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State v. Cervantes-Pavon

Supreme Court of South Carolina

March 27, 2019

The State, Respondent,
Dennis Elvin Cervantes-Pavon, Petitioner. Appellate Case No. 2017-001910

          Heard January 31, 2019

          Appeal from Charleston County Kristi Lea Harrington, Circuit Court Judge

          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, and Assistant Attorney General Susannah Rawl Cole, all of Columbia; and Solicitor Scarlett Anne Wilson, of Charleston, all for Respondent.


          HEARN, JUSTICE

         We granted Dennis Cervantes-Pavon's petition for a writ of certiorari to determine whether the court of appeals erred in affirming the circuit court's denial of immunity from prosecution under the Protection of Persons and Property Act, (the Act) S.C. Code Ann. §§ 16-11-410 to 450 (2015). State v. Cervantes-Pavon, Op. No. 2017-UP-258 (S.C. Ct. App. filed June 28, 2017). We write today to clarify several points regarding the Act and remand for a new immunity hearing.


         Cervantes-Pavon was indicted for murdering Raymond Muniz by stabbing him with a sheetrock saw at their workplace. Both men worked on a construction project at the Belk department store in Mount Pleasant. Prior to trial, Cervantes-Pavon moved to dismiss the indictment, arguing he was immune from prosecution under the Act.

         At the immunity hearing, Herbie Evans testified that on August 13, 2014, he was working as a superintendent on the Belk project and became aware of a problem between Muniz and Cervantes-Pavon. Cervantes-Pavon approached Evans and stated Muniz was picking on him. Evans spoke with Muniz and informed him that he would not tolerate any conflicts between employees and would send them home if one occurred. Evans did not witness any interactions between Muniz and Cervantes-Pavon on that day.

         José Somosa, through an interpreter, testified he worked with Muniz and Cervantes-Pavon on the Belk project. Somosa recalled that the day before the stabbing, Muniz had removed his shirt and attempted to fight Cervantes-Pavon, who refused. The next day, Somosa was working as Cervantes-Pavon's helper on the project by staying on the ground while Cervantes-Pavon worked on a ladder. According to Somosa, each time Muniz walked by Cervantes-Pavon, Muniz would say the two men should fight and Cervantes-Pavon would respond that he didn't want any trouble.

         Somosa testified that at the end of the workday, Muniz again wanted to fight Cervantes-Pavon. This time, Cervantes-Pavon "got angry," came down from the ladder, and "later went over to the tools and grabbed that steel thing." Somosa clarified the "steel thing" was a sheetrock saw approximately 10 inches long. Somosa stated Cervantes-Pavon "grabbed a pipe," Muniz "grabbed like a metal thing for framing," and the two "went at each other." Both men then dropped the metal objects and began to fight hand-to-hand, with Muniz, the taller man, holding Cervantes-Pavon around his neck. Somosa then saw Cervantes-Pavon remove the saw from his waist underneath his shirt and stab Muniz once. Thereafter, both men ran outside. According to Somosa, Muniz started the fight.

         The State predominantly cross-examined Somosa with two statements he had previously given to police. In those statements, Somosa reported, among other things, that he did not see the stabbing, Muniz and Cervantes-Pavon had engaged in a fist fight the week before over a broom, the fight occurred in Muniz's work area, and the two men were wrestling when Muniz was stabbed. Somosa expressed dissatisfaction with his prior statements, which were recorded in English, claiming the police "forc[ed] him to say things that [he] did not say" because the officer "spoke more English than Spanish," and Somosa told him he "wasn't understanding."

         Cervantes-Pavon also testified through an interpreter. He stated his problems with Muniz started when Muniz snatched a broom from him and continued when he attempted to tell his boss about the incident. Muniz continued to verbally assault Cervantes-Pavon by using homophobic slurs and threatening to kill him. On August 13, Muniz threatened him throughout the day, including with a pipe. According to Cervantes-Pavon, he also picked up a pipe to defend himself, but Muniz struck him in the stomach and jaw. He lost possession of the pipe, Muniz dropped his ...

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