
the direction of the knife wound, she testified the victim could have been leaning
over at the time he was stabbed. She opined the victim would have had to have
been bent over, almost parallel to the ground. She also opined there were many
scenarios that would have fit the wound, including if the victim had been standing,
the knife would have had to come up and down and if the victim had been stooped
over, it would have had to "go kind of straight parallel to the ground." Ross
testified it depended on how much the window was down and how tall the victim
was as to whether someone leaning in the window was consistent with the autopsy
findings.
Bettini testified she turned into Cook-Out and saw three kids in the road,
describing "they did not have happy faces." She looked to her right and saw
between thirty and forty teenagers, "hollering, cussing, [and] acting crazy." She
saw Dennis's SUV drive up, but kids blocked the road and called the driver names,
saying "I'm gonna f***ing kick your ass." They were running at his car and
throwing drinks at it. Bettini testified she called 911 and told the dispatcher there
was about to be a fight and when the car got stopped, the kid looked scared to
death. Bettini was afraid the students would hurt Dennis. She denied seeing a
knife, and told the dispatcher, "I just told you that I saw Cook[-]Out trays and a
drink being thrown . . . ." She next told the dispatcher she heard sirens, which she
assumed was why the kids backed away from Dennis's vehicle and he took off.
She testified she heard Dennis say either, "Y'all leave me the f*** alone," or "get
the f*** away from me." She described the kids as constantly moving around his
car and the scene as complete chaos. She assumed the reason Dennis did not leave
was because he would have run students over. She also testified that once the
police were on the scene, some of the students still in the parking lot were "cussing
[her] out and telling [her] that [she was] trying to get their friend in trouble . . . ."
She concluded, "All I remember is I looked at [Dennis's] face. He was stopped and
there [were] kids and they would not let him leave the parking lot." Bettini wrote
her statement as requested and never heard from anyone again until two years later
when the first trial was about to begin. At that time, the police called her and
asked her not to speak to the media if she was contacted. She next met with the
solicitor and was told the 911 tape had been lost.
Lynch testified he was working at Cook-Out that night and gave a statement
similar to Bettini's statement. When he heard people yelling, "He just got
stabbed," Lynch thought it was Dennis who got stabbed by the victim because the
victim leaned in the car window, hand forward. Lynch gave a second statement
the following morning. He described the victim leaning in with his right hand, not
his whole body but from his stomach up. He testified the window was "quite low"
but up a little bit. Lynch testified Dennis could have left, but he probably would
have run somebody over.
The first 911 call was from the restaurant manager. A 911 Computer Aided
Dispatch (CAD) event was created. The second 911 call was from Bettini;
however, no CAD event was created. Nikki Rodgers, of Lexington County 911,
testified her office received the calls the night of the incident. She explained some
calls were left off the relevant CAD report because the calls were associated with
different addresses. Years later, her office received a request for information on
calls that night and used a management information system that found eight
relevant calls. Several of the eight calls, including Bettini's, were not recorded.
The State recalled Alexis Brunson and Devon Chatman, of DFHS. Dennis
objected, arguing if the court was going to rely on the transcript of the first
immunity hearing for Dennis's witnesses, the State should not have the opportunity
to present its witnesses in person for the second immunity hearing. The court
allowed the State to continue.
The court then heard arguments on the merits of Dennis's motion, which it
described as "a motion to essentially have a second stand your ground hearing . . .
." By order filed October 16, 2017, the court denied the motion for immunity,
finding Dennis was not without fault in bringing on the difficulty because he
sought out the DFHS students, chose the situation, and chose not to leave via the
other exits available to him. The court also found the testimony of Dennis's fear
was in direct contradiction to the testimony of the DFHS students, and if he was in
fear, it was not a belief a reasonably prudent person would have entertained. The
court next found Dennis did not prove he had no other means to avoid the danger.
The court concluded,
Under the facts before this Court, [Dennis's] claim of
self-defense presents a quintessential jury question. . . .
The direct contradiction between witnesses creates an
issue for a jury to decide, not the trial court. Therefore,
immunity does not apply because [Dennis] has not
proven[,] beyond a preponderance of evidence
standard[,] . . . self-defense. The Court finds that
[Dennis] has not established the elements of self-defense
by the greater weight of the evidence.
Accordingly, the court found Dennis was not entitled to immunity under the Act.
Based on that finding, the court declined to rule as to whether Dennis was entitled
to a second immunity hearing. After a second trial, Dennis was convicted and
sentenced to thirty years' imprisonment. This appeal followed.
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). An
appellate court "reviews an immunity determination for an abuse of discretion."
McCarty, 437 S.C. at 365, 878 S.E.2d at 908. "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." Id. (quoting State v. Jones, 416 S.C.
283, 290, 786 S.E.2d 132, 136 (2016) (alteration in original).
LAW/ANALYSIS
A. Immunity Hearing After a Mistrial
Dennis argues the court erred in denying him a second immunity hearing after the
first trial ended in a mistrial. We agree.
We first find no merit to the State's argument that Dennis was precluded from
receiving a new immunity hearing because he failed to appeal the denial of
immunity after the first immunity hearing. In State v. Isaac, our supreme court
"clarif[ied] that an order granting a request for immunity under the Act is
immediately appealable because it is a final order in the case. However, an order
denying a request for immunity is not a final order in the case." 405 S.C. 177, 182,
747 S.E.2d 677, 679 (2013) (footnote omitted).
We next hold the court erred in denying Dennis's motion for a new, full immunity
hearing. "A mistrial is the equivalent of no trial and leaves the cause pending in
the circuit court." State v. Woods, 382 S.C. 153, 158, 676 S.E.2d 128, 131 (2009).
When a case ends in a mistrial, it is considered a nullity and begins "anew when
called again for trial." Id.; State v. Mills, 281 S.C. 60, 62, 314 S.E.2d 324, 326
(1984), cert. denied, 469 U.S. 930 (1984) ("When a mistrial occurs because of the
inability of a jury to agree on a verdict, it is the same as if no trial took place.");
Grooms v. Zander, 246 S.C. 512, 514, 144 S.E.2d 909, 910 (1965) (finding that
rulings of a trial judge in a proceeding ending in mistrial represent no binding
adjudication upon the parties as the mistrial leaves the parties in status quo ante).
After a mistrial, "rulings made with reference to the admissibility and competency
of the testimony result[] in no binding adjudication of the rights of the parties."
Keels v. Powell, 213 S.C. 570, 572, 50 S.E.2d 704, 705 (1948). Although a ruling
on immunity under the Act is not a ruling on the admissibility of evidence, we find
the situations analogous. Like evidentiary rulings, the decision on immunity is left
to the sound discretion of the trial court. See State v. Glenn, 429 S.C. 108, 116,
838 S.E.2d 491, 495 (2019) ("This Court reviews an immunity determination for
abuse of discretion. 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." (internal citation omitted)); State v. Black, 400 S.C. 10, 16, 732 S.E.2d
880, 884 (2012) ("The admission or exclusion of evidence is left to the sound
discretion of the trial [court], whose decision will not be reversed on appeal absent
an abuse of discretion." (quoting State v. Saltz, 346 S.C. 114, 121, 551 S.E.2d 240,
244 (2001))); id. ("An abuse of discretion occurs when the trial court's ruling is
based on an error of law or, when grounded in factual conclusions, is without
evidentiary support." (quoting State v. Jennings, 394 S.C. 473, 477–78, 716 S.E.2d
91, 93 (2011))). In some instances, a lengthy pretrial hearing may have been held
on the evidentiary matter in dispute. The fact that such issue may have been ruled
upon in the first trial does not preclude the defendant from making the same,
different, or additional arguments to the trial court on retrial regarding admission
or exclusion and does not preclude a different ruling. See Woods, 382 S.C. at 158,
676 S.E.2d at 131 ("A mistrial is the equivalent of no trial and leaves the cause
pending in the [trial] court."); State v. Smith, 336 S.C. 39, 43–44, 518 S.E.2d 294,
296 (Ct. App. 1999) ("Because a mistrial is the equivalent of no trial, the trial
[court] could not rely on any evidentiary rulings from the nugatory proceeding.").
While evidentiary rulings may not hold the inherent power to completely end a
prosecution, in many cases, they can have a similar effect when the controverted
evidence, such as a confession or blood test, is the key evidence offered by the
State.
Furthermore, jurisprudence from our sister state of Georgia suggests the grant of a
new trial restarts the entire prosecutorial process including an immunity hearing.
In State v. Hamilton, 839 S.E.2d 560, 564 (Ga. 2020), the trial court granted
Hamilton a new trial after her conviction of felony murder based on "general
grounds" and because "trial counsel rendered constitutionally ineffective assistance
by, among other things, failing to move for a pretrial determination on the issue of
immunity from criminal prosecution." The Georgia Supreme court affirmed, and
Hamilton filed a motion for immunity from prosecution under Georgia's "Stand
Your Ground" Act. Id. at 565. The court stated,
the trial court granted Hamilton a new trial . . . . And
'[w]hen a new trial has been granted by the court, the
case shall be placed on the docket for trial as though no
trial had been had . . . .' OCGA § 5-5-48 (emphasis
supplied). . . . When the trial court granted Hamilton's
new trial, the jury verdict against her was set aside. As a
result, when the State elected to retry Hamilton, she was
free to seek immunity from prosecution under OCGA §
16-3-24.2 before any new trial was conducted.
Id. at 565–66; see State v. Remy, 840 S.E.2d 385, 388–89 (Ga. 2020) (reiterating
that a defendant may file a motion for immunity after a mistrial is declared because
a mistrial is the equivalent of no trial at all). Although the defendants in both
Hamilton and Remy had not previously had immunity hearings, the court in each
found the mistrial restarted the clock on the defendant's ability to request
immunity.
The issue of the use of prior trial transcripts also arose in Hamilton. The State
argued the trial court erred in admitting the transcript from Hamilton's jury trial
and the transcript from the motion for a new trial hearing in the hearing on her
motion for immunity. Id. at 566. The court considered the admissibility of the
transcripts under its Rules of Evidence governing hearsay and its exclusions and
affirmed the trial court's admission of the transcripts. Id. at 571. However, the
court qualified its decision as follows:
A number of factors lead us to that conclusion. First,
there is no dispute that Hamilton's criminal case was
fully litigated over the course of an eight-day trial, and
that the same judge who presided over that—and who
observed the demeanor of witnesses being examined and
cross-examined—also presided over Hamilton's motion
for new trial and immunity hearings. Cf. [United States
v. Mathis, 559 F.2d 294, 298–99 (5th Cir. 1977)]
(reasoning that live testimony is generally favored and
considered more probative, at least in part, because the
factfinder is able to observe a witness's demeanor,
including during cross-examination). Second, the
witnesses' prior testimony would have been considered
one way or the other at the immunity hearing if they were
called to testify, whether that was because a witness was
re-subpoenaed and testified in a way that was materially
similar to his or her prior testimony, or because a witness
was re-subpoenaed and contradicted his or her prior
testimony, thus allowing the prior testimony's admission
as a prior inconsistent statement. . . . Third, the trial
court accounted for the potential for additional or
inconsistent testimony by giving both Hamilton and the
State an opportunity to 'hear testimony from any
additional witnesses and from witnesses that did testify at
trial if the witnesses had any additional newly discovered
evidence,' yet the State declined to present any such
witnesses or evidence. Finally, and perhaps most
importantly, Hamilton's 2011 trial—where many
witnesses recounted the events of the many years leading
up to [the victim's] death, as well as the events on the day
of his death less than a year before the witnesses
testified—was conducted more than eight years before
the hearing on her motion for immunity was held in
2019. . . . Given this unusual procedural posture, and
considering the totality of the circumstances, we cannot
say that the trial court abused its discretion by admitting
the transcripts from Hamilton's trial and the hearing on
her motion for new trial into evidence.
