Heard September 10, 2014.
[Copyrighted Material Omitted]
Appeal From Chesterfield County. J. Michael Baxley, Circuit Court Judge. Appellate Case No. 2013-000148.
Attorney General Alan McCrory Wilson, Chief Deputy Attorney General John W. McIntosh, Senior Assistant Deputy Attorney General Donald J. Zelenka, and Assistant Attorney General Alphonso Simon Jr., all of Columbia; and Solicitor Ernest Adolphus Finney III, of Sumter, for Appellant.
S. Jahue Moore, Michael Brooks Biediger, and Margaret Amelia Hazel, all of Moore Taylor Law Firm, P.A., of West Columbia, for Respondent.
GEATHERS, J. WILLIAMS and McDONALD, JJ., concur.
[411 S.C. 312] GEATHERS, J.:
The State seeks review of a circuit court order granting Respondent Graham Franklin Douglas immunity from prosecution for murder
and possession of a weapon during the commission of a violent crime pursuant to the Protection of Persons and Property Act, S.C. Code Ann. § 16-11-410 to -450 (Supp. 2013). We affirm.
[411 S.C. 313] FACTS/PROCEDURAL HISTORY
At the hearing on Respondent's motion to dismiss the indictment, Respondent testified concerning the events leading up to the shooting of his longtime friend Charles Eden Smith. According to Respondent, on May 31, 2011, Smith and Respondent went to play golf at Green River Country Club near Chesterfield. They arrived at the golf course between nine and ten o'clock in the morning and left between three o'clock and four-thirty in the afternoon. During this time, the two men shared a medium-sized bottle of vodka, and they purchased another medium-sized bottle of vodka on their way back to Respondent's house from the golf course. When they arrived at the small house, the two men began drinking the second bottle of vodka while sitting in lawn chairs in Respondent's backyard.
At approximately five o'clock that evening, Respondent and Smith went inside Respondent's house, where the two men continued drinking vodka. Smith then went to the bathroom inside Respondent's bedroom suite and locked the bedroom door because the bathroom did not have a door.
When Smith came out of the bedroom, he was holding a bottle of Respondent's anti-anxiety medication, which Respondent kept in a dresser drawer next to his bed. Smith stated, " Look what I found," to which Respondent replied, " No, no, no, no, I need those. Give them to me." As Respondent attempted to grab the bottle, Smith moved the bottle between his left hand and right hand. Smith then placed the bottle on the bar in the kitchen. As Respondent reached for the bottle, Smith slid the bottle back and forth on the bar, continuing to taunt Respondent. Respondent finally exclaimed " G** d*** it, give me my medicine," and Smith then " snapped" and " went crazy." Smith grabbed Respondent by his upper arms and threw him up against the refrigerator, causing Respondent to hit his head.
[411 S.C. 314] Smith held him there, and Respondent felt his knees buckle underneath him. When Smith released Respondent, Respondent fell on the floor and hit his head again. Smith got on top of Respondent and struck Respondent in the eye. Respondent told Smith several times to leave him alone and to leave his house, but Smith refused to do so. Smith bit Respondent on his leg, then backed off, went into the dining room, and started laughing. Unable to walk at that moment, Respondent crawled into his bedroom, which was adjacent to the kitchen.
Respondent then crawled up onto his bed and again told Smith to leave the house. As Respondent sat on the bed, Smith lingered, so Respondent retrieved a pistol from the dresser drawer next to his bed and set the pistol next to himself on the bed. Smith continued to laugh and refused to leave. Respondent then stood up and went to the kitchen's threshold, with the pistol by his side, and once more told Smith to leave. However, Smith, whose eyes " looked like a man possessed," began advancing toward Respondent.
When Respondent realized Smith was not going out the front door, Respondent lifted the pistol in an attempt to scare Smith away. Respondent was " terrified" because Smith " had already [attacked Respondent] once." When Smith was approximately two feet away from Respondent, Respondent fired the pistol. The bullet hit Smith in the chest, piercing his heart. He fell to the floor, struggling to breathe, and died within minutes.
Respondent ran to his parents' house next door to call 911. Before the 911 dispatcher could answer, Respondent blurted out: " Hey, I just shot [Smith]." When the dispatcher answered, Respondent stated: " Yeah, I need an ambulance out here." After the dispatcher asked for more detailed information, Respondent gave the phone to his father. Respondent's father told the dispatcher he believed someone had been shot and gave the dispatcher a street address. Respondent returned to his house and took some Clonazepam before the police arrived.