Id. (internal footnote omitted).
In this case, the second immunity hearing was not held before the judge who
conducted the first trial nor the judge who heard the first immunity hearing. In
addition, there were less than three years between the first immunity hearing and
the second immunity hearing and less than a year between the first trial and the
second immunity hearing. We find the unusual circumstances relied upon by the
Georgia Supreme Court are absent here, and the court erred in relying on
transcripts rather than making its own credibility findings and weighing the
evidence. See McCarty, 437 S.C. at 372, 878 S.E.2d at 911 ("[T]he circuit court
must weigh the evidence and make its own credibility and factual findings before
reaching a decision as to immunity."); State v. Chhith-Berry, 437 S.C. 527, 542–
43, 878 S.E.2d 352, 360 (Ct. App. 2022), reh'g denied, (Oct. 20, 2022), cert.
denied, (May 24, 2023) ("[T]he [trial] court's [immunity] 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." (quoting Cervantes-Pavon, 426 S.C. at 452, 827 S.E.2d at 569)).
We hold the court erred in failing to conduct a new immunity hearing and by
relying on transcripts to rule on Dennis's entitlement to immunity. Accordingly,
we remand for a new immunity hearing. If immunity is granted, the conviction is
set aside. If immunity is denied, the conviction stands and Dennis is entitled to
appeal the denial of immunity and the trial issues. The trial court on remand is to
consider only the evidence at the new hearing. See McCarty, 437 S.C. at 375, 878
S.E.2d at 913 (remanding for an immunity hearing "because the circuit court is in
the best position to assess witness credibility and make the necessary findings of
fact"); Glenn, 429 S.C. at 123, 838 S.E.2d at 499 (remanding where the circuit
court did not address the elements of self-defense in denying immunity);
Cervantes-Pavon, 426 S.C. at 452–53, 827 S.E.2d at 569 (remanding where the
circuit court erred by, inter alia, finding that the immunity issue presented a jury
question, while making it "clear[] we are not ordering a new trial, only a new
hearing to determine whether Cervantes-Pavon is entitled to immunity under the
Act," and rejecting the State's contention that there was evidence from the
immunity hearing to support the court's ruling); id. (directing the trial court on
remand "to rely only upon evidence presented at the new hearing on remand"). We
acknowledge that almost ten years have passed since the initial immunity hearing.
While the use of contemporaneous, live testimony is the proper mode of evidence
on the remand of this case, neither party is precluded from requesting to use prior
sworn testimony if it can prove under the Rules of Evidence that doing so is
necessary.
B. Merits of Dennis's Claim of Immunity
Dennis argues he was entitled to immunity under the Act. As noted above, we find
the proper course is to remand "because the circuit court is in the best position to
assess witness credibility and make the necessary findings of fact." McCarty, 437
S.C. at 375, 878 S.E.2d at 913. However, we review Dennis's remaining issues
regarding his claim of immunity.
1. Conflicting Evidence
Dennis first argues the court erred in finding that because there was conflicting
evidence as to Dennis's entitlement to immunity, self-defense was a jury issue. We
agree.