[411 S.C. 315] Because Respondent's father was employed by the Chesterfield County Sheriff's Office, that office asked the South Carolina Law Enforcement Division (SLED) to investigate the case and instructed its deputies to secure the scene until SLED arrived. When Deputy Dana Wallace arrived, he asked Respondent " What is going on?" Respondent stated, " He come [sic] at me with a gun and I shot him." Both Deputy Wallace and Sergeant Wayne Jordan testified that Respondent appeared " highly intoxicated." Deputy Wallace instructed two other deputies to detain Respondent. During the next several hours, Respondent spontaneously uttered the following: " I shot [Smith.]" ; " [Smith] is dead." ; " I'm a murderer." ; and " I had to shoot him before he shot me."
Respondent was indicted for murder and possession of a weapon during the commission of a violent crime. Subsequently, Respondent filed a motion to dismiss the charges against him pursuant to the Protection of Persons and Property Act, § 16-11-410 to -450 (the Act). On October 2 and 3, 2012, the circuit court conducted a hearing on the motion. After receiving all of the evidence, the circuit court took the motion under advisement. The circuit court later sent a letter to the Solicitor and Respondent's counsel, advising them of the court's decision to grant the motion to dismiss and explaining the grounds for granting the motion.
On November 19, 2012, the Solicitor filed a written request for reconsideration. However, on January 4, 2013, the circuit court issued a formal order granting Respondent immunity from prosecution and dismissing the charges against him. The circuit court found Respondent showed by a preponderance of the evidence that, when he shot Smith, he was acting in self-defense because he reasonably believed it was necessary to use deadly force to prevent death or great bodily harm to himself. This appeal followed.
ISSUES ON APPEAL
1. Did the circuit court abuse its discretion in finding Respondent reasonably believed shooting Smith was necessary to prevent great bodily injury to himself?
[411 S.C. 316] 2. Did the circuit court err in admitting into evidence the testimony of two police officers concerning Smith's prior bad acts?
3. Did the circuit court abuse its discretion in assessing the evidence of Smith's intoxication and failing to properly assess Respondent's intoxication?
4. Did the circuit court err in granting Respondent immunity from prosecution pursuant to S.C. Code Ann. § 16-11-440(C)?
STANDARD OF REVIEW
This court reviews the trial court's pretrial determination of immunity for an abuse of discretion. State v. Curry, 406 S.C. 364, 370, 752 S.E.2d 263, 266 (2013). The admission or exclusion of evidence is also subject to an abuse of discretion standard of review. See State v. Adams, 354 S.C. 361, 377, 580 S.E.2d 785, 793 (Ct. App. 2003) (" A court's ruling on the admissibility of evidence will not be reversed on appeal absent an abuse of discretion . . . ." ). " 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." State v. Pittman, 373 S.C. 527, 570, 647 S.E.2d 144, 166-67 (2007). In other
words, the abuse of discretion standard of review does not allow this court to reweigh the evidence or second-guess the trial court's assessment of witness credibility. Cf. State v. Mitchell, 382 S.C. 1, 4, 675 S.E.2d 435, 437 (2009) (equating the " any evidence" standard of review in criminal cases to the abuse of discretion standard of review and emphasizing that, under this standard, the appellate court " does not re-evaluate the facts based on its own view of the preponderance of the evidence but simply determines whether the trial court's ruling is supported by any evidence" ).
I. Reasonable Belief
The State argues the circuit court abused its discretion in finding Respondent reasonably believed shooting Smith was [411 S.C. 317] necessary to prevent great bodily injury to himself. We disagree.
Section 16-11-450(A) of the South Carolina Code provides immunity from criminal prosecution to a person using deadly force as permitted by the Act or another applicable provision of law. Further, section 16-11-440 sets forth the circumstances under which the Act allows deadly force. The statute provides, in pertinent part:
(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.
. . .
(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.
S.C. Code Ann. § 16-11-440(A), (C) (emphases added). Section 16-11-430(2) 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." In the present case, Respondent sought, and was granted, immunity [411 S.C. 318] under subsection (C) ...