"A claim of immunity under the Act requires a pretrial determination using a
preponderance of the evidence standard, which [appellate] court[s] review[] under
an abuse of discretion standard of review." State v. Jones, 416 S.C. 283, 290, 786
S.E.2d 132, 136 (2016) (quoting State v. Curry, 406 S.C. 364, 370, 752 S.E.2d
263, 266 (2013)). "[J]ust because conflicting evidence as to an immunity issue
exists does not automatically require the [trial] court to deny immunity; the [trial]
court must sit as the fact-finder at this hearing, weigh the evidence presented, and
reach a conclusion under the Act." State v. Gray, 438 S.C. 130, 141, 882 S.E.2d
469, 475 (Ct. App. 2022), reh'g denied (Jan. 23, 2023), cert. denied (Oct. 3, 2023)
(alterations in original) (quoting Cervantes-Pavon, 426 S.C. at 451, 827 S.E.2d at
569). "[T]he [trial] court, in announcing its ruling, should at least make specific
findings on the elements on the record." Id. (alterations in original) (quoting
Glenn, 429 S.C. at 123, 838 S.E.2d at 499). See State v. Ford, 439 S.C. 261, 271,
886 S.E.2d 710, 715 (Ct. App. 2023), cert. denied (Mar. 5, 2024) ("[T]he circuit
court, sitting as fact-finder, must make specific findings that support its immunity
decision."); Gray, 426 S.C. at 142, 882 S.E.2d at 475 (reversing the trial court's
denial of Gray's motion for immunity under the Act because the court
"impermissibly abdicated its role as the fact-finder at Gray's immunity hearing").
The court here likewise deferred to the jury, stating the following:
Under the facts before this Court, [Dennis's] claim of
self-defense presents a quintessential jury question. . . .
The direct contradiction between witnesses creates an
issue for a jury to decide, not the trial court. Therefore,
immunity does not apply because [Dennis] has not
proven[,] beyond a preponderance of evidence
standard[,] . . . self-defense. The Court finds that
[Dennis] has not established the elements of self-defense
by the greater weight of the evidence.
We find the court erred in deferring to the jury because there were conflicts in the
evidence. We acknowledge the State's argument that the court made findings as to
the elements of self-defense and its use of the phrases regarding deference to the
jury did not affect his analysis. However, we conclude the findings were
interspersed with deference to the jury and in violation of the law requiring the
court to be the fact-finder at an immunity hearing.
2. Duty to Retreat/Avoid the Danger
Dennis next argues both circuit court judges erred by denying him immunity based
upon the legally erroneous reason that he had the duty to retreat and that his
allegation of fear was neither credible nor reasonable. We address these elements
of self-defense in the context of the Act for the trial court's edification on remand.
The Act provides immunity from prosecution for a person who has used deadly
force after a trial court determines the person was justified in using such force.
The general four elements a defendant must meet to justify the use of deadly force
under the common law of self-defense are the following:
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.
Glenn, 429 S.C. at 116, 838 S.E.2d at 495.
The Act provides immunity as follows:
(A) A person who uses deadly force as permitted by the
provisions of this article or another applicable provision
of law is justified in using deadly force and is immune
from criminal prosecution and civil action for the use of
deadly force, unless the person against whom deadly
force was used is a law enforcement officer acting in the
performance of his official duties and he identifies
himself in accordance with applicable law or the person
using deadly force knows or reasonably should have
known that the person is a law enforcement officer.
S.C. Code Ann. § 16-11-450 (2015) (emphasis added). "'[A]nother applicable
provision of law' includes the common law of self-defense." Glenn, 429 S.C. at
117, 838 S.E.2d at 496.
Dennis argues the court erred in denying immunity based on Dennis's failure to
retreat and because he went to Cook-Out. In its order, the court found Dennis
sought out the DFHS students and chose the situation, which is in contradiction to
Dennis's right to be there. In addition, the court found Dennis chose not to leave
using other exits available to him, indicating the application of the duty to retreat
element of self-defense.
Dennis claimed immunity under both sections 16-11-440(A) and (C) of the Act.
"[A] trial court should first consider whether the defendant has proved the elements
of self-defense by a preponderance of the evidence. If the defendant has failed to
meet the elements of reasonable fear or the duty to retreat, the court should then
determine whether section 16-11-440(A) or (C) is applicable." Id.
Section 16-11-440(A) provides the following:
(A) A person is presumed to have a reasonable fear of
imminent peril of death or great bodily injury to himself
or another person when using deadly force that is
intended or likely to cause death or great bodily injury to
another person if the person:
(1) against whom the deadly force is used is in the
process of unlawfully and forcefully entering, or has
unlawfully and forcibly entered a dwelling, residence, or
occupied vehicle, or if he removes or is attempting to
remove another person against his will from the
dwelling, residence, or occupied vehicle; and
(2) who uses deadly force knows or has reason to believe
that an unlawful and forcible entry or unlawful and
forcible act is occurring or has occurred
S.C. Code Ann. § 16-11-440(A) (2015) (emphasis added). "Section 16-11-440(A)
may, under appropriate facts, replace the reasonable fear element of self-defense
by providing a presumption that the person's fear was reasonable under certain
circumstances . . . ." Glenn, 429 S.C. at 118, 838 S.E.2d at 496. Here, Dennis was
in his vehicle at the time of the incident, which is included in the presumption of
reasonable fear in the Act. As to findings regarding fear, Dennis argues, "Oddly,
[the court] found [he] failed to prove this second element, that he actually was in
imminent danger . . . or he believed he was . . . because [he] did not avoid the
situation at the Cook[-]Out." The court also found "the testimony as to the 'fear in
his eyes,' given by [Bettini] and [Dennis, is] in direct contradiction with the
testimony of the" DFHS students. Dennis maintains he met the third element of
self-defense—a reasonably prudent person of ordinary firmness and courage would
have likewise believed he was in imminent danger—and that he was in fact in such
imminent danger. The court found Dennis did not meet this element because there
was "inconsistent testimony." However, the court did not elaborate, and as we
previously discussed, we find the court's deferral of factfinding to the jury on
contradictory evidence was erroneous.
"The presumption of subsection (A) does not apply, however, 'if the victim has an
equal right to be in the dwelling or residence.'" Id. (quoting State v. Jones, 416
S.C. 283, 292, 786 S.E.2d 132, 137 (2016)). We find the same analysis applies to
one's vehicle. Thus, although the victim also had the right to be at Cook-Out, he
did not have the right to be in Dennis's occupied vehicle, as Dennis did, during the
confrontation. Therefore, the presumption that Dennis's fear was reasonable
applied to the extent he met his burden of showing the victim was unlawfully in or
entering his vehicle.
"[I]n cases where the defendant has not proved the duty to retreat element by a
preponderance of the evidence, the court should then consider whether section
16-11-440(C) is applicable . . . ." Id. at 118–19, 838 S.E.2d at 496. Section
16-11-440(C) provides:
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 . . . .
S.C. Code Ann. § 16-11-440(C) (2015) (emphasis added). "Where the section is
applicable, it replaces the duty to retreat element required to establish self-
defense." Glenn, 429 S.C. at 118, 838 S.E.2d at 496.
On remand, the trial court must make specific findings of fact in compliance with
any applicable presumptions afforded to Dennis in the Act.
C. Evidentiary Issues at Trial
We decline to reach the evidentiary issues raised by Dennis. See State v. Mekler,
379 S.C. 12, 17, 664 S.E.2d 477, 479 (2008) (affirming this court's decision
reversing defendant's conviction and granting a new trial, but finding it
unnecessary to address another issue concerning the admission of evidence decided
by this court, noting whether the issue would arise on retrial and its resolution
would depend upon the evidence and testimony presented, and would be for the
trial judge's consideration); Futch v. McAllister Towing of Georgetown, Inc., 335
S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (holding an appellate court need not
address remaining issues on appeal when its determination of a prior issue is
dispositive). However, we note that if the circuit court on remand denies Dennis
immunity and he appeals, he may raise these evidentiary issues.
CONCLUSION
We reverse and remand for a new immunity hearing in accordance with this
opinion.
REVERSED AND REMANDED.
KONDUROS and GEATHERS, JJ., concur